EXECUTION COPY
STRUCTURED ASSET SECURITIES CORPORATION II,
Depositor
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Master Servicer
and
LNR PARTNERS, INC.,
as Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated as of January 11, 2006
------------------------------
$2,483,260,647
LB-UBS Commercial Mortgage Trust 2006-C1
Commercial Mortgage Pass-Through Certificates,
Series 2006-C1
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN ADJUSTMENTS TO THE
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES
SECTION 1.01. Defined Terms................................................................................... 8
SECTION 1.02. General Interpretive Principles................................................................. 116
SECTION 1.03. Certain Adjustments to the Principal Distributions on the Certificates.......................... 117
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........................................... 119
SECTION 2.02. Acceptance of Trust Fund by Trustee............................................................. 122
SECTION 2.03. Repurchase of Trust Mortgage Loans for Document Defects and Breaches of Representations and
Warranties.................................................................................... 124
SECTION 2.04. Representations, Warranties and Covenants of the Depositor...................................... 132
SECTION 2.05. Acceptance of Grantor Trust Assets by Trustee; Issuance of the Class V Certificates............. 134
SECTION 2.06. Acceptance of Loan REMICs by Trustee; Execution, Authentication and Delivery of Class R-LR
Certificates; Creation of Loan REMIC Regular Interests........................................ 134
SECTION 2.07. Conveyance of Loan REMIC Regular Interests...................................................... 135
SECTION 2.08. Execution, Authentication and Delivery of Class R-I Certificates; Creation of REMIC I Regular
Interests..................................................................................... 135
SECTION 2.09. Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by Trustee...................... 136
SECTION 2.10. Execution, Authentication and Delivery of Class R-II Certificates; Creation of REMIC II Regular
Interests..................................................................................... 136
SECTION 2.11. Conveyance of REMIC II Regular Interests; Acceptance of REMIC III by Trustee.................... 136
SECTION 2.12. Execution, Authentication and Delivery of REMIC III Certificates................................ 136
SECTION 2.13. Acceptance of Loss of Value Reserve Fund by Trustee............................................. 137
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans............................................................ 138
SECTION 3.02. Collection of Mortgage Loan Payments............................................................ 141
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts; Reserve Accounts........ 144
SECTION 3.04. Pool Custodial Account, Defeasance Deposit Account, Collection Account, Interest Reserve
Account, Excess Liquidation Proceeds Account and Loss of Value Reserve Fund................... 146
SECTION 3.04A. Loan Combination Custodial Accounts for Serviced Loan Combinations.............................. 151
SECTION 3.05. Permitted Withdrawals From the Pool Custodial Account, the Collection Account, the Interest
Reserve Account and the Excess Liquidation Proceeds Account................................... 154
SECTION 3.05A. Permitted Withdrawals From the Loan Combination Custodial Accounts.............................. 161
SECTION 3.06. Investment of Funds in the Collection Account, the Servicing Accounts, the Reserve Accounts, the
Defeasance Deposit Account, the Custodial Accounts, the REO Accounts, the Interest Reserve
Account and the Excess Liquidation Proceeds Account........................................... 172
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage; Environmental
Insurance..................................................................................... 174
SECTION 3.08. Enforcement of Alienation Clauses............................................................... 178
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required Appraisals; Appraisal Reduction Calculation. 183
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage Files................................... 188
SECTION 3.11. Servicing Compensation; Payment of Expenses; Certain Matters Regarding Servicing Advances....... 190
SECTION 3.12. Property Inspections; Collection of Financial Statements; Delivery of Certain Reports........... 197
SECTION 3.12A. Preparation and Delivery of Certain Statements and Reports to the Serviced Non-Trust Mortgage
Loan Noteholders.............................................................................. 201
SECTION 3.13. Annual Statement as to Compliance............................................................... 203
SECTION 3.14. Reports on Assessment of Compliance with Servicing Criteria; Registered Public Accounting Firm
Attestation Reports........................................................................... 204
SECTION 3.15. Access to Certain Information................................................................... 205
SECTION 3.16. Title to REO Property; REO Accounts............................................................. 207
SECTION 3.17. Management of REO Property...................................................................... 209
SECTION 3.18. Sale of Trust Mortgage Loans and Administered REO Properties.................................... 212
SECTION 3.19. Additional Obligations of the Master Servicer and Special Servicer; Obligations to Notify Ground
Lessors and Hospitality Franchisors; the Special Servicer's Right to Request the Master
Servicer to Make Servicing Advances .......................................................... 217
SECTION 3.20. Modifications, Waivers, Amendments and Consents; Defeasance..................................... 219
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special Servicer; Record Keeping.............. 229
SECTION 3.22. Sub-Servicing Agreements........................................................................ 231
SECTION 3.23. Representations and Warranties of the Master Servicer........................................... 234
SECTION 3.24. Representations and Warranties of the Special Servicer.......................................... 236
SECTION 3.25. Certain Matters Regarding the Purchase of the Trust Mortgage Loan in a Loan Combination......... 237
SECTION 3.26. Application of Default Charges.................................................................. 238
SECTION 3.27. Purchase Option and Cure Rights of the Class IUU Representative................................. 242
SECTION 3.28. Defense of Litigation........................................................................... 243
SECTION 3.29. Deliveries in Connection with Securitization of a Serviced Non-Trust Mortgage Loan.............. 245
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions................................................................................... 246
SECTION 4.02. Statements to Certificateholders and Others..................................................... 258
SECTION 4.03. P&I Advances With Respect to the Mortgage Pool.................................................. 267
SECTION 4.04. Allocations of Realized Losses and Additional Trust Fund Expenses............................... 273
SECTION 4.05. Various Reinstatement Amounts................................................................... 275
SECTION 4.06. Calculations.................................................................................... 277
SECTION 4.07. Use of Agents................................................................................... 277
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates................................................................................ 278
SECTION 5.02. Registration of Transfer and Exchange of Certificates........................................... 278
SECTION 5.03. Book-Entry Certificates......................................................................... 286
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates............................................... 288
SECTION 5.05. Persons Deemed Owners........................................................................... 288
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.................................... 289
SECTION 6.02. Continued Qualification and Compliance of Master Servicer; Merger, Consolidation or Conversion
of Depositor, Master Servicer or Special Servicer............................................. 289
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer and Special Servicer...................... 290
SECTION 6.04. Resignation of Master Servicer and the Special Servicer......................................... 291
SECTION 6.05. Rights of Depositor, Trustee and Serviced Non-Trust Mortgage Loan Noteholders in Respect of the
Master Servicer and the Special Servicer...................................................... 292
SECTION 6.06. Depositor, Master Servicer and Special Servicer to Cooperate with Trustee....................... 292
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate with Master Servicer....................... 292
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with Special Servicer....................... 293
SECTION 6.09. Designation of Special Servicer, Controlling Class Representative and Class IUU Representative;
Replacement of Special Servicer by the Controlling Class and Others........................... 293
SECTION 6.10. Master Servicer or Special Servicer as Owner of a Certificate................................... 298
SECTION 6.11. Certain Powers of the Controlling Class Representative and the Class IUU Representative......... 299
SECTION 6.12. Certain Matters Regarding the Serviced Loan Combinations........................................ 302
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default and Outside Servicer Defaults................................................. 307
SECTION 7.02. Trustee to Act; Appointment of Successor........................................................ 315
SECTION 7.03. Notification to Certificateholders.............................................................. 316
SECTION 7.04. Waiver of Events of Default and Outside Servicer Defaults....................................... 317
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default or Outside Servicer Default................ 317
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee............................................................................... 318
SECTION 8.02. Certain Matters Affecting Trustee............................................................... 319
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or Sufficiency of Certificates or Mortgage
Loans. 320
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates................................................... 321
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by Trustee................................. 321
SECTION 8.06. Eligibility Requirements for Trustee............................................................ 322
SECTION 8.07. Resignation and Removal of Trustee.............................................................. 323
SECTION 8.08. Successor Trustee............................................................................... 324
SECTION 8.09. Merger or Consolidation of Trustee and Fiscal Agent............................................. 325
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee................................................... 325
SECTION 8.11. Appointment of Custodians....................................................................... 326
SECTION 8.12. Appointment of Authenticating Agents............................................................ 327
SECTION 8.13. Appointment of Tax Administrators............................................................... 328
SECTION 8.14. Access to Certain Information................................................................... 328
SECTION 8.15. Reports to the Securities and Exchange Commission and Related Reports........................... 330
SECTION 8.16. Representations and Warranties of Trustee....................................................... 336
SECTION 8.17. Appointment of a Fiscal Agent................................................................... 338
SECTION 8.18. Representations and Warranties of Fiscal Agent.................................................. 339
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Trust Mortgage Loans.......................... 341
SECTION 9.02. Additional Termination Requirements............................................................. 343
SECTION 9.03. Outside Administered REO Properties............................................................. 344
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration............................................................................ 345
SECTION 10.02. Grantor Trust Administration.................................................................... 348
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment....................................................................................... 351
SECTION 11.02. Recordation of Agreement; Counterparts.......................................................... 353
SECTION 11.03. Limitation on Rights of Certificateholders...................................................... 353
SECTION 11.04. Governing Law; Consent to Jurisdiction.......................................................... 354
SECTION 11.05. Notices......................................................................................... 354
SECTION 11.06. Severability of Provisions...................................................................... 355
SECTION 11.07. Grant of a Security Interest.................................................................... 355
SECTION 11.08. Xxxxxx Act...................................................................................... 356
SECTION 11.09. Successors and Assigns; Beneficiaries........................................................... 356
SECTION 11.10. Article and Section Headings.................................................................... 357
SECTION 11.11. Notices to Rating Agencies...................................................................... 357
SECTION 11.12. Complete Agreement.............................................................................. 359
SCHEDULES AND EXHIBITS
Schedule No. Schedule Description
I Trust Mortgage Loan Schedule
II Representations and Warranties of the Depositor
III Exceptions to the Representations and Warranties of the Depositor
IV Schedule of Environmentally Insured Mortgage Loans
V Schedule of Initial Deposit Mortgage Loans
VI Schedule of Mortgage Loans Secured by a Hospitality Property or Nursing Facility
VII Schedule of Early Defeasance Mortgage Loans
VIII Schedule of Outside Serviced Trust Mortgage Loans
IX Schedule of Reference Rates
X Schedule of Class A-AB Planned Principal Balances
Exhibit No. Exhibit Description
A-1 Form of Class [A-1] [A-2] [A-3] [A-AB] [A-4] Certificate
A-2 Form of Class X-CP Certificate
A-3 Form of Class X-CL Certificate
A-4 Form of Class [A-M] [A-J] [B] [C] [D] [E] [F] Certificate
A-5 Form of Class [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S] [T] Certificate
A-6 Form of Class [R-I] [R-II] [R-III] [R-LR] Certificate
A-7 Form of Class V Certificate
A-8 Form of Class IUU 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]
vi
Exhibit No. Exhibit Description
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
S Form of Outside Master Servicer Notice
T Relevant Servicing Criteria Matrix
vii
This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of January 11, 2006, among STRUCTURED ASSET SECURITIES CORPORATION
II, as Depositor, WACHOVIA BANK, NATIONAL ASSOCIATION, as Master Servicer, LNR
PARTNERS, INC., as Special Servicer, and LASALLE BANK NATIONAL ASSOCIATION, as
Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, which are to be
issued hereunder in multiple Classes and which in the aggregate will evidence
the entire beneficial ownership interest in the Trust Fund.
As provided herein, the Trustee will elect to treat each Early
Defeasance Trust Mortgage Loan, if any, as the primary asset of a separate REMIC
for federal income tax purposes, and each such REMIC will be designated as a
"Loan REMIC". The Class R-LR Certificates (if issued in accordance with Section
2.06) will represent the sole class of "residual interests" in each and every
Loan REMIC, if any, for purposes of the REMIC Provisions under federal income
tax law. A separate Loan REMIC Regular Interest will, on the Closing Date, be
issued with respect to, and will thereafter relate to, each Early Defeasance
Trust Mortgage Loan, if any, included in a Loan REMIC. Each Loan REMIC Regular
Interest, if any, issued with respect to, and relating to, an Early Defeasance
Trust Mortgage Loan in a Loan REMIC, shall also relate to any successor REO
Trust Mortgage Loan with respect to such Early Defeasance Trust Mortgage Loan.
Each Loan REMIC Regular Interest, if any, shall: (i) bear a numeric designation
that is the same as the loan number for the related Early Defeasance Trust
Mortgage Loan set forth on the Trust Mortgage Loan Schedule; (ii) accrue
interest at the related per annum rate described in the definition of "Loan
REMIC Remittance Rate"; and (iii) have an initial Uncertificated Principal
Balance equal to the Cut-off Date Balance of the related Early Defeasance Trust
Mortgage Loan. The Legal Final Distribution Date of each Loan REMIC Regular
Interest, if any, 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 Early Defeasance Trust Mortgage Loan. None of
the Loan REMIC Regular Interests (if issued in accordance with Section 2.06)
will be certificated. Notwithstanding the foregoing, however, if the Trust Fund
does not include Early Defeasance Trust Mortgage Loans, then (i) there will be
no Loan REMICs, (ii) neither the Class R-LR Certificates nor any Loan REMIC
Regular Interests will be issued and (iii) the provisions of Section 2.06(b)
will apply.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Trust Mortgage Loans (exclusive of the Early
Defeasance Trust Mortgage Loans, if any, and exclusive of any collections of
Additional Interest on the ARD Trust Mortgage Loans, if any, after their
respective Anticipated Repayment Dates), any 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. Two separate REMIC I Regular Interests will, on the Closing Date, be
issued with respect to, and will thereafter relate to, each Split Trust Mortgage
Loan, and such REMIC I Regular Interests will bear the following alphabetic or
alphanumeric designations: (i) "ICB-A" and "ICB-B", respectively, in the case of
the Intel Corporate Building Trust Mortgage Loan; (ii) "UH-26-A" and "UH-26-B",
respectively, in the case of the U-Haul-26 Facilities Portfolio Trust Mortgage
Loan; and (iii) "UH-SAC-A" and "UH-SAC-B", respectively, in the case of the
U-Haul-SAC Portfolio Trust Mortgage Loan. In addition, a separate REMIC I
Regular Interest will, on the Closing Date, be issued with respect to, and will
thereafter relate to, each other Trust Mortgage Loan included in REMIC I and
each Loan REMIC
Regular Interest, if any, included in REMIC I. Each REMIC I Regular Interest
issued with respect to, and relating to, a Trust Mortgage Loan in REMIC I, shall
also relate to any successor REO Trust Mortgage Loan with respect to such Trust
Mortgage Loan. Each REMIC I Regular Interest issued with respect to, and
relating to, any Loan REMIC Regular Interest, shall also relate to the Early
Defeasance Trust Mortgage Loan and any successor REO Trust Mortgage Loan
corresponding to such Loan REMIC Regular Interest. Each REMIC I Regular Interest
shall: (i) except as otherwise described above with respect to each of the
respective REMIC I Regular Interests that correspond to a Split Trust Mortgage
Loan, bear a numeric designation that is the same as the loan number for the
related Trust Mortgage Loan set forth on the Trust Mortgage Loan Schedule; (ii)
accrue interest at a per annum rate described in the definition of "REMIC I
Remittance Rate"; and (iii) have an initial Uncertificated Principal Balance
equal to (A) $23,960,022 in the case of REMIC I Regular Interest ICB-A, (B)
$20,039,978 in the case of REMIC I Regular Interest ICB-B, (C) $18,131,353 in
the case of REMIC I Regular Interest UH-26-A, (D) $5,457,642 in the case of
REMIC I Regular Interest UH-26-B, (E) $12,454,665 in the case of REMIC I Regular
Interest UH-SAC-A, (F) $1,795,920 in the case of REMIC I Regular Interest
UH-SAC-B, and (G) the Cut-off Date Balance of the related Trust Mortgage Loan in
the case of each other REMIC I Regular Interest. 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 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. Each REMIC II Regular Interest
shall accrue interest at a per annum rate described in the definition of "REMIC
II Remittance Rate". The following table sets forth the designation and the
initial Uncertificated Principal Balance for each of the REMIC II Regular
Interests.
Initial Uncertificated
Designation of REMIC II Regular Principal Balance of REMIC II
Interests Regular Interests
------------------------------- -----------------------------
A-1 $ 64,000,000
A-2-1 $ 49,850,000
A-2-2 $ 109,003,000
A-2-3 $ 103,339,000
A-2-4 $ 63,808,000
A-3 $ 92,000,000
A-AB $ 94,000,000
A-4-1 $ 70,083,000
A-4-2 $ 120,112,000
A-4-3 $ 157,277,000
A-4-4 $ 795,704,000
A-M $ 245,597,000
A-J-1 $ 2,037,000
A-J-2 $ 219,000,000
B $ 15,350,000
C-1 $ 9,346,000
-2-
Initial Uncertificated
Designation of REMIC II Regular Principal Balance of REMIC II
Interests Regular Interests
------------------------------- -----------------------------
C-2 $ 18,284,000
D $ 24,559,000
E-1 $ 13,641,000
E-2 $ 4,779,000
F $ 21,490,000
G-1 $ 11,998,000
G-2 $ 9,491,000
H $ 24,560,000
J $ 18,420,000
K $ 24,560,000
L $ 12,279,000
M $ 9,210,000
N $ 9,210,000
P $ 6,140,000
Q $ 6,140,000
S $ 6,140,000
T $ 24,560,106
IUU-1 $ 7,200,282
IUU-2 $ 2,578,126
IUU-3 $ 3,551,311
IUU-4 $ 1,866,194
IUU-5 $ 1,276,095
IUU-6 $ 908,999
IUU-7 $ 960,210
IUU-8 $ 1,015,875
IUU-9 $ 1,076,524
IUU-10 $ 6,859,925
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. For federal income tax purposes, each Class of the
Regular Interest Certificates (exclusive of the Class X-CL and Class X-CP
Certificates), each REMIC III Component of the Class X-CL Certificates and each
REMIC III Component of the Class X-CP Certificates will be designated as a
separate "regular interest" in REMIC III. The Legal Final Distribution Date for
each Class of Regular Interest Certificates (exclusive of the Class X-CL and
Class X-CP Certificates), for each REMIC III Component of the Class X-CL
Certificates and for each REMIC III Component of the Class X-CP Certificates is
the latest Rated Final Distribution Date. Each Class of Regular Interest
Certificates, each REMIC III Component of the Class X-CL Certificates and each
REMIC III Component of the Class X-CP Certificates will accrue interest at the
per annum rate described in the definition of "Pass-Through Rate." The following
table sets forth the Class designation and original Class Principal Balance for
each Class of the Regular Interest Certificates.
-3-
Class Original Class
Designation of Regular Interest Principal Balance of Regular
Certificate Classes Interest Certificate Classes
------------------------------- ----------------------------
Class A-1 $ 64,000,000
Class A-2 $ 326,000,000
Class A-3 $ 92,000,000
Class A-AB $ 94,000,000
Class A-4 $ 1,143,176,000
Class A-M $ 245,597,000
Class A-J $ 221,037,000
Class B $ 15,350,000
Class C $ 27,630,000
Class D $ 24,559,000
Class E $ 18,420,000
Class F $ 21,490,000
Class G $ 21,489,000
Class H $ 24,560,000
Class J $ 18,420,000
Class K $ 24,560,000
Class L $ 12,279,000
Class M $ 9,210,000
Class N $ 9,210,000
Class P $ 6,140,000
Class Q $ 6,140,000
Class S $ 6,140,000
Class T $ 24,560,106
Class X-CL (1)
Class X-CP (2)
Class IUU-1 $ 7,200,282
Class IUU-2 $ 2,578,126
Class IUU-3 $ 3,551,311
Class IUU-4 $ 1,866,194
Class IUU-5 $ 1,276,095
-4-
Class Original Class
Designation of Regular Interest Principal Balance of Regular
Certificate Classes Interest Certificate Classes
------------------------------- ----------------------------
Class IUU-6 $ 908,999
Class IUU-7 $ 960,210
Class IUU-8 $ 1,015,875
Class IUU-9 $ 1,076,524
Class IUU-10] $ 6,859,925
____________________
(1) 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.
(2) 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.
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, if any, maintains its status as a grantor trust under the Code. The
Class V Certificates (if issued in accordance with Section 2.05) will represent
the entire beneficial ownership of the Grantor Trust Assets. Notwithstanding the
foregoing, however, if the Trust Fund does not include ARD Trust Mortgage Loans,
then there will be no Grantor Trusts, the Class V Certificates will not be
issued and the provisions of Section 2.05(b) will apply.
The Initial Pool Balance will be $2,483,260,647.
There exists one Trust Mortgage Loan (the "888 Seventh Avenue Trust
Mortgage Loan"), with a Cut-off Date Balance of $145,894,000, that is evidenced
by a Mortgage Note designated as Replacement Promissory Note A-1 and is,
together with two (2) other mortgage loans that will not be part of the Trust
Fund (such two (2) other mortgage loans, together, the "888 Seventh Avenue
Non-Trust Mortgage Loans"), secured on a collective basis by the same Mortgage
encumbering the property identified on the Trust Mortgage Loan Schedule as 000
Xxxxxxx Xxxxxx (the "888 Seventh Avenue Mortgaged Property"). The 000 Xxxxxxx
Xxxxxx Non-Trust Mortgage Loans consist of: (i) one (1) mortgage loan (the "888
Seventh Avenue Note A-2 Non-Trust Mortgage Loan") that has an unpaid principal
balance as of the Cut-off Date of $145,894,000 is evidenced by a Mortgage Note
designated as Replacement Promissory Note A-2 and is, as of the Closing Date,
held by UBS Real Estate Investments Inc.; and (ii) one mortgage loan (the "888
Seventh Avenue Note B Non-Trust Mortgage Loan") that has an unpaid principal
balance as of the Cut-off Date of $26,766,000, is evidenced by a Mortgage Note
designated as Replacement Promissory Note B and is, as of the Closing Date, held
by UBS Real Estate Investments Inc. The 000 Xxxxxxx Xxxxxx Trust Mortgage Loan
and the 000 Xxxxxxx Xxxxxx Non-Trust Mortgage Loans collectively constitute the
"888 Seventh Avenue Loan Combination" (which term shall include any group of
successor REO Mortgage Loans with respect to those three (3) Mortgage Loans).
-5-
The relative rights of the respective lenders in respect of the 000
Xxxxxxx Xxxxxx Loan Combination are set forth in a co-lender agreement dated as
of January 9, 2006 (as amended, restated, supplemented or otherwise modified
from time to time, the "888 Seventh Avenue Co-Lender Agreement"), between the
holder of the Mortgage Note for the 000 Xxxxxxx Xxxxxx Trust Mortgage Loan and
the respective holders of the Mortgage Notes for the 000 Xxxxxxx Xxxxxx
Non-Trust Mortgage Loans. The entire 000 Xxxxxxx Xxxxxx Loan Combination is to
be serviced and administered in accordance with this Agreement.
There exist another five (5) Trust Mortgage Loans (each, a "Serviced
Note A Trust Mortgage Loan") that, in each case, is evidenced by a mortgage note
designated as Note A or Replacement Promissory Note A and is, together with one
(1) other mortgage loan that will not be part of the Trust Fund (each such other
mortgage loan, a "Serviced Note B Non-Trust Mortgage Loan"), secured on a
collective basis by the same Mortgage encumbering the related property
identified in the table following this paragraph (each property identified in
such table, an "A/B Mortgaged Property"). The Serviced Note A Trust Mortgage
Loan and Serviced Note B Non-Trust Mortgage Loan that are secured by the same
Mortgage on a particular A/B Mortgaged Property will, together, constitute a
"Serviced A/B Loan Combination" (which term shall include any pair of successor
REO Mortgage Loans with respect to those two (2) mortgage loans). The relative
rights of the respective lenders in respect of each Serviced A/B Loan
Combination are set forth in a co-lender agreement dated as of a date in
January, 2006 (each such co-lender agreement, as amended, restated, supplemented
or otherwise modified from time to time, an "A/B Co-Lender Agreement"), between
the holder of the Mortgage Note for the Serviced Note A Trust Mortgage Loan
comprising such Serviced A/B Loan Combination and the holder of the Mortgage
Note for the Serviced Note B Non-Trust Mortgage Loan comprising such Serviced
A/B Loan Combination. From and after the Closing Date, each Serviced A/B Loan
Combination is to be serviced and administered in accordance with this
Agreement. The table below identifies each Serviced A/B Loan Combination by name
of the related Mortgaged Property, the Cut-off Date Balance of the Serviced Note
A Trust Mortgage Loan included in the subject Serviced A/B Loan Combination, the
original principal balance of the Serviced Note B Non-Trust Mortgage Loan
included in the subject Serviced A/B Loan Combination and the holder (as of the
Closing Date) of the Serviced Note B Non-Trust Mortgage Loan included in the
subject Serviced A/B Loan Combination.
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SERVICED A/B LOAN COMBINATIONS
ORIGINAL PRINCIPAL
CUT-OFF DATE BALANCE OF BALANCE OF SERVICED HOLDER OF SERVICED
NAME OF A/B SERVICED NOTE A NOTE B NON-TRUST NOTE B NON-TRUST
MORTGAGED PROPERTY(1) TRUST MORTGAGE LOAN MORTGAGE LOAN MORTGAGE LOAN(2)
------------------------------------ ----------------------- ------------------------- ---------------------------
1. Triangle Town Center $ 127,034,076 $ 72,965,924 UBS Real Estate
Investments Inc.
2. One Financial Center $ 99,903,070 $ 127,469,053 Affiliate of the related
Mortgagor
3. The Terraces at University Place $ 13,340,000 $ 808,000 Affiliate of the Depositor
4. Lakeview Crossing $ 4,752,500 $ 175,000 Affiliate of the Depositor
5. Park City Shopping Center $ 2,700,000 $ 135,000 Affiliate of the Depositor
____________________
(1) Reflects property identified by that name on the Trust Mortgage Loan
Schedule.
(2) As of Closing Date.
The 000 Xxxxxxx Xxxxxx Non-Trust Mortgage Loans and the Serviced
Note B Non-Trust Mortgage Loans, although not part of the Trust Fund, will be
serviced hereunder by the Master Servicer and the Special Servicer.
If Schedule VIII attached hereto identifies any Outside Serviced
Trust Mortgage Loan, then such Outside Serviced Trust Mortgage Loan (and, if
such Outside Serviced Trust Mortgage Loan is part of a Loan Combination, the
related Outside Serviced Non-Trust Mortgage Loan(s)) will be serviced and
administered in accordance with the related Outside Servicing Agreement. If
Schedule VIII attached hereto does not identify any Outside Serviced Trust
Mortgage Loan, then the provisions hereof specifically relating to Outside
Serviced Trust Mortgage Loans and various related concepts shall be of no force
and effect.
Capitalized terms used but not otherwise defined in this Preliminary
Statement have the respective meanings assigned thereto in Section 1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the Trustee hereby
agree, in each case, as follows:
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN ADJUSTMENTS TO THE PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, unless the context otherwise requires:
"30/360 Basis" shall mean the accrual of interest calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"888 Seventh Avenue Co-Lender Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"888 Seventh Avenue Collection Period" shall mean, with respect to
any Distribution Date, Trust Master Servicer Remittance Date or 000 Xxxxxxx
Xxxxxx Master Servicer Remittance Date, the period commencing on the day
immediately following the 000 Xxxxxxx Xxxxxx Determination Date in the calendar
month preceding the month in which such Distribution Date, Trust Master Servicer
Remittance Date or 000 Xxxxxxx Xxxxxx Master Servicer Remittance Date, as the
case may be, occurs (or, in the case of each of the initial Distribution Date,
the initial Trust Master Servicer Remittance Date or the initial 000 Xxxxxxx
Xxxxxx Master Servicer Remittance Date, as the case may be, commencing
immediately following the Cut-off Date) and ending on and including the 000
Xxxxxxx Xxxxxx Determination Date in the calendar month in which such
Distribution Date, Trust Master Servicer Remittance Date or 000 Xxxxxxx Xxxxxx
Master Servicer Remittance Date, as the case may be, occurs.
"888 Seventh Avenue Controlling Party" shall mean the Serviced Loan
Combination Controlling Party with respect to the 000 Xxxxxxx Xxxxxx Loan
Combination.
"888 Seventh Avenue Cure Rights" shall mean the cure rights granted
to the 000 Xxxxxxx Xxxxxx Note B Non-Trust Mortgage Loan Noteholder under
Section 7.01 of the 000 Xxxxxxx Xxxxxx Co-Lender Agreement.
"888 Seventh Avenue Determination Date" shall mean, during any
calendar month, commencing with February 2006, the Due Date for the 000 Xxxxxxx
Xxxxxx Loan Combination during that calendar month.
"888 Seventh Avenue Directing Lender" shall mean the Serviced Loan
Combination Directing Lender with respect to the 000 Xxxxxxx Xxxxxx Loan
Combination.
"888 Seventh Avenue Loan Combination" shall have the meaning
assigned thereto in the Preliminary Statement.
"888 Seventh Avenue Master Servicer Remittance Date" shall mean,
during any calendar month, commencing with February 2006, the Business Day
immediately following the Due Date for the 000 Xxxxxxx Xxxxxx Loan Combination
during that calendar month.
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"888 Seventh Avenue Mortgage Loan" shall mean the 000 Xxxxxxx Xxxxxx
Trust Mortgage Loan or any 000 Xxxxxxx Xxxxxx Non-Trust Mortgage Loan, as
applicable.
"888 Seventh Avenue Mortgaged Property" shall have the meaning
assigned thereto in the Preliminary Statement.
"888 Seventh Avenue Non-Trust Mortgage Loan Noteholder" shall mean
the holder (or, if applicable, the collective holders) of the Mortgage Note for
a 000 Xxxxxxx Xxxxxx Non-Trust Mortgage Loan.
"888 Seventh Avenue Non-Trust Mortgage Loans" shall have the meaning
assigned thereto in the Preliminary Statement.
"888 Seventh Avenue Note A-2 Non-Trust Mortgage Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"888 Seventh Avenue Note A-2 Non-Trust Mortgage Loan Noteholder"
shall mean the holder (or, if applicable, the collective holders) of the
Mortgage Note for the 000 Xxxxxxx Xxxxxx Note A-2 Non-Trust Mortgage Loan.
"888 Seventh Avenue Note B Non-Trust Mortgage Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"888 Seventh Avenue Note B Non-Trust Mortgage Loan Noteholder" shall
mean the holder (or, if applicable, the collective holders) of the Mortgage Note
for the 000 Xxxxxxx Xxxxxx Note B Non-Trust Mortgage Loan.
"888 Seventh Avenue Noteholders" shall mean, collectively, the
holder of the Mortgage Note for the 000 Xxxxxxx Xxxxxx Trust Mortgage Loan,
together with the 000 Xxxxxxx Xxxxxx Non-Trust Mortgage Loan Noteholders.
"888 Seventh Avenue Special Servicer" shall mean any special
servicer hereunder responsible for special servicing the 000 Xxxxxxx Xxxxxx Loan
Combination or any related REO Property; provided that, if such special servicer
has special servicing responsibilities with respect to other Serviced Mortgage
Loans and/or Administered REO Properties, then the term 000 Xxxxxxx Xxxxxx
Special Servicer shall refer to such party only to the extent of its rights,
duties and obligations in respect of the 000 Xxxxxxx Xxxxxx Loan Combination or
any related REO Property.
"888 Seventh Avenue Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement, which Trust Mortgage Loan is
identified on the Trust Mortgage Loan Schedule by loan number 2 and is, together
with the 000 Xxxxxxx Xxxxxx Non-Trust Mortgage Loans, secured by the same
Mortgage on the 000 Xxxxxxx Xxxxxx Mortgaged Property.
"1301 Avenue of the Americas Mortgaged Property" shall mean the
Mortgaged Property identified on the Trust Mortgage Loan Schedule as 1301 Avenue
of the Americas.
"1301 Avenue of the Americas Mortgagor" shall mean the Mortgagor
under the 1301 Avenue of the Americas Trust Mortgage Loan.
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"1301 Avenue of the Americas Trust Mortgage Loan" shall mean the
Trust Mortgage Loan identified on the Trust Mortgage Loan Schedule by loan
number 1, which Trust Mortgage Loan is secured by the 1301 Avenue of the
Americas Mortgaged Property.
"A/B Co-Lender Agreement" shall have the meaning assigned thereto in
the Preliminary Statement.
"A/B Mortgaged Property" shall have the meaning assigned thereto in
the Preliminary Statement.
"Acceptable Insurance Default" shall mean, with respect to any
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 (subject to Section 6.11 and/or Section 6.12, in each case
if and as applicable), that (i) such insurance is not available at commercially
reasonable rates and the subject hazards are not commonly insured against at the
time for real properties similar to the subject Mortgaged Property and located
in and around the region in which the subject Mortgaged Property is located, or
(ii) such insurance is not available at any rate. Subject to the Servicing
Standard, in making any of the determinations under and in accordance with
subclause (i) or (ii) of this definition, the Special Servicer shall be entitled
to reasonably rely on the opinion of an insurance consultant.
"Accrued Certificate Interest" shall mean the interest accrued from
time to time with respect to any Class of Regular Interest Certificates, the
amount of which interest shall equal: (a) in the case of any Class of Principal
Balance Certificates for any Interest Accrual Period, one-twelfth of the product
of (i) the annual Pass-Through Rate applicable to such Class of Certificates for
such Interest Accrual Period, multiplied by (ii) the Class Principal Balance of
such Class of Certificates outstanding immediately prior to the related
Distribution Date; and (b) in the case of either Class of Interest-Only
Certificates for any Interest Accrual Period, the aggregate amount of Accrued
Component Interest with respect to all of the REMIC III Components of such Class
of Certificates 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 either 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 annual
Pass-Through Rate applicable to such REMIC III Component for such Interest
Accrual Period, multiplied by (ii) the Component Notional Amount of such REMIC
III Component outstanding immediately prior to the related Distribution Date.
Each REMIC III Component of 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 or any interest therein is considered to be
acquired by (or, in the case of an Outside Administered REO Property, acquired
for the benefit of) the Trust Fund within the meaning of Treasury regulations
section 1.856-6(b)(1), which shall be the first day on which the Trust Fund is
treated as the owner of such REO Property or an interest therein for federal
income tax purposes.
-10-
"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.
"Actual/360 Equivalent of the related Outside Servicing Fee Rate"
shall mean, in the case of an Outside Servicing Fee that is calculated on a
30/360 Basis, for any Interest Accrual Period, a rate per annum equal to the
product of (a) the applicable Outside Servicing Fee Rate, multiplied by (b) a
fraction, expressed as a percentage, the numerator of which is 30 and the
denominator of which is the number of days in such Interest Accrual Period.
"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, subject to Section 2.05(b), 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, subject to Section 2.05(b),
the incremental increase in the Mortgage Rate for such loan resulting from the
passage of such Anticipated Repayment Date.
"Additional Servicer" shall mean any Servicer, other than the Master
Servicer, the Special Servicer and the Trustee, that meets the criteria in Item
1108(a)(2)(i) through (iii) of Regulation AB.
"Additional Trust Fund Expense" shall mean any expense that: (i) is
incurred with respect to the Trust Fund or any particular asset therein; (ii) is
not paid by or on behalf of any Mortgagor and is not covered by a
nonreimbursable payment by any party hereto; (iii) 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 (iv) would result or has resulted, as the
case may be, in the Holders of Regular Interest Certificates receiving less than
the full amount of principal and/or Distributable Certificate Interest to which
they are entitled on any Distribution Date.
"Adjusted Actual/360 Accrued Interest Amount" shall mean: (1) with
respect to any Loan REMIC Regular Interest or REMIC I Regular Interest that
relates to an Interest Reserve Mortgage Loan or an Interest Reserve REO Mortgage
Loan (other than any such REMIC I Regular Interest that relates to a Split Trust
Mortgage Loan or a Split REO Trust Mortgage Loan), for any Interest Accrual
Period, an amount of interest equal to the product of (a) the Mortgage Rate for
the related Trust Mortgage Loan in effect as of the Closing Date (without regard
to any modifications, extensions, waivers or amendments of the related Trust
Mortgage Loan subsequent to the Closing Date and, if such
-11-
related Trust Mortgage Loan is an Outside Serviced Trust Mortgage Loan, reduced
by the related Outside Servicing Fee Rate, if the related Outside Servicing Fee
is calculated on an Actual/360 Basis, or by the Actual/360 Equivalent of the
related Outside Servicing Fee Rate, if the related Outside Servicing Fee is
calculated on a 30/360 Basis), 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 or REMIC I Regular Interest, as the case may be,
immediately prior to the Distribution Date that corresponds to such Interest
Accrual Period; and (2) with respect to any REMIC I Regular Interest that
relates to either a Split Trust Mortgage Loan that is an Interest Reserve
Mortgage Loan or a Split REO Trust Mortgage Loan that is an Interest Reserve REO
Mortgage Loan, for any Interest Accrual Period, an amount of interest equal to
the product of (a) the Deemed Fixed Gross Rate with respect to such REMIC I
Regular Interest, 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) the calendar month of January (except in a leap year) or
(y) the calendar month of February, then the amount of interest calculated with
respect to any particular Loan REMIC Regular Interest or 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 (or in the case of
any such REMIC I Regular Interest that relates to a Split Trust Mortgage Loan or
a Split REO Trust Mortgage Loan, the portion of such Interest Reserve Amount
that is allocable thereto in accordance with the definition of "Interest Reserve
Amount" herein); and provided, further, that, if the subject Interest Accrual
Period ends during the calendar month of March, then the amount calculated with
respect to any particular Loan REMIC Regular Interest or 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 (or in the case of
any such REMIC I Regular Interest that relates to a Split Trust Mortgage Loan or
a Split REO Trust Mortgage Loan, the portion of such Interest Reserve Amount(s)
that is allocable thereto in accordance with the definition of "Interest Reserve
Amount" herein).
"Adjusted Net Principal Distribution Amount" shall mean, for any
Distribution Date, an amount equal to (a) the Net Principal Distribution Amount
for such Distribution Date, plus (b) all amounts to be added to such Net
Principal Distribution Amount pursuant to Section 1.03(c) for such Distribution
Date, minus (c) all amounts to be subtracted from such Net Principal
Distribution Amount pursuant to Section 1.03(b) for such Distribution Date.
"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 annual 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 two or more Corresponding REMIC II Regular Interests, as applicable.
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"Administered REO Property" shall mean any REO Property other than,
if applicable, any Outside Administered REO Property.
"Administrative Cost Rate" shall mean: (a) with respect to each
Outside Serviced Trust Mortgage Loan (or any successor REO Trust Mortgage Loan
with respect thereto), the sum of (i) the related Outside Servicing Fee Rate,
(ii) the Trustee Fee Rate, and (iii) the related Master Servicing Fee Rate; and
(b) with respect to each other Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan with respect thereto), the corresponding rate per annum specified
as the "Administrative Cost Rate" on the Trust Mortgage Loan Schedule, which,
for each Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto), is equal to the sum of the related Master Servicing Fee Rate
and the Trustee Fee Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event" shall mean, subject to Section
2.05(b), 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 or any class of Specially Designated Non-Trust Mortgage Loan
Securities, as of any date of determination, the qualification, downgrade or
withdrawal of any rating then assigned to such Class of Certificates or such
class of Specially Designated Non-Trust Mortgage Loan Securities, as the case
may be, by either Rating Agency or, if applicable, by Xxxxx'x.
"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.
"Annual Assessment Report" shall have the meaning assigned thereto
in Section 3.14.
"Annual Attestation Report" shall have the meaning assigned thereto
in Section 3.14.
"Annual Statement of Compliance" shall have the meaning assigned
thereto in Section 3.13.
-13-
"Anticipated Repayment Date" shall mean, with respect to any ARD
Mortgage Loan, subject to Section 2.05(b), the date specified in the related
loan documents after which the Mortgage Rate for such ARD Mortgage Loan will
increase as specified in the related Mortgage Note.
"Appraisal Reduction Amount" shall mean, with respect to any
Required Appraisal Loan, an amount (calculated initially as of the applicable
Determination Date immediately following the later of the date on which the
subject Serviced Trust Mortgage Loan or Serviced Loan Combination, as
applicable, became a Required Appraisal Loan and the date on which the
applicable Required Appraisal was obtained, and thereafter as of each subsequent
applicable Determination Date during the period that the subject Serviced Trust
Mortgage Loan, REO Trust Mortgage Loan or Serviced Loan Combination, as
applicable, remains a Required Appraisal Loan) equal to the excess, if any, of:
(a) the sum of, without duplication, (i) the Stated Principal Balance of such
Required Appraisal Loan, (ii) to the extent not previously advanced by or on
behalf of the Master Servicer, the Trustee or a Fiscal Agent, all unpaid
interest on such Required Appraisal Loan through the most recent Due Date prior
to the date of calculation (exclusive of any portion thereof that represents
Additional Interest and/or Default Interest), (iii) all accrued and unpaid
Special Servicing Fees, Liquidation Fees and Workout Fees in respect of such
Required Appraisal Loan, (iv) all related unreimbursed Advances made by or on
behalf of (plus all accrued interest on such Advances payable to) the Master
Servicer and/or any other party hereto with respect to such Required Appraisal
Loan, (v) if such Required Appraisal Loan consists of the 000 Xxxxxxx Xxxxxx
Loan Combination, and if the 000 Xxxxxxx Xxxxxx Note A-2 Non-Trust Mortgage Loan
was included in a Non-Trust Mortgage Loan Securitization Trust, any unpaid
interest made on delinquency advances with respect to such Non-Trust Mortgage
Loan or any successor REO Mortgage Loan with respect thereto under the related
Non-Trust Mortgage Loan Securitization Agreement, (vi) any other unpaid items
that could become Additional Trust Fund Expenses in respect of such Required
Appraisal Loan, and (vii) 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 or Serviced Loan Combination becomes a
Required Appraisal Loan, (ii) either (A) no Required Appraisal or update thereof
has been obtained or conducted, as applicable, with respect to the related
Mortgaged Property during the 12-month period prior to the date such Serviced
Trust Mortgage Loan or Serviced Loan Combination, as the case may be, became a
Required Appraisal Loan or (B) there shall have occurred since the date of the
most recent Required Appraisal or update thereof a material change in the
circumstances surrounding the related Mortgaged Property that would, in the
Special Servicer's reasonable judgment, materially affect the value of the
related Mortgaged Property, and (iii) no Required Appraisal is obtained or
conducted, as applicable, in accordance with Section 3.09(a), within 60 days
after such Serviced Trust Mortgage Loan or Serviced Loan Combination, as the
case may be, became a Required Appraisal Loan, then (x) until such Required
Appraisal or update is obtained or conducted, as applicable, in accordance with
Section 3.09(a), the Appraisal Reduction Amount shall equal 25% of the Stated
Principal Balance of such Required Appraisal Loan, and (y) upon receipt or
performance, as applicable, in accordance with Section 3.09(a), of such Required
Appraisal or update thereof by the Special Servicer, the Appraisal Reduction
Amount for such Required Appraisal Loan shall be recalculated in accordance with
the preceding sentence of this definition. For purposes of this definition, each
Required Appraisal Loan that is part of a Cross-Collateralized Group shall be
treated separately for the purposes of calculating any Appraisal Reduction
Amount.
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Any Appraisal Reduction Amount with respect to a Serviced Loan
Combination shall be calculated, and allocated between or among, as the case may
be, the respective Mortgage Loans comprising the subject Serviced Loan
Combination, by the Special Servicer pursuant to this Agreement and consistent
with the related Co-Lender Agreement; and the related Serviced Non-Trust
Mortgage Loan Noteholder(s) shall be entitled to rely on such calculations, and
the allocations to the subject Serviced Non-Trust Mortgage Loan(s) or any
successor REO Trust Mortgage Loan(s) with respect thereto, as reported to it or
them, as the case may be, by the Special Servicer.
Each Appraisal Reduction Amount shall be reduced to zero as of the
date the subject Serviced Trust Mortgage Loan or Serviced Loan Combination, as
applicable, ceases to be a Required Appraisal Loan, and no Appraisal Reduction
Amount shall exist as to any Serviced Trust Mortgage Loan (or any successor REO
Trust Mortgage Loan with respect thereto) or any Serviced Loan Combination after
it has been paid in full, liquidated, repurchased or otherwise disposed of.
Notwithstanding the foregoing, in the case of an Outside Serviced
Loan Combination, the term "Appraisal Reduction Amount" shall have the meaning
assigned to that term or any analogous term in the related Outside Servicing
Agreement. Further notwithstanding the foregoing, any Appraisal Reduction Amount
with respect to an Outside Serviced Loan Combination shall be calculated, and
allocated between the respective Mortgage Loans comprising such Outside Serviced
Loan Combination by the applicable Outside Servicer pursuant to the related
Outside Servicing Agreement; and the parties hereto shall be entitled to rely on
such calculations, and the allocations to the Trust Mortgage Loan or REO Trust
Mortgage Loan, as applicable, in such Outside Serviced Loan Combination, as
reported to them by the applicable Outside Servicer.
"Appraised Value" shall mean, with respect to each Mortgaged
Property or REO Property, the appraised value thereof based upon the most recent
appraisal or update thereof prepared by an Independent Appraiser that is
contained in the related Servicing File or, in the case of any such property
with or that had, as the case may be, an allocated loan amount of, or securing a
Trust Mortgage Loan or relating to an REO Trust Mortgage Loan, as the case may
be, with a Stated Principal Balance of, less than $2,000,000, either (a) the
most recent appraisal or update thereof that is contained in the 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, subject to Section 2.05(b), any
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) that
provides that if the unamortized principal balance thereof is not repaid by a
date certain set forth in the related loan documents, 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. If none of the Trust Mortgage Loans are reflected on the Trust Mortgage
Loan Schedule as being ARD Mortgage Loans, then Section 2.05(b) shall apply.
"ARD Trust Mortgage Loan" shall mean any Trust Mortgage Loan that is
an ARD Mortgage Loan. If none of the Trust Mortgage Loans are reflected on the
Trust Mortgage Loan Schedule as being ARD Mortgage Loans, then Section 2.05(b)
shall apply.
-15-
"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(s).
"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 then Maturity Date as of which such
Mortgage Loan remains outstanding and part of the Trust Fund (or, in the case of
a Serviced Non-Trust Mortgage Loan, if applicable, as of which (i) such
Non-Trust Mortgage Loan remains outstanding and (ii) the related Trust Mortgage
Loan remains part of the Trust Fund) (provided that such Mortgage Loan was not
paid in full, and no other Liquidation Event occurred in respect thereof, before
the end of the related Collection Period in which such 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, such Maturity Date; and (b) with respect to any REO
Mortgage Loan, for any Due Date as of which the related REO Property (or any
interest therein) 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 Loss of Value Payments
and, in the case of the initial Distribution Date, any Initial Deposits)
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) the
aggregate amount of any P&I Advances made by the Master Servicer, the
Trustee and/or a Fiscal Agent with respect to the Mortgage Pool for
distribution on the Certificates on such Distribution Date pursuant to
Section 4.03, (iii) the aggregate amount deposited by the Master Servicer
in the Collection Account for such Distribution Date pursuant to Section
3.19(a) in connection with Prepayment Interest Shortfalls on the Mortgage
Pool, (iv) to the extent not included in the amount described in clause
(a)(i) of this definition, the aggregate amount transferred from the
Excess Liquidation Proceeds Account to the Collection Account pursuant to
Section 3.05(d) in respect of such Distribution Date, (v) to the extent
not included in the amount described in clause (a)(i) of this definition,
if such Distribution Date is the Final Distribution Date, the aggregate
amount transferred from the Loss of Value Reserve Fund to the Collection
Account pursuant to Section 3.05(e) in respect of such Distribution Date,
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and (vi) to the extent not included in the amount described in clause
(a)(i) of this definition, if such Distribution Date occurs during the
calendar month of March, 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)
scheduled Monthly Payments that are due on a Due Date following the end of
the related Collection Period (or, in the case of a scheduled Monthly
Payment that is due on a Due Date in the same month as such Distribution
Date but subsequent to the end of the related Collection Period, following
the end of the calendar month in which such Distribution Date occurs),
(ii) any amounts payable or reimbursable to any Person from the Collection
Account pursuant to clauses (ii) through (v) and (viii) of Section
3.05(b), (iii) Prepayment Consideration and/or Additional Interest, (iv)
if such Distribution Date occurs during the calendar month of January
(except in a leap year) or during the calendar month of February, the
Interest Reserve Amounts with respect to the Interest Reserve Mortgage
Loans and any Interest Reserve REO Mortgage Loans to be withdrawn from the
Collection Account and deposited into the Interest Reserve Account in
respect of such Distribution Date and held for future distribution, all
pursuant to Section 3.04(c), and (v) amounts deposited in the Collection
Account in error;
provided that the Available Distribution Amount for the Final Distribution Date
shall consist of all amounts on deposit in the Collection Account as of the time
distributions are to be made to Certificateholders on the Final Distribution
Date, exclusive of any portion of such amounts that are payable or reimbursable
to any Person from the Collection Account pursuant to clauses (ii) through (v)
and (viii) of Section 3.05(b), that were deposited in the Collection Account in
error or that represent Prepayment Consideration and/or Additional Interest.
"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 (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.
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"Book-Entry Certificate" shall mean any Certificate registered in
the name of the Depository or its nominee.
"Book-Entry Non-Registered Certificate" shall mean any
Non-Registered Certificate that constitutes a Book-Entry Certificate.
"Book-Entry Subordinate Certificate" shall mean any Subordinate
Certificate that constitutes a Book-Entry Certificate.
"Breach" shall have the meaning assigned thereto in Section 2.03(a).
"Business Day" shall mean any day other than a Saturday, a Sunday or
a day on which banking institutions in New York, New York, or in any of the
cities in which the Corporate Trust Office of the Trustee, the Primary Servicing
Office of the Master Servicer or the Primary Servicing Office of the Special
Servicer are located, are authorized or obligated by law or executive order to
remain closed.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate" shall mean any one of the LB-UBS Commercial Mortgage
Trust 2006-C1, Commercial Mortgage Pass-Through Certificates, Series 2006-C1, 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.
"Certificateholder" shall mean the Person in whose name a
Certificate is registered in the Certificate Register, except that: (i) neither
a Disqualified Organization nor a Disqualified Non-United States Tax Person
shall be Holder of a Residual Interest Certificate for any purpose hereof; and
(ii) solely for the purposes of giving any consent, approval or waiver pursuant
to this Agreement that relates to the rights and/or obligations of any of the
Depositor, the Master Servicer, the Special Servicer, any Fiscal Agent or the
Trustee in its respective capacity as such, any Certificate registered in the
name of the Depositor, the Master Servicer, the Special Servicer, any Fiscal
Agent or the Trustee, as the case may be, or any Certificate registered in the
name of any of its Affiliates, shall be deemed not to be outstanding, and the
Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent, approval or waiver that relates to it has been obtained
(provided that the provisions of this clause (ii) are not intended to limit the
rights of the Controlling Class Representative or the Class IUU Representative
(any of which may be an Affiliate of the Special Servicer) as are specifically
set forth in this Agreement with respect to any consent, approval or waiver
required or permitted to be made by the Controlling Class Representative or the
Class IUU Representative or any rights under Section 6.09 with respect to any
election, removal or replacement of the Special Servicer or the Controlling
Class Representative or the Class IUU Representative). 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
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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.
"Certificate Notional Amount" shall mean, with respect to any
Interest-Only Certificate, as of any date of determination, the then notional
amount of such Certificate equal to the product of (a) the then Certificate
Factor for the Class of Interest-Only Certificates to which such Certificate
belongs, multiplied by (b) the amount specified on the face of such Certificate
as the initial Certificate Notional Amount thereof.
"Certificate Owner" shall mean, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Certificate as
reflected on the books of the Depository or on the books of a Depository
Participant or on the books of an indirect participating brokerage firm for
which a Depository Participant acts as agent.
"Certificate Principal Balance" shall mean, with respect to any
Principal Balance Certificate, as of any date of determination, the then
outstanding principal balance of such Certificate equal to the product of (a)
the then Certificate Factor for the Class of Principal Balance Certificates to
which such Certificate belongs, multiplied by (b) the amount specified on the
face of such Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" shall mean the register maintained pursuant
to Section 5.02.
"Certificate Registrar" shall mean the registrar appointed pursuant
to Section 5.02.
"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 an Outside Serviced Trust Mortgage
Loan or any related REO Property that are deliverable to the Trustee (or to the
Master Servicer on behalf of the Trustee), as holder of the Mortgage Note for
such Outside Serviced Trust Mortgage Loan.
"Certifying Officer" shall have the meaning assigned thereto in
Section 8.15(d).
"Certifying Party" shall have the meaning assigned thereto in
Section 8.15(d).
"Class" shall mean, collectively, all of the Certificates bearing
the same alphabetic or alphanumeric, as applicable, class designation or all of
the Holders of Certificates bearing the same alphabetic or alphanumeric, as
applicable, class designation, as the context may require.
"Class A Certificate" shall mean any of the Class A-1, Class X-0,
Xxxxx X-0, Class A-AB, Class A-4, Class A-M and Class A-J 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-AB Certificate" shall mean any one of the Certificates with
a "Class A-AB" 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-AB Planned Principal Balance" shall mean, with respect to
any Distribution Date, the targeted Class Principal Balance of the Class A-AB
Certificates for such date set forth on Schedule X attached hereto.
"Class A-J Certificate" shall mean any one of the Certificates with
a "Class A-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 A-M Certificate" shall mean any one of the Certificates with
a "Class A-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 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-4 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class B Through T 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 or Class T Certificate.
"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-4 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-4 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.
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"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-5 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-5 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class IUU Available Distribution Amount" shall mean, with respect
to any Distribution Date, the aggregate portion of the respective STML Available
Distribution Amounts with respect to the Split Trust Mortgage Loans and any
Split REO Trust Mortgage Loans for such Distribution Date that is equal to the
lesser of (1) the aggregate amount deemed distributed to REMIC II with respect
to all of the STML Group B REMIC I Regular Interests on such Distribution Date
pursuant to clauses (iv), (v) and (vi) of the first paragraph of Section 4.01(m)
and (2) the total of (x) all Distributable Certificate Interest with respect to
the Class IUU Certificates for such Distribution Date and, to the extent not
previously distributed, for all prior Distribution Dates, (y) the Class IUU
Principal Distribution Amount for such Distribution Date and (z) the aggregate
Loss Reimbursement Amount with respect to the Class IUU Certificates for such
Distribution Date.
"Class IUU Certificate" shall mean any of the Class IUU-1, Class
IUU-2, Class IUU-3, Class IUU-4, Class IUU-5, Class IUU-6, Class IUU-7, Class
IUU-8, Class IUU-9 and Class IUU-10 Certificates.
"Class IUU-1 Certificate" shall mean any one of the Certificates
with a "Class IUU-1" designation on the face thereof, substantially in the form
of Exhibit A-8 attached hereto, and evidencing a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class IUU-2 Certificate" shall mean any one of the Certificates
with a "Class IUU-2" designation on the face thereof, substantially in the form
of Exhibit A-8 attached hereto, and evidencing a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class IUU-3 Certificate" shall mean any one of the Certificates
with a "Class IUU-3" designation on the face thereof, substantially in the form
of Exhibit A-8 attached hereto, and evidencing a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class IUU-4 Certificate" shall mean any one of the Certificates
with a "Class IUU-4" designation on the face thereof, substantially in the form
of Exhibit A-8 attached hereto, and evidencing a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class IUU-5 Certificate" shall mean any one of the Certificates
with a "Class IUU-5" designation on the face thereof, substantially in the form
of Exhibit A-8 attached hereto, and evidencing a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
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"Class IUU-6 Certificate" shall mean any one of the Certificates
with a "Class IUU-6" designation on the face thereof, substantially in the form
of Exhibit A-8 attached hereto, and evidencing a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class IUU-7 Certificate" shall mean any one of the Certificates
with a "Class IUU-7" designation on the face thereof, substantially in the form
of Exhibit A-8 attached hereto, and evidencing a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class IUU-8 Certificate" shall mean any of the Certificates with a
"Class IUU-8" designation on the face thereof, substantially in the form of
Exhibit A-8 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class IUU-9 Certificate" shall mean any of the Certificates with a
"Class IUU-9" designation on the face thereof, substantially in the form of
Exhibit A-8 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class IUU-10 Certificate" shall mean any of the Certificates with a
"Class IUU-10" designation on the face thereof, substantially in the form of
Exhibit A-8 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class IUU Certificateholder" shall mean the Holder of a Class IUU
Certificate.
"Class IUU Control Period" shall mean, with respect to any Split
Trust Mortgage Loan or Split REO Trust Mortgage Loan, any period when there is
no continuing STML Change of Control Event relating thereto.
"Class IUU Net Prepayment Consideration" shall mean that portion of
any Net Prepayment Consideration received with respect to any Split Trust
Mortgage Loan or Split REO Trust Mortgage Loan that is equal to the product of
(a) the entire amount of such Net Prepayment Consideration, multiplied by (b) a
fraction, the numerator of which is equal to the portion of the relevant
principal prepayment or other early collection of principal included in the
Class IUU Principal Distribution Amount for the Distribution Date on which such
Net Prepayment Consideration is distributable to Certificateholders, and the
denominator of which is the entire amount of such relevant principal prepayment
or other early collection of principal.
"Class IUU Principal Distribution Amount" shall mean, with respect
to any Distribution Date, the lesser of (a) the aggregate amount of principal
deemed distributed to REMIC II with respect to all of the STML Group B REMIC I
Regular Interests on such Distribution Date pursuant to clause (v) of the first
paragraph of Section 4.01(m), and (b) the aggregate of the Class Principal
Balances of the Class IUU Certificates outstanding immediately prior to such
Distribution Date.
"Class IUU Purchase Option Event" shall mean, with respect to any
Split Trust Mortgage Loan, the existence of the following circumstances as of
any date of determination: (a) such Split Trust Mortgage Loan constitutes a
Specially Serviced Trust Mortgage Loan; and (b) any Monthly Payment under such
Split Trust Mortgage Loan is at least 60 days delinquent.
"Class IUU Purchase Price" shall mean, with respect to any Split
Trust Mortgage Loan, in connection with a purchase thereof by the Class IUU
Representative pursuant to Section 3.27(a), a
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price equal to the sum, without duplication, of (i) the outstanding principal
balance of such Split Trust Mortgage Loan, together with all accrued and unpaid
interest (including the Master Servicing Fee) on such Split Trust Mortgage Loan
(excluding, however, any such accrued and unpaid interest that represents
Default Interest), (ii) all other sums (in addition to principal and interest)
then due and owing under the terms of such Split Trust Mortgage Loan (excluding,
however, any such other sums that represent Default Interest), (iii) all
expenses (including amounts incurred by and owing to the Trustee, any Fiscal
Agent, the Master Servicer and the Special Servicer, if any) associated with the
subject purchase, (iv) any amount relating to such Split Trust Mortgage Loan in
respect of servicing compensation payable to the Master Servicer or any other
party hereunder, and (v) Advances and all interest paid or payable, as the
context may require, to the Master Servicer or any other party hereunder with
respect to Advances made by the Master Servicer or any other party, at the
Reimbursement Rate, which Advances are, at the time of purchase, payable or
reimbursable to the Trustee, any Fiscal Agent, the Master Servicer or any other
Person under this Agreement.
"Class IUU Representative" shall have the meaning assigned thereto
in Section 6.09(b).
"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-5 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-5 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-5 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-5 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-5 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-5 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 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 reduced by the amount of any
distributions of principal made thereon on such Distribution Date pursuant to
Section 4.01 or 9.01, as applicable, and shall be further reduced (subject to
Section 4.05) by the amount of any Realized Losses and Additional Trust Fund
Expenses deemed allocated thereto on such Distribution Date pursuant to Section
4.04. On each Distribution Date, the Class Principal Balance of each Class of
Principal Balance Certificates shall be increased by the related Class Principal
Reinstatement Amount, if any, for such Distribution Date.
"Class Principal Reinstatement Amount" shall have the meaning
assigned thereto in Section 4.05(a).
"Class Q Certificate" shall mean any of the Certificates with a
"Class Q" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class R-I Certificate" shall mean any of the Certificates with a
"Class R-I" designation on the face thereof, substantially in the form of
Exhibit A-6 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 of the Certificates with a
"Class R-II" designation on the face thereof, substantially in the form of
Exhibit A-6 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 of the Certificates with a
"Class R-III" designation on the face thereof, substantially in the form of
Exhibit A-6 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, subject to Section 2.06(b), any
of the Certificates with a "Class R-LR" designation on the face thereof,
substantially in the form of Exhibit A-6 attached hereto, and evidencing a
portion of the sole class of "residual interests" in each 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-5 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-5 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, subject to Section 2.05(b), any of
the Certificates with a "Class V" designation on the face thereof, substantially
in the form of Exhibit A-7 attached hereto, and evidencing a pro rata undivided
interest in the Grantor Trust Assets.
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"Class V Sub-Account" shall mean, subject to Section 2.05(b), 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-3 attached hereto, and evidencing a portion of 43 separate "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class X-XX XXXXX III Component" shall mean any of the 43 separate
"regular interests" in REMIC III evidenced by the Class X-CL Certificates, each
of which: (i) relates to its Corresponding REMIC II Regular Interest; (ii)
accrues interest at its Pass-Through Rate in effect from time to time; 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. The
Class X-XX XXXXX III Components shall have the following alphabetic and
alphanumeric designations: X-CL-A-1; X-CL-A-2-1; X-CL-A-2-2; X-CL-A-2-3;
X-CL-A-2-4; X-CL-A-3; X-CL-A-AB; X-CL-A-4-1; X-CL-A-4-2; X-CL-A-4-3; X-CL-A-4-4;
X-CL-A-M; X-XX-X-X-1; X-XX-X-X-2; X-CL-B; X-CL-C-1; X-CL-C-2; X-CL-D; X-CL-E-1;
X-CL-E-2; X-CL-F; X-CL-G-1; X-CL-G-2; X-CL-H; X-CL-J; X-CL-K; X-CL-L; X-CL-M;
X-CL-N; X-CL-P; X-CL-Q; X-CL-S; and X-CL-T.
"Class X-CP Certificate" shall mean any one of the Certificates with
a "Class X-CP" designation on the face thereof, substantially in the form of
Exhibit A-2 attached hereto, and evidencing a portion of 22 separate "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class X-CP REMIC III Component" shall mean any of the 22 separate
"regular interests" in REMIC III evidenced by the Class X-CP Certificates, each
of which: (i) relates to its Corresponding REMIC II Regular Interest; (ii)
accrues interest at its Pass-Through Rate in effect from time to time; 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. The
Class X-CP REMIC III Components shall have the respective alphabetic and
alphanumeric designations set forth in the definition of "Class X-CP Termination
Date".
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"Class X-CP Termination Date" shall mean, with respect to any Class
X-CP REMIC III Component, the Distribution Date in the month and year specified
opposite the alphanumeric designation for such Class X-CP REMIC III Component in
the following table.
Designation of Class X-CP Month and Year of Class X-CP
REMIC III Component Termination Date
------------------------- ----------------------------
X-CP-A-2-1 January 2007
X-CP-A-2-2 January 2008
X-CP-A-2-3 January 2009
X-CP-A-2-4 January 2010
X-CP-A-3 January 2010
X-CP-A-AB January 2010
X-CP-A-4-1 January 2010
X-CP-A-4-2 January 2011
X-CP-A-4-3 January 2012
X-CP-A-4-4 January 2013
X-CP-A-M January 2013
X-XX-X-X-1 January 2012
X-XX-X-X-2 January 2013
X-CP-B January 2012
X-CP-C-1 January 2011
X-CP-C-2 January 2012
X-CP-D January 2011
X-CP-E-1 January 2010
X-CP-E-2 January 2011
X-CP-F January 2010
X-CP-G-1 January 2009
X-CP-G-2 January 2010
"Clearstream" shall mean Clearstream Banking, Luxembourg or any
successor.
"Closing Date" shall mean February 1, 2006.
"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.
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"CMSA Advance Recovery Report" shall mean a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Advance Recovery Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information as may from
time to time be approved by the CMSA for commercial mortgage securities
transactions generally.
"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. In connection with preparing the
CMSA Comparative Financial Status Report, the Master Servicer shall process (a)
interim financial statements beginning with interim financial statements for the
fiscal quarter ending June of 2006, and (b) annual financial statements
beginning with annual financial statements for the 2006 fiscal year.
"CMSA Delinquent Loan Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Delinquent Loan Status Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Financial File" shall mean a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Historical Liquidation Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Historical Liquidation Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report" shall mean a report substantially in the form of, and containing the
information called for in, the downloadable form of the "Historical Loan
Modification and Corrected Mortgage Loan Report" available as of the Closing
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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;
(b) the following ten supplemental reports: (i) CMSA Delinquent
Loan Status Report, (ii) CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, (iii) CMSA Historical Liquidation Report, (iv) CMSA
REO Status Report, (v) CMSA Operating Statement Analysis Report, (vi) CMSA
Comparative Financial Status Report, (vii) CMSA Servicer Watch List,
(viii) CMSA Advance Recovery Report, (ix) CMSA Loan Level Reserve/LOC
Report and (x) CMSA NOI Adjustment Worksheet; and
(c) such other reports as the CMSA may approve from time to time
as being part of the CMSA Investor Reporting Package for commercial
mortgage securitization trusts generally and as are reasonably acceptable
to the Master Servicer.
"CMSA Loan Level Reserve/LOC Report" shall mean the monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Level Reserve/LOC Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Loan Periodic Update File" shall mean the monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Periodic Update File" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Loan Setup File" shall mean the report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Loan Setup File" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA NOI Adjustment Worksheet" shall mean a report prepared by the
Master Servicer with respect to all the Performing Serviced Mortgage Loans, and
by the Special Servicer with respect to Specially Serviced Mortgage Loans and,
if they relate to Administered REO Properties, REO Mortgage Loans, which report
shall be substantially in the form of, and contain the information called for
in, the downloadable form of the "NOI Adjustment Worksheet" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
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"CMSA Operating Statement Analysis Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Operating Statement Analysis Report" available as of
the Closing Date on the CMSA Website or in such other form for the presentation
of such information and containing such additional information as may from time
to time be approved by the CMSA for commercial mortgage-backed securities
transactions generally.
"CMSA Property File" shall mean a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Property File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA REO Status Report" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "REO Status Report" available as of the Closing Date on the CMSA Website, or
in such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Servicer Watch List" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Servicer Watch List" available as of the Closing Date on the CMSA Website,
or in such other form for the presentation of such information and containing
such additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Website" shall mean the CMSA's Website located at
"xxx.xxxx.xxx" or such other primary website as the CMSA may establish for
dissemination of its report forms.
"Code" shall mean the Internal Revenue Code of 1986 and regulations
promulgated thereunder, including temporary regulations and proposed regulations
to the extent that, by reason of their proposed effective date, could, as of the
date of any determination or opinion as to the tax consequences of any action or
proposed action or transaction, be applied to the Certificates.
"Co-Lender Agreement" shall mean, with respect to any Loan
Combination, the co-lender, intercreditor or similar agreement governing the
relative rights of the respective holders of the Mortgage Loans comprising such
Loan Combination. The Co-Lender Agreements consist of the 000 Xxxxxxx Xxxxxx
Co-Lender Agreement and the A/B Co-Lender Agreements.
"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 "[NAME OF TRUSTEE], as Trustee, in trust for the registered holders
of LB-UBS Commercial Mortgage Trust 2006-C1, Commercial Mortgage Pass-Through
Certificates, Series 2006-C1".
"Collection Period" shall mean, individually and collectively, as
applicable in the context used, (i) the related Loan Combination Collection
Period with respect to each Loan Combination and all related matters, and (ii)
the Trust Collection Period with respect to the Mortgage Pool (exclusive of
those Trust Mortgage Loans and any REO Trust Mortgage Loans that are part of a
Loan Combination) and all related matters.
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"Combination Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that constitutes part of a Loan Combination. The Combination Trust Mortgage
Loans are the 000 Xxxxxxx Xxxxxx Trust Mortgage Loan and the Serviced Note A
Trust Mortgage Loans.
"Commission" shall mean the United States Securities and Exchange
Commission or any successor agency.
"Component Notional Amount" shall mean the notional amount on which
any REMIC III Component of either Class of Interest-Only Certificates 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
then most subordinate (based on the payment priorities set forth in Sections
4.01(a) and 4.01(b)) outstanding Class of Principal Balance Certificates
(exclusive of the Class IUU Certificates) that has a Class Principal Balance
that is at least equal to 25% of the Original Class Principal Balance of such
Class; provided that if no such Class of Principal Balance Certificates has as
of such date of determination a Class Principal Balance that is at least equal
to 25% of its Original Class Principal Balance, then the Controlling Class shall
be the then most subordinate (based on the payment priorities set forth in
Sections 4.01(a) and 4.01(b)) outstanding Class of Principal Balance
Certificates (exclusive of the Class IUU Certificates) 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, all of the
Senior Class A Certificates shall be deemed to constitute a single Class of
Certificates. The Trustee shall notify the other parties hereto of any change of
which it has knowledge in the Class of Certificates that constitutes the
Controlling Class pursuant to this definition.
"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).
"Controlling Class Representative Confirmation" 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: Global Securities and
Trust Services Group -- LB-UBS Commercial Mortgage Trust 2006-C1.
"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
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"Specially Serviced Mortgage Loan" (other than by reason of a Liquidation Event
occurring in respect of such Serviced Mortgage Loan or the related Mortgaged
Property's becoming an REO Property). None of the Outside Serviced Mortgage
Loans 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 REMIC II
Regular Interest with an alphanumeric designation that begins "A-2-" shall be a
Corresponding REMIC II Regular Interest with respect to the Class A-2
Certificates, each REMIC II Regular Interest with an alphanumeric designation
that begins "A-4-" shall be a Corresponding REMIC II Regular Interest with
respect to the Class A-4 Certificates, each REMIC II Regular Interest with an
alphanumeric designation that begins "A-J-" shall be a Corresponding REMIC II
Regular Interest with respect to the Class A-J Certificates, each REMIC II
Regular Interest with an alphanumeric designation that begins "C-" shall be a
Corresponding REMIC II Regular Interest with respect to the Class C
Certificates, each REMIC II Regular Interest with an alphanumeric designation
that begins "E-" shall be a Corresponding REMIC II Regular Interest with respect
to the Class E Certificates, and each REMIC II Regular Interest with an
alphanumeric designation that begins "G-" 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.
"Corresponding Class X-CP REMIC III Component" shall mean, with
respect to any Class X-XX XXXXX III Component, any Class X-CP REMIC III
Component that has the same Corresponding REMIC II Regular Interest as such
Class X-XX XXXXX III Component. If the Corresponding REMIC II Regular Interest
for any Class X-XX XXXXX III Component is not also a Corresponding REMIC II
Regular Interest for a Class X-CP REMIC III Component, then such Class X-XX
XXXXX III Component shall not have a Corresponding Class X-CP REMIC III
Component.
"Covered Costs" shall mean, with respect to any Trust Mortgage Loan
and any related costs and expenses that the Depositor or the UBS Mortgage Loan
Seller, as applicable, are otherwise required to pay pursuant to Section 2.03(d)
or the UBS/Depositor Mortgage Loan Purchase Agreement, (i) if such Trust
Mortgage Loan has an original principal balance equal to or less than
$10,000,000, the entire amount of such costs and expenses, but only in the event
such costs and expenses exceed a threshold of $10,000, and (ii) if such Trust
Mortgage Loan has an original principal balance greater than $10,000,000, the
entire amount of such costs and expenses, but only in the event such costs and
expenses exceed a threshold of $25,000. In the case of each of clauses (i) and
(ii) above in this definition, in the event the subject costs and expenses do
not exceed the required threshold stated in the subject clause, the "Covered
Costs" shall be $0.
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"Cross-Collateralized Group" shall mean any group of
Cross-Collateralized Mortgage Loans; provided that no Loan Combination shall
constitute a Cross-Collateralized Group.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan
that is cross-defaulted and cross-collateralized with any other Mortgage Loan;
provided that none of the Mortgage Loans in a Loan Combination shall constitute
a Cross-Collateralized Mortgage Loan.
"Custodial Account" shall mean the Pool Custodial Account or any
Loan Combination Custodial Account.
"Custodian" shall mean a Person who is at any time appointed by the
Trustee pursuant to Section 8.11 as a document custodian for some or all of the
Mortgage Files, which Person shall not be the Depositor, a Mortgage Loan Seller
or an Affiliate of the Depositor or a Mortgage Loan Seller. If no such custodian
has been appointed, or if such custodian has been so appointed but the Trustee
shall have terminated such appointment, then the Trustee shall be the Custodian.
"Cut-off Date" shall mean January 11, 2006.
"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.
"Deemed Fixed Gross Rate" shall mean, with respect to any REMIC I
Regular Interest related to a Split Trust Mortgage Loan or Split REO Trust
Mortgage Loan, the rate per annum set forth below next to the alphabetic or
alphanumeric designation for such REMIC I Regular Interest.
REMIC I Regular Deemed Fixed
Interest Designation Gross Rate
-------------------- ------------------
ICB-A 5.60500% per annum
ICB-B 5.04512% per annum
UH-26-A 5.68800% per annum
UH-26-B 5.82631% per annum
UH-SAC-A 5.60700% per annum
UH-SAC-B 6.50365% per annum
"Default Charges" shall mean Default Interest and/or late payment
charges that are paid or payable, as the context may require, to the Trust (or,
if applicable, a Serviced Non-Trust Mortgage Loan Noteholder) in respect of any
Mortgage Loan or any successor REO Mortgage Loan with respect thereto.
"Default Interest" shall mean: (a) with respect to any Serviced
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto), any
amounts collected thereon (other than late payment charges and Prepayment
Consideration) that represent penalty interest (arising out of a default) in
excess of (i) interest accrued on the principal balance of such Serviced
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto), at the
related Mortgage Rate (net of any applicable Additional Interest Rate included
as part of such Mortgage Rate), and (ii) in the case of an ARD Mortgage Loan (or
any successor REO Trust Mortgage Loan with respect thereto) after the related
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Anticipated Repayment Date, any Additional Interest; and (b) with respect to any
Outside Serviced Trust Mortgage Loan (or any successor REO Trust Mortgage Loan
with respect thereto), any comparable penalty interest Received by the Trust
with respect thereto.
"Defaulting Party" shall have the meaning assigned thereto in
Section 7.01(b).
"Defeasance Certificate" shall have the meaning assigned thereto in
Section 3.20(k).
"Defeasance Collateral" shall mean, with respect to any Defeasance
Mortgage Loan, the Government Securities required or permitted to be pledged in
lieu of prepayment pursuant to the terms thereof in order to obtain a release of
the related Mortgaged Property.
"Defeasance Deposit Account" shall have the meaning assigned thereto
in Section 3.04(a).
"Defeasance Mortgage Loan" shall mean any Mortgage Loan that permits
the related Mortgagor to pledge Defeasance Collateral to the holder of such
Mortgage Loan in connection with obtaining the release of all or any portion of
the related Mortgaged Property (or permits the holder of such Mortgage Loan to
require the related Mortgagor to pledge Defeasance Collateral to the holder of
such Mortgage Loan in lieu of prepayment).
"Defeasance Serviced Trust Mortgage Loan" shall mean any Defeasance
Trust Mortgage Loan that is also a Serviced Trust Mortgage Loan.
"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.
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"Depository Participant" shall mean a broker, dealer, bank or other
financial institution or other Person for whom from time to time the Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date" shall mean, individually and collectively, as
applicable in the context used, (i) the related Loan Combination Determination
Date with respect to each Loan Combination and all related matters, and (ii) the
Trust Determination Date with respect to the Mortgage Pool (exclusive of those
Trust Mortgage Loans and any REO Trust Mortgage Loans that are part of a Loan
Combination) and all related matters.
"Directly Operate" shall mean, with respect to any Administered REO
Property, the furnishing or rendering of services to the tenants thereof, the
management or operation of such Administered REO Property, the holding of such
REO Property primarily for sale or lease, the performance of any construction
work thereon or any use of such Administered REO Property in a trade or business
conducted by REMIC I (or, if held thereby, any related Loan REMIC) other than
through an Independent Contractor; provided, however, that the Trustee (or the
Special Servicer or any Sub-Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an Administered REO Property solely because the
Trustee (or the Special Servicer or any Sub-Servicer on behalf of the Trustee)
establishes rental terms, chooses tenants, enters into or renews leases, deals
with taxes and insurance, or makes decisions as to repairs or capital
expenditures with respect to such Administered REO Property.
"Discount Rate" shall mean, with respect to any prepaid Trust
Mortgage Loan or REO Trust Mortgage Loan, for purposes of allocating any
Prepayment Consideration 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
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the Code (unless such organization is subject to the tax imposed by Section 511
of the Code on unrelated business income); (iii) rural electric and telephone
cooperatives described in Section 1381 of the Code; or (iv) any other Person so
designated by the Trustee or the Tax Administrator based upon an Opinion of
Counsel that the holding of an Ownership Interest in a Residual Interest
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates, other than such Person, to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Interest Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"Disqualified Partnership" shall mean any domestic entity classified
as a partnership under the Code if any of its beneficial owners are Disqualified
Non-United States Tax Persons.
"Distributable Certificate Interest" shall mean, with respect to any
Class of Regular Interest Certificates for any Distribution Date, subject to
Section 4.05(b), an amount of interest equal to (a) the amount of Accrued
Certificate Interest in respect of such Class of Certificates for the related
Interest Accrual Period, reduced (to not less than zero) by (b) that portion, if
any, of the Net Aggregate Prepayment Interest Shortfall for such Distribution
Date allocated to such Class of Certificates as provided below. For purposes of
the foregoing, the Net Aggregate Prepayment Interest Shortfall, if any, for each
Distribution Date shall be allocated:
(i) to each Class of the Class IUU Certificates, in an amount
equal to the lesser of (A) the amount of Accrued Certificate Interest with
respect to the subject Class of Class IUU Certificates for the related
Interest Accrual Period and (B) the product of (1) the aggregate portion,
if any, of such Net Aggregate Prepayment Interest Shortfall that is
allocable to the STML Group B REMIC I Regular Interests in accordance with
the definition of "Uncertificated Distributable Interest" herein,
multiplied by (2) a fraction (not greater than one or less than zero), the
numerator of which is equal to the amount of Accrued Certificate Interest
with respect to the subject Class of Class IUU Certificates for the
related Interest Accrual Period, and the denominator of which is the
aggregate amount of Accrued Certificate Interest with respect to all of
the Class IUU Certificates for the related Interest Accrual Period; and
(ii) to each other Class of Regular Interest Certificates in an
amount equal to 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 (exclusive of any portion thereof that is allocable to the Class
IUU Certificates), 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 (exclusive of the Class IUU Certificates)
for the related Interest Accrual Period.
For purposes of clause (i) of this definition, the aggregate
portion, if any, of any Net Aggregate Prepayment Interest Shortfall for any
Distribution Date that is allocable to the STML Group B REMIC I Regular
Interests in accordance with the definition of "Uncertificated Distributable
Interest" herein shall equal the aggregate amount by which the Uncertificated
Distributable Interest with
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respect to the STML Group B REMIC I Regular Interests for such Distribution Date
is reduced as a result of the portion of such Net Aggregate Prepayment Interest
Shortfall that is attributable to the Split Trust Mortgage Loans.
"Distributable Component Interest" shall mean, with respect to any
REMIC III Component of either Class of Interest-Only Certificates for any
Distribution Date, subject to Section 4.05(b), an amount of interest equal to
(a) the amount of Accrued Component Interest in respect of such REMIC III
Component for the related Interest Accrual Period, reduced (to not less than
zero) by (b) the product of (i) the entire portion of any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date that was allocated to
such Class of Interest-Only Certificates in accordance with the definition of
"Distributable Certificate Interest", multiplied by (ii) a fraction, the
numerator of which is the amount of any Accrued Component Interest in respect of
such REMIC III Component for the related Interest Accrual Period, and the
denominator of which is the amount of the Accrued Certificate Interest in
respect of such Class of Interest-Only Certificates for the related Interest
Accrual Period.
"Distribution Date" shall mean the date each month, commencing in
February 2006, on which, among other things, the Trustee is to make
distributions on the Certificates, which date shall be the fourth Business Day
following the Trust Determination Date in such calendar month.
"Distribution Date Statement" shall have the meaning assigned
thereto in Section 4.02(a).
"Document Defect" shall have the meaning assigned thereto in Section
2.03(a).
"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.
"Early Defeasance Trust Mortgage Loan" shall mean, subject to
Section 2.06(b), any Trust Mortgage Loan that provides the related Mortgagor
with the option to defease such Trust Mortgage Loan in its entirety prior to the
second anniversary of the Closing Date. The Early Defeasance Trust Mortgage
Loans, if any, are identified on Schedule VII hereto. If Schedule VII hereto
does not identify any Trust Mortgage Loan as an Early Defeasance Trust Mortgage
Loan, then Section 2.06(b) shall apply.
"Earnout Trust Mortgage Loan" shall mean a Trust Mortgage Loan that
is secured by one of the following Mortgaged Properties: Sterling Portfolio
(loan number 13); Williamsburg Manor (loan number 38); Woodhill Plaza (loan
number 62); Dinero Plaza (loan number 100); and Xxxxxx Street (loan number
30A1).
"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
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which are rated 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, at least "AA-" by Fitch and, if applicable, at least
"Aa3" by Moody's (or, in the case of either Rating Agency or, if applicable,
Moody's, such lower rating as will not result in an Adverse Rating Event with
respect to any Class of Certificates or, if applicable, any class of Specially
Designated Non-Trust Mortgage Loan Securities that is rated by such Rating
Agency or, if applicable, Moody's, as evidenced in writing by such Rating Agency
or, if applicable, Moody's) 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 "A-1" by S&P, at least "F-1" by Fitch and, if applicable, at
least "P-1" by Moody's (or, in the case of either Rating Agency or, if
applicable, Moody's, such lower rating as will not result in an Adverse Rating
Event with respect to any Class of Certificates or, if applicable, any class of
Specially Designated Non-Trust Mortgage Loan Securities, that is rated by such
Rating Agency or, if applicable, Moody's, as evidenced in writing by such Rating
Agency or, if applicable, Moody's) 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, has long-term deposit or unsecured debt obligations that are rated
at least investment grade by each Rating Agency and, if applicable, by Xxxxx'x,
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 ss. 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 or, if applicable, any class of Specially
Designated Non-Trust Mortgage Loan Securities that, in any event, is rated by
either Rating Agency or, if applicable, Moody's, as evidenced in writing by such
Rating Agency or, if applicable, Moody's; provided that the references to
Moody's and to the ratings thereof in clauses (i), (ii) and (iii) of this
definition shall not apply unless the account in question relates solely to a
Serviced Loan Combination that includes one or more Specially Designated
Securitized Non-Trust Mortgage Loans or any successor REO Mortgage Loans with
respect thereto that back Specially Designated Non-Trust Mortgage Loan
Securities rated by Moody's.
"Enhancement/Support Provider" shall mean any enhancement or support
provider contemplated by Item 1114(b) or Item 1115 of Regulation AB with respect
to the Trust Fund or any one or more Classes of Certificates.
"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
Mortgage Loans identified on Schedule IV hereto.
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"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 Defeasance Deposit Proceeds" shall mean, with respect to an
Early Defeasance Trust Mortgage Loan for which the related Mortgagor has
exercised its option to defease such Trust Mortgage Loan prior to the second
anniversary of the Closing Date, subject to Section 2.06(b), the excess, if any,
of any cash amount tendered by such Mortgagor in order to purchase Defeasance
Collateral or other permitted collateral for purposes of defeasing such Trust
Mortgage Loan in accordance with the related loan documents, over an amount
equal to, with respect to such Trust Mortgage Loan, the aggregate of the amounts
specified in clauses (a) through (e) of the definition of "Purchase Price" in
this Agreement.
"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 an Administered REO Property, net of (i)
interest on any related Advances, (ii) any related Servicing Advances, (iii) any
Liquidation Fee payable from such Net Liquidation Proceeds, and (iv) in the case
of a Trust Mortgage Loan that is part of, or an REO Property that relates to, a
Serviced Loan Combination, the portion of such Net Liquidation Proceeds payable
to the related Non-Trust Mortgage Loan Noteholder(s), over (b) the amount needed
to pay off the subject Trust Mortgage Loan or the related REO Trust Mortgage
Loan, as applicable, in full.
"Excess Liquidation Proceeds Account" shall mean the segregated
account or accounts (or the segregated sub-account of the Collection Account)
created and maintained by the Trustee pursuant to Section 3.04(d) in trust for
the Certificateholders, which shall be entitled "[NAME OF TRUSTEE], as Trustee,
in trust for the registered holders of LB-UBS Commercial Mortgage Trust 2006-C1,
Commercial Mortgage Pass-Through Certificates, Series 0000-X0".
"Xxxxxxxx Xxx" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Act Reportable Event" shall mean: (a) with respect to the
Trustee or, if and to the extent specifically applicable thereto or to its
duties on behalf of the Trustee, any Servicing Representative or other agent of
the Trustee or any Trustee Appointee, any Trustee Reportable Event; (b) with
respect to the Master Servicer or, if and to the extent specifically applicable
thereto or to its duties on behalf of the Master Servicer, any Servicing
Representative or other agent of the Master Servicer, any Master Servicer
Reportable Event; and (c) with respect to the Special Servicer or, if and to the
extent specifically applicable thereto or to its duties on behalf of the Special
Servicer, any Servicing Representative or other agent of the Special Servicer,
any Special Servicer Reportable Event.
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"Exchange Act Reporting Year" shall mean each of: (a) the Trust's
fiscal year 2006; and (b) any subsequent fiscal year of the Trust, but only if
as of the beginning of such subsequent fiscal year of the Trust, the Registered
Certificates are held in the aggregate by at least 300 holders (which may
consist of (i) in the case of Registered Certificates held in definitive form,
direct Holders of such Definitive Certificates, and/or (ii) in the case of
Registered Certificates held in book-entry form through the Depository,
Depository Participants having accounts with the Depository).
"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 Xxx" shall mean the Federal National Mortgage Association or
any successor.
"FASB 140" shall mean the Financial Accounting Standards Board's
Statement No. 140, entitled "Accounting for Transfers and Servicing of Financial
Assets and Extinguishment of Liabilities", issued in September 2002.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation or any
successor.
"Final Distribution Date" shall mean the Distribution Date on which
the final distribution is to be made with respect to the Certificates in
connection with a termination of the Trust Fund pursuant to Article IX.
"Final Recovery Determination" shall mean a determination by the
Special Servicer with respect to any Specially Serviced Mortgage Loan or
Administered REO Property that there has been a recovery of all Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds and other payments or
recoveries that the Special Servicer has determined, in accordance with the
Servicing Standard, will be ultimately recoverable; provided that the term
"Final Recovery Determination" shall not apply to (i) a Specially Serviced
Mortgage Loan that was paid in full; or (ii) a Specially Serviced Trust Mortgage
Loan or Administered REO Property, as the case may be, that was the subject of a
Permitted Purchase; and provided, further, that the term "Final Recovery
Determination" shall include any comparable determination made with respect to
an Outside Serviced Trust Mortgage Loan or any related REO Property by a related
Outside Servicer pursuant to the related Outside Servicing Agreement.
"Fiscal Agent" shall mean any fiscal agent appointed by the Trustee
as provided in Section 8.17.
"Fitch" shall mean Fitch, Inc. or its successor in interest. If
neither such rating agency nor any successor remains in existence, "Fitch" shall
be deemed to refer to such other nationally recognized statistical rating agency
or other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, any Fiscal Agent, the Master Servicer
and the Special
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Servicer, and specific ratings of Fitch, Inc. herein referenced shall be deemed
to refer to the equivalent ratings of the party so designated.
"Form 8-K" shall mean Exchange Act Form 8-K, as and to the extent
that such form is applicable for an asset-backed issuer to satisfy its reporting
requirements under the Exchange Act, and the rules and regulations promulgated
thereunder, including for purposes of filing current reports under Section 13 or
15(d) of the Exchange Act, filed pursuant to Rule 13a-11 or Rule 15d-11, and for
reports of nonpublic information required to be disclosed by Regulation FD (17
CFR 243.100 and 243.101). For purposes of this Agreement, "Form 8-K" shall be
deemed to include any successor or equivalent Exchange Act form adopted by the
Commission.
"Form 8-K Required Information" shall mean any and all information
required pursuant to the Exchange Act and/or the rules and regulations
promulgated thereunder to be reported by an asset-backed issuer under Form 8-K.
"Form 10-D" shall mean Exchange Act Form 10-D, as and to the extent
that such form is applicable for an asset-backed issuer to satisfy its reporting
requirements under the Exchange Act, and the rules and regulations promulgated
thereunder, including for purposes of filing distribution reports under Section
13 or 15(d) of the Exchange Act, filed pursuant to Rule 13a-17 or Rule 15d-17.
For purposes of this Agreement, "Form 10-D" shall be deemed to include any
successor or equivalent Exchange Act form adopted by the Commission.
"Form 10-D Required Information" shall mean any and all information
required pursuant to the Exchange Act and/or the rules and regulations
promulgated thereunder to be reported by an asset-backed issuer under Form 10-D.
"Form 10-K" shall mean Exchange Act Form 10-K, as and to the extent
that such form is applicable for an asset-backed issuer to satisfy its reporting
requirements under the Exchange Act, and the rules and regulations promulgated
thereunder, including for purposes of filing annual reports pursuant to Section
13 or 15(d) of the Exchange Act for which no other form is prescribed, as well
as for filing transition reports pursuant to Section 13 or 15(d) of the Exchange
Act. For purposes of this Agreement, "Form 10-K" shall be deemed to include any
successor or equivalent Exchange Act form adopted by the Commission.
"Form 10-K Required Information" shall mean any and all information
required pursuant to the Exchange Act and/or the rules and regulations
promulgated thereunder to be reported by an asset-backed issuer under Form 10-K.
"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(e).
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"Global Certificate" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates, either the related Rule 144A Global
Certificate or the related 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, subject to Section 2.05(b), that certain
"grantor trust" (within the meaning of the Grantor Trust Provisions) consisting
of the Grantor Trust Assets.
"Grantor Trust Assets" shall mean, subject to Section 2.05(b), any
collections of Additional Interest Received by the Trust with respect to any ARD
Trust Mortgage Loans and any successor REO Trust Mortgage Loans with respect
thereto.
"Grantor Trust Provisions" shall mean Subpart E of Part 1 of
Subchapter J of the Code, including Treasury regulations section
301.7701-4(c)(2).
"Ground Lease" shall mean, with respect to any Mortgage Loan for
which the related Mortgagor has a leasehold interest in the related Mortgaged
Property, the lease agreement(s) (including any lease agreement with respect to
a master space lease) creating such leasehold interest.
"Group IUU REMIC II Regular Interest" shall mean any of REMIC II
Regular Interest IUU-1, REMIC II Regular Interest IUU-2, REMIC II Regular
Interest IUU-3, REMIC II Regular Interest IUU-4, REMIC II Regular Interest
IUU-5, REMIC II Regular Interest IUU-6, REMIC II Regular Interest IUU-7, REMIC
II Regular Interest IUU-8, REMIC II Regular Interest IUU-9 and REMIC II Regular
Interest IUU-10.
"Hazardous Materials" shall mean any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including those so identified
pursuant to CERCLA or any other federal, state or local environmental related
laws and regulations now existing or hereafter enacted, and specifically
including asbestos and asbestos-containing materials, polychlorinated biphenyls,
radon gas, petroleum and petroleum products and urea formaldehyde.
"Holder" shall mean a Certificateholder.
"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 Class IUU 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 Class IUU
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
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Servicer, any Controlling Class Certificateholder, any Class IUU
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 Class IUU 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 Class IUU Certificateholder, such
Non-Trust Mortgage Loan Noteholder or any Affiliate thereof, as the case may be;
provided that such ownership constitutes less than 1% of the total assets owned
by such Person.
"Independent Appraiser" shall mean an Independent professional real
estate appraiser who (i) is a member in good standing of the Appraisal
Institute, (ii) if the state in which the subject Mortgaged Property is located
certifies or licenses appraisers, is certified or licensed in such state, and
(iii) has a minimum of five years experience in the subject property type and
market.
"Independent Contractor" shall mean: (a) any Person that would be an
"independent contractor" with respect to REMIC I (or, solely for purposes of an
Early Defeasance Trust Mortgage Loan or any corresponding REO Property, any
related Loan REMIC) 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 a
Serviced Loan Combination is involved, to the related Serviced Non-Trust
Mortgage Loan Noteholder(s)), provided that (i) such REMIC Pool does not receive
or derive any income from such Person and (ii) the relationship between such
Person and such REMIC Pool is at arm's length, all within the meaning of
Treasury regulations section 1.856-4(b)(5); or (b) any other Person upon receipt
by the Trustee (and, if a Serviced Loan Combination is involved, by the related
Serviced Non-Trust Mortgage Loan Noteholder(s)) of an Opinion of Counsel, which
shall be at no expense to the Master Servicer, the Special Servicer, the Trustee
or the Trust Fund, to the effect that the taking of any action in respect of any
Administered REO Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor, will not cause such Administered REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code for
purposes of Section 860D(a) of the Code, or cause any income realized in respect
of such Administered REO Property to fail to qualify as Rents from Real
Property, due to such Person's failure to be treated as an Independent
Contractor.
"Initial Bidder" shall have the meaning assigned thereto in Section
3.18(d).
"Initial Deposit" shall mean, with respect to each Initial Deposit
Mortgage Loan, if any, the supplemental payment from the related Mortgage Loan
Seller identified on Schedule V hereto, in the amount specified for such Initial
Deposit Mortgage Loan on Schedule V hereto.
"Initial Deposit Mortgage Loans" shall mean each of the Trust
Mortgage Loans, if any, identified on Schedule V hereto.
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"Initial Pool Balance" shall mean the aggregate of the Cut-off Date
Balances of all 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).
"Intel Corporate Building Mortgaged Property" shall mean the
Mortgaged Property identified on the Trust Mortgage Loan Schedule as Intel
Corporate Building.
"Intel Corporate Building Trust Mortgage Loan" shall mean the Trust
Mortgage Loan that is identified on the Trust Mortgage Loan Schedule by mortgage
loan number 18, and is secured by a Mortgage on the Intel Corporate Building
Mortgaged Property.
"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
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.
"Interest-Only Certificates" shall mean, collectively, the Class
X-CL and Class X-CP Certificates.
"Interested Person" shall mean the Depositor, the Master Servicer,
the Special Servicer, the Trustee, any Fiscal Agent, any Certificateholder, or
any Affiliate of any such Person.
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"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 "[NAME OF TRUSTEE], as Trustee, in
trust for the registered holders of LB-UBS Commercial Mortgage Trust 2006-C1,
Commercial Mortgage Pass-Through Certificates, Series 2006-C1".
"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 the calendar month of January (except in a
leap year) or during the calendar month of February, an amount equal to one
day's interest accrued at the related Mortgage Rate (net of the related
Additional Interest Rate, in the case of an ARD Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto after the related
Anticipated Repayment Date, and net of the related Outside Servicing Fee Rate
(or, if the related Outside Servicing Fee accrues on a 30/360 Basis, the
Actual/360 Equivalent of the related Outside Servicing Fee Rate), in the case of
an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto) 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 an Assumed Monthly Payment, as applicable, 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; provided that any Supplemental Interest Reserve Amounts
delivered by the Depositor or any Mortgage Loan Seller to the Trustee shall also
be deemed to be Interest Reserve Amounts. Any Interest Reserve Amount with
respect to either a Split Trust Mortgage Loan that is an Interest Reserve
Mortgage Loan or a Split REO Trust Mortgage Loan that is an Interest Reserve REO
Mortgage Loan, for any Distribution Date that occurs during the calendar month
of January (except in a leap year) or during the calendar month of February,
shall be allocated: first, to the related STML Group A REMIC I Regular Interest,
up to an amount equal to one day's interest at the related Deemed Fixed Gross
Rate on the related Uncertificated Principal Balance immediately prior to such
Distribution Date; and second, to the related to the related STML Group B REMIC
I Regular Interest, up to the remaining portion of such Interest Reserve Amount;
provided that any Supplemental Interest Reserve Amount with respect to any Split
Trust Mortgage Loan shall be allocated entirely to the related STML Group A
REMIC I Regular Interest.
"Interest Reserve Mortgage Loan" shall mean any Trust Mortgage Loan
that accrues interest on an Actual/360 Basis.
"Interest Reserve REO Mortgage Loan" shall mean any REO Trust
Mortgage Loan as to which the predecessor Trust Mortgage Loan was an Interest
Reserve Mortgage Loan.
"Investment Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Investment Grade Certificate" shall mean, as of any date of
determination, a Certificate that is rated in one of the four highest generic
rating categories by at least one Rating Agency.
"Investment Period" shall mean: (a) with respect to any investment
of funds in any Master Servicer Account (other than a Custodial Account) or any
REO Account, the period that ends at the close of business (New York City time)
on each Trust Determination Date (or, if the subject Investment Account relates
solely to a Serviced Loan Combination, on each related Loan Combination
Determination Date) and commences immediately following the end of the prior
such period (or, in the
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case of the first such period, commences on the Closing Date); (b) with respect
to any investment of funds in the Pool Custodial Account, the Interest Reserve
Account or the Excess Liquidation Proceeds Account, the period that ends at the
close of business (New York City time) on the Business Day prior to each Trust
Master Servicer Remittance Date and commences immediately following the end of
the prior such period (or, in the case of the first such period, commences on
the Closing Date); (c) with respect to any investment of funds in any Loan
Combination Custodial Account, the period that ends at the close of business
(New York City time) on the Business Day prior to each related Loan Combination
Master Servicer Remittance Date and commences immediately following the end of
the prior such period (or, in the case of the first such period, commences on
the Closing Date); and (d) with respect to any investment of funds in the
Collection Account, the period that ends at the close of business (New York City
time) on each Trust Master Servicer Remittance Date and commences immediately
following the end of the prior such period (or, in the case of the first such
period, commences on the Closing Date); provided that, if and to the extent that
the depository institution maintaining any REO Account, Custodial Account or
Trustee Account is the obligor on any investment of funds in such Investment
Account, and if such funds are to be transferred to another Investment Account
or distributed to Certificateholders or any Serviced Non-Trust Mortgage Loan
Noteholder on the Business Day following the end of any particular Investment
Period (determined without regard to this proviso) for such investment, then
such Investment Period shall be deemed extended through such time on such next
succeeding Business Day when such transfer or distribution is to occur.
"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 related Collection Period, whether as payments, Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds or otherwise, which represent late
collections of the principal and/or interest portions of a Monthly Payment
(other than a Balloon Payment) or an Assumed Monthly Payment in respect of such
Trust Mortgage Loan due or deemed due on a Due Date in a previous related
Collection Period, or on a Due Date coinciding with or preceding the Cut-off
Date, and not previously recovered; and (b) with respect to any REO Trust
Mortgage Loan, all amounts Received by the Trust in connection with the related
REO Property during any related Collection Period, whether as Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of the principal and/or interest
portions of a Monthly Payment (other than a Balloon Payment) or an Assumed
Monthly Payment in respect of the predecessor Trust Mortgage Loan, or the
principal and/or interest portions of an Assumed Monthly Payment in respect of
such REO Trust Mortgage Loan, due or deemed due on a Due Date in a previous
related Collection Period and not previously recovered.
"LBHI" shall mean Xxxxxx Brothers Holdings Inc. or its successor in
interest.
"LBHI/Depositor Mortgage Loan Purchase Agreement" shall mean that
certain Mortgage Loan Purchase Agreement dated as of January 20, 2006, between
LBHI and the Depositor.
"LBHI Trust Mortgage Loan" shall mean any Trust Mortgage Loan
transferred by LBHI to the Depositor, pursuant to the LBHI/Depositor Mortgage
Loan Purchase Agreement.
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"Legal Final Distribution Date" shall mean, with respect to any Loan
REMIC Regular Interest, any REMIC I Regular Interest, any REMIC II Regular
Interest, any Class of Regular Interest Certificates (exclusive of the
Interest-Only 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: (a) LBHI in matters
relating to a LBHI Trust Mortgage Loan; and (b) LUBS in matters relating to a
LUBS Trust Mortgage Loan.
"Xxxxxx Trust Mortgage Loan" shall mean any LBHI Trust Mortgage Loan
or LUBS Trust Mortgage Loan, as applicable.
"Liquidation Event" shall mean: (a) with respect to any Trust
Mortgage Loan or 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, or (iii) in the case
of a Trust Mortgage Loan, such Mortgage Loan is the subject of a Permitted
Purchase; and (b) with respect to any REO Property (and the related REO Mortgage
Loan(s)), any of the following events--(i) a Final Recovery Determination is
made with respect to such REO Property, or (ii) such REO Property is the subject
of a Permitted Purchase.
"Liquidation Expenses" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses due and owing (but not otherwise
covered by Servicing Advances) in connection with the liquidation of any
Specially Serviced Mortgage Loan pursuant to Section 3.09 or in connection with
the sale of a Specially Serviced Mortgage Loan or an Administered REO Property
in accordance with Section 3.18, or in connection with the final payoff of a
Corrected Mortgage Loan (including legal fees and expenses, committee or referee
fees and, if applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee" shall mean the fee designated as such in, and
payable to the Special Servicer in connection with certain specified events in
respect of a Specially Serviced Mortgage Loan or an Administered REO Property
pursuant to, Section 3.11(c).
"Liquidation Fee Rate" shall mean, with respect to each Specially
Serviced 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 Serviced Loan Combination or any related
Administered REO Property, collected on behalf of the Trust and/or the related
Serviced Non-Trust Mortgage Loan Noteholder(s)) in connection with: (i) the full
or partial liquidation of a Mortgaged Property or other collateral constituting
security for a defaulted Mortgage Loan, through trustee's sale, foreclosure
sale, REO Disposition or otherwise, exclusive of any portion thereof required to
be released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (ii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iii) a
Permitted Purchase; or (iv) except for purposes of Section 3.11(c), the transfer
of any Loss of Value Payments from the Loss of Value Reserve Fund, or the
deposit of any other payments contemplated by Section 2.03(d), in any event to
the Pool Custodial Account.
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"LNR" shall mean LNR Partners, Inc. or its successor-in-interest.
"Loan Combination" shall mean any group of two or more mortgage
loans, at least one of which mortgage loans is included in the Trust Fund and at
least one of which mortgage loans is not included in the Trust Fund, and all of
which mortgage loans are secured by the same Mortgage(s) on the same Mortgaged
Property or Properties, as applicable. The Loan Combinations are the 000 Xxxxxxx
Xxxxxx Loan Combination and the Serviced A/B Loan Combinations.
"Loan Combination Collection Period" shall mean, individually and
collectively, as applicable in the context used, (i) the 000 Xxxxxxx Xxxxxx
Collection Period with respect to the 000 Xxxxxxx Xxxxxx Loan Combination and
all related matters, (ii) the One Financial Center Collection Period with
respect to the One Financial Center Loan Combination and all related matters,
(iii) the Triangle Town Center Collection Period with respect to the Triangle
Town Center Loan Combination and all related matters, and (iv) the Trust
Collection Period with respect to each other Loan Combination and all related
matters.
"Loan Combination Custodial Account" shall mean, with respect to
each Serviced Loan Combination, the segregated account or accounts created and
maintained by the Master Servicer pursuant to Section 3.04A on behalf of the
holders of the Mortgage Loans included in such Serviced Loan Combination, which
shall be entitled "[NAME OF MASTER SERVICER], as Master Servicer, in trust for
[NAMES OF RELATED MORTGAGE NOTEHOLDERS], as their interests may appear".
"Loan Combination Determination Date" shall mean, individually and
collectively, as applicable in the context used, (i) the 000 Xxxxxxx Xxxxxx
Determination Date with respect to the 000 Xxxxxxx Xxxxxx Loan Combination and
all related matters, (ii) the One Financial Center Determination Date with
respect to the One Financial Center Loan Combination and all related matters,
(iii) the Triangle Town Center Determination Date with respect to the Triangle
Town Center Loan Combination and all related matters, and (iv) the Trust
Determination Date with respect to each other Loan Combination and all related
matters.
"Loan Combination Master Servicer Remittance Date" shall mean, with
respect to any Serviced Loan Combination, the date of each month, commencing in
February 2006, on which, among other things, the Master Servicer is required to
make normal monthly remittances to the related Serviced Non-Trust Mortgage Loan
Noteholder(s), which date shall be: (a) with respect to the 000 Xxxxxxx Xxxxxx
Loan Combination, the 000 Xxxxxxx Xxxxxx Master Servicer Remittance Date in such
calendar month; (b) with respect to the One Financial Center Loan Combination,
the One Financial Center Master Servicer Remittance Date in such calendar month;
(c) with respect to the Triangle Town Center Loan Combination, the Triangle Town
Center Master Servicer Remittance Date in such calendar month; and (d) with
respect to any other Serviced Loan Combination, the Business Day immediately
preceding the Distribution Date in such calendar month.
"Loan Combination REO Account" shall mean, with respect to each
Serviced Loan Combination, the segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
holders of the Mortgage Loans included in such Serviced Loan Combination, which
shall be entitled "[NAME OF SPECIAL SERVICER], as Special Servicer, in trust for
[NAMES OF RELATED MORTGAGE NOTEHOLDERS], as their interests may appear".
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"Loan Combination Servicing Reports" shall mean, with respect to
each Serviced Loan Combination, each of the CMSA Delinquent Loan Status Report,
CMSA Historical Loan Modification and Corrected Mortgage Loan Report, CMSA
Advance Recovery Report, CMSA Loan Level Reserve/LOC Reserve, 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 only the related Mortgaged Property
or Properties or any related REO Property or Properties, as the case may be,
shall be the subject of such report.
"Loan Combination-Specific Special Servicer" shall have the meaning
assigned thereto in Section 7.01(e).
"Loan Payoff Notification Report" shall mean a report containing
substantially the information described in Exhibit E attached hereto, and
setting forth for each Serviced Mortgage Loan as to which written notice of
anticipated payoff has been received by the Master Servicer as of the related
Determination Date preceding the delivery of such report, among other things,
the loan number, the property name, the ending scheduled loan balance for the
related Collection Period ending on such Determination Date, the expected date
of payment, the expected related Distribution Date and the estimated amount of
the Prepayment Consideration due (if any).
"Loan REMIC" shall mean, with respect to any Early Defeasance Trust
Mortgage Loan, subject to Section 2.06(b), the segregated pool of assets, as to
which a separate REMIC election is to be made, consisting of: (i) such 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 the Trust after the
Closing Date (other than scheduled payments of interest and principal due on or
before the Cut-off Date), together with all documents included in the related
Mortgage File; (ii) any REO Property acquired in respect of such Trust Mortgage
Loan (for so long as it is subject to this Agreement) and all income and
proceeds therefrom; (iii) such funds or assets as from time to time are
deposited in the Pool Custodial Account, the Collection Account, the Interest
Reserve Account and, if established, the Pool REO Account with respect to such
Trust Mortgage Loan or any related REO Property; and (iv) insofar as they relate
to such Trust Mortgage Loan or any related REO Property, the rights of the
Depositor under the UBS/Depositor Mortgage Loan Purchase Agreement (but only if
such Trust Mortgage Loan is a UBS Trust Mortgage Loan); provided that none of
the Loan REMICs shall include (x) any collections of Additional Interest or (y)
the Loss of Value Reserve Fund or any amounts on deposit therein.
"Loan REMIC Interest" shall mean, subject to Section 2.06(b), either
a Loan REMIC Regular Interest or a Loan REMIC Residual Interest.
"Loan REMIC Regular Interest" shall mean, subject to Section
2.06(b), the uncertificated "regular interest" within the meaning of Section
860G(a)(1) of the Code, in a Loan REMIC.
"Loan REMIC Remittance Rate" shall mean: (a) with respect to any
Loan REMIC 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 sum of (A) the
Master Servicing Fee Rate for such
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corresponding Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto), plus (B) the Trustee Fee Rate; and (b) with respect to any
Loan REMIC Regular Interest that, as of the Closing Date, corresponds to a 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 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) the sum of (A) the Master Servicing Fee Rate for the corresponding
Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with respect
thereto), plus (B) the Trustee Fee Rate.
"Loan REMIC Residual Interest" shall mean, subject to Section
2.06(b), the sole uncertificated "residual interest", within the meaning of
Section 860G(a)(2) of the Code, in each Loan REMIC.
"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 of Value Payment" shall have the meaning assigned thereto
under Section 2.03(e).
"Loss of Value Reserve Fund" shall mean the account or accounts
created and maintained by the Special Servicer pursuant to Section 3.04(e) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "[NAME OF SPECIAL SERVICER], as Special Servicer, on behalf of [NAME OF
TRUSTEE], as Trustee, in trust for the registered holders of LB-UBS Commercial
Mortgage Trust 2006-C1, Commercial Mortgage Pass-Through Certificates, Series
2006-C1, Loss of Value Reserve Fund". The Loss of Value Reserve Fund shall be
designated as an "outside reserve fund" (within the meaning of Treasury
regulations section 1.860G-2(h)), pursuant to Section 2.05(b). The Loss of Value
Reserve Fund will be part of the Trust Fund but not part of the Grantor Trust
(if created hereunder taking into account Section 2.05(b)) or any REMIC Pool.
"Loss Reimbursement Amount" shall mean:
(a) with respect to any Loan REMIC Regular Interest, for any
Distribution Date, the excess, if any, of (i) the total amount of all
reductions, if any, made in the related Uncertificated Principal Balance
(without any corresponding deemed distribution of principal) on all prior
Distribution Dates, if any, pursuant to Section 4.04(d), over (ii) the
total amount reimbursed to REMIC I with respect to any Loss Reimbursement
Amount for such Loan REMIC Regular Interest on all prior Distribution
Dates, if any, pursuant to Section 4.01(n);
(b) with respect to any REMIC I Regular Interest, for any
Distribution Date, the excess, if any, of (i) the total amount of all
reductions, if any, made in the related Uncertificated Principal Balance
(without any corresponding deemed distribution of principal) on all prior
Distribution Dates, if any, pursuant to Section 4.04(c), over (ii) the
total amount reimbursed to REMIC II with respect to any Loss Reimbursement
Amount for such REMIC I Regular Interest on all prior Distribution Dates,
if any, pursuant to Section 4.01(m);
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(c) with respect to any REMIC II Regular Interest, for any
Distribution Date, the excess, if any, of (i) the total amount of all
reductions, if any, made in the related Uncertificated Principal Balance
(without any corresponding deemed distribution of principal) on all prior
Distribution Dates, if any, pursuant to Section 4.04(b), over (ii) the sum
of (A) the total amount reimbursed to REMIC III with respect to any Loss
Reimbursement Amount for such REMIC II Regular Interest on all prior
Distribution Dates, if any, pursuant to Section 4.01(l), plus (B) the
total amount reinstated to the Uncertificated Principal Balance of such
REMIC II Regular Interest on all prior Distribution Dates, if any,
pursuant to Section 4.05(c); and
(d) with respect to any Class of Principal Balance Certificates,
for any Distribution Date, the excess, if any, of (i) the total amount of
all reductions, if any, made in the related Class Principal Balance
(without any corresponding distribution of principal) on all prior
Distribution Dates, if any, pursuant to Section 4.04(a), over (ii) the sum
of (A) the total amount of such reductions reimbursed to the Holders of
such Class of Certificates with respect to any related Loss Reimbursement
Amount on all prior Distribution Dates, if any, pursuant to Section
4.01(a) or Section 4.01(b), as applicable, plus (B) the total amount of
such reductions reinstated to the Class Principal Balance of such Class of
Certificates on all prior Distribution Dates, if any, pursuant to Section
4.05(a).
"LUBS" shall mean LUBS, Inc.
"LUBS/Depositor Mortgage Loan Purchase Agreement" shall mean that
certain Mortgage Loan Purchase Agreement dated as of January 20, 2006, between
LUBS as mortgage loan seller, LBHI as an additional party and the Depositor.
"LUBS Trust Mortgage Loans" shall mean any Trust Mortgage Loan
transferred by LUBS to the Depositor, pursuant to the LUBS/Depositor Mortgage
Loan Purchase Agreement.
"Majority Class IUU Certificateholder(s)" shall mean any single
Holder or group of Holders (or, in the case of Book-Entry Certificates, any
single Certificate Owner or group of Certificate Owners) of Certificates
evidencing a majority of the Voting Rights allocated to the Class IUU
Certificates.
"Majority Controlling Class Certificateholder(s)" shall mean any
single Holder or group of Holders (or any single Certificate Owner or group of
Certificate Owners) of Certificates evidencing a majority of the Voting Rights
allocated to the Controlling Class.
"Master Servicer" shall mean Wachovia, in its capacity as master
servicer hereunder, or any successor master servicer appointed as herein
provided.
"Master Servicer Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Master Servicer Backup Certification" shall have the meaning
assigned thereto in Section 8.15(h).
"Master Servicer Certification" shall have the meaning assigned
thereto in Section 2.01(d).
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"Master Servicer Indemnification Agreement" shall mean the Master
Servicer Indemnification Agreement dated as of January 20, 2006, between the
initial Master Servicer, the Depositor, Xxxxxx Brothers Inc. and UBS Real Estate
Investments Inc.
"Master Servicer Remittance Amount" shall mean, with respect to any
Trust Master Servicer Remittance Date, an amount equal to: (a) the aggregate
amount of all payments and other collections on or with respect to the Trust
Mortgage Loans and any related REO Properties (including Loss of Value Payments
and, in the case of the initial Distribution Date, any Initial Deposits) that
(i) were Received by the Trust as of the close of business on the immediately
preceding applicable Determination Date and (ii) are on deposit or are required
to be on deposit in the Pool Custodial Account as of 12:00 noon (New York City
time) on such Trust Master Servicer Remittance Date, including any such payments
and other collections transferred or required to be transferred to the Pool
Custodial Account from the Pool REO Account (if established) and/or a Loan
Combination Custodial Account, net of (b) the portion of the aggregate amount
described in clause (a) of this definition that represents one or more of the
following--(i) scheduled Monthly Payments that are due on a Due Date following
the end of the related Collection Period (or, in the case of a scheduled Monthly
Payment that is due on a Due Date in the same month as such Trust Master
Servicer Remittance Date but subsequent to the end of the related Collection
Period, following the end of the calendar month in which such Trust Master
Servicer Remittance Date occurs), (ii) any amount payable or reimbursable to any
Person from the Pool Custodial Account pursuant to clauses (ii) through (xviii)
of Section 3.05(a), (iii) any Excess Liquidation Proceeds and (iv) any amounts
deposited in the Pool Custodial Account in error.
"Master Servicer Remittance Date" shall mean, individually and
collectively, as applicable in the context used, (i) the related Loan
Combination Master Servicer Remittance Date with respect to each Serviced Loan
Combination and all related matters, and (ii) the Trust Master Servicer
Remittance Date with respect to the Mortgage Pool (exclusive of the Serviced
Combination Trust Mortgage Loans and any REO Trust Mortgage Loans with respect
to the Serviced Combination Trust Mortgage Loans) and all related matters.
"Master Servicer Reportable Event" shall mean any of the following
events, conditions, circumstances and/or matters:
(i) the entry into or amendment to a definitive agreement that
is material to the Subject Securitization Transaction, including, for
example, a servicing agreement with a Servicer contemplated by Item
1108(a)(3) of Regulation AB, but only if the Master Servicer or any
Servicer retained or engaged by the Master Servicer is a party to such
agreement or has entered into such agreement on behalf of the Trust;
(ii) the termination of a definitive agreement that is material
to the Subject Securitization Transaction (otherwise than by expiration of
the agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), but only if the Master
Servicer or any Servicer retained or engaged by the Master Servicer is a
party to such agreement or has entered into such agreement on behalf of
the Trust;
(iii) the appointment of a receiver, fiscal agent or similar
officer for any Material Debtor in a proceeding under the U.S. Bankruptcy
Code or in any other proceeding under state or federal law in which a
court or governmental authority has assumed jurisdiction over
substantially all of the assets or business of any Material Debtor,
including where such
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jurisdiction has been assumed by leaving the existing directors and
officers in possession but subject to the supervision and orders of a
court or governmental authority, but only if the subject Material Debtor
is (A) the Master Servicer, (B) any Servicing Representative of the Master
Servicer that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB or (C) any Significant Obligor with respect to a Performing
Serviced Mortgage Loan;
(iv) the entry of an order confirming a plan of reorganization,
arrangement or liquidation of a Material Debtor by a court or governmental
authority having supervision or jurisdiction over substantially all of the
assets or business of such Material Debtor, but only if the subject
Material Debtor is (A) the Master Servicer, (B) any Servicing
Representative of the Master Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Performing Serviced Mortgage Loan;
(v) any resignation, removal, replacement or substitution of (A)
the Master Servicer or (B) any Servicing Representative of the Master
Servicer that constitutes a Servicer contemplated by Item 1108(a)(2) of
Regulation AB;
(vi) any appointment of (A) a new Master Servicer or (B) any new
Servicing Representative of the Master Servicer that constitutes a
Servicer contemplated by Item 1108(a)(2) of Regulation AB;
(vii) any nonpublic disclosure, by the Master Servicer or any
Servicer retained or engaged by the Master Servicer, with respect to the
Subject Securitization Transaction (other than disclosure required
pursuant to this Agreement) that is required to be disclosed by Regulation
FD (17 CFR 243.100 through 243.103);
(viii) any other information of importance to Certificateholders
(determined by the Master Servicer in accordance with the Servicing
Standard) that (A) is not otherwise required to be included in the
Distribution Date Statement or any other report to be delivered or
otherwise made available to Certificateholders hereunder, (B) the Master
Servicer has determined, in accordance with the Servicing Standard, could
have an adverse effect on payments to any Class of Certificateholders, and
(C) is directly related to a Performing Serviced Mortgage Loan;
(ix) the commencement or termination of, or any material
developments regarding, any legal proceedings pending against any Material
Litigant, or of which any property of a Material Litigant is the subject,
or any threat by a governmental authority to bring any such legal
proceedings, that are material to Certificateholders, but only if the
Master Servicer is controlling the subject litigation or if the subject
Material Litigant is (A) the Master Servicer, (B) any Servicing
Representative of the Master Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Performing Serviced Mortgage Loan;
(x) the receipt by or on behalf of the Master Servicer or any
Servicer retained or engaged by the Master Servicer of any updated
financial statements, balance sheets, rent rolls or other financial
information regarding a Significant Obligor with respect to a Performing
Serviced Mortgage Loan; and
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(xi) to the extent not otherwise disclosed in the Prospectus
Supplement or previously included in a report delivered by the Master
Servicer to the Trustee and the Depositor in accordance with Section
8.15(b), whether the Master Servicer has become an affiliate (as defined
in Rule 405 of the Securities Act) of any of (A) the Trustee, (B) the
Special Servicer, (C) any Servicing Representative of the Master Servicer
that constitutes a Servicer contemplated by Item 1108(a)(3) of Regulation
AB or (D) any Significant Obligor.
"Master Servicing Fee" shall mean, with respect to each Serviced
Mortgage Loan (and any successor REO Mortgage Loan with respect thereto) and
each Outside Serviced Trust Mortgage Loan (and any successor REO Trust Mortgage
Loan with respect thereto), the fee designated as such and payable to the Master
Servicer pursuant to Section 3.11(a); provided that there shall be no Master
Servicing Fee with respect to the One Financial Center Note B Non-Trust Mortgage
Loan (or any successor REO Mortgage Loan with respect thereto).
"Master Servicing Fee Rate" shall mean: (a) with respect to each
Serviced Trust Mortgage Loan (and any successor REO Trust Mortgage Loan with
respect thereto), a rate per annum equal to the related Administrative Cost Rate
minus the Trustee Fee Rate; (b) with respect to each Outside 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 sum of
the Trustee Fee Rate and the related Outside Servicing Fee Rate; and (c) with
respect to each Serviced Non-Trust Mortgage Loan (and any successor REO Mortgage
Loan with respect thereto), 0.01% per annum; provided that the Master Servicing
Fee Rate with respect to the One Financial Center Note B Non-Trust Mortgage Loan
(or any successor REO Mortgage Loan with respect thereto) shall be 0% per annum.
"Material Breach" shall have the meaning assigned thereto in Section
2.03(a).
"Material Debtor" shall mean any of the following:
(i) the Trust;
(ii) LBHI;
(iii) the UBS Mortgage Loan Seller;
(iv) each of the parties to this Agreement;
(v) any Servicing Representative that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB;
(vi) any Significant Obligor;
(vii) any Enhancement/Support Provider; and
(viii) any other material party contemplated by Item 1100(d)(1) of
Regulation AB relating to the Subject Securitization Transaction.
"Material Document Defect" shall have the meaning assigned thereto
in Section 2.03(a).
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"Material Litigant" shall mean any of the following:
(i) LBHI;
(ii) the UBS Mortgage Loan Seller;
(iii) the Depositor;
(iv) the Trustee;
(v) the Master Servicer;
(vi) the Special Servicer;
(vii) any Servicing Representative that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB;
(viii) any originator of Trust Mortgage Loans contemplated by Item
1110(b) of Regulation AB;
(ix) any other party contemplated by Item 1100(d)(1) of
Regulation AB relating to the Subject Securitization Transaction; and
(x) the Trust.
"Maturity Date" shall mean, with respect to any Mortgage Loan as of
any date of determination, the Due Date on which the last payment of principal
is due and payable under the terms of the related Mortgage Note, as such terms
may be changed or modified from time to time in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, extension,
waiver or amendment of such Mortgage Loan granted or agreed to by the Special
Servicer (or the Master Servicer, if applicable) pursuant to Section 3.20.
"Modified Loan" shall mean any Serviced Mortgage Loan as to which
any Servicing Transfer Event has occurred and which has been modified by the
Special Servicer pursuant to Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing Monthly
Payments current with respect to such Mortgage Loan);
(b) except as expressly contemplated by the related loan
documents, results in a release of the lien of the related Mortgage on any
material portion of the related Mortgaged Property without a corresponding
Principal Prepayment in an amount, or the delivery of substitute real
property collateral with a fair market value (as is), that is not less
than the fair market value (as is) of the property to be released, as
determined by an appraisal delivered to the Special Servicer (at the
expense of the related Mortgagor and upon which the Special Servicer may
conclusively rely); or
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(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 Trust Mortgage
Loan or Serviced Non-Trust 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 an Outside Serviced Trust
Mortgage Loan, by the applicable Outside Servicer pursuant to the related
Outside 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 Combination
provide for a single monthly debt service payment for the entire such Loan
Combination, then the Monthly Payment for each Mortgage Loan comprising such
Loan Combination for any Due Date shall be that portion of the monthly debt
service payment for such Loan Combination and such Due Date that is, in
accordance with the related loan documents and/or the related Co-Lender
Agreement, in the absence of default, allocable to interest at the related
Mortgage Rate on and/or principal of the subject Mortgage Loan comprising such
Loan Combination.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or its
successor in interest.
"Mortgage" shall mean, with respect to any Mortgage Loan, the
mortgage, deed of trust, deed to secure debt or similar instrument that secures
such Mortgage Loan and creates a lien on the related Mortgaged Property.
"Mortgage File" shall mean:
(a) with respect to any Serviced Trust Mortgage Loan and, in the
case of each Serviced Loan Combination, also with respect to each Serviced
Non-Trust Mortgage Loan that is part of such Loan Combination, the
following documents collectively (which, in the case of each Serviced Loan
Combination, except for the Mortgage Notes referred to in clause (a)(i) of
this definition and any modifications thereof referred to in clause
(a)(xiii) of this definition, relate to the entire such Loan Combination):
(i) (A) the original executed Mortgage Note for such Trust
Mortgage Loan, endorsed (without recourse, representation or
warranty, express or implied) to the order of "LaSalle Bank
National Association, as trustee for the registered holders
of LB-UBS Commercial Mortgage Trust 2006-C1, Commercial
Mortgage Pass-Through Certificates, Series 2006-C1" or in
blank, and further showing a complete, unbroken chain of
endorsement from the originator (if such originator is other
than the related Mortgage Loan Seller) (or, alternatively,
if the original executed Mortgage Note has been lost, a lost
note affidavit and indemnity with a copy of such Mortgage
Note), and (B) in the case of each Serviced Loan
Combination, a
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copy of the executed Mortgage Note for each Serviced
Non-Trust Mortgage Loan in such Loan Combination;
(ii) an original or a copy of the Mortgage, together with
originals or copies of any and all intervening assignments
thereof, in each case (unless the particular item has not
been returned from the applicable recording office) with
evidence of recording indicated thereon;
(iii) an original or a copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage),
together with originals or copies of any and all intervening
assignments thereof, in each case (unless 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
2006-C1, Commercial Mortgage Pass-Through Certificates,
Series 2006-C1" (or, in the case of a Serviced Loan
Combination, in favor of "LaSalle Bank National Association,
in its capacity as trustee for the registered holders of
LB-UBS Commercial Mortgage Trust 2006-C1, Commercial
Mortgage Pass-Through Certificates, Series 2006-C1, and in
its capacity as lead lender on behalf of the [IDENTIFY
RELATED SERVICED NON-TRUST MORTGAGE LOAN NOTEHOLDER(S)]")
(or, in each case, a copy thereof, certified to be the copy
of such assignment submitted for recording);
(v) an original or a copy of the assignment of all unrecorded
documents relating to such Trust Mortgage Loan, in favor of
"LaSalle Bank National Association, as trustee for the
registered holders of LB-UBS Commercial Mortgage Trust
2006-C1, Commercial Mortgage Pass-Through Certificates,
Series 2006-C1" (or, in the case of a Serviced Loan
Combination, in favor of "LaSalle Bank National Association,
in its capacity as trustee for the registered holders of
LB-UBS Commercial Mortgage Trust 2006-C1, Commercial
Mortgage Pass-Through Certificates, Series 2006-C1, and in
its capacity as lead lender on behalf of the [IDENTIFY
RELATED SERVICED NON-TRUST MORTGAGE LOAN NOTEHOLDER(S)]");
(vi) 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);
(vii) an original or a copy of the Ground Lease relating to such
Trust Mortgage Loan, if any;
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(viii) an original or a copy of the loan agreement for such Trust
Mortgage Loan, if any;
(ix) an original of the related guaranty of payment under such
Trust Mortgage Loan, if any;
(x) an original or a copy of the environmental indemnity from
the related Mortgagor, if any;
(xi) an original or a copy of the lock-box agreement or cash
management agreement relating to such Trust Mortgage Loan,
if any;
(xii) a copy of the original letter of credit in connection with
such Trust Mortgage Loan, if any;
(xiii) originals or copies of final written modification agreements
in those instances where the terms or provisions of the
Mortgage Note for such Trust Mortgage Loan (and/or, if
applicable, the Mortgage Note for a related Serviced
Non-Trust Mortgage Loan) or the related Mortgage have been
modified as to a monetary term or other material term
thereof, in each case (unless the particular item has not
been returned from the applicable recording office) with
evidence of recording indicated thereon if the instrument
being modified is a recordable document;
(xiv) only if such Trust Mortgage Loan is secured by a nursing
facility or hospitality property as identified on Schedule
VI hereto, 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 2006-C1,
Commercial Mortgage Pass-Through Certificates, Series
2006-C1" (or, in the case of a Serviced Loan Combination, in
favor of "LaSalle Bank National Association, in its capacity
as trustee for the registered holders of LB-UBS Commercial
Mortgage Trust 2006-C1, Commercial Mortgage Pass-Through
Certificates, Series 2006-C1, and in its capacity as lead
lender on behalf of the [IDENTIFY RELATED SERVICED NON-TRUST
MORTGAGE LOAN NOTEHOLDER(S)]");
(xv) an original or a 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;
(xvi) 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 2006-C1, Commercial Mortgage
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Pass-Through Certificates, Series 2006-C1" (or, in the case
of a Serviced Loan Combination, in favor of "LaSalle Bank
National Association, in its capacity as trustee for the
registered holders of LB-UBS Commercial Mortgage Trust
2006-C1, Commercial Mortgage Pass-Through Certificates,
Series 2006-C1, and in its capacity as lead lender on behalf
of the [IDENTIFY RELATED SERVICED NON-TRUST MORTGAGE LOAN
NOTEHOLDER(S)]");
(xvii) if such Trust Mortgage Loan is a Serviced Combination Trust
Mortgage Loan, a copy of the related Co-Lender Agreement;
(xviii) in the case of any Trust Mortgage Loan as to which there
exists a related mezzanine loan, the related intercreditor
agreement;
(xix) an original or a copy of any related Environmental Insurance
Policy; and
(xx) with respect to hospitality properties, a signed copy of the
franchise agreement (if any) and franchisor comfort letter
(if any); and
(b) with respect to each Outside Serviced 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 2006-C1, Commercial
Mortgage Pass-Through Certificates, Series 2006-C1"
or in blank, and further showing a complete,
unbroken chain of endorsement from the originator
(if such originator is other than the related
Mortgage Loan Seller) (or, alternatively, if the
original executed Mortgage Note has been lost, a
lost note affidavit and indemnity with a copy of
such Mortgage Note);
(ii) a copy of the executed related Co-Lender Agreement;
and
(iii) a copy of the executed related Outside 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)(vii) through (a)(xx) of this definition, shall be
deemed to include such documents only to the extent the Trustee or a Custodian
on its behalf has actual knowledge of their existence.
"Mortgage Loan" shall mean any Trust Mortgage Loan or Non-Trust
Mortgage Loan. As used herein, the term "Mortgage Loan" includes the related
Mortgage Note, Mortgage and other security documents contained in the related
Mortgage File or otherwise held on behalf of the Trust and/or any affected
Non-Trust Mortgage Loan Noteholder(s), as applicable, including, in the case of
an Outside
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Serviced Loan Combination, any such documents held by or on behalf of a related
Non-Trust Mortgage Loan Noteholder.
"Mortgage Loan Origination Documents" shall mean, with respect to
any Serviced Trust Mortgage Loan, any of the following documents (other than any
document that constitutes part of the Mortgage File for such Serviced Trust
Mortgage Loan), if applicable with respect to such Serviced Trust Mortgage Loan:
copies of any final appraisal, final survey, final engineering report, final
environmental report, opinion letters of counsel to the related mortgagor
delivered in connection with the closing of such Serviced Trust Mortgage Loan,
escrow agreements, organizational documentation for the related mortgagor,
organizational documentation for any related guarantor or indemnitor (if the
related guarantor or indemnitor is an entity), insurance certificates, leases
for tenants representing 25% or more of the annual income with respect to the
related Mortgaged Property, final seismic report and property management
agreements, but, in each case, only if the subject document (a) was in fact
obtained in connection with the origination of such Serviced Trust Mortgage
Loan, (b) relates to the administration or servicing of such Serviced Trust
Mortgage Loan, (c) is reasonably necessary for the ongoing administration and/or
servicing of such Serviced Trust Mortgage Loan by the Master Servicer or Special
Servicer in connection with its duties under this Agreement, and (d) is in the
possession or under the control of the Depositor (if such Serviced Trust
Mortgage Loan is a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller
(if such Serviced Trust Mortgage Loan is a UBS Trust Mortgage Loan), as
applicable; provided that neither the Depositor nor the UBS Mortgage Loan Seller
shall be required to deliver any draft documents, privileged or other
communications or correspondence, credit underwriting or due diligence analyses
or information, credit committee briefs or memoranda or other internal approval
documents or data or internal worksheets, memoranda, communications or
evaluations.
"Mortgage Loan Purchase Agreements" shall mean the LBHI/Depositor
Mortgage Loan Purchase Agreement, the LUBS/Depositor Mortgage Loan Purchase
Agreement or the UBS/Depositor Mortgage Loan Purchase Agreement, as applicable.
"Mortgage Loan Seller" shall mean a Xxxxxx Mortgage Loan Seller or
the UBS Mortgage Loan Seller, as applicable.
"Mortgage Note" shall mean the original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool" shall mean all of the Trust Mortgage Loans and any
REO Trust Mortgage Loans, collectively.
"Mortgage Pool Data Update Report" shall mean, with respect to any
Distribution Date, a report (which may be included as part of the Distribution
Date Statement), prepared by the Trustee, containing information regarding the
Trust Mortgage Loans as of the end of the related Collection Period, which
report shall contain substantially the categories of information regarding the
Trust Mortgage Loans set forth on Annexes A-1 through A-4 to the Prospectus
Supplement (calculated, where applicable, on the basis of the most recent
relevant information provided by the Mortgagors to the Master Servicer or the
Special Servicer, as the case may be, and by the Master Servicer or the Special
Servicer, as the case may be, to the Trustee), and which information shall be
presented in tabular format substantially similar to the format utilized on such
annexes and shall also include a loan-by-loan listing (in descending balance
order) showing loan number, property type, location, unpaid principal balance,
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Mortgage Rate, paid-through date, maturity date, gross interest portion of the
Monthly Payment, principal portion of the Monthly Payment, and any Prepayment
Consideration 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, any related loan agreement and applicable law, as such rate may be
modified in accordance with Section 3.20 (or, in the case of a Mortgage Loan
that is part of an Outside Serviced Loan Combination, by the applicable Outside
Servicer in accordance with the related Outside Servicing Agreement) or in
connection with a bankruptcy, insolvency or similar proceeding involving the
related Mortgagor. In the case of any 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, (i) the primary obligor or obligors under a Mortgage Note,
including any Person that has acquired the related Mortgaged Property and
assumed the obligations of the original obligor under the Mortgage Note, and
(ii) the owner of the related Mortgaged Property, if such owner has executed the
related Mortgage with respect to the subject Mortgage Loan in addition to a
guaranty of the obligations of the named obligor on the related Mortgage Note,
and such guaranty is secured by such Mortgage; provided that the foregoing
definition of "Mortgagor" shall not include any guarantors except to the extent
described in clause (ii) above.
"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 Available Distribution Amount" shall mean, with respect to any
Distribution Date, the Available Distribution Amount for such Distribution Date,
reduced (to not less than zero) by the Class IUU Available Distribution Amount
for such Distribution Date.
"Net Default Charges" shall have, with respect to any Trust Mortgage
Loan or REO Trust Mortgage Loan, the meaning assigned thereto in Section
3.26(a).
"Net Investment Earnings" shall mean, with respect to any Investment
Account for any related Investment Period, the amount, if any, by which the
aggregate of all interest and other income realized during such Investment
Period on funds held in such Investment Account (exclusive, in the case of a
Servicing Account, a Reserve Account or the Defeasance Deposit Account, of any
portion of such interest or other income payable to a Mortgagor in accordance
with the related loan documents and applicable law), exceeds the aggregate of
all losses, if any, incurred during such Investment Period in connection with
the investment of such funds in accordance with Section 3.06 (exclusive, in the
case of
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a Servicing Account, a Reserve Account or the Defeasance Deposit Account, of any
portion of such losses that were incurred in connection with investments made
for the benefit of a Mortgagor).
"Net Investment Loss" shall mean, with respect to any Investment
Account for any related Investment Period, the amount by which the aggregate of
all losses, if any, incurred during such Investment Period in connection with
the investment of funds held in such Investment Account in accordance with
Section 3.06 (exclusive, in the case of a Servicing Account, a Reserve Account
or the Defeasance Deposit Account, of any portion of such losses that were
incurred in connection with investments made for the benefit of a Mortgagor),
exceeds the aggregate of all interest and other income realized during such
Investment Period on such funds (exclusive, in the case of a Servicing Account,
a Reserve Account or the Defeasance Deposit Account, of any portion of such
interest or other income payable to a Mortgagor in accordance with the related
loan documents and applicable law).
"Net Liquidation Proceeds" shall mean the excess, if any, of all
Liquidation Proceeds received with respect to any Specially Serviced Mortgage
Loan or Administered REO Property, over the amount of all Liquidation Expenses
incurred with respect thereto.
"Net Prepayment Consideration" shall mean the Prepayment
Consideration Received by the Trust (or, if applicable, on behalf of a Serviced
Non-Trust Mortgage Loan Noteholder) with respect to any Mortgage Loan or REO
Mortgage Loan, net of any Workout Fee or Liquidation Fee payable in connection
with the receipt thereof.
"Net Principal Distribution Amount" shall mean, with respect to any
Distribution Date, the Principal Distribution Amount for such Distribution Date,
reduced (to not less than zero) by the Class IUU Principal Distribution Amount
for such Distribution Date.
"New Lease" shall mean any lease of an Administered REO Property
entered into at the direction of the Special Servicer, including any lease
renewed, modified or extended on behalf of the Trustee and, in the case of a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s).
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I Advance
or Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance" shall mean:
(1) any P&I Advance previously made or proposed to be made in
respect of any Trust Mortgage Loan or REO Trust Mortgage
Loan by the Master Servicer, the Trustee or a Fiscal Agent,
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; and
(2) any P&I Advance previously made or proposed to be made in
respect of any Trust Mortgage Loan or any REO Trust Mortgage
Loan that the Special Servicer has determined, in accordance
with the Servicing Standard, will not be ultimately
recoverable from late payments, Insurance Proceeds,
Condemnation Proceeds or
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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:
(1) any Servicing Advance previously made or proposed to be made
in respect of any Serviced Mortgage Loan or Administered REO
Property by the Master Servicer, the Trustee or a 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, if such
Mortgage Loan is part of a Serviced Loan Combination, on or
in respect of such Loan Combination) or such Administered
REO Property, as the case may be; and
(2) 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 a Fiscal Agent, that the Special Servicer has
determined, in accordance with the Servicing Standard, will
not be ultimately recoverable from late payments, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds, or
any other recovery on or in respect of such Serviced
Mortgage Loan (or, if such Mortgage Loan is part of a
Serviced Loan Combination, on or in respect of such Loan
Combination) or such Administered REO Property, as the case
may be.
"Non-Registered Certificate" shall mean any Certificate that has not
been the subject of registration under the Securities Act. As of the Closing
Date, the Class X-CL, Class 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 and Class
R-III Certificates, the Class IUU Certificates, the Class R-LR Certificates (if
issued in accordance with Section 2.06) and the Class V Certificates (if issued
in accordance with Section 2.05) are Non-Registered Certificates.
"Non-Trust Mortgage Loan" shall mean any mortgage loan that is part
of a Loan Combination but is not included in the Trust Fund. The Non-Trust
Mortgage Loans consist of the 000 Xxxxxxx Xxxxxx Non-Trust Mortgage Loan and the
Serviced Note B Non-Trust Mortgage Loans.
"Non-Trust Mortgage Loan Noteholder" shall mean the holder of the
Mortgage Note for a Non-Trust Mortgage Loan.
"Non-Trust Mortgage Loan Securities" shall mean any securities
evidencing an interest in, or secured by, a Non-Trust Mortgage Loan or any
successor REO Mortgage Loan with respect thereto.
"Non-Trust Mortgage Loan Securitization Agreement" shall mean any
agreement governing the securitization of a Non-Trust Mortgage Loan or any
successor REO Mortgage Loan with respect thereto.
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"Non-Trust Mortgage Loan Securitization Trust" shall mean any
commercial mortgage securitization trust that is similar to the Trust and holds
a Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto.
"Non-United States Securities Person" shall mean a Person that is
not a United States Securities Person.
"Non-United States Tax Person" shall mean a Person that is not a
United States Tax Person.
"Offering Memorandum" shall mean the Offering Memorandum dated
January 20, 2006, relating to the Class X-CL, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class P, Class Q, Class S, Class T, Class IUU-1,
Class IUU-2, Class IUU-3, Class IUU-4, Class IUU-5, Class IUU-6, Class IUU-7,
Class IUU-8, Class IUU-9 and Class IUU-10 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 a 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.
"One Financial Center Co-Lender Agreement" shall mean the Co-Lender
Agreement dated as of December 23, 2005, between Xxxxxx Brothers Bank FSB as
holder of the Mortgage Note for the One Financial Center Trust Mortgage Loan and
Metropolitan Life Insurance Company as holder of the Mortgage Note for the One
Financial Center Note B Non-Trust Mortgage Loan.
"One Financial Center Collection Period" shall mean, with respect to
any Distribution Date, Trust Master Servicer Remittance Date or One Financial
Center Master Servicer Remittance Date, the period commencing on the day
immediately following the One Financial Center Determination Date in the
calendar month preceding the month in which such Distribution Date, Trust Master
Servicer Remittance Date or One Financial Center Master Servicer Remittance
Date, as the case may be, occurs (or, in the case of each of the initial
Distribution Date, the initial Trust Master Servicer Remittance Date or the
initial One Financial Center Master Servicer Remittance Date, as the case may
be, commencing immediately following the Cut-off Date) and ending on and
including the One Financial Center Determination Date in the calendar month in
which such Distribution Date, Trust Master Servicer Remittance Date or One
Financial Center Master Servicer Remittance Date, as the case may be, occurs.
"One Financial Center Controlling Party" shall mean the Serviced
Loan Combination Controlling Party with respect to the One Financial Center Loan
Combination.
"One Financial Center Cure Rights" shall mean the cure rights
granted to the One Financial Center Note B Non-Trust Mortgage Loan Noteholder
under Section 7.01 of the One Financial Center Co-Lender Agreement.
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"One Financial Center Determination Date" shall mean, during any
calendar month, commencing with February 2006, the Due Date for the One
Financial Center Loan Combination during that calendar month.
"One Financial Center Directing Lender" shall mean the Serviced Loan
Combination Directing Lender with respect to the One Financial Center Loan
Combination.
"One Financial Center Loan Combination" shall mean the Serviced Loan
Combination consisting of the One Financial Center Trust Mortgage Loan and the
One Financial Center Note B Non-Trust Mortgage Loan (or any successor REO
Mortgage Loans with respect thereto).
"One Financial Center Master Servicer Remittance Date" shall mean,
during any calendar month, commencing with February 2006, the Business Day
immediately following the Due Date for the One Financial Center Loan Combination
during that calendar month.
"One Financial Center Mortgage Loan" shall mean the One Financial
Center Trust Mortgage Loan or the One Financial Center Note B Non-Trust Mortgage
Loan, as applicable.
"One Financial Center Mortgaged Property" shall mean the Mortgaged
Property identified on the Trust Mortgage Loan Schedule as One Financial Center.
"One Financial Center Note B Non-Trust Mortgage Loan" shall mean the
Serviced Note B Non-Trust Mortgage Loan that is, together with the One Financial
Center Trust Mortgage Loan, secured by the same Mortgage on the One Financial
Center Mortgaged Property.
"One Financial Center Note B Non-Trust Mortgage Loan Noteholder"
shall mean the holder (or, if applicable, the collective holders) of the
Mortgage Note for the One Financial Center Note B Non-Trust Mortgage Loan.
"One Financial Center Noteholders" shall mean the holder of the
Mortgage Note for the One Financial Center Trust Mortgage Loan, together with
the One Financial Center Note B Non-Trust Mortgage Loan Noteholder.
"One Financial Center Trust Mortgage Loan" shall mean the Trust
Mortgage Loan that is secured by the One Financial Center Mortgaged Property and
that is identified on the Trust Mortgage Loan Schedule by loan number 8.
"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 any REMIC Pool as a
REMIC, (b) compliance with the REMIC Provisions, (c) qualification of the
Grantor Trust (if created hereunder taking into account Section 2.05(b)) 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.
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"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 $2,455,967,106, in the case of the
Class X-CL Certificates, and $2,250,748,000, 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.
"Outside Administered REO Property" shall mean any REO Property
relating to an Outside Serviced Trust Mortgage Loan.
"Outside Master Servicer" shall mean, with respect to any Outside
Serviced Trust Mortgage Loan or related REO Property, the related master
servicer under the related Outside Servicing Agreement.
"Outside Serviced Loan Combination" shall mean a Loan Combination
that includes an Outside Serviced Trust Mortgage Loan and that is being
primarily serviced and administered under an Outside Servicing Agreement.
"Outside Serviced Mortgage Loan" shall mean any Outside Serviced
Trust Mortgage Loan or Outside Serviced Non-Trust Mortgage Loan, as applicable.
"Outside Serviced Non-Trust Mortgage Loan" shall mean any Non-Trust
Mortgage Loan that is part of an Outside Serviced Loan Combination.
"Outside Serviced Trust Mortgage Loan" shall mean any Trust Mortgage
Loan that is identified on Schedule VIII attached hereto. Notwithstanding
anything herein to the contrary, the Trust Fund shall not include any Outside
Serviced Trust Mortgage Loans.
"Outside Servicer" shall mean, in the case of each Outside Serviced
Trust Mortgage Loan or related REO Property, the related Outside Master Servicer
or Outside Special Servicer, as applicable.
"Outside Servicer Default" shall mean an "event of default" on the
part of an Outside Servicer under an Outside Servicing Agreement.
"Outside Servicing Agreement" shall mean a servicing agreement
(other than a Sub-Servicing Agreement or an agreement whereby any Person acts as
agent or sub-contractor on behalf of the Master Servicer, the Special Servicer
or the Trustee) that governs material servicing functions with respect to any
Outside Serviced Trust Mortgage Loan or related REO Property. The Outside
Servicing Agreement in effect for any Outside Serviced Trust Mortgage Loan as of
the Closing Date will be identified on Schedule VIII attached hereto.
"Outside Servicing Fee" shall mean, with respect to any Outside
Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, the monthly fee, comparable to the Master Servicing Fee
hereunder and calculated at the related Outside Servicing Fee
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Rate, that is payable to the related Outside Master Servicer (or, if applicable,
to the related Outside Master Servicer and a primary servicer in the aggregate).
"Outside Servicing Fee Rate" shall mean, with respect to any Outside
Serviced Outside Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto, the rate per annum identified as the "Outside Servicing
Fee Rate" on Schedule VIII attached hereto.
"Outside Special Servicer" shall mean, with respect to any Outside
Serviced Trust Mortgage Loan or related REO Property, the related special
servicer under the related Outside Servicing Agreement.
"Outside Serviced Trustee" shall mean, with respect to any Outside
Serviced Non-Trust Mortgage Loan (or any successor REO Mortgage Loan with
respect thereto) that is included in any Non-Trust Mortgage Loan Securitization
Trust, the trustee under the applicable Non-Trust Mortgage Loan Securitization
Agreement.
"Ownership Interest" shall mean, as to any Certificate, any
ownership or security interest in such Certificate as the Holder thereof and any
other interest therein, whether direct or indirect, legal or beneficial, as
owner or as pledgee.
"P&I Advance" shall mean, as to any Trust Mortgage Loan or REO Trust
Mortgage Loan, any advance made by the Master Servicer, the Trustee or any
Fiscal Agent pursuant to Section 4.03.
"Pari Passu Mortgage Loan" shall mean: (a) the 000 Xxxxxxx Xxxxxx
Trust Mortgage Loan; and (b) the 000 Xxxxxxx Xxxxxx Note A-2 Non-Trust Mortgage
Loan.
"Pari Passu Non-Trust Mortgage Loan" shall mean the 000 Xxxxxxx
Xxxxxx Note A-2 Non-Trust Mortgage Loan.
"Pari Passu Non-Trust Mortgage Loan" shall mean any Non-Trust
Mortgage Loan (or portion thereof) that is a Pari Passu Mortgage Loan.
"Pass-Through Rate" shall mean:
(a) with respect to the Class A-1 Certificates, for any Interest
Accrual Period, 5.018% per annum;
(b) with respect to the Class A-2 Certificates, for any Interest
Accrual Period, 5.084% per annum;
(c) with respect to the Class A-3 Certificates, for any Interest
Accrual Period, 5.207% per annum;
(d) with respect to the Class A-AB Certificates, for any
Interest Accrual Period, 5.139% per annum;
(e) with respect to the Class A-4 Certificates, for any Interest
Accrual Period, 5.156% per annum;
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(f) with respect to the Class A-M 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)
5.217% per annum;
(g) with respect to the Class A-J Certificates, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) the Weighted
Average REMIC I Remittance Rate for such Interest Accrual Period and (ii)
5.276% per annum;
(h) 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)
5.306% per annum;
(i) 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)
5.335% per annum;
(j) 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)
5.365% per annum;
(k) 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)
5.404% per annum;
(l) 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)
5.433% per annum;
(m) 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)
5.500% per annum;
(n) with respect to the Class H Certificates, for any Interest
Accrual Period, an annual rate equal to the Weighted Average REMIC I
Remittance Rate for such Interest Accrual Period;
(o) with respect to the Class J Certificates, for any Interest
Accrual Period, an annual rate equal to the Weighted Average REMIC I
Remittance Rate for such Interest Accrual Period;
(p) with respect to the Class K Certificates, for any Interest
Accrual Period, an annual rate equal to the Weighted Average REMIC I
Remittance Rate for such Interest Accrual Period;
(q) 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, 4.867% per annum;
(r) with respect to each Class of Class IUU 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 REMIC I Remittance Rates in effect for the STML Group B REMIC I
Regular Interests for such Interest Accrual Period, weighted on the basis
of the
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respective Uncertificated Principal Balances of such REMIC I Regular
Interests outstanding immediately prior to the related Distribution Date;
(s) with respect to any Class X-XX XXXXX III Component, for any
Interest Accrual Period, an annual rate equal to either: (i) if such Class
X-XX XXXXX III Component has a Corresponding Class X-CP REMIC III
Component, and if such Interest Accrual Period relates to, or otherwise
ends prior to, the Class X-CP Termination Date for such Corresponding
Class X-CP REMIC III Component, the excess, if any, of (A) 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 (B) the greater of (1) the 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 and (2) the Reference
Rate for such Interest Accrual Period; or (ii) in all other cases, the
excess, if any, of (X) 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 (Y) the 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;
(t) 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;
(u) with respect to any Class X-CP REMIC III Component, for any
Interest Accrual Period, an annual rate equal to either: (i) if such
Interest Accrual Period relates to, or otherwise ends prior to, the Class
X-CP Termination Date for such Class X-CP REMIC III Component, the excess,
if any, of (A) the lesser of (1) the 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 (2) the Reference Rate for
such Interest Accrual Period, over (B) 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; or (ii) if
such Interest Accrual Period relates to a Distribution Date subsequent to
the Class X-CP Termination Date for such Class X-CP REMIC III Component,
0% per annum; and
(v) 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.
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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 (other than the Group IUU REMIC II Regular Interests).
"PCAOB" shall mean the Public Company Accounting Oversight Board.
"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 any other Certificate, the percentage interest in
distributions to be made with respect to the relevant Class, as stated on the
face of such Certificate.
"Performing Serviced Mortgage Loan" shall mean any Corrected
Mortgage Loan and any Serviced Mortgage Loan as to which a Servicing Transfer
Event has never occurred.
"Performing Serviced Trust Mortgage Loan" shall mean any Trust
Mortgage Loan that is a Performing Serviced Mortgage Loan.
"Permitted Encumbrances" shall have the meaning assigned thereto in
paragraph (viii) of Schedule II.
"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 Rating Agency (or, in the case of
any Rating Agency, such lower rating as will not result in
an Adverse Rating Event with respect to any Class of
Certificates or any class of Specially Designated Non-Trust
Mortgage Loan Securities that is rated by such Rating
Agency, 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
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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 Rating Agency (or, in the case of
any Rating Agency, such lower rating as will not result in
an Adverse Rating Event with respect to any Class of
Certificates or any class of Specially Designated Non-Trust
Mortgage Loan Securities that is rated by such Rating
Agency, 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;
(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 Rating Agency (or, in the case of any Rating Agency,
such lower rating as will not result in an Adverse Rating
Event with respect to any Class of Certificates or any class
of Specially Designated Non-Trust Mortgage Loan Securities
that is rated by such Rating Agency, 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 Rating Agency (or, in the case of
any Rating Agency, such lower rating as will not result in
an Adverse Rating Event with respect to any Class of
Certificates or any class of Specially Designated Non-Trust
Mortgage Loan Securities that is rated by such Rating
Agency, 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
(1) in the case of any Rating Agency, be evidenced in a
writing by such Rating Agency to the effect that such
obligation or security will not result in an Adverse Rating
Event with respect to any Class of Certificates or any class
of Specially Designated Non-Trust Mortgage Loan Securities
that is rated by such Rating Agency, or (2) otherwise be
evidenced in a writing by each Rating Agency to the Master
Servicer, the Special Servicer and the Trustee, (B) is rated
in the highest applicable rating category by each Rating
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Agency and (C) 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; and provided, further, that, with respect to
any investment of funds allocable to a Specially Designated Securitized
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect thereto,
if any of the related Specially Designated Non-Trust Mortgage Loan Securities
are rated by Xxxxx'x, then the term "Rating Agency" as used in this definition
shall be deemed to include Xxxxx'x.
"Permitted Purchase" shall mean:
(i) the repurchase of a Xxxxxx Trust Mortgage Loan or any
related REO Property by the Depositor, pursuant to Section 2.03;
(ii) the repurchase of a UBS Trust Mortgage Loan or any related
REO Property by or on behalf of the UBS Mortgage Loan Seller, pursuant to
the UBS/Depositor Mortgage Loan Purchase Agreement;
(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 purchase of a Trust Mortgage Loan or REO Property by the
Special Servicer, a Controlling Class Certificateholder, the Master
Servicer, the Depositor or Xxxxxx Brothers, pursuant to Section 9.01;
(v) the purchase of a Mortgage Loan by the holder of a related
mezzanine loan in connection with a default under such Mortgage Loan, as
set forth in the related intercreditor agreement;
(vi) in the case of a Combination Trust Mortgage Loan, the
purchase of such Mortgage Loan by a related Non-Trust Mortgage Loan
Noteholder or its designee, pursuant to the related Co-Lender Agreement;
or
(vii) in the case of a Split Trust Mortgage Loan, the purchase of
such Mortgage Loan by the Class IUU Representative pursuant to Section
3.27.
"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
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that any Certificate is outstanding, (c) a Disqualified Non-United States Tax
Person, (d) a Disqualified Partnership, or (e) a foreign permanent establishment
or fixed base (within the meaning of any applicable income tax treaty between
the United States and any foreign jurisdiction) of a United States Tax Person.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan" shall have the meaning assigned thereto in Section 5.02(c).
"Plurality Residual Interest Certificateholder" shall mean, as to
any taxable year of any REMIC Pool, the Holder of Certificates evidencing the
largest Percentage Interest in the related Class of Residual Interest
Certificates.
"Pool-Based Certificate" shall mean any Certificate that is not a
Class IUU Certificate.
"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 "[NAME OF MASTER SERVICER], as Master Servicer, on behalf of
[NAME OF TRUSTEE], as Trustee, in trust for the registered holders of LB-UBS
Commercial Mortgage Trust 2006-C1, Commercial Mortgage Pass-Through
Certificates, Series 2006-C1, 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 "[NAME OF SPECIAL SERVICER], as Special Servicer, on behalf of [NAME OF
TRUSTEE], as Trustee, in trust for the registered holders of LB-UBS Commercial
Mortgage Trust 2006-C1, Commercial Mortgage Pass-Through Certificates, Series
2006-C1, Pool REO Account".
"Prepayment Assumption" shall mean, for purposes of determining the
accrual of original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, the assumption that no Mortgage
Loan is prepaid prior to stated maturity, except that it is assumed that each
ARD Mortgage Loan is repaid on its Anticipated Repayment Date.
"Prepayment Consideration" shall mean any Prepayment Premium, Yield
Maintenance Charge and/or Excess Defeasance Deposit Proceeds.
"Prepayment Consideration Entitlement" shall mean, with respect to
(A) any Distribution Date on which any Net Prepayment Consideration Received by
the Trust on any Trust Mortgage Loan or REO Trust Mortgage Loan is distributable
and (B) 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 for the related Interest Accrual Period over
the relevant Discount Rate, and the denominator of which is equal
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to the excess, if any, of the Mortgage Rate for such Trust Mortgage Loan or REO
Trust Mortgage Loan, as the case may be, over the relevant Discount Rate, and
further multiplied by (z) a fraction, the numerator of which is equal to the
amount of principal to be distributed on such Class of YM Principal Balance
Certificates on such Distribution Date pursuant to Section 4.01 or 9.01, as
applicable, and the denominator of which is equal to the Adjusted Net Principal
Distribution Amount for such Distribution Date.
"Prepayment Interest Excess" shall mean: (a) with respect to any
Serviced Mortgage Loan that was subject to a Principal Prepayment in full or in
part made (or, if resulting from the application of Insurance Proceeds or
Condemnation Proceeds, any other early recovery of principal received) after its
Due Date in any applicable Collection Period, any payment of interest (net of
related Master Servicing Fees) actually collected from the related Mortgagor or
otherwise and intended to cover interest accrued on such Principal Prepayment
during the period from and after such Due Date (exclusive, however, of any
related Prepayment Consideration that may have been collected and, in the case
of an ARD Mortgage Loan after its Anticipated Repayment Date, further exclusive
of any Additional Interest); and (b) with respect to any Outside Serviced 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 applicable Underlying Collection Period, any payment of interest (net of
related Master Servicing Fees and Outside Servicing Fees) actually collected
from the related Mortgagor or otherwise and intended to cover interest accrued
on such Principal Prepayment during the period from and after such Due Date
(exclusive, however, of any related Prepayment Consideration that may have been
collected).
"Prepayment Interest Shortfall" shall mean: (a) with respect to any
Serviced Mortgage Loan that was subject to a Principal Prepayment in full or in
part made (or, if resulting from the application of Insurance Proceeds or
Condemnation Proceeds, any other early recovery of principal received) prior to
its Due Date in any applicable Collection Period, the amount of interest, to the
extent not collected from the related Mortgagor or otherwise (without regard to
any Prepayment Consideration that may have been collected), that would have
accrued at a rate per annum equal to the related Mortgage Rate (reduced, in the
case of an ARD Mortgage Loan after its Anticipated Repayment Date, by 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 related Master
Servicing Fees that would have been payable out of such uncollected interest);
and (b) with respect to any Outside Serviced 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 applicable
Underlying Collection Period, the amount of interest, to the extent not
collected from the related Mortgagor or otherwise (without regard to any
Prepayment Consideration that may have been collected), that would have accrued
at a rate per annum equal to the related Mortgage 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
related Master Servicing Fees and Outside Servicing Fees that would have been
payable out of such uncollected interest).
"Prepayment Premium" shall mean any premium, penalty or fee (other
than a Yield Maintenance Charge or any Excess Defeasance Deposit Proceeds) 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.
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"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 any Fiscal Agent, the Master Servicer, the Special Servicer
and each Serviced Non-Trust Mortgage Loan Noteholder in writing of its
selection.
"Principal Balance Certificate" shall mean any Regular Interest
Certificate (other than an Interest-Only Certificate).
"Principal Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to the aggregate (without duplication) of the
following:
(a) the aggregate of all payments of principal (other than
Principal Prepayments) Received by the Trust with respect to the Trust
Mortgage Loans during the related Collection Period, in each case
exclusive of any portion of the particular payment that represents a Late
Collection of principal for which a P&I Advance was previously made under
this Agreement for a prior Distribution Date or that represents the
principal portion of a Monthly Payment due on or before the Cut-off Date
or on a Due Date subsequent to the related Collection Period;
(b) the aggregate of the principal portions of all Monthly
Payments due in respect of the Trust Mortgage Loans for their respective
Due Dates occurring during the related Collection Period, that were
Received by the Trust prior to the related Collection Period;
(c) the aggregate of all Principal Prepayments Received by the
Trust on the Trust Mortgage Loans during the related Collection Period;
(d) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds and Insurance Proceeds Received by the Trust with respect to any
Trust Mortgage Loans during the related Collection Period that were
identified and applied by the Master Servicer as recoveries of principal
of such Trust Mortgage Loans, in each case exclusive of any portion of
such proceeds that represents a Late Collection of principal due on or
before the Cut-off Date or for which a P&I Advance was previously made
under this Agreement for a prior Distribution Date;
(e) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds and REO Revenues Received by the Trust with
respect to any REO Properties during the related Collection Period that
were identified and applied by the Master Servicer as recoveries of
principal of the related REO Trust Mortgage Loans, in each case exclusive
of any portion of such proceeds and/or revenues that represents a Late
Collection of principal due on or
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before the Cut-off Date or for which a P&I Advance was previously made
under this Agreement for a prior Distribution Date; and
(f) the aggregate of the principal portions of all P&I Advances
made under this Agreement with respect to the Trust Mortgage Loans and any
REO Trust Mortgage Loans for such Distribution Date;
provided that none of the amounts set forth in clauses (a) through (f) of this
definition shall represent amounts received, due or advanced on or in respect of
any Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto.
"Principal Prepayment" shall mean any voluntary payment of principal
made by or on behalf of the Mortgagor on a Mortgage Loan that is received in
advance of its scheduled Due Date, that is Received by the Trust and that is not
accompanied by an amount of interest (without regard to any Prepayment
Consideration 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 January 6, 2006, as
supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement" shall mean the prospectus supplement dated
January 20, 2006, relating to the Registered Certificates.
"PTCE" shall mean prohibited transaction class exemption.
"PTE" shall mean prohibited transaction exemption.
"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 REO Property that relates to a Loan
Combination, the Trust's interest therein), a cash price equal to the aggregate
of: (a) the outstanding principal balance of such Trust Mortgage Loan (or, 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 applicable Collection Period of purchase
(exclusive, however, of any portion of such accrued but unpaid interest that
represents Default Interest or, if applicable, Additional Interest or Outside
Servicing Fees), (c) all related unreimbursed Servicing Advances with respect to
such Trust Mortgage Loan (or REO Property), if any, together with the amount of
any Servicing Advance (and accrued interest thereon in accordance with Section
3.11(g)) with respect to such Trust Mortgage Loan (or REO Property) that has
been previously reimbursed as a Nonrecoverable Advance out of general
collections of principal on the Mortgage Pool (but only to the extent such
amounts have not been reimbursed to the Trust), (d) all accrued and unpaid
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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 Seller/Depositor Resolution Period for the
Material Document Defect or Material Breach, as applicable, that gave rise to
the repurchase, and (ii) to the extent not otherwise included in the amount
described in clause (c) of this definition, any costs and expenses incurred by
the Master Servicer, the Special Servicer or the Trustee (on behalf of the
Trust) in enforcing the obligation of such Person to purchase such Trust
Mortgage Loan (or such REO Property or an interest therein); provided that, in
the case of a Trust Mortgage Loan that is part of a Loan Combination, the
Purchase Price calculated above may be reduced (subject to the provisions of the
related Co-Lender Agreement) by any related unpaid Master Servicing Fees,
unreimbursed Advances and/or, to the extent included therein pursuant to clause
(d) above, unpaid interest on Advances which, following the subject purchase,
will continue to be payable or reimbursable under the related Co-Lender
Agreement and/or any successor servicing agreement to the Master Servicer and/or
the Special Servicer in respect of such Trust Mortgage Loan (which amounts shall
no longer be payable hereunder); and provided, further, that, in the case of an
REO Property that relates to a Serviced Loan Combination, for purposes of
Section 3.18, Section 6.11 and Section 6.12, the Purchase Price for such REO
Property shall instead equal the aggregate of the amounts described in clauses
(a), (b), (c) and (d) above with respect to all of the REO Mortgage Loans
comprising such Loan Combination.
"Qualified Bidder" shall have the meaning assigned thereto in
Section 7.01(c).
"Qualified Institutional Buyer" or "QIB" shall mean a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act.
"Qualified Insurer" shall mean an insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualified Mortgage" shall have the meaning assigned thereto in
Section 2.03(a).
"Rated Final Distribution Date" shall mean: (a) with respect to the
Senior Class A Certificates and the Class A-M Certificates, the Distribution
Date in February 2031; (b) with respect to the Class IUU Certificates, the
Distribution Date in February 2034; and (c) with respect to the other Classes of
Principal Balance Certificates (exclusive of the Class T Certificates), the
Distribution Date in February 2041.
"Rating Agency" shall mean each of S&P and Fitch.
"Realized Loss" shall mean:
(1) with respect to each Trust Mortgage Loan and Serviced
Non-Trust Mortgage Loan as to which a Final Recovery Determination has
been made, or with respect to any REO Mortgage Loan as to which a Final
Recovery Determination has been made as to the related REO Property, or
with respect to any Trust Mortgage Loan that was the subject of a
Permitted Purchase for less than the applicable Purchase Price, an amount
(not less than zero) equal to the
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excess, if any, of (a) the sum of (i) the unpaid principal balance of such
Mortgage Loan or REO Mortgage Loan, as the case may be, as of the
commencement of the applicable Collection Period in which the Final
Recovery Determination or purchase, as the case may be, was made, plus
(ii) without taking into account the amount described in subclause (1)(b)
of this definition, all accrued but unpaid interest on such Mortgage Loan
or such REO Mortgage Loan, as the case may be, to but not including the
Due Date in the applicable Collection Period in which the Final Recovery
Determination or purchase, as the case may be, was made (exclusive,
however, of any portion of such accrued but unpaid interest that
represents Default Interest or, in the case of an ARD Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto after its
Anticipated Repayment Date, Additional Interest), over (b) all payments
and proceeds, if any, received in respect of such Mortgage Loan or, to the
extent allocable to such REO Mortgage Loan, the related REO Property, as
the case may be, during the applicable Collection Period in which such
Final Recovery Determination or purchase, as the case may be, was made,
insofar as such payments and proceeds are allocable to interest (other
than Default Interest and Additional Interest) on or principal of such
Mortgage Loan or REO Mortgage Loan; provided that, in the case of any
Outside Serviced Trust Mortgage Loan or any related REO Trust Mortgage
Loan that was the subject of a Final Recovery Determination or a Permitted
Purchase under the related Outside Servicing Agreement and/or the related
Co-Lender Agreement, references to "Collection Period" in this clause (1)
shall mean the related Underlying Collection Period;
(2) with respect to each Trust Mortgage Loan and Serviced
Non-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 Mortgage Loan
granted or agreed to by the Special Servicer pursuant to Section 3.20 (or,
in the case of an Outside Serviced Trust Mortgage Loan, by the applicable
Outside Servicer pursuant to the related Outside 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 and Serviced
Non-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 Mortgage Loan granted
or agreed to by the Special Servicer pursuant to Section 3.20 (or, in the
case of an Outside Serviced Trust Mortgage Loan, by the applicable Outside
Servicer pursuant to the related Outside Servicing Agreement), the amount
of the consequent reduction in the interest portion of each successive
Monthly Payment due thereon (each such Realized Loss shall be deemed to
have been incurred on the Due Date for each affected Monthly Payment); and
(4) with respect to any Trust Mortgage Loan or REO Trust
Mortgage Loan, to the extent not otherwise taken into account as part of a
Realized Loss determined pursuant to any of clauses (1), (2) and (3) of
this definition, the amount of any related Advance that is reimbursed as a
Nonrecoverable Advance out of general collections on the Mortgage Pool
(net of any Recovered Amount in connection with the item for which such
Nonrecoverable Advance was made).
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"Received by the Trust" shall mean: (a) in the case of an Outside
Serviced Trust Mortgage Loan or any related REO Property, received by the
Trustee (or the Master Servicer on behalf of the Trustee), as holder of the
Mortgage Note for such Outside Serviced Trust Mortgage Loan, on behalf of the
Trust; and (b) in the case of any other Trust Mortgage Loan or REO Property,
received by the Master Servicer or any of its Sub-Servicers, the Special
Servicer or any of its Sub-Servicers or the Trustee, as the case may be, in any
event on behalf of the Trust.
"Record Date" shall mean, with respect to any Distribution Date, the
last Business Day of the month immediately preceding the month in which such
Distribution Date occurs; provided that, in the case of the initial Distribution
Date, the Record Date shall be the Closing Date.
"Recording/Filing Agent" shall have the meaning assigned thereto in
Section 2.01(c).
"Recovered Amount" shall have the meaning assigned thereto in
Section 1.03(c).
"Reference Rate" shall mean, with respect to any Interest Accrual
Period, the applicable rate per annum set forth on the Reference Rate Schedule.
"Reference Rate Schedule" shall mean the list of Reference Rates set
forth on the schedule attached hereto as Schedule IX.
"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-AB, Class A-4, Class X-CP, Class
A-M, Class A-J, Class B, Class C, Class D, Class E and Class F Certificates are
Registered Certificates.
"Regular Interest Certificate" shall mean any REMIC III Certificate
other than a Class R-III Certificate.
"Regulation AB" shall mean Subpart 229.1100 - Asset Backed
Securities (Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be
amended from time to time, and subject to such clarification and interpretation
as have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan.
7, 2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
"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 CUSIP number.
"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.
"Relevant Servicing Criteria" means, with respect to any of the
various parties listed on Exhibit T, the Servicing Criteria applicable to the
subject party, as set forth on Exhibit T attached hereto (as such Exhibit T may
be updated or limited (including, without limitation, not requiring delivery of
certain of the items set forth therein) based on interpretive guidance relating
to Item 1122 of Regulation AB provided by the Commission or its staff). For
clarification purposes, multiple parties can have responsibility for the same
Relevant Servicing Criteria. With respect to a Sub-Servicing Function
Participant engaged by the Trustee, the Master Servicer or the Special Servicer,
the term Relevant Servicing Criteria shall refer to those portions of the
Relevant Servicing Criteria applicable to the Master Servicer, the Special
Servicer or the Trustee for which the Sub-Servicing Function Participant has
been engaged to perform or has performed.
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"Remaining Adjusted Net Principal Distribution Amount" shall mean,
with respect to any Class of Class B Through T Certificates for any Distribution
Date, an amount equal to the Adjusted Net Principal Distribution Amount for such
Distribution Date, reduced by all distributions of principal to be made on such
Distribution Date: (i) pursuant to Section 4.01(a) with respect to the Senior
Class A Certificates, the Class A-M Certificates and the Class A-J Certificates;
and (ii) pursuant to Section 4.01(b) with respect to any and all other Classes
of the Class B Through T Certificates that evidence a right to payment in
accordance with such Section 4.01(b) that is prior to the right to payment
evidenced by the subject Class of Class B Through T Certificates. The priority
of payments on the various Classes of the Class B Through T Certificates under
Section 4.01(b) shall be consistent with the alphabetic order of the respective
Class designations of such Classes of Certificates, with the Class B
Certificates entitling the Holders thereof to the highest payment priority under
Section 4.01(b) as among the respective Classes of the Class B Through T
Certificates and the Class T Certificates entitling the Holders thereof to the
lowest payment priority under Section 4.01(b) as among the respective Classes of
the Class B Through T Certificates.
"Remaining Class IUU Available Distribution Amount" shall mean, with
respect to any Class of Class IUU Certificates (other than the Class IUU-1
Certificates) for any Distribution Date, an amount equal to the Class IUU
Available Distribution Amount for such Distribution Date, reduced by all
distributions to be made on such Distribution Date pursuant to Section 4.01(b)
with respect to any and all other Classes of the Class IUU Certificates that
evidence a right to payment in accordance with such Section 4.01(b) that is
prior to the right to payment evidenced by the subject Class of Class IUU
Certificates. The priority of payments on the various Classes of the Class IUU
Certificates under Section 4.01(b) shall be consistent with the numeric order of
the ending number of the respective Class designations of such Classes of
Certificates, with the Class IUU-1 Certificates entitling the Holders thereof to
the highest payment priority under Section 4.01(b) as among the respective
Classes of the Class IUU Certificates and the Class IUU-10 Certificates
entitling the Holders thereof to the lowest payment priority under Section
4.01(b) as among the respective Classes of the Class IUU Certificates.
"Remaining Class IUU Principal Distribution Amount" shall mean, with
respect to any Class of Class IUU Certificates (other than the Class IUU-1
Certificates) for any Distribution Date, an amount equal to the Class IUU
Principal Distribution Amount for such Distribution Date, reduced by all
distributions of principal to be made on such Distribution Date pursuant to
Section 4.01(b) with respect to any and all other Classes of the Class IUU
Certificates that evidence a right to payment in accordance with such Section
4.01(b) that is prior to the right to payment evidenced by the subject Class of
Class IUU Certificates. The priority of payments on the various Classes of the
Class IUU Certificates under Section 4.01(b) shall be consistent with the
numeric order of the ending number of the respective Class designations of such
Classes of Certificates, with the Class IUU-1 Certificates entitling the Holders
thereof to the highest payment priority under Section 4.01(b) as among the
respective Classes of the Class IUU Certificates and the Class IUU-10
Certificates entitling the Holders thereof to the lowest payment priority under
Section 4.01(b) as among the respective Classes of the Class IUU Certificates.
"Remaining Net Available Distribution Amount" shall mean, with
respect to any Class of Class B Through T Certificates for any Distribution
Date, an amount equal to the Net Available Distribution Amount for such
Distribution Date, reduced by all distributions to be made on such Distribution
Date: (i) pursuant to Section 4.01(a) with respect to the Senior Certificates,
the Class A-M Certificates and the Class A-J Certificates; and (ii) pursuant to
Section 4.01(b) with respect to any and all other Classes of the Class B Through
T Certificates that evidence a right to payment in accordance
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with such Section 4.01(b) that is prior to the right to payment evidenced by the
subject Class of Class B Through T Certificates. The priority of payments on the
various Classes of the Class B Through T Certificates under Section 4.01(b)
shall be consistent with the alphabetic order of the respective Class
designations of such Classes of Certificates, with the Class B Certificates
entitling the Holders thereof to the highest payment priority under Section
4.01(b) as among the respective Classes of the Class B Through T Certificates
and the Class T Certificates entitling the Holders thereof to the lowest payment
priority under Section 4.01(b) as among the respective Classes of the Class B
Through T Certificates.
"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) any Loan
REMIC Regular Interests; (ii) the Trust Mortgage Loans (exclusive of any Early
Defeasance Trust Mortgage Loans) as from time to time are subject to this
Agreement and all payments under and proceeds of such Trust Mortgage Loans
Received by the Trust after the Closing Date (other than any such payments
and/or proceeds that represent (A) scheduled payments of interest and principal
due in respect of the Trust Mortgage Loans on or before the Cut-off Date, or (B)
Additional Interest Received by the Trust in respect of the ARD Trust Mortgage
Loans, if any, after their respective Anticipated Repayment Dates), together
with all documents included in the related Mortgage Files; (iii) any REO
Properties (other than an REO Property acquired in respect of any Early
Defeasance Trust Mortgage Loan) as from time to time are subject to this
Agreement (or, in the case of any REO Property that relates to a Loan
Combination, the Trust's interest therein) and all income and proceeds
therefrom; (iv) such funds or assets (including any Initial Deposits and
Supplemental Interest Reserve Amounts) 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 (A) are included in a Loan REMIC or (B) represent Additional Interest
Received by the Trust in respect of the ARD Trust Mortgage Loans, if any, after
their respective Anticipated Repayment Dates; (v) to the extent not included in
a Loan REMIC, the rights of the Depositor under the UBS/Depositor Mortgage Loan
Purchase Agreement; and (vi) the rights of the holder of the Mortgage Note for
each Trust Mortgage Loan that is part of a Loan Combination under the related
Co-Lender Agreement and, in the case of each Outside Serviced Trust Mortgage
Loan, under the related Outside Servicing Agreement; provided that REMIC I shall
not include the Non-Trust Mortgage Loans or any successor REO Mortgage Loans
with respect thereto or any payments or other collections of principal,
interest, Prepayment Consideration or other amounts collected on such Non-Trust
Mortgage Loans or any successor REO Mortgage Loans with respect thereto; and
provided, further, that REMIC I shall not include the Loss of Value Reserve Fund
or any amounts on deposit therein.
"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 issued in respect of a Loan REMIC Regular Interest, a rate
per annum that is, for any Interest Accrual Period, equal to the Loan REMIC
Remittance Rate with respect to such Loan REMIC Regular Interest for such
Interest Accrual Period; (b) with respect to any REMIC I Regular Interest that,
as of the Closing Date, corresponds to a Trust Mortgage Loan (other than any
Early Defeasance Trust Mortgage
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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 sum of (A) the
Master Servicing Fee Rate for such corresponding Trust Mortgage Loan (or any
successor REO Trust Mortgage Loan with respect thereto, plus (B) the Trustee Fee
Rate, plus (C) if such corresponding Trust Mortgage Loan is an Outside Serviced
Trust Mortgage Loan, the related Outside Servicing Fee Rate; and (c) with
respect to any REMIC I Regular Interest that, as of the Closing Date,
corresponds to a Trust Mortgage Loan (other than any Early Defeasance 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 sum of (A) the Master Servicing Fee Rate for the corresponding
Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with respect
thereto), plus (B) the Trustee Fee Rate.
"REMIC II" shall mean the segregated pool of assets consisting of
all of the REMIC I Regular Interests conveyed in trust to the Trustee for the
benefit of REMIC III, as holder of the REMIC II Regular Interests, and the
Holders of the Class R-II Certificates, pursuant to Section 2.09, with respect
to which a separate REMIC election is to be made.
"REMIC II Regular Interest" shall mean any of the 43 separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a "regular interest" in REMIC II. Each REMIC II Regular Interest
shall accrue interest at its REMIC II Remittance Rate in effect from time to
time and, further, 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: (a) with respect to each
Group IUU REMIC II Regular Interest, 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 REMIC I Remittance Rates in effect for the
STML Group B REMIC I Regular Interests for such Interest Accrual Period,
weighted on the basis of the respective Uncertificated Principal Balance of such
REMIC I Regular Interests outstanding immediately prior to the related
Distribution Date; and (b) with respect to each other 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 X-0, Xxxxx
X-0, Class A-AB, Class A-4, Class X-CL, Class X-CP, Class A-M, Class A-J, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class P, Class Q, Class S, Class T,
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Class IUU-1, Class IUU-2, Class IUU-3, Class IUU-4, Class IUU-5, Class IUU-6,
Class IUU-7, Class IUU-8, Class IUU-9, Class IUU-10 or Class R-III Certificate.
"REMIC III Component" shall mean:
(a) with respect to the Class X-CL Certificates, any of the
Class X-XX XXXXX III Components; and
(b) with respect to the Class X-CP Certificates, any of the
Class X-CP REMIC III Components.
"REMIC Pool" shall mean any of REMIC I, REMIC II, REMIC III and,
subject to Section 2.06(b), the Loan REMICs.
"REMIC Provisions" shall mean the provisions of the federal income
tax law relating to REMICs, which appear at Sections 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and proposed,
temporary and final Treasury regulations and any published rulings, notices and
announcements promulgated thereunder, as the foregoing may be in effect from
time to time.
"Rents from Real Property" shall mean, with respect to any REO
Property, gross income of the character described in Section 856(d) of the Code.
"REO Account" shall mean the Pool REO Account or a Loan Combination
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 REO Property relating to an
Outside Serviced Trust Mortgage Loan, pursuant to the related Outside Servicing
Agreement).
"REO Disposition" shall mean the sale or other disposition of any
Administered REO Property pursuant to Section 3.18 (or, in the case of any REO
Property relating to an Outside Serviced Trust Mortgage Loan, pursuant to the
related Outside Servicing Agreement).
"REO Extension" shall have the meaning assigned thereto in Section
3.16(a).
"REO Mortgage Loan" shall mean the mortgage loan (or, if a Serviced
Loan Combination is involved, one of the two or more mortgage loans comprising
such Loan Combination) deemed for purposes hereof to be outstanding with respect
to each REO Property. Each REO Mortgage Loan shall be deemed to relate to and
succeed the Mortgage Loan (or, in the case of any REO Property that relates to a
Serviced Loan Combination, one of the two or more Mortgage Loans) relating to
the subject REO Property. Each REO Mortgage Loan shall be deemed to provide for
monthly payments of principal and/or interest equal to its Assumed Monthly
Payment and otherwise to have the same terms and conditions as its predecessor
Mortgage Loan (such terms and conditions to be applied without regard to the
default on such predecessor Mortgage Loan and the acquisition of the related REO
Property as part of the Trust Fund or, if applicable in the case of any REO
Property that relates to a Loan Combination, on behalf of the Trust and the
related Non-Trust Mortgage Loan Noteholder(s)). Each REO Mortgage Loan shall be
deemed to have an initial unpaid principal balance and, if applicable
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hereunder, an initial Stated Principal Balance equal to the unpaid principal
balance and Stated Principal Balance, respectively, of its predecessor Mortgage
Loan as of the date of the related REO Acquisition. All Monthly Payments (other
than a Balloon Payment), Assumed Monthly Payments (in the case of a Balloon
Mortgage Loan delinquent in respect of its Balloon Payment) and other amounts
due and owing, or deemed to be due and owing, in respect of the predecessor
Mortgage Loan as of the date of the related REO Acquisition, shall be deemed to
continue to be due and owing in respect of an REO Mortgage Loan. Amounts
Received by the Trust (or, if applicable, received on behalf of the related
Serviced Non-Trust Mortgage Loan Noteholder) with respect to each REO Mortgage
Loan (after provision for amounts to be applied to the payment of, or to be
reimbursed to the Master Servicer or the Special Servicer for the payment of,
the costs of operating, managing and maintaining any related Administered REO
Property or for the reimbursement of the Master Servicer, the Special Servicer,
the Trustee or any Fiscal Agent for any other related Servicing Advances, but
otherwise without regard to any Advances, Advance Interest, fees, costs,
expenses and other potential Additional Trust Fund Expenses payable or
reimbursable therefrom until after the following applications have been made)
shall be treated: first, as a recovery of accrued and unpaid interest on such
REO Mortgage Loan at the related Mortgage Rate (net, in the case of any
successor REO Mortgage Loan in respect of an Outside Serviced Trust Mortgage
Loan, of any related Outside Servicing Fees payable therefrom) to but not
including the Due Date in the related Collection Period of receipt (exclusive,
however, in the case of an REO Mortgage Loan that relates to an ARD Mortgage
Loan after its Anticipated Repayment Date, of any such accrued and unpaid
interest that constitutes Additional Interest); second, as a recovery of
principal of such REO Mortgage Loan to the extent of its entire unpaid principal
balance; third, in accordance with the normal servicing practices of the Master
Servicer, as a recovery of any other amounts (or, in the case of an REO Mortgage
Loan in respect of an Outside Serviced Trust Mortgage Loan, any Prepayment
Consideration) due and owing in respect of such REO Mortgage Loan (exclusive,
however, in the case of an REO Mortgage Loan that relates to an ARD Mortgage
Loan after its Anticipated Repayment Date, of any such accrued and unpaid
interest that constitutes Additional Interest); and fourth, in the case of an
REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated
Repayment Date, as a recovery of accrued and unpaid Additional Interest on such
REO Mortgage Loan; provided that, in the case of an REO Mortgage Loan in respect
of an Outside Serviced Trust Mortgage Loan, if an allocation in accordance with
this sentence would conflict with remittance reports from the applicable Outside
Servicer, the Master Servicer shall, in the absence of actual knowledge of an
error, rely on the allocation in such remittance reports; and provided, further,
that, if one or more Advances previously made in respect of an REO Trust
Mortgage Loan have been reimbursed out of general collections of principal on
the Mortgage Pool as one or more Nonrecoverable Advances, then collections in
respect of such REO Trust Mortgage Loan available for application pursuant to
clauses first through fourth of this sentence shall instead be applied in the
following order--(i) as a recovery of accrued and unpaid interest on, and
principal of, such REO Trust Mortgage Loan, to the extent of any outstanding P&I
Advances and unpaid Master Servicing Fees in respect of such REO Trust Mortgage
Loan, (ii) as a recovery of the item(s) for which such previously reimbursed
Nonrecoverable Advance(s) were made (together with any interest on such
previously reimbursed Nonrecoverable Advance(s) that was also paid out of
general collections of principal on the Mortgage Pool), and (iii) in accordance
with clauses first through fourth of this sentence (taking into account the
applications pursuant to clauses (i) and (ii) of this proviso); and provided,
further, that if the Mortgage Loans comprising any Serviced Loan Combination
become REO Mortgage Loans, amounts (other than Loss of Value Payments deemed to
constitute Liquidation Proceeds with respect to the REO Trust Mortgage Loan in
such Serviced Loan Combination and other than Liquidation Proceeds resulting
from the purchase of the Trust's interest in any related REO Property pursuant
to or as contemplated by Section 2.03) received with respect to such REO
Mortgage Loans shall be applied to
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amounts due and owing in respect of such REO Mortgage Loans as provided in the
related Co-Lender Agreement; and provided, further, that Loss of Value Payments
shall not be applied in accordance with the foregoing provisions of this
definition unless and until such amounts are transferred to the Pool Custodial
Account, and deemed to constitute Liquidation Proceeds in respect of a
particular REO Trust Mortgage Loan, in accordance with Section 3.05(e).
Notwithstanding the foregoing, all amounts payable or reimbursable to the Master
Servicer, the Special Servicer, the Trustee or any Fiscal Agent in respect of
the predecessor Mortgage Loan as of the date of the related REO Acquisition,
including any unpaid Servicing Fees and any unreimbursed Servicing Advances and
P&I Advances, together with any interest accrued and payable to the Master
Servicer, the Special Servicer, the Trustee or any Fiscal Agent in respect of
such Servicing Advances and P&I Advances in accordance with Sections 3.11(g) and
4.03(d), respectively, shall continue to be payable or reimbursable to the
Master Servicer, the Special Servicer, the Trustee or such Fiscal Agent, as the
case may be, in respect of an REO Mortgage Loan. The foregoing allocations are
not intended to limit the rights of the parties hereunder to reimbursements or
indemnities to which they are otherwise entitled hereunder.
"REO Property" shall mean a Mortgaged Property acquired on behalf
and in the name of the Trustee for the benefit of the Certificateholders (or, in
the case of a Mortgaged Property related to a Serviced Loan Combination, for the
benefit of the Certificateholders and the related Non-Trust Mortgage Loan
Noteholder(s), as their interests may appear), through foreclosure, acceptance
of a deed-in-lieu of foreclosure or otherwise in accordance with applicable law
in connection with the default or imminent default of a Mortgage Loan (or a Loan
Combination); provided that the Mortgaged Property securing an Outside Serviced
Loan Combination (if acquired under the related Outside Servicing Agreement)
shall constitute an REO Property if such Mortgaged Property is so acquired for
the benefit of the related Non-Trust Mortgage Loan Noteholder(s) 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 subject Outside Serviced Loan Combination.
"REO Revenues" shall mean all income, rents, profits and proceeds
derived from the ownership, operation or leasing of any REO Property.
"REO Tax" shall have the meaning assigned thereto in Section
3.17(a).
"REO Trust Mortgage Loan" shall mean the successor REO Mortgage Loan
with respect to any Trust Mortgage Loan as to which the related Mortgaged
Property has become an REO Property.
"Request for Release" shall mean a request signed by a Servicing
Officer of, as applicable, the Master Servicer in the form of Exhibit D-1
attached hereto or the Special Servicer in the form of Exhibit D-2 attached
hereto.
"Required Appraisal" shall mean, with respect to each Required
Appraisal Loan, an appraisal of the related Mortgaged Property from an
Independent Appraiser selected by the party required or authorized to obtain
such appraisal hereunder, which appraisal shall be prepared in accordance with
12 CFR ss. 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
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was obtained or conducted within the prior 12 months, a "desktop" value estimate
performed by the Special Servicer.
"Required Appraisal Loan" shall mean any Serviced Mortgage Loan:
(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 beyond the date on which such Balloon
Payment was due (unless clause (B) below applies) or (B) if the related
Mortgagor shall have delivered a refinancing commitment acceptable to the
Special Servicer prior to the date when such Balloon Payment was due, for
30 days beyond the date on which such 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);
(iv) with respect to which the related Mortgaged Property has
become an REO Property;
(v) with respect to which a receiver or similar official is
appointed and continues for 60 days in such capacity in respect of the
related Mortgaged Property;
(vi) with respect to which the related Mortgagor is subject to a
bankruptcy, insolvency or similar proceedings, which, in the case of an
involuntary bankruptcy, insolvency or similar proceeding, has not been
dismissed within 60 days of the commencement thereof; or
(vii) that remains outstanding five years following any extension
of its maturity date pursuant to Section 3.20;
provided that all of the Mortgage Loans comprising a Serviced Loan Combination
shall, upon the occurrence of any of the events described in clauses (i) through
(vii) of this definition in respect of any such Mortgage Loan, be deemed to be a
single "Required Appraisal Loan". Any Required Appraisal Loan shall cease to be
such at such time as it has become a Corrected Mortgage Loan (assuming such
Required Appraisal Loan was a Specially Serviced Mortgage Loan), 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 Mortgage Loan(s) in respect of a Serviced Trust
Mortgage Loan or Serviced Loan Combination. In no event shall any Outside
Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto or any Outside Serviced Loan Combination constitute a Required
Appraisal Loan hereunder.
"Required Appraisal Value" shall mean, with respect to any Mortgaged
Property securing (or REO Property relating to) a Required Appraisal Loan, an
amount equal to the sum of: (a) the excess, if any, of (i) 90% of the Appraised
Value of such Mortgaged Property (or REO Property) as determined by the most
recent Required Appraisal or any letter update of such Required Appraisal (as
such Appraised Value may be reduced by the Special Servicer, acting in
accordance with the Servicing
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Standard, based upon the Special Servicer's review of the subject Required
Appraisal and such other information that the Special Servicer, acting in
accordance with the Servicing Standard, deems relevant (provided that the
Special Servicer shall not be obligated to make any such reduction)), over (ii)
the amount of any obligations secured by liens on such Mortgaged Property (or
REO Property) that are prior to the lien of the related Required Appraisal Loan;
plus (b) the amount of Escrow Payments and Reserve Funds held by the Master
Servicer in respect of such Required Appraisal Loan that (i) are not being held
for purposes of paying any real estate taxes and assessments, insurance premiums
or, if applicable, ground rents, (ii) are not otherwise scheduled to be applied
or utilized (except to pay debt service on such Required Appraisal Loan) within
the 12-month period following the date of determination and (iii) may be applied
towards the reduction of the principal balance of such Required Appraisal Loan;
plus (c) the amount of any letter of credit constituting additional security for
such Required Appraisal Loan and that may be drawn upon for purposes of paying
down the principal balance of such Required Appraisal Loan.
"Required Insurer Rating" shall mean:
(i) for purposes of Sections 3.07(a) and 3.07(b), a "claims
paying ability", "financial strength" or comparable rating, as applicable,
of at least "A" from S&P and "A" from Fitch (or, if not then rated by
Fitch, an equivalent rating thereto from at least one nationally
recognized statistical rating agency in addition to S&P or a rating of
"A:IX" or better from A.M. Best's Key Rating Guide) and, if applicable,
"A3" from Moody's (if then rated by Moody's) or, in the case of any such
rating agency, such lower rating as will not result in an Adverse Rating
Event with respect to any Class of Certificates or any class of Specially
Designated Non-Trust Mortgage Loan Securities rated by such rating agency
(as evidenced in writing by such rating agency); and
(ii) for purposes of Section 3.07(c), a "claims paying ability",
"financial strength" or comparable rating, as applicable, of at least "A"
from S&P and "A" from Fitch (or, if not then rated by Fitch, an equivalent
rating thereto from at least one nationally recognized statistical rating
agency in addition to S&P or a rating of "A:IX" or better from A.M. Best's
Key Rating Guide) and, if applicable, "A2" from Moody's (if then rated by
Moody's) or, in the case of any such rating agency, such lower rating as
will not result in an Adverse Rating Event with respect to any Class of
Certificates or any class of Specially Designated Non-Trust Mortgage Loan
Securities rated by such Rating Agency (as evidenced in writing by such
Rating Agency).
provided that, in the case of clause (i) of this definition, the references to
Moody's and any rating thereby shall not apply unless the subject insurance
relates to a Serviced Loan Combination that includes a Specially Designated
Securitized Non-Trust Mortgage Loan or any successor REO Mortgage Loan with
respect thereto and one or more classes of the related Specially Designated
Non-Trust Mortgage Loan Securities are rated by Moody's and, in the case of
clause (ii) of this definition, the references to Moody's and any rating thereof
shall not apply unless one or more classes of any Specially Designated Non-Trust
Mortgage Loan Securities are rated by Moody's.
"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.
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"Residual Interest Certificate" shall mean any of the Class R-I
Certificates, the Class R-II Certificates, the Class R-III Certificates or, if
issued in accordance with Section 2.06, the Class R-LR Certificates.
"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 Global Securities
and Trust Services Group customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement; and (b) when used with
respect to any Fiscal Agent, any officer thereof.
"Review Package" shall mean a package of documents consisting of a
memorandum outlining the analysis and recommendation (in accordance with the
Servicing Standard) of the Master Servicer or the Special Servicer, as the case
may be, with respect to the matters that are the subject thereof, and copies of
all relevant documentation.
"Rule 144A Global Certificate" shall mean, with respect to any Class
of Book-Entry Non-Registered Certificates, one or collectively more global
certificates of such Class registered in the name of the Depository or its
nominee, in definitive, fully registered form without interest coupons, and each
of which certificates has a Rule 144A CUSIP number.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. or its successor in interest. If neither such
rating agency nor any successor remains in existence, "S&P" shall be deemed to
refer to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, any Fiscal Agent, the Master Servicer and the Special
Servicer, and specific ratings of Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc. herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated.
"Xxxxxxxx-Xxxxx Act" shall have the meaning assigned thereto in
Section 8.15(d).
"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 Trust Mortgage
Loan or Serviced Non-Trust 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 an Outside Serviced Trust Mortgage Loan, by the
applicable Outside
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Servicer pursuant to the related Outside 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,
and the rules and regulations promulgated thereunder.
"Seller/Depositor Notification" shall mean, with respect to any
Trust Mortgage Loan, a written notification executed (in each case promptly upon
becoming aware of such event) by a Responsible Officer of the Trustee, or a
Servicing Officer of the Master Servicer or the Special Servicer, as applicable,
and delivered to the Master Servicer, the Special Servicer and the Trustee
(except to the extent any of the foregoing three parties is the party delivering
the subject Seller/Depositor Notification) and, as applicable, to either the UBS
Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan) or the Depositor
(in the case of a Xxxxxx Trust Mortgage Loan), in each case identifying and
describing the circumstances relating to any of the events set forth below,
which notification shall be substantially in the form of Exhibit N attached
hereto:
(i) the occurrence of a Material Document Defect or Material
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 in all
material respects, or repurchase the subject Trust Mortgage Loan, within
the time period and subject to the conditions provided for in Section
2.03(a) (in the case of a Xxxxxx Trust Mortgage Loan) or Section 5(a) of
the UBS/Depositor Mortgage Loan Purchase Agreement (in the case of a UBS
Trust Mortgage Loan), as applicable;
(iii) following or simultaneously with the occurrence of a
Material Document Defect, the existence or occurrence of a Servicing
Transfer Event with respect to the subject Trust Mortgage Loan;
(iv) following or simultaneously with the occurrence of a
Material Document Defect, the existence or occurrence of an assumption or
a proposed assumption with respect to the subject Trust Mortgage Loan;
(v) only (A) under the circumstances contemplated by the last
paragraph of Section 2.03(a) (in the case of a Xxxxxx Trust Mortgage Loan)
or Section 5(a) of the UBS/Depositor Mortgage Loan Purchase Agreement (in
the case of a UBS Trust Mortgage Loan), as applicable, 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 in all material
respects 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.
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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).
"Seller/Depositor Resolution Period" shall mean the 90-day period
following the related Mortgage Loan Seller's receipt of a Seller/Depositor
Notification with respect to the Material Document Defect or Material Breach
that gave rise to the particular repurchase obligation; provided, however, that
if (i) such Material Document Defect or Material Breach is capable of being
cured but not within such 90-day period, (ii) 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), as the case may be, has commenced and is diligently
proceeding with the cure of such Material Document Defect or Material Breach
within such initial 90-day period, and (iii) 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), as the case may be, delivers an Officer's Certificate
to the Special Servicer setting forth the reasons such Material Document Defect
or Material Breach is not capable of being cured within the initial 90-day
period and what actions such party is pursuing in connection with the cure
thereof, then the Seller/Depositor Resolution Period shall mean the 180-day
period following the related Mortgage Loan Seller's receipt of a
Seller/Depositor Notification with respect to the Material Document Defect or
Material Breach that gave rise to the particular repurchase obligation; and
provided, further, that, if any such Material Document Defect is still not cured
after the 180-day period following the related Mortgage Loan Seller's receipt of
a Seller/Depositor Notification with respect to the Material Document Defect or
Material Breach that gave rise to the particular repurchase obligation solely
due to the failure 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), as the case may be, to have received a recorded document, then the
Seller/Depositor Resolution Period shall continue for an additional period of
time so long as the Depositor or the UBS Mortgage Loan Seller, as applicable,
certifies to the Special Servicer 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 such party is diligently pursuing the cure of such
defect.
"Senior Certificate" shall mean any Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class X-CL or Class X-CP Certificate.
"Senior Class A Certificates" shall mean the Class A-1, Class A-2,
Class A-3, Class A-AB and Class A-4 Certificates.
"Senior Class A Principal Distribution Cross-Over Date" shall mean
the first Distribution Date as of the commencement of business on which (i) any
two or more Classes of the Senior Class A Certificates remain outstanding and
(ii) the aggregate of the Class Principal Balances of the Class A-M, Class A-J,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class P, Class Q, Class S and Class T Certificates
has been reduced to zero as a result of the allocation of Realized Losses and
Additional Trust Fund Expenses pursuant to Section 4.04(a).
"Serviced Combination Trust Mortgage Loan" shall mean the 000
Xxxxxxx Xxxxxx Trust Mortgage Loan or any Serviced Note A Trust Mortgage Loan,
as applicable.
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"Serviced A/B Loan Combination" shall have the meaning assigned
thereto in the Preliminary Statement.
"Serviced Loan Combination" shall mean any Loan Combination that is
to be primarily serviced and administered under this Agreement. The 000 Xxxxxxx
Xxxxxx Loan Combination and the Serviced A/B Loan Combinations will be, and the
Outside Serviced Loan Combinations will not be, Serviced Loan Combinations.
"Serviced Loan Combination Change of Control Event" shall mean, with
respect to each Serviced Loan Combination, any event that would result in the
"Note A Lender" (or, in the case of the 000 Xxxxxxx Xxxxxx Loan Combination, the
"Note A Lenders") under the related Co-Lender Agreement becoming the applicable
Serviced Loan Combination Directing Lender in accordance with the definition of
"Directing Lender" under the related Co-Lender Agreement.
"Serviced Loan Combination Controlling Party" shall mean, with
respect to any Serviced Loan Combination, the related Serviced Loan Combination
Directing Lender or any representative appointed thereby, consistent with
Section 3.02(d) of the related Co-Lender Agreement, to exercise the rights and
powers of the related Serviced Loan Combination Directing Lender under the
related Co-Lender Agreement or this Agreement.
"Serviced Loan Combination Directing Lender" shall mean, with
respect to any Serviced Loan Combination, as of any date of determination, the
"Directing Lender" under the related Co-Lender Agreement.
"Serviced Mortgage Loan" shall mean each Mortgage Loan (including a
Specially Serviced Mortgage Loan), other than any Outside Serviced Mortgage
Loan.
"Serviced Non-Trust Mortgage Loan" shall mean each Non-Trust
Mortgage Loan that is a Serviced Mortgage Loan.
"Serviced Non-Trust Mortgage Loan Noteholder" shall mean each holder
of the Mortgage Note for a Serviced Non-Trust Mortgage Loan.
"Serviced Note A Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Serviced Note B Non-Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Serviced Pari Passu Non-Trust Mortgage Loan" shall mean each Pari
Passu Non-Trust Mortgage Loan that is a Serviced Non-Trust Mortgage Loan.
"Serviced Subordinate Non-Trust Mortgage Loan" shall mean each
Subordinate Non-Trust Mortgage Loan that is a Serviced Non-Trust Mortgage Loan.
"Serviced Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that is a Serviced Mortgage Loan. Notwithstanding anything herein to the
contrary, no Outside Serviced Trust Mortgage Loan shall in any event constitute
a Serviced Trust Mortgage Loan hereunder.
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"Servicer" shall mean any servicer (within the meaning of Item
1101(j) of Regulation AB) with respect to the Subject Securitization
Transaction.
"Servicer Backup Certification" shall mean the Master Servicer
Backup Certification or the Special Servicer Backup Certification, as
applicable.
"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 (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 applicable 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 applicable 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 Notice" shall have the meaning assigned thereto in Section
3.14.
"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 Reports.
"Servicing Account" shall have the meaning assigned thereto in
Section 3.03(a).
"Servicing Advances" shall mean all customary, reasonable and
necessary "out of pocket" costs and expenses (including attorneys' fees and fees
and expenses of real estate brokers) incurred by the Master Servicer, the
Special Servicer, any Fiscal Agent or the Trustee in connection with the
servicing and administration of a Serviced Mortgage Loan, if a default is
imminent thereunder or a default, delinquency or other unanticipated event has
occurred with respect thereto, or in connection with the administration of any
Administered REO Property, including, but not limited to, the cost of (a)
compliance with the obligations of the Master Servicer, the Special Servicer,
any Fiscal Agent or the Trustee, if any, set forth in Section 3.03(c), (b) the
preservation, insurance, restoration, protection and management of a Mortgaged
Property, (c) obtaining any Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds, (d) any enforcement or judicial proceedings with respect
to a Mortgaged Property, including foreclosures, (e) any Required Appraisal or
any other appraisal or update thereof expressly permitted or required to be
obtained hereunder, (f) the operation, management, maintenance and liquidation
of any REO Property, and (g) obtaining any related ratings confirmation;
provided that, notwithstanding anything to the contrary, "Servicing Advances"
shall not include allocable overhead of the Master Servicer, the Special
Servicer or the Trustee, such as costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses, or costs and expenses incurred by any such
party in connection with its purchase of any Mortgage Loan or REO Property
pursuant to any provision of this Agreement, any Outside Servicing Agreement,
any Co-Lender Agreement or any intercreditor agreement relating to mezzanine
debt.
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"Servicing Criteria" shall mean the "servicing criteria" set forth
in Item 1122(d) of Regulation AB, as such may be amended from time to time.
"Servicing Fees" shall mean: (a) with respect to each Serviced
Mortgage Loan (and any successor REO Mortgage Loan with respect thereto), the
Master Servicing Fee and the Special Servicing Fee; and (b) with respect to each
Outside Serviced Trust Mortgage Loan (or any successor REO Trust Mortgage Loan
with respect thereto), the Master Servicing Fee.
"Servicing File" shall mean, collectively, any and all documents
(other than documents required to be part of the related Mortgage File, except
as specifically provided below in this definition), in the possession of the
Master Servicer or the Special Servicer and relating to the origination and
servicing of any Serviced Mortgage Loan, including any original letter of credit
(together with any transfer or assignment documents related thereto), any
franchise agreement and any franchise comfort letter (together with any transfer
or assignment documents relating thereto), appraisals, surveys, engineering
reports, environmental reports, opinion letters of counsel to a related
Mortgagor, escrow agreements, property management agreements and, in the case of
a Serviced Non-Trust Mortgage Loan, a copy of the related Mortgage Note.
"Servicing Function Participant" shall mean any of: (i) the Master
Servicer; (ii) the Special Servicer; and (iii) any other party hereto, in
addition to the Master Servicer and the Special Servicer, that is a "party
participating in the servicing function" (within the meaning of the instructions
to Item 1122 of Regulation AB) as regards the Trust Fund.
"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 Representative" shall mean, with respect to the Master
Servicer, the Special Servicer or the Trustee, any other Person (including any
Sub-Servicer, subcontractor, vendor or agent) retained or engaged thereby to
perform any duties in connection with this Agreement or all or any portion of
the Trust Fund, the performance of which duties would cause such other Person to
be, or result in such other Person being, a Servicer or a Sub-Servicing Function
Participant.
"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,
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skill, prudence and diligence with which, the Master Servicer or Special
Servicer, as the case may be, services and administers comparable mortgage loans
and foreclosure properties owned by the Master Servicer or Special Servicer, as
the case may be, in either case exercising reasonable business judgment and
acting in accordance with applicable law, the terms of this Agreement and the
terms of the respective Serviced Mortgage Loans and any applicable co-lender,
intercreditor and/or similar agreements; (ii) with a view to: (A) the timely
recovery of all payments of principal and interest, including Balloon Payments,
under the Serviced Mortgage Loans or, in the case of any such Serviced Mortgage
Loan that is (1) a Specially Serviced Mortgage Loan or (2) a Serviced Mortgage
Loan as to which the related Mortgaged Property has become an REO Property, the
maximization of recovery on the subject Serviced Mortgage Loan to the
Certificateholders (as a collective whole) (or, if a Serviced Loan Combination
is involved, the maximization of recovery on such Loan Combination to the
Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s) (as a collective whole)) of principal and interest, including
Balloon Payments, on a present value basis (the relevant discounting of
anticipated collections that will be distributable to the Certificateholders
(or, if a Serviced Loan Combination is involved, to the Certificateholders and
the related Serviced Non-Trust Mortgage Loan Noteholder(s) (as a collective
whole)) to be performed at the related Mortgage Rate (or, in the case of a
Serviced Loan Combination, at the weighted average of the respective Mortgage
Rates for the Mortgage Loans that comprise such Loan Combination); and (iii)
without regard to (A) any relationship, including as lender on any other debt
(including mezzanine debt or a Non-Trust Mortgage Loan), that the Master
Servicer or the Special Servicer, as the case may be, or any Affiliate thereof,
may have with any of the related Mortgagors, or any Affiliate thereof, or any
other party to this Agreement, (B) the ownership of any Certificate or any
direct or indirect interest in a Non-Trust Mortgage Loan 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 thereof, 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".
"Significant Obligor" shall mean: (a) any obligor (as defined in
Item 1101(i) of Regulation AB) or group of affiliated obligors on any Trust
Mortgage Loan or group of Trust Mortgage Loans that represent, as of the Closing
Date, 10% or more of the Mortgage Pool (by Cut-off Date Balance); or (b) any
single Mortgaged Property or group of Mortgaged Properties securing any Trust
Mortgage Loan or group of cross-collateralized and/or cross-defaulted Trust
Mortgage Loans that represent, as of the Closing Date, 10% or more of the
Mortgage Pool (by Cut-off Date Balance). The 1301 Avenue of the Americas
Mortgagor and the 1301 Avenue of the Americas Mortgaged Property each constitute
the only Significant Obligors.
"Single Certificate" shall mean, for purposes of Section 4.02, a
hypothetical Regular Interest Certificate evidencing an initial $1,000
denomination.
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"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 6.09(d) and
Section 7.01(e) (insofar as such sections contemplate multiple parties acting as
Special Servicer), LNR, 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 Servicer Reportable Event" shall mean any of the following
events, conditions, circumstances and/or matters:
(i) the entry into or amendment to a definitive agreement that
is material to the Subject Securitization Transaction, including, for
example, a servicing agreement with a Servicer contemplated by Item
1108(a)(3) of Regulation AB, but only if the Special Servicer or any
Servicing Representative of the Special Servicer is a party to such
agreement or has entered into such agreement on behalf of the Trust;
(ii) the termination of a definitive agreement that is material to
the Subject Securitization Transaction (otherwise than by expiration of
the agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), but only if the
Special Servicer or any Servicing Representative of the Special Servicer
is a party to such agreement or has entered into such agreement on behalf
of the Trust;
(iii) the appointment of a receiver, fiscal agent or similar
officer for any Material Debtor in a proceeding under the U.S. Bankruptcy
Code or in any other proceeding under state or federal law in which a
court or governmental authority has assumed jurisdiction over
substantially all of the assets or business of any Material Debtor,
including where such jurisdiction has been assumed by leaving the existing
directors and officers in possession but subject to the supervision and
orders of a court or governmental authority, but only if the subject
Material Debtor is (A) the Special Servicer, (B) any Servicing
Representative of the Special Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Specially Serviced Mortgage Loan;
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(iv) the entry of an order confirming a plan of reorganization,
arrangement or liquidation of a Material Debtor by a court or governmental
authority having supervision or jurisdiction over substantially all of the
assets or business of such Material Debtor, but only if the subject
Material Debtor is (A) the Special Servicer, (B) any Servicing
Representative of the Special Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Specially Serviced Mortgage Loan;
(v) any resignation, removal, replacement or substitution of (A)
the Special Servicer or (B) any Servicing Representative of the Special
Servicer that constitutes a Servicer contemplated by Item 1108(a)(2) of
Regulation AB;
(vi) any appointment of (A) a new Special Servicer or (B) any new
Servicing Representative of the Special Servicer that constitutes a
Servicer contemplated by Item 1108(a)(2) of Regulation AB;
(vii) any nonpublic disclosure, by the Special Servicer or any
Servicing Representative of the Special Servicer, with respect to the
Subject Securitization Transaction (other than disclosure required by this
Agreement) that is required to be disclosed by Regulation FD (17 CFR
243.100 through 243.103);
(viii) any other information of importance to Certificateholders
(determined by the Special Servicer in accordance with the Servicing
Standard) that (A) is not otherwise required to be included in the
Distribution Date Statement or any other report to be delivered or
otherwise made available to Certificateholders hereunder, (B) the Special
Servicer has determined, in accordance with the Servicing Standard, could
have an adverse effect on payments to any Class of Certificateholders, and
(C) is directly related to a Specially Serviced Mortgage Loan;
(ix) the commencement or termination of, or any material
developments regarding, any legal proceedings pending against any Material
Litigant, or of which any property of a Material Litigant is the subject,
or any threat by a governmental authority to bring any such legal
proceedings, that are material to Certificateholders, but only if the
Special Servicer is controlling the subject litigation or if the subject
Material Litigant is (A) the Special Servicer, (B) any Servicing
Representative of the Special Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Specially Serviced Mortgage Loan;
(x) the receipt by the Special Servicer or by any Servicing
Representative of the Special Servicer of any updated financial
statements, balance sheets, rent rolls or other financial information
regarding any Significant Obligor with respect to a Specially Serviced
Mortgage Loan; and
(xi) to the extent not otherwise disclosed in the Prospectus
Supplement or previously included in a report delivered by the Special
Servicer to the Trustee and the Depositor in accordance with Section
8.15(b), whether the Special Servicer has become an affiliate (as defined
in Rule 405 of the Securities Act) of any of (A) the Trustee, (B) the
Master Servicer, (C) any Servicing Representative of the Special Servicer
that constitutes a Servicer contemplated by Item 1108(a)(3) of Regulation
AB or (D) any Significant Obligor.
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"Special Servicing Fee" shall mean, with respect to each Specially
Serviced 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).
"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, 0.35% per annum (provided that there shall be a
minimum Special Servicing Fee with respect to each Specially Serviced Mortgage
Loan, each REO Mortgage Loan that relates to an Administered REO Property and
each entire Serviced Loan Combination in the event they constitute Specially
Serviced Mortgage Loans or REO Mortgage Loans, as set forth in Section 3.11(c)).
"Specially Designated Mortgage Loan Documents" shall mean, with
respect to any Trust Mortgage Loan, the following documents collectively:
(i) the original executed Mortgage Note for such Trust Mortgage
Loan (or, alternatively, if the original executed Mortgage
Note has been lost, a lost note affidavit and indemnity with
a copy of such Mortgage Note);
(ii) an original or copy of the Mortgage (with or without
recording information);
(iii) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such
Trust Mortgage Loan (or, if such policy has not been issued,
a "marked-up" pro forma title policy, or an irrevocable,
binding commitment to issue such title insurance policy);
(iv) an original or copy of any Ground Lease and Ground Lease
estoppels, if any, relating to such Trust Mortgage Loan; and
(v) with respect to Trust Mortgage Loans secured by hospitality
properties only, the related franchise agreement (if any)
and franchisor comfort letter (if any).
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provided that whenever the term "Specially Designated Mortgage Loan Documents"
is used to refer to documents actually received by the Trustee or by a Custodian
on its behalf, such term, with respect to any receipt or certification by the
Trustee or a Custodian on its behalf for documents described in clauses (iv) and
(v) of this definition, shall be deemed to include such documents only to the
extent the Trustee or a Custodian on its behalf has actual knowledge of their
existence; and provided, further, that the only Specially Designated Mortgage
Loan Document with respect to each of the Outside Serviced Trust Mortgage Loans
shall be the document described in clause (i) of this definition.
"Specially Designated Non-Trust Mortgage Loan Securities" shall mean
any Non-Trust Mortgage Loan Securities backed, either solely or together with
one or more other mortgage assets, by a Specially Designated Securitized
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect thereto.
"Specially Designated Securitized Non-Trust Mortgage Loan" shall
mean any Pari Passu Non-Trust Mortgage Loan, with an unpaid principal balance as
of the Closing Date of $20,000,000 or more, that is included in a rated
commercial mortgage securitization.
"Specially Designated Servicing Action" means:
(a) with respect to each Serviced Loan Combination or any
related REO Property, any of the particular actions specified in the first
paragraph of Section 3.02(a) of the related Co-Lender Agreement as to
which the related Serviced Loan Combination Controlling Party has consent
rights; and
(b) with respect to each other Serviced Mortgage Loan and
Administered REO Property, any of the following actions--
(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,
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(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 acceptance of an assumption agreement releasing
a Mortgagor from liability under any Serviced Mortgage Loan; and
(x) acceptance of a change in the property management
company for a Serviced Trust Mortgage Loan with an unpaid principal
balance greater than $10,000,000.
"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 which failure the Master Servicer or (with the
consent of the Controlling Class Representative) the Special Servicer
determines, in each case in accordance with the Servicing Standard, will
continue, unremedied (without regard to any grace period) by the related
Mortgagor, any related guarantor or otherwise (including, in the case of a
Serviced Combination Trust Mortgage Loan, by a related Serviced Non-Trust
Mortgage Loan Noteholder exercising any cure rights under the related
Co-Lender Agreement and, in the case of a Split Trust Mortgage Loan, by
the Class IUU Representative pursuant to this Agreement) (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 on which 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); or
(b) there shall have occurred a default (other than as described
in clause (a) above and other than an Acceptable Insurance Default) that
the Master Servicer or the Special Servicer has determined, in each case
in accordance with the Servicing Standard, (i) materially impairs the
value of the related Mortgaged Property as security for such Serviced
Mortgage Loan or otherwise materially adversely affects the interests of
Certificateholders (or, in the case of a Serviced Non-Trust Mortgage Loan,
the interests of the related Serviced Non-Trust Mortgage Loan Noteholder)
(it being acknowledged and agreed that any default requiring a Servicing
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Advance shall be deemed to materially and adversely affect the interests
of Certificateholders or, in the case of a Serviced Non-Trust Mortgage
Loan, the interests of the related Serviced Non-Trust Mortgage Loan
Noteholder), and (ii) continues unremedied by the related Mortgagor, any
related guarantor or otherwise (including, in the case of a Serviced
Combination Trust Mortgage Loan, by a related Serviced Non-Trust Mortgage
Loan Noteholder exercising any cure rights under the related Co-Lender
Agreement and, in the case of a Split Trust Mortgage Loan, by the Class
IUU Representative pursuant to this Agreement) for either (A) one Business
Day (but only if, pursuant to the related loan documents, the subject
default gives rise to immediate acceleration without application of a cure
period under such Serviced Mortgage Loan) or (B) otherwise, the greater of
(1) the applicable grace period under the terms of such Serviced Mortgage
Loan and (2) 30 days; or
(c) the Master Servicer or, with the consent of the Controlling
Class Representative, the Special Servicer shall have determined, in
accordance with the Servicing Standard, that (i) a default in the making
of a Monthly Payment on such Serviced Mortgage Loan, including a Balloon
Payment, is likely to occur and is likely to remain unremedied (without
regard to any grace period) by the related Mortgagor, any related
guarantor or otherwise (including, in the case of a Serviced Combination
Trust Mortgage Loan, by a related Serviced Non-Trust Mortgage Loan
Noteholder exercising any cure rights under the related Co-Lender
Agreement and, in the case of a Split Trust Mortgage Loan, by the Class
IUU Representative pursuant to this Agreement) for at least the applicable
period contemplated by clause (a) of this definition or (ii) a default
(other than as described in clause (a) of this definition and other than
an Acceptable Insurance Default) is likely to occur under such Mortgage
Loan that will materially impair the value of the related Mortgaged
Property as security for such Serviced Mortgage Loan or otherwise
materially adversely affect the interests of Certificateholders (or, in
the case of a Serviced Non-Trust Mortgage Loan, the related Serviced
Non-Trust Mortgage Loan Noteholder) and such default is likely to remain
unremedied for at least the applicable period contemplated by clause (b)
of this definition; or
(d) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law or the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the related Mortgagor and such decree or
order shall have remained in force and not dismissed for a period of 60
days; or
(e) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to such Mortgagor or of or relating to all or substantially all
of its property; or
(f) the related Mortgagor shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
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(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the
related Mortgaged Property;
provided, however, that a Serviced Mortgage Loan will cease to be a Specially
Serviced Mortgage Loan when a Liquidation Event has occurred with respect to
such Serviced Mortgage Loan, when the related Mortgaged Property has become an
REO Property or, so long as at such time no circumstance identified in clauses
(a) through (g) above exists that would cause such Serviced Mortgage Loan to
continue to be characterized as a Specially Serviced Mortgage Loan, when:
(w) with respect to the circumstances described in clause (a) of
this definition, the related Mortgagor has made three
consecutive full and timely Monthly Payments under the terms
of such Mortgage Loan (as such terms may be changed or
modified in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or by reason of a
modification, extension, waiver or amendment granted or
agreed to by the Master Servicer or the Special Servicer
pursuant to Section 3.20);
(x) with respect to the circumstances described in clause (b) of
this definition, the default is cured in the good faith,
reasonable judgment of the Special Servicer;
(y) with respect to the circumstances described in clauses (c),
(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;
(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.
Except as provided below in this sentence, if any Mortgage Loan that is part of
a Serviced Loan Combination becomes a Specially Serviced Mortgage Loan, then the
other Mortgage Loan or each of the other Mortgage Loans, as the case may be, in
such Loan Combination shall also become a Specially Serviced Mortgage Loan;
provided that if, subject to the terms, conditions and limitations of the
related Co-Lender Agreement, a Serviced Non-Trust Mortgage Loan Noteholder
prevents the occurrence of a Servicing Transfer Event with respect to the
related Serviced Combination Trust Mortgage Loan through the exercise of any
cure rights granted under the related Co-Lender Agreement with respect to such
Serviced Combination Trust Mortgage Loan, then the existence of such Servicing
Transfer Event with respect to the related Serviced Non-Trust Mortgage Loan
(because any such cure rights do not include the cure of defaults under the
related Serviced Non-Trust Mortgage Loan) will not, in and of itself, result in
any Mortgage Loan that is part of the subject Serviced Loan Combination becoming
a Specially Serviced Mortgage Loan (provided that a separate Servicing Transfer
Event may occur with respect thereto).
None of the Outside Serviced Mortgage Loans shall constitute a
Specially Serviced Mortgage Loan hereunder.
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"Specially Serviced Trust Mortgage Loan" shall mean any Trust
Mortgage Loan that is a Specially Serviced Mortgage Loan.
"Split REO Trust Mortgage Loan" shall mean any successor REO Trust
Mortgage Loan in respect of a Split Trust Mortgage Loan.
"Split Trust Mortgage Loans" shall mean, collectively, the Intel
Corporate Building Trust Mortgage Loan, the U-Haul-26 Facilities Portfolio Trust
Mortgage Loan and the U-Haul-SAC Portfolio Trust Mortgage Loan, as applicable.
"Startup Day" shall mean, with respect to each REMIC Pool, the day
designated as such in Section 10.01(c).
"Stated Maturity Date" shall mean, with respect to any Mortgage
Loan, the Due Date specified in the related Mortgage Note (as in effect on the
Closing Date) on which the last payment of principal is due and payable under
the terms of such Mortgage Note (as in effect on the Closing Date), without
regard to any change in or modification of such terms in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, extension, waiver or amendment of such Mortgage Loan granted or
agreed to by the Special Servicer (or the Master Servicer, if applicable)
pursuant to Section 3.20 (or, in the case of an Outside Serviced Trust Mortgage
Loan, by the applicable Outside Servicer pursuant to the related Outside
Servicing Agreement) and, in the case of an ARD Mortgage Loan, without regard to
its Anticipated Repayment Date.
"Stated Principal Balance" shall mean: (a) with respect to any Trust
Mortgage Loan (and any successor REO Trust Mortgage Loan with respect thereto),
the Cut-off Date Balance of such Trust Mortgage Loan, as permanently reduced on
each Distribution Date (to not less than zero) by (i) that portion, if any, of
the Principal Distribution Amount for such Distribution Date allocable to such
Trust Mortgage Loan (or any such successor REO Trust Mortgage Loan with respect
thereto), without giving effect to any adjustments pursuant to Section 1.03 in
connection with the calculation of the Adjusted Net Principal Distribution
Amount, and (ii) the principal portion of any Realized Loss incurred in respect
of such Trust Mortgage Loan (or any such successor REO Trust Mortgage Loan with
respect thereto) during the applicable related Collection Period (or, in the
case of a forgiveness of principal, a Permitted Purchase under the related
Outside Servicing Agreement and/or the related Co-Lender Agreement for less than
the related Purchase Price or a Final Recovery Determination with respect to an
Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto, during the related Underlying Collection Period) (provided
that, if some or all of the principal portion of such Realized Loss constitutes
an Advance that previously reduced the Stated Principal Balance of such Trust
Mortgage Loan by operation of clause (i) above, then the amount of that Advance
included in the principal portion of such Realized Loss shall not further reduce
the Stated Principal Balance of such Trust Mortgage Loan under this clause
(ii)); and (b) with respect to any Serviced Non-Trust Mortgage Loan (and any
successor REO Mortgage Loan with respect thereto), the Cut-off Date Balance of
such Non-Trust Mortgage Loan, as permanently reduced on each related Master
Servicer Remittance Date (to not less than zero) by (i) any principal amounts in
respect of such Non-Trust Mortgage Loan (or any such successor REO Mortgage Loan
with respect thereto) distributed to the related Non-Trust Mortgage Loan
Noteholder on such Master Servicer Remittance Date, and (ii) the principal
portion of any Realized Loss incurred in respect of such Non-Trust Mortgage Loan
(or any such successor REO Mortgage Loan with respect thereto) in connection
with a Liquidation Event or the forgiveness of
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principal during the related Collection Period. Notwithstanding the foregoing,
if a Liquidation Event occurs in respect of any Mortgage Loan or any related REO
Property, then the "Stated Principal Balance" of such Mortgage Loan or of any
successor REO Mortgage Loan with respect thereto, as the case may be, shall be
zero commencing as of the first Distribution Date (or, in the case of a Serviced
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect thereto,
the first related Master Servicer Remittance Date) following the end of the
applicable Collection Period in which such Liquidation Event occurred; provided
that, in the case of an Outside Serviced Trust Mortgage Loan or any successor
REO Trust Mortgage Loan with respect thereto, if the subject Liquidation Event
is a Final Recovery Determination made by the applicable Outside Servicer with
respect to, or a Permitted Purchase under the related Outside Servicing
Agreement and/or the related Co-Lender Agreement of, 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 related Underlying
Collection Period.
"STML Available Distribution Amount" shall mean, with respect to any
Split Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with respect
thereto) Distribution Date, an amount equal to the following:
(a) the sum, without duplication, of (i) any payments and other
collections on or with respect to such Split Trust Mortgage Loan or any
related REO Property (including Loss of Value Payments with respect to
such Split Trust Mortgage Loan) 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 P&I Advance made by the Master Servicer, the
Trustee and/or a Fiscal Agent with respect to such Split Trust Mortgage
Loan or any successor REO Trust Mortgage Loan with respect thereto for
distribution on the Certificates on such Distribution Date pursuant to
Section 4.03, (iii) the amount deposited by the Master Servicer in the
Collection Account for such Distribution Date pursuant to Section 3.19(a)
in connection with any Prepayment Interest Shortfall on such Split Trust
Mortgage Loan, (iv) to the extent not included in the amount described in
clause (a)(i) of this definition, if such Distribution Date is the Final
Distribution Date, the aggregate amount transferred from the Loss of Value
Reserve Fund to the Collection Account with respect to such Split Trust
Mortgage Loan or any related REO Property pursuant to Section 3.05(e) in
respect of such Distribution Date, and (v) to the extent not included in
clause (a)(i) of this definition, if such Distribution Date occurs during
the calendar month of March, any and all Interest Reserve Amounts
transferred from the Interest Reserve Account to the Collection Account in
respect of such Split Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto 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)
scheduled Monthly Payments with respect to such Split Trust Mortgage Loan
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 from payments and other collections with respect to
such Split Trust Mortgage Loan or any related REO Property pursuant to
clauses (ii) through (v) and (viii) of Section 3.05(b), (iii) Prepayment
Consideration with respect to such Split Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto, (iv) if such
Distribution Date occurs during the calendar month of January (except in a
leap year) or during the calendar month of February, the Interest Reserve
Amount with respect to such Split Trust Mortgage Loan or any successor REO
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Trust Mortgage Loan with respect thereto to be withdrawn from the
Collection Account and deposited in 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 with respect to such Split Trust Mortgage Loan or any related REO
Property in error.
"STML Change of Control Event" shall mean, with respect to any Split
Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto, the event that exists when, as of any date of determination, (a) the
Uncertificated Principal Balance of the related STML Group B REMIC I Regular
Interest, reduced (to not less than zero) by any then existing Appraisal
Reduction Amount with respect to such Split Trust Mortgage Loan or any successor
REO Trust Mortgage Loan with respect thereto, is less than (b) 25% of an amount
equal to the initial Uncertificated Principal Balance of the related STML Group
B REMIC I Regular Interest, reduced (to not less than zero) by principal
payments made by the related Mortgagor on such Split Trust Mortgage Loan that
were allocated to the related STML Group B REMIC I Regular Interest pursuant to
clause (v) of the first paragraph of Section 4.01(m).
"STML Group A REMIC I Regular Interest" shall mean any of REMIC I
Regular Interest ICB-A, REMIC I Regular Interest UH-26-A and REMIC I Regular
Interest UH-SAC-A.
"STML Group B REMIC I Regular Interest" shall mean any of REMIC I
Regular Interest ICB-B, REMIC I Regular Interest UH-26-B and REMIC I Regular
Interest UH-SAC-B.
"STML Payment Application Trigger Event" shall mean, with respect to
any Split Trust Mortgage Loan, any of the following events, circumstances or
conditions: (i) the existence of a monetary event of default with respect to
such Split Trust Mortgage Loan as to which the Class IUU Representative or any
designee thereof has not made a cure payment in accordance with Section 3.27;
(ii) the existence of a non-monetary mortgage event of default at a time when
such Split Trust Mortgage Loan is a Specially Serviced Trust Mortgage Loan; or
(iii) an REO Acquisition has occurred with respect to the related Mortgaged
Property or Properties, as applicable.
"STML Principal Distribution Amount" shall mean, with respect to any
Split Trust Mortgage Loan or Split REO Trust Mortgage Loan, for any Distribution
Date, the portion of the Principal Distribution Amount for such Distribution
Date that is allocable to such Split Trust Mortgage Loan or such Split REO Trust
Mortgage Loan, as the case may be.
"STML Special Servicer" shall mean any special servicer hereunder
responsible for special servicing a Split Trust Mortgage Loan or any related REO
Property; provided that, if such special servicer has special servicing
responsibilities with respect to other Serviced Mortgage Loans and/or
Administered REO Properties, then the term STML Special Servicer shall refer to
such party only to the extent of its rights, duties and obligations in respect
of a Split Trust Mortgage Loan or any related REO Property.
"Subject Securitization Transaction" shall mean the commercial
mortgage securitization transaction contemplated by this Agreement.
"Subordinate Certificate" shall mean any Class A-M, Class A-J, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class P, Class Q, Class S or Class T Certificate, any Class
IUU Certificate or any Residual Interest Certificate.
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"Subordinate Non-Trust Mortgage Loan Noteholder" shall mean the
holder of the Mortgage Note for a Subordinate Non-Trust Mortgage Loan.
"Subordinate Non-Trust Mortgage Loans" shall mean, collectively, the
000 Xxxxxxx Xxxxxx Note B Non-Trust Mortgage Loan and the Serviced Note B
Non-Trust Mortgage Loans.
"Sub-Servicer" shall mean any Person engaged by the Master Servicer
or the Special Servicer to perform servicing functions with respect to one or
more Mortgage Loans or REO Properties.
"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.
"Sub-Servicing Function Participant" shall mean any Sub-Servicer,
sub-contractor, vendor, agent or other Person acting on behalf of a party
hereto, which Sub-Servicer, sub-contractor, vendor, agent or other Person is a
"party participating in the servicing function" (within the meaning of the
instructions to Item 1122 of Regulation AB) as regards the Trust Fund.
"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 Interest Reserve Amount" shall mean, with respect to
each Interest Reserve Mortgage Loan, an amount equal to one day's interest at
the related Mortgage Rate (or, in the case of a Split Trust Mortgage Loan, at
the Deemed Fixed Gross Rate for the related STML Group A REMIC I Regular
Interest) on the related Cut-off Date Balance (or, in the case of a Split Trust
Mortgage Loan, on the initial Uncertificated Principal Balance of the related
STML Group A REMIC I Regular Interest).
"Supplemental Report" shall mean have the meaning assigned thereto
in Section 3.12(d).
"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 (if created hereunder taking into account Section
2.05(b)) due to its classification as a grantor trust under the Grantor Trust
Provisions, together with any and all other information, reports or
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returns that may be required to be furnished to the Certificateholders or filed
with the IRS under any applicable provisions of federal tax law or any other
governmental taxing authority under applicable state and local tax law.
"Total Principal Reinstatement Amount" shall mean, with respect to
any Distribution Date, an amount (to be calculated by the Trustee immediately
following, and after taking into account, all distributions to be made with
respect to the Certificates on such Distribution Date) equal to the lesser of:
(1) the amount, if any, by which (a) the aggregate Stated Principal Balance of
the Mortgage Pool (net of the aggregate Uncertificated Principal Balance of the
STML Group B REMIC I Regular Interests) 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
(exclusive of the Class IUU Certificates), after taking into account the
distributions made with respect to the Certificates on the subject Distribution
Date, but prior to any adjustments to the Class Principal Balances of the
respective Classes of Principal Balance Certificates pursuant to Section 4.04 or
Section 4.05; and (2) the amount, if any, by which (a) the aggregate Loss
Reimbursement Amount in respect of all the Classes of Principal Balance
Certificates (exclusive of the Class IUU Certificates) for the subject
Distribution Date, exceeds (b) the total portion of such aggregate Loss
Reimbursement Amount reimbursed in respect of all of the Classes of Principal
Balance Certificates (exclusive of the Class IUU Certificates) on the subject
Distribution Date, if any, pursuant to Section 4.01(a) and/or Section 4.01(b).
"Transfer" shall mean any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement" shall have the meaning assigned
thereto in Section 5.02(d)(i)(B).
"Transferee" shall mean any Person who is acquiring, by Transfer,
any Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing of, by Transfer,
any Ownership Interest in a Certificate.
"Triangle Town Center Change of Control Event" shall mean any
Serviced Loan Combination Change of Control Event with respect to the Triangle
Town Center Loan Combination.
"Triangle Town Center Co-Lender Agreement" shall mean the Co-Lender
Agreement dated as of January 6, 2006, between UBS Real Estate Investments Inc.
as holder of the Mortgage Note for the Triangle Town Center Trust Mortgage Loan
and UBS Real Estate Investments Inc. as holder of the Mortgage Note for the
Triangle Town Center Note B Non-Trust Mortgage Loan.
"Triangle Town Center Collection Period" shall mean, with respect to
any Distribution Date, Trust Master Servicer Remittance Date or Triangle Town
Center Master Servicer Remittance Date, the period commencing on the day
immediately following the Triangle Town Center Determination Date in the
calendar month preceding the month in which such Distribution Date, Trust Master
Servicer Remittance Date or Triangle Town Center Master Servicer Remittance
Date, as the case may be, occurs (or, in the case of each of the initial
Distribution Date, the initial Trust Master Servicer Remittance Date or the
initial Triangle Town Center Master Servicer Remittance Date, as the case may
be, commencing immediately following the Cut-off Date) and ending on and
including the Triangle
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Town Center Determination Date in the calendar month in which such Distribution
Date, Trust Master Servicer Remittance Date or Triangle Town Center Master
Servicer Remittance Date, as the case may be, occurs.
"Triangle Town Center Controlling Party" shall mean the Serviced
Loan Combination Controlling Party with respect to the Triangle Town Center Loan
Combination.
"Triangle Town Center Cure Rights" shall mean the cure rights
granted to the Triangle Town Center Note B Non-Trust Mortgage Loan Noteholder
under Article VII of the Triangle Town Center Co-Lender Agreement.
"Triangle Town Center Determination Date" shall mean, during any
calendar month, commencing with February 2006, the Due Date for the Triangle
Town Center Loan Combination during that calendar month.
"Triangle Town Center Directing Lender" shall mean the Serviced Loan
Combination Directing Lender with respect to the Triangle Town Center Loan
Combination.
"Triangle Town Center Master Servicer Remittance Date" shall mean,
during any calendar month, commencing with February 2006, the Business Day
immediately following the Due Date for the Triangle Town Center Loan Combination
during that calendar month.
"Triangle Town Center Loan Combination" shall mean the Serviced Loan
Combination consisting of the Triangle Town Center Trust Mortgage Loan and the
Triangle Town Center Note B Non-Trust Mortgage Loan (or any successor REO
Mortgage Loans with respect thereto).
"Triangle Town Center Mortgage Loan" shall mean the Triangle Town
Center Trust Mortgage Loan or the Triangle Town Center Note B Non-Trust Mortgage
Loan, as applicable.
"Triangle Town Center Mortgaged Property" shall mean the Mortgaged
Property identified on the Trust Mortgage Loan Schedule as Triangle Town Center.
"Triangle Town Center Note B Non-Trust Mortgage Loan" shall mean the
Serviced Note B Non-Trust Mortgage Loan that is, together with the Triangle Town
Center Trust Mortgage Loan, secured by the same Mortgage on the Triangle Town
Center Mortgaged Property.
"Triangle Town Center Note B Non-Trust Mortgage Loan Noteholder"
shall mean the holder (or, if applicable, the collective holders) of the
Mortgage Note for the Triangle Town Center Note B Non-Trust Mortgage Loan.
"Triangle Town Center Noteholders" shall mean the holder of the
Mortgage Note for the Triangle Town Center Trust Mortgage Loan, together with
the Triangle Town Center Note B Non-Trust Mortgage Loan Noteholder.
"Triangle Town Center Special Servicer" shall mean any special
servicer hereunder responsible for special servicing the Triangle Town Center
Loan Combination or any related REO Property; provided that, if such special
servicer has special servicing responsibilities with respect to other Serviced
Mortgage Loans and/or Administered REO Properties, then the term Triangle Town
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Center Special Servicer shall refer to such party only to the extent of its
rights, duties and obligations in respect of the Triangle Town Center Loan
Combination or any related REO Property.
"Triangle Town Center Trust Mortgage Loan" shall mean the Trust
Mortgage Loan that is secured by the Triangle Town Center Mortgaged Property and
that is identified on the Trust Mortgage Loan Schedule by loan number 3.
"Trust" shall mean the common law trust created hereunder.
"Trust Collection Period" shall mean, with respect to any
Distribution Date or Trust Master Servicer Remittance Date, the period
commencing on the day immediately following the Trust Determination Date in the
calendar month preceding the month in which such Distribution Date or Trust
Master Servicer Remittance Date, as the case may be, occurs (or, in the case of
each of the initial Distribution Date and the initial Trust Master Servicer
Remittance Date, commencing immediately following the Cut-off Date) and ending
on and including the Trust Determination Date in the calendar month in which
such Distribution Date or Trust Master Servicer Remittance Date, as the case may
be, occurs.
"Trust Determination Date" shall mean the 11th calendar day of each
month (or, if such 11th day is not a Business Day, the Business Day immediately
following), commencing in February 2006.
"Trust Fund" shall mean, collectively, all of the assets of the
REMIC Pools, the Grantor Trust (if created hereunder taking into account Section
2.05(b)) and the Loss of Value Reserve Fund.
"Trust Master Servicer Remittance Date" shall mean the date each
month, commencing in February 2006, 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 the Distribution Date
in such month.
"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. Notwithstanding the
foregoing, if any of the mortgage loans listed on the Trust Mortgage Loan
Schedule are, in accordance with their terms or pursuant to any modification,
waiver or amendment agreed to in accordance with Section 3.20, severed or split
into two or more mortgage loans that are to remain part of the Trust Fund, then
such two or more mortgage loans shall constitute separate "Trust Mortgage Loans"
for all purposes hereof, except that such mortgage loans will collectively
constitute the "Trust Mortgage Loan" that relates to the applicable REMIC I
Regular Interest and/or any applicable Loan REMIC Regular Interest.
"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;
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(ii) the street address (including city, state and zip code) and
name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due Date
following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity Date;
(vii) in the case of a Balloon Trust Mortgage Loan, the remaining
amortization term;
(viii) the Interest Accrual Basis;
(ix) the (A) Administrative Cost Rate and (B) if such Trust
Mortgage Loan is an Outside Serviced Mortgage Loan, the
related Outside Servicing Fee Rate;
(x) whether such Trust Mortgage Loan is secured by a Ground
Lease;
(xi) the related Mortgage Loan Seller;
(xii) whether such Trust Mortgage Loan is a Defeasance Mortgage
Loan;
(xiii) whether such Trust Mortgage Loan is an ARD Mortgage Loan
and, if so, the Anticipated Repayment Date and Additional
Interest Rate; and
(xiv) whether such Trust Mortgage Loan is a Cross-Collateralized
Mortgage Loan and the Cross-Collateralized Group to which it
belongs.
"Trustee" shall mean LaSalle, in its capacity as trustee hereunder,
or any successor trustee appointed as herein provided.
"Trustee Account" shall have the meaning assigned thereto in Section
3.06(a).
"Trustee Appointee" shall mean any Fiscal Agent, Authenticating
Agent, Certificate Registrar, Tax Administrator, Custodian, co-trustee or
separate trustee appointed or designated by the Trustee hereunder.
"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 annual 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 0.0004% per annum.
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"Trustee Indemnification Agreement" shall mean the Trustee
Indemnification Agreement dated as of January 20, 2006, between the initial
Trustee, the Depositor, Xxxxxx Brothers Inc. and UBS Real Estate Investments
Inc.
"Trustee Liability" shall have the meaning assigned thereto in
Section 8.05(b).
"Trustee Reportable Event" shall mean any of the following events,
conditions, circumstances and/or matters:
(i) the entry into or amendment to a definitive agreement that
is material to the Subject Securitization Transaction, including, for
example, a servicing agreement with a Servicer contemplated by Item
1108(a)(3) of Regulation AB, but only if the Trustee, any Servicing
Representative or other agent of the Trustee or any Trustee Appointee is a
party to such agreement or has entered into such agreement on behalf of
the Trust;
(ii) the termination of a definitive agreement that is material
to the Subject Securitization Transaction (otherwise than by expiration of
the agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), but only if the
Trustee, any Servicing Representative or other agent of the Trustee or any
Trustee Appointee is a party to such agreement or has entered into such
agreement on behalf of the Trust;
(iii) the appointment of a receiver, fiscal agent or similar
officer for any Material Debtor in a proceeding under the U.S. Bankruptcy
Code or in any other proceeding under state or federal law in which a
court or governmental authority has assumed jurisdiction over
substantially all of the assets or business of any Material Debtor,
including where such jurisdiction has been assumed by leaving the existing
directors and officers in possession but subject to the supervision and
orders of a court or governmental authority, but only if the subject
Material Debtor is (A) the Trustee, (B) any Servicing Representative of
the Trustee that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, (C) any Trustee Appointee, (D) any Enhancement/Support
Provider or (E) the Trust;
(iv) the entry of an order confirming a plan of reorganization,
arrangement or liquidation of a Material Debtor by a court or governmental
authority having supervision or jurisdiction over substantially all of the
assets or business of such Material Debtor, but only if the subject
Material Debtor is (A) the Trustee, (B) any Servicing Representative of
the Trustee that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, (C) any Trustee Appointee, (D) any Enhancement/Support
Provider or (E) the Trust;
(v) any event that has occurred hereunder that would materially
alter the payment priority or distribution of cash flows regarding the
Certificates;
(vi) any material modification to the rights of the Holders of
any Class of Certificates, including by reason of a modification to this
Agreement, a Mortgage Loan Purchase Agreement or any other constituent
instrument;
(vii) any material limitation or qualification of the rights
evidenced by any Class of Certificates by reason of the modification of
any other Class of Certificates;
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(viii) any amendment to this Agreement pursuant to Section 11.01;
(ix) any resignation, removal, replacement or substitution of (A)
the Trustee, the Master Servicer or the Special Servicer or (B) any
Servicing Representative of the Trustee that constitutes a Servicer
contemplated by Item 1108(a)(2) of Regulation AB;
(x) any appointment of (A) a new Trustee, new Master Servicer or
new Special Servicer or (B) any new Servicing Representative of the
Trustee that constitutes a Servicer contemplated by Item 1108(a)(2) of
Regulation AB;
(xi) any termination of a material enhancement or support
specified in Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of
Regulation AB that was previously applicable regarding one or more Classes
of the Certificates, which termination has occurred other than by
expiration of the contract on its stated termination date or as a result
of all parties completing their obligations under such agreement;
(xii) any addition of a material enhancement or support specified
in Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation
AB with respect to one or more Classes of the Certificates;
(xiii) any material amendment or modification of a material
enhancement or support specified in Item 1114(a)(1) through (3) of
Regulation AB or Item 1115 of Regulation AB with respect to one or more
Classes of the Certificates;
(xiv) any material failure on the part of the Trustee to make on
the applicable Distribution Date any required monthly distributions to the
Holders of any Class of Certificates;
(xv) any nonpublic disclosure with respect to the Subject
Securitization Transaction that is required to be disclosed by Regulation
FD (17 CFR 243.100 through 243.103) and that is directly related to the
obligations of the Trustee hereunder;
(xvi) any other information of importance to Certificateholders
that is not otherwise required to be included in the Distribution Date
Statement or any other report to be delivered or otherwise made available
to Certificateholders hereunder and that is directly related to the
obligations of the Trustee hereunder;
(xvii) the commencement or termination of, or any material
developments regarding, any legal proceedings pending against any Material
Litigant, or of which any property of a Material Litigant is the subject,
or any threat by a governmental authority to bring any such legal
proceedings, that are material to Certificateholders, but only if the
Trustee is controlling the subject litigation or if the subject Material
Litigant is (A) the Trustee, (B) any Servicing Representative of the
Trustee that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, (C) any Trustee Appointee, (D) any Enhancement/Support
Provider or (E) the Trust;
(xviii) any material default in the payment of principal and
interest on, or any other material default with respect to, any Class of
Certificates;
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(xix) the submission of any matter to a vote by
Certificateholders;
(xx) the receipt by the Trustee or by any Servicing
Representative or other agent of the Trustee of any updated information
regarding an Enhancement/Support Provider with respect to any Class of
Certificates that is required pursuant to Item 1114(b)(2) or Item 1115(b)
of Regulation AB; and
(xxi) to the extent not otherwise disclosed in the Prospectus
Supplement or previously included in an Exchange Act Report in accordance
with this Agreement, whether the Trustee has become an affiliate (as
defined in Rule 405 of the Securities Act) of any of (A) the Master
Servicer, (B) the Special Servicer, (C) any Servicing Representative of
the Trustee that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, (D) any Trustee Appointee, or (E) any Significant Obligor.
"Trust-Related Litigation" shall have the meaning assigned thereto
in Section 3.28(a).
"UBS/Depositor Mortgage Loan Purchase Agreement" shall mean that
certain Mortgage Loan Purchase Agreement dated as of January 20, 2006, between
the UBS Mortgage Loan Seller, UBS Principal Finance LLC and the Depositor.
"UBS Mortgage Loan Seller" shall mean UBS Real Estate Investments
Inc. or its successor in interest.
"UBS Trust Mortgage Loan" shall mean any Trust Mortgage Loan
transferred by the UBS Mortgage Loan Seller to the Depositor, pursuant to the
UBS/Depositor Mortgage Loan Purchase Agreement.
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"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.
"U-Haul-26 Facilities Portfolio Mortgaged Property" shall mean any
of the mortgaged real properties that are collectively identified on the Trust
Mortgage Loan Schedule as U-Haul Portfolio-26 Facilities Portfolio.
"U-Haul-26 Facilities Portfolio Trust Mortgage Loan" shall mean the
Trust Mortgage Loan that is secured by the U-Haul-26 Facilities Portfolio
Mortgaged Properties and that is identified on the Trust Mortgage Loan Schedule
by loan number 23.
"U-Haul-SAC Portfolio Mortgaged Property" shall mean any of the
mortgaged real properties that are collectively identified on the Trust Mortgage
Loan Schedule as U-Haul Portfolio-SAC Portfolio.
"U-Haul-SAC Portfolio Trust Mortgage Loan" shall mean the Trust
Mortgage Loan that is secured by the U-Haul-SAC Portfolio Mortgaged Properties
and that is identified on the Trust Mortgage Loan Schedule by loan number 33.
"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 annual 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 annual REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such Interest
Accrual Period, multiplied by (ii) the Uncertificated Principal Balance of such
REMIC I Regular Interest outstanding immediately prior to the related
Distribution Date; and (c) in the case of any REMIC II Regular Interest for any
Interest Accrual Period, one-twelfth of the product of (i) the annual REMIC II
Remittance Rate applicable to such REMIC II Regular Interest for such Interest
Accrual Period, multiplied by (ii) the Uncertificated Principal Balance of such
REMIC II Regular Interest outstanding immediately prior to the related
Distribution Date. Each Loan REMIC Regular Interest (if any), REMIC I Regular
Interest and REMIC II Regular Interest shall accrue interest on a 30/360 Basis.
"Uncertificated Distributable Interest" shall mean: (a) with respect
to any 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 any portion of any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date attributable to the corresponding
Early Defeasance Trust Mortgage Loan; (b) with respect to any STML Group B 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) the portion, if any, of the Net Aggregate
Prepayment Interest Shortfall, if any, for such Distribution Date that is
attributable to the corresponding Split Trust Mortgage Loan, multiplied by (ii)
a
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fraction, the numerator of which is the portion, if any, of the applicable
principal prepayment or other early recovery of principal of such Split Trust
Mortgage Loan that is deemed distributed to the subject REMIC I Regular Interest
on such Distribution Date pursuant to clause (v) of the first paragraph of
Section 4.01(m), and the denominator of which is the total amount of the
applicable principal prepayment or other early recovery of principal of the
corresponding Split Trust Mortgage Loan, multiplied by (iii) a fraction, the
numerator of which is the Deemed Fixed Gross Rate with respect to the subject
REMIC I Regular Interest (net of the Master Servicing Fee Rate with respect to
the corresponding Split Trust Mortgage Loan), and the denominator of which is
the weighted average of the Deemed Fixed Gross Rates with respect to the subject
REMIC I Regular Interest and the related STML Group A REMIC I Regular Interest
(in each case, net of the Master Servicing Fee Rate with respect to the
corresponding Split Trust Mortgage Loan), with such weighting to be based upon
the respective Uncertificated Principal Balances of the subject REMIC I Regular
Interest and the related STML Group A REMIC I Regular Interest immediately prior
to such Distribution Date; (c) with respect to any other 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 (exclusive of any portion thereof allocable to the STML
Group B REMIC I Regular Interests), 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 (other than the STML
Group B REMIC I Regular Interests) for the related Interest Accrual Period; (d)
with respect to each Group IUU REMIC II Regular Interest for any Distribution
Date, an amount of interest equal to the 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) the
aggregate portion, if any, of the Net Aggregate Prepayment Interest Shortfall,
if any, for such Distribution Date that is allocable to the STML Group B REMIC I
Regular Interests, multiplied by (ii) a fraction, the numerator of which is the
amount of Uncertificated Accrued Interest in respect of the subject REMIC II
Regular Interest for the related Interest Accrual Period, and the denominator of
which is the aggregate amount of Uncertificated Accrued Interest in respect of
all of the Group IUU REMIC II Regular Interests for the related Interest Accrual
Period; and (e) with respect to any other REMIC II Regular Interest for any
Distribution Date, subject to Section 4.05(d), an amount of interest equal to
the amount of Uncertificated Accrued Interest in respect of the subject REMIC II
Regular Interest for the related Interest Accrual Period, reduced (to not less
than zero) by the product of (i) any Net Aggregate Prepayment Interest Shortfall
for such Distribution Date (exclusive of any portion thereof allocable to the
Group IUU REMIC I Regular Interests), multiplied by (ii) a fraction, the
numerator of which is the amount of Uncertificated Accrued Interest in respect
of the subject REMIC II Regular Interest for the related Interest Accrual
Period, and the denominator of which is the aggregate amount of Uncertificated
Accrued Interest in respect of all the REMIC II Regular Interests (other than
the Group IUU REMIC II Regular Interests) for the related Interest Accrual
Period. For purposes of this definition, the portion, if any, of the Net
Aggregate Prepayment Interest Shortfall for any Distribution Date that is
allocable to any Loan REMIC Regular Interest, REMIC I Regular Interest or REMIC
II Regular Interest will equal the amount, if any, by which the Uncertificated
Distributable Interest with respect to such Loan REMIC Regular Interest, REMIC I
Regular Interest or REMIC II Regular Interest, as the case may be, for such
Distribution Date has been reduced as a result of such Net Aggregate Prepayment
Interest Shortfall.
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"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 each Loan REMIC Regular Interest (if
any) shall equal the Cut-off Date Balance of the corresponding Trust Mortgage
Loan; (b) the Uncertificated Principal Balance of REMIC I Regular Interest ICB-A
shall equal $23,960,022; (c) the Uncertificated Principal Balance of REMIC I
Regular Interest ICB-B shall equal $20,039,978; (d) the Uncertificated Principal
Balance of REMIC I Regular Interest UH-26-A shall equal $18,131,353; (e) the
Uncertificated Principal Balance of REMIC I Regular Interest UH-26-B shall equal
$5,457,642; (f) the Uncertificated Principal Balance of REMIC I Regular Interest
UH-SAC-A shall equal $12,454,665; (g) the Uncertificated Principal Balance of
REMIC I Regular Interest UH-SAC-B shall equal $1,795,920; and (h) the
Uncertificated Principal Balance of each other REMIC I Regular Interest shall
equal the Cut-off Date Balance of the corresponding Trust Mortgage Loan. As of
the Closing Date, the Uncertificated Principal Balance of each REMIC II Regular
Interest shall equal the amount set forth in the Preliminary Statement hereto as
its initial Uncertificated Principal Balance. On each Distribution Date, the
Uncertificated Principal Balance of each REMIC II Regular Interest shall be
reduced by all distributions of principal deemed to have been made thereon on
such Distribution Date pursuant to Section 4.01(l), and shall be further reduced
(subject to Section 4.05) on such Distribution Date by all Realized Losses and
Additional Trust Fund Expenses deemed to have been allocated thereto on such
Distribution Date pursuant to Section 4.04(b). On each Distribution Date, the
Uncertificated Principal Balance of each REMIC I Regular Interest shall be
reduced by all distributions of principal deemed to have been made in respect of
such REMIC I Regular Interest on such Distribution Date pursuant to Section
4.01(m), and shall be further reduced on such Distribution Date by all Realized
Losses and Additional Trust Fund Expenses deemed to have been allocated thereto
on such Distribution Date pursuant to Section 4.04(c). On each Distribution
Date, the Uncertificated Principal Balance of each Loan REMIC Regular Interest
(if any) shall be reduced by all distributions of principal deemed to have been
made in respect of such Loan REMIC Regular Interest on such Distribution Date
pursuant to Section 4.01(n), and shall be further reduced on such Distribution
Date by all Realized Losses and Additional Trust Fund Expenses deemed to have
been allocated thereto on such Distribution Date pursuant to Section 4.04(d).
Notwithstanding the foregoing, on any given Distribution Date, the
Uncertificated Principal Balance of any REMIC II Regular Interest shall be
subject to increase (and, when appropriate, shall be increased), as and to the
extent provided in Section 4.05(c).
"Underlying Collection Period" shall mean, with respect to any
Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto, the period under the related Outside Servicing Agreement
that is comparable to a Collection Period hereunder.
"Underwriters" shall mean Xxxxxx Brothers Inc. and UBS Securities
LLC and their respective successors in interest.
"United States Tax Person" shall mean a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any state or the District of
Columbia, or an estate whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust (or to the extent
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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 Rights shall be allocated among the Holders of the various
Classes of the Interest-Only Certificates in proportion to the respective Class
Notional Amounts of their Certificates. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in standard
proportion to the Percentage Interests evidenced by their respective
Certificates. No Voting Rights shall be allocated to the Certificates that are
not Regular Interest Certificates. Notwithstanding the foregoing, solely for
purposes of allocating Voting Rights to the Class IUU Certificates, the
respective Class Principal Balances of the respective Classes of the Class IUU
Certificates will be deemed reduced by their respective shares of any Appraisal
Reduction Amounts in respect of the Split Trust Mortgage Loans and/or any Split
REO Trust Mortgage Loans. The aggregate of (i) any Appraisal Reduction Amount in
respect of the Intel Corporate Building Trust Mortgage Loan or any successor REO
Trust Mortgage Loan with respect thereto, up to the amount of the outstanding
Uncertificated Principal Balance of REMIC I Regular Interest ICB-B, (ii) any
Appraisal Reduction Amount in respect of the U-Haul--26 Facilities Portfolio
Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto, up to the amount of the outstanding Uncertificated Principal Balance of
REMIC I Regular Interest UH-26-B, and (iii) any Appraisal Reduction Amount in
respect of the U-Haul--SAC Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto, up to the amount of the outstanding
Uncertificated Principal Balance of REMIC I Regular Interest UH-SAC-B, shall be
allocated to the Class IUU-10, Class IUU-9, Class IUU-8, Class IUU-7, Class
IUU-6, Class IUU-5, Class IUU-4, Class IUU-3, Class IUU-2 and Class IUU-1
Certificates, in that order, in each case up to the related Class Principal
Balance.
"Wachovia" means Wachovia Bank, National Association or its
successor in interest.
"Weighted Average REMIC I Remittance Rate" shall mean, with respect
to any Interest Accrual Period, the rate per annum equal to the weighted
average, expressed as a percentage and rounded to six decimal places, of the
respective REMIC I Remittance Rates in effect for the REMIC I Regular Interests
(other than the STML Group B 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%.
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"Yield Maintenance Charge" shall mean the amount 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 amount is not otherwise due
thereon in respect of principal or interest and has 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 addition, any Excess Defeasance Deposit Proceeds will not be
considered "Yield Maintenance Charges". In the event that a Yield Maintenance
Charge shall become due for any particular Serviced Mortgage Loan, the Master
Servicer shall be required to follow the terms and provisions contained in the
applicable Mortgage Note, provided, however, that, in the event the particular
Mortgage Note shall not specify the U.S. Treasuries which shall be used in
determining the discount rate or the reinvestment yield to be applied in such
calculation, the Master Servicer shall be required to use those U.S. Treasuries
which shall generate the lowest discount rate or reinvestment yield for the
purposes thereof. Accordingly, if either no U.S. Treasury issue, or more than
one U.S. Treasury issue, shall coincide with the term over which the Yield
Maintenance Charge shall be calculated (which depending on the applicable
Mortgage Note is based on the remaining average life of the subject Serviced
Mortgage Loan or the actual term remaining through the related Stated Maturity
Date or Anticipated Repayment Date, as applicable), the Master Servicer shall
use the applicable U.S. Treasury whose reinvestment yield is the lowest, with
such yield being based on the bid price for such issue as published in The Wall
Street Journal on the date that is 14 days prior to the date that the Yield
Maintenance Charge shall become due and payable (or, if such bid price is not
published on that date, the next preceding date on which such bid price is so
published) and converted to a monthly compounded nominal yield. The monthly
compounded nominal yield ("MEY") is derived from the reinvestment yield or
discount rate and shall be defined as MEY = (12 X [{(1+ "BEY"/2) ^1/6}-1]) X
100, where BEY is defined as the U.S. Treasury Reinvestment Yield which is in
decimal form and not in percentage, and 1/6 is the exponential power to which a
portion of the equation is raised. For example, using a BEY of 5.50%, the MEY =
(12 X [{(1+ .055/2) ^ 0.16667}- 1]) X 100 where .055 is the decimal version of
the percentage 5.5% and 0.16667 is the decimal version of the exponential power.
The MEY in the above calculation is 5.44%.
"Yield Maintenance Treasury Rate" shall mean, for purposes of
calculating a Discount Rate, the yield calculated by the Master Servicer by
linear interpolation of the yields, as such yields are reported in Federal
Reserve Statistical Release H.15-Selected Interest Rates (519), under the
heading U.S. Government Securities/Treasury Constant Maturities, with respect to
the maturity dates set forth thereunder, one longer and one shorter, most nearly
approximating the maturity date (or, in the case of an ARD Trust Mortgage Loan
or any successor REO Trust Mortgage Loan with respect thereto, the Anticipated
Repayment Date) of the relevant prepaid Trust Mortgage Loan or REO Trust
Mortgage Loan. If Federal Reserve Statistical Release H.15 is no longer
published or does not indicate the information set forth above, then the Master
Servicer shall select a comparable publication or source for the purposes of
determining the Yield Maintenance Treasury Rate.
"YM Principal Balance Certificates" shall mean, collectively, the
Class A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-M, Class A-J,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class
K Certificates.
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SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement include the
plural as well as the singular, and the use of any gender herein shall be
deemed to include the other gender;
(ii) accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP;
(iii) references herein to "Articles", "Sections",
"Subsections", "Paragraphs" and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, Paragraphs and
other subdivisions of this Agreement;
(iv) a reference to a Subsection without further
reference to a Section is a reference to such Subsection as contained in
the same Section in which the reference appears, and this rule shall also
apply to Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto",
"hereby" and other words of similar import refer to this Agreement as a
whole and not to any particular provision; and
(vi) the terms "include" or "including" shall mean
without limitation by reason of enumeration.
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 Advance that has been or is determined to be a Nonrecoverable
Advance (together with interest accrued and payable thereon pursuant to Section
3.11(g) or Section 4.03(d), as applicable, to the extent such interest was paid
hereunder from a source other than related Default Charges or Loss of Value
Payments), then (for purposes of calculating distributions on the Certificates),
subject to Section 1.03(e), 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, and
which amounts, but for their application to reimburse such 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 and/or collections
Received by the Trust with respect to the Mortgage Pool, and which
amounts, but for their application to reimburse such Nonrecoverable
Advance (and/or to pay interest thereon), would be included in the
Available Distribution Amount for the related Distribution Date; and
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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 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 Net Principal
Distribution Amount for any Distribution Date, then: (i) the Adjusted Net
Principal Distribution Amount for such Distribution Date shall exclude such
payment or other collection of principal; and (ii) in accordance with clause (c)
of the definition of "Adjusted Net Principal Distribution Amount", in order to
calculate the Adjusted Net Principal Distribution Amount for such Distribution
Date, the amount of such payment or other collection of principal shall be
subtracted from the Net Principal Distribution Amount for such Distribution
Date.
(c) If and to the extent that (1) any Advance is determined to
be a Nonrecoverable Advance, (2) such Advance is reimbursed or interest thereon
is paid out of general principal collections on the Mortgage Pool as
contemplated by Section 1.03(a) above and (3) the particular item for which such
Advance was originally made or such interest on such Advance, as the case may
be, is subsequently Received by the Trust (in whole or in part) out of payments
or other collections in respect of the related Trust Mortgage Loan or REO Trust
Mortgage Loan (such item or such interest on such Advance, as the case may be,
if and to the extent so collected, a "Recovered Amount"), then: (i) without
duplication of any amounts already included therein, the Adjusted Net Principal
Distribution Amount for the Distribution Date that corresponds to the related
Collection Period in which such item or such interest on such Advance, as the
case may be, was Received by the Trust shall include such Recovered Amount; (ii)
in accordance with clause (b) of the definition of "Adjusted Net Principal
Distribution Amount", in order to calculate the Adjusted Net Principal
Distribution Amount for the Distribution Date that corresponds to the related
Collection Period in which such item was Received by the Trust, such Recovered
Amount (to the extent not already included therein) shall be added to the Net
Principal Distribution Amount for such Distribution Date; and (iii) such Advance
or such interest thereon, as the case may be, to the extent of such Recovered
Amount, will no longer be considered to have been reimbursed or paid, as the
case may be, out of general principal collections on the Mortgage Pool. In
addition, if and to the extent that any Advance is determined to be a
Nonrecoverable Advance, interest on such Advance is paid out of general
principal collections on the Mortgage Pool as contemplated by Section 1.03(a)
above and such interest on such Advance is subsequently reimbursed to the Trust
out of Default Charges or Loss of Value Payments collected on the Trust Mortgage
Loan or REO Trust Mortgage Loan as to which such Advance was made, then: (i) the
Adjusted Net Principal Distribution Amount for the Distribution Date that
corresponds to the related Collection Period in which such Default Charges were
Received by the Trust or such Loss of Value Payments were so applied shall
include the portion of such Default Charges or Loss of Value Payments that was
applied to reimburse the Trust for such interest on such Advance; (ii) in
accordance with clause (b) of the definition of "Adjusted Net Principal
Distribution Amount", in order to calculate the Adjusted Net Principal
Distribution Amount for the Distribution Date that corresponds to the related
Collection Period in which such Default Charges were Received by the Trust or
such Loss of Value Payments were so applied, an amount equal to the portion of
such Default Charges or Loss of Value Payments that was applied to reimburse the
Trust for such interest on such Advance shall be added to the Net Principal
Distribution Amount for such Distribution Date; and (iii) such interest on such
Advance, to the extent that the Trust
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was reimbursed for such interest out of such Default Charges or such Loss of
Value Payments, will no longer be considered to have been paid out of general
principal collections on the Mortgage Pool.
(d) Nothing contained in this Section 1.03 is intended to limit
the ability of any party hereto that is entitled to reimbursement hereunder for
any unreimbursed Advances that have been or are determined to be Nonrecoverable
Advances (together with interest accrued and payable thereon pursuant to Section
3.11(g) or Section 4.03(d)) to collections of principal Received by the Trust
with respect to the Mortgage Pool; instead the order of priority set forth in
Section 1.03(a) is a deemed allocation only for purposes of calculating
distributions on the Certificates.
(e) Notwithstanding anything to the contrary contained herein,
no collections on any particular Split Trust Mortgage Loan or related REO
Property that are otherwise distributable with respect to the Class IUU
Certificates on any Distribution Date may be applied to reimburse any Advance
with respect to, or to pay any Additional Trust Fund Expense or portion thereof
that is related or allocable to, any other Mortgage Loan or REO Property
(including another Split Trust Mortgage Loan or any related REO Property).
Collections on any particular Split Trust Mortgage Loan or related REO Property
may only be applied to the reimbursement of Advances with respect to, or the
payment of Additional Trust Fund Expenses that are related to, such Split Trust
Mortgage Loan or REO Property.
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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 the laws of the State of New
York and that such trust be designated as "LB-UBS Commercial Mortgage Trust
2006-C1". 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 respective Co-Lender Agreements; and (iv) all other assets included or to be
included in the Trust Fund. Such assignment includes all interest and principal
received or receivable on or with respect to the Trust Mortgage Loans and due
after the Cut-off Date and, in the case of each Trust Mortgage Loan that is part
of a Loan Combination, is subject to the provisions of the related Co-Lender
Agreement. With respect to each Trust Mortgage Loan that is part of a Loan
Combination, the Trustee, on behalf of the Trust, assumes the obligations of the
holder of such Trust Mortgage Loan and the related Mortgage Note under, and
agrees to be bound by, the related Co-Lender Agreement.
The parties hereto acknowledge and agree that, notwithstanding
Section 11.07, the transfer of the Trust Mortgage Loans and the related rights
and property accomplished hereby is absolute and is intended by them to
constitute a sale.
The Trust Fund shall constitute the sole assets of the Trust. Except
as expressly provided herein, the Trust may not issue or invest in additional
securities, borrow money or make loans to other Persons. The fiscal year end of
the Trust shall be December 31.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall, in the case of each Xxxxxx Trust
Mortgage Loan, deliver to and deposit with, and the UBS Mortgage Loan Seller has
(pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement) agreed, in the
case of each UBS Trust Mortgage Loan, to deliver to and deposit with, on or
before the Closing Date: (i) the Trustee or a Custodian appointed thereby, the
Mortgage File for such Trust Mortgage Loan, with copies of each Mortgage File to
be delivered by the Trustee to, upon request, the Master Servicer (and at the
expense of the Trustee and not at the expense of the Trust Fund), within 10
Business Days of such request; and (ii) the Master Servicer (or, at the
direction of the Master Servicer, to the appropriate Sub-Servicer), all
unapplied Escrow Payments and Reserve Funds in the possession or under the
control of the Depositor or the UBS Mortgage Loan Seller, as the case may be,
that relate to such Trust Mortgage Loan (except in the case of an Outside
Serviced Trust Mortgage Loan). None of the Trustee, any Custodian, the Master
Servicer or the Special Servicer shall be liable for any failure by a Mortgage
Loan Seller or the Depositor to comply with the document delivery requirements
of the respective Mortgage Loan Purchase Agreements and this Section 2.01(b).
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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.
(c) The Depositor hereby covenants that it shall retain with
respect to each Xxxxxx Trust Mortgage Loan (other than an Outside Serviced 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 (other than an Outside Serviced Trust Mortgage
Loan), an Independent Person (each such Person, a "Recording/Filing Agent")
through which the Depositor or the UBS Mortgage Loan Seller, as applicable,
shall: (i) 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 the subject Recording/Filing Agent)
submit for recording or filing, as the case may be, in the appropriate public
office for real property records or UCC Financing Statements, as
appropriate--(A) each related assignment of Mortgage and assignment of
Assignment of Leases in favor of, and delivered under clause (a)(iv) of the
definition of "Mortgage File" to, the Trustee, and (B) solely with respect to
nursing facilities and hospitality properties (as identified on Schedule VI
hereto), each related assignment of UCC Financing Statement in favor of,
delivered under clause (a)(xiv) of the definition of "Mortgage File" to, the
Trustee; and (ii) cause each such assignment of Mortgage, assignment of
Assignment of Leases and assignment of UCC Financing Statement to be delivered
to the Trustee following its return by the appropriate public office for real
property records or UCC Financing Statements, as appropriate, with copies of any
such returned assignments to be delivered by the Trustee to the Master Servicer,
at the expense of the Depositor (in the case of Xxxxxx Trust Mortgage Loans) or
the UBS Mortgage Loan Seller (in the case of UBS Trust Mortgage Loans), as
applicable, at least every 90 days after the Closing Date (or at such 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); 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 a certified copy of the recorded
original.
Notwithstanding the foregoing, the Depositor may, in the case of a
Xxxxxx Trust Mortgage Loan (other than an Outside Serviced Trust Mortgage Loan),
and the UBS Mortgage Loan Seller may, in the case of a UBS Trust Mortgage Loan
(other than an Outside Serviced Trust Mortgage Loan), request the Trustee to
submit for recording or filing, as applicable, any of the assignments of
Mortgage, assignments of Assignment of Leases or assignments of UCC Financing
Statements referred to in the prior paragraph, 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 submit for recording or filing
any such document upon its receipt thereof.
Each assignment of Mortgage and assignment of Assignment of Leases
referred to in the prior two paragraphs that is submitted for recording shall
reflect that it should be returned by the public recording office to the Trustee
or its agent following recording, and each assignment of UCC Financing Statement
referred to in the prior two paragraphs that is submitted for filing 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 Trust Mortgage
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Loan by the Master Servicer) and at the expense of the Depositor (in the case of
a Xxxxxx Trust Mortgage Loan (other than an Outside Serviced Trust Mortgage
Loan)) or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan
(other than an Outside Serviced Trust Mortgage Loan)), the Trustee shall forward
to the Master Servicer a copy of any of the aforementioned assignments of
Mortgage, assignments of Assignment of Leases and/or assignments of UCC
Financing Statements that have been received by the Trustee.
The Depositor shall bear the out-of-pocket costs and expenses of the
recording referred to in the first two paragraphs of this Section 2.01(c) with
respect to the Xxxxxx Trust Mortgage Loans (other than the Outside Serviced
Trust Mortgage Loans), and the UBS/Depositor Mortgage Loan Purchase Agreement
provides that the UBS Mortgage Loan Seller shall bear the out-of-pocket costs
and expenses of the recording referred to in the first two paragraphs of this
Section 2.01(c) with respect to the UBS Trust Mortgage Loans (other than the
Outside Serviced Trust Mortgage Loans).
If any of the assignments of Mortgage, assignments of Assignment of
Leases and/or assignments of UCC Financing Statements referred to in the first
two paragraphs of this Section 2.01(c) relating to a UBS Trust Mortgage Loan
(other than an Outside Serviced 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
assignments of Mortgage, assignments of Assignment of Leases and/or assignments
of UCC Financing Statements referred to in the first two paragraphs of this
Section 2.01(c) relating to a Xxxxxx Trust Mortgage Loan (other than an Outside
Serviced Trust Mortgage Loan) is lost or returned unrecorded or unfiled, as the
case may be, because of a defect therein, then the Depositor shall promptly
prepare or cause the preparation of a substitute therefor or cure such defect,
as the case may be, and shall deliver to the Trustee the substitute or corrected
document. The Trustee shall upon receipt, whether from the UBS Mortgage Loan
Seller or the Depositor, cause the same to be duly recorded or filed, as
appropriate.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall, in the case of each Xxxxxx Trust
Mortgage Loan (other than an Outside Serviced Trust Mortgage Loan), deliver to
and deposit with, and the UBS Mortgage Loan Seller has agreed (pursuant to the
UBS/Depositor Mortgage Loan Purchase Agreement), in the case of each UBS Trust
Mortgage Loan (other than an Outside Serviced Trust Mortgage Loan), to deliver
to and deposit with, the Master Servicer (or, at the direction of the Master
Servicer, to and with the applicable Sub-Servicer), within 45 days of the
Closing Date, the Mortgage Loan Origination Documents that relate to such
Serviced 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 or correspondence, credit underwriting or due
diligence analyses or information, credit committee briefs or memoranda or other
internal approval documents or data or internal worksheets, memoranda,
communications or evaluations.
The Master Servicer shall review the documents with respect to each
Serviced Trust Mortgage Loan delivered by the Depositor or the UBS Mortgage Loan
Seller pursuant to or as contemplated by the immediately preceding paragraph and
provide the Depositor or the UBS Mortgage Loan Seller, as applicable, with a
certificate (the "Master Servicer Certification") within 90 days of the Closing
Date acknowledging its (or, if the Master Servicer has directed that such
documents be
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delivered only to the applicable Sub-Servicer, the applicable Sub-Servicer's)
receipt as of the date of the Master Servicer Certification of such documents
actually received; provided that such review shall be limited to identifying the
document received, the Serviced Trust Mortgage Loan to which it purports to
relate, that it appears regular on its face and that it appears to have been
executed (where appropriate). Notwithstanding anything to the contrary set forth
herein, to the extent the Depositor or the UBS Mortgage Loan Seller, as
applicable, has not been notified in writing of its failure to deliver any
document with respect to a Serviced Trust Mortgage Loan required to be delivered
pursuant to or as contemplated by the immediately preceding paragraph prior to
the first anniversary of the date of the Master Servicer Certification, the
Depositor or the UBS Mortgage Loan Seller, as applicable, shall have no
obligation to provide such document.
In addition, pursuant to the related Mortgage Loan Purchase
Agreement, each Mortgage Loan Seller will be required to deliver, on the Closing
Date: (i) to the Master Servicer for deposit in the Pool Custodial Account, the
Initial Deposit relating to each Initial Deposit Mortgage Loan, if any, being
sold by such Mortgage Loan Seller; and (ii) to the Trustee for deposit in the
Interest Reserve Account, the Supplemental Interest Reserve Amount relating to
each Interest Reserve Mortgage Loan, if any, being sold by such Mortgage Loan
Seller.
The Master Servicer shall hold all funds, documents and records
received by it in accordance with this Section 2.01(d) (as well as any funds
received by it pursuant to Section 2.01(b)) on behalf of the Trustee in trust
for the benefit of the Certificateholders (and, insofar as they also relate to
any Serviced Non-Trust Mortgage Loan, on behalf of and for the benefit of the
related Serviced Non-Trust Mortgage Loan Noteholder).
(e) In connection with the obligations of the Master Servicer
under Sections 3.01(e) and 3.19(c), with regard to each Serviced Trust Mortgage
Loan that is secured by the interests of the related Mortgagor in a hospitality
property and each Serviced Trust Mortgage Loan that has a related letter of
credit, the Depositor (with respect to each such Serviced Trust Mortgage Loan
that is a Xxxxxx Trust Mortgage Loan) shall, and the UBS Mortgage Loan Seller
(with respect to each such Serviced Trust Mortgage Loan that is a UBS Trust
Mortgage Loan) will be obligated under the UBS/Depositor Mortgage Loan Purchase
Agreement to, deliver to and deposit with the Master Servicer, on or before the
Closing Date, any related franchise agreement and franchise comfort letter and
the original of such letter of credit.
(f) It is not intended that this Agreement create a partnership
or a joint-stock association.
SECTION 2.02. Acceptance of Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this
Agreement, hereby accepts receipt, directly or through a Custodian on its
behalf, of (i) the Trust Mortgage Loans and all documents delivered to it that
constitute portions of the related Mortgage Files and (ii) all other assets
delivered to it and included in the Trust Fund, in good faith and without notice
of any adverse claim, and declares that it or a Custodian on its behalf holds
and will hold such documents and any other documents subsequently received by it
that constitute portions of the Mortgage Files, and that it holds and will hold
the Trust Mortgage Loans and such other assets, together with any other assets
subsequently delivered to it that are to be included in the Trust Fund, in trust
for the exclusive use and benefit of all present and future Certificateholders.
To the extent that the Mortgage File for any Serviced Combination Trust
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Mortgage Loan relates to a Serviced Non-Trust Mortgage Loan, the Trustee shall
also hold such Mortgage File in trust for the use and benefit of the related
Serviced Non-Trust Mortgage Loan Noteholder. In connection with the foregoing,
the Trustee hereby certifies to each of the other parties hereto, each Mortgage
Loan Seller and each Underwriter that, as to each Trust Mortgage Loan, (i) the
Specially Designated Mortgage Loan Documents are in its possession or the
possession of a Custodian on its behalf, and (ii) the original Mortgage Note
(or, if accompanied by a lost note affidavit, the copy of such Mortgage Note)
received by it or any Custodian with respect to such Trust Mortgage Loan has
been reviewed by it or by such Custodian on its behalf and (A) appears regular
on its face (handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (B) appears to have been executed
(where appropriate) and (C) purports to relate to such Trust Mortgage Loan.
(b) The Trustee or a Custodian on its behalf shall review the
documents delivered to it or such Custodian with respect to each Mortgage Loan
(such review to be conducted with respect to each document so delivered, prior
to the date that a certification or deemed certification, as applicable, is
required to be delivered in accordance with the following sentence), and the
Trustee shall, or shall cause a Custodian on its behalf to, subject to Sections
2.01, 2.02(c) and 2.02(d), certify (at the times and in the manner set forth
below) to each of the other parties hereto, each Mortgage Loan Seller and each
Underwriter and, in the case of a Serviced Non-Trust Mortgage Loan, to the
related Serviced Non-Trust Mortgage Loan Noteholder(s), that, as to each
Mortgage Loan then subject to this Agreement (except as specifically identified
in any exception report annexed to such certification or delivered with a deemed
certification, as applicable): (A) all documents specified in clauses (a)(i)
through (a)(viii) and (a)(xiv) (without regard to the second parenthetical in
such clause (a)(xiv)) of the definition of "Mortgage File" or, in the case of an
Outside Serviced 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; (B) the recordation/filing contemplated by Section
2.01(c) (except in the case of an Outside Serviced Trust Mortgage Loan) has been
completed (based solely on receipt by the Trustee or by a Custodian on its
behalf of the particular recorded/filed documents); (C) 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 (1) appear regular on their face
(handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (2) appear to have been executed
(where appropriate) and (3) purport to relate to such Mortgage Loan; and (D)
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. The certification
referred to in the first sentence of this Section 2.02(b) shall be delivered in
writing, substantially in the form of Exhibit C hereto (with an exception report
annexed thereto), on or about (i) the 60th day following the Closing Date and
(ii) if any exceptions are noted, upon the earliest to occur of (X) the second
anniversary of the Closing Date, (Y) the day on which all material exceptions
have been removed and (Z) the day on which the Depositor has repurchased the
last affected Trust Mortgage Loan); provided that, if any exceptions are noted
following the initial certification in clause (i) of this sentence, then the
Trustee may deliver subsequent certifications in the form of an updated
exception report, on or about the 90th day following the Closing Date and
monthly thereafter until the final certification in clause (ii) of this sentence
is delivered (and upon and by delivery of each such updated exception report the
Trustee shall be deemed to have made the certifications set forth in clauses (A)
through (D) of the first sentence of this Section 2.02(b) as to each Mortgage
Loan then subject to this Agreement, except as specifically identified in such
updated exception report). If the
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Trustee's obligation to deliver the certifications contemplated in this
subsection terminates because two years have elapsed since the Closing Date, the
Trustee shall (or shall cause a Custodian on its behalf to) deliver a comparable
certification, upon request, to any party hereto, any Serviced Non-Trust
Mortgage Loan Noteholder and/or any Underwriter.
(c) None of the Trustee, the Master Servicer, the Special
Servicer or any Custodian is under any duty or obligation to inspect, review or
examine any of the documents, instruments, certificates or other papers relating
to the Mortgage Loans delivered to it to determine that the same are valid,
legal, effective, genuine, binding, enforceable, sufficient or appropriate for
the represented purpose or that they are other than what they purport to be on
their face. Furthermore, none of the Trustee, the Master Servicer, the Special
Servicer or any Custodian shall have any responsibility for determining whether
the text of any assignment or endorsement is in proper or recordable form,
whether the requisite recording of any document is in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction.
(d) It is understood that the scope of the Trustee's review of
the Mortgage Files is limited solely to confirming that the documents specified
in clauses (i) through (vii) and (xiv) (or, in the case of an Outside Serviced
Trust Mortgage Loan, in 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) The Trustee, directly or through a Custodian retained by it,
shall provide for the safekeeping and preservation of the Mortgage Files with
respect to the Trust Mortgage Loans, and shall segregate such Mortgage Files
from its own assets and the assets retained by it for others, in the following
manner: The Trustee, directly or through a Custodian retained by it, shall
maintain such Mortgage Files in secure and fire resistant facilities in
compliance with customary industry standards. In addition, the Trustee, directly
or through a Custodian retained by it, shall maintain disaster recovery
protocols to ensure the preservation of such Mortgage Files in the event of
force majeure. The Trustee, directly or through a Custodian retained by it,
shall track and monitor the receipt and movement internally and externally of
such Mortgage Files and any release and reinstatement thereof.
SECTION 2.03. Repurchase of Trust Mortgage Loans for Document
Defects and Breaches of Representations and
Warranties.
(a) If any party hereto (other than the Depositor) discovers or
receives written notice, with respect to any Trust Mortgage Loan, that (i) any
document constituting a part of the related Mortgage File pursuant to clauses
(a)(i) through (a)(x) (or, in the case of an Outside Serviced Trust Mortgage
Loan, clause (b)(i)) of the definition of "Mortgage File" has not been executed
(if applicable) or is missing (each, a "Document Defect") or (ii) there exists 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 a breach of any
representation or warranty of the Depositor made pursuant to Section 2.04(b)
hereof with respect to any Xxxxxx Trust Mortgage Loan (also, a "Breach"), then
such party shall give prompt written notice thereof to each Rating Agency, the
related Mortgage Loan Seller, the other parties hereto and the Controlling Class
Representative. If 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)
receives written notice of a Document Defect or a Breach and such Document
Defect or Breach with respect to any Trust Mortgage
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Loan, materially and adversely affects the value of such Trust Mortgage Loan at
the time of such notice, 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, except as otherwise contemplated
by Sections 2.03(d) and 2.03(e), to cure such Material Document Defect or
Material Breach, as the case may be, in all material respects, or repurchase the
affected Trust Mortgage Loan or any related REO Property (or, in the case of an
REO Property related to a Loan Combination, the Trust's interest therein) at the
applicable Purchase Price by wire transfer of immediately available funds to the
Pool Custodial Account. Promptly upon becoming aware of any such Material
Document Defect or Material Breach with respect to a Xxxxxx Trust Mortgage Loan,
the Trustee shall deliver a Seller/Depositor Notification to the Depositor, the
Master Servicer and the Special Servicer, and the Depositor shall, subject to
Sections 2.03(d), 2.03(e) and 2.03(f), (A) not later than 90 days after (1) the
Depositor and the Trustee have agreed upon the existence of such Material
Document Defect or Material Breach or (2) a court of competent jurisdiction
makes a final non-appealable determination that a Material Document Defect or
Material Breach exists or (B) in the case of a Material Document Defect or
Material Breach that affects whether a Xxxxxx Trust Mortgage Loan is or will
continue to be a "qualified mortgage" within the meaning of the REMIC Provisions
(a "Qualified Mortgage"), not later than 90 days following the discovery by any
party of such Material Document Defect or Material Breach (either such 90-day
period, in the case of clause (A) or (B) (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 an "Initial
Resolution Period"), (i) cure such Material Document Defect or Material Breach,
as the case may be, in all material respects (which cure shall include payment
of any out-of-pocket expenses that are reasonably incurred and directly
attributable to pursuing such a claim based on such Material Document Defect or
Material Breach associated therewith) or (ii) if any such Material Document
Defect or Material Breach, as the case may be, cannot be cured within the
Initial Resolution Period, repurchase the affected Xxxxxx Trust Mortgage Loan or
any related REO Property (or, in the case of an REO Property related to a Loan
Combination, the Trust's interest therein) at the applicable Purchase Price by
wire transfer of immediately available funds to the Pool Custodial Account;
provided, however, that if (w) such Material Document Defect or Material Breach
is capable of being cured but not within the Initial Resolution Period, (x) such
Material Document Defect or Material Breach, as the case may be, does not affect
whether any Xxxxxx Trust Mortgage Loan is a Qualified Mortgage, (y) the
Depositor has commenced and is diligently proceeding with the cure of such
Material Document Defect or Material Breach, as the case may be, within the
Initial Resolution Period, and (z) the Depositor shall have delivered to the
Trustee an Officer's Certificate confirming that such Material Breach or
Material Document Defect, as the case may be, is not capable of being cured
within the applicable Initial Resolution Period, setting forth what actions the
Depositor is pursuing in connection with the cure thereof and stating that the
Depositor anticipates that such Material Breach or Material Document Defect, as
the case may be, will be cured within an additional period not to exceed 90 days
beyond the end of the Initial Resolution Period, then the Depositor shall have
an additional 90-day period (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
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applicable, are each referred to herein as a "Resolution Extension Period"), to
complete such cure or, failing such, to repurchase the affected Trust Mortgage
Loan (or the related Mortgaged Property); 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 Material Document Defect so long as the Depositor certifies to the Trustee
every six months thereafter that the Material 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). The parties acknowledge that neither delivery of a
certification or schedule of exceptions to 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) pursuant to Section 2.02(b) or otherwise nor possession
of such certification or schedule by the Depositor (in the case of a Xxxxxx
Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust
Mortgage Loan) shall, in and of itself, constitute delivery of notice of any
Material Document Defect or Material Breach or knowledge or awareness by the
Depositor or the UBS Mortgage Loan Seller, as the case may be, of any Material
Document Defect or Material Breach.
If, during the period of deferral by the Depositor of its cure and
repurchase obligations as contemplated by the last proviso of the penultimate
sentence of the preceding paragraph, or during any comparable deferral by the
UBS Mortgage Loan Seller of its cure and repurchase obligations as provided in
Section 5 of the UBS/Depositor Mortgage Loan Purchase Agreement, as applicable,
the Trust Mortgage Loan that is the subject of the Material Document Defect
either becomes a Specially Serviced Trust Mortgage Loan or becomes the subject
of a proposed or actual assumption of the obligations of the related Mortgagor
under such Trust Mortgage Loan, then (i) any party to this Agreement that
becomes aware of such event shall deliver a Seller/Depositor Notification to
such effect (unless a Seller/Depositor Notification with respect to such event
has already been delivered by another party) to the Master Servicer, the Special
Servicer, the Trustee, the Depositor (in the case of a Xxxxxx Trust Mortgage
Loan) and the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage
Loan), and (ii) the Trustee, upon becoming aware of such event, shall deliver a
Seller/Depositor Notification to the Master Servicer, the Special Servicer, the
Depositor (in the case of a Xxxxxx Trust Mortgage Loan) and the UBS Mortgage
Loan Seller (in the case of a UBS Trust Mortgage Loan), providing notice of such
event and directing the Depositor or the UBS Mortgage Loan Seller, as
applicable, to cure the subject Material Document Defect within 15 days of
receipt of such Seller/Depositor Notification. If, upon the expiration of such
15-day period, the Depositor or the UBS Mortgage Loan Seller, as applicable, has
failed to cure the subject Material Document Defect, the Master Servicer or the
Special Servicer, as applicable, shall be entitled (but not obligated) to
perform the obligations of the Depositor or the UBS Mortgage Loan Seller, as
applicable, with respect to curing the subject Material Document Defect; and,
upon electing to 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 actual out-of-pocket
costs and expenses in connection with the applicable servicer's effecting such
cure.
(b) In connection with the events in Section 2.03(a), the
Trustee shall prepare and deliver, in each case promptly upon becoming aware of
such event, to the Master Servicer, the Special Servicer and either the
Depositor (with respect to a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage
Loan Seller (with respect to a UBS Trust Mortgage Loan), as applicable, a
Seller/Depositor Notification
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identifying and describing the circumstances identified in the definition of
"Seller/Depositor Notification" (unless, in the case of an event described in
clauses (iii), (iv) and/or (vi), as applicable, of the definition of
"Seller/Depositor Notification", a Seller/Depositor Notification with respect to
such event has already been delivered by the Master Servicer or the Special
Servicer). Further, in connection with the events in Section 2.03(a), the Master
Servicer or the Special Servicer, as applicable, shall prepare and deliver, in
each case promptly upon becoming aware of such event, to the other such
servicer, the Trustee and either the Depositor (with respect to a Xxxxxx Trust
Mortgage Loan) or the UBS Mortgage Loan Seller (with respect to a UBS Trust
Mortgage Loan), as applicable, a Seller/Depositor Notification identifying and
describing the circumstances identified in clauses (iii), (iv) and/or (vi), as
applicable, of the definition of "Seller/Depositor Notification" (unless such
notification has already been delivered). A copy of each such Seller/Depositor
Notification shall also be delivered to the Controlling Class Representative
and, in the case of an event described in clauses (v) and/or (vii) of the
definition of "Seller/Depositor Notification", to either internal counsel to the
Depositor (with respect to a Xxxxxx Trust Mortgage Loan) or counsel to the UBS
Mortgage Loan Seller (with respect to a UBS Trust Mortgage Loan), as applicable,
to the extent the Trustee, Master Servicer or Special Servicer, as applicable,
knows the identity of such person.
(c) If one or more (but not all) of the Trust Mortgage Loans
constituting a Cross-Collateralized Group are to be repurchased by the Depositor
or the UBS Mortgage Loan Seller as contemplated by this Section 2.03, then,
prior to the subject repurchase, the Depositor or the UBS Mortgage Loan Seller,
as the case may be, or its designee shall use its reasonable efforts, subject to
the terms of the related Trust Mortgage Loan(s), to prepare and, to the extent
necessary and appropriate, have executed by the related Mortgagor and record,
such documentation as may be necessary to terminate the cross-collateralization
between the Trust Mortgage Loan(s) in such Cross-Collateralized Group that are
to be repurchased, on the one hand, and the remaining Trust Mortgage Loan(s)
therein, on the other hand, such that those two groups of Trust Mortgage Loans
are each secured only by the Mortgaged Properties identified in the Trust
Mortgage Loan Schedule as directly corresponding thereto; provided that no such
termination shall be effected unless and until (i) the Controlling Class
Representative, if one is then acting, has consented (which consent shall not be
unreasonably withheld and shall be deemed to have been given if no written
objection is received by the Depositor or the UBS Mortgage Loan Seller, as the
case may be, within ten (10) Business Days of the Controlling Class
Representative's receipt of a written request for such consent) and (ii) the
Trustee has received from the Depositor or the UBS Mortgage Loan Seller, as the
case may be, (A) an Opinion of Counsel to the effect that such termination would
not cause an Adverse REMIC Event to occur with respect to any REMIC Pool or an
Adverse Grantor Trust Event to occur with respect to the Grantor Trust and (B)
written confirmation from each Rating Agency that such termination would not
cause an Adverse Rating Event to occur with respect to any Class of
Certificates; and provided, further, that the Depositor, in the case of Xxxxxx
Trust Mortgage Loans, or the UBS Mortgage Loan Seller, in the case of UBS Trust
Mortgage Loans, may, at its option, purchase the entire subject
Cross-Collateralized Group in lieu of effecting a termination of the
cross-collateralization. All costs and expenses incurred by the Trustee or any
Person on its behalf pursuant to this paragraph shall be included in the
calculation of the Purchase Price for the Trust Mortgage Loan(s) to be
repurchased. If the cross-collateralization of any Cross-Collateralized Group is
not or cannot be terminated as contemplated by this paragraph, then, for
purposes of (i) determining whether the subject Breach or Document Defect, as
the case may be, materially and adversely affects the value of such
Cross-Collateralized Group and (ii) the application of remedies, such
Cross-Collateralized Group shall be treated as a single Trust Mortgage Loan.
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(d) Notwithstanding the foregoing, if there exists a Breach of
that portion of the representation or warranty on the part of the Depositor set
forth in, or made pursuant to, paragraph (xlviii) of Schedule II hereto, or on
the part of the UBS Mortgage Loan Seller set forth in, or made pursuant to,
paragraph (xlviii) of Exhibit B to the UBS/Depositor Mortgage Loan Purchase
Agreement, in each case specifically relating to whether or not the Mortgage
Loan documents or any particular Mortgage Loan document for any Mortgage Loan
requires the related Mortgagor to bear the reasonable costs and expenses
associated with the subject matter of such representation or warranty, as set
forth in such representation or warranty, then the Master Servicer shall (and
the Special Servicer may) direct the Depositor (in the case of a Xxxxxx Trust
Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust
Mortgage Loan) in writing to wire transfer to the Pool Custodial Account, within
90 days of such party's receipt of such direction, the amount of any such
reasonable costs and expenses incurred by the Trust that (i) are due from the
Mortgagor, (ii) otherwise would have been required to be paid by the Mortgagor
if such representation or warranty with respect to such costs and expenses had
in fact been true, as set forth in the related representation or warranty, (iii)
have not been paid by the Mortgagor, (iv) are the basis of such Breach and (v)
constitute "Covered Costs". Upon payment of such costs, the Depositor (in the
case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the
case of a UBS Trust Mortgage Loan) shall be deemed to have cured such Breach in
all respects. Provided that such payment is made, this paragraph describes the
sole remedy available to the Certificateholders and the Trustee on their behalf
regarding any such Breach, regardless of whether it constitutes a Material
Breach, and neither the Depositor (in the case of a Xxxxxx Trust Mortgage Loan)
nor the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan)
shall be obligated to otherwise cure such Breach or repurchase the affected
Trust Mortgage Loan under any circumstances. Amounts deposited in the Pool
Custodial Account pursuant to this paragraph shall constitute "Liquidation
Proceeds" for all purposes of this Agreement (other than Section 3.11(c)).
(e) Subject to the penultimate sentence of this paragraph and
subject to Section 2.03(d), if the Depositor determines that a Material Breach
(other than a Material Breach of a representation or warranty on the part of the
Depositor set forth in, or made pursuant to, paragraph (xvii) of Schedule II
hereto) or a Material Document Defect with respect to a Xxxxxx Trust Mortgage
Loan is not capable of being cured in accordance with Section 2.03(a), or the
UBS Mortgage Loan Seller determines that a Material Breach (other than a
Material Breach of a representation or warranty on the part of the UBS Mortgage
Loan Seller set forth in, or made pursuant to, paragraph (xvii) of Exhibit B to
the UBS/Depositor Mortgage Loan Purchase Agreement) or Material Document Defect
with respect to a UBS Trust Mortgage Loan is not capable of being cured in
accordance with Section 5(a) of the UBS/Depositor Mortgage Loan Purchase
Agreement, then in lieu of repurchasing such Trust Mortgage Loan the Depositor
or the UBS Mortgage Loan Seller, as the case may be, may, at its sole option,
pay a cash amount equal to the loss of value (each such payment, a "Loss of
Value Payment") with respect to such Trust Mortgage Loan, which loss of value is
directly attributed to such Material Breach or Material Document Defect, as the
case may be. The amount of each such Loss of Value Payment shall be determined
either (i) by mutual agreement of the Special Servicer on behalf of the Trust
with respect to the subject Material Breach or Material Document Defect, as the
case may be, and either the Depositor or the UBS Mortgage Loan Seller, as the
case may be, or (ii) by judicial decision; provided that, in the event there is
a legal action for determining the existence of a Material Breach or a Material
Document Defect with respect to any Trust Mortgage Loan, such legal action must
also include a determination of the amount of the loss of value to such Trust
Mortgage Loan directly attributed to such Material Breach or such Material
Document Defect, as the case may be. Provided that such payment is made, this
paragraph describes the sole remedy available to the Certificateholders and the
Trustee on their behalf
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regarding any such Material Breach or Material Document Defect and neither the
Depositor (in the case of a Xxxxxx Trust Mortgage Loan) nor the UBS Mortgage
Loan Seller (in the case of a UBS Trust Mortgage Loan) shall be obligated to
otherwise cure such Material Breach or Material Document Defect or repurchase
the affected Mortgage Loan based on such Material Breach or Material Document
Defect under any circumstances. Notwithstanding the foregoing provisions of this
Section 2.03(e), if substantially all of the loss of value to a Mortgage Loan
was caused by a Material Breach or Material Document Defect, which Material
Breach or Material Document Defect is not capable of being cured, then this
Section 2.03(e) shall not apply, and the Depositor (in the case of a Xxxxxx
Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust
Mortgage Loan) shall be obligated to repurchase the affected Mortgage Loan at
the applicable Purchase Price in accordance with Section 2.03(a); and,
furthermore, neither the Depositor nor the UBS Mortgage Loan Seller shall have
the option of delivering Loss of Value Payments in connection with any Material
Breach relating to a Trust Mortgage Loan's failure to be a Qualified Mortgage.
In the event there is a Loss of Value Payment made by the Depositor or the UBS
Mortgage Loan Seller, as the case may be, in accordance with this Section
2.03(e), the amount of such Loss of Value Payment shall be deposited into the
Loss of Value Reserve Fund to be applied in accordance with Section 3.05(e).
In the event the amount of any Loss of Value Payment is determined
by judicial decision, then such Loss of Value Payment shall also include the
payment of any costs and expenses (including costs incurred in establishing the
amount of any related loss of value to the subject Trust Mortgage Loan) that
are: (i) reasonably incurred in good faith by the Master Servicer, the Special
Servicer and/or the Trustee (on behalf of the Trust) in enforcing the rights of
the Trust against the Depositor or the UBS Mortgage Loan Seller with respect to
the subject Material Breach or Material Document Defect, as the case may be; and
(ii) directly attributable to the enforcement of the rights of the Trust with
respect to the subject Material Breach or Material Document Defect, as the case
may be; provided that, if the Depositor (with respect to a Xxxxxx Trust Mortgage
Loan) or the UBS Mortgage Loan Seller (with respect to a UBS Trust Mortgage
Loan) tenders a loss of value payment in a specified amount in connection with a
Material Breach or Material Document Defect prior to the institution of legal
proceedings and that offer is rejected, and if an amount equal to or less than
the loss of value payment originally tendered by the Depositor or the UBS
Mortgage Loan Seller, as the case may be, is ultimately determined by judicial
decision to be the actual amount of the Loss of Value Payment attributed to such
Material Breach or Material Document Defect, as the case may be, then that Loss
of Value Payment shall not include the payment of any costs or expenses incurred
by the Master Servicer, the Special Servicer and/or the Trustee in connection
with the subject litigation; and provided, further, that, if the Special
Servicer requests a loss of value payment from the Depositor or the UBS Mortgage
Loan Seller, as the case may be, of a specified amount in connection with a
Material Breach or Material Document Defect, as the case may be, and the
Depositor or the UBS Mortgage Loan Seller, as the case may be, refuses to pay
that amount, and if an amount equal to or greater than the loss of value payment
originally requested by the Special Servicer is ultimately determined by
judicial decision to be the actual Loss of Value Payment attributable to such
Material Document Defect or Material Breach, then that Loss of Value Payment
shall also include the payment of all costs and expenses reasonably incurred in
connection with that judicial determination; and provided, further, that, if the
Depositor (with respect to a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage
Loan Seller (with respect to a UBS Trust Mortgage Loan) tenders a loss of value
payment in connection with a Material Breach or Material Document Defect, as the
case may be, in a specified amount, and the Special Servicer rejects such tender
and requests a greater loss of value payment amount, and an amount in between
the respective amounts tendered and requested is ultimately determined by
judicial decision to be the actual Loss of Value
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Payment attributable to such Material Breach or Material Document Defect, as the
case may be, then that Loss of Value Payment shall also include the payment of
an amount equal to the product of (i) all costs and expenses reasonably incurred
in connection with that judicial determination, multiplied by (ii) a fraction,
the numerator of which is the excess of the amount determined by judicial
decision over the amount tendered by the Depositor or the UBS Mortgage Loan
Seller, as the case may be, and the denominator of which is the excess of the
amount requested by the Special Servicer over the amount tendered by the
Depositor or the UBS Mortgage Loan Seller, as the case may be. Notwithstanding
the foregoing, in the event any Loss of Value Payment is determined by the
parties hereto by mutual agreement (and not by a judicial decision), that Loss
of Value Payment shall not include any costs and expenses incurred by the Master
Servicer, the Special Servicer or the Trustee unless such costs and expenses
were specifically included in such mutual agreement.
(f) Notwithstanding the foregoing, if there exists a Material
Breach of the representation or warranty on the part of the Depositor set forth
in, or made pursuant to, paragraph (xvii) of Schedule II hereto or the UBS
Mortgage Loan Seller set forth in, or made pursuant to, paragraph (xvii) of
Exhibit B to the UBS/Depositor Mortgage Loan Purchase Agreement, and the subject
Mortgage Loan becomes a Qualified Mortgage prior to the expiration of the
Initial Resolution Period applicable to a Material Document Defect or Material
Breach that affects whether a Mortgage Loan is a Qualified Mortgage, and without
otherwise causing an Adverse REMIC Event or an Adverse Grantor Trust Event, then
such breach will be cured and the Depositor or the UBS Mortgage Loan Seller, as
the case may be, will not be obligated to repurchase or otherwise remedy such
Breach.
(g) In connection with any purchase or 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 purchasing/repurchasing entity, upon delivery to each of them of a
receipt executed by the purchasing/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
purchasing/repurchasing entity or its designee in the same manner, but only if
the respective documents have been previously assigned or endorsed to the
Trustee, and pursuant to appropriate forms of assignment, substantially similar
to the manner and forms pursuant to which such documents were previously
assigned to the Trustee; provided that such tender by the Trustee or by a
Custodian on its behalf shall be conditioned upon its receipt from the Master
Servicer of a Request for Release accompanied by a certification of a Servicing
Officer to the effect that all amounts received or to be received in connection
with such purchase or repurchase, as the case may be, which are required to be
deposited in the Pool Custodial Account pursuant to Section 3.04(a) 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(g), and such other instruments as
may be necessary or appropriate to transfer title to an REO Property or any
interest therein in connection with the repurchase of an REO Trust Mortgage Loan
and the Trustee shall execute and deliver any powers of attorney necessary to
permit the Master Servicer to do so; provided, however, that the Trustee shall
not be held liable for any misuse of any such power of attorney by the Master
Servicer.
(h) 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
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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. Any purchase of a Trust
Mortgage Loan pursuant to or as contemplated by this Section 2.03 shall be on a
whole loan, servicing release basis.
(i) In the event that the Master Servicer receives notice from
the Mortgagor under any Early Defeasance Trust Mortgage Loan that (i) such
Mortgagor intends to defease such Early Defeasance Trust Mortgage Loan in whole
on or before the second anniversary of the Closing Date and the cash amount
tendered by such Mortgagor to purchase Defeasance Collateral or other permitted
collateral in order to defease such Early Defeasance Trust Mortgage Loan (in
accordance with the related loan documents) is less than the Purchase Price that
would be applicable in the event of a repurchase of such Trust Mortgage Loan in
connection with a Material Breach or a Material Document Defect, or (ii) such
Mortgagor intends to partially defease such Early Defeasance Trust Mortgage Loan
on or prior to the second anniversary of the Closing Date, or (iii) such
Mortgagor intends to defease such Early Defeasance Trust Mortgage Loan in whole
on or before the second anniversary of the Closing Date and such Mortgagor is to
tender Defeasance Collateral or such other collateral as is permitted in
connection with a defeasance under the related loan documents that does not
constitute a cash amount equal to or greater than the Purchase Price set forth
in clause (i) above, then the Master Servicer shall promptly notify the Trustee
and either the Depositor (with respect to a Xxxxxx Trust Mortgage Loan) or the
UBS Mortgage Loan Seller (with respect to a UBS Trust Mortgage Loan) of such
Mortgagor's intention, and the Trustee shall direct the Depositor (with respect
to a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (with respect
to a UBS Trust Mortgage Loan), as applicable, to repurchase (and the Depositor,
with respect to a Xxxxxx Trust Mortgage Loan, hereby agrees, and the UBS
Mortgage Loan Seller, with respect to a UBS Trust Mortgage Loan, pursuant to the
UBS/Depositor Mortgage Loan Purchase Agreement, has agreed to repurchase) such
Trust Mortgage Loan at the Purchase Price that would be applicable in the event
of a repurchase of such Trust Mortgage Loan in connection with a Material Breach
or a Material Document Defect, upon deposit by the related Mortgagor of
Defeasance Collateral, or cash sufficient to purchase the Defeasance Collateral,
as contemplated by the related loan documents (if applicable), but in any event
no later than the related defeasance date.
(j) In connection with any repurchase of any Early Defeasance
Trust Mortgage Loan, pursuant to or as contemplated by this Section 2.03, the
Tax Administrator shall in accordance with Section 9.02 effect a "qualified
liquidation" of the related Loan REMIC in accordance with the REMIC Provisions.
The Depositor (in the case of a Xxxxxx Trust Mortgage Loan) hereby agrees to
pay, and the UBS Mortgage Loan Seller pursuant to the UBS/Depositor Mortgage
Loan Purchase Agreement (in the case of a UBS Trust Mortgage Loan) is obligated
to pay, all reasonable costs and expenses, including the costs of any Opinions
of Counsel, in connection with any such "qualified liquidation" of a Loan REMIC
in accordance with the REMIC Provisions.
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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 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 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).
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(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.
(b) The Depositor hereby makes to the Trustee, for the Trustee's
own benefit and the benefit of the Certificateholders, with respect to each
Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on
Schedule II hereto, 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 (the headings set forth in Schedule II hereto 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).
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 or made pursuant to 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
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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.
(a) It is the intention of the parties hereto that the
segregated pool of assets consisting of any collections of Additional Interest
Received by the Trust on or with respect to the ARD Trust Mortgage Loans, if
any, 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, if any, and declares that it holds and will hold any 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, subject to Section 2.05(b), the Certificate Registrar shall
execute, and the Authenticating Agent 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. Subject to Section 2.05(b): (i) the Class V Certificates shall evidence
the entire beneficial ownership of the Grantor Trust; and (ii) 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.
(b) Notwithstanding Section 2.05(a) or anything else to the
contrary set forth in this Agreement, if the Mortgage Pool does not, on the
Closing Date, include any ARD Trust Mortgage Loans, then: (i) there shall be no
Grantor Trust; (ii) no Class V Certificates shall be issued; (iii) insofar as,
but only insofar as, the provisions of this Agreement specifically relate to the
Grantor Trust, Grantor Trust Assets, Class V Certificates, the Class V
Sub-Account, ARD Mortgage Loans, ARD Trust Mortgage Loan and/or Additional
Interest, such provisions (other than this Section 2.05(b), the definitions of
such terms set forth in Section 1.01 and Schedule VII annexed hereto) shall,
without otherwise affecting the enforceability or validity of this Agreement
with respect to any other matters, be of no force and effect; and (iv) the
parties hereto shall have no rights or obligations with respect to the Grantor
Trust, Grantor Trust Assets, Class V Certificates, the Class V Sub-Account, ARD
Mortgage Loans, ARD Trust Mortgage Loans and/or Additional Interest.
SECTION 2.06. Acceptance of Loan REMICs by Trustee; Execution,
Authentication and Delivery of Class R-LR
Certificates; Creation of Loan REMIC Regular
Interests.
(a) The Trustee hereby acknowledges the assignment to it of any
assets to be included in the Loan REMICs. Concurrently with such assignment and
in exchange therefor, subject to Section 2.06(b), (i) the Loan REMIC Regular
Interests have been issued, and (ii) 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. Subject to Section 2.06(b): the
interests evidenced by the Class R-LR Certificates, together with the related
Loan REMIC Regular Interests, constitute the entire beneficial ownership of the
respective Loan REMICs; and (ii) the rights of the Class R-LR Certificateholders
and REMIC I (as holder of the Loan REMIC Regular
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Interests) to receive distributions from the proceeds of the Early Defeasance
Trust Mortgage Loans (or any successor REO Mortgage Loans with respect thereto)
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.
(b) Notwithstanding Section 2.06(a) or anything else to the
contrary set forth in this Agreement, if the Mortgage Pool does not, on the
Closing Date, include any Early Defeasance Trust Mortgage Loans, then: (i) there
shall be no Loan REMICs; (ii) no Class R-LR Certificates and no Loan REMIC
Interests shall be issued; (iii) insofar as, but only insofar as, the provisions
of this Agreement specifically relate to Loan REMICs, Loan REMIC Interests,
Class R-LR Certificates, Excess Defeasance Deposit Proceeds and/or Early
Defeasance Trust Mortgage Loans, such provisions (other than this Section
2.06(b), the definitions of such terms set forth in Section 1.01 and the Trust
Mortgage Loan Schedule) shall, without otherwise affecting the enforceability or
validity of this Agreement with respect to any other matters, be of no force and
effect; and (iv) the parties hereto and the respective Mortgage Loan Sellers
shall have no rights or obligations with respect to the Loan REMICs, Loan REMIC
Interests, Class R-LR Certificates, Excess Defeasance Deposit Proceeds and/or
Early Defeasance Trust Mortgage Loans.
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, if any, to the Trustee for the benefit of the Holders of the
Class R-I 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, if any, 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.
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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 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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SECTION 2.13. Acceptance of Loss of Value Reserve Fund by
Trustee.
It is the intention of the parties hereto that any Loss of Value
Payments Received by the Trust pursuant to Section 2.03(e), together with the
Loss of Value Reserve Fund, shall collectively constitute an "outside reserve
fund" within the meaning of Treasury regulation section 1.860G-2(h). The
Trustee, by execution and delivery hereof, acknowledges the assignment to it of
the assets consisting of the Loss of Value Reserve Fund, including the amounts
held therein, and declares that it holds and will hold such assets, through the
Special Servicer, in accordance with Section 3.04(e), in trust and for the
benefit of the Certificateholders, as their interests may appear.
Notwithstanding anything herein to the contrary, based on applicable law as of
the date hereof, for all income and franchise tax purposes, the Holder or
Holders of the Class R-III Certificates shall be treated and reported as the
sole beneficial owner(s) of the Loss of Value Reserve Fund.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) All of the Serviced Mortgage Loans and Administered REO
Properties are to be serviced and administered by the Master Servicer and/or the
Special Servicer hereunder. Each of the Master Servicer and the Special Servicer
shall service and administer the Serviced Mortgage Loans and Administered REO
Properties that it is obligated to service and administer pursuant to this
Agreement on behalf of the Trustee, for the benefit of the Certificateholders
(or, in the case of a Serviced Loan Combination, for the benefit of the
Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), as determined in the good faith and reasonable judgment of the
Master Servicer or the Special Servicer, as the case may be, in accordance with:
(i) any and all applicable laws; (ii) the express terms of this Agreement; (iii)
the express terms of the respective Serviced Mortgage Loans and any and all
related intercreditor, co-lender or similar agreements (including with respect
to performing the duties of the holders of the respective Serviced Mortgage
Loans thereunder (to the extent not inconsistent with this Agreement and to the
extent consistent with the Servicing Standard)); and (iv) to the extent
consistent with the foregoing, the Servicing Standard. The Master Servicer or
the Special Servicer, as applicable in accordance with this Agreement, shall
service and administer each Cross-Collateralized Group as a single Serviced
Mortgage Loan as and when necessary and appropriate consistent with the
Servicing Standard. Without limiting the foregoing and subject to Section 3.21,
(i) the Master Servicer shall service and administer all of the Performing
Serviced Mortgage Loans and shall render such services with respect to the
Specially Serviced Mortgage Loans as are specifically provided for herein, and
(ii) the Special Servicer shall service and administer each Specially Serviced
Mortgage Loan and Administered REO Property and shall render such services with
respect to Performing Serviced Mortgage Loans as are specifically provided for
herein. All references herein to the respective duties of the Master Servicer
and the Special Servicer, and to the areas in which they may exercise
discretion, shall be subject to Section 3.21.
(b) Subject to Sections 3.01(a), 3.20, 6.11 and 6.12, 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 authorized and empowered by the Trustee and, to the extent
provided in the related Co-Lender Agreement, each related Serviced Non-Trust
Mortgage Loan Noteholder (if any) to execute and deliver, on behalf of the
Certificateholders, the Trustee and such Serviced Non-Trust Mortgage Loan
Noteholder or any of them, (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and related collateral; (ii) in accordance
with the Servicing Standard and subject to Sections 3.01(a), 3.20, 6.11 and
6.12, any and all modifications, extensions, waivers, amendments or consents to
or with respect to any documents contained in the related Mortgage File; (iii)
any and all instruments of satisfaction or cancellation, or of partial or full
release or discharge or of assignment, and all other comparable instruments; and
(iv) any
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and all instruments that such party may be required to execute on behalf of the
Trustee in connection with the defeasance of a Serviced Mortgage Loan as
contemplated in this Agreement. Subject to Section 3.10, the Trustee shall, at
the written request of the Master Servicer or the Special Servicer, promptly
execute any limited powers of attorney and other documents furnished by the
Master Servicer or the Special Servicer that are necessary or appropriate to
enable them to carry out their servicing and administrative duties hereunder;
provided, however, that the Trustee shall not be held liable for any misuse of
any such power of attorney by the Master Servicer or the Special Servicer.
Notwithstanding anything contained herein to the contrary, neither the Master
Servicer nor the Special Servicer shall, without the Trustee's written consent:
(i) initiate any action, suit or proceeding solely under the Trustee's name
without indicating the Master Servicer's or Special Servicer's, as applicable,
representative capacity; or (ii) take any action with the intent to cause, and
that actually causes, the Trustee to be registered to do business in any state.
(c) The parties hereto acknowledge that each Loan Combination is
subject to the terms and conditions of the related Co-Lender Agreement; and,
with respect to each Loan Combination, the parties hereto further recognize the
respective rights and obligations of the Trust, as holder of the related
Combination Trust Mortgage Loan, and of the related Non-Trust Mortgage Loan
Noteholder(s) under the related Co-Lender Agreement.
(d) With respect to any Serviced Loan Combination, in the event
that neither the related Trust Mortgage Loan nor the related REO Property (or
any interest therein) is an asset of the Trust Fund and, except as contemplated
in the second paragraph of this Section 3.01(d), in accordance with the related
Co-Lender Agreement, the servicing and administration of such Serviced Loan
Combination and any related REO Property are to be governed by a separate
servicing agreement and not by this Agreement, then (either (i) with the consent
or at the request of the holders of each Mortgage Loan comprising such Serviced
Loan Combination or (ii) if expressly provided for in the related Co-Lender
Agreement) the Master Servicer and, if such Serviced Loan Combination is then
being specially serviced hereunder or the related Mortgaged Property has become
an REO Property, the Special Servicer, shall continue to act in such capacities
under such separate servicing agreement; provided that such separate servicing
agreement shall be reasonably acceptable to the Master Servicer and/or the
Special Servicer, as the case may be, and shall contain servicing and
administration, limitation of liability, indemnification and servicing
compensation provisions substantially similar to the corresponding provisions of
this Agreement, except for the fact that such Serviced Loan Combination and the
related Mortgaged Property shall be the sole assets serviced and administered
thereunder and the sole source of funds thereunder.
Further, with respect to any Serviced Loan Combination, if at any
time neither the related Trust Mortgage Loan nor any related REO Property (or
any interest therein) is an asset of the Trust Fund, and if a separate servicing
agreement with respect to such Serviced Loan Combination or any related REO
Property, as applicable, has not been entered into as contemplated by the
related Co-Lender Agreement and the prior paragraph (for whatever reason,
including the failure to obtain any rating agency confirmation required in
connection therewith pursuant to the related Co-Lender Agreement), and
notwithstanding that neither the related Trust Mortgage Loan nor any related REO
Property (or any interest therein) is an asset of the Trust Fund, then, unless
directed otherwise by the then current holders of the Mortgage Notes comprising
such Serviced Loan Combination, the Master Servicer and, if applicable, the
Special Servicer shall continue to service and administer such Serviced Loan
Combination and/or any related REO Property, for the benefit of the respective
holders of such Serviced
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Loan Combination, under this Agreement as if such Serviced Loan Combination or
any related REO Property were the sole assets subject hereto, with certain
references in this Agreement applicable to the Trust, the Trustee, the
Certificates, the Certificateholders (or any subgroup thereof) or any
representative of any such Certificateholders, all being construed to refer to
such similar terms as are applicable to the then current holder of the Mortgage
Note for the related Serviced Combination Trust Mortgage Loan.
(e) The Master Servicer shall use efforts consistent with the
Servicing Standard to have prepared, executed (with the cooperation of the
Depositor (in the case of a Xxxxxx Trust Mortgage Loan) and the UBS Mortgage
Loan Seller (in the case of a UBS Trust Mortgage Loan) in obtaining requisite
signatures, if applicable) and delivered by the applicable party (and included
in the Servicing File), not later than the later of (i) 30 days following the
Master Servicer's receipt of the subject franchisor comfort letter, guaranty of
payment or letter of credit and (ii) the expiration of the period that may be
required for such transfer or assignment pursuant to the terms of the applicable
franchisor comfort letter, guaranty of payment or letter of credit, if any, (A)
with respect to any Serviced Mortgage Loan secured by a hospitality property (as
identified on Schedule VI hereto) (and with respect to which a franchise
agreement constitutes part of the related Mortgage File on the Closing Date),
any original transfer or assignment documents necessary to transfer or assign to
the Trustee any rights under the related franchisor comfort letter; and (B) with
respect to any Serviced Mortgage Loan that has a related guaranty or letter of
credit that constitutes part of the related Mortgage File on the Closing Date,
any original transfer or assignment documents necessary to transfer or assign to
the Trustee any rights under the related guaranty of payment or letter of
credit. In the event, with respect to a Serviced Trust Mortgage Loan with a
related letter of credit, it is determined by the Master Servicer that a draw
under such letter of credit has become necessary under the terms thereof prior
to the assignment under clause (B) of the preceding sentence having been
effected, the Master Servicer shall direct (in writing) the Depositor (in the
case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the
case of a UBS Trust Mortgage Loan) to make such draw or to cause such draw to be
made on behalf of the Trustee, and, the Depositor will, and the UBS Mortgage
Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase
Agreement to, use its best efforts to cause such draw to be made; provided that
neither the Depositor nor the UBS Mortgage Loan Seller shall have any liability
in connection with the determination to make, or the making of, such draw (other
than to remit the proceeds of such draw to the Master Servicer).
(f) The relationship of each of the Master Servicer and the
Special Servicer to the Trustee, to the Serviced Non-Trust Mortgage Loan
Noteholders and to each other under this Agreement is intended by the parties to
be that of an independent contractor and not that of a joint venturer, partner
or agent.
(g) If Schedule VIII attached hereto identifies any Outside
Serviced Trust Mortgage Loan, then such Outside Serviced Trust Mortgage Loan
(and, if such Outside Serviced Trust Mortgage Loan is part of a Loan
Combination, the related Outside Serviced Non-Trust Mortgage Loan(s)) will
primarily be serviced and administered in accordance with the related Outside
Servicing Agreement, and the servicing and administrative duties of the parties
hereto with respect to any such Outside Serviced Trust Mortgage Loan, any
successor REO Trust Mortgage Loan with respect thereto and any related Outside
Administered REO Property shall be limited to those expressly set forth herein.
If Schedule VIII attached hereto does not identify any Outside Serviced Trust
Mortgage Loan, then the provisions hereof specifically relating to Outside
Serviced Trust Mortgage Loans, Outside Serviced Non-Trust Mortgage Loans,
Outside Master Servicers, Outside Serviced Loan Combinations, Outside Serviced
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Mortgage Loans, Outside Servicers, Outside Special Servicers, Outside Servicer
Defaults, Outside Servicing Agreements, Outside Servicing Fees, Outside
Servicing Fee Rates and Underlying Collection Periods shall be of no force and
effect, and each and every Mortgage Loan shall be a Serviced Mortgage Loan and
each and every REO Property shall be an Administered REO Property.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) Each of the Master Servicer and the Special Servicer shall
undertake reasonable efforts to collect all payments required under the terms
and provisions of the Serviced Mortgage Loans it is obligated to service
hereunder and shall follow such collection procedures as are consistent with the
Servicing Standard; provided, however, that neither the Master Servicer nor the
Special Servicer shall, with respect to any Serviced Mortgage Loan that
constitutes an ARD Mortgage Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Additional Interest (other
than the making of requests for its collection), unless (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
ARD Mortgage Loan is, in the good faith and reasonable judgment of the Special
Servicer, necessary, appropriate and consistent with the Servicing Standard or
(ii) all other amounts due under such ARD Mortgage Loan have been paid, the
payment of such Additional Interest has not been forgiven in accordance with
Section 3.20 and, in the good faith and reasonable judgment of the Special
Servicer, the Liquidation Proceeds expected to be recovered in connection with
such enforcement action will cover the anticipated costs of such enforcement
action and, if applicable, any associated interest accrued on Advances. The
Special Servicer shall ensure that, with respect to Specially Serviced Mortgage
Loans, the Mortgagors make payments directly to the Master Servicer; provided
that, in the event the Special Servicer receives a payment that should have been
made directly to the Master Servicer, the Special Servicer shall promptly
forward such payment to the Master Servicer. Upon receipt of any such payment
with respect to a Specially Serviced Mortgage Loan, the Master Servicer shall
promptly notify the Special Servicer, and the Special Servicer shall direct the
Master Servicer as to the proper posting of such payment. Consistent with the
foregoing, the Special Servicer, with regard to a Specially Serviced Mortgage
Loan, or the Master Servicer, with regard to a Performing Serviced Mortgage
Loan, may waive or defer any Default Charges in connection with collecting any
late payment on a Serviced Mortgage Loan; provided that without the consent of
the Special Servicer in the case of a proposed waiver by the Master Servicer, no
such waiver or deferral may be made by the Master Servicer pursuant to this
Section 3.02 if any Advance has been made as to such delinquent payment.
(b) All amounts Received by the Trust with respect to any
Cross-Collateralized Group in the form of payments from Mortgagors, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds, shall be applied by
the Master Servicer among the Trust Mortgage Loans 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 as otherwise
contemplated by the following paragraphs in this Section 3.02(b), all amounts
Received by the Trust in respect of or allocable to any particular Trust
Mortgage Loan (whether or not such Trust Mortgage Loan constitutes part of a
Cross-Collateralized Group) in the form of payments from Mortgagors, Liquidation
Proceeds, Condemnation Proceeds or Insurance Proceeds shall be applied to
amounts due and owing under such Trust Mortgage Loan (including for principal
and accrued and unpaid interest) in accordance with the express provisions of
the related Mortgage Note, the related Mortgage and/or any related loan
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agreement and, in the absence of such express provisions or to the extent that
such payments and other collections may be applied at the discretion of the
lender, as follows: first, as a recovery of any related unpaid servicing
expenses and unreimbursed Servicing Advances; second, as a recovery of accrued
and unpaid interest on such Trust Mortgage Loan at the related Mortgage Rate
(net, in the case of an Outside Serviced Trust Mortgage Loan, of related Outside
Servicing Fees) to, but not including, the date of receipt (or, in the case of a
full Monthly Payment from any Mortgagor, through the related Due Date),
exclusive, however, in the case of an ARD Trust Mortgage Loan after its
Anticipated Repayment Date, of any such accrued and unpaid interest that
constitutes Additional Interest; third, as a recovery of principal of such Trust
Mortgage Loan then due and owing, including by reason of acceleration of such
Trust Mortgage Loan following a default thereunder (or, if a Liquidation Event
has occurred in respect of such Trust Mortgage Loan, as a recovery of principal
to the extent of its entire remaining unpaid principal balance); fourth, unless
a Liquidation Event has occurred with respect to such Trust Mortgage Loan, as a
recovery of amounts to be currently applied to the payment of, or escrowed for
the future payment of, real estate taxes, assessments, insurance premiums
(including premiums on any Environmental Insurance Policy), ground rents (if
applicable) and similar items; fifth, unless a Liquidation Event has occurred
with respect to such Trust Mortgage Loan, as a recovery of Reserve Funds to the
extent then required to be held in escrow; sixth, as a recovery of any
Prepayment Consideration then due and owing under such Trust Mortgage Loan;
seventh, as a recovery of any Default Charges then due and owing under such
Trust Mortgage Loan; eighth, as a recovery of any assumption fees, modification
fees and extension fees then due and owing under such Trust Mortgage Loan;
ninth, as a recovery of any other amounts then due and owing under such Trust
Mortgage Loan (other than remaining unpaid principal and, in the case of an ARD
Trust Mortgage Loan after its Anticipated Repayment Date, other than Additional
Interest); tenth, as a recovery of any remaining principal of such Trust
Mortgage Loan to the extent of its entire remaining unpaid principal balance;
and, eleventh, in the case of an ARD Trust Mortgage Loan after its Anticipated
Repayment Date, as a recovery of accrued and unpaid Additional Interest on such
ARD Trust Mortgage Loan to but not including the date of receipt; provided that,
if one or more Advances previously made in respect of a Trust Mortgage Loan have
been reimbursed out of general collections of principal on the Mortgage Pool as
one or more Nonrecoverable Advances, then collections in respect of such Trust
Mortgage Loan available for application pursuant to clauses second through
eleventh of this sentence shall instead be applied in the following order--(i)
as a recovery of accrued and unpaid interest on, and principal of, such Trust
Mortgage Loan, to the extent of any outstanding P&I Advances and unpaid Master
Servicing Fees in respect of such Trust Mortgage Loan, (ii) as a recovery of the
item(s) for which such previously reimbursed Nonrecoverable Advance(s) were made
(together with, but only if a Liquidation Event has occurred with respect to
such Trust Mortgage Loan, any interest on such previously reimbursed
Nonrecoverable Advance(s) that was also paid out of general collections of
principal on the Mortgage Pool), and (iii) in accordance with clauses second
through eleventh of this sentence (taking into account the applications pursuant
to clauses (i) and (ii) of this proviso).
Subject to the last paragraph of this Section 3.02(b), all amounts
received with respect to any Serviced Loan Combination shall be applied to
amounts due and owing under the Mortgage Loans comprising such Loan Combination
(including for principal and accrued and unpaid interest) in accordance with the
express provisions of the related Mortgage Notes, the related Mortgage, the
related loan agreement, if any, and the related Co-Lender Agreement.
Subject to the last paragraph of this Section 3.02(b), all amounts
Received by the Trust with respect to an Outside Serviced Trust Mortgage Loan
shall be allocated among interest, principal
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and/or prepayment consideration due thereon in accordance with the terms of any
distribution date statement or servicer report received from the related Outside
Servicers with respect to such Outside Serviced Trust Mortgage Loan and, in the
absence of any such statement or report, in accordance with the related
Co-Lender Agreement and, in the absence of any allocation in the related
Co-Lender Agreement, in accordance with the first paragraph of this Section
3.02(b). Any nonrecoverable payment made by an Outside Servicer to cover
interest shortfalls incurred with respect to an Outside Serviced Trust Mortgage
Loan by reason of a Principal Prepayment or other early collection of principal
being applied to such Outside Serviced Trust Mortgage Loan prior to the related
Due Date during the relevant Underlying Collection Period, will be treated for
purposes of this Agreement as if it was a payment of interest by the related
Mortgagor.
Notwithstanding the foregoing, Loss of Value Payments shall not be
applied in accordance with the foregoing provisions of this Section 3.02(b)
unless and until such amounts are transferred to the Pool Custodial Account, and
deemed to constitute Liquidation Proceeds in respect of a particular Trust
Mortgage Loan, in accordance with Section 3.05(e); and Liquidation Proceeds
resulting from any purchase or repurchase out of the Trust Fund of, or any
application of Loss of Value Payments to, any Trust Mortgage Loan that is part
of a Loan Combination shall be applied in accordance with the provisions of the
first paragraph of this Section 3.02(b).
(c) Promptly following the Closing Date, in the case of each
Outside Serviced Trust Mortgage Loan, the Trustee shall send written notice,
substantially in the form of Exhibit S hereto, to the related Outside Master
Servicer, stating that, as of the Closing Date, the Trustee is the holder of
such Outside Serviced Trust Mortgage Loan and directing the related Outside
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 subject Outside Serviced Trust Mortgage Loan under the related
Co-Lender Agreement and the related Outside Servicing Agreement. The Master
Servicer shall, within one (1) Business Day of receipt thereof, deposit into the
Pool Custodial Account all amounts received by it from any Outside Servicer or
any other party under the related Outside Servicing Agreement and/or the related
Co-Lender Agreement with respect to any Outside Serviced Trust Mortgage Loan,
the related Mortgaged Property or any related REO Property. In connection with
the foregoing, the Master Servicer shall provide each Outside Master Servicer
wiring instructions for remittances to the Master Servicer. In the event that,
during any calendar month, the Master Servicer fails to so receive any amounts,
including (if applicable) advances, due to the holder of an Outside Serviced
Trust Mortgage Loan under the related Co-Lender Agreement and/or the related
Outside Servicing Agreement by the end of the related Collection Period ending
in such calendar month, then the Master Servicer shall promptly (i) notify the
related Outside Master Servicer and any Outside Trustee under the related
Outside Servicing Agreement that such amounts due with respect to the subject
Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto have not been received (specifying the amount of such
deficiency), (ii) make inquiry of the related Outside Master Servicer and any
Outside Trustee under the related Outside Servicing Agreement (and, to the
extent learned, inform the Trustee) as to the reason that such amounts have not
been timely received, (iii) as and to the extent appropriate, request that the
related Outside Master Servicer promptly remedy such failure to make a payment
or an advance, as the case may be, and (iv) make a P&I Advance with respect to
such amounts as and if required by the terms of this Agreement in accordance
with Section 4.03. Further, in accordance with Section 4.03, in the event the
Master Servicer fails to make such P&I Advance with respect to any Outside
Serviced Trust Mortgage
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Loan or any successor REO Trust Mortgage Loan with respect thereto, then the
Trustee or, if it fails to do so, any Fiscal Agent, shall make such P&I Advance.
SECTION 3.03. Collection of Taxes, Assessments and Similar
Items; Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Serviced Mortgage
Loans, establish and maintain one or more accounts (the "Servicing Accounts"),
in which all related Escrow Payments shall be deposited and retained; provided
that, in the case of a Serviced Loan Combination, if the related Servicing
Account includes funds with respect to any other Serviced Mortgage Loan, then
the Master Servicer shall maintain a separate sub-account of such Servicing
Account that relates solely to such Serviced Loan Combination. Subject to the
terms of the related loan documents, each Servicing Account shall be an Eligible
Account. Withdrawals of amounts so collected from a Servicing Account may be
made (in each case, to the extent of amounts on deposit therein in respect of
the related Serviced Mortgage Loan or, in the case of clauses (iv) and (v)
below, to the extent of interest or other income earned on such amounts) only
for the following purposes: (i) consistent with the related loan documents, to
effect the payment of real estate taxes, assessments, insurance premiums
(including premiums on any Environmental Insurance Policy), ground rents (if
applicable) and comparable items in respect of the respective Mortgaged
Properties; (ii) insofar as the particular Escrow Payment represents a late
payment that was intended to cover an item described in the immediately
preceding clause (i) for which a Servicing Advance was made, to reimburse the
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent, as
applicable, for such Servicing Advance; (iii) to refund to Mortgagors any sums
as may be determined to be overages; (iv) following an event of default under
the related Serviced Mortgage Loan, for such other purposes as are consistent
with the related loan documents, applicable law and the Servicing Standard; (v)
to pay interest, if required and as described below, to Mortgagors on balances
in such Servicing Account; (vi) to pay the Master Servicer interest and
investment income on balances in such Servicing Account as described in Section
3.06, if and to the extent not required by law or the terms of the related loan
documents to be paid to the Mortgagor; or (vii) to clear and terminate such
Servicing Account at the termination of this Agreement in accordance with
Section 9.01. To the extent permitted by law or the applicable loan documents,
funds in the Servicing Accounts may be invested only in Permitted Investments in
accordance with the provisions of Section 3.06. The Master Servicer shall pay or
cause to be paid to the Mortgagors interest, if any, earned on the investment of
funds in the related Servicing Accounts, if required by law or the terms of the
related Serviced Mortgage Loan. If the Master Servicer shall deposit in a
Servicing Account any amount not required to be deposited therein, it may at any
time withdraw such amount from such Servicing Account, any provision herein to
the contrary notwithstanding.
(b) The Master Servicer shall, as to each and every Serviced
Mortgage Loan, (i) maintain accurate records with respect to the related
Mortgaged Property reflecting the status of real estate taxes, assessments and
other similar items that are or may become a lien thereon and the status of
insurance premiums and any ground rents payable in respect thereof and (ii) use
reasonable efforts to obtain, from time to time, all bills for (or otherwise
confirm) the payment of such items (including renewal premiums) and, if the
subject Serviced Mortgage Loan requires the related Mortgagor to escrow for such
items, shall effect payment thereof prior to the applicable penalty or
termination date. For purposes of effecting any such payment for which it is
responsible, the Master Servicer shall apply Escrow Payments as allowed under
the terms of the related Serviced Mortgage Loan (or, if such Serviced Mortgage
Loan does not require the related Mortgagor to escrow for the payment of real
estate
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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) and/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 a Serviced Loan Combination, if the
related Reserve Account includes funds with respect to any other Mortgage Loan,
then the Master Servicer shall maintain a separate sub-account of such Reserve
Account that relates solely to such Serviced Loan Combination. Withdrawals of
amounts so deposited may be made (i) for the specific purposes for which the
particular Reserve Funds were delivered, in accordance with the Servicing
Standard and the terms of the related Mortgage Note, Mortgage and any other
agreement with the related Mortgagor governing such Reserve Funds, (ii) to pay
the Master Servicer interest and investment income earned on amounts in the
Reserve Accounts as described below, and (iii) following an event of default
under the related Serviced Mortgage Loan, for such other purposes as are
consistent with the related loan documents, applicable law and the Servicing
Standard. To the extent permitted in the applicable loan documents, funds in the
Reserve Accounts may be invested in Permitted Investments in accordance with the
provisions of Section 3.06. Subject to the related loan documents, all Reserve
Accounts shall be Eligible Accounts. Consistent with the Servicing Standard, the
Master Servicer may waive or extend the date set forth in any agreement
governing Reserve Funds by which any required repairs, capital improvements
and/or environmental remediation at the related Mortgaged Property must 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, Excess Liquidation Proceeds Account and
Loss of Value Reserve Fund.
(a) The Master Servicer shall establish and maintain one or more
separate, segregated accounts (collectively, the "Pool Custodial Account"), in
which the amounts described in clauses (i) through (xi) below (which shall not
include any amounts allocable to the Non-Trust Mortgage Loans) shall be
deposited and held on behalf of the Trustee in trust for the sole benefit of the
Certificateholders. The Pool Custodial Account shall be an Eligible Account. The
Master Servicer shall deposit or cause to be deposited in the Pool Custodial
Account, within one (1) Business Day of receipt (in the case of payments by
Mortgagors or other collections on the Trust Mortgage Loans) or as otherwise
required hereunder, the following payments and collections received (including
amounts Received by the Trust with respect to the Outside Serviced Trust
Mortgage Loans and/or any successor REO Trust Mortgage Loans with respect
thereto) 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 Consideration and late payment
charges Received by the Trust in respect of any Trust Mortgage Loan;
(iv) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds Received by the Trust in respect of any Trust
Mortgage Loan or, except to the extent such proceeds are to first be
deposited in an REO Account, any REO Property;
(v) any amounts representing a reimbursement, payment
and/or contribution due and owing to the Trust from any Non-Trust Mortgage
Loan Noteholder in accordance with the related Co-Lender Agreement;
(vi) all remittances, including (if applicable) advances,
to the Trust under the related Outside Servicing Agreement and/or the
related Co-Lender Agreement with respect to
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each Outside Serviced Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto;
(vii) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the Pool Custodial
Account;
(viii) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in connection
with losses on the Mortgage Pool resulting from a deductible clause in a
blanket or master force placed hazard insurance policy;
(ix) any amounts required to be transferred from the Loss
of Value Reserve Fund pursuant to Section 3.05(e), any Loan Combination
Custodial Account pursuant to Section 3.05A or the Pool REO Account
pursuant to Section 3.16(c);
(x) insofar as they do not constitute Escrow Payments,
any amounts paid by a Mortgagor with respect to a Serviced Trust Mortgage
Loan specifically to cover items for which a Servicing Advance has been
made; and
(xi) the Initial Deposits, if any;
provided that any amounts described in clauses (i) through (iv), (viii) and (x)
above that relate to a Serviced Combination Trust Mortgage Loan or any successor
REO Trust Mortgage Loan with respect thereto (other than Liquidation Proceeds
derived from the Permitted Purchase of such Trust Mortgage Loan or the Trust's
interest in any related REO Property) shall be deposited in the applicable Loan
Combination Custodial Account, and, in any such case, shall thereafter be
transferred to the Pool Custodial Account as provided in Section 3.05A, together
with any other amounts required to be transferred from such Loan Combination
Custodial Account to the Pool Custodial Account from time to time pursuant to
Section 3.05A.
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.
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Upon receipt of any of the amounts described in clauses (i) through
(v) and (x) of the second preceding paragraph with respect to any Serviced Trust
Mortgage Loan, the Special Servicer shall promptly, but in no event later than
two (2) Business Days after receipt, remit such amounts to the Master Servicer
for deposit into the Pool Custodial Account in accordance with the second
preceding paragraph (or, if applicable, in the case of a Serviced Combination
Trust Mortgage Loan, into the applicable Loan Combination Custodial Account in
accordance with Section 3.04A(a) and the proviso to the second preceding
paragraph), unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item should not be deposited because of a
restrictive endorsement or other appropriate reason. With respect to any such
amounts paid by check to the order of the Special Servicer, the Special Servicer
shall endorse such check to the order of the Master Servicer, unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item cannot be so endorsed and delivered because of a restrictive endorsement or
other appropriate reason. Any such amounts received by the Special Servicer with
respect to an Administered REO Property (other than an Administered REO Property
that relates to a Serviced Loan Combination) shall be deposited by the Special
Servicer into the Pool REO Account and thereafter remitted to the Master
Servicer for deposit into the Pool Custodial Account as and to the extent
provided in Section 3.16(c).
If and when any Mortgagor under any Defeasance Mortgage Loan that is
also a Serviced Mortgage Loan elects to defease all or any part of its Serviced
Mortgage Loan and, pursuant to the provisions of the related loan documents,
delivers cash to the Master Servicer to purchase the required Defeasance
Collateral, the Master Servicer shall establish and maintain one or more
separate segregated accounts (collectively, the "Defeasance Deposit Account"),
in which the Master Servicer shall deposit such cash within one (1) Business Day
of receipt by the Master Servicer. The Master Servicer shall retain such cash in
the Defeasance Deposit Account pending its prompt application to purchase
Defeasance Collateral. The Master Servicer shall hold such cash and maintain the
Defeasance Deposit Account on behalf of the Trustee and, in the case of a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s), to secure payment on the related Defeasance Mortgage Loan. The
Defeasance Deposit Account shall be an Eligible Account. To the extent permitted
by law or the applicable Defeasance Mortgage Loan, prior to the purchase of
Defeasance Collateral, funds in the Defeasance Deposit Account may be invested
only in Permitted Investments in accordance with the provisions of Section 3.06.
The Master Servicer shall pay or cause to be paid to the related Mortgagor(s)
interest, if any, earned on the investment of funds in the Defeasance Deposit
Account, if required by law or the terms of the related Defeasance Mortgage
Loan(s).
Notwithstanding the foregoing, in the event that the Master Servicer
receives cash to purchase Defeasance Collateral for any Early Defeasance Trust
Mortgage Loan that the Depositor or the UBS Mortgage Loan Seller, as applicable,
is required to repurchase pursuant to or as otherwise contemplated by Section
2.03(j), the Master Servicer shall retain such cash in the Defeasance Deposit
Account on behalf of the Trust Fund until the Depositor or the UBS Mortgage Loan
Seller, as applicable, tenders the full Purchase Price in connection with such
repurchase and shall, on the date of such repurchase, transfer such cash to the
Depositor or the UBS Mortgage Loan Seller, as applicable.
(b) The Trustee shall establish and maintain one or more
separate, segregated trust accounts (collectively, the "Collection Account") to
be held in trust for the sole benefit of the Certificateholders. Each account
that constitutes the Collection Account shall be an Eligible Account. Subject to
Section 2.05(b), 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
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the Class V Certificates. The Master Servicer shall deliver to the Trustee each
month on or before the Trust Master Servicer Remittance Date therein, for
deposit in the Collection Account, an aggregate amount of immediately available
funds equal to the Master Servicer Remittance Amount for such Trust Master
Servicer Remittance Date, together with, in the case of the Final Distribution
Date, any additional amounts contemplated by the second paragraph of Section
9.01 and any Loss of Value Payments contemplated by Section 3.05(e). Immediately
upon deposit of the Master Servicer Remittance Amount for any Trust Master
Servicer Remittance Date into the Collection Account, subject to Section
2.05(b), any portion thereof that represents Additional Interest shall be deemed
to have been deposited into the Class V Sub-Account.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee (without duplication) for deposit in the
Collection Account:
(i) any P&I Advances required to be made by the Master
Servicer in accordance with Section 4.03(a); and
(ii) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.19(a) in connection with Prepayment
Interest Shortfalls.
The Trustee shall, upon receipt, deposit in the Collection Account
any and all amounts received by it that are required by the terms of this
Agreement to be deposited therein. In addition, as and when required pursuant to
Section 3.06, the Trustee shall (in all cases prior to distributions on the
Certificates being made on the related Distribution Date) deposit in the
Collection Account any amounts required to be so deposited by the Trustee
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Collection Account.
In the event that the Master Servicer fails, on any Trust Master
Servicer Remittance Date, to remit to the Trustee any amount(s) required to be
so remitted to the Trustee hereunder by such date, the Master Servicer shall pay
the Trustee, for the account of the Trustee, interest, calculated at the Prime
Rate, on such amount(s) not timely remitted, from and including that Trust
Master Servicer Remittance Date, to but not including the related Distribution
Date.
On the Trust Master Servicer Remittance Date in March of each year
(commencing in March 2006), 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
separate, segregated accounts (collectively, the "Interest Reserve Account"), to
be held in trust for the sole 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. As and when received
from the Mortgage Loan Sellers, the Trustee shall deposit in the Interest
Reserve Account all Supplemental Interest Reserve Amounts with respect to the
Interest Reserve Mortgage Loans. In addition, on each Distribution Date in
February and, during a year that is not a leap year, in January, commencing in
February 2006, prior to
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any distributions being made in respect of the Certificates on the subject
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. Furthermore, as and when required pursuant to Section 3.06,
the Trustee shall (in any event prior to any distributions on the Certificates
and any transfers to the Collection Account on or before the related
Distribution Date) deposit in the Interest Reserve Account any amounts required
to be so deposited by the Trustee pursuant to Section 3.06 in connection with
losses incurred with respect to Permitted Investments of funds held in the
Interest Reserve Account. Subject to the next paragraph, the Interest Reserve
Account may be a sub-account of the Collection Account.
Notwithstanding that the Interest Reserve Account may be a
sub-account of the Collection Account for reasons of administrative convenience,
the Interest Reserve Account and the Collection Account shall, for all purposes
of this Agreement (including the obligations and responsibilities of the Trustee
hereunder), be considered to be and shall be required to be treated as, separate
and distinct accounts. The Trustee shall indemnify and hold harmless the Trust
Fund against any losses arising out of the failure by the Trustee to perform its
duties and obligations hereunder as if such accounts were separate accounts. The
provisions of this paragraph shall survive any resignation or removal of the
Trustee and appointment of a successor trustee.
(d) If any Excess Liquidation Proceeds are received on the
Mortgage Pool, the Trustee shall establish and maintain one or more separate,
segregated accounts (collectively, the "Excess Liquidation Proceeds Account") to
be held in trust for the sole benefit of the Certificateholders, for purposes of
holding such Excess Liquidation Proceeds. Each account that constitutes the
Excess Liquidation Proceeds Account shall be an Eligible Account. On each Trust
Master Servicer Remittance Date, the Master Servicer shall withdraw from the
Pool Custodial Account and remit to the Trustee for deposit in the Excess
Liquidation Proceeds Account all Excess Liquidation Proceeds received with
respect to the Mortgage Pool during the related Collection Period ending in the
calendar month in which such Trust Master Servicer Remittance Date occurs. In
addition, as and when required pursuant to Section 3.06, the Trustee shall (in
any event prior to any transfers to the Collection Account on or before the
related Distribution Date) deposit in the Excess Liquidation Proceeds Account
any amounts required to be so deposited by the Trustee pursuant to Section 3.06
in connection with losses incurred with respect to Permitted Investments of
funds held in the Excess Liquidation Proceeds Account. Subject to the next
paragraph, the Excess Liquidation Proceeds Account may be a sub-account of the
Collection Account.
Notwithstanding that the Excess Liquidation Proceeds Account may be
a sub-account of the Collection Account for reasons of administrative
convenience, the Excess Liquidation Proceeds Account and the Collection Account
shall, for all purposes of this Agreement (including the obligations and
responsibilities of the Trustee hereunder), be considered to be and shall be
required to be treated as, separate and distinct accounts. The Trustee shall
indemnify and hold harmless the Trust Fund against any losses arising out of the
failure by the Trustee to perform its duties and obligations hereunder as if
such accounts were separate accounts. The provisions of this paragraph shall
survive any resignation or removal of the Trustee and appointment of a successor
trustee.
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(e) If any Loss of Value Payments are received in connection
with a Material Document Defect or Material Breach, as the case may be, pursuant
to or as contemplated by Section 2.03(e), the Special Servicer shall establish
and maintain one or more non-interest bearing separate, segregated accounts
(collectively, the "Loss of Value Reserve Fund") to be held in trust for the
sole benefit of the Certificateholders, for purposes of holding such Loss of
Value Payments. Each account that constitutes the Loss of Value Reserve Fund
shall be an Eligible Account. The Special Servicer shall, upon receipt, deposit
in the Loss of Value Reserve Fund all Loss of Value Payments received by it.
(f) Funds (other than the Initial Deposits and the Supplemental
Interest Reserve Amounts) in the Pool Custodial Account, the Collection Account,
the Interest Reserve Account and the Excess Liquidation Proceeds Account may be
invested only in Permitted Investments in accordance with the provisions of
Section 3.06. Funds in the Loss of Value Reserve Fund 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 Corporate Trust Office. The Trustee shall give notice to the
Master Servicer, the Special Servicer and the Rating Agencies of any change in
the location of the Collection Account, the Interest Reserve Account or the
Excess Liquidation Proceeds Account prior to any change thereof.
SECTION 3.04A. Loan Combination Custodial Accounts for Serviced
Loan Combinations.
(a) With respect to each Serviced Loan Combination, the Master
Servicer shall establish and maintain one or more separate, segregated accounts
(collectively, with respect to such Serviced Loan Combination, the related "Loan
Combination Custodial Account") in which the amounts described in clauses (i)
through (ix) below, insofar as they are related to one or more Mortgage Loans
included in such Serviced Loan Combination, shall be deposited and held in trust
for the sole benefit of the holders of such Mortgage Loans, as their interests
may appear; provided that, subject to the last paragraph of this Section
3.04A(a), each Loan Combination Custodial Account may be a sub-account of the
Pool Custodial Account. Each Loan Combination Custodial Account shall be an
Eligible Account or, subject to the last paragraph of this Section 3.04A(a), a
sub-account of an Eligible Account. The Master Servicer shall deposit or cause
to be deposited in each Loan Combination Custodial Account, within one (1)
Business Day of receipt (in the case of payments or other collections on the
related Serviced Loan Combination) 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 related Serviced Loan Combination subsequent to
the Cut-off Date (other than in respect of principal and interest on such
Serviced Loan Combination due and payable on or before the Cut-off Date, which
payments shall be held pursuant to the terms of the related 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 related Serviced
Loan Combination, including Principal Prepayments, and regardless of
whether those payments are made by the related Mortgagor, any related
guarantor or any party exercising any cure rights hereunder or under the
related Co-Lender Agreement or any related mezzanine intercreditor
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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 related Serviced
Loan Combination, including Default Interest, and regardless of whether
those payments are made by the related Mortgagor, any related guarantor,
or any party exercising any cure rights hereunder or under the related
Co-Lender Agreement or any related mezzanine intercreditor agreement, out
of any related Reserve Funds maintained for such purpose, out of
collections on any related Defeasance Collateral or from any other source;
(iii) all Prepayment Consideration and/or late payment charges
received in respect of the related Serviced Loan Combination;
(iv) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of the related Serviced Loan
Combination or, except to the extent such proceeds are to first be
deposited in a Loan Combination REO Account, any related Administered REO
Property;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in such Loan Combination Custodial
Account;
(vi) any amounts required to be deposited by the Master Servicer
or the Special Servicer pursuant to Section 3.07(b) in connection with
losses with respect to the related Serviced Loan Combination resulting
from a deductible clause in a blanket or master force placed hazard
insurance policy;
(vii) any amounts required to be transferred from the Loan
Combination REO Account established with respect to the related Serviced
Loan Combination pursuant to Section 3.16(c);
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by the related Mortgagor with respect to the related Serviced
Loan Combination specifically to cover items for which a Servicing Advance
has been made; and
(ix) any amounts representing a reimbursement, payment and/or
contribution due and owing to a party other than the Trust from any
related Non-Trust Mortgage Loan Noteholder in accordance with the related
Co-Lender Agreement;
provided that, with respect to a Serviced Loan Combination, any Liquidation
Proceeds derived from a Permitted Purchase of the Trust Mortgage Loan included
in such Serviced Loan Combination or the Trust's interest in any related REO
Property, shall in each case be deposited into the Pool Custodial Account.
The foregoing requirements for deposit in each Loan Combination
Custodial Account shall be exclusive. Notwithstanding the foregoing, actual
payments from the related Mortgagor in respect of the related Serviced Loan
Combination in the nature of Escrow Payments, Reserve Funds, assumption fees,
assumption application fees, funds representing such Mortgagor's payment of
costs and
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expenses associated with assumptions and defeasance, modification fees,
extension fees, charges for beneficiary statements or demands, amounts collected
for checks returned for insufficient funds and any similar fees to which the
Master Servicer or Special Servicer is entitled as additional servicing
compensation and that are not expressly referred to in the prior paragraph, need
not be deposited by the Master Servicer in the subject Loan Combination
Custodial Account. If the Master Servicer shall deposit into any Loan
Combination Custodial Account any amount not required to be deposited therein,
then it may at any time withdraw such amount from such Custodial Account, any
provision herein to the contrary notwithstanding. The Master Servicer shall
promptly deliver to the Special Servicer, as additional special servicing
compensation in accordance with Section 3.11(d), all assumption fees and
assumption application fees (or the applicable portions thereof) and other
transaction fees received by the Master Servicer with respect to each Serviced
Loan Combination, to which the Special Servicer is entitled pursuant to such
section, upon receipt of a written statement of a Servicing Officer of the
Special Servicer describing the item and amount (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). Each Loan
Combination Custodial Account shall be maintained as a segregated account,
separate and apart from trust funds created for mortgage-backed securities of
other series and the other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv), (viii) and (ix) of the second preceding paragraph with respect to any
Serviced Loan Combination, the Special Servicer shall promptly, but in no event
later than two (2) Business Days after receipt, remit such amounts to the Master
Servicer for deposit into the related Loan Combination Custodial Account in
accordance with the second preceding paragraph (or, if applicable, into the Pool
Custodial Account in accordance with Section 3.04(a) and the proviso to 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 that
relates to a Serviced Loan Combination shall initially be deposited by the
Special Servicer into the Loan Combination REO Account established with respect
to such Serviced Loan Combination and thereafter remitted to the Master Servicer
for deposit into the related Loan Combination Custodial Account, all in
accordance with Section 3.16(c).
Notwithstanding that a Loan Combination Custodial Account may be a
sub-account of the Pool Custodial Account for reasons of administrative
convenience, such Loan Combination 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 respective
related 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.
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(b) If and when the related Mortgagor elects to defease any
Serviced Loan Combination or any portion thereof, the provisions of the next to
last paragraph of Section 3.04(a) relating to the Defeasance Deposit Account
shall apply.
(c) In connection with each Serviced Loan Combination, the
Master Servicer shall give notice to the Trustee, the related Non-Trust Mortgage
Loan Noteholder(s) and the Special Servicer of the location of the related Loan
Combination Custodial Account when first established and of the new location of
the related Loan Combination Custodial Account prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Pool Custodial
Account, the Collection Account, the Interest
Reserve Account and the Excess Liquidation
Proceeds Account.
(a) Subject to Section 1.03(e), which limits the application of
amounts otherwise distributable with respect to the Class IUU Certificates, the
Master Servicer may, from time to time, make withdrawals from the Pool Custodial
Account for any of the following purposes (the order set forth below not
constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the
Collection Account the amounts required to be so deposited pursuant to the
first paragraph of Section 3.04(b), and any amounts that may be applied to
make P&I Advances with respect to the Mortgage Pool pursuant to Section
4.03(a);
(ii) to reimburse any Fiscal Agent, the Trustee and
itself, in that order, for xxxxxxxxxxxx X&X Advances made thereby with
respect to the Mortgage Pool (exclusive of any Serviced Combination Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto), such Fiscal Agent's, the Trustee's and the Master Servicer's, as
the case may be, respective rights to reimbursement pursuant to this
clause (ii) with respect to any such P&I Advance being limited to amounts
on deposit in the Pool Custodial Account that represent Late Collections
of interest and principal (net of related Master Servicing Fees and any
related Workout Fees and/or Liquidation Fees) received in respect of the
particular Trust Mortgage Loan or REO Trust Mortgage Loan as to which such
P&I Advance was made;
(iii) to pay to itself earned and unpaid Master Servicing
Fees with respect to the Mortgage Pool (exclusive of any Serviced
Combination Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto), the 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 Trust Mortgage Loan or
REO Trust Mortgage Loan that remains unpaid in accordance with clause
(iii) above or Section 3.05A, as applicable, following a Final Recovery
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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, any Serviced Combination Trust Mortgage Loan or any successor
REO Trust Mortgage Loan with respect thereto), as applicable, in the
amounts and from the sources specified in Section 3.11(c);
(vi) to reimburse any Fiscal Agent, the Trustee, itself
and the Special Servicer, in that order, for any unreimbursed Servicing
Advances made thereby with respect to any Serviced Trust Mortgage Loan or
Administered REO Property (other than any Serviced Combination Trust
Mortgage Loan or any related Administered REO Property), such 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 any Fiscal Agent, the Trustee, itself
and the Special Servicer, in that order, out of general collections on the
Mortgage Pool on deposit in the Pool Custodial Account, for any
unreimbursed Advances that have been or are determined to be
Nonrecoverable Advances (provided that such amounts may be withdrawn over
time in accordance with Sections 3.11(g) or 4.03(d), as applicable);
(viii) to pay any Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, any unpaid interest accrued and payable
in accordance with Section 3.11(g) or 4.03(d), as applicable, on any
Advance made thereby under this Agreement, such Fiscal Agent's, the
Trustee's, the Master Servicer's and the Special Servicer's respective
rights to payment pursuant to this clause (viii) with respect to interest
on any such Advance being limited to amounts on deposit in the Pool
Custodial Account that represent Default Charges collected on or in
respect of the Trust Mortgage Loan or REO Trust Mortgage Loan, as
applicable, as to which the subject Advance was made, as and to the extent
contemplated by Section 3.26;
(ix) to pay, out of general collections on the Mortgage
Pool on deposit in the Pool Custodial Account, any Fiscal Agent, the
Trustee, itself and the Special Servicer, in that order, any unpaid
interest accrued and payable in accordance with Section 3.11(g) or
4.03(d), as applicable, on any Advance made thereby with respect to the
Mortgage Pool (or, in the case of a Servicing Advance, made thereby with
respect to a Serviced Loan Combination), but only to the extent that such
Advance has been reimbursed or is then being reimbursed and the related
Default Charges then on deposit in the Pool Custodial Account are not
sufficient to make such
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payment as contemplated by the immediately preceding clause (viii);
provided that, if such Advance relates to any Serviced Combination Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto (or, in the case of Servicing Advance, relates to any Serviced
Loan Combination), such payment pursuant to this clause (ix) is to be made
only to the extent that the funds on deposit in the related Loan
Combination Custodial Account are not sufficient to make such payment as
contemplated by Section 3.05A and such payment cannot be made out of the
Pool Custodial Account pursuant to clause (xviii) of this Section 3.05(a);
(x) to pay, out of amounts on deposit in the Pool
Custodial Account that represent Default Charges collected on or in
respect of the Trust Mortgage Loan or REO Trust Mortgage Loan to which the
subject expense relates (to the extent such Default Charges are not
otherwise applied as contemplated by clause (viii) above), any unpaid
expense (other than interest accrued on Advances, which is payable
pursuant to clause (viii) above, and other than Special Servicing Fees,
Liquidation Fees and Workout Fees) that is incurred with respect to such
Trust Mortgage Loan or REO Trust Mortgage Loan and that, if paid from
collections on the Mortgage Pool other than Default Charges collected with
respect to such Trust Mortgage Loan or REO Trust Mortgage Loan, would
constitute an Additional Trust Fund Expense, as and to the extent
contemplated by Section 3.26;
(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 or 4.03(c), and (C) the fees of any Independent
Contractor retained with respect to any related Administered REO Property
pursuant to Section 3.17(d) (to the extent that it has not paid itself
such fees prior to remitting collections on such REO Property to the
Special Servicer); provided that, in the case of a Mortgaged Property that
relates to a Serviced Loan Combination, such payment pursuant to this
clause (xi) is to be made only to the extent that (X) it would not
ultimately be payable out of collections on or in respect of such Loan
Combination or (Y) it is in the best interests of the Certificateholders;
(xii) to pay itself, as additional master servicing
compensation in accordance with Section 3.11(b), any amounts on deposit in
the Pool Custodial Account that represent (A) interest and investment
income earned in respect of amounts held in the Pool Custodial Account as
provided in Section 3.06(b), but only to the extent of the Net Investment
Earnings with respect to the Pool Custodial Account for any related
Investment Period, (B) Prepayment Interest Excesses collected on the
Mortgage Pool and (C) Net Default Charges (after application pursuant to
Section 3.26) actually Received by the Trust that accrued in respect of an
Outside Serviced Trust Mortgage Loan or 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 to cover such other payments and reimbursements as are
provided for under Section 3.26) actually collected that accrued in
respect of a Specially Serviced Trust Mortgage Loan and/or an REO Trust
Mortgage Loan that relates to an Administered REO Property;
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(xiii) to pay itself, the Special Servicer, the Depositor,
or any of their respective members, managers, directors, officers,
employees and agents, as the case may be, out of general collections on
the Mortgage Pool on deposit in the Pool Custodial Account, any amounts
payable to any such Person pursuant to Section 6.03; provided that such
payment does not relate solely to a Serviced Non-Trust Mortgage Loan or
any successor REO Mortgage Loan with respect thereto;
(xiv) to pay, out of general collections on the Mortgage
Pool on deposit in the Pool Custodial Account, for (A) the cost of the
Opinion of Counsel contemplated by Section 11.02(a), (B) the cost of an
Opinion of Counsel contemplated by Section 11.01(a) or 11.01(c) in
connection with any amendment to this Agreement requested by the Master
Servicer or the Special Servicer that protects or is in furtherance of the
rights and interests of Certificateholders, and (C) the cost of recording
this Agreement in accordance with Section 11.02(a); provided that, in the
cases of clauses (xiv)(A) and (xiv)(C), such payment shall be made from
the Pool Custodial Account only to the extent that it is not otherwise
paid from the related Loan Combination Custodial Account by the Trust
Master Servicer Remittance Date following the applicable Collection Period
in which the expense is incurred;
(xv) to pay itself, the Special Servicer, the Depositor,
any Controlling Class Certificateholder or any other Person, as the case
may be, with respect to each Trust Mortgage Loan, if any, previously
purchased by such Person pursuant to this Agreement, all amounts received
thereon subsequent to the date of purchase that have been deposited in the
Pool Custodial Account; and, to the extent permitted under Section
3.27(b), to reimburse the Class IUU Representative for any cure payments
made thereby with respect to a Split Trust Mortgage Loan;
(xvi) to pay, in accordance with Section 3.11(i), out of
general collections on the Mortgage Pool on deposit in the Pool Custodial
Account, any servicing expenses, that would, if advanced, constitute
Nonrecoverable Servicing Advances (other than servicing expenses that
relate solely to a Non-Trust Mortgage Loan or any successor REO Mortgage
Loan with respect thereto);
(xvii) to pay, out of general collections on the Mortgage
Pool on deposit in the Pool Custodial Account, to a Non-Trust Mortgage
Loan Noteholder or an Outside Servicer, any amount (other than normal
monthly payments) specifically payable or reimbursable to such party by
the Trust, in its capacity as holder of the related Trust Mortgage Loan or
REO Trust Mortgage Loan that is part of the relevant Loan Combination,
pursuant to the terms of the related Co-Lender Agreement;
(xviii) to reimburse or pay any Fiscal Agent, the Trustee,
the Master Servicer and/or the Special Servicer, as applicable, for
unreimbursed Advances, unpaid Master Servicing Fees and/or any unpaid
interest on any Advances, but only if and to the extent that such items
relate solely to a Serviced Combination Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto, each such party's
respective rights to reimbursement pursuant to this clause (xviii) to be
limited to amounts on deposit in the Pool Custodial Account that represent
Liquidation Proceeds derived from a Permitted Purchase of such Serviced
Combination Trust Mortgage Loan or the Trust's interest in any related
Administered REO
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Property; provided that, such items may only be reimbursed to any party
pursuant to this clause (xviii) if and to the extent that such items have
not been or are not simultaneously being reimbursed to such party pursuant
to Section 3.05A; and provided, further, that, in the case of a sale of a
Serviced Combination Trust Mortgage Loan with respect to which the
Purchase Price therefor has been reduced by amounts set forth in the next
to last proviso of the definition of "Purchase Price", the amount of any
unpaid Master Servicing Fees, unreimbursed Advances and/or unpaid interest
on Advances reimbursable to any party pursuant to this clause (xviii)
shall be reduced by any related unpaid Master Servicing Fees, unreimbursed
Advances and unpaid interest on Advances in respect of the subject
Serviced Combination Trust Mortgage Loan or REO Trust Mortgage Loan that
have served to so reduce such Purchase Price therefor and which, following
the purchase or sale from which the subject Liquidation Proceeds have been
derived, will continue to be payable or reimbursable under the related
Co-Lender Agreement and/or any successor servicing agreement with respect
to the related Serviced Loan Combination to the Master Servicer and/or the
Special Servicer (and which amounts shall no longer be payable hereunder);
(xix) on each Trust Master Servicer Remittance Date, to
transfer Excess Liquidation Proceeds in respect of the Mortgage Pool to
the Trustee, for deposit in the Excess Liquidation Proceeds Account, in
accordance with Section 3.04(d); and
(xx) to clear and terminate the Pool Custodial Account at
the termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from the Pool Custodial Account pursuant to clauses (ii) through
(xix) above.
The Master Servicer shall pay to the Special Servicer (or to
third-party contractors at the direction of the Special Servicer), the Trustee
or any Fiscal Agent from the Pool Custodial Account, amounts permitted to be
paid to the Special Servicer (or to any such third-party contractor), the
Trustee or such 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 such Fiscal Agent describing the item and amount to
which the Special Servicer (or such third-party contractor), the Trustee or such
Fiscal Agent, as applicable, is entitled (unless such payment to the Special
Servicer, the Trustee (for example, the Trustee Fee) or such Fiscal Agent, as
the case may be, is clearly required pursuant to this Agreement, in which case a
written statement is not required). The Master Servicer may rely conclusively on
any such written statement and shall have no duty to re-calculate the amounts
stated therein.
In connection with any payments required to be made to a Non-Trust
Mortgage Loan Noteholder or an Outside Servicer in accordance with Section
3.05(a)(xvii), the Master Servicer may request a written statement from a
servicing officer or responsible officer, as applicable, of such Non-Trust
Mortgage Loan Noteholder or an Outside Servicer, describing the nature and
amount of the item for which such party is seeking payment or reimbursement and
setting forth the provision(s) of the related Co-Lender Agreement pursuant to
which such party believes it is entitled to reimbursement; provided that the
Master Servicer may not condition payments required to be made to a Non-Trust
Mortgage Loan Noteholder or an Outside Servicer in accordance with Section
3.05(a)(xvii) upon receipt
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of such a written statement (other than as permitted under the related Co-Lender
Agreement); and provided, further, that to the extent such a written statement
from a servicing officer or responsible officer, as applicable, of the subject
Non-Trust Mortgage Loan Noteholder or an Outside Servicer is received by the
Master Servicer, the Master Servicer may reasonably rely upon such statement as
the nature and amount of the item for which reimbursement is sought.
The Special Servicer shall keep and maintain separate accounting for
each Specially Serviced Trust Mortgage Loan and Administered REO Property, on a
loan-by-loan basis, for the purpose of justifying any request for withdrawal
from the Pool Custodial Account. With respect to each Trust Mortgage Loan for
which it makes an Advance, each of the Trustee and any Fiscal Agent shall keep
and maintain separate accounting, on a loan-by-loan basis, for the purpose of
justifying any request for withdrawal from the Pool Custodial Account for
reimbursements of Advances or payments of interest thereon.
(b) Subject to Section 1.03(e), which limits the application of
amounts otherwise distributable with respect to the Class IUU Certificates, the
Trustee may, from time to time, make withdrawals from the Collection Account for
any of the following purposes (in no particular order of priority):
(i) to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01 or 9.01, as applicable;
(ii) to pay (A) the Trustee, any Fiscal Agent or any of
their respective directors, officers, employees and agents, as the case
may be, out of general collections on the Mortgage Pool on deposit in the
Collection Account, any amounts payable or reimbursable to any such Person
pursuant to Section 7.01(b) and/or Section 8.05, as applicable, and (B) as
and when contemplated by Section 8.08, the cost of the Trustee's
transferring Mortgage Files and other documents to a successor after being
terminated by Certificateholders pursuant to Section 8.07(c) without
cause;
(iii) to pay, out of general collections on the Mortgage
Pool on deposit in the Collection Account, for the cost of the Opinions of
Counsel sought by the Trustee or the Tax Administrator (A) as provided in
clause (iv) of the definition of "Disqualified Organization", (B) as
contemplated by Sections 10.01(i) and 10.02(e), or (C) as contemplated by
Section 11.01(a) or 11.01(c) in connection with any amendment to this
Agreement requested by the Trustee which amendment is in furtherance of
the rights and interests of Certificateholders;
(iv) to pay, out of general collections on the Mortgage
Pool on deposit in the Collection Account, any and all federal, state and
local taxes imposed on any REMIC Pool or on the assets or transactions of
any REMIC Pool, 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);
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(vi) to pay the Master Servicer any amounts deposited by
the Master Servicer in the Collection Account in error;
(vii) to transfer Interest Reserve Amounts in respect of
the Interest Reserve Mortgage Loans and any Interest Reserve REO Mortgage
Loans to the Interest Reserve Account as and when required by Section
3.04(c);
(viii) to pay itself any Net Investment Earnings with
respect to the Collection Account for any related Investment Period; and
(ix) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
On or prior to a Distribution Date, the Trustee shall be entitled to
withdraw amounts that are payable or reimbursable as set forth in clauses (ii)
through (viii) above from the Collection Account prior to making distributions
to Certificateholders on such Distribution Date.
(c) On each Trust Master Servicer Remittance Date in March
(commencing in March 2006), the Trustee shall withdraw from the Interest Reserve
Account and deposit in the Collection Account all Interest Reserve Amounts that
have been deposited in the Interest Reserve Account in respect of the Interest
Reserve Mortgage Loans and any Interest Reserve REO Mortgage Loans during
January and/or February of the same year in accordance with Section 3.04(c). On
each Distribution Date, the Trustee may withdraw from the Interest Reserve
Account and pay itself any Net Investment Earnings with respect to the Interest
Reserve Account for the then most recently ended related Investment Period.
(d) On each Trust Master Servicer Remittance Date, the Trustee
shall withdraw from the Excess Liquidation Proceeds Account and deposit in the
Collection Account, for distribution on the following Distribution Date, an
amount equal to the lesser of (i) the entire amount, if any, then on deposit in
the Excess Liquidation Proceeds Account and (ii) the excess, if any, of the
aggregate amount distributable with respect to the Regular Interest Certificates
on such Distribution Date pursuant to Sections 4.01(a) and 4.01(b), over the
Available Distribution Amount for such Distribution Date (calculated without
regard to such transfer from the Excess Liquidation Proceeds Account to the
Collection Account); provided that on the Trust Master Servicer Remittance Date
immediately prior to the Final Distribution Date, the Trustee shall withdraw
from the Excess Liquidation Proceeds Account and deposit in the Collection
Account, for distribution on such Distribution Date, any and all amounts then on
deposit in the Excess Liquidation Proceeds Account. On each Distribution Date,
the Trustee may withdraw from the Excess Liquidation Proceeds Account and pay
itself any Net Investment Earnings with respect to the Excess Liquidation
Proceeds Account for the then most recently ended related Investment Period.
(e) If any Loss of Value Payments are deposited into the Loss of
Value Reserve Fund with respect to any Trust Mortgage Loan or any related REO
Property, then the Special Servicer shall, promptly when needed, transfer such
Loss of Value Payments (up to the remaining portion thereof) from the Loss of
Value Reserve Fund to the Pool Custodial Account for the following purposes:
(i) to reimburse the Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent, in accordance with Section
3.05(a), for any Nonrecoverable Advance made by
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such party with respect to such Trust Mortgage Loan or any related REO
Property (together with interest thereon);
(ii) to pay, in accordance with Section 3.05(a), or to
reimburse the Trust for the prior payment of, any expense relating to such
Trust Mortgage Loan or any related REO Property that constitutes or, if
not paid out of such Loss of Value Payments, would constitute an
Additional Trust Fund Expense;
(iii) to offset any Realized Loss (as calculated without
regard to the application of such Loss of Value Payments) incurred with
respect to such Trust Mortgage Loan or any successor REO Trust Mortgage
Loan with respect thereto; and
(iv) following the occurrence of a Liquidation Event with
respect to such Trust Mortgage Loan or any related REO Property, to cover
the items contemplated by the immediately preceding clauses (i)-(iii) in
respect of any other Trust Mortgage Loan or REO Trust Mortgage Loan.
Any Loss of Value Payments transferred to the Pool Custodial Account
pursuant to clauses (i)-(iii) of the prior paragraph shall, except for purposes
of Section 3.11(c), be deemed to constitute Liquidation Proceeds Received by the
Trust in respect of the related Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto for which such Loss of Value Payments were
received; and any Loss of Value Payments transferred to the Pool Custodial
Account pursuant to clause (iv) of the prior paragraph shall, except for
purposes of Section 3.11(c), be deemed to constitute Liquidation Proceeds
Received by the Trust in respect of the Trust Mortgage Loan or REO Trust
Mortgage Loan for which such Loss of Value Payments are being transferred to the
Pool Custodial Account to cover an item contemplated by clauses (i) - (iii) of
the prior paragraph.
On the Trust Master Servicer Remittance Date related to the Final
Distribution Date, the Special Servicer shall withdraw from the Loss of Value
Reserve Fund and transfer to the Trustee, for deposit in the Collection Account
and, thereafter, for distribution on the Final Distribution Date, an amount
equal to the lesser of (i) the entire amount, if any, then on deposit in the
Loss of Value Reserve Fund and (ii) the excess, if any, of the aggregate amount
needed to distribute to the Holders of the Regular Interest Certificates in
accordance with Section 9.01(a), all Distributable Certificate Interest then
payable thereto, together with the aggregate Certificate Principal Balance of,
and all Loss Reimbursement Amounts for such Final Distribution Date in respect
of, the respective Classes of the Regular Interest Certificates, over the
Available Distribution Amount for the Final Distribution Date (calculated
without regard to such transfer from the Loss of Value Reserve Fund to the
Collection Account). Such Loss of Value Payments so deposited in the Collection
Account shall constitute part of the Available Distribution Amount for the Final
Distribution Date. Any amount remaining in the Loss of Value Reserve Fund on the
Final Distribution Date, after application in accordance with the second
preceding sentence, shall be distributable to the Holders of the Class R-III
Certificates on the Final Distribution Date.
SECTION 3.05A. Permitted Withdrawals From the Loan Combination
Custodial Accounts.
(a) The Master Servicer may, from time to time, make withdrawals
from the Loan Combination Custodial Account related to each Serviced Loan
Combination for any of the following
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purposes (the order set forth below not constituting an order of priority for
such withdrawals, except to the extent expressly provided in the related
Co-Lender Agreement):
(i) to make remittances each month, on or before the
related Loan Combination Master Servicer Remittance Date occurring in such
month (and at such other times as may be required under the related
Co-Lender Agreement), to the respective holders of the Mortgage Loans or
any successor REO Mortgage Loans contained in the subject Serviced Loan
Combination, including the Trust (as holder of the Trust Mortgage Loan
contained in the subject Serviced Loan Combination or any successor REO
Trust Mortgage Loan with respect thereto, as applicable), all in
accordance with the related Co-Lender Agreement, such remittances to the
Trust to be made into the Pool Custodial Account;
(ii) to reimburse, (A) first, any Fiscal Agent, second,
the Trustee, and last, itself, in that order, for xxxxxxxxxxxx X&X
Advances made by such party (with its own funds) with respect to the Trust
Mortgage Loan included in the subject Serviced Loan Combination or any
successor REO Trust Mortgage Loan with respect thereto, and (B) in the
case of the 000 Xxxxxxx Xxxxxx Loan Combination, if the 000 Xxxxxxx Xxxxxx
Note A-2 Non-Trust Mortgage Loan has been included in a commercial
mortgage securitization, the applicable party under the related Non-Trust
Mortgage Loan Securitization Agreement for any delinquency advance
(comparable to a P&I Advance) made by such party (with its own funds) with
respect to the 000 Xxxxxxx Xxxxxx Note A-2 Non-Trust Mortgage Loan or any
successor REO Mortgage Loan with respect thereto, any such reimbursement
pursuant to this clause (ii) with respect to any such P&I Advance or
comparable delinquency advance to be made out of amounts on deposit in the
related Loan Combination Custodial Account that would otherwise be
distributable to the Trust or the related Non-Trust Mortgage Loan
Noteholder, as applicable, as late collections of interest on and/or
principal of the Mortgage Loan included in the subject Serviced Loan
Combination or any successor REO Mortgage Loan with respect thereto, as
the case may be, without regard to such P&I Advance or comparable
delinquency advance, as the case may be, such reimbursement to be deducted
(if and to the extent so provided in the related Co-Lender Agreement) from
the amounts otherwise so distributable;
(iii) to reimburse, first, any Fiscal Agent, second, the
Trustee, third, itself and, last, the Special Servicer, in that order, for
any unreimbursed Servicing Advances made thereby with respect to the
subject Serviced Loan Combination or any related REO Property, any such
party's respective rights to reimbursement pursuant to this clause (iii)
with respect to any Servicing Advance being limited to amounts on deposit
in the related Loan Combination 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 related
Loan Combination 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 subject Serviced Loan
Combination or any related REO Property (with, if and to the extent
applicable under the related Co-Lender Agreement, a corresponding
allocation of such Servicing Advance and the reimbursement thereof to one
or more of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto, and
a corresponding deduction of such Servicing Advance from the amounts
otherwise distributable under the related Co-Lender Agreement to one or
more of the respective holders of
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the Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, all in accordance with
the related Co-Lender Agreement, and taking into account the subordination
of any Serviced Subordinate Non-Trust Mortgage Loan(s) included in the
subject Serviced Loan Combination or any successor REO Mortgage Loan(s)
with respect thereto;
(iv) in the case of the 000 Xxxxxxx Xxxxxx Loan
Combination, to pay any Fiscal Agent, the Trustee and itself and, if the
000 Xxxxxxx Xxxxxx Note A-2 Non-Trust Mortgage Loan has been included in a
commercial mortgage securitization, the applicable party under the related
Non-Trust Mortgage Loan Securitization Agreement for any unpaid interest
accrued and payable hereunder or under such Non-Trust Mortgage Loan
Securitization Agreement, as applicable, on any P&I Advance made thereby
under this Agreement on the 000 Xxxxxxx Xxxxxx Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto or on any
delinquency advance comparable to a P&I Advance made thereby under the
applicable Non-Trust Mortgage Loan Securitization Agreement with respect
to the 000 Xxxxxxx Xxxxxx Note A-2 Non-Trust Mortgage Loan or any
successor REO Mortgage Loan with respect thereto, any such payment (as and
to the extent provided in the related Co-Lender Agreement) to be made
pursuant to this clause (iv) out of: first, any amounts on deposit in the
related Loan Combination Custodial Account that would otherwise be
distributable under the related Co-Lender Agreement to the holders of the
000 Xxxxxxx Xxxxxx Mortgage Loans or any successor REO Mortgage Loans with
respect thereto as Default Charges on their respective Mortgage Loans or
any successor REO Mortgage Loans with respect thereto, all in accordance
with Section 3.26, with such payment to be deducted from the amounts
otherwise so distributable; second, to the maximum extent permitted by the
related Co-Lender Agreement, any amounts on deposit in the related Loan
Combination Custodial Account that would otherwise be distributable under
the related Co-Lender Agreement with respect to the 000 Xxxxxxx Xxxxxx
Note B Non-Trust Mortgage Loan or any successor REO Mortgage Loan with
respect thereto as collections of interest on and/or principal of, or any
other relevant amounts with respect to, such Non-Trust Mortgage Loan or
any successor REO Mortgage Loan with respect thereto, with such payment to
be deducted (if and to the extent so provided in the related Co-Lender
Agreement) from such amounts otherwise so distributable; and third, any
remaining amounts on deposit in the related Loan Combination Custodial
Account that would otherwise be distributable under the related Co-Lender
Agreement to the holders of the 000 Xxxxxxx Xxxxxx Mortgage Loans or any
successor REO Mortgage Loans with respect thereto (with, if and to the
extent applicable under the related Co-Lender Agreement, a corresponding
allocation of the remaining portion of such interest on such P&I Advance
or other comparable delinquency advance and the payment thereof to one or
more of the 000 Xxxxxxx Xxxxxx Mortgage Loans or any successor REO
Mortgage Loans with respect thereto, and a corresponding deduction of the
remaining portion of such interest on such P&I Advance or other comparable
delinquency advance from such remaining amounts otherwise so distributable
under the related Co-Lender Agreement to one or more of the respective
holders of the 000 Xxxxxxx Xxxxxx Mortgage Loans or any successor REO
Mortgage Loans with respect thereto, all in accordance with the related
Co-Lender Agreement, and taking into account the subordination of the 000
Xxxxxxx Xxxxxx Note B Non-Trust Mortgage Loan or any successor REO
Mortgage Loan with respect thereto; provided that, in the case of
subclauses second and third of this clause (iv), such payment shall be
made only to the extent the related P&I Advance or other comparable
delinquency advance has been or is contemporaneously being
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reimbursed and only insofar as such unpaid interest is not then payable
pursuant to a withdrawal made in accordance with subclause first of this
clause (iv);
(v) in the case of a Serviced A/B Loan Combination, to
pay any Fiscal Agent, the Trustee and itself for any unpaid interest
accrued and payable hereunder on any P&I Advance made thereby under this
Agreement on the Trust Mortgage Loan included in the subject Serviced Loan
Combination or any successor REO Trust Mortgage Loan with respect thereto,
any such payment (as and to the extent provided in the related Co-Lender
Agreement) to be made pursuant to this clause (v) out of: first, any
amounts on deposit in the related Loan Combination Custodial Account that
would otherwise be distributable under the related Co-Lender Agreement to
the holders of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto as
Default Charges on their respective Mortgage Loans or any successor REO
Mortgage Loans with respect thereto, all in accordance with Section 3.26,
with such payment to be deducted from the amounts otherwise so
distributable; and second, to the maximum extent permitted by the related
Co-Lender Agreement, any amounts on deposit in the related Loan
Combination Custodial Account that would otherwise be distributable under
the related Co-Lender Agreement to the related Non-Trust Mortgage Loan
Noteholder(s) as collections of interest on and/or principal of, or any
other relevant amounts with respect to, the Serviced Note B Non-Trust
Mortgage Loan(s) included in the subject Serviced Loan Combination or any
successor REO Mortgage Loan(s) with respect thereto, with such payment to
be deducted (if and to the extent so provided in the related Co-Lender
Agreement) from such amounts otherwise so distributable; and third, any
remaining amounts on deposit in the related Loan Combination Custodial
Account that would otherwise be distributable under the related Co-Lender
Agreement to the holders of the Mortgage Loans comprising the subject
Serviced Loan Combination or any successor REO Mortgage Loans with respect
thereto (with, if and to the extent applicable under the related Co-Lender
Agreement, a corresponding allocation of the remaining portion of such
interest on such P&I Advance and the payment thereof to one or more of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, and a corresponding
deduction of the remaining portion of such interest on such P&I Advance
from such remaining amounts otherwise so distributable under the related
Co-Lender Agreement to one or more of the respective holders of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, all in accordance with
the related Co-Lender Agreement, and taking into account the subordination
of the Serviced Note B Non-Trust Mortgage Loan(s) included in the subject
Serviced Loan Combination or any successor REO Mortgage Loan(s) with
respect thereto); provided that, in the case of subclauses second and
third of this clause (v), such payment shall be made only to the extent
the related P&I Advance has been or is contemporaneously being reimbursed
and only insofar as such unpaid interest is not then payable pursuant to a
withdrawal made in accordance with subclause first of this clause (v);
(vi) to pay any Fiscal Agent, the Trustee, itself and the
Special Servicer for any unpaid interest accrued and payable hereunder on
any Servicing Advance made thereby under this Agreement with respect to
the subject Serviced Loan Combination or any related Administered REO
Property, any such payment (as and to the extent provided in the related
Co-Lender Agreement) to be made pursuant to this clause (vi) out of:
first, any amounts on deposit in the related Loan Combination Custodial
Account that would otherwise be distributable under the related Co-Lender
Agreement to the holders of the Mortgage Loans comprising the subject
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Serviced Loan Combination or any successor REO Mortgage Loans with respect
thereto as Default Charges on their respective Mortgage Loans or any
successor REO Mortgage Loans with respect thereto, all in accordance with
Section 3.26, with such payment to be deducted from such amounts otherwise
so distributable; second, to the maximum extent permitted by the related
Co-Lender Agreement, any amounts on deposit in the related Loan
Combination Custodial Account that would otherwise be distributable under
the related Co-Lender Agreement to the related Non-Trust Mortgage Loan
Noteholder(s), as collections of interest on and/or principal of, or any
other relevant amounts with respect to, any Serviced Subordinate Non-Trust
Mortgage Loan(s) included in the subject Serviced Loan Combination or any
successor REO Mortgage Loan(s) with respect thereto, with such payment to
be deducted (if and to the extent so provided in the related Co-Lender
Agreement) from such amounts otherwise so distributable; and third, any
remaining amounts on deposit in the related Loan Combination Custodial
Account that would otherwise be distributable under the related Co-Lender
Agreement to the holders of the Mortgage Loans comprising the subject
Serviced Loan Combination or any successor REO Mortgage Loans with respect
thereto (with, if and to the extent applicable under the related Co-Lender
Agreement, a corresponding allocation of the remaining portion of such
interest on such Servicing Advance and the payment thereof to one or more
of the Mortgage Loans comprising the subject Serviced Loan Combination or
any successor REO Mortgage Loans with respect thereto, and a corresponding
deduction of the remaining portion of such interest on such Servicing
Advance from such remaining amounts otherwise so distributable under the
related Co-Lender Agreement to one or more of the respective holders of
the Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, all in accordance with
the related Co-Lender Agreement, and taking into account the subordination
of any Serviced Subordinate Non-Trust Mortgage Loan(s) included in the
subject Serviced Loan Combination or any successor REO Mortgage Loan(s)
with respect thereto); provided that, in the case of subclause second and
third of this clause (vi), such payment shall be made only to the extent
the related Servicing Advance has been or is contemporaneously being
reimbursed and only insofar as such unpaid interest is not then payable
pursuant to a withdrawal made in accordance with subclause first above of
this clause (vi);
(vii) to pay to itself any earned and unpaid Master
Servicing Fees with respect to each Mortgage Loan and successor REO
Mortgage Loan contained in the subject Serviced Loan Combination, the
right of the Master Servicer to payment pursuant to this clause (vii) with
respect to any such Mortgage Loan or successor REO Mortgage Loan being
limited to amounts on deposit in the related Loan Combination Custodial
Account that were received on or in respect of such Mortgage Loan or such
successor REO Mortgage Loan, as the case may be, and are allocable as a
recovery of interest thereon;
(viii) to reimburse, first, any Fiscal Agent, second, the
Trustee, and last, itself, in that order, for any xxxxxxxxxxxx X&X
Advances made by such party (with its own funds) with respect to the Trust
Mortgage Loan included in the subject Serviced Loan Combination or any
successor REO Trust Mortgage Loan with respect thereto that such party has
determined are Nonrecoverable Advances, any such reimbursement (as and to
the extent provided in the related Co-Lender Agreement) to be made
pursuant to this clause (viii) out of: first, to the maximum extent
permitted under the related Co-Lender Agreement, any amounts on deposit in
the related Loan Combination Custodial Account that would otherwise be
distributable under the related Co-Lender Agreement to the related
Non-Trust Mortgage Loan Noteholder(s), as collections of
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interest on and/or principal of, or any other relevant amounts with
respect to, any Serviced Subordinate Non-Trust Mortgage Loan(s) included
in the subject Serviced Loan Combination or any successor REO Mortgage
Loan(s) with respect thereto, with such payment to be deducted (if and to
the extent so provided in the related Co-Lender Agreement) from such
amounts otherwise so distributable; and second, any remaining amounts on
deposit in the related Loan Combination Custodial Account that would
otherwise be distributable under the related Co-Lender Agreement to the
holders of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto
(with, if and to the extent applicable under the related Co-Lender
Agreement, a corresponding allocation of the remaining portion of such P&I
Advances and the reimbursement thereof to one or more of the Mortgage
Loans comprising the subject Serviced Loan Combination or any successor
REO Mortgage Loans with respect thereto, and a corresponding deduction of
the remaining portion of such P&I Advances from such remaining amounts
otherwise so distributable under the related Co-Lender Agreement to one or
more of the respective holders of the Mortgage Loans comprising the
subject Serviced Loan Combination or any successor REO Mortgage Loans with
respect thereto, all in accordance with the related Co-Lender Agreement,
and taking into account the subordination of any Serviced Subordinate
Non-Trust Mortgage Loan(s) included in the subject Serviced Loan
Combination or any successor REO Mortgage Loan(s) with respect thereto);
(ix) to reimburse, first, any Fiscal Agent, second, the
Trustee, third, itself, and last, the Special Servicer, in that order, for
any unreimbursed Servicing Advance made by such party (with its own funds)
with respect to the subject Serviced Loan Combination or any related
Administered REO Property that such party has determined is a
Nonrecoverable Advance, any such reimbursement (as and to the extent
provided in the related Co-Lender Agreement) to be made pursuant to this
clause (ix) out of: first, to the maximum extent permitted by the related
Co-Lender Agreement, amounts on deposit in the related Loan Combination
Custodial Account that would otherwise be distributable under the related
Co-Lender Agreement to the related Non-Trust Mortgage Loan Noteholder(s)
as collections of interest on and/or principal of, or any other relevant
amounts with respect to, any Serviced Subordinate Non-Trust Mortgage
Loan(s) included in the subject Serviced Loan Combination or any successor
REO Mortgage Loan(s) with respect thereto, with such reimbursement to be
deducted (if and to the extent so provided in the related Co-Lender
Agreement) from the amounts otherwise so distributable; and, second, any
remaining amounts on deposit in the related Loan Combination Custodial
Account that would otherwise be distributable under the related Co-Lender
Agreement to the holders of the Mortgage Loans comprising the subject
Serviced Loan Combination or any successor REO Mortgage Loans with respect
thereto (with, if and to the extent applicable under the related Co-Lender
Agreement, a corresponding allocation of the remaining portion of such
Servicing Advance and the reimbursement thereof to one or more of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, and a corresponding
deduction of the remaining portion of such Servicing Advance from such
remaining amounts otherwise so distributable under the related Co-Lender
Agreement to one or more of the respective holders of the Mortgage Loans
comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto, all in accordance with the related
Co-Lender Agreement, and taking into account the subordination of any
Serviced Subordinate Non-Trust Mortgage Loan(s) included in the subject
Serviced Loan Combination or any successor REO Mortgage Loan(s) with
respect thereto);
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(x) to pay to the Special Servicer any earned and unpaid
Special Servicing Fees in respect of the subject Serviced Loan
Combination, any such payment (as and to the extent provided in the
related Co-Lender Agreement) to be made pursuant to this clause (x) out
of: first, to the maximum extent permitted under the related Co-Lender
Agreement, any amounts on deposit in the related Loan Combination
Custodial Account that would otherwise be distributable under the related
Co-Lender Agreement to the related Non-Trust Mortgage Loan Noteholder(s)
as collections of interest on and/or principal of, or any other relevant
amounts with respect to, any Serviced Subordinate Non-Trust Mortgage
Loan(s) included in the subject Serviced Loan Combination or any successor
REO Mortgage Loan(s) with respect thereto, with such payment to be
deducted (if and to the extent so provided in the related Co-Lender
Agreement) from such amounts otherwise so distributable; and, second, any
remaining amounts on deposit in the related Loan Combination Custodial
Account that would otherwise be distributable under the related Co-Lender
Agreement to the holders of the Mortgage Loans comprising the subject
Serviced Loan Combination or any successor REO Mortgage Loans with respect
thereto (with, if and to the extent applicable under the related Co-Lender
Agreement, a corresponding allocation of the remaining portion of such
Special Servicing Fees and the payment thereof to one or more of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, and a corresponding
deduction of the remaining portion of such Special Servicing Fees from
such remaining amounts otherwise so distributable under the related
Co-Lender Agreement to one or more of the respective holders of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, all in accordance with
the related Co-Lender Agreement, and taking into account the subordination
of any Serviced Subordinate Non-Trust Mortgage Loan(s) included in the
subject Serviced Loan Combination or any successor REO Mortgage Loan(s)
with respect thereto);
(xi) to pay the Special Servicer (or, if applicable, a
predecessor Special Servicer) earned and unpaid Workout Fees and
Liquidation Fees in respect of the subject Serviced Loan Combination, in
the amounts and, subject to the following priority, from the sources
specified in Section 3.11(c) out of: first, to the maximum extent
permitted under the related Co-Lender Agreement, any amounts on deposit in
the related Loan Combination Custodial Account that would otherwise be
distributable under the related Co-Lender Agreement to the related
Non-Trust Mortgage Loan Noteholder(s) as collections of interest on and/or
principal of, or any other relevant amounts with respect to, any Serviced
Subordinate Non-Trust Mortgage Loan(s) included in the subject Serviced
Loan Combination or any successor REO Mortgage Loan(s) with respect
thereto, with such payment to be deducted (if and to the extent so
provided in the related Co-Lender Agreement) from such amounts otherwise
so distributable; and, second, any remaining amounts on deposit in the
related Loan Combination Custodial Account that would otherwise be
distributable under the related Co-Lender Agreement to the holders of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto (with, if and to the
extent applicable under the related Co-Lender Agreement, a corresponding
allocation of the remaining portion of such Workout Fees and/or
Liquidation Fees and the payment thereof to one or more of the Mortgage
Loans comprising the subject Serviced Loan Combination or any successor
REO Mortgage Loans with respect thereto, and a corresponding deduction of
the remaining portion of such Workout Fees and/or Liquidation Fees from
such remaining amounts otherwise so distributable under the related
Co-Lender Agreement to one or more of the respective holders of the
Mortgage
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Loans comprising the subject Serviced Loan Combination or any successor
REO Mortgage Loans with respect thereto, all in accordance with the
related Co-Lender Agreement, and taking into account the subordination of
any Serviced Subordinate Non-Trust Mortgage Loan(s) included in the
subject Serviced Loan Combination or any successor REO Mortgage Loan(s)
with respect thereto);
(xii) to pay for (A) costs and expenses incurred with
respect to the Mortgaged Property securing the subject Serviced Loan
Combination pursuant to Section 3.09(c) (other than the costs of
environmental testing, which are to be covered by, and reimbursable as, a
Servicing Advance), (B) the costs and expenses of obtaining appraisals of
such Mortgaged Property pursuant to Section 3.11(h), 3.18 or Section
4.03(c), as applicable, (C) any servicing expenses incurred with respect
to the subject Serviced Loan Combination or any related REO Property, that
would, if advanced, constitute Nonrecoverable Servicing Advances, in
accordance with Section 3.11(i), and (D) the fees of any Independent
Contractor retained with respect to any Administered REO Property related
to the subject Serviced Loan Combination pursuant to Section 3.17(d) (to
the extent that it has not paid itself such fees prior to remitting
collections on such Administered REO Property to the Special Servicer),
any such payment (as and to the extent provided in the related Co-Lender
Agreement) to be made pursuant to this clause (xii) out of: first, to the
maximum extent permitted under the related Co-Lender Agreement, any
amounts on deposit in the related Loan Combination Custodial Account that
would otherwise be distributable under the related Co-Lender Agreement to
the related Non-Trust Mortgage Loan Noteholder(s) as collections of
interest on and/or principal of, or any other relevant amounts with
respect to, any Serviced Subordinate Non-Trust Mortgage Loan(s) included
in the subject Serviced Loan Combination or any successor REO Mortgage
Loan(s) with respect thereto, with such payment to be deducted (if and to
the extent so provided in the related Co-Lender Agreement) from such
amounts otherwise so distributable; and, second, any remaining amounts on
deposit in the related Loan Combination Custodial Account that would
otherwise be distributable under the related Co-Lender Agreement to the
holders of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto
(with, if and to the extent applicable under the related Co-Lender
Agreement, a corresponding allocation of the remaining portion of such
items specified in subclauses (A)-(D) of this clause (xii) and the payment
thereof to one or more of the Mortgage Loans comprising the subject
Serviced Loan Combination or any successor REO Mortgage Loans with respect
thereto, and a corresponding deduction of the remaining portion of such
items specified in subclauses (A)-(D) of this clause (xii) from such
remaining amounts otherwise so distributable under the related Co-Lender
Agreement to one or more of the respective holders of the Mortgage Loans
comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto, all in accordance with the related
Co-Lender Agreement, and taking into account the subordination of any
Serviced Subordinate Non-Trust Mortgage Loan(s) included in the subject
Serviced Loan Combination or any successor REO Mortgage Loan(s) with
respect thereto);
(xiii) to pay itself, as additional master servicing
compensation in accordance with Section 3.11(b), interest and investment
income earned in respect of amounts held in the related Loan Combination
Custodial Account as provided in Section 3.06(b), but only to the extent
of the Net Investment Earnings with respect to the related Loan
Combination Custodial Account for any related Investment Period;
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(xiv) 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, any amounts payable to any such
Person pursuant to Section 6.03, to the extent such amounts relate to the
subject Loan Combination, any such payment (as and to the extent provided
in the related Co-Lender Agreement) to be made pursuant to this clause
(xiv) out of: first, to the maximum extent permitted under the related
Co-Lender Agreement, any amounts on deposit in the related Loan
Combination Custodial Account that would otherwise be distributable under
the related Co-Lender Agreement to the related Non-Trust Mortgage Loan
Noteholder(s) as collections of interest on and/or principal of, or any
other relevant amounts with respect to, any Serviced Subordinate Non-Trust
Mortgage Loan(s) included in the subject Serviced Loan Combination or any
successor REO Mortgage Loan(s) with respect thereto, with such payment to
be deducted (if and to the extent so provided in the related Co-Lender
Agreement) from such amounts otherwise so distributable; and, second, any
remaining amounts on deposit in the related Loan Combination Custodial
Account that would otherwise be distributable under the related Co-Lender
Agreement to the holders of the Mortgage Loans comprising the subject
Serviced Loan Combination or any successor REO Mortgage Loans with respect
thereto (with, if and to the extent applicable under the related Co-Lender
Agreement, a corresponding allocation of the remaining portion of such
amounts payable pursuant to Section 6.03 and the payment thereof to one or
more of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto, and
a corresponding deduction of the remaining portion of such amounts payable
pursuant to Section 6.03 from such remaining amounts otherwise so
distributable under the related Co-Lender Agreement to one or more of the
respective holders of the Mortgage Loans comprising the subject Serviced
Loan Combination or any successor REO Mortgage Loans with respect thereto,
all in accordance with the related Co-Lender Agreement, and taking into
account the subordination of any Serviced Subordinate Non-Trust Mortgage
Loan(s) included in the subject Serviced Loan Combination or any successor
REO Mortgage Loan(s) with respect thereto);
(xv) to pay (out of amounts otherwise payable thereto
under the related Co-Lender Agreement on any related Loan Combination
Master Servicer Remittance Date) the respective shares of the holders of
the Mortgage Loans or any REO Mortgage Loans contained in the subject
Serviced Loan Combination of the cost of recording of the related
Co-Lender Agreement in accordance with such Co-Lender Agreement;
(xvi) to pay for the cost of recording this Agreement and
the cost of any corresponding Opinion of Counsel, insofar as such
recordation is for the benefit of the holders of the Mortgage Loans or any
successor REO Mortgage Loans contained in the subject Serviced Loan
Combination, any such payment (as and to the extent provided in the
related Co-Lender Agreement) to be made pursuant to this clause (xvi) out
of: first, to the maximum extent permitted under the related Co-Lender
Agreement, any amounts on deposit in the related Loan Combination
Custodial Account that would otherwise be distributable under the related
Co-Lender Agreement to the related Non-Trust Mortgage Loan Noteholder(s)
as collections of interest on and/or principal of, or any other relevant
amounts with respect to, any Serviced Subordinate Non-Trust Mortgage
Loan(s) included in the subject Serviced Loan Combination or any successor
REO Mortgage Loan(s) with respect thereto, with such payment to be
deducted (if and to the extent so provided in the related Co-Lender
Agreement) from such amounts otherwise so distributable; and, second, any
remaining amounts on deposit in the related Loan Combination
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Custodial Account that would otherwise be distributable under the related
Co-Lender Agreement to the holders of the Mortgage Loans comprising the
subject Serviced Loan Combination or any successor REO Mortgage Loans with
respect thereto (with, if and to the extent applicable under the related
Co-Lender Agreement, a corresponding allocation of the remaining portion
of such costs and the payment thereof to one or more of the Mortgage Loans
comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto, and a corresponding deduction of the
remaining portion of such costs from such remaining amounts otherwise so
distributable under the related Co-Lender Agreement to one or more of the
respective holders of the Mortgage Loans comprising the subject Serviced
Loan Combination or any successor REO Mortgage Loans with respect thereto,
all in accordance with the related Co-Lender Agreement, and taking into
account the subordination of any Serviced Subordinate Non-Trust Mortgage
Loan(s) included in the subject Serviced Loan Combination or any successor
REO Mortgage Loan(s) with respect thereto);
(xvii) to the extent (A) consistent with the Co-Lender
Agreement for the subject Serviced Loan Combination and (B) not otherwise
included among the payments contemplated by clause (i) above of this
Section 3.05A, to transfer to the Pool Custodial Account the aggregate of
all Additional Trust Fund Expenses and/or any other amounts relating to
the subject Serviced Loan Combination, that have been previously paid out
of the Pool Custodial Account pursuant to Section 3.05(a) and that, if not
previously paid out of the Pool Custodial Account in accordance with
Section 3.05(a), would have been otherwise payable from such Loan
Combination Custodial Account under this Section 3.05A;
(xviii) if the related Co-Lender Agreement permits any
related Non-Trust Mortgage Loan Noteholder to cure defaults under the
Trust Mortgage Loan included in the subject Serviced Loan Combination, to
reimburse any amounts paid by the applicable Non-Trust Mortgage Loan
Noteholder in connection with exercising such cure rights, such Non-Trust
Mortgage Loan Noteholder's right to reimbursement under this clause
(xviii) to be limited to amounts on deposit in the related Loan
Combination Custodial Account that represent collections on the subject
Serviced Loan Combination that are specifically allocable to such
reimbursement in accordance with the related Co-Lender Agreement; and
(xix) to clear and terminate such Loan Combination
Custodial Account at the termination of this Agreement pursuant to Section
9.01.
The Master Servicer shall keep and maintain separate accounting
records in connection with any withdrawal from each Loan Combination Custodial
Account pursuant to clauses (ii) through (xviii) of the preceding paragraph.
(b) 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 or any Fiscal Agent, as applicable, from each Loan
Combination Custodial Account, amounts permitted to be paid thereto from such
account promptly upon receipt of a written statement of (i) a Servicing Officer
of the Special Servicer or (ii) a Responsible Officer of the Trustee or such
Fiscal Agent, as the case may be, in each case describing the item and amount to
which the Special Servicer (or such third-party contractor), the Trustee or such
Fiscal Agent, as the case may be, is entitled (unless such payment to the
Special Servicer, the Trustee or such Fiscal Agent, as the case may be, is
clearly required pursuant to this Agreement, in which case
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written statements shall not be required). The Master Servicer may rely
conclusively on any such written statement and shall have no duty to
re-calculate the amounts stated therein. The parties seeking payment pursuant to
this section shall each keep and maintain separate accounting for the purpose of
justifying any request for withdrawal from each Loan Combination Custodial
Account, on a loan-by-loan basis.
In the case of each Serviced Loan Combination, the Master Servicer
shall remit or cause to be remitted to each Serviced Non-Trust Mortgage Loan
Noteholder, within one Business Day of the Master Servicer's receipt thereof,
late collections (not including Principal Prepayments) received on the related
Serviced Non-Trust Mortgage Loan subsequent to the related Determination Date
therefor in any particular month (exclusive of any portion of such amount
payable or reimbursable to any third party in accordance in accordance with this
Agreement and the related Co-Lender Agreement), to the extent such amount is not
otherwise included or scheduled to be included in a normal monthly remittance
during such month to such Serviced Non-Trust Mortgage Loan Noteholder and in
respect of which an advance is required to be made or has been made by a service
provider of the related securitization trust.
To the extent (i) consistent with the Co-Lender Agreement for the
related Serviced Loan Combination and (ii) not otherwise included as part of the
normal monthly remittance, the Master Servicer shall transfer from each Loan
Combination Custodial Account to the Pool Custodial Account, promptly upon
amounts for such purposes becoming available in such Loan Combination Custodial
Account, the aggregate of all Additional Trust Fund Expenses and/or any other
amounts relating to such Serviced Loan Combination, that have been previously
paid out of the Pool Custodial Account pursuant to Section 3.05(a) and that, if
not previously paid out of the Pool Custodial Account in accordance with Section
3.05(a), would have been otherwise payable from such Loan Combination Custodial
Account under this Section 3.05A.
In accordance with Article IV of the Co-Lender Agreement for each
Serviced Loan Combination, the Master Servicer shall, as and when required
thereunder (or, if no date is specified therein, on each applicable Loan
Combination Master Servicer Remittance Date), withdraw from the related Loan
Combination Custodial Account and (i) transfer to the Pool Custodial Account all
amounts required to be remitted to the Trust with respect to the Trust Mortgage
Loan included in such Serviced Loan Combination and/or any successor REO Trust
Mortgage Loan with respect thereto, pursuant to the related Co-Lender Agreement,
and (ii) remit to the related Serviced Non-Trust Mortgage Loan Noteholder(s) all
amounts required to be remitted thereto with respect to the Serviced Non-Trust
Mortgage Loan(s) included in such Serviced Loan Combination and/or any successor
REO Mortgage Loan with respect thereto, pursuant to the related Co-Lender
Agreement. Monthly remittances to the holder(s) of the Non-Trust Mortgage
Loan(s) included in any Serviced Loan Combination and/or any successor REO
Mortgage Loan(s) with respect thereto shall, in each case, be made as and when
required under the related Co-Lender Agreement (or, if no date is specified
therein, on the applicable Loan Combination Master Servicer Remittance Date) in
accordance with the reasonable instructions of such respective holder(s),
including as to the method of payment (which shall be by wire transfer of
immediately available funds).
In connection with each Serviced Loan Combination that includes any
Specially Designated Securitized Non-Trust Mortgage Loan, if the Master Servicer
fails, on or before any applicable Loan Combination Master Servicer Remittance
Date for such Loan Combination, to remit to the holder of such Non-Trust
Mortgage Loan any amount(s) required to be so remitted to such holder
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hereunder on or before such date, the Master Servicer shall pay to such holder,
for the account of such holder, interest, calculated at the federal funds rate,
on such amount(s) not timely remitted, from and including such Loan Combination
Master Servicer Remittance Date to but not including the date on which the
required remittance is made.
SECTION 3.06. Investment of Funds in the Collection Account, the
Servicing Accounts, the Reserve Accounts, the
Defeasance Deposit Account, the Custodial
Accounts, the REO Accounts, the Interest Reserve
Account and the Excess Liquidation Proceeds
Account.
(a) (i) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Defeasance
Deposit Account or a Custodial Account (any of the foregoing accounts listed in
this clause (i), a "Master Servicer Account"), (ii) the Special Servicer may
direct in writing any depository institution maintaining an REO Account, and
(iii) the Trustee may direct (pursuant to a standing order or otherwise) any
depository institution maintaining the Collection Account, the Interest Reserve
Account or the Excess Liquidation Proceeds Account (any of the foregoing
accounts listed in this clause (iii), a "Trustee Account"; and any of the Master
Servicer Accounts, the REO Accounts and Trustee Accounts, an "Investment
Account"), to invest, or if it is such depository institution, may itself
invest, the funds held therein (other than, in the case of the Pool Custodial
Account, the Interest Reserve Account and the Collection Account, the Initial
Deposits and the Supplemental Interest Reserve Amounts) in one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless payable
on demand, (x) 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 or (y) if and to the extent that the
depository institution maintaining such Investment Account is the obligor on
such investment, no later than the time and date as of which such funds are
required to be withdrawn from such account pursuant to this Agreement (but in
any event prior to distributions on the Certificates or any transfers to another
Investment Account being made on or before the related Distribution Date);
provided that in the case of any Servicing Account, any Reserve Account or the
Defeasance Deposit Account, such investment direction shall be subject to the
related loan documents and applicable law.
All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trustee (in its capacity as such) and, in the case of a
Permitted Investment in any Investment Account solely related to a Serviced Loan
Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s). The
Master Servicer (with respect to Permitted Investments of amounts in the Master
Servicer Accounts) and the Special Servicer (with respect to Permitted
Investments of amounts in the REO Accounts), on behalf of the Trustee and, in
the case of any Investment Account solely related to a Serviced Loan
Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), or the
Trustee in its capacity as such (in the case of any Trustee Account), shall (i)
be the "entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is a
"certificated security", "uncertificated security" or "deposit account". The
Trustee hereby designates the Master Servicer (with respect to Permitted
Investments of amounts in the Master Servicer Accounts) and the Special Servicer
(with respect to Permitted Investments of amounts in the REO Accounts), as
applicable, as the Person that shall be the "entitlement holder" and maintain
"control" as set forth under clauses (i) and (ii) above. For purposes of this
Section 3.06(a), (i) the terms "entitlement holder", "security entitlement",
"control" (except with respect to deposit accounts),
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"certificated security" and "uncertificated security" shall have the meanings
given such terms in Revised Article 8 (1994 Revision) of the UCC, and the terms
"control" (with respect to deposit accounts) and "deposit account" shall have
the meanings given such terms in Revised Article 9 (1998 Revision) of the UCC,
and (ii) "control" of any Permitted Investment in any Investment Account by the
Master Servicer or the Special Servicer shall constitute "control" by a Person
designated by, and acting on behalf of, the Trustee and, in the case of any
Investment Account solely related to a Serviced Loan Combination, the related
Serviced Non-Trust Mortgage Loan Noteholder(s), for purposes of Revised Article
8 (1994 Revision) of the UCC or Revised Article 9 (1998 Revision) of the UCC, as
applicable. If amounts on deposit in an Investment Account are at any time
invested in a Permitted Investment payable on demand, the Master Servicer (in
the case of any Master Server Account), the Special Servicer (in the case of the
REO Accounts) or the Trustee (in the case of any Trustee Account) shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount equal to at least the lesser of (1) all amounts then
payable thereunder and (2) the amount required to be
withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Special Servicer
or the Trustee, as the case may be, that such Permitted
Investment would not constitute a Permitted Investment in
respect of funds thereafter on deposit in the Investment
Account.
(b) Whether or not the Master Servicer directs the investment of
funds in any of the Master Servicer Accounts, interest and investment income
realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for each such Investment Account for each related Investment
Period (and, in the case of Servicing Accounts, Reserve Accounts and the
Defeasance Deposit Account, to the extent not otherwise payable to Mortgagors
under applicable law or the related loan documents), shall be for the sole and
exclusive benefit of the Master Servicer and shall be subject to its withdrawal
in accordance with Section 3.03(a), 3.03(d), 3.04(a), 3.04A(b), 3.05(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 related Investment Period, shall be for the
sole and exclusive benefit of the Special Servicer and shall be subject to its
withdrawal in accordance with Section 3.16(b). Whether or not the Trustee
directs the investment of funds in any of the Trustee Accounts, interest and
investment income realized on funds deposited therein, to the extent of the Net
Investment Earnings, if any, for such Investment Account for each related
Investment Period, shall be for the sole and exclusive benefit of the Trustee
and shall be subject to its withdrawal in accordance with Section 3.05(b),
3.05(c) or 3.05(d), as the case may be. If any loss shall be incurred in respect
of any Permitted Investment on deposit in any Investment Account, the Master
Servicer (in the case of (i) the Servicing Accounts, the Reserve Accounts and
the Defeasance Deposit Account (except to the extent that any investment of
funds with respect thereto is at the direction of a Mortgagor in accordance with
the related loan documents or applicable law) and (ii) the Custodial Accounts),
the Special Servicer (in the case of the REO Accounts) and the Trustee (in the
case of any Trustee Account) shall promptly deposit therein from its own funds,
without right of reimbursement, no later than the end of the related Investment
Period, during which such loss was incurred, the amount of the Net Investment
Loss, if any, for such Investment Account for such Investment Period.
Notwithstanding any of the foregoing provisions of this Section 3.06, no party
shall be required under this Agreement to deposit any
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loss on a deposit of funds in an Investment Account if such loss is incurred
solely as a result of the insolvency of the federal or state chartered
depository institution or trust company with which such deposit was maintained
so long as such depository institution or trust company satisfied the conditions
set forth in the definition of "Eligible Account" at the time such deposit was
made and also as of a date no earlier than 30 days prior to the insolvency.
(c) Except as expressly provided otherwise in this Agreement, if
any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment, the Trustee may, and subject to Section 8.02, upon the
request of the Certificateholders entitled to a majority of the Voting Rights
allocated to any Class, shall take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings.
(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.
(e) Notwithstanding the foregoing, the Initial Deposits and the
Supplemental Interest Reserve Amounts shall remain uninvested.
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage; Environmental
Insurance.
(a) The Master Servicer shall use reasonable efforts, consistent
with the Servicing Standard, to cause to be maintained for each Mortgaged
Property that secures a Serviced Mortgage Loan and is not an REO Property, all
insurance coverage as is required under the related Mortgage Loan (except to the
extent that the failure to maintain such insurance coverage is an Acceptable
Insurance Default); provided that, if and to the extent that any such Mortgage
permits the holder thereof any discretion (by way of consent, approval or
otherwise) as to the insurance coverage that the related Mortgagor is required
to maintain, the Master Servicer or Special Servicer, as the case may be, shall
exercise such discretion in a manner consistent with the Servicing Standard; and
provided, further, that, if and to the extent that a Mortgage so permits, the
Master Servicer or Special Servicer, as the case may be, shall use reasonable
efforts to require the related Mortgagor to obtain the required insurance
coverage from Qualified Insurers that, in each case, have the applicable
Required Insurer Rating; and provided, further, that the Master Servicer shall
cause to be maintained, with Qualified Insurers that, in each case, have the
applicable Required Insurer Rating, for any such Mortgaged Property any such
insurance that the related Mortgagor is required but fails to maintain, but only
to the extent that (i) the Trustee (as mortgagee of record on behalf of the
Certificateholders or, in the case of a Mortgaged Property that secures a
Serviced Loan Combination, the Certificateholders and the related Non-Trust
Mortgage Loan Noteholder(s)) has an insurable interest, and (ii) either (A) such
insurance is available at a commercially reasonable rate, or (B) solely in the
case of all-risk insurance or other insurance that covers losses from acts of
terrorism, the failure by the Mortgagor to maintain such insurance has not been
determined by the Special Servicer to constitute an Acceptable Insurance
Default. The related Serviced Loan Combination Controlling Party (in the case of
a Mortgaged Property that secures a Serviced Loan Combination), the Class IUU
Representative (in the case of a Mortgaged Property that secures a Split Trust
Mortgage Loan during a Class IUU Control Period with respect thereto), or the
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Controlling Class Representative (in the case of any other Mortgaged Property
securing a Serviced Mortgage Loan) may request that earthquake insurance be
secured for such Mortgaged Property by the related Mortgagor, to the extent that
(i) such insurance may be obtained at a commercially reasonable price and (ii)
the related loan documents and applicable law give the mortgagee the right to
request such insurance coverage and such loan documents require the Mortgagor to
obtain earthquake insurance at the request of the mortgagee. Subject to Section
3.17(a), the Special Servicer, in accordance with the Servicing Standard, shall
also cause to be maintained for each Administered REO Property no less insurance
coverage than was previously required of the Mortgagor under the related
Mortgage; provided that such insurance is available at commercially reasonable
rates and the subject hazards are at the time commonly insured against for
properties similar to the subject Administered REO Property located in or around
the region in which such Administered REO Property is located (or, in the case
of all-risk insurance or other insurance that covers acts of terrorism, either
such insurance is available at a commercially reasonable rate or, based upon due
inquiry in accordance with the Servicing Standard, the subject hazards are at
the time commonly insured against for properties similar to the subject
Administered REO Property located in or around the region in which such
Administered REO Property is located); and provided, further, that all such
insurance shall be obtained from Qualified Insurers that, in each case, shall
have the applicable Required Insurer Rating. 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. If the Special Servicer
is in the process of making a determination, in the case of all-risk insurance
or other insurance that covers losses from acts of terrorism, as to whether the
failure by the Mortgagor under any Mortgage Loan to maintain such insurance
constitutes an Acceptable Insurance Default, then, during the period of such
evaluation by the Special Servicer, the Master Servicer shall not be liable for
any loss related to its failure to require the related Mortgagor to maintain
terrorism insurance and shall not be in default of its obligations hereunder as
a result of such failure to maintain terrorism insurance (provided that the
Master Servicer used reasonable efforts, in accordance with the Servicing
Standard, to cause such Mortgagor to maintain such insurance and has given
prompt written notice to the Special Servicer of its determination that it will
not be successful in its efforts to cause the Mortgagor to obtain such
insurance, along with its determination, and any information in its possession,
regarding the availability and cost of such insurance). The Special Servicer
shall promptly notify the Master Servicer of each such determination under this
paragraph.
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 Serviced Loan Combination Controlling Party or the
Controlling Class Representative, as applicable) shall not, for purposes hereof,
including calculating monthly distributions to Certificateholders, be added to
the unpaid principal balance or Stated Principal Balance of the related Serviced
Mortgage Loan(s) or REO Mortgage Loan(s), notwithstanding that the terms of such
loan so
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permit, but shall be recoverable by the Master Servicer or the Special Servicer,
as applicable, as a Servicing Advance.
(b) If either the Master Servicer or the Special Servicer shall
obtain and maintain, or cause to be obtained and maintained, a blanket policy or
master force placed policy insuring against hazard losses on all of the Serviced
Mortgage Loans and/or Administered REO Properties that it is required to service
and administer, then, to the extent such policy (i) is obtained from a Qualified
Insurer having (or whose obligations are guaranteed or backed, in writing, by an
entity having) the applicable Required Insurer Rating, 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 the subject Administered
REO Properties. Such blanket policy or master force placed policy may contain a
deductible clause (not in excess of a customary amount), in which case the
Master Servicer or the Special Servicer, as appropriate, shall, if there shall
not have been maintained on the related Mortgaged Property or subject
Administered REO Property an individual hazard insurance policy complying with
the requirements of Section 3.07(a), and there shall have been one or more
losses that would have been covered by such individual policy, promptly deposit
into the applicable Custodial Account from its own funds the amount not
otherwise payable under the blanket policy or master force placed policy because
of the deductible clause therein, to the extent that any such deductible exceeds
the deductible limitation that pertained to the related Serviced Mortgage Loan
(or in the absence of any such deductible limitation, the deductible limitation
for an individual policy which is consistent with the Servicing Standard). The
Master Servicer or the Special Servicer, as appropriate, shall prepare and
present, on behalf of itself, the Trustee, the Certificateholders and, in the
case of a Mortgaged Property that secures a Serviced Loan Combination, the
related Non-Trust Mortgage Loan Noteholder(s), claims under any such blanket
policy or master force placed policy in a timely fashion in accordance with the
terms of such policy.
(c) Subject to the third paragraph of this Section 3.07(c), each
of the Master Servicer and the Special Servicer shall at all times during the
term of this Agreement (or, in the case of the Special Servicer, at all times
during the term of this Agreement in which Specially Serviced Mortgage Loans
and/or Administered REO Properties are part of the Trust Fund) keep in force
with Qualified Insurers that in each case have (or whose obligations are in each
case guaranteed or backed, in writing, by an entity that has) the applicable
Required Insurer Rating, 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 with respect to any Class of Certificates (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 that in each case have (or whose obligations are in each case
guaranteed or backed, in writing, by an entity that has) the applicable Required
Insurer Rating, a policy or policies of insurance covering
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loss occasioned by the errors and omissions of its officers and employees in
connection with its servicing obligations hereunder, which policy or policies
shall be in such form and amount as would permit it to be a qualified Xxxxxx Mae
seller-servicer of multifamily mortgage loans, or in such other form and amount
as would not cause an Adverse Rating Event with respect to any Class of
Certificates (as evidenced in writing from each Rating Agency). Each of the
Master Servicer and the Special Servicer shall be deemed to have complied with
the foregoing provisions if an Affiliate thereof has such insurance and, by the
terms of such policy or policies, the coverage afforded thereunder extends to
the Master Servicer or the Special Servicer, as the case may be.
Notwithstanding the foregoing, for so long as the long-term debt
obligations of the Master Servicer or Special Servicer (or its direct corporate
parent if such parent is responsible for the obligations of the Master Servicer
or Special Servicer, as applicable), as the case may be, are rated at least "A"
from S&P and "A" from Fitch (or, in the case of any such Rating Agency, such
lower rating as will not result in an Adverse Rating Event with respect to any
Class of Certificates rated by such Rating Agency, as evidenced in writing by
such Rating Agency), such Person may self-insure with respect to the risks
described in this Section 3.07(c).
(d) In the event that either of the Master Servicer or the
Special Servicer has actual knowledge of any event (an "Insured Environmental
Event") giving rise to a claim under any Environmental Insurance Policy in
respect of any Environmentally Insured Mortgage Loan (other than, if applicable,
an Outside Serviced 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, an Outside Serviced 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, any Outside Serviced 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.
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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,
an Outside Serviced Trust Mortgage Loan), then the party receiving such notice
shall, within five (5) Business Days after receipt thereof, provide written
notice of such termination to the other such party and the Trustee. Upon receipt
of such notice, the Master Servicer, with respect to a Performing Serviced
Mortgage Loan, or the Special Servicer, with respect to a Specially Serviced
Mortgage Loan or an Administered REO Property, shall address such termination in
accordance with Section 3.07(a). Any legal fees, premiums or other out-of-pocket
costs incurred in accordance with the Servicing Standard in connection with
enforcing the obligations of the Mortgagor under any Environmental Insurance
Policy or a resolution of such termination of an Environmental Insurance Policy
shall be paid by the Master Servicer and shall be reimbursable to it as a
Servicing Advance.
The Master Servicer (with respect to Performing Serviced Mortgage
Loans) and the Special Servicer (with respect to Specially Serviced Mortgage
Loans) shall monitor the actions, and enforce the obligations, of the related
Mortgagor under each Environmentally Insured Mortgage Loan (other than, if
applicable, an Outside Serviced Trust Mortgage Loan) insofar as such
actions/obligations relate to (i) to the extent consistent with Section 3.07(a),
the maintenance (including, without limitation, any required renewal) of an
Environmental Insurance Policy with respect to the related Mortgaged Property or
(ii) environmental testing or remediation at the related Mortgaged Property.
SECTION 3.08. Enforcement of Alienation Clauses.
(a) If, with respect to any Performing Serviced Mortgage Loan,
the Master Servicer receives a request from a Mortgagor regarding the transfer
of the related Mortgaged Property to, and assumption of such Performing Serviced
Mortgage Loan by, another Person and/or transfers of certain interests in such
Mortgagor (including, without limitation, sales or transfers of the related
Mortgaged Property (in full or in part) or the sale, transfer, pledge or
hypothecation of direct or indirect interests in the related Mortgagor or its
owners) or, in the case of a Performing Serviced Mortgage Loan that by its terms
permits transfer or assumption without the consent of the lender so long as
certain conditions are satisfied, a request by the related Mortgagor for a
determination that such conditions have been satisfied, then the Master Servicer
shall immediately notify the Special Servicer of such request, shall evaluate
(consistent with the Servicing Standard) the experience and financial condition
of the proposed transferee and the status of any conditions to transfer or
assumption (as described above) and prepare a report in connection therewith and
shall deliver to the Special Servicer such report and any documents or other
materials that the Master Servicer shall have received regarding the proposed
transfer and, if applicable, the proposed assumption. The Special Servicer shall
have the right hereunder, in accordance with the Servicing Standard, to withhold
or grant consent to any such request for such transfer and/or assumption and/or
to make a determination as to whether the conditions to transfer or assumption
(as described above) have been satisfied, as applicable, each in accordance with
the terms of the subject Performing Serviced Mortgage Loan and this Agreement;
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 6.12, in each case if
and as applicable. If the Special Servicer, in accordance with the Servicing
Standard, (i) withholds or denies its consent to any such request for such
transfer and/or assumption with respect to any Performing Serviced Mortgage Loan
and/or (ii) determines, with respect to any Performing Serviced Mortgage Loan
that by its terms permits transfer or assumption without lender consent so long
as certain conditions are satisfied, that such conditions have not been
satisfied, then in either case the Master
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Servicer shall not permit the requested transfer or assumption of such
Performing Serviced Mortgage Loan. If the Special Servicer consents to such
proposed transfer and/or assumption and/or determines that the conditions to
transfer or assumption have been satisfied, 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 Performing Serviced
Mortgage Loan by, another Person, the Master Servicer (subject to Section
3.08(d)) shall be authorized to enter into an assumption or substitution
agreement with the Person, which shall be a Single Purpose Entity, to whom the
related Mortgaged Property has been or is proposed to be conveyed and/or release
the original Mortgagor from liability under such Performing Serviced Mortgage
Loan and substitute as obligor thereunder the Person to whom the related
Mortgaged Property has been or is proposed to be conveyed; provided, however,
that the Master Servicer shall not enter into any such agreement to the extent
that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor
Trust Event or create any lien on a Mortgaged Property that is senior to, or on
parity with, the lien of the related Mortgage. The Master Servicer shall notify
the Trustee, the Special Servicer, each Rating Agency, the Controlling Class
Representative and, in the case of a Serviced Loan Combination that consists of
Performing Serviced Mortgage Loans, the related Serviced Non-Trust Mortgage Loan
Noteholder(s) and, in the case of a Split Trust Mortgage Loan, the Class IUU
Representative, of any assumption or substitution agreement executed pursuant to
this Section 3.08(a) and shall forward thereto a copy of such agreement together
with a Review Package. Subject to the terms of the related loan documents, no
assumption of a Cross-Collateralized Mortgage Loan shall be made without the
assumption of all other Serviced Trust Mortgage Loans making up the related
Cross-Collateralized Group. Further, subject to the terms of the related loan
documents and applicable law, no assumption of a Serviced Mortgage Loan shall be
made or transfer of interest in a Mortgagor approved, unless all costs in
connection therewith, including any arising from seeking Rating Agency
confirmation, are paid by the related Mortgagor.
(b) If, with respect to a Specially Serviced Mortgage Loan, the
Master Servicer receives a request from a Mortgagor for consent to a transfer of
the related Mortgaged Property and assumption of such Specially Serviced
Mortgage Loan and/or consent to a transfer of interests in the related Mortgagor
(including, without limitation, sales or transfers of the related Mortgaged
Property (in full or in part) or the sale, transfer, pledge or hypothecation of
direct or indirect interests in the related Mortgagor or its owners) or in the
case of a Specially Serviced Mortgage Loan that by its terms permits transfer or
assumption without the consent of the lender so long as certain conditions are
satisfied, a request by the related Mortgagor for a determination that such
conditions have been satisfied, 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
6.12, in each case if and as applicable, the Special Servicer shall determine
whether to grant such consent, whether the conditions to transfer or assumption
(as described above) have been satisfied and/or whether to enforce any
restrictions on such transfer and/or assumption contained in the related loan
documents, as applicable, each in accordance with the Servicing Standard.
Upon consent by the Special Servicer to any proposed transfer of a
Mortgaged Property and assumption by the proposed transferee of the related
Serviced Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer
shall process the request of the related Mortgagor for such transfer and
assumption and shall be authorized to enter into an assumption or substitution
agreement with the Person, which shall be a Single Purpose Entity, to whom the
related Mortgaged Property has been or is proposed to be conveyed and/or release
the original Mortgagor from liability under the related Serviced
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Mortgage Loan and substitute as obligor thereunder the Person to whom the
related Mortgaged Property has been or is proposed to be conveyed; provided,
however, that the Special Servicer shall not enter into any such agreement to
the extent that any terms thereof would result in an Adverse REMIC Event or
Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is
senior to, or on parity with, the lien of the related Mortgage. The Special
Servicer shall notify the Trustee, the Master Servicer, each Rating Agency, the
Controlling Class Representative and, with respect to a Serviced Loan
Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), of any
assumption or substitution agreement executed pursuant to this Section 3.08(b)
and shall forward thereto a copy of such agreement. Subject to the terms of the
related loan documents, no assumption of a Cross-Collateralized Mortgage Loan
shall be made without the assumption of all other Serviced Trust Mortgage Loans
making up the related Cross-Collateralized Group. Further, subject to the terms
of the related loan documents and applicable law, no assumption of a Serviced
Mortgage Loan shall be made unless all costs in connection therewith, including
any arising from seeking Rating Agency confirmation, are paid by the related
Mortgagor.
As used in this Section 3.08, the terms "sale" and "transfer" shall
include the matters contemplated by the parentheticals in the first sentence of
Section 3.08(a).
(c) If, with respect to a Performing Serviced Mortgage Loan, the
Master Servicer receives a request from the related Mortgagor regarding a
further encumbrance of the related Mortgaged Property or of an interest in the
related Mortgagor (including, without limitation, any mezzanine financing of the
related Mortgagor or any direct or indirect owners of the related Mortgagor or
the Mortgaged Property or any sale, issuance or transfer of preferred equity in
the Mortgagor or its owners or, in the case of a Performing Serviced Mortgage
Loan that by its terms permits further encumbrance without the consent of the
lender provided certain conditions are satisfied, a request by the related
Mortgagor for a determination that such conditions have been satisfied), then
the Master Servicer shall promptly obtain relevant information for purposes of
evaluating such request. If the Master Servicer determines, consistent with the
Servicing Standard, to approve such further encumbrance or that the conditions
precedent to such further encumbrance have been satisfied, as applicable, then
the Master Servicer shall provide to the Special Servicer a written copy of such
recommendation (which shall include the reason therefor) and the materials upon
which such recommendation is based. The Special Servicer shall have the right
hereunder, within 15 days (or, in the case of a consent to a determination as to
whether the conditions precedent to a further encumbrance have been satisfied,
within 10 days) of receipt of such recommendation and supporting materials and
any other materials reasonably requested by the Special Servicer, to reasonably
withhold or, subject to Section 3.08(d) and, further, subject to the Special
Servicer obtaining any consent to the extent required pursuant to Section 6.11
and/or Section 6.12, in each case if and as applicable, grant consent to any
such request for such further encumbrance of the related Mortgaged Property or
of an interest in the related Mortgagor or to object or consent to the
determination by the Master Servicer as to whether the conditions to further
encumbrance (as described above) have been satisfied, as applicable, each in
accordance with the terms of such Performing Serviced Mortgage Loan and this
Agreement and subject to the Servicing Standard. If the Special Servicer does
not respond within such 15-day period or 10-day period, as applicable, such
party's consent shall be deemed granted. If the Special Servicer consents or is
deemed to have consented to such further encumbrance of the related Mortgaged
Property or of an interest in the related Mortgagor, as applicable, the Master
Servicer shall process such request of the related Mortgagor. If the Special
Servicer does not consent to, and is not deemed to have consented to, such
further encumbrance, then the Master Servicer, on behalf of the Trustee (as
mortgagee of record on behalf of the Certificateholders
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and, with respect to a Serviced Loan Combination, the related Serviced Non-Trust
Mortgage Loan Noteholder(s)) shall, to the extent permitted by applicable law,
enforce the restrictions contained in the related loan documents on further
encumbrances of the related Mortgaged Property and/or of an interest in the
related Mortgagor, as applicable. To the extent permitted by the applicable loan
documents and applicable law, the Master Servicer may charge the related
Mortgagor (and retain to the extent permitted under Section 3.11) a fee in
connection with any enforcement or waiver contemplated in this paragraph of
subsection (c).
With respect to any Specially Serviced Mortgage Loan, the Special
Servicer, on behalf of the Trustee (as mortgagee of record on behalf of the
Certificateholders and, in the case of a Mortgaged Property that secures a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) shall, to the extent permitted by applicable law, enforce the
restrictions contained in the related loan documents on further encumbrances of
the related Mortgaged Property and/or of interests in the related Mortgagor, as
applicable, and shall, with respect to Specially Serviced Mortgage Loans that by
their terms permit further encumbrance without mortgagee consent so long as
certain conditions are satisfied, make all determinations as to whether such
conditions have been satisfied, and shall process all documentation in
connection therewith, unless the Special Servicer has determined, in its
reasonable, good faith judgment, that waiver of such restrictions or such
conditions, as the case may be, 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, in the case of a Serviced Loan Combination, the related Serviced
Non-Trust Mortgage Loan Noteholder(s) and, in the case of a Split Trust Mortgage
Loan, the Class IUU Representative); provided that any such waiver of such
restrictions shall be subject to Section 3.08(d) and Section 6.11 and/or Section
6.12, in each case if and as applicable. To the extent permitted by the
applicable loan documents and applicable law, the Special Servicer may charge
the related Mortgagor (and retain to the extent permitted under Section 3.11) a
fee in connection with any enforcement or waiver contemplated in this paragraph
of subsection (c).
If the Special Servicer, in accordance with the Servicing Standard,
objects to the determination by the Master Servicer with respect to a Performing
Serviced Mortgage Loan (which by its terms permits further encumbrance without
lender consent provided certain conditions are satisfied) that such conditions
have been satisfied, then the Master Servicer shall not permit the requested
further encumbrance of such Performing Serviced Mortgage Loan. If the Special
Servicer, in accordance with the Servicing Standard, determines with respect to
any other Serviced Mortgage Loan (which by its terms permits further encumbrance
without lender consent provided certain conditions are satisfied) that such
conditions have not been satisfied, then the Master Servicer shall not permit
further encumbrance of such Serviced Mortgage Loan.
As used in this Section 3.08, the term "encumbrance" shall include
the matters contemplated by the parentheticals in the first sentence of this
Section 3.08(c).
(d) Notwithstanding anything to the contrary contained in this
Section 3.08, but subject to the related loan documents and applicable law: (i)
if (A) the then unpaid principal balance of the subject Serviced Trust Mortgage
Loan, together with any other Serviced Trust Mortgage Loans that are
cross-collateralized therewith, is at least equal to the lesser of (1)
$35,000,000 and (2) 5% of the then aggregate principal balance of the Mortgage
Pool or (B) 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
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nor the Special Servicer, as applicable, 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, together with any
other Serviced Trust Mortgage Loans that are cross-collateralized therewith, is
at least equal to the lesser of (1) $20,000,000 and (2) 2% of the then aggregate
principal balance of the Mortgage Pool or (X) the subject Serviced Trust
Mortgage Loan is then one of the ten largest Trust Mortgage Loans in the
Mortgage Pool or (Y) the aggregate loan-to-value ratio of the subject Serviced
Trust Mortgage Loan (together with any additional loans that would further
encumber the related Mortgaged Property and/or interests in the related
Mortgagor) would be equal to or greater than 85% or (Z) the aggregate debt
service coverage ratio of the related Mortgaged Property (taking into account
any additional loans that would further encumber the related Mortgaged Property
and/or interests in the related Mortgagor) would be less than 1.20x, then
neither the Special Servicer nor the Master Servicer shall waive any
restrictions contained in the related Mortgage on further encumbrances of the
related Mortgaged Property or of interests in the related Mortgagor, unless, in
the case of either (i) or (ii) above, the Master Servicer or the Special
Servicer, as the case may be, shall have received prior written confirmation
from each Rating Agency (and, if a Serviced Loan Combination involves a
Specially Designated Securitized Non-Trust Mortgage Loan, and if any related
Specially Designated Non-Trust Securities are rated by Xxxxx'x, from Xxxxx'x)
that such action would not result in an Adverse Rating Event with respect to any
Class of Certificates or any class of Specially Designated Non-Trust Mortgage
Loan Securities rated by such rating agency. Neither the Master Servicer nor the
Special Servicer has the authority to perform any of the actions set forth above
in this paragraph with respect to an Outside Serviced Trust Mortgage Loan. In
connection with any request for rating confirmation from a rating agency
pursuant to this paragraph of Section 3.08(d), the Master Servicer or the
Special Servicer, as the case may be, shall deliver a Review Package to such
rating agency. Further, subject to the terms of the related loan documents and
applicable law, no waiver of a restriction contained in the related Mortgage on
transfers of the related Mortgaged Property or interests in the related
Mortgagor or on further encumbrances thereof may be waived by the Master
Servicer or the Special Servicer, as applicable, unless all costs in connection
therewith, including any arising from seeking Rating Agency confirmation, are
paid by the related Mortgagor. To the extent not collected from the related
Mortgagor (or from the Depositor or the UBS Mortgage Loan Seller pursuant to
Section 2.03), any rating agency charges in connection with the foregoing shall
be paid by the Master Servicer as a Servicing Advance.
Notwithstanding the foregoing, with respect to any Outside Serviced
Trust Mortgage Loan, in the event that any action set forth in clause (i) or
(ii) of the first sentence of the preceding paragraph regarding such Trust
Mortgage Loan would require written confirmation from a Rating Agency that such
action would not result in an Adverse Rating Event with respect to any Class of
Certificates rated by such Rating Agency in accordance with clause (i) or (ii)
of the first sentence of the preceding paragraph if such Trust Mortgage Loan
were a Serviced Trust Mortgage Loan, then the Controlling Class Representative
shall not consent to a waiver of any restrictions contained in the related
Mortgage on transfers of the related Mortgaged Property or on transfers of
interests in the related Mortgagor or to a waiver of any restrictions contained
in the related Mortgage on further encumbrances of the related Mortgaged
Property or of interests in the related Mortgagor, in each case to the extent it
is permitted to do so under the related Outside Servicing Agreement and/or the
related Co-Lender Agreement, unless it has obtained written confirmation from
each Rating Agency that such action would not result in an Adverse Rating Event
with respect to any Class of Certificates rated by such Rating Agency. Upon
being asked to consent to any action set forth in the preceding sentence (i) if
the party initially in receipt of such request for consent is the Controlling
Class Representative, the Controlling
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Class Representative shall request from the Master Servicer, and the Master
Servicer shall thereupon provide, a determination to the Controlling Class
Representative as to, and (ii) if the party initially in receipt of such request
for consent is the Master Servicer, the Master Servicer shall forward such
request to the Controlling Class Representative together with a determination as
to, and (iii) if the party initially in receipt of such request for consent is
the Special Servicer, the Special Servicer shall forward such request to the
Master Servicer and the Controlling Class Representative, and the Master
Servicer shall thereupon provide a determination to the Controlling Class
Representative as to, in the case of (i), (ii) and (iii) above, whether such
action would require written confirmation from each Rating Agency that such
action would not result in an Adverse Rating Event with respect to any Class of
Certificates rated by such Rating Agency in accordance with clause (i) or clause
(ii) of the first sentence of the preceding paragraph if such Trust Mortgage
Loan were a Serviced Trust Mortgage Loan (and the Controlling Class
Representative shall be entitled to conclusively rely on such determination by
the Master Servicer). Further, subject to the terms of the related loan
documents and applicable law, the Controlling Class Representative shall not
consent to a waiver of any restrictions contained in the related Mortgage on
transfers of the related Mortgaged Property or on transfers of interests in the
related Mortgagor or to a waiver of any restrictions contained in the related
Mortgage on further encumbrances of the related Mortgaged Property or of
interests in the related Mortgagor, unless all costs in connection therewith,
including any arising from seeking Rating Agency confirmation, are paid by the
related Mortgagor. To the extent not payable by and collected from the related
Mortgagor, any rating agency charges in connection with the foregoing shall be
paid by the Master Servicer by withdrawing the amount of such charges from the
Pool Custodial Account.
If and to the extent that any expenses paid by the Master Servicer
in connection with the actions contemplated by this Section 3.08(d) would result
in the failure of any one or more Holder(s) of Regular Interest Certificates to
receive any amount of principal or interest at the related Pass-Through Rate to
which such Holder(s) are entitled (in each case by the time any such amounts are
due and payable to such Holder(s)), then such amounts shall be deemed to have
been distributed to such Holder(s) from REMIC III, as of the time paid by the
Master Servicer, and then paid by such Holder(s) and not by any of the REMIC
Pools.
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 6.12, 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
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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 Mortgaged Property that secures a
Serviced Loan Combination, on behalf of the affected Serviced Non-Trust Mortgage
Loan Noteholder(s), to make a bid on any Mortgaged Property at a foreclosure
sale or similar proceeding that is in excess of the fair market value of such
property, as determined by the Special Servicer in its reasonable and good faith
judgment taking into account the factors described in Section 3.18 and the
results of any appraisal obtained as provided below in this Section 3.09, all
such bids to be made in a manner consistent with the Servicing Standard.
If and when the Master Servicer or the Special Servicer deems it
necessary and prudent for purposes of establishing the fair market value of any
Mortgaged Property securing a Specially Serviced Mortgage Loan, whether for
purposes of bidding at foreclosure or otherwise, it may have an appraisal
performed with respect to such property by an Independent Appraiser or other
expert in real estate matters, which appraisal shall take into account the
factors specified in Section 3.18, and the cost of which appraisal shall be
covered by, and be reimbursable as, a Servicing Advance; provided that if the
Master Servicer intends to obtain an appraisal in connection with the foregoing,
the Master Servicer shall so notify the Special Servicer and consult with the
Special Servicer regarding such appraisal.
If any Serviced Mortgage Loan or Serviced Loan Combination becomes a
Required Appraisal Loan, then the Special Servicer shall (i) obtain or conduct,
as applicable, a Required Appraisal within 60 days (or, in the case of a
Serviced Loan Combination, such shorter time period (if any) as may be required
under the related Co-Lender Agreement) of such occurrence (unless a Required
Appraisal was obtained or conducted, as applicable, with respect to such
Required Appraisal Loan within the prior 12 months and the Special Servicer
reasonably believes, in accordance with the Servicing Standard, that no material
change has subsequently occurred with respect to the related Mortgaged Property
that would draw into question the applicability of such Required Appraisal) and
(ii) obtain or conduct, as applicable, an update of the most recent Required
Appraisal approximately 12 months following the most recent Required Appraisal
or subsequent update thereof for so long as such Serviced Mortgage Loan (or any
successor REO Mortgage Loan with respect thereto) or such Serviced Loan
Combination, as the case may be, remains a Required Appraisal Loan. The Special
Servicer shall deliver copies of all such Required Appraisals and updated
Required Appraisals to the Trustee, the Master Servicer and, in the case of a
Mortgaged Property that secures a Serviced Loan Combination, the related
Non-Trust Mortgage Loan Noteholder(s), in each such case, promptly following the
Special Servicer's receipt of the subject appraisal, and, upon request, to the
Controlling Class Representative and, in the case of a Split Trust Mortgage
Loan, the Class IUU Representative. Based on each such Required Appraisal and
updated Required Appraisal, the Special Servicer shall (monthly, on each related
Determination Date, until the subject Required Appraisal Loan ceases to be such)
calculate and notify the Trustee, the Master Servicer, the Controlling Class
Representative, and, in the case of any Mortgaged Property that secures a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s), of any resulting Appraisal Reduction Amount in respect of the
subject Required Appraisal Loan. Such calculations by the Special Servicer shall
be subject to review and confirmation by the Master Servicer,
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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 related Serviced Loan Combination Controlling Party (in the case of a
Serviced Loan Combination or related REO Property), the Class IUU Representative
(in the case of a Split Trust Mortgage Loan or any related REO Property), or the
Controlling Class Representative (in all other cases involving a Serviced
Mortgage Loan or an Administered REO Property and, if an STML Change of Control
Event exists with respect thereto, in the case of a Split Trust Mortgage Loan or
any related REO Property), as applicable, may, at its own expense, obtain and
deliver to the Master Servicer, the Special Servicer and the Trustee an
appraisal that is reasonably satisfactory to the Special Servicer and satisfies
the requirements of a "Required Appraisal", and upon the written request of the
related Serviced Loan Combination Controlling Party, the Class IUU
Representative or the Controlling Class Representative, as applicable, the
Special Servicer shall recalculate the Appraisal Reduction Amount in respect of
the subject Required Appraisal Loan based on such appraisal delivered by such
party and shall notify the Trustee, the Master Servicer, the Controlling Class
Representative and, in the case of a Serviced Loan Combination, the related
Serviced Loan Combination Controlling Party and, in the case of a Split Trust
Mortgage Loan or related REO Property, the Class IUU Representative, of such
recalculated Appraisal Reduction Amount.
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Certificateholders (and, in the case of a Mortgaged Property that secures a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) under such circumstances, in such manner or pursuant to such
terms as would, in the reasonable, good faith judgment of the Special Servicer
(exercised in accordance with the Servicing Standard), (i) cause such Mortgaged
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (unless the portion of such Mortgaged Property
that is not treated as "foreclosure property" and that is held by a REMIC Pool
at any given time constitutes not more than a de minimis amount of the assets of
such REMIC Pool within the meaning of Treasury regulations section
1.860D-1(b)(3)(i) and (ii)), or (ii) except as permitted by Section 3.17(a),
subject the Trust Fund to the imposition of any federal income taxes under the
Code. Subject to the foregoing, however, a Mortgaged Property may be acquired
through a single member limited liability company if the Special Servicer
determines that such an action is appropriate to protect the Trust (and, in the
case of a Mortgaged Property that secures a Serviced Loan Combination, the
related Non-Trust Mortgage Loan Noteholder(s)) from potential liability.
In addition, the Special Servicer shall not acquire any personal
property pursuant to this Section 3.09 unless either:
(i) such personal property is, in the reasonable, good
faith judgment of the Special Servicer (exercised in accordance with the
Servicing Standard), incident to real property (within the meaning of
Section 856(e)(1) of the Code) so acquired by the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion
of Counsel (the cost of which shall be covered by, and be reimbursable as,
a Servicing Advance) to the effect that the holding of such personal
property as part of the Trust Fund will not cause the imposition of a tax
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on any REMIC Pool under the REMIC Provisions or cause any REMIC Pool to
fail to qualify as a REMIC at any time that any Certificate is
outstanding.
(c) Notwithstanding the foregoing provisions of this Section
3.09, neither the Master Servicer nor the Special Servicer shall, on behalf of
the Trustee (and, in the case of a Mortgaged Property that secures a Serviced
Loan Combination, on behalf of the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), obtain title to a Mortgaged Property by foreclosure, deed in
lieu of foreclosure or otherwise, or take any other action with respect to any
Mortgaged Property, if, as a result of any such action, the Trustee, on behalf
of the Certificateholders (and, in the case of a Mortgaged Property that secures
a Serviced Loan Combination, on behalf of the related Serviced Non-Trust
Mortgage Loan Noteholder(s)), could, in the reasonable, good faith judgment of
the Special Servicer, exercised in accordance with the Servicing Standard, be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA or
any comparable law (a "potentially responsible party"), unless such action is
consistent with Section 6.11 and/or Section 6.12, 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 Mortgaged Property that secures a Serviced Loan Combination, to the
related Serviced Non-Trust Mortgage Loan Noteholder(s)) that shall specify all
of the bases for such determination), in accordance with the Servicing Standard
and based on an Environmental Assessment of such Mortgaged Property performed by
an Independent Person, who regularly conducts Environmental Assessments, within
six months prior to any such acquisition of title or other action (a copy of
which Environmental Assessment shall be delivered to the Trustee, the Master
Servicer and, in the case of a Mortgaged Property that secures a Serviced Loan
Combination, on behalf of the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), that:
(i) the Mortgaged Property is in compliance with
applicable environmental laws and regulations or, if not, that it would
(taking into account the coverage provided under any related Environmental
Insurance Policy) maximize the recovery on the related Serviced Mortgage
Loan to the Certificateholders (or, if a Serviced Loan Combination is
involved, to the Certificateholders and the related Serviced Non-Trust
Mortgage Loan Noteholder(s)), as a collective whole, on a present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders (or, if a Serviced Loan Combination is
involved, to the Certificateholders and the related Serviced Non-Trust
Mortgage Loan Noteholder(s)), as a collective whole, to be performed at
the related Mortgage Rate(s)) to acquire title to or possession of the
Mortgaged Property and to take such actions as are necessary to bring the
Mortgaged Property into compliance therewith in all material respects; and
(ii) there are no circumstances or conditions present at
the Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could reasonably be
expected to be required, that it would (taking into account the coverage
provided under any related Environmental Insurance Policy) maximize the
recovery on the related Serviced Mortgage Loan to the Certificateholders
(or, if a Serviced Loan Combination is involved, to the Certificateholders
and the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a
collective whole, on a present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders
(or, if a
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Serviced Loan Combination is involved, to the Certificateholders and the
related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective
whole, to be performed at the related Mortgage Rate(s)) to acquire title
to or possession of the Mortgaged Property and to take such actions with
respect to the affected Mortgaged Property.
The Special Servicer shall, in good faith, undertake reasonable
efforts to make the determination referred to in the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment shall be
covered by, and reimbursable as, a Servicing Advance; and if any such
Environmental Assessment so warrants, the Special Servicer shall perform or
cause to be performed such additional environmental testing as it deems
necessary and prudent to determine whether the conditions described in clauses
(i) and (ii) of the preceding paragraph have been satisfied (the cost of any
such additional testing also to be covered by, and reimbursable as, a Servicing
Advance). The cost of any remedial, corrective or other further action
contemplated by clause (i) and/or clause (ii) of the preceding paragraph, shall
be payable out of the related Custodial Account pursuant to Section 3.05(a) or
Section 3.05A, as applicable (or, in the case of a Mortgaged Property that
secures a Serviced Loan Combination, to the extent the funds in the applicable
Loan Combination Custodial Account are insufficient, shall be advanced by the
Master Servicer, subject to Section 3.11(h)).
(d) If the environmental testing contemplated by Section 3.09(c)
above establishes that any of the conditions set forth in clauses (i) and (ii)
of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a defaulted Serviced Mortgage Loan, the Special
Servicer shall take such action as is in accordance with the Servicing Standard
(other than proceeding against the Mortgaged Property). At such time as it deems
appropriate, the Special Servicer may, on behalf of the Trust (and, if a
Serviced Loan Combination is involved, the related Serviced Non-Trust Mortgage
Loan Noteholder(s)), subject to Section 6.11 and/or Section 6.12, in each case
if and as applicable, release all or a portion of such Mortgaged Property from
the lien of the related Mortgage.
(e) The Special Servicer shall report to the Master Servicer,
the Underwriters, the Trustee and, if a Serviced Loan Combination is involved,
the related Serviced Non-Trust Mortgage Loan Noteholder(s), monthly in writing
as to any actions taken by the Special Servicer with respect to any Mortgaged
Property that represents security for a Specially Serviced Mortgage Loan as to
which the environmental testing contemplated in Section 3.09(c) above has
revealed that any of the conditions set forth in clauses (i) and (ii) of the
first sentence thereof has not been satisfied, in each case until the earlier to
occur of satisfaction of all such conditions and release of the lien of the
related Mortgage on such Mortgaged Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, with respect to any Specially Serviced
Mortgage Loan, the advisability of seeking to obtain a deficiency judgment if
the state in which the related Mortgaged Property is located and the terms of
the affected Serviced Mortgage Loan permit such an action, and shall, in
accordance with the Servicing Standard, seek such deficiency judgment if it
deems advisable (the cost of which undertaking shall be covered by, and be
reimbursable as, a Servicing Advance).
(g) The Master Servicer shall, with the reasonable cooperation
of the Special Servicer, prepare and file information returns with respect to
the receipt of mortgage interest received with respect to any Serviced Mortgage
Loan required by Section 6050H of the Code and the reports of
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foreclosures and abandonments of any Mortgaged Property (other than any
Mortgaged Property that secures an Outside Serviced Trust Mortgage Loan) and the
information returns relating to cancellation of indebtedness income with respect
to any Mortgaged Property required by Sections 6050J and 6050P of the Code. Such
reports shall be in form and substance sufficient to meet the reporting
requirements imposed by Sections 6050H, 6050J and 6050P of the Code.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Specially Serviced Mortgage Loan or
Administered REO Property, it shall promptly notify the Trustee, the Master
Servicer and, if a Serviced Loan Combination is involved, the related Serviced
Non-Trust Mortgage Loan Noteholder(s). The Special Servicer shall maintain
accurate records, prepared by a Servicing Officer, of each such Final Recovery
Determination (if any) and the basis thereof. Each such Final Recovery
Determination (if any) shall be evidenced by an Officer's Certificate delivered
to the Trustee, the Master Servicer and, if a Serviced Loan Combination is
involved, the related Serviced Non-Trust Mortgage Loan Noteholder(s), no later
than the seventh Business Day following such Final Recovery Determination.
SECTION 3.10. Trustee and Custodian to Cooperate; Release of
Mortgage Files.
(a) Upon the payment in full of any Serviced Mortgage Loan, or
the receipt by the Master Servicer or the Special Servicer of a notification
that payment in full shall be escrowed in a manner customary for such purposes,
the Master Servicer or the Special Servicer shall promptly notify the Trustee
and any related Custodian (and, in the case of a Serviced Non-Trust Mortgage
Loan, the related Serviced Non-Trust Mortgage Loan Noteholder) by a
certification (which certification shall be in the form of a Request for Release
in the form of Exhibit D-1 attached hereto and shall be accompanied by the form
of a release or discharge and shall include a statement to the effect that all
amounts received or to be received in connection with such payment which are
required to be deposited in the applicable Custodial Account pursuant to Section
3.04(a) 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 Serviced Non-Trust Mortgage Loan, the original of the
Mortgage Note for such Serviced Non-Trust Mortgage Loan. Upon receipt of such
certification and request, the Trustee shall release, or cause any related
Custodian to release, the related Mortgage File (and, in the case of a Serviced
Non-Trust Mortgage Loan, the Trustee shall cause the related Serviced Non-Trust
Mortgage Loan Noteholder to release the Mortgage Note for such Serviced
Non-Trust Mortgage Loan) to the Master Servicer or Special Servicer and shall
deliver to the Master Servicer or Special Servicer, as applicable, such release
or discharge, duly executed. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Collection Account or any Custodial Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Mortgage Loan, the Master Servicer or the Special
Servicer shall otherwise require any Mortgage File (or any portion thereof) (or
the original of the Mortgage Note for a Serviced Non-Trust Mortgage Loan), the
Trustee, upon request of the Master Servicer and receipt from the Master
Servicer of a Request for Release in the form of Exhibit D-1 attached hereto
signed by a Servicing Officer thereof, or upon request of the Special Servicer
and receipt from the Special Servicer of a Request for Release in the form of
Exhibit D-2 attached hereto, shall release, or cause any related Custodian to
release, such Mortgage File (or such portion thereof) (and, in the case of a
Serviced Non-Trust Mortgage Loan, the Trustee shall cause the related Serviced
Non-Trust Mortgage Loan Noteholder to release the
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original of the Mortgage Note for such Non-Trust Mortgage Loan) to the Master
Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File (or such portion thereof) to the Trustee or related Custodian
(and, if applicable, such original Mortgage Note for such Serviced Non-Trust
Mortgage Loan to the related Serviced Non-Trust Mortgage Loan Noteholder), or
the delivery to the Trustee (and, if applicable, to the related Serviced
Non-Trust Mortgage Loan Noteholder) of a certificate of a Servicing Officer of
the Special Servicer stating that such Serviced Mortgage Loan was liquidated and
that all amounts received or to be received in connection with such liquidation
that are required to be deposited into the related Custodial Account pursuant to
Section 3.04(a) 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. If the Master
Servicer or the Special Servicer require the original Mortgage Note or any other
document that constitutes part of a Mortgage File for any Trust Mortgage Loan,
then (unless such document is to be delivered to outside legal counsel) such
documents shall be maintained in a manner consistent with the Servicing
Standard.
(c) Within seven (7) Business Days (or within such shorter
period (but no less than three (3) Business Days) as execution and delivery can
reasonably be accomplished if the Special Servicer notifies the Trustee (and, in
the case of a Serviced Loan Combination, the related Serviced Non-Trust Mortgage
Loan Noteholder(s)) of an exigency) of the Special Servicer's request therefor,
the Trustee shall execute and deliver to the Special Servicer (or the Special
Servicer may execute and deliver in the name of the Trustee (on behalf of the
Certificateholders and, in the case of a Mortgaged Property that secures a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) based on a limited power of attorney issued in favor of the
Special Servicer pursuant to Section 3.01(b)), in the form supplied to the
Trustee, with respect to any Serviced Mortgage Loan, any court pleadings,
requests for trustee's sale or other documents stated by the Special Servicer to
be reasonably necessary to the foreclosure or trustee's sale in respect of the
related Mortgaged Property or to any legal action brought to obtain judgment
against any Mortgagor on the related Mortgage Note or Mortgage or to obtain a
deficiency judgment, or to enforce any other remedies or rights provided by the
related Mortgage Note or Mortgage or otherwise available at law or in equity or
to defend any legal action or counterclaim filed against the Trust Fund, the
Master Servicer, the Special Servicer or, if applicable, any Serviced Non-Trust
Mortgage Loan Noteholder. Together with such documents or pleadings, the Special
Servicer shall deliver to the Trustee (and, if applicable, any affected Serviced
Non-Trust Mortgage Loan Noteholder) a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required and that
the execution and delivery thereof by the Trustee (on behalf of the
Certificateholders and, in the case of a Serviced Loan Combination, also on
behalf of the related Serviced Non-Trust Mortgage Loan Noteholder(s)) will not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
Notwithstanding anything contained herein to the contrary, neither the Master
Servicer nor the Special Servicer shall, without the Trustee's written consent:
(i) initiate any action, suit or proceeding solely under the Trustee's name
without indicating the Master Servicer's or Special Servicer's, as applicable,
representative capacity, or (ii) take any action with the intent to cause, and
that actually causes, the Trustee to be registered to do business in any state.
(d) If from time to time, pursuant to the terms of the related
Co-Lender Agreement and the related Outside Servicing Agreement, and as
appropriate for enforcing the terms of any Outside Serviced Trust Mortgage Loan,
any related Outside Servicer or the appropriate Non-Trust Mortgage
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Loan Noteholder requests delivery to it of the original Mortgage Note for such
Outside Serviced 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 any
Outside Serviced 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 the related Outside Servicer or the
appropriate Non-Trust Mortgage Loan Noteholder as custodian on behalf of and for
the benefit of the Trustee.
SECTION 3.11. Servicing Compensation; Payment of Expenses;
Certain Matters Regarding Servicing Advances.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Trust Mortgage Loan, each REO Trust Mortgage Loan, each Serviced Non-Trust
Mortgage Loan (other than the One Financial Center Note B Non-Trust Mortgage
Loan) and any successor REO Mortgage Loan with respect to a Serviced Non-Trust
Mortgage Loan (other than the One Financial Center Note B Non-Trust 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); provided
that, with respect to the 000 Xxxxxxx Xxxxxx Note B Non-Trust Mortgage Loan and
the Triangle Town Center Note B Non-Trust Mortgage Loan, the related Master
Servicing Fee shall accrue on an Actual/360 Basis. The Master Servicing Fee with
respect to any such Mortgage Loan or REO Mortgage Loan shall cease to accrue if
a Liquidation Event occurs in respect thereof. Earned but unpaid Master
Servicing Fees shall be payable monthly, on a loan-by-loan basis, from payments
of interest on each such Mortgage Loan and REO Revenues allocable as interest on
each such REO Mortgage Loan. The Master Servicer 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. There shall not be any Master Servicing Fee
with respect to the One Financial Center Note B Non-Trust Mortgage Loan or any
successor REO Mortgage Loan with respect thereto.
(b) Additional master servicing compensation, in the form of the
items set forth in clauses (i) through (iii) below in this paragraph, 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: (i) Net Default Charges,
charges for beneficiary statements or demands, amounts collected for checks
returned for insufficient funds, and any similar fees (excluding Prepayment
Premiums and Yield Maintenance Charges), in each case to the extent actually
paid by a Mortgagor with respect to any Serviced Mortgage Loan (or, in the case
of Net Default
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Charges, any Serviced Trust Mortgage Loan) and accrued during the time that such
Serviced Mortgage Loan (or, in the case of Net Default Charges, such Serviced
Trust Mortgage Loan) was a Performing Serviced Mortgage Loan (or, in the case of
Net Default Charges, a Performing Serviced Trust Mortgage Loan), and any Net
Default Charges Received by the Trust with respect to an Outside Serviced Trust
Mortgage Loan; (ii) 100% of each modification fee, extension fee or other
similar fee actually paid by a Mortgagor with respect to a modification,
consent, extension, waiver, amendment or encumbrance of the related Mortgaged
Property agreed to by the Master Servicer pursuant to Section 3.20(c) or Section
3.08(c), and 100% of any fee actually paid by a Mortgagor in connection with a
defeasance of a Serviced Mortgage Loan as contemplated under Section 3.20; and
(iii) with respect to any Performing Serviced Mortgage Loan, 50% of any and all
assumption fees, 100% of any and all assumption application fees (or, in the
event that (x) the Master Servicer enters into an assumption or substitution
agreement pursuant to Section 3.08(a) and the related loan documents do not
provide for an assumption fee in connection therewith, or (y) the proposed
transfer or assumption under Section 3.08(a) is approved and/or processed but
does not occur or (z) the proposed transfer or assumption under Section 3.08(a)
is not approved or is denied and does not occur and, additionally, in the case
of (x), (y) and (z), assumption application fees are paid by the Mortgagor in
connection therewith, then 50% of such 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 Serviced
Loan Combination, on behalf of the Trust and the related Non-Trust Mortgage Loan
Noteholder(s)) pursuant to Section 3.08(a) or paid by a Mortgagor with respect
to any transfer of an interest in a Mortgagor pursuant to Section 3.08(a). The
Master Servicer shall also be entitled to additional master servicing
compensation in the form of (i) Prepayment Interest Excesses Received by the
Trust with respect to the Trust Mortgage Loans; (ii) interest or other income
earned on deposits in the Custodial Accounts in accordance with Section 3.06(b)
(but only to the extent of the Net Investment Earnings, if any, with respect to
such account for each related Investment Period); and (iii) to the extent not
required to be paid to any Mortgagor under applicable law, any interest or other
income earned on deposits in the Servicing Accounts, the Reserve Accounts and
the Defeasance Deposit Account maintained thereby (but only to the extent of the
Net Investment Earnings, if any, with respect to each such account for each
related Investment Period).
The parties hereto acknowledge that, with regard to each Outside
Serviced Trust Mortgage Loan, as and to the extent provided in the related
Outside Servicing Agreement and/or the related Co-Lender Agreement, as
applicable, amounts in the nature of the foregoing may be payable to one of the
related Outside Servicers, and there can be no assurance that any related
Prepayment Interest Excesses and/or Default Charges shall be Received by the
Trust with respect to an Outside Serviced Trust Mortgage Loan.
(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,
the Special Servicing Fee shall: (i) accrue from time to time at the Special
Servicing Fee Rate on the same principal amount as interest accrues from time to
time on such Mortgage Loan or is deemed to accrue from time to time on such REO
Mortgage Loan; and (ii) be calculated on a 30/360 Basis (or, in the event that a
Principal Prepayment in full or other Liquidation Event shall occur with respect
to any Specially Serviced Mortgage Loan or REO Mortgage Loan on a date that is
not a Due Date, on the basis of the actual number of days to elapse from and
including the most recently preceding related Due Date
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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); provided that the Special Servicing
Fee with respect to each Specially Serviced Mortgage Loan and each REO Mortgage
Loan that relates to an Administered REO Property (or, in the case of each
Serviced Loan Combination in the event they constitute Specially Serviced
Mortgage Loans or REO Mortgage Loans, with respect to the entire Serviced Loan
Combination), shall not be less than $4,000 for any one-month period during
which such Special Servicing Fee accrues (or, in those cases where such Special
Servicing Fee is accruing for a partial period of less than one month, shall not
be less than the prorated portion of such $4,000 amount). The Special Servicing
Fee with respect to any Specially Serviced Mortgage Loan or REO Mortgage Loan
shall cease to accrue as of the date a Liquidation Event occurs in respect
thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid Special
Servicing Fees in respect of Specially Serviced Trust Mortgage Loans and, to the
extent they relate to Administered REO Properties, REO Trust Mortgage Loans
shall be payable monthly out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, to the extent permitted by Section
3.05(a). In addition, earned but unpaid Special Servicing Fees in respect of a
Serviced Loan Combination consisting of Specially Serviced Mortgage Loans or REO
Mortgage Loans shall be payable out of collections on such Loan Combination on
deposit in the applicable Loan Combination Custodial Account, to the extent
permitted pursuant to Section 3.05A and the related Co-Lender Agreement, and,
with respect to any Serviced Combination Trust Mortgage Loan that constitutes a
Specially Serviced Mortgage Loan or REO Mortgage Loan, out of collections on
deposit in the Pool Custodial Account, to the extent permitted pursuant to
Section 3.05.
As further compensation for its services hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan. As to each Corrected Mortgage Loan, subject to the
second following paragraph, the Workout Fee shall be payable from, and shall be
calculated by application of the Workout Fee Rate, to all collections of
principal, interest (other than any Default Interest, Additional Interest and
Excess Defeasance Deposit Proceeds), 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 a Permitted Purchase, or out of any Loss of Value Payments,
Insurance Proceeds or Condemnation Proceeds. The Workout Fee with respect to any
Corrected Mortgage Loan will cease to be payable if such Corrected Mortgage Loan
again becomes a Specially Serviced Mortgage Loan or if the related Mortgaged
Property becomes an REO Property; provided that a new Workout Fee will become
payable if and when the particular Serviced Mortgage Loan again becomes a
Corrected Mortgage Loan. If the Special Servicer is terminated or removed (other
than for cause) or resigns in accordance with the first sentence of the first
paragraph of Section 6.04, it shall retain the right to receive any and all
Workout Fees (and the successor Special Servicer (including the Trustee if it is
the successor Special Servicer as provided in the first paragraph of Section
7.02) shall not be entitled to any portion of such Workout Fees) that are
payable in respect of:
(i) each Mortgage Loan that became a Corrected Mortgage
Loan during the period that the terminated, removed or resigning Special
Servicer acted as Special Servicer and was still such at the time of such
termination, removal or resignation; and
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(ii) each Mortgage Loan that would have been a "Corrected
Mortgage Loan" at the time of such termination, removal or resignation but
for the payment (in accordance with clause (w) of the definition of
"Specially Serviced Mortgage Loan") by the related Mortgagor of the three
consecutive full and timely Monthly Payments under the terms of such
Serviced Mortgage Loan (as such terms may have been changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, extension, waiver or amendment
granted or agreed to by the Master Servicer or the Special Servicer
pursuant to Section 3.20), but only if such three consecutive full and
timely Monthly Payments are in fact made within three months of such
termination, removal or resignation;
in each case until the Workout Fee for any such Serviced Mortgage Loan ceases to
be payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive the Liquidation Fee with respect to
each Specially Serviced Mortgage Loan as to which it receives a full, partial or
discounted payoff and, subject to the provisos to the next sentence, each
Specially Serviced Mortgage Loan and Administered REO Property as to which it
receives Net Liquidation Proceeds. As to each such Specially Serviced Mortgage
Loan or Administered REO Property, subject to the following paragraph, the
Liquidation Fee shall be payable from, and shall be calculated by application of
the Liquidation Fee Rate to, such full, partial or discounted payoff and/or such
Net Liquidation Proceeds (exclusive of any portion of such payoff or proceeds
that represents Default Interest and/or Additional Interest); provided that no
Liquidation Fee shall be payable (i) with respect to any Specially Serviced
Mortgage Loan that becomes a Corrected Mortgage Loan or (ii) from, or based upon
the receipt of, Liquidation Proceeds collected in connection with the purchase
of any Specially Serviced Trust Mortgage Loan by a Purchase Option Holder
pursuant to Section 3.18, by the Special Servicer, a Controlling Class
Certificateholder, the Master Servicer, the Depositor or Xxxxxx Brothers
pursuant to Section 9.01, by a Non-Trust Mortgage Loan Noteholder or its
designee pursuant to the related Co-Lender Agreement (unless such purchase
occurs after the expiration of 60 days from the date such Non-Trust Mortgage
Loan Noteholder's right to purchase such Specially Serviced Trust Mortgage Loan
arose under such Co-Lender Agreement and such Liquidation Fee is actually paid),
by the Class IUU Representative pursuant to Section 3.27 (unless such purchase
occurs after the expiration of 90 days from the date the Class IUU
Representative's right to purchase such Specially Designated Trust Mortgage Loan
arose hereunder and such Liquidation Fee is actually paid), by the Depositor
pursuant to Section 2.03 or by or on behalf of the UBS Mortgage Loan Seller
pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement in connection
with a Material Document Defect or a Material Breach (in either such case, prior
to the expiration of the Seller/Depositor Resolution Period), by the Depositor
pursuant to Section 2.03 or by or on behalf of the UBS Mortgage Loan Seller
pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement in connection
with the defeasance of an Early Defeasance Trust Mortgage Loan prior to the
second anniversary of the Closing Date, or by the holder of a related mezzanine
loan pursuant to a purchase right in connection with a Mortgage Loan default as
set forth in the related intercreditor agreement (unless, to the extent
permitted under the related intercreditor agreement, such purchase occurs after
the expiration of 60 days from the date such mezzanine lender's right to
purchase such defaulted Mortgage Loan arose under such intercreditor agreement
and such Liquidation Fee is actually paid; provided that, if the Master Servicer
or Special Servicer, as applicable, consents subsequent to the Closing Date to
the incurrence by the principal(s) of a Mortgagor under a Trust Mortgage Loan of
mezzanine financing in accordance with the related loan
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documents and enters into an intercreditor agreement, such servicer (to the
extent it is permitted to do so under the related loan documents and applicable
law and in accordance with the Servicing Standard) shall require the related
mezzanine lender to pay a Liquidation Fee in connection with any purchase right
that arises upon a Mortgage Loan default in the event such purchase occurs after
the expiration of 60 days from the date the right to purchase arises under such
mezzanine intercreditor agreement) or (iii) from, or based upon the receipt or
application of, Loss of Value Payments; and provided, further, that, in
connection with any purchase by the Depositor pursuant to Section 2.03 or the
UBS Mortgage Loan Seller pursuant to the UBS/Depositor Mortgage Loan Purchase
Agreement in connection with a Material Document Defect or a Material Breach (in
either case, subsequent to the expiration of the Seller/Depositor Resolution
Period), the Liquidation Fee shall equal 1% of the Stated Principal Balance of
the repurchased Trust Mortgage Loan (or, if an REO Property is being
repurchased, 1% of the Stated Principal Balance of the related REO Trust
Mortgage Loan).
Notwithstanding the foregoing, any Workout Fee and/or Liquidation
Fee payable in accordance with the two preceding paragraphs with respect to
Mortgage Loans or REO Mortgage Loans that comprise a Serviced Loan Combination
shall be paid from collections received on such Loan Combination on deposit in
the applicable Loan Combination Custodial Account, to the extent permitted
pursuant to Section 3.05A and the related Co-Lender Agreement.
Notwithstanding anything to the contrary herein, a Liquidation Fee
and a Workout Fee relating to the same Mortgage Loan shall not be paid from the
same proceeds with respect to such Mortgage Loan.
Notwithstanding anything to the contrary herein, the Special
Servicer shall not be entitled to any Special Servicing Fees, Workout Fees or
Liquidation Fees with respect to any Mortgage Loan or REO Mortgage Loan or
comparable deemed mortgage loan comprising an Outside Serviced Loan Combination.
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 the
items set forth below in clauses (i) through (v) below 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): (i) Net
Default Charges actually collected with respect to any Serviced Trust Mortgage
Loan or any successor REO Trust Mortgage Loan with respect thereto that accrued
while the subject loan was a Specially Serviced Trust Mortgage Loan or an REO
Trust Mortgage Loan; (ii) with respect to any Specially Serviced Mortgage Loan,
100% of any and all assumption fees, assumption application fees and other
applicable fees, actually paid by a Mortgagor in accordance with the related
loan documents, with respect to any assumption or substitution agreement entered
into by the Special Servicer on behalf of the Trust (or, in the case of a
Serviced Loan Combination, on behalf of the Trust and the related Serviced
Non-Trust Mortgage Loan Noteholder(s)) pursuant to Section 3.08(b) or paid by a
Mortgagor with respect to any transfer of an interest in a Mortgagor pursuant to
Section 3.08(b); (iii) with respect to any Performing Serviced Mortgage Loan,
50% of any and all assumption fees actually paid by a Mortgagor in accordance
with the related loan documents, with respect to any assumption or substitution
agreement entered into by the Master Servicer
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on behalf of the Trust (or, in the case of a Serviced Loan Combination, on
behalf of the Trust and the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) pursuant to Section 3.08(a) or paid by a Mortgagor with respect
to any transfer of an interest in a Mortgagor pursuant to Section 3.08(a); (iv)
with respect to any Performing Serviced Mortgage Loan, in the event that (x) the
Master Servicer enters into an assumption or substitution agreement pursuant to
Section 3.08(a) and the related loan documents do not provide for an assumption
fee in connection therewith or (y) the proposed transfer or assumption under
Section 3.08(a) is approved and/or processed but does not occur or (z) the
proposed transfer or assumption under Section 3.08(a) is not approved or is
denied and does not occur and, additionally, in the case of (x), (y) and (z),
assumption application fees are paid by the Mortgagor in connection therewith,
then 50% of such assumption application fees; and (v) any and all modification
fees, consent fees, extension fees and similar fees actually collected on the
Serviced Mortgage Loans that are not otherwise payable to the Master Servicer as
additional master servicing compensation pursuant to Section 3.11(b). The
Special Servicer shall also be entitled to additional special servicing
compensation in the form of interest or other income earned on deposits in any
REO Account, if established, in accordance with Section 3.06(b) (but only to the
extent of the Net Investment Earnings, if any, with respect to such account for
each related Investment Period).
(e) The Master Servicer and the Special Servicer shall each be
required to pay out of its own funds all expenses incurred by it in connection
with its servicing activities hereunder (including payment of any amounts due
and owing to any of its Sub-Servicers and the premiums for any blanket policy or
the standby fee or similar premium for any master force placed policy obtained
by it insuring against hazard losses pursuant to Section 3.07(b)), if and to the
extent such expenses are not payable directly out of any of the Custodial
Accounts or, in the case of the Special Servicer, any of the REO Accounts, and
neither the Master Servicer nor the Special Servicer shall be entitled to
reimbursement for such expenses except as expressly provided in this Agreement.
(f) If the Master Servicer or Special Servicer is required under
any provision of this Agreement to make a Servicing Advance, but it does not do
so within 15 days after such Advance is required to be made, the Trustee shall,
if it has actual knowledge of such failure on the part of the Master Servicer or
Special Servicer, as the case may be, give written notice of such failure to, as
applicable, the Master Servicer or the Special Servicer. If such Servicing
Advance is not made by the Master Servicer or the Special Servicer, as
applicable, within three (3) Business Days after such notice is given to the
Master Servicer or the Special Servicer, as the case may be, then (subject to
Section 3.11(h)) the Trustee shall make such Servicing Advance. If the Trustee
fails to make any Servicing Advance required to be made under this Agreement,
then (subject to Section 3.11(h)) the Fiscal Agent, if any, shall make such
Servicing Advance within one (1) Business Day of such failure by the Trustee
and, if so made, the Trustee shall be deemed not to be in default under this
Agreement.
(g) The Master Servicer, the Special Servicer, the Trustee and
any Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, compounded annually, accrued on the amount of
each Servicing Advance made thereby (with its own funds) for so long as such
Servicing Advance is outstanding, such interest to be payable: (i) first, in
accordance with Sections 3.05(a) and 3.26, out of any Default Charges on deposit
in the Pool Custodial Account that were collected on or in respect of the
particular Trust Mortgage Loan or REO Trust Mortgage Loan as to which such
Servicing Advance relates (provided that such Default Charges will only be
applied to pay interest accrued on such Servicing Advance through the date that
such Default Charges were received); and (ii) then, if and to the extent that
such Default Charges are insufficient to cover such interest, but not
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before the related Advance has been reimbursed pursuant to this Agreement, out
of general collections on the Trust Mortgage Loans and REO Trust Mortgage Loans
on deposit in the Pool Custodial Account; provided that, if such Servicing
Advance was made with respect to a Serviced Loan Combination or any related
Mortgaged Property, then such interest shall first be payable out of amounts on
deposit in the related Loan Combination Custodial Account in accordance with
Section 3.05A and the related Co-Lender Agreement. The Master Servicer shall
reimburse itself, the Special Servicer, the Trustee or any Fiscal Agent, as
appropriate, in accordance with Section 3.03, Section 3.05(a) or Section 3.05A,
as applicable, for any Servicing Advance as soon as practicable after funds
available for such purpose are deposited in the applicable Custodial Account.
Notwithstanding the foregoing, upon a determination that a previously made
Servicing Advance is a Nonrecoverable Servicing Advance, instead of obtaining
reimbursement out of general collections on the Mortgage Pool immediately, any
of the Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent,
as applicable, may, in its sole discretion, elect to obtain reimbursement for
such Nonrecoverable Servicing Advance over a period of time (not to exceed 12
months or such longer period of time as is approved in writing by the
Controlling Class Representative) and the unreimbursed portion of such Servicing
Advance will accrue interest at the Reimbursement Rate in effect from time to
time. At any time after such a determination to obtain reimbursement over time
in accordance with the preceding sentence, the Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent, as applicable, may, in its sole
discretion, decide to obtain reimbursement immediately. The fact that a decision
to recover such Nonrecoverable Servicing Advance over time, or not to do so,
benefits some Classes of Certificateholders to the detriment of other Classes
shall not constitute a violation of the Servicing Standard by the Master
Servicer, or a breach of any fiduciary duty owed to the Certificateholders by
the Trustee or a Fiscal Agent, or a breach of any other contractual obligation
owed to the Certificateholders by any party to this Agreement.
(h) Notwithstanding anything herein to the contrary, none of the
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent shall be
required to make out of its own funds any Servicing Advance that would, if made,
constitute a Nonrecoverable Servicing Advance. The determination by the Master
Servicer or the Special Servicer that it has made (or, in the case of the
Special Servicer, that the Master Servicer, the Trustee or a Fiscal Agent 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 a Serviced Loan Combination, the
related Non-Trust Mortgage Loan Noteholder(s)), setting forth the basis for such
determination, together with a copy of any appraisal of the related Mortgaged
Property or REO Property, as the case may be (which appraisal shall be an
expense of the Trust, shall take into account the factors specified in Section
3.18 and shall have been conducted by an Independent Appraiser in accordance
with the standards of the Appraisal Institute within the twelve months preceding
such determination of nonrecoverability), and further accompanied by related
Mortgagor operating statements and financial statements, budgets and rent rolls
of the related Mortgaged Property (to the extent available and/or in the Master
Servicer's or the Special Servicer's possession) and any engineers' reports,
environmental surveys or similar reports that the Master Servicer or the Special
Servicer may have obtained and that support such determination. If the Master
Servicer intends to obtain an appraisal in connection with the foregoing, the
Master Servicer shall so notify the Special Servicer and consult with the
Special Servicer regarding such appraisal. In determining whether any Servicing
Advance constitutes a Nonrecoverable Servicing Advance, the Master Servicer and
the Special Servicer shall each be entitled to consider (among other things) the
obligations of the related Mortgagor under the terms of the related Mortgage
Loan (as such terms may have been modified), to
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consider (among other things) the related Mortgaged Property in its "as is" or
then current condition and with its then current occupancies, all as modified by
such party's reasonable assumptions (consistent with the Servicing Standard)
regarding the possibility and effects of future adverse change with respect to
the related Mortgaged Property, to estimate and consider (among other things)
future expenses and to estimate and consider (among other things) the timing of
recoveries. In addition, the Master Servicer or the Special Servicer may update
or change its recoverability determination at any time with respect to any
Servicing Advance, and the Master Servicer may obtain from the Special Servicer
any analysis, appraisals or market value estimates or other information in the
possession of the Special Servicer for purposes of determining whether a
Servicing Advance is a Nonrecoverable Servicing Advance. The Trustee and any
Fiscal Agent shall be entitled to rely, conclusively, on any determination by
the Master Servicer (and the Trustee, any Fiscal Agent and the Master Servicer
shall rely on any determination by the Special Servicer) that a Servicing
Advance, if made, would be a Nonrecoverable Servicing Advance; provided,
however, that if the Master Servicer or the Special Servicer has failed to make
a Servicing Advance for reasons other than a determination by the Master
Servicer or the Special Servicer, as applicable, that such Servicing Advance
would be a Nonrecoverable Advance, the Trustee or any Fiscal Agent, as
applicable, shall make such Servicing Advance within the time periods required
by Section 3.11(f) unless the Trustee or such 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 and/or (if a Serviced Loan
Combination is involved) the related Loan Combination Custodial Account, in
accordance with Section 3.05(a) or Section 3.05A, as applicable, any servicing
expense that, if advanced by the Master Servicer or the Special Servicer, would
constitute a Nonrecoverable Servicing Advance; provided that the Master Servicer
(or the Special Servicer, if a Specially Serviced Mortgage Loan or an
Administered REO Property is involved) has determined in accordance with the
Servicing Standard that making such payment, in the case of withdrawals from a
Loan Combination Custodial Account, is in the best interests of the
Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s) (as a collective whole), or, in the case of withdrawals from the
Pool Custodial Account, is in the best interests of the Certificateholders (as a
collective whole), as evidenced in each case by an Officer's Certificate
delivered promptly to the Trustee, the Depositor, the Controlling Class
Representative and any affected Serviced Non-Trust Mortgage Loan Noteholder(s),
setting forth the basis for such determination and accompanied by any
information that such Person may have obtained that supports such determination.
A copy of any such Officer's Certificate (and accompanying information) of the
Master Servicer shall also be promptly delivered to the Special Servicer, and a
copy of any such Officer's Certificate (and accompanying information) of the
Special Servicer shall also be promptly delivered to the Master Servicer. The
Master Servicer may conclusively rely on any information in this regard provided
by the Special Servicer (if other than the Master Servicer or an Affiliate
thereof).
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 the Mortgaged Property securing a Serviced Mortgage
Loan as soon as practicable after such Serviced Mortgage Loan becomes a
Specially Serviced Mortgage Loan and annually thereafter for so long as such
Mortgage Loan remains a Specially Serviced Mortgage Loan, the cost of which
shall be
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paid by the Master Servicer, at the direction of the Special Servicer, and shall
be reimbursable as a Servicing Advance. In addition, the Special Servicer shall
perform or cause to be performed a physical inspection of each of the
Administered REO Properties at least once per calendar year, the cost of which
shall be paid by the Master Servicer, at the direction of the Special Servicer,
and shall be reimbursable as a Servicing Advance. Beginning in 2007, the Master
Servicer shall at its expense perform or cause to be performed a physical
inspection of each Mortgaged Property securing a Performing Serviced Mortgage
Loan: (i) at least once every two calendar years in the case of Mortgaged
Properties securing Performing Serviced Mortgage Loans that have outstanding
principal balances of (or Mortgaged Properties having allocated loan amounts of)
$2,000,000 or less; and (ii) at least once every calendar year in the case of
all other such Mortgaged Properties; provided that, the Master Servicer will not
be required to perform or cause to be performed an inspection on a Mortgaged
Property if such Mortgaged Property has been inspected by the Master Servicer or
the Special Servicer in the preceding six months. The Master Servicer and the
Special Servicer shall each promptly prepare or cause to be prepared and deliver
to the Trustee, the related Serviced Non-Trust Mortgage Loan Noteholder(s) (if
the subject Mortgaged Property secures a Serviced Loan Combination) and each
other a written report of each such inspection performed by it that sets forth
in detail the condition of the Mortgaged Property and that specifies the
existence of: (i) any sale, transfer or abandonment of the Mortgaged Property of
which the Master Servicer or the Special Servicer, as applicable, is aware, (ii)
any change in the condition or value of the Mortgaged Property that the Master
Servicer or the Special Servicer, as applicable, in its reasonable, good faith
judgment, considers material, or (iii) any waste committed on the Mortgaged
Property. The Master Servicer and Special Servicer shall each forward copies of
any such inspection reports prepared by it to the Underwriters and the
Controlling Class Representative upon request, subject to payment of a
reasonable fee.
The Special Servicer, in the case of each Specially Serviced
Mortgage Loan and each REO Mortgage Loan that relates to an Administered REO
Property, and the Master Servicer, in the case of each Performing Serviced
Mortgage Loan, shall each, consistent with the Servicing Standard, use
reasonable efforts to obtain quarterly, annual and other periodic operating
statements and rent rolls with respect to each of the related Mortgaged
Properties and REO Properties. The Special Servicer shall, promptly following
receipt, deliver copies of the operating statements and rent rolls received or
obtained by it to the Master Servicer. The Master Servicer shall promptly
deliver copies of the operating statements and rent rolls received or obtained
by it (including pursuant to the preceding sentence) to the Trustee, the Special
Servicer, any related Serviced Non-Trust Mortgage Loan Noteholder(s) (if the
subject Mortgaged Property secures a Serviced Loan Combination) or any
Controlling Class Certificateholder, in each case upon request.
Within 30 days after receipt by the Master Servicer or Special
Servicer, as applicable, of any annual operating statements with respect to any
Mortgaged Property (other than a Mortgaged Property that secures an Outside
Serviced Loan Combination) or Administered REO Property, the Master Servicer
(with respect to a Mortgaged Property that secures a Performing Serviced
Mortgage Loan) and the Special Servicer (with respect to a Mortgaged Property
that secures a Specially Serviced Mortgage Loan or with respect to an
Administered REO Property) shall prepare or update and forward to the Trustee a
CMSA NOI Adjustment Worksheet for such Mortgaged Property or Administered REO
Property (with, upon request, the annual operating statements attached thereto
as an exhibit).
The Master Servicer, with respect to a Mortgaged Property that
secures a Performing Serviced Mortgage Loan, and the Special Servicer, with
respect to a Mortgaged Property that secures a
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Specially Serviced Mortgage Loan or with respect to an Administered REO
Property, shall prepare and maintain one CMSA Operating Statement Analysis
Report for each such Mortgaged Property and Administered REO Property. The CMSA
Operating Statement Analysis Report for each such Mortgaged Property and REO
Property is to be updated by the Master Servicer or Special Servicer, as
applicable, within 30 days after its receipt of updated operating statements for
a Mortgaged Property or REO Property, as the case may be. The Master Servicer or
Special Servicer, as applicable, shall use the "Normalized" column from the CMSA
NOI Adjustment Worksheet for any Mortgaged Property or REO Property, as the case
may be, to update and normalize the corresponding annual year-end information in
the CMSA Operating Statement Analysis Report and shall use any annual operating
statements and related data fields received with respect to any Mortgaged
Property or REO Property, as the case may be, to prepare the CMSA NOI Adjustment
Worksheet for such property. Copies of CMSA Operating Statement Analysis Reports
and CMSA NOI Adjustment Worksheets (as well as any comparable items received
with respect to an Outside Serviced Trust Mortgage Loan or any related REO
Property) are to be forwarded by the Master Servicer or the Special Servicer, as
applicable, to each other, the Trustee and any Controlling Class
Certificateholder, in each case upon request.
(b) Not later than 12:00 p.m. (New York City time) on the
Business Day after each Trust Determination Date, the Special Servicer shall
deliver or cause to be delivered to the Master Servicer the following reports
with respect to the Specially Serviced Trust Mortgage Loans and any Administered
REO Properties and, to the extent that the subject information relates to when
they were Specially Serviced Trust Mortgage Loans, with respect to any Corrected
Trust Mortgage Loans, providing the required information as of the related
Determination Date: (A) a CMSA Property File; (B) a CMSA Comparative Financial
Status Report; (C) a CMSA Delinquent Loan Status Report; (D) a Loan Payoff
Notification Report; (E) a CMSA Historical Liquidation Report; (F) a CMSA
Historical Loan Modification and Corrected Mortgage Loan Report; and (G) a CMSA
REO Status Report.
(c) Not later than 1:00 p.m. (New York City time) on the second
Business Day prior to each Distribution Date, the Master Servicer shall furnish
to the Trustee and, upon request, to the Depositor, the Underwriters and the
Special Servicer, by electronic transmission (or in such other form to which the
Trustee or the Depositor, as the case may be, and the Master Servicer may
agree), an accurate and complete CMSA Loan Periodic Update File providing the
required information for the Trust Mortgage Loans and any REO Trust Mortgage
Loans as of the related Determination Date (or, in the case of an Outside
Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, as of the end of the related Underlying Collection Period). In
the case of information to be furnished by the Master Servicer to the Trustee
pursuant to this Section 3.12(c), 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.
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
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Agencies, the Special Servicer and, upon request, any Controlling Class
Certificateholder: (i) the most recent CMSA Historical Loan Modification and
Corrected Mortgage Loan Report, CMSA Historical Liquidation Report and CMSA REO
Status Report received from the Special Servicer pursuant to Section 3.12(b);
(ii) the most recent CMSA Property File, CMSA Financial File, CMSA Loan Setup
File (if modified), CMSA Loan Level Reserve/LOC Report, CMSA Delinquent Loan
Status 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); (iii) a CMSA Servicer Watch List with
information that is current as of the related Determination Date with respect to
each subject Trust Mortgage Loan; and (iv) a CMSA Advance Recovery Report
providing the required information for the Trust Mortgage Loans and any REO
Trust Mortgage Loans as of the related Determination Date (or, in the case of an
Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto, as of the end of the related Underlying Collection
Period).
The Master Servicer shall incorporate in the foregoing reports
referred to above in this Section 3.12(c) 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 related Outside
Servicing Agreement) from the applicable Outside Servicer with respect to each
Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto. The Master Servicer shall include on one of such reports
updated information as of the applicable Determination Date regarding the amount
of accrued and unpaid interest on Advances in accordance with Section 3.11(g)
and/or 4.03(d), such information to be presented on a loan-by-loan basis.
(d) If the Master Servicer or the Special 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 the Master Servicer or, solely
as to Specially Serviced Mortgage Loans and REO Properties, the Special
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 and, if applicable, the Special Servicer (the "Supplemental
Report"), and deliver such report to the Trustee upon preparation thereof or
simultaneously with the delivery of the Master Servicer's reports described in
Section 3.12(c).
(e) 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 an Outside Serviced Trust Mortgage Loan or an Outside
Administered REO Property, by a related Outside Servicer pursuant to the related
Outside 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, 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 or
reports to be furnished by the Master Servicer to the Trustee pursuant to
Section 3.12(c), if and 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 an
Outside Servicer pursuant to an Outside Servicing Agreement, or if
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and to the extent such reports are to be prepared and delivered by the Special
Servicer pursuant to Section 3.12(b) or by an Outside Servicer pursuant to an
Outside Servicing Agreement, then, 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 Outside Servicer, as applicable, and the
Master Servicer is entitled to conclusively rely on such information provided by
the Special Servicer or relevant Outside Servicer, as applicable. 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
by an Outside Servicer's failure to provide any report required to be provided
to the holder of the related Outside Serviced Trust Mortgage Loan pursuant to
the related Outside Servicing Agreement or the related Co-Lender Agreement, as
applicable.
(f) 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. Preparation and Delivery of Certain Statements and
Reports to the Serviced Non-Trust Mortgage Loan
Noteholders.
(a) The Master Servicer shall promptly deliver to each Serviced
Non-Trust Mortgage Loan Noteholder: (i) copies of operating statements and rent
rolls; (ii) upon request, annual CMSA NOI Adjustment Worksheets (with annual
operating statements as exhibits); and (iii) annual CMSA Operating Statement
Analysis Reports, in each case prepared, received or obtained by it pursuant to
Section 3.12 with respect to the Mortgaged Property securing the related
Serviced Loan Combination.
(b) If the Mortgage Loans forming a Serviced Loan Combination
constitute Specially Serviced Mortgage Loans, or if a Mortgaged Property
securing a Serviced Loan Combination has become an REO Property, then each
calendar month, not later than 12:00 p.m. (New York City time) on the Business
Day after the applicable Loan Combination Determination Date in such month, the
Special Servicer shall deliver or cause to be delivered to the Master Servicer
the following reports with respect to such Serviced Loan Combination and/or the
related Mortgaged Property, providing the required information as of such Loan
Combination Determination Date: (i) a CMSA Property File (or similar report
satisfactory to the Master Servicer); and (ii) a CMSA Comparative Financial
Status Report (or similar report satisfactory to the Master Servicer). If the
Mortgage Loans forming a Serviced Loan Combination constitute Specially Serviced
Mortgage Loans, or if a Mortgaged Property securing a Serviced Loan Combination
has become an REO Property, then each calendar month, not later than 10:00 a.m.
(New York City time) on the second Business Day prior to the applicable Loan
Combination Master Servicer Remittance Date in such month, the Special Servicer
shall deliver or cause to be delivered to the Master Servicer such of the
following reports as may be relevant with respect to such Serviced Loan
Combination and/or the related Mortgaged Property: (i) a CMSA Delinquent Loan
Status Report; (ii) a Loan Payoff Notification Report, (iii) a CMSA Historical
Liquidation Report; (iv) a CMSA Historical Loan Modification and Corrected
Mortgage Loan Report; and (v) a CMSA REO Status Report.
(c) Prior to 12:00 noon (New York City time) on each applicable
Master Servicer Remittance Date, the Master Servicer shall, with respect to each
Serviced Loan Combination, prepare all
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Loan Combination Servicing Reports as may be relevant and that are not otherwise
required to be prepared by the Special Servicer pursuant to Section 3.12A(b).
The Master Servicer shall also include on one of such reports updated
information as of the applicable Loan Combination Determination Date regarding
the amount of accrued and unpaid interest on Advances in accordance with Section
3.11(g) and/or 4.03(d), such information to be presented on a loan-by-loan
basis.
(d) The Special Servicer shall deliver to the Master Servicer
the reports set forth in Section 3.12A(b) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer. The Master Servicer
may, absent manifest error, conclusively rely on the reports to be provided by
the Special Servicer pursuant to Section 3.12A(b). In the case of information or
reports to be furnished by the Master Servicer to a Serviced Non-Trust Mortgage
Loan Noteholder pursuant to Section 3.12A(f), 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 3.12A(f) 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.
(f) Not later than 12:00 noon (New York City time) on each
related Master Servicer Remittance Date, the Master Servicer shall forward to
the related Non-Trust Mortgage Loan Noteholder(s) all related Loan Combination
Servicing Reports prepared with respect to each Serviced Loan Combination,
pursuant to this Section 3.12A, during the calendar month in which such Master
Servicer Remittance Date occurs.
(g) The Master Servicer shall only be obligated to deliver the
statements, reports and information contemplated by Section 3.12A(f) 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.
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SECTION 3.13. Annual Statement as to Compliance.
Each of the Trustee, the Master Servicer and the Special Servicer
shall deliver, and shall cause (or, in the case of the Master Servicer with
respect to a Sub-Servicer identified on Exhibit K hereto, shall use reasonable
efforts to cause) each Additional Servicer with which it has entered into a
servicing relationship with respect to any one or more Mortgage Loans to
deliver, to the Trustee, the Rating Agencies, the Depositor, the Underwriters,
each Serviced Non-Trust Mortgage Loan Noteholder and each other, at no expense
to the Trust on or before April 30 of each year, beginning in 2007 (or, as to
any such year, such earlier date as is contemplated by the last sentence of this
Section 3.13), a statement of compliance (the "Annual Statement of Compliance")
from the Trustee, the Master Servicer, the Special Servicer or such Additional
Servicer, as the case may be, signed by an authorized officer thereof, to the
effect that (i) a review of the activities of the Trustee, the Master Servicer,
the Special Servicer or such Additional 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, 2006, inclusive) and, in
particular, of its performance under this Agreement (or, in the case of an
Additional Servicer, under the applicable Sub-Servicing Agreement or primary
servicing agreement), has been made under such officer's supervision, and (ii)
to the best of such officer's knowledge, based on such review, the Trustee, the
Master Servicer, the Special Servicer or such Additional Servicer, as the case
may be, has fulfilled all of its obligations under this Agreement (or, in the
case of an Additional Servicer, under the applicable Sub-Servicing Agreement or
primary servicing agreement) in all material respects throughout such preceding
calendar year or portion thereof (or, if there has been a failure to fulfill any
such obligation in any material respects, specifying each such failure known to
such officer and the nature and status thereof). Notwithstanding the timing
provided for in the first sentence of this paragraph, if (as confirmed in
writing by the Depositor) the Depositor or any other party hereto is required to
file an Annual Report on Form 10-K with the Commission in respect of the Trust
covering any particular calendar year, or (if applicable) any other depositor,
trustee and/or other certifying party and certifying officer with respect to a
related securitization trust is required to file an Annual Report on Form 10-K
with the Commission in connection with the securitization of any Serviced
Non-Trust Mortgage Loan covering any particular calendar year and so notifies
the Trustee, the Master Servicer and the Special Servicer, then the Annual
Statement of Compliance to be delivered during the following year by each of the
Trustee, the Master Servicer and the Special Servicer, and by each Additional
Servicer with which the Master Servicer or Special Servicer has entered into a
servicing relationship with respect to any one or more Mortgage Loans, shall be
delivered (in Microsoft Word, Microsoft Excel or in such other mutually
agreeable format) on or before March 15 of such following year to the Trustee,
the Depositor, each Serviced Non-Trust Mortgage Loan Noteholder and any such
depositor, trustee and/or other certifying party and certifying officer with
respect to a related securitization trust, as applicable; and the Master
Servicer and the Special Servicer are hereby notified that the Depositor is
required to file an Annual Report on Form 10-K with the Commission in respect of
the Trust covering calendar year 2006.
In the event the Trustee or the Depositor does not receive the
Annual Statement of Compliance with respect to any party contemplated to deliver
such report pursuant to the preceding paragraph, by March 15th of any year
during which an Annual Report on Form 10-K is required to be filed with the
Commission with respect to the Trust, then the Trustee shall, and the Depositor
may, forward a Servicer Notice to such party (or, in the case of an Additional
Servicer that is not a party hereto, to the party hereto that has a servicing
relationship with such Additional Servicer), with a copy of such Servicer Notice
to the Depositor (if the Trustee is sending the Servicer Notice) or the
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Trustee (if the Depositor is sending the Servicer Notice), as applicable, within
two (2) Business Days of such failure.
SECTION 3.14. Reports on Assessment of Compliance with Servicing
Criteria; Registered Public Accounting Firm
Attestation Reports.
Each Servicing Function Participant shall itself deliver, and each
party hereto shall cause (or, in the case of the Master Servicer with respect to
a Sub-Servicer identified on Exhibit K hereto, shall use reasonable efforts to
cause) any Sub-Servicing Function Participant with which it has entered into a
servicing relationship with respect to any one or more Mortgage Loans to
deliver, on or before April 30 of each year, beginning in 2007 (or, as to any
such year, such earlier date as is contemplated by the last sentence of this
paragraph), to the Trustee, to the Depositor, to each Serviced Non-Trust
Mortgage Loan Noteholder and, in the case of a Servicing Function Participant
(other than the Master Servicer and the Trustee) or a Sub-Servicing Function
Participant, to the Master Servicer, at no expense to the Trust, the following
reports: (i) as required under Rules 13a-18 or 15d-18 of the Exchange Act and
Item 1122 of Regulation AB, a report on an assessment of compliance by it with
the Servicing Criteria (an "Annual Assessment Report"), signed by an authorized
officer of such Servicing Function Participant or such Sub-Servicing Function
Participant, as the case may be, which report shall contain (A) a statement by
such Servicing Function Participant or such Sub-Servicing Function Participant,
as the case may be, of its responsibility for assessing compliance with the
Servicing Criteria applicable to it, (B) a statement that such Servicing
Function Participant or such Sub-Servicing Function Participant, as the case may
be, used the Servicing Criteria to assess compliance with the Relevant
Servicing Criteria, (C) such Servicing Function Participant's or such
Sub-Servicing Function Participant's, as the case may be, assessment of
compliance with the Relevant Servicing Criteria as of and for the period
ending December 31st of the preceding calendar year, which discussion must
include any material instance of noncompliance with the Relevant Servicing
Criteria identified by such Servicing Function Participant or such Sub-Servicing
Function Participant, as the case may be, and (D) a statement that a registered
public accounting firm has issued an attestation report on such Servicing
Function Participant's or such Sub-Servicing Function Participant's, as the case
may be, assessment of compliance with the Relevant Servicing Criteria as of
and for such period ending December 31st of the preceding calendar year; and
(ii) as to each report delivered by a Servicing Function Participant or a
Sub-Servicing Function Participant pursuant to the immediately preceding clause
(i), as required under Rules 13a-18 or 15d-18 of the Exchange Act and Item 1122
of Regulation AB, a report from a registered public accounting firm (made in
accordance with the standards for attestation engagements issued or adopted by
the PCAOB) (an "Annual Attestation Report") that attests to, and reports on, the
assessment made by the asserting party in such report delivered pursuant to the
immediately preceding clause (i). Promptly after receipt of each such report
delivered pursuant to the preceding sentence, the Depositor shall review such
report and, if applicable, shall be entitled to consult with the appropriate
party hereto as to the nature of any material instance of noncompliance with the
Relevant Servicing Criteria by such party or any Sub-Servicing Function
Participant with which it has entered into a servicing relationship with respect
to the Mortgage Loans. 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 an Annual Report on Form 10-K with the Commission
in respect of the Trust covering any particular calendar year, or (if
applicable) any other depositor, trustee and/or other certifying party and
certifying officer with respect to a related securitization trust is required to
file an Annual Report on Form 10-K with the Commission in connection with the
securitization of any Serviced Non-Trust Mortgage Loan covering any particular
calendar year and so notifies the Master Servicer and the Special Servicer,
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then the Annual Assessment Report and the Annual Attestation Report to be
delivered during the following year by or on behalf of each Servicing Function
Participant, and by or on behalf of each Sub-Servicing Function Participant with
which a party hereto has entered into a servicing relationship with respect to
any one or more Mortgage Loans, shall be delivered to the Depositor, the
Trustee, each Serviced Non-Trust Mortgage Loan Noteholder and any such
depositor, trustee and/or other certifying party and certifying officer with
respect to a related securitization trust, as applicable, on or before March 15
of such following year and shall not contain any restrictions on the filing
thereof with the Commission with respect to calendar year 2006; and the Master
Servicer, the Special Servicer, the Trustee and any Fiscal Agent are hereby
notified that the Depositor is required to file an Annual Report on Form 10-K
(including the foregoing Annual Assessment Reports and Annual Attestation
Reports) with the Commission in respect of the Trust covering calendar year
2006.
In the event the Trustee or the Depositor does not receive the
Annual Assessment Report and/or the Annual Attestation Report with respect to
any Servicing Function Participant, or with respect to any Sub-Servicing
Function Participant with which a party hereto has entered into a servicing
relationship with respect to any one or more Mortgage Loans, by March 15th of
any year during which an Annual Report on Form 10-K is required to be filed with
the Commission with respect to the Trust, then the Trustee shall, and the
Depositor may, forward a Servicer Notice to such Servicing Function Participant
or the party hereto that has a servicing relationship with such Sub-Servicing
Function Participant, as the case may be, with a copy of such Servicer Notice to
the Depositor (if the Trustee is sending the Servicer Notice) or the Trustee (if
the Depositor is sending the Servicer Notice), as applicable, within two (2)
Business Days of such failure. For the purposes of this Section 3.14, as well as
Section 3.13 and Section 7.01(v)(B) of this Agreement, a "Servicer Notice" shall
constitute either any writing forwarded to such party or, solely in the case of
the Master Servicer, notwithstanding the provisions of Section 11.05, e-mail
notice which shall be forwarded to all of the following e-mail addresses:
xxxxxxxx.xxxxxxxxxx@xxxxxxxx.xxx, xxxxx.xxxxxxxxx@xxxxxxxx.xxx and
xxxx.xxxxxxxx@xxxxxxxx.xxx, or such other e-mail addresses as are provided in
writing by the Master Servicer to the Trustee and the Depositor; provided that
any party to this Agreement (or someone acting on their behalf) shall only be
required to forward any such notice to be delivered to the Master Servicer to no
more than three e-mail addresses in the aggregate in order to fulfill its
notification requirement as set forth in the preceding sentence and/or under the
provisions of Section 7.01(v)(B).
The Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent, in each case, 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 pursuant to
the Exchange Act, provided that the Master Servicer, the Special Servicer, the
Trustee and any Fiscal Agent shall each be entitled to charge the Depositor for
any reasonable additional costs and expenses incurred by it in affording the
Depositor such cooperation.
SECTION 3.15. Access to Certain Information.
(a) Each of the Master Servicer and the Special Servicer shall
afford to the Trustee, the Underwriters, the Rating Agencies, the Depositor, any
Certificateholder, any Serviced Non-Trust Mortgage Loan Noteholder and any
Certificate Owner (identified as such to the reasonable satisfaction of the
Master Servicer or the Special Servicer, as the case may be), and to the OTS,
the FDIC and any
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other banking or insurance regulatory authority that may exercise authority over
any Certificateholder, any Certificate Owner (identified as such to the
reasonable satisfaction of the Master Servicer or the Special Servicer, as the
case may be) or any Serviced Non-Trust Mortgage Loan Noteholder, access to any
records regarding the Serviced Mortgage Loans and the servicing thereof within
its control (which access shall be limited, in the case of any Serviced
Non-Trust Mortgage Loan Noteholder or any regulatory authority seeking such
access in respect of a Serviced Non-Trust Mortgage Loan Noteholder, to records
relating to the related Serviced Non-Trust Mortgage Loan), except to the extent
it is prohibited from doing so by applicable law or contract or to the extent
such information is subject to a privilege under applicable law to be asserted
on behalf of the Certificateholders or the Serviced Non-Trust Mortgage Loan
Noteholders. Such access shall be afforded only upon reasonable prior written
request and during normal business hours at the offices of the Master Servicer
or the Special Servicer, as the case may be, designated by it.
In connection with providing or granting any information or access
pursuant to the prior paragraph to a Certificateholder, a Certificate Owner, a
Serviced Non-Trust Mortgage Loan Noteholder or any regulatory authority that may
exercise authority over a Certificateholder, a Certificate Owner or a Serviced
Non-Trust Mortgage Loan Noteholder, the Master Servicer and the Special Servicer
each may require payment from such Certificateholder, a Certificate Owner or a
Serviced Non-Trust Mortgage Loan Noteholder of a sum sufficient to cover the
reasonable costs and expenses of providing such information or access, including
copy charges and reasonable fees for employee time and for space; provided that
no charge may be made if such information or access was required to be given or
made available under applicable law. In connection with providing
Certificateholders and Certificate Owners access to the information described in
the preceding paragraph, the Master Servicer and the Special Servicer shall
require (prior to affording such access) a written confirmation executed by the
requesting Person substantially in such form as may be reasonably acceptable to
the Master Servicer or the Special Servicer, as the case may be, generally to
the effect that such Person is a Holder of Certificates or a beneficial holder
of Book-Entry Certificates and will keep such information confidential.
Upon the reasonable request of any Certificateholder, or any
Certificate Owner identified to the Master Servicer to the Master Servicer's
reasonable satisfaction, the Master Servicer may provide (or forward
electronically) (at the expense of such Certificateholder or Certificate Owner)
copies of any operating statements, rent rolls and financial statements obtained
by the Master Servicer or the Special Servicer; provided that, in connection
therewith, the Master Servicer shall require a written confirmation executed by
the requesting Person substantially in such form as may be reasonably acceptable
to the Master Servicer, generally to the effect that such Person is a Holder of
Certificates or a beneficial holder of Book-Entry Certificates and will keep
such information confidential.
(b) No less often than on a monthly basis, upon reasonable prior
notice and during normal business hours, each of the Master Servicer and the
Special Servicer shall, without charge, make a knowledgeable Servicing Officer
available to answer questions (if and to the extent the Master Servicer or the
Special Servicer, as the case may be, is responsible (or, in the case of the
Special Servicer, would be responsible upon the occurrence of a Servicing
Transfer Event) for the servicing thereof) from the following parties: (i) the
Controlling Class Representative regarding the performance and servicing of the
Mortgage Loans and/or the REO Properties; and (ii) the related Serviced Loan
Combination Controlling Party regarding the performance and servicing of each
Serviced Loan Combination and/or any related REO Property. Except as provided in
the following sentence, in connection with providing the Controlling Class
Representative with the information described in the
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preceding sentence, the Master Servicer and the Special Servicer shall require
(prior to providing such information for the first time to such Controlling
Class Representative) a Controlling Class Representative Confirmation (as
defined in Section 6.09(b)), generally to the effect that such Person will keep
any information received by it from time to time pursuant to this Agreement
confidential (other than with respect to communications with the Controlling
Class). In the case of the initial Controlling Class Representative, upon its or
an Affiliate's acquisition of the Class T Certificates, such entity shall be
deemed to have agreed to keep all non-public information received by it in such
capacity from time to time pursuant to this Agreement confidential, subject to
applicable law, and such initial Controlling Class Representative shall be
deemed to have made such agreement without delivery of the Controlling Class
Representative Confirmation.
SECTION 3.16. Title to REO Property; REO Accounts.
(a) If title to any Mortgaged Property (other than a Mortgaged
Property that secures an Outside Serviced Loan Combination) is acquired, the
deed or certificate of sale shall be issued to the Trustee or its nominee on
behalf of the Certificateholders and, in the case of a Mortgaged Property that
secures a Serviced Loan Combination, on behalf of the related Serviced Non-Trust
Mortgage Loan Noteholder(s). If, pursuant to Section 3.09(b), the Special
Servicer formed or caused to be formed, at the expense of the Trust, a single
member limited liability company (of which the Trust is the sole member) for the
purpose of taking title to one or more Administered REO Properties pursuant to
this Agreement, then (subject to the interests of any affected Serviced
Non-Trust Mortgage Loan Noteholder), the deed or certificate of sale with
respect to any such Administered REO Property shall be issued to such single
member limited liability company. The limited liability company shall be a
manager-managed limited liability company, with the Special Servicer to serve as
the initial manager to manage the property of the limited liability company,
including any applicable Administered REO Property, in accordance with the terms
of this Agreement as if such property was held directly in the name of the Trust
or Trustee under this Agreement.
The Special Servicer, on behalf of the Trust Fund and, in the case
of any Administered REO Property that relates to a Serviced Loan Combination,
the related Serviced Non-Trust Mortgage Loan Noteholder(s), shall sell any
Administered REO Property by the end of the third calendar year following the
calendar year in which the applicable REMIC Pool 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 the applicable REMIC Pool of such Administered
REO Property subsequent to the end of such third succeeding year will not result
in the imposition of taxes on "prohibited transactions" (as defined in Section
860F of the Code) of any REMIC Pool or cause any REMIC Pool to fail to qualify
as a REMIC at any time that any Certificates are outstanding. If the Special
Servicer is granted the REO Extension contemplated by clause (i) of the
immediately preceding sentence or obtains the Opinion of Counsel contemplated by
clause (ii) of the immediately preceding sentence, the Special Servicer shall
sell the subject Administered REO Property within such extended period as is
permitted by such REO Extension or such Opinion of Counsel, as the case may be.
Any expense incurred by the Special Servicer in connection with its obtaining
the REO Extension contemplated by clause (i) of the second preceding sentence or
its obtaining the Opinion of Counsel contemplated by clause (ii) of the second
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preceding sentence, or for the creation of and the operating of a single member
limited liability company, shall be covered by, and reimbursable as, a Servicing
Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any Administered REO Property separate
and apart from its own funds and general assets. If an REO Acquisition shall
occur in respect of any Mortgaged Property (other than a Mortgaged Property that
secures a Loan Combination), the Special Servicer shall establish and maintain
one or more accounts (collectively, the "Pool REO Account"), to be held on
behalf of the Trustee in trust for the sole benefit of the Certificateholders,
for the retention of revenues and other proceeds derived from each REO Property
(other than any REO Property that relates to a Loan Combination). If such REO
Acquisition occurs with respect to the Mortgaged Property that secures any
Serviced Loan Combination, then the Special Servicer shall establish one or more
accounts solely with respect to such property (the related "Loan Combination REO
Account"), to be held for the sole benefit of the Certificateholders and the
related Serviced Non-Trust Mortgage Loan Noteholder(s). The Pool REO Account and
each Loan Combination REO Account shall each be an Eligible Account. The Special
Servicer shall deposit, or cause to be deposited, in the applicable REO Account,
upon receipt, all REO Revenues, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of any Administered REO Property. Funds
in an REO Account (other than any such funds representing Additional Interest)
may be invested in Permitted Investments in accordance with Section 3.06. The
Special Servicer shall be entitled to make withdrawals from an REO Account to
pay itself, as additional special servicing compensation in accordance with
Section 3.11(d), interest and investment income earned in respect of amounts
held in such REO Account as provided in Section 3.06(b) (but only to the extent
of the Net Investment Earnings with respect to such REO Account for any related
Investment Period). The Special Servicer shall give notice to the Trustee and
the Master Servicer of the location of each REO Account, and shall give notice
to the related Serviced Non-Trust Mortgage Loan Noteholder(s) of the location of
any Loan Combination REO Account, in each case when first established and of the
new location of any such REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the related REO
Account funds necessary for the proper operation, management, leasing,
maintenance and disposition of any Administered REO Property, but only to the
extent of amounts on deposit in such REO Account relating to such REO Property.
On the Business Day following each Trust Determination Date, the Special
Servicer shall withdraw from any Pool REO Account and deposit into the Pool
Custodial Account (or deliver to the Master Servicer or such other Person as may
be designated by the Master Servicer for deposit into the Pool Custodial
Account) the aggregate of all amounts received in respect of each Administered
REO Property (other than any Administered REO Property relating to a Serviced
Loan Combination) during the Trust Collection Period ending on such Trust
Determination Date, net of any withdrawals made out of such amounts pursuant to
the preceding sentence and, further, net of any reserves to be maintained in the
Pool REO Account in accordance with the last sentence of this Section 3.16(c).
On the Business Day following each related Loan Combination Determination Date,
the Special Servicer shall withdraw from the Loan Combination REO Account
related to any Serviced Loan Combination and deposit into the Loan Combination
Custodial Account that relates to such Serviced Loan Combination (or deliver to
the Master Servicer or such other Person as may be designated by the Master
Servicer for deposit into such Loan Combination Custodial Account) the aggregate
of all amounts received in respect of any Administered REO Property that relates
to such Serviced Loan Combination during the related Loan Combination Collection
Period ending on such related Loan Combination Determination Date, net of any
withdrawals made out of such amounts pursuant to the
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second preceding sentence and, further, net of any reserves to be maintained in
the related Loan Combination REO Account in accordance with the last sentence of
this Section 3.16(c). Notwithstanding the foregoing, the Special Servicer may
retain in the related REO Account such portion of proceeds and collections in
respect of any Administered REO Property as may be necessary to maintain a
reserve of sufficient funds for the proper operation, management, leasing,
maintenance and disposition of such REO Property (including the creation of a
reasonable reserve for repairs, replacements, necessary capital replacements and
other related expenses), such reserve not to exceed an amount sufficient to
cover such items to be incurred during the following twelve-month period.
(d) The Special Servicer shall keep and maintain separate
records, on a property-by-property basis, for the purpose of accounting for all
deposits to, and withdrawals from, each REO Account pursuant to Section 3.16(b)
or (c). The Special Servicer shall provide the Master Servicer any information
with respect to each REO Account as is reasonably requested by the Master
Servicer.
(e) Notwithstanding anything to the contrary, this Section 3.16
shall not apply to any Outside Administered REO Property.
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition by it of title to a Mortgaged
Property (other than a Mortgaged Property that secures an Outside Serviced Loan
Combination), 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
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Tax Administrator's federal income tax reporting position with respect to
the various sources of income that the Trust Fund would derive under the
Proposed Plan. After receiving the information described in the preceding
sentence from the Tax Administrator, the Special Servicer shall implement
the Proposed Plan (after acquiring the respective Mortgaged Property as
REO Property), with any amendments required to be made thereto as a result
of the Tax Administrator's tax reporting position.
The Special Servicer's decision as to how each Administered REO
Property shall be managed and operated shall be based on the Servicing Standard
and, further, based on the good faith and reasonable judgment of the Special
Servicer as to which means would be in the best interest of the
Certificateholders (and, in the case of any Administered REO Property related to
a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), as a collective whole, by maximizing (to the extent commercially
reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues
received with respect to such property without materially impairing the Special
Servicer's ability to promptly sell such property for a fair price. In
connection with performing their respective duties under this Section 3.17(a),
both the Special Servicer and the Tax Administrator may consult with counsel and
tax accountants, the 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 Administered
REO Property related to a Serviced Loan Combination, the related Serviced
Non-Trust Mortgage Loan Noteholder(s)) solely for the purpose of its prompt
disposition and sale in a manner that does not and will not: (i) cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or
(ii) except as contemplated by Section 3.17(a), either result in the receipt by
any REMIC Pool of any "income from non-permitted assets" within the meaning of
Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an
Adverse Grantor Trust Event. Subject to the foregoing, however, the Special
Servicer shall have full power and authority to do any and all things in
connection therewith as are consistent with the Servicing Standard and,
consistent therewith, shall withdraw from the related REO Account, to the extent
of amounts on deposit therein with respect to any Administered REO Property,
funds necessary for the proper operation, management, maintenance and
disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of
such REO Property;
(ii) all real estate taxes and assessments in respect of
such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property;
and
(iv) all costs and expenses necessary to maintain, lease,
sell, protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the related REO Account in
respect of any Administered REO Property are insufficient for the purposes set
forth in the preceding sentence with respect to such REO Property, the Master
Servicer shall, at the direction of the Special Servicer, make
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Servicing Advances in such amounts as are necessary for such purposes unless the
Master Servicer determines, in accordance with the Servicing Standard, that such
payment would be a Nonrecoverable Advance; provided, however, that the Master
Servicer may make any such Servicing Advance without regard to recoverability if
it is a necessary fee or expense incurred in connection with the defense or
prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the
Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with
respect to such Administered REO Property, if the New Lease, by its terms
would give rise to any income that does not constitute Rents from Real
Property;
(ii) permit any amount to be received or accrued under
any New Lease other than amounts that will constitute Rents from Real
Property;
(iii) authorize or permit any construction on such
Administered REO Property, other than the completion of a building or
other improvement thereon, and then only if more than 10% of the
construction of such building or other improvement was completed before
default on the related Serviced Mortgage Loan became imminent, all within
the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other
than an Independent Contractor, to Directly Operate such Administered REO
Property on any date more than 90 days after the related REO Acquisition;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer, at the
direction of the Special Servicer, and shall be reimbursable as a Servicing
Advance) to the effect that such action would not cause such Administered REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at
any time that it is held by a REMIC Pool, 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 Administered REO
Property that relates to a Serviced Loan Combination, the related Serviced
Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary
in consideration of the nature and locality of such Administered REO
Property;
(iii) except as permitted under Section 3.17(a), any such
contract shall require, or shall be administered to require, that the
Independent Contractor, in a timely manner, (A) pay out of related REO
Revenues all costs and expenses incurred in connection with the operation
and management of such Administered REO Property, including those listed
in Section
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3.17(b) above, and (B) except to the extent that such revenues are derived
from any services rendered by the Independent Contractor to tenants of
such Administered REO Property that are not customarily furnished or
rendered in connection with the rental of real property (within the
meaning of Section 1.856-4(b)(5) of the Treasury regulations or any
successor provision), remit all related revenues collected (net of its
fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d)
relating to any such contract or to actions taken through any such
Independent Contractor shall be deemed to relieve the Special Servicer of
any of its duties and obligations hereunder with respect to the operation
and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such
Administered REO Property.
(e) 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.
(f) Notwithstanding anything to the contrary, this Section 3.17
shall not apply to any Outside Administered REO Property.
SECTION 3.18. Sale of Trust Mortgage Loans and Administered REO
Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Trust Mortgage Loan or
Administered REO Property only in connection with a Permitted Purchase of such
Trust Mortgage Loan or Administered REO Property, as the case may be, and/or in
connection with a sale of such Administered REO Property in accordance with this
Section 3.18.
(b) Within five (5) Business Days after the Special Servicer has
knowledge that any Trust Mortgage Loan has become a Specially Serviced Trust
Mortgage Loan, the Special Servicer shall give notice of such event to the
related Serviced Non-Trust Mortgage Loan Noteholder(s) (if such Trust Mortgage
Loan is part of a Serviced Loan Combination), each Holder of a Certificate of
the Controlling Class and the Trustee. The Special Servicer, any single
Certificateholder or any group of Certificateholders entitled to 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 Purchase Price; provided that a material
default exists with respect to such Specially Serviced Trust Mortgage Loan. The
Special Servicer shall accept the first offer by a Purchase Option Holder that
is at least equal to the Purchase Price for the subject Trust Mortgage Loan.
(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
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Option Holder will also have the option to purchase that Specially Serviced
Trust Mortgage Loan at a price equal to the fair value (the "FV Price") of such
Specially Serviced Trust Mortgage Loan; provided that a material default exists
with respect to such Specially Serviced Trust Mortgage Loan. 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 as to which a material default exists at a price
that is below the 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 such FV Price,
the Special Servicer shall report such FV Price to the Trustee and each Purchase
Option Holder.
(d) If 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 as to which a material
default exists (the party submitting such bid, the "Initial Bidder") at a price
equal to or above the FV Price (a "FV Bid"), then 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 (10)
Business Day period following such notice. At the conclusion of the
above-described ten (10) 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 (10) 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 of such Trust
Mortgage Loan is at least equal to the fair value of such Trust Mortgage Loan.
In conducting such verification, 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' 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.
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(h) Any Purchase Option Holder may, once such purchase option is
exercisable pursuant to this Section 3.18, assign its purchase option with
respect to any Specially Serviced Trust Mortgage Loan to a third party other
than the related Mortgagor or, if such assignment would violate the terms of any
related co-lender, intercreditor or similar agreement, any Affiliate of the
related Mortgagor; 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. Any Purchase Option Holder that acquires, pursuant to this Section
3.18, a Trust Mortgage Loan that is part of a Loan Combination must satisfy the
requirements for an acceptable transferee under the related Co-Lender Agreement.
(i) In determining the FV Price for any Specially Serviced Trust
Mortgage Loan under this Section 3.18, the Special Servicer may take into
account, among other factors, the results of any appraisal or updated appraisal
(the cost of which shall constitute a Servicing Advance) 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 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 such Specially Serviced 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 (although the purchase option shall
resume if the Person that submitted that FV Bid does not complete the purchase
of the subject Specially Serviced Trust Mortgage within the time period provided
for under Section 3.18(e)), (ii) such Specially Serviced Trust Mortgage Loan has
become a Corrected Mortgage Loan or is otherwise no longer in material default,
(iii) the related Mortgaged Property has become an REO Property, (iv) a Final
Recovery Determination has been made with respect to such Specially Serviced
Mortgage Loan or (v) the subject Specially Serviced Trust Mortgage Loan has been
removed from the Trust Fund.
(k) Notwithstanding anything herein to the contrary, if and for
so long as an Outside Serviced Trust Mortgage Loan constitutes a "Specially
Serviced Mortgage Loan" (or the equivalent) under the related Outside Servicing
Agreement as to which there exists a material default, then such Outside
Serviced Trust Mortgage Loan shall be deemed a "Specially Serviced Trust
Mortgage Loan" for purposes of, and be subject to the purchase options
contemplated by, Sections 3.18(b) through 3.18(j); provided that the FV Price
described above may be calculated based upon, among other things, appraisals and
other reasonably appropriate information obtained from the related Outside
Servicers under the related Outside Servicing Agreement. If the Special Servicer
has received insufficient information from the applicable Outside Servicer with
respect to any such Outside Serviced Trust Mortgage Loan in order to establish a
FV Price, it will base such determination only on a current Appraisal and on
information otherwise available or reasonably obtainable by it, at the expense
of the Trust. In addition, if the Special Servicer is determining a FV Price
with respect to any Outside Serviced
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Trust Mortgage Loan and has not received from the applicable Outside Servicer an
appraisal with respect to such Outside Serviced Trust Mortgage Loan that is
dated within the 12 month period prior to the determination of the FV Price,
then the Special Servicer shall obtain, at the expense of the Trust, a new
Appraisal of the subject Mortgaged Property. If the Special Servicer determines
that a FV Price cannot be established for any such Outside Serviced Trust
Mortgage Loan based on the a current Appraisal and other information available
to it, then none of the purchase option holders will be permitted to exercise
the purchase option at a FV Price. In connection with the foregoing, the Special
Servicer shall be entitled to withdraw from the Pool Custodial Account any
out-of-pocket expenses associated with making such FV Price determination.
(l) 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 such
Specially Serviced Trust Mortgage Loan in accordance with the Servicing
Standard.
(m) Any Specially Serviced Trust Mortgage Loan that is purchased
pursuant to the purchase option provided for in this Section 3.18 will remain
subject to any cure and/or purchase rights of any holder of a related mezzanine
loan in connection with a Mortgage Loan default as set forth in the related
intercreditor agreement. Further, any Trust Mortgage Loan that is part of a Loan
Combination and is purchased pursuant to the purchase option provided for in
this Section 3.18 will remain subject to any cure and/or purchase rights of the
related Serviced Non-Trust Mortgage Loan Noteholder(s) provided for under the
related Co-Lender Agreement.
(n) The Special Servicer shall use its best efforts to solicit
offers 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 and/or Section 6.12, if and as applicable, the
Special Servicer shall accept the first (and, if multiple bids are received
contemporaneously or subsequently, the highest) cash offer received from any
Person that constitutes a fair price for such Administered REO Property. If the
Special Servicer reasonably believes that it will be unable to realize a fair
price for any Administered REO Property within the time constraints imposed by
Section 3.16(a), then (subject to Section 6.11 and/or Section 6.12, in each case
if and as applicable) the Special Servicer shall dispose of such Administered
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 an offer
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 offer 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 offer is from the Special Servicer or
an Affiliate of the Special Servicer, by the Trustee. In determining whether any
offer received from the Special Servicer or an Affiliate of the Special Servicer
represents a
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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 Administered 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
offers 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 offer amount. In determining
whether any offer 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 Administered REO Property,
the state of the local economy and the obligation to dispose of the subject
Administered 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 offer from the Special Servicer or any Affiliate thereof shall
constitute a fair price for any Administered REO Property unless such offer is
the highest cash offer received and at least two independent offers (not
including the offer of the Special Servicer or any Affiliate thereof) have been
received. In the event the offer of the Special Servicer or any Affiliate
thereof is the only offer received or is the higher of only two offers received,
then additional offers shall be solicited. If an additional offer or offers, as
the case may be, are received and the original offer of the Special Servicer or
any Affiliate thereof is the highest of all cash offers received, then the offer
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 offer constitutes a fair price for any Administered REO Property. Any
offer 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 6.12, 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
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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 and
Special Servicer; Obligations to Notify Ground
Lessors and Hospitality Franchisors; the Special
Servicer's Right to Request the Master Servicer to
Make Servicing Advances.
(a) The Master Servicer shall deliver to the Trustee for deposit
in the Collection Account on each Trust Master Servicer Remittance Date, without
any right of reimbursement therefor, an amount equal to the lesser of: (i) the
aggregate amount of all Prepayment Interest Shortfalls, if any, incurred in
connection with Principal Prepayments Received by the Trust, during the most
recently ended applicable Collection Period, with respect to Performing Serviced
Trust Mortgage Loans and, if it constitutes a "Performing Serviced Mortgage
Loan" (or the equivalent) under the related Outside Servicing Agreement, any
Outside Serviced Trust Mortgage Loan; and (ii) the sum of (1) the aggregate of
all Master Servicing Fees received by the Master Servicer during such Collection
Period with respect to the entire Mortgage Pool (but only to the extent of that
portion thereof calculated at a rate of 0.01% per annum with respect to each and
every Trust Mortgage Loan and REO Trust Mortgage Loan) and (2) the aggregate
amount of Prepayment Interest Excesses received in respect of the entire
Mortgage Pool during such Collection Period; provided, however, that if any
Prepayment Interest Shortfall occurs with respect to any Serviced Trust Mortgage
Loan as a result of the Master Servicer's allowing the Mortgagor to deviate from
the terms of the related loan documents regarding principal prepayments, the
Master Servicer shall be obligated to pay an amount equal to the entire
Prepayment Interest Shortfall with respect to the subject Serviced Trust
Mortgage Loan without any limitation of the kind set forth in clauses (1) and
(2) above.
(b) The Master Servicer shall, as to each Serviced Trust
Mortgage Loan which is secured by the interest of the related Mortgagor under a
Ground Lease, even if the corresponding fee interest is encumbered, promptly
(and in any event within 60 days) following the Closing Date, notify the related
ground lessor of the transfer of such Serviced Trust Mortgage Loan to the Trust
Fund pursuant to this Agreement and inform such ground lessor that any notices
of default under the related Ground Lease should thereafter be forwarded to the
Master Servicer.
(c) The Master Servicer shall, as to each Serviced Trust
Mortgage Loan which is secured by the interest of the related Mortgagor in a
hospitality property (as identified on Schedule VI hereto), not later than the
later of (i) 30 days following the Master Servicer's receipt of the subject
franchise agreement and (ii) the expiration of the period that may be required
for such notice pursuant to the terms of the applicable franchise documents, if
any, notify the related hospitality franchisor of the transfer of such Serviced
Trust Mortgage Loan to the Trust Fund pursuant to this Agreement and inform such
hospitality franchisor that any notices of default under the related franchise
agreement should thereafter be forwarded to the Master Servicer.
(d) Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer is required under this Agreement to make any
Servicing Advance but does not desire to
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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) or 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(d),
the Master Servicer shall not be required to make at the direction of the
Special Servicer, any Servicing Advance if the Master Servicer determines in its
reasonable, good faith judgment that such Servicing Advance, although not
characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is
in fact a Nonrecoverable Servicing Advance. The Master Servicer shall notify the
Special Servicer in writing of such determination, which shall be made pursuant
to Section 3.11(h). Any request by the Special Servicer that the Master Servicer
make a Servicing Advance shall be deemed to be a determination by the Special
Servicer that such requested Servicing Advance is not a Nonrecoverable Servicing
Advance, and the Master Servicer, the Trustee and any Fiscal Agent shall be
entitled to conclusively rely on such determination. Upon making a
determination, in accordance with the applicable requirements under Section
3.11(h), that any Servicing Advance previously made or proposed to be made with
respect to a Specially Serviced Mortgage Loan or an Administered REO Property is
a Nonrecoverable Servicing Advance, the Special Servicer shall report its
determination to the Master Servicer and the Trustee. The Master Servicer shall
be entitled to conclusively rely on such a determination by the Special
Servicer.
(e) The Master Servicer (if a Performing Serviced Trust Mortgage
Loan is involved) and the Special Servicer (if a Specially Serviced Trust
Mortgage Loan or an REO Trust Mortgage Loan is involved) shall each be
responsible for: (i) providing on a timely basis to any lender of any related
mezzanine debt such notices (including with respect to Mortgage Loan defaults),
reports and other information as may be required from the Trust, as holder of
any Trust Mortgage Loan, under any related co-lender, intercreditor or similar
agreement; and (ii) otherwise taking such actions as are required under or
contemplated by the related co-lender, intercreditor or similar agreement to
permit any lender of related mezzanine debt to exercise any purchase option or
cure rights that it may have with respect to any Trust Mortgage Loan under such
related co-lender, intercreditor or similar agreement.
(f) Upon termination of the Trust Fund, any funds or other
assets remaining in the Loss of Value Reserve Fund, to the extent not otherwise
required to be part of the Available Distribution Amount for the Final
Distribution Date in accordance with Section 3.05(e), shall be distributed to
the Holder or Holders of the Class R-III Certificates. The Trustee and the
Special Servicer shall account for the Loss of Value Reserve Fund as an outside
reserve fund within the meaning of Treasury regulations
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section 1.860G-2(h) and not an asset of any REMIC Pool or the Grantor Trust (if
created hereunder taking into account Section 2.05(b)). Furthermore, for all
federal tax purposes, the Trustee and the Special Servicer shall treat: (i) any
amounts paid out of the Loss of Value Reserve Fund to the Certificateholders as
distributions by the REMIC Pools for all federal tax purposes; and (ii) any
amounts transferred by a REMIC Pool to the Loss of Value Reserve Fund as amounts
distributed by such REMIC Pool to the beneficial owner of the Loss of Value
Reserve Fund. The Holder or Holders of the Class R-III Certificates will be the
sole beneficial owner(s) of the Loss of Value Reserve Fund for all income and
franchise tax purposes.
(g) [RESERVED.]
(h) Without the prior written consent of the applicable Mortgage
Loan Seller, the Master Servicing Group (as defined below) shall not disclose to
any Person employed by the Master Servicer or an affiliate thereof that is part
of a business unit that originates or refinances mortgage loans any information
that the Master Servicing Group has received or obtained or generated or is
otherwise in its possession as a result of its acting as Master Servicer
hereunder. In addition, without the prior written consent of the applicable
Mortgage Loan Seller, the Master Servicing Group shall not take any direct
action, nor will it direct a third party to take any action, to refinance or
solicit the refinancing of any Mortgage Loan. For purposes of this Section
3.19(h), the "Master Servicing Group" shall mean the business unit of the Master
Servicer (which, with respect to Wachovia Bank, National Association, is called
Commercial Real Estate Services) that is in the business of master servicing
and/or primary servicing commercial mortgage loans that are in securitizations.
Notwithstanding the foregoing, the following shall not constitute violations of
this Section 3.19(h): (i) dissemination of information or reports as
contemplated by this Agreement, (ii) promotions undertaken by the Master
Servicer or any Affiliate of the Master Servicer which are directed to
commercial mortgage loan borrowers, originators and mortgage brokers generally,
which promotions, in each case, are based upon information that has been
acquired from a source other than the Master Servicing Group, including, without
limitation, commercially acquired mailing lists or information generally
available in the public domain, (iii) actions taken in connection with serving
the refinancing needs of a Mortgagor who, without such solicitation by the
Master Servicer as described in the second preceding sentence, contacts the
Master Servicer in connection with the refinance of such Mortgage Loan, or (iv)
actions taken or communications made by the Master Servicing Group in connection
with the sale or refinance of a Specially Serviced Mortgage Loan.
(i) If any Serviced Mortgage Loan provides that the applicable
grace period during which any Monthly Payment is due (without giving rise to a
default) does not commence until after notice is given to the related Mortgagor,
then the Master Servicer shall monitor the receipt of all Monthly Payments with
respect to such Mortgage Loan. If any such Monthly Payment on any such Mortgage
Loan is not received by the related Due Date, then the Master Servicer shall use
reasonable efforts to provide, in accordance with the Servicing Standard, as
soon as reasonably practicable, written notice of such failure to the related
Mortgagor sufficient to cause the commencement of the applicable grace period.
SECTION 3.20. Modifications, Waivers, Amendments and Consents;
Defeasance.
(a) Subject to Sections 3.20(b) through 3.20(f) and 3.20(m)
below, and further subject to Section 6.11 and/or Section 6.12, in each case if
and as applicable, and any related
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intercreditor, co-lender or similar agreement (including, in the case of a
Mortgage Loan that is part of a Serviced Loan Combination, the related Co-Lender
Agreement), the Special Servicer (or, under the limited circumstances set forth
in Section 3.20(c), the Master Servicer) may, on behalf of the Trustee and, in
the case of a Serviced Non-Trust Mortgage Loan, the related Serviced Non-Trust
Mortgage Loan Noteholder, agree to any modification, extension, waiver or
amendment of any term of any Serviced Mortgage Loan and respond to various
Mortgagor requests for consent on the part of the mortgagee (including the lease
reviews and lease consents related thereto), without the consent of the Trustee,
any Certificateholder, any Serviced Non-Trust Mortgage Loan Noteholder, the
Master Servicer (in the case of any such action taken by the Special Servicer)
or, except as expressly set forth below, the Special Servicer (in the case of
any such action taken by the Master Servicer). Neither the Master Servicer nor
the Special Servicer (in its capacity as such) may agree with the related
Mortgagor to any modification, extension, waiver or amendment of an Outside
Serviced Mortgage Loan.
(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. All modifications, extensions, waivers
or amendments of a Co-Lender Agreement 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 (without the consent of the Trustee, any Certificateholder, any
Serviced Non-Trust Mortgage Loan Noteholder or, except as expressly set forth
below, the Special Servicer), be responsible for the following:
(i) approving routine leasing activity (including any
subordination, standstill and attornment agreements) with respect to any
lease for less than the lesser of (A) 20,000 square feet and (B) 20% of
the related Mortgaged Property;
(ii) 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
Mortgage Loan does not have an outstanding principal balance in excess of
$5,000,000 and (C) the subject Mortgaged Property does not secure a Loan
Combination;
(iii) 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;
(iv) approving annual budgets for the related Mortgaged
Property, provided, that no such budget (A) provides for the payment of
operating expenses in an amount equal to more than 110% of the amounts
budgeted therefor for the prior year or (B) provides for the payment of
any material expenses to any affiliate of the Mortgagor (other than the
payment of a management fee to any property manager if such management fee
is no more than the management fee in effect on the Cut-off Date);
(v) subject to other restrictions herein regarding
Principal Prepayments, waiving any provision of a Mortgage Loan requiring
a specified number of days notice prior to a Principal Prepayment;
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(vi) approving modifications, consents or waivers (other
than those set forth in Section 3.20(e)) in connection with a defeasance
permitted by the terms of the related Mortgage Loan if the Master Servicer
receives an Opinion of Counsel (which Opinion of Counsel shall be an
expense of the Mortgagor) to the effect that such modification, waiver or
consent would not cause any REMIC Pool to fail to qualify as a REMIC under
the Code or result in a "prohibited transaction" under the REMIC
Provisions; and
(vii) consent to subject the related Mortgaged Property to
an easement or right-of-way for utilities, access, parking, public
improvements or another purpose, and may consent to subordination of the
related Mortgage Loan to such easement or right-of way provided the Master
Servicer shall have determined in accordance with the Servicing Standard
that such easement or right-of-way shall not materially interfere with the
then-current use of the related Mortgaged Property, or the security
intended to be provided by such Mortgage, the related Mortgagor's ability
to repay the Mortgage Loan, or materially or adversely affect the value of
such Mortgaged Property or cause the Mortgage Loan to cease to be a
"qualified mortgage" for REMIC purposes;
provided that, (1) any such modification, waiver or amendment would not in any
way affect a payment term (including (except as provided in Section 3.20(o)
below) a waiver of the payment of assumption fees) of the subject Performing
Serviced Mortgage Loan (other than in the case of a waiver of the payment of
Default Charges), (2) agreeing to such modification, waiver or amendment would
be consistent with the Servicing Standard, (3) agreeing to such modification,
waiver or amendment will not violate the terms, provisions or limitations of
this Agreement, and (4) any such modification, waiver or amendment does not
materially violate the terms, conditions and limitations of Section 3.08, if
applicable. With respect to any action proposed to be taken by the Master
Servicer under this Section 3.20(c) where any thresholds in clauses (i) through
(vii) of the preceding sentence are exceeded, or which cannot be taken by the
Master Servicer by reason of the proviso to the previous sentence, the Special
Servicer only may take such action (if and to the extent otherwise permitted
under this Agreement).
For the avoidance of doubt, and without limiting the generality of
the foregoing, any request for the disbursement of earnouts or holdback amounts
with respect to any Earnout Trust Mortgage Loan received by the Master Servicer
shall be submitted to the Special Servicer for approval (which approval shall be
deemed given if the request is not denied by the Special Servicer in writing to
the Master Servicer within five (5) Business Days of the Special Servicer's
receipt of such request). For purposes of this Agreement, "disbursement of
earnouts or holdback amounts" shall mean the disbursement or funding to a
Mortgagor of previously unfunded, escrowed or otherwise reserved portions of the
loan proceeds of the applicable Mortgage Loan until certain conditions precedent
thereto relating to the satisfaction of performance related criteria (i.e.,
project reserve thresholds, lease-up requirements, sale requirements, etc.) as
set forth in the applicable Mortgage Loan documents, have been satisfied.
Except as permitted by Section 3.02(a), Section 3.03(d), Section
3.07, Section 3.08(a), this Section 3.20(c), Section 3.20(m) and Section
3.20(o), the Master Servicer may not agree to waive, modify or amend any term of
any Serviced Mortgage Loan (including allowing the Mortgagor to deviate from the
terms of the related loan documents regarding principal prepayments) or respond
to any Mortgagor requests for mortgagee consent. Furthermore, the Master
Servicer may not agree to any
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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 (if
created hereunder taking into account Section 2.05(b)).
(d) Except as provided in Section 3.02(a), Section 3.07, Section
3.08, Section 3.20(e), Section 3.20(m) and Section 3.20(o), the Special
Servicer, on behalf of the Trustee or, in the case of a Serviced Non-Trust
Mortgage Loan, the related Serviced Non-Trust Mortgage Loan Noteholder, shall
not agree or consent to any modification, extension, waiver or amendment of any
term of any Serviced Mortgage Loan that would:
(i) affect the amount or timing of any scheduled payment
of principal, interest or other amount (including Prepayment Premiums or
Yield Maintenance Charges, but excluding Default Interest and, subject to
Section 3.20(o), 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 loan documents prohibit
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.
Furthermore, the Special 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 (if created hereunder
taking into account Section 2.05(b)).
(e) Notwithstanding Section 3.20(d), but subject to Section
3.20(o), Section 6.11 and/or Section 6.12, 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,
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(iii) forbear in the enforcement of any right granted
under any Mortgage Note, Mortgage or other loan document relating to a
Specially Serviced Mortgage Loan,
(iv) accept a Principal Prepayment on any Specially
Serviced Mortgage Loan during any Lockout Period, or
(v) extend the maturity of any Specially Serviced
Mortgage Loan;
provided that (A) the related Mortgagor is in monetary default or material
non-monetary default with respect to such Specially Serviced Mortgage Loan or,
in the reasonable, good faith judgment of the Special Servicer, such default is
reasonably foreseeable, (B) in the reasonable, good faith judgment of the
Special Servicer, such modification, extension, waiver or amendment would
increase the recovery on such Specially Serviced Mortgage Loan to
Certificateholders (as a collective whole) or, if a Serviced Loan Combination is
involved, would increase the recovery on such Loan Combination to
Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s) (as a collective whole), on a present value basis (the relevant
discounting of anticipated collections that will be distributable to the
Certificateholders (or, in the case of a Serviced Loan Combination, to
Certificateholders and the related Non-Trust Mortgage Loan Noteholder(s)), to be
performed at the related Mortgage Rate(s)), and (C) such modification,
extension, waiver or amendment would not cause an Adverse REMIC Event in respect
of any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor
Trust (if created hereunder taking into account Section 2.05(b)); and provided,
further, that any modification, extension, waiver or amendment of the payment
terms of a Serviced Loan Combination shall be structured so as to be consistent
with the allocation and payment priorities set forth in the related loan
documents and the related Co-Lender Agreement, such that neither the Trust, as
holder of the Trust Mortgage Loan that constitutes part of that Serviced Loan
Combination, on the one hand, nor any of the related Serviced Non-Trust Mortgage
Loan Noteholders, on the other hand, shall gain a priority over any other such
holder with respect to any payment, which priority is not, as of the date of the
related Co-Lender Agreement, reflected in such loan documents and such Co-Lender
Agreement; and provided, further, that, with respect to any Serviced Loan
Combination, to the extent consistent with the Servicing Standard (taking into
account the extent to which any Serviced Subordinate Non-Trust Mortgage Loan
that is part of such Serviced Loan Combination is junior to the Trust Mortgage
Loan and any Pari Passu Non-Trust Mortgage Loan that is part of the same
Serviced Loan Combination), (1) no waiver, reduction or deferral of any
particular amounts due on the Trust Mortgage Loan or any Pari Passu Non-Trust
Mortgage Loan that is part of such Serviced Loan Combination shall be effected
prior to the waiver, reduction or deferral of the entire corresponding item in
respect of each Serviced Subordinate Non-Trust Mortgage Loan, if any, that is
part of such Serviced Loan Combination, and (2) no reduction of the Mortgage
Rate on the Trust Mortgage Loan or any Pari Passu Non-Trust Mortgage Loan that
is part of such Serviced Loan Combination shall be effected prior to the
reduction of the Mortgage Rate on each Serviced Subordinate Non-Trust Mortgage
Loan, if any, that is part of such Serviced Loan Combination, to the fullest
extent possible. In the case of every other modification, waiver or consent, the
Special Servicer shall determine and may rely on an Opinion of Counsel (which
Opinion of Counsel shall be an expense of the Trust Fund to the extent not paid
by the related Mortgagor) to the effect that such modification, waiver or
amendment would not either (1) effect an exchange or reissuance of the Mortgage
Loan under Treasury regulations section 1.860G-2(b) of the Code or (2) cause any
REMIC Pool to fail to qualify as a REMIC under the Code or result in the
imposition of any tax on "prohibited transactions" or "contributions" after the
Startup Day under the REMIC Provisions or (3) result in an Adverse Grantor Trust
Event.
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Notwithstanding the foregoing, in no event shall the Special
Servicer: (i) extend the maturity date of a Serviced Mortgage Loan beyond the
date that is five years prior to the last Rated Final Distribution Date; (ii)
extend the maturity date of any Serviced Mortgage Loan for more than five years
beyond its Stated Maturity Date; or (iii) if the subject Serviced Mortgage Loan
is secured solely or primarily by a Mortgage on the leasehold interest under a
Ground Lease (but not the related fee interest), extend the maturity date of
such Serviced Mortgage Loan beyond the date which is 20 years (or, to the extent
consistent with the Servicing Standard, giving due consideration to the
remaining term of the Ground Lease, 10 years) prior to the expiration of the
term of such Ground Lease.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 3.20(e) shall be evidenced
by an Officer's Certificate to such effect delivered to the Trustee and the
Master Servicer (and, in the case of a Serviced Loan Combination, the related
Serviced Non-Trust Mortgage Loan Noteholder(s)) and describing in reasonable
detail the basis for the Special Servicer's determination. The Special Servicer
shall attach to such Officer's Certificate any information including but not
limited to income and expense statements, rent rolls, property inspection
reports and appraisals that support such determination.
(f) Notwithstanding anything to the contrary in this Agreement,
none of the Trustee, the Master Servicer or the Special Servicer, as applicable,
shall give any consent, approval or direction regarding the termination of the
related property manager or the designation of any replacement property manager
or, if such Mortgaged Property is hospitality property, give any consent,
approval or direction regarding the termination of the franchise or the
designation of a new franchise, with respect to any Mortgaged Property that
secures 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 (and,
if applicable in connection with a Serviced Loan Combination that includes a
Specially Designated Securitized Non-Trust Mortgage Loan, Xxxxx'x) that such
action will not result in an Adverse Rating Event with respect to any Class of
Certificates or class of Specially Designated Non-Trust Mortgage Loan Securities
rated by such rating agency.
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
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reasonable or customary fee for the additional services performed in connection
with such request, and (ii) any related costs and expenses incurred by it. Any
such fee that is to be shared by the Master Servicer and the Special Servicer
may not be waived or reduced by either such party without the consent of the
other party. In no event shall the Special Servicer or Master Servicer be
entitled to payment for such fees or expenses unless such payment is collected
from the related Mortgagor.
(i) The Special Servicer and Master Servicer shall each notify
the other, any related Sub-Servicers, the Trustee and, if a Serviced Non-Trust
Mortgage Loan is affected, the related Serviced Non-Trust Mortgage Loan
Noteholder, in writing, of any modification, extension, waiver or amendment of
any term of any Serviced Mortgage Loan (including fees charged the Mortgagor)
agreed to by it and the date thereof, and shall deliver to the Trustee or any
related Custodian for deposit in the related Mortgage File (with a copy to be
delivered to or retained by, as applicable, the Master Servicer) and, if a
Serviced Non-Trust Mortgage Loan is affected, the related Serviced Non-Trust
Mortgage Loan Noteholder)), an executed counterpart of the agreement relating to
such modification, extension, waiver or amendment promptly following execution
and delivery thereof, to be followed by an original recorded counterpart
promptly following the recordation (and receipt) thereof.
(j) To the extent that either the Master Servicer or Special
Servicer waives any Default Charge in respect of any Serviced Mortgage Loan,
whether pursuant to Section 3.02(a) or this Section 3.20, the respective amounts
of additional servicing compensation payable to the Master Servicer and the
Special Servicer as Net Default Charges out of such Default Charges shall be
reduced proportionately based upon the respective amounts that would have been
payable thereto as Net Default Charges out of such Default Charges if such
waiver had not been granted.
(k) If, with respect to any Serviced Mortgage Loan (1) under
which the lender can require defeasance in lieu of prepayment, or (2) that
permits defeasance, the Master Servicer shall receive a notice from the related
Mortgagor that it intends to prepay or defease, as applicable, such Serviced
Mortgage Loan in accordance with the terms thereof, then the Master Servicer
shall, subject to the next paragraph and the related loan documents, (i) only in
the case of a Serviced Mortgage Loan under clause (1) above, promptly respond to
such notice in a manner which would require that the Mortgagor pledge Defeasance
Collateral in lieu of such prepayment pursuant to the terms of the related
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 (and, if applicable, if a
Serviced Loan Combination that includes a Specially Designated Securitized
Non-Trust Mortgage Loan is involved, and any related Specially Designated
Non-Trust Mortgage Loan Securities are rated by Xxxxx'x, from Xxxxx'x) that the
acceptance of a pledge of the Defeasance Collateral (or, in the case of a
Serviced Mortgage Loan under clause (1) above, that the acceptance of a pledge
of the Defeasance Collateral in lieu of a full prepayment) will not result in an
Adverse Rating Event with respect to any Class of Certificates or class of
Specially Designated Non-Trust Mortgage Loan Securities rated by such rating
agency, take such further action as provided in such Mortgage Note to effectuate
such defeasance, including the purchase and perfection of the Defeasance
Collateral on behalf of the Trustee (as mortgagee of record on behalf of the
Certificateholders and, in the case of a Serviced Loan Combination, the affected
Serviced Non-Trust Mortgage Loan Noteholder(s)); provided that the written
confirmation contemplated by clause (iii) above shall not be required (A) from
S&P in the case of a Serviced Trust Mortgage Loan (1) with an unpaid principal
balance less than or equal to $20,000,000, (2) that constitutes less than 5% of
the aggregate unpaid principal balance of the Mortgage Pool and (3) that does
not then constitute one of the ten largest (measured by unpaid principal
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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 Fitch 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 Fitch, the Master
Servicer may deliver to Fitch a Defeasance Certificate; and provided, further,
that, the written confirmation contemplated by clause (iii) above shall not be
required from S&P and/or Fitch (provided the Master Servicer delivers a
Defeasance Certificate to the applicable Rating Agency), as applicable, in the
event the subject Serviced Trust Mortgage Loan complies with the then current
applicable guidelines set forth by such Rating Agency, or the unpaid principal
balance of the subject Serviced Trust Mortgage Loan, the percentage the subject
Serviced Trust Mortgage Loan constitutes of the Mortgage Pool or the relative
size of the subject Serviced Trust Mortgage Loan with respect to the Mortgage
Pool, as applicable, does not exceed the then current applicable threshold for
review as set forth by such Rating Agency.
Notwithstanding the foregoing, but subject to the related loan
documents, the Master Servicer shall not permit a pledge of Defeasance
Collateral under any Serviced Mortgage Loan that is also a Defeasance 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) an
opinion of counsel confirming that the Trustee has a first priority security
interest in the Defeasance Collateral is not delivered, (iv) the defeased note
is not held by a special purpose entity with no material assets other than
Defeasance Collateral, (v) a certification from a firm of independent public
accountants confirming the adequacy of the Defeasance Collateral is not
delivered, (vi) 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 (vii) unless such confirmation is not required pursuant to
the first paragraph of this Section 3.20(k), either Rating Agency does not
confirm in writing to the Master Servicer that the acceptance of a pledge of the
Defeasance Collateral (in lieu of a full prepayment, if applicable) will not
result in an Adverse Rating Event with respect to any Class of Certificates
rated by such Rating Agency.
All expenses related to the defeasance of a Serviced Mortgage Loan
shall be charged to the related Mortgagor or other responsible party.
With respect to any Defeasance Serviced Trust Mortgage Loan that is
a Xxxxxx Trust Mortgage Loan, to the extent the related Mortgage Loan documents
expressly grant the lender or its designee the right to appoint a successor
borrower (or words of similar import) thereunder in connection with a
defeasance, the Trustee hereby designates LBHI as its designee with respect to
the exercise of, and hereby grants to LBHI the right, in its capacity as
designee of the Trustee as holder of the subject Serviced Trust Mortgage Loan,
to exercise, the right and/or obligation of the lender under the related
Mortgage Loan documents to appoint a "successor borrower" (as defined under the
related Mortgage Loan documents) or words of similar import, to hold and pledge
the related Defeasance Collateral in the event a related Mortgagor exercises its
right pursuant to the related Mortgage Loan documents to defease the subject
Serviced Trust Mortgage Loan and obtain the release of all or a portion of the
related Mortgaged Property from the lien of the related Mortgage (provided that
such rights and/or obligations as successor borrower shall be exercised in
accordance with customary terms and costs). In connection with the foregoing, if
the Master Servicer or the Trustee, as holder of the subject Defeasance Serviced
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Trust Mortgage Loan, receives written notice from the related Mortgagor that it
intends to defease the subject Xxxxxx Trust Mortgage Loan in accordance with the
related Mortgage Loan documents, then the Trustee or the Master Servicer, as the
case may be, shall send a copy of such written notice to LBHI or (if LBHI has
notified the Master Servicer or the Trustee, as the case may be, in writing that
it has appointed a designee and has provided such party with such designee's
contact information for any notice required in connection therewith) LBHI's
designee, promptly after receipt of such written notice. If, however, the Master
Servicer, in accordance with the Servicing Standard, determines that neither
LBHI nor its designee is performing the duties related to the appointment of a
successor borrower in a timely manner and/or in accordance with the provisions
of the related Mortgage Loan documents (after LBHI and such designee having been
provided with written notice in accordance with this paragraph and a reasonable
period of time (which shall not be less than five (5) Business Days) to perform
such duties), then the Master Servicer (or a designee of the Master Servicer)
shall itself perform those obligations under the related Mortgage Loan documents
in accordance with the Servicing Standard, applicable law and the related
Mortgage Loan documents, and thereupon the appointment of LBHI or its designee
in connection therewith shall be null and void. In the event, with respect to a
Defeasance Serviced Trust Mortgage Loan that is a Xxxxxx Trust Mortgage Loan,
LBHI, the Master Servicer or a designee of LBHI or the Master Servicer actually
appoints a successor borrower in accordance with the related Mortgage Loan
documents and the foregoing provisions of this paragraph and the relevant
portion or all, as applicable, of the subject Mortgaged Property is released
from the lien of the related Mortgage, then, to the extent provided under the
related Mortgage Loan documents, such successor borrower shall succeed to all of
the rights and obligations of the original Mortgagor under such Xxxxxx Trust
Mortgage Loan. In the event LBHI, by written notice to the Trustee and the
Master Servicer, designates a third party to exercise its rights under this
paragraph and provides contact information therefor, the Trustee and the Master
Servicer shall be entitled to rely on such notice and, in such event, all
notices required to be delivered to LBHI pursuant to this paragraph shall be
delivered to LBHI's designee
(l) If the Master Servicer receives notice from the Mortgagor
under any Early Defeasance Trust Mortgage Loan that such Mortgagor intends to
defease such Early Defeasance Trust Mortgage Loan, in whole or in part, on or
before the second anniversary of the Closing Date, then promptly after receipt
of such notice the Master Servicer shall calculate or cause to be calculated the
cash amount required to be tendered by such Mortgagor to purchase the Defeasance
Collateral or other permitted collateral required to defease such Early
Defeasance Trust Mortgage Loan. If (i) the defeasance is to be in full and the
cash amount required to be tendered by the Mortgagor to purchase the Defeasance
Collateral or other permitted collateral required to defease the subject Early
Defeasance Trust Mortgage Loan (in accordance with the related loan documents)
is less than an amount equal to the Purchase Price (calculated as if the subject
Serviced Trust Mortgage Loan was to be repurchased in connection with a Material
Breach or Material Document Defect as of the date such defeasance is scheduled
to occur), or (ii) the defeasance is to be in part, or (iii) the defeasance is
to be in full and the related Mortgagor is to tender Defeasance Collateral or
such other collateral as is permitted in connection with a defeasance under the
related loan documents that does not constitute a cash amount equal to or
greater than the Purchase Price set forth in clause (i) above, then the Master
Servicer shall promptly notify the Depositor (if such Early Defeasance Trust
Mortgage Loan is a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller
(if such Early Defeasance Trust Mortgage Loan is a UBS Trust Mortgage Loan), and
upon delivery by the related Mortgagor of the Defeasance Collateral, or cash
sufficient to purchase the Defeasance Collateral, contemplated by the related
loan documents, the Depositor (if such Early Defeasance Trust Mortgage Loan is a
Xxxxxx Trust Mortgage Loan) or the
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UBS Mortgage Loan Seller (if such Early Defeasance Trust Mortgage Loan is a UBS
Trust Mortgage Loan) shall be required, pursuant to or as contemplated by
Section 2.03(j) (if applicable), to repurchase such Early Defeasance Trust
Mortgage Loan on or before the proposed date on which such Early Defeasance
Trust Mortgage Loan will be defeased. The Master Servicer shall use reasonable
efforts to require the Depositor or the UBS Mortgage Loan Seller, as applicable,
to make any such required repurchase described above. If the defeasance is to be
in full and the cash amount required to be tendered by the Mortgagor to purchase
the Defeasance Collateral or other permitted collateral required to purchase the
Defeasance Collateral or other permitted collateral required to defease the
subject Early Defeasance Trust Mortgage Loan is equal to or exceeds an amount
equal to the Purchase Price set forth in clause (i) of the preceding sentence
(as calculated as of the date such purchase is to be made), then the Master
Servicer shall, notwithstanding the related loan documents, (i) treat the cash
amount tendered by such Mortgagor to defease the subject Early Defeasance Trust
Mortgage Loan as a prepayment in full of such Early Defeasance Trust Mortgage
Loan by the related Mortgagor on the related Due Date coinciding with or next
succeeding the defeasance date (and any Excess Defeasance Deposit Proceeds shall
be allocated by the Trustee among and paid to the Certificateholders in
accordance with Section 4.01, with any Excess Defeasance Deposit Proceeds to
constitute, and be treated in the same manner as a payment of any other type of,
Prepayment Consideration), (ii) deposit in the Pool Custodial Account the cash
amount tendered by such Mortgagor to purchase the Defeasance Collateral or other
permitted collateral required to defease the subject Early Defeasance Trust
Mortgage Loan, (iii) xxxx the Mortgage Note "cancelled" and return it to such
Mortgagor, and (iv) take such other and further action, including the release of
the Mortgage with respect to the related Mortgaged Property, consistent with the
prepayment in full of such Mortgage Loan. The Master Servicer shall promptly
notify the Depositor and/or the UBS Mortgage Loan Seller, as applicable, of the
foregoing.
(m) 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.
(n) Notwithstanding anything to the contrary in this Agreement,
none of the Special Servicer, the Master Servicer or the Trustee shall: (i)
enter into to any amendment or modification of any Co-Lender Agreement, the
effect of which would materially and adversely affect the interests or
materially increase or change the obligations of any other such Person under
such Co-Lender Agreement, without first consulting with and obtaining the
consent of such other Person; or (ii) enter into any amendment or modification
of any Co-Lender Agreement unless such amendment or
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modification was consistent with the Servicing Standard and satisfied the
requirements for such amendments and modifications set forth in the Co-Lender
Agreement.
(o) Notwithstanding anything to the contrary in this Agreement,
neither the Master Servicer nor the Special Servicer shall waive, modify or
reduce any amount constituting an assumption fee (or portion thereof) payable by
a Mortgagor if and to the extent such assumption fee (or applicable portion
thereof) would be payable to the other such party as additional servicing
compensation, as the case may be, without the consent of such other party. To
the extent that the Master Servicer and the Special Servicer, in accordance with
the preceding sentence, waive (or consent to a waiver of, as applicable) any
amount constituting an assumption fee (or applicable portion thereof) in respect
of any Mortgage Loan, the respective amounts of additional servicing
compensation payable to the Master Servicer and the Special Servicer from such
assumption fee (or applicable portion thereof) shall be reduced proportionately
based upon the respective amounts that would have been payable thereto as
additional servicing compensation from such assumption fee (or applicable
portion thereof) if such waiver had not been granted.
SECTION 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has
occurred with respect to any Serviced Mortgage Loan that had otherwise been a
Performing Serviced Mortgage Loan, and if the Master Servicer is not also the
Special Servicer, the Master Servicer shall immediately give notice thereof (or,
if applicable, the Special Servicer shall immediately give notice thereof to the
Master Servicer), and the Master Servicer shall deliver a copy of the related
Servicing File, to the Special Servicer and shall use reasonable efforts to
provide the Special Servicer with all information, documents (or copies thereof)
and records (including records stored electronically on computer tapes, magnetic
discs and the like) relating to such Mortgage Loan, either in the Master
Servicer's or any of its directors', officers', employees', affiliates' or
agents' possession or control or otherwise available to the Master Servicer
without undue burden or expense, and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto
without acting through a Sub-Servicer. The Master Servicer shall use reasonable
efforts to comply with the preceding sentence within five (5) Business Days of
the occurrence of each related Servicing Transfer Event (or of notice of the
occurrence of such Servicing Transfer Event, if applicable); provided, however,
that if the information, documents and records requested by the Special Servicer
are not contained in the Servicing File, the Master Servicer shall have such
period of time as reasonably necessary to make such delivery. The Special
Servicer may conclusively rely on the Master Servicer's determination (and the
Master Servicer may conclusively rely on the Special Servicer's determination,
as applicable) that a Servicing Transfer Event has occurred giving rise to a
Serviced Mortgage Loan's becoming a Specially Serviced Mortgage Loan. The
Special Servicer shall not be liable or in default hereunder for any reasonable
act or failure to act because of or arising out of the Master Servicer's failure
to deliver information, documents or records with respect to any Specially
Serviced Mortgage Loan in accordance with the requirements hereof.
Upon determining that a Specially Serviced Mortgage Loan has become
a Corrected Mortgage Loan, and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof, and shall
within five (5) Business Days of such occurrence return the related Servicing
File, together with any and all new information, documents and records relating
to the subject Mortgage Loan that were not part of the Servicing File when it
was delivered to the Special
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Servicer, to the Master Servicer (or such other Person as may be directed by the
Master Servicer) and upon giving such notice, and returning such Servicing File,
to the Master Servicer (or such other Person as may be directed by the Master
Servicer), the Special Servicer's obligation to service such Mortgage Loan, and
the Special Servicer's right to receive the Special Servicing Fee with respect
to such Mortgage Loan shall terminate, and the obligations of the Master
Servicer to service and administer such Mortgage Loan shall resume.
Notwithstanding anything herein to the contrary, in connection with
the transfer to the Special Servicer of the servicing of a Cross-Collateralized
Mortgage Loan as a result of a Servicing Transfer Event or the re-assumption of
servicing responsibilities by the Master Servicer with respect to any such
Serviced Mortgage Loan upon its becoming a Corrected Mortgage Loan, the Master
Servicer and the Special Servicer shall each transfer to the other, as and when
applicable, the servicing of all other Cross-Collateralized Mortgage Loans
constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Mortgage Loan at
anytime that a continuing Servicing Transfer Event exists with respect to
another Cross-Collateralized Mortgage Loan in the same Cross-Collateralized
Group.
(b) In servicing any Specially Serviced Mortgage Loans, the
Special Servicer shall provide to the Custodian originals of newly executed
documents included within the definition of "Mortgage File" for inclusion in the
related Mortgage File (with a copy of each such original to the Master
Servicer), and shall provide to the Master Servicer copies of any additional
related Mortgage Loan information, including correspondence with the related
Mortgagor.
(c) Upon request (and to the extent not otherwise already
provided by the Special Servicer pursuant to its reporting obligations
hereunder), the Special Servicer shall deliver to the Master Servicer, the
Trustee and each Rating Agency (or such other Person as may be directed by the
Master Servicer) a statement in writing and in computer readable format (the
form of such statement to be agreed upon by the Master Servicer and the Special
Servicer) describing, on a loan-by-loan and property-by-property basis, (1)
insofar as it relates to Specially Serviced Mortgage Loans and REO Properties,
the information described in clauses (vii) through (xvii) 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
(xxvi), (xxxii) and (xxxiii) of Section 4.02(a), (2) the amount of all payments,
Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds received, and
the amount of any Realized Loss incurred, with respect to each Specially
Serviced Mortgage Loan during the related Collection Period, and the amount of
Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds received, and
the amount of any Realized Loss incurred, with respect to each Administered REO
Property during the related Collection Period, (3) the amount, purpose and date
of all Servicing Advances made by the Special Servicer with respect to each
Specially Serviced Mortgage Loan and Administered REO Property during the
related Collection Period, (4) in writing, a brief narrative summary of the
status of each Specially Serviced Mortgage Loan and (5) such additional
information relating to the Specially Serviced Mortgage Loans and Administered
REO Properties as the Master Servicer reasonably requests to enable it to
perform its responsibilities under this Agreement. Notwithstanding the foregoing
provisions of this subsection (c), the Master Servicer shall maintain ongoing
payment records with respect to each of the Specially Serviced Mortgage Loans
and Administered REO Properties and shall provide the Special Servicer with any
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information reasonably available to the Master Servicer required by the Special
Servicer to perform its duties under this Agreement.
SECTION 3.22. Sub-Servicing Agreements.
(a) Subject to Section 3.22(b) and Section 3.22(f), the Master
Servicer and the Special Servicer may enter into Sub-Servicing Agreements to
provide for the performance by third parties of any or all of their respective
obligations hereunder, provided that in each case, the Sub-Servicing Agreement:
(i) is consistent with this Agreement in all material respects, requires the
Sub-Servicer to comply with all of the applicable conditions of this Agreement
and, with the exception of Sections 7.01(a)(x) through (xiii), 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 sub-servicing agreement or may terminate such sub-servicing agreement
without cause and without payment of any penalty or termination fee (provided,
however, that those Sub-Servicing Agreements in effect as of the Closing Date
(or, if being negotiated as of the Closing Date, in effect within 90 days
thereafter) may only be terminated by the Trustee or its designee as
contemplated by Section 3.22(d) hereof and in such additional manner as is
provided in such Sub-Servicing Agreement); (iii) provides that the Trustee, for
the benefit of the Certificateholders and, in the case of a Sub-Servicing
Agreement relating to a Serviced Loan Combination, the related Serviced
Non-Trust Mortgage Loan Noteholder(s), shall each be a third-party beneficiary
under such sub-servicing agreement, but that (except to the extent the Trustee
or its designee assumes the obligations of the Master Servicer or the Special
Servicer, as the case may be, thereunder as contemplated by the immediately
preceding clause (ii)) none of the Trustee, the Trust, any successor Master
Servicer or the Special Servicer, as the case may be, any Serviced Non-Trust
Mortgage Loan Noteholder or any Certificateholder shall have any duties under
such agreement or any liabilities arising therefrom; (iv) permits any purchaser
of a Serviced Trust Mortgage Loan pursuant to this Agreement to terminate such
sub-servicing 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; (vi)
does not permit the Sub-Servicer any direct rights of indemnification that may
be satisfied out of assets of the Trust Fund; (vii) provides that, if the
Sub-Servicer constitutes an Additional Servicer, then it will deliver to the
applicable parties an Annual Statement of Compliance in respect of the
Sub-Servicer as and when contemplated by Section 3.13; (viii) provides that, if
the Sub-Servicer constitutes a Sub-Servicing Function Participant, then it will
deliver, or cause to be delivered, to the applicable parties, an Annual
Assessment Report in respect of the Sub-Servicer and a corresponding Annual
Attestation Report as and when contemplated by Section 3.14; (ix) provides that
the Sub-Servicer will deliver to the Master Servicer a backup certification
substantially similar to the Master Servicer Backup Certification with respect
to the Sub-Servicer, with such delivery to occur at or before the same times,
and under the same circumstances, as the Master Servicer Backup Certification to
be delivered by or with respect to the Master Servicer (except that each such
document delivered by the Sub-Servicer shall only cover the Mortgage Loans being
subserviced thereby); and (x) includes a representation by the Sub-Servicer that
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such Sub-Servicer is not an "affiliate" (as such term is defined in Section III
of PTE 2000-58) of the Trustee or of any "affiliate" (as such term is defined in
Section III of PTE 2000-58) of the Trustee (provided that this clause (x) shall
not apply to a Sub-Servicer listed on Exhibit K hereto). In addition, each
Sub-Servicing Agreement entered into by the Master Servicer (including any with
an effective date on or before the Closing Date) shall provide that such
agreement shall, with respect to any Serviced Mortgage Loan serviced thereunder,
terminate at the time such Mortgage Loan becomes a Specially Serviced Mortgage
Loan (or, alternatively, be subject to the Special Servicer's rights to service
such Serviced Mortgage Loan for so long as such Mortgage Loan continues to be a
Specially Serviced Mortgage Loan), and each Sub-Servicing Agreement entered into
by the Special Servicer shall relate only to Specially Serviced Mortgage Loans
and shall terminate with respect to any such Mortgage Loan which ceases to be a
Specially Serviced Mortgage Loan. The Master Servicer and the Special Servicer
each shall deliver to the Trustee and each other copies of all Sub-Servicing
Agreements (and, to the related Serviced Non-Trust Mortgage Loan Noteholder, a
copy of any Sub-Servicing Agreement in respect of a Serviced Non-Trust Mortgage
Loan), as well as any amendments thereto and modifications thereof, entered into
by it promptly upon its execution and delivery of such documents. References in
this Agreement to actions taken or to be taken by the Master Servicer or the
Special Servicer include actions taken or to be taken by a Sub-Servicer on
behalf of the Master Servicer or the Special Servicer, as the case may be; and,
in connection therewith, all amounts advanced by any Sub-Servicer to satisfy the
obligations of the Master Servicer or the Special Servicer hereunder to make P&I
Advances or Servicing Advances shall be deemed to have been advanced by the
Master Servicer or the Special Servicer, as the case may be, out of its own
funds and, accordingly, such P&I Advances or Servicing Advances shall be
recoverable by such Sub-Servicer in the same manner and out of the same funds as
if such Sub-Servicer were the Master Servicer or the Special Servicer, as the
case may be. For so long as they are outstanding, Advances shall accrue interest
in accordance with Sections 3.11(g) or 4.03(d), as applicable, such interest to
be allocable between the Master Servicer or the Special Servicer, as the case
may be, and such Sub-Servicer as they may agree. For purposes of this Agreement,
the Master Servicer and the Special Servicer each shall be deemed to have
received any payment when a Sub-Servicer retained by it receives such payment.
The Master Servicer and the Special Servicer each shall notify the other, the
Trustee, the Depositor, the Controlling Class Certificateholders and, if a
Serviced Loan Combination is involved, the related Non-Trust Mortgage Loan
Noteholder(s) in writing promptly of the appointment by it of any Sub-Servicer.
The Master Servicer and the Special Servicer shall each notify the Trustee and
the Depositor in writing, promptly upon becoming aware thereof, whether any
Sub-Servicer constitutes an Additional Servicer or a Sub-Servicing Function
Participant. The initial Special Servicer hereby represents and warrants that,
as of the Closing Date, it has not retained and does not expect to retain any
particular Person or group of affiliated Persons to act as a Sub-Servicer with
respect to 10% or more of the Mortgage Pool (by balance). The initial Master
Servicer hereby represents and warrants that the only Persons with which it has
entered into or is negotiating a Sub-Servicing Agreement as of the Closing Date
are listed on Exhibit K and, in each such case, based upon information provided
by the Depositor or an Affiliate thereof, the Sub-Servicing Agreement shall not
cover any Mortgage Loan that the subject Sub-Servicer did not primary service
prior to the Closing Date.
(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.
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(c) The Master Servicer and the Special Servicer, for the
benefit of the Trustee and the Certificateholders and, in the case of a Serviced
Loan Combination, also for the benefit of the related Serviced Non-Trust
Mortgage Loan Noteholder(s), shall (at no expense to the Trustee, any
Certificateholder, any Serviced Non-Trust Mortgage Loan Noteholder or the Trust
Fund) monitor the performance and enforce the obligations of their respective
Sub-Servicers under the related Sub-Servicing Agreements. Such enforcement,
including the legal prosecution of claims, termination of Sub-Servicing
Agreements in accordance with their respective terms and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Master Servicer or the Special Servicer, as applicable,
in its good faith business judgment, would require were it the owner of the
subject Serviced Mortgage Loans.
(d) In the event of the resignation, removal or other
termination of the Master Servicer or any successor Master Servicer hereunder
for any reason, the Trustee or other Person succeeding such resigning, removed
or terminated party as Master Servicer, shall elect, with respect to any
Sub-Servicing Agreement in effect as of the Closing Date (or, if being
negotiated as of the Closing Date, in effect within 90 days thereafter) that
still exists at the time of such termination: (i) to assume the rights and
obligations of the Master Servicer under such Sub-Servicing Agreement and
continue the sub-servicing arrangements thereunder on the same terms (including
the obligation to pay the same sub-servicing fee); (ii) to enter into a new
Sub-Servicing Agreement with such Sub-Servicer on such terms as the Trustee or
other successor Master Servicer and such Sub-Servicer shall mutually agree (it
being understood that such Sub-Servicer is under no obligation to accept any
such new Sub-Servicing Agreement or to enter into or continue negotiations with
the Trustee or other successor Master Servicer), provided that neither the
Trustee nor any successor Master Servicer shall enter into a new Sub-Servicing
Agreement with a Sub-Servicer that was a party to a Sub-Servicing Agreement as
of the Closing Date, if 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.
(e) Notwithstanding any Sub-Servicing Agreement, the Master
Servicer and the Special Servicer shall remain obligated and liable to the
Trustee, the Certificateholders and the Serviced Non-Trust Mortgage Loan
Noteholder(s) for the performance of their respective obligations and duties
under this Agreement in accordance with the provisions hereof to the same extent
and under the same terms and conditions as if each alone were servicing and
administering the Serviced Mortgage Loans and/or Administered REO Properties for
which it is responsible. The Master Servicer and the Special Servicer shall each
be responsible (without right of reimbursement) for all compensation of each
Sub-Servicer retained by it.
(f) Notwithstanding the above, the Special Servicer may not
enter into any Sub-Servicing Agreement without the approval of the Controlling
Class Representative. In addition, notwithstanding anything herein to the
contrary, until the Trustee files a Form 15 with respect to the Trust in
accordance with Section 8.15, neither the Master Servicer nor the Special
Servicer shall retain
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or engage any Sub-Servicer or Servicing Representative without the reasonable
approval of the Depositor; provided that the Depositor shall be deemed
reasonable in denying its consent to the appointment of any such Sub-Servicer or
other Servicing Representative if the proposed Person would be reasonably likely
to be considered an Additional Servicer and/or a Sub-Servicing Function
Participant for purposes of Section 3.13 and/or Section 3.14, as applicable, or
if the proposed Person is known to have failed to deliver any report comparable
to the Annual Statement of Compliance, the Annual Assessment Report or the
Annual Attestation Report in any other securitization transaction. Furthermore,
notwithstanding anything herein to the contrary, until the Trustee files a Form
15 with respect to the Trust in accordance with Section 8.15, the Master
Servicer shall not retain or engage any Sub-Servicer or any other Servicing
Representative without the approval of the Depositor, but (in the case of the
initial Master Servicer) only if and to the extent that such approval is
required under the Master Servicer Indemnification Agreement. The agreements set
forth in this Section 3.22(f) are in addition to any other agreements (including
any applicable indemnity arrangements) that the parties hereto may have with
respect to the subject matter of this Section 3.22(f).
SECTION 3.23. Representations and Warranties of the Master
Servicer.
(a) The Master Servicer, in such capacity, hereby represents,
warrants and covenants to the other parties hereto and for the benefit of the
Certificateholders and the Serviced Non-Trust Mortgage Loan Noteholders, as of
the Closing Date, that:
(i) The Master Servicer is a national banking
association, duly organized under the laws of the United States, and the
Master Servicer is in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the
Master Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not: (A) violate the Master
Servicer's organizational documents; or (B) constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other material instrument to which it is a party or which is applicable to
it or any of its assets, which default or breach, in the good faith and
reasonable judgment of the Master Servicer, would reasonably be expected
to affect materially and adversely either the ability of the Master
Servicer to perform its obligations under this Agreement or the financial
condition of the Master Servicer.
(iii) The Master Servicer has the full power and authority
to enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(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.
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(vi) No litigation is pending or, to the best of the
Master Servicer's knowledge, threatened, against the Master Servicer, the
outcome of which, in the Master Servicer's good faith and reasonable
judgment, could reasonably be expected to prohibit the Master Servicer
from entering into this Agreement or materially and adversely affect the
ability of the Master Servicer to perform its obligations under this
Agreement.
(vii) Any consent, approval, authorization or order of any
court or governmental agency or body required under federal or state law
for the execution, delivery and performance by the Master Servicer of or
compliance by the Master Servicer with this Agreement or the consummation
of the transactions contemplated by this Agreement has been obtained and
is effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Master Servicer under this Agreement.
(viii) The Master Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
(ix) The Master Servicer has reviewed all Sub-Servicing
Agreements in effect as of the Closing Date and will review all
Sub-Servicing Agreements entered into by it after the Closing Date.
(b) The representations and warranties of the Master Servicer
set forth in Section 3.23(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Master Servicer shall be deemed to have made,
as of the date of its succession, each of the representations and warranties set
forth in Section 3.23(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.23(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 3.24. Representations and Warranties of the Special
Servicer.
(a) The Special Servicer, in such capacity, hereby represents,
warrants and covenants to the other parties hereto and for the benefit of the
Certificateholders and the Serviced Non-Trust Mortgage Loan Noteholders, as of
the Closing Date, that:
(i) The Special Servicer is a corporation validly
existing and in good standing under the laws of the State of 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: (A) violate the Special
Servicer's organizational documents; or (B) constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or
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result in the breach of, any material agreement or other material
instrument to which it is a party or which is applicable to it or any of
its assets, which default or breach, in the good faith and reasonable
judgment of the Special Servicer, would reasonably be expected to affect
materially and adversely either the ability of the Special Servicer to
perform its obligations under this Agreement or the financial condition of
the Special Servicer.
(iii) The Special Servicer has the full power and
authority to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization,
execution and delivery by each of the other parties hereto, constitutes a
valid, legal and binding obligation of the Special Servicer, enforceable
against the Special Servicer in accordance with the terms hereof, subject
to (A) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and
(B) general principles of equity, regardless of whether such enforcement
is considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Special Servicer's good
faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Special Servicer to perform its
obligations under this Agreement or the financial condition of the Special
Servicer.
(vi) No litigation is pending or, to the best of the
Special Servicer's knowledge, threatened, against the Special Servicer,
the outcome of which, in the Special Servicer's good faith and reasonable
judgment, could reasonably be expected to prohibit the Special Servicer
from entering into this Agreement or materially and adversely affect the
ability of the Special Servicer to perform its obligations under this
Agreement.
(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.
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(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
Trust Mortgage Loan in a Loan Combination.
If, in connection with a Permitted Purchase, a Trust Mortgage Loan
that is part of a Loan Combination is purchased or repurchased from the Trust
Fund, the purchaser(s) thereof shall be bound by the terms of the related
Co-Lender Agreement and shall assume the rights and obligations of the holder of
such Mortgage Loan under such Co-Lender Agreement. Subject to the terms of the
related Co-Lender Agreement, all portions of the related Mortgage File and other
documents pertaining to the subject Trust Mortgage Loan shall be endorsed or
assigned, to the extent necessary or appropriate, to the purchaser(s) of such
Trust Mortgage Loan in their capacity as holder of such Trust Mortgage Loan (as
a result of such purchase or repurchase) under the related Co-Lender Agreement
in the manner contemplated thereunder, which such purchaser(s) shall be deemed
to acknowledge. Thereafter, in the case of a Serviced Combination Trust Mortgage
Loan, such Mortgage File shall be held by the lender responsible for maintaining
custody thereof under the related Co-Lender Agreement, or a custodian appointed
thereby, for the benefit of each of the "Lenders" as defined under, and as their
interests appear under, the related Co-Lender Agreement; provided that the
Mortgage Note for such Serviced Combination Trust Mortgage Loan may be held by
the purchaser(s) of such Mortgage Loan. 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
subject Loan Combination under, or otherwise in accordance with, any applicable
separate servicing agreement for such Loan Combination or as otherwise
contemplated by the related Co-Lender Agreement.
SECTION 3.26. Application of Default Charges.
(a) Any and all Default Charges that are actually Received by
the Trust and deposited in the Pool Custodial Account with respect to any Trust
Mortgage Loan or REO Trust Mortgage Loan during any applicable Collection
Period, shall be applied for the following purposes and in the following order,
in each case to the extent of the remaining portion of such Default Charges:
first, to pay to any Fiscal Agent, the Trustee, the Master
Servicer and the Special Servicer, in that order, any interest due and
owing to such party on any outstanding Advances made thereby with respect
to such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may
be, which interest on such outstanding Advance accrued on or prior to the
date on which the subject Default Charges were received;
second, to pay any other outstanding expenses (exclusive of
Special Servicing Fees, Liquidation Fees and Workout Fees) incurred with
respect to such Trust Mortgage Loan or REO Trust Mortgage Loan, as the
case may be, that, if paid from collections on the Mortgage Pool other
than such Default Charges, would constitute an Additional Trust Fund
Expense;
third, to reimburse the Trust for any interest on Advances
paid to any Fiscal Agent, the Trustee, the Master Servicer or the Special
Servicer since the Closing Date with
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respect to such Trust Mortgage Loan or REO Trust Mortgage Loan, as the
case may be, which interest payment was made from collections on the
Mortgage Pool (other than Default Charges on such Trust Mortgage Loan or
REO Trust Mortgage Loan) and was not previously reimbursed under this
clause third;
fourth, to reimburse the Trust for any other Additional
Trust Fund Expenses (exclusive of Special Servicing Fees, Liquidation Fees
and Workout Fees) paid since the Closing Date with respect to such Trust
Mortgage Loan or REO Trust Mortgage Loan, as the case may be, which
payment was made from collections on the Mortgage Pool (other than Default
Charges on such Trust Mortgage Loan or REO Trust Mortgage Loan) and was
not previously reimbursed under this clause fourth; and
fifth, to pay any remaining portion of such Default Charges
(such remaining portion, "Net Default Charges") as additional master
servicing compensation to the Master Servicer, if they were accrued in
respect of an Outside Serviced Trust Mortgage Loan or a Performing
Serviced Trust Mortgage Loan, or as additional special servicing
compensation to the Special Servicer, if they were accrued in respect of a
Specially Serviced Trust Mortgage Loan or an REO Trust Mortgage Loan, in
each case pursuant to Section 3.11;
provided that any and all Default Charges that are actually collected with
respect to a Serviced Combination Trust Mortgage Loan shall first be applied
pursuant to the applicable section of this Agreement related to permitted
withdrawals from the related Loan Combination Custodial Account (Section 3.05A)
and the applicable provisions of the related Co-Lender Agreement; and provided,
further, that the total interest on Advances payable pursuant to clause first
above and other expenses payable pursuant to clause second above in connection
with a Serviced Combination Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto shall take into account the application of
funds on deposit in the related Loan Combination Custodial Account with respect
to the related Serviced Non-Trust Mortgage Loan(s) or any successor REO Mortgage
Loan(s) with respect thereto to pay such interest on Advances or such other
expenses, as the case may be; and provided, further, that, with respect to a
Serviced Loan Combination, Default Charges that are actually Received by the
Trust with respect to any Serviced Combination Trust Mortgage Loan or REO Trust
Mortgage Loan with respect thereto during any applicable Collection Period shall
be applied to cover the items set forth in clauses first through fourth above
only to the extent that such item or portion of such item (i) is allocable to
such Serviced Combination Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto in accordance with the related Co-Lender
Agreement and (ii) is not otherwise first payable, pursuant to Section 3.26(c)
or Section 3.26(d) (and consistent with the related Co-Lender Agreement), out of
amounts otherwise distributable to a related Serviced Non-Trust Mortgage Loan
Noteholder as Default Charges with respect to a related Serviced Non-Trust
Mortgage Loan or any successor REO Mortgage Loan with respect thereto or,
pursuant to Section 3.05A (and consistent with the related Co-Lender Agreement)
out of any other amounts otherwise distributable to a related Serviced Non-Trust
Mortgage Loan Noteholder with respect to a related Serviced Non-Trust Mortgage
Loan or any successor REO Mortgage Loan with respect thereto.
(b) Default Charges applied to reimburse the Trust pursuant to
clauses third and fourth of subsection (a), are intended to be part of the
amounts to be delivered by the Master Servicer to the Trustee pursuant to the
first paragraph of Section 3.04(b) on or before the Trust Master Servicer
Remittance Date next following the applicable Collection Period during which
they were received, for
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deposit in the Collection Account, subject to application pursuant to Section
3.05(a) for any items payable out of general collections on the Mortgage Pool.
Default Charges applied to pay outstanding interest on Advances in respect of
the related Trust Mortgage Loan or REO Trust Mortgage Loan, as applicable, to
any particular party, pursuant to clause first of subsection (a), shall be
applied to pay such party such interest on Advances in such manner that the
interest that accrued first and has been outstanding the longest shall be paid
first. Default Charges applied to pay outstanding expenses in respect of the
related Trust Mortgage Loan or REO Trust Mortgage Loan, as applicable, pursuant
to clause second of subsection (a), shall be applied to pay such expenses in the
chronological order in which they were incurred. Default Charges applied to
reimburse the Trust pursuant to clauses third and fourth of subsection (a) shall
be deemed to offset either interest paid on Advances or other Additional Trust
Fund Expenses, depending on which clause is applicable, in respect of the
related Trust Mortgage Loan or REO Trust Mortgage Loan, as applicable, in the
chronological order in which such interest accrued or such expenses were
incurred, as applicable (whereupon such interest paid on Advances or such other
Additional Trust Fund Expenses, depending on which clause is applicable, shall
thereafter be deemed to have been paid out of Default Charges in respect of the
related Trust Mortgage Loan or REO Trust Mortgage Loan, as applicable).
(c) Any and all amounts otherwise distributable to the related
Serviced Non-Trust Mortgage Loan Noteholder as Default Charges with respect to
any Serviced Note B Non-Trust Mortgage Loan or any successor REO Mortgage Loan
with respect thereto, in accordance with the related Co-Lender Agreement, shall
be applied for the following purposes and in the following order, in each case
to the extent of the remaining portion of such amounts and as and to the extent
permitted under the related Co-Lender Agreement, prior to being so distributed
to the related Serviced Non-Trust Mortgage Loan Noteholder:
first, to pay to any Fiscal Agent, the Trustee, the Master
Servicer and the Special Servicer, in that order, any and all interest on
any Servicing Advances made thereby with respect to the applicable
Serviced A/B Loan Combination or any related REO Property, which interest
accrued on or prior to the date on which such amounts otherwise so
distributable as Default Charges were received (such amounts to be applied
in accordance with this clause first with respect to any such particular
party in such manner that the earliest accrued interest shall be paid
first);
second, to pay to any Fiscal Agent, to the Trustee and to
the Master Servicer, in that order, any and all interest on any P&I
Advances made thereby with respect to the related Serviced Note A Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto, which interest accrued on or prior to the date on which such
amounts otherwise so distributable as Default Charges were received (such
amounts 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 other expenses reimbursable to any party
to this Agreement from Default Charges pursuant to the related Co-Lender
Agreement, out of amounts otherwise distributable to the related Serviced
Non-Trust Mortgage Loan Noteholder as Default Charges with respect to the
subject Serviced Note B Non-Trust Mortgage Loan or any successor REO
Mortgage Loan with respect thereto.
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(d) Any and all amounts otherwise distributable with respect to
the 000 Xxxxxxx Xxxxxx Note B Non-Trust Mortgage Loan (or any successor REO
Mortgage Loan with respect thereto) as Default Charges on any related Loan
Combination Master Servicer Remittance Date, in accordance with the 000 Xxxxxxx
Xxxxxx Co-Lender Agreement, shall be applied for the following purposes and in
the following order, in each case to the extent of the remaining portion of such
amounts and to the extent permitted under the 000 Xxxxxxx Xxxxxx Co-Lender
Agreement, prior to application in accordance with Section 3.26(a):
first, to pay to any Fiscal Agent, the Trustee, the Master
Servicer and the Special Servicer, in that order, any and all interest on
any Servicing Advances made thereby with respect to the 000 Xxxxxxx Xxxxxx
Loan Combination or any related REO Property, which interest accrued on or
prior to the date on which such amounts otherwise so distributable as
Default Charges were received (such amounts to be applied in accordance
with this clause first with respect to any such particular party in such
manner that the earliest accrued interest shall be paid first);
second, to pay to any Fiscal Agent, to the Trustee and to
the Master Servicer, in that order, any and all interest on any P&I
Advances made thereby with respect to the 000 Xxxxxxx Xxxxxx Trust
Mortgage Loan (or any successor REO Trust Mortgage Loan with respect
thereto), and, if the 000 Xxxxxxx Xxxxxx Note A-2 Non-Trust Mortgage Loan
has been securitized, to pay any party to any related Non-Trust Mortgage
Loan Securitization Agreement any and all interest on delinquency advances
similar to P&I Advances with respect to the 000 Xxxxxxx Xxxxxx Note A-2
Non-Trust Mortgage Loan (or any successor REO Mortgage Loan with respect
thereto), which interest accrued, in each case, on or prior to the date on
which such amounts otherwise so distributable as Default Charges were
received (such amounts 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 that portion of any other expenses
reimbursable to any party to this Agreement from Default Charges pursuant
to the 000 Xxxxxxx Xxxxxx Co-Lender Agreement, out of amounts otherwise
distributable as Default Charges with respect to the 000 Xxxxxxx Xxxxxx
Note B Non-Trust Mortgage Loan (or any successor REO Mortgage Loan with
respect thereto).
Any and all amounts otherwise distributable to the holder of the
Mortgage Note for the 000 Xxxxxxx Xxxxxx Note A-2 Non-Trust Mortgage Loan as
Default Charges with respect to the 000 Xxxxxxx Xxxxxx Note A-2 Non-Trust
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) on any
Loan Combination Master Servicer Remittance Date, in accordance with the 000
Xxxxxxx Xxxxxx Co-Lender Agreement, shall be applied for the following purposes
and in the following order, in each case to the extent of the remaining portion
of such amounts and to the extent permitted under the 000 Xxxxxxx Xxxxxx
Co-Lender Agreement, prior to being so distributed to the 000 Xxxxxxx Xxxxxx
Note A-2 Non-Trust Mortgage Loan Noteholder:
first, to pay to any Fiscal Agent, the Trustee, the Master
Servicer and the Special Servicer, in that order, subject to the next
paragraph (if applicable), that portion of any and all interest on any
Servicing Advances made thereby with respect to the 000 Xxxxxxx Xxxxxx
Loan Combination and/or any related REO Property, which interest accrued
on or prior to the date on
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which such amounts so distributable as Default Charges were received, and
which interest is allocable to the 000 Xxxxxxx Xxxxxx Note A-2 Non-Trust
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) in
accordance with the 000 Xxxxxxx Xxxxxx Co-Lender Agreement; and
second, to pay that portion of any other expenses
reimbursable to any party to this Agreement from Default Charges pursuant
to the 000 Xxxxxxx Xxxxxx Co-Lender Agreement (which portion of such other
expenses is allocable to the 000 Xxxxxxx Xxxxxx Note A-2 Non-Trust
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) in
accordance with the 000 Xxxxxxx Xxxxxx Co-Lender Agreement), out of
amounts otherwise distributable to the 000 Xxxxxxx Xxxxxx Note A-2
Non-Trust Mortgage Loan Noteholder as Default Charges with respect to the
000 Xxxxxxx Xxxxxx Note A-2 Non-Trust Mortgage Loan (or any successor REO
Mortgage Loan with respect thereto);
provided that any application of amounts otherwise payable as Default Charges in
accordance with this paragraph shall be made after the application of amounts
otherwise payable as Default Charges with respect to the 000 Xxxxxxx Xxxxxx Note
B Non-Trust Mortgage Loan (or any successor REO Mortgage Loan with respect
thereto) as provided above in this Section 3.26(d).
Any and all amounts otherwise distributable with respect to the 000
Xxxxxxx Xxxxxx Trust Mortgage Loan and the 000 Xxxxxxx Xxxxxx Note A-2 Non-Trust
Mortgage Loan (or any successor REO Mortgage Loans with respect to such 000
Xxxxxxx Xxxxxx Mortgage Loans) as Default Charges on any related Loan
Combination Master Servicer Remittance Date, in accordance with the related
Co-Lender Agreement, shall be allocated between them, on a pro rata and pari
passu basis. If the total amount otherwise distributable on any subject Loan
Combination Master Servicer Remittance Date, in accordance with the related
Co-Lender Agreement, as Default Charges with respect to the 000 Xxxxxxx Xxxxxx
Trust Mortgage Loan and the 000 Xxxxxxx Xxxxxx Note A-2 Non-Trust Mortgage Loan
(or any successor REO Mortgage Loans with respect to such 000 Xxxxxxx Xxxxxx
Mortgage Loans) exceeds the aggregate amount of (i) interest on related
Servicing Advances payable pursuant to Section 3.26(a) and the prior two
paragraphs of this Section 3.26(d) and (ii) other amounts reimbursable from
Default Charges pursuant to the related Co-Lender Agreement in accordance with
Section 3.26(a) and the prior two paragraphs of this Section 3.26(d), then the
respective portions of such total amount allocable to the 000 Xxxxxxx Xxxxxx
Trust Mortgage Loan and the 000 Xxxxxxx Xxxxxx Note A-2 Non-Trust Mortgage Loan
(or any successor REO Mortgage Loans with respect to such 000 Xxxxxxx Xxxxxx
Mortgage Loans) that are to be applied for such purpose shall be in the same
proportions that the respective unpaid principal balances of the 000 Xxxxxxx
Xxxxxx Trust Mortgage Loan and the 000 Xxxxxxx Xxxxxx Note A-2 Non-Trust
Mortgage Loan (or any successor REO Mortgage Loans with respect to such 000
Xxxxxxx Xxxxxx Mortgage Loans) bear to one another.
SECTION 3.27. Purchase Option and Cure Rights of the Class IUU
Representative.
(a) At any time during the continuance of a Class IUU Purchase
Option Event with respect to any Split Trust Mortgage Loan, the Class IUU
Representative may, at its option, purchase such Split Trust Mortgage Loan at
the applicable Class IUU Purchase Price. Such option does not extend to any REO
Property and shall terminate upon the foreclosure of or the acceptance of a deed
in lieu of foreclosure with respect to the related Mortgaged Property. The Class
IUU Representative shall exercise its purchase option by providing written
notice to the Trustee, the Master Servicer and the
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Special Servicer of its proposed purchase of any Split Trust Mortgage Loan as to
which a Class IUU Purchase Option Event exists at least 10 days prior to the
proposed purchase date (which notice shall not be rescinded by the Class IUU
Representative any later than two Business Days prior to the proposed purchase
date). Concurrently with the payment to the Trust of the applicable Class IUU
Purchase Price, the Special Servicer shall direct the Trustee to execute and
deliver, or cause the execution and delivery of, such instruments of transfer or
assignment, in each case without recourse, as shall be provided to it by the
Class IUU Representative or its designee and as are necessary to vest ownership
of the purchased Split Trust Mortgage Loan.
(b) In the event that (a) a monetary event of default exists
with respect to any Split Trust Mortgage Loan by the end of the applicable grace
period for such payment permitted under the related Loan Documents or (b) a
material non-monetary event of default exists with respect to any Split Trust
Mortgage Loan and is not cured within the applicable grace period set forth
under the related loan documents, then the Class IUU Representative shall have
the right, but not the obligation, to cure such default within five days, in the
case of a default in the making of a Monthly Payment, 10 Business Days, in the
case of any other monetary event of default, or 30 days, in the case of a
non-monetary event of default, after receipt of notice of the event of default,
and at no other times. If the Class IUU Representative makes such a cure of a
monetary event of default, such cure shall be made for the entire subject Split
Trust Mortgage Loan. At the time such cure payment is made, the Class IUU
Representative is required to pay or reimburse the Master Servicer, the Special
Servicer, the Trustee and any Fiscal Agent, as applicable, for all costs,
expenses, losses, liabilities, obligations, damages, penalties, and
disbursements imposed on or incurred by such Persons (including, without
limitation, any interest accrued on any P&I Advances or Servicing Advances)
during the period of time from the expiration of the related grace period until
such cure payment is made. So long as a monetary event of default exists for
which a cure payment permitted under this Section 3.27(b) is made, or a material
non-monetary event of default exists which is susceptible of cure by the payment
of money and for which the Class IUU Representative is pursuing a cure within
the cure period and in accordance with the terms of this Section 3.27(b), such
event of default shall not be treated as an event of default under the related
loan documents by the Master Servicer or Special Servicer. The right of the
Class IUU Representative to cure a monetary event of default or non-monetary
event of default with respect to any Split Trust Mortgage Loan shall be limited
as follows: (A) there shall not be more than eight cure events during the term
of such Split Trust Mortgage Loan and (B) no more than three consecutive cures
of delinquent Monthly Payments are permitted. Each of the Master Servicer and
the Special Servicer shall notify the Class IUU Representative of any default in
respect of a Split Trust Mortgage Loan with respect to which the Class IUU
Representative is entitled to exercise cure rights in accordance with this
Section 3.27(b), as soon as reasonably practicable after the Master Servicer or
the Special Servicer, as the case may be, becomes aware of such default
(provided that such default has not been previously remedied). The Class IUU
Representative shall be entitled to reimbursement of any cure payments made by
it with respect to a Split Trust Mortgage Loan out of amounts subsequently
received with respect to such Split Trust Mortgage Loan or any related REO
Property; provided that such right to reimbursement is subordinate to the rights
of the Trust to receive all amounts to which it is entitled with respect to the
subject Split Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto.
SECTION 3.28. Defense of Litigation.
(a) The Special Servicer, in a reasonable manner consistent with
the Servicing Standard, shall: (i) direct, manage, prosecute and/or defend any
action brought by a Mortgagor against
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the Trust and/or the Special Servicer; and (ii) represent the interests of the
Trust in any litigation relating to the rights and obligations of the Mortgagor
or the lender, or the enforcement of the obligations of a Mortgagor, under the
subject Mortgage Loan documents ("Trust-Related Litigation").
(b) To the extent the Master Servicer is named in Trust-Related
Litigation, and the Trust or Special Servicer is not named, in order to
effectuate the role of the Special Servicer as contemplated by Section 3.28(a)
above, the Master Servicer shall: (i) notify the Special Servicer of such
Trust-Related Litigation within ten (10) days of the Master Servicer receiving
notice of such Trust-Related Litigation; (ii) provide monthly status reports to
the Special Servicer, regarding such Trust-Related Litigation; (iii) seek to
have the Trust replace the Master Servicer as the appropriate party to the
lawsuit; and (iv) so long as the Master Servicer remains a party to the lawsuit,
consult with and act at the direction of the Special Servicer with respect to
decisions and resolutions related to the interests of the Trust in such
Trust-Related Litigation, including but not limited to the selection of counsel,
provided that, if there are claims against the Master Servicer and the Master
Servicer has not determined that separate counsel is required for such claims,
such counsel shall be reasonably acceptable to the Master Servicer.
(c) Notwithstanding the right of the Special Servicer to
represent the interests of the Trust in Trust-Related Litigation, but subject to
the rights of the Special Servicer to direct the Master Servicer's actions in
Section 3.28(d) below, the Master Servicer shall retain the right to make
determinations relating to claims against the Master Servicer, including but not
limited to the right to engage separate counsel in the Master Servicer's
reasonable discretion, the cost of which shall be subject to indemnification
pursuant to Section 6.03. Further, nothing in this section shall require the
Master Servicer to take or fail to take any action which, in the Master
Servicer's good faith and reasonable judgment, may (i) result in an Adverse
REMIC Event or Adverse Grantor Trust Event or (ii) subject the Master Servicer
to liability or materially expand the scope of the Master Servicer's obligations
under this Agreement.
(d) Notwithstanding the Master Servicer's right to make
determinations relating to claims against the Master Servicer, the Special
Servicer shall have the right at any time to (i) reasonably direct the Master
Servicer to settle any claims brought against the Trust, including claims
asserted against the Master Servicer (whether or not the Trust or the Special
Servicer is named in any such claims or Trust-Related Litigation) and (ii)
otherwise reasonably direct the actions of the Master Servicer relating to
claims against the Master Servicer (whether or not the Trust or the Special
Servicer is named in any such claims or Trust-Related Litigation), provided in
either case that (A) such settlement or other direction does not require any
admission, or is not likely to result in a finding, of liability or wrongdoing
on the part of the Master Servicer, (B) the cost of such settlement or any
resulting judgment is and shall be paid by the Trust, (C) the Master Servicer is
and shall be indemnified pursuant to Section 6.03 for all costs and expenses of
the Master Servicer incurred in defending and settling the Trust-Related
Litigation and for any judgment, (D) any such action taken by the Master
Servicer at the direction of the Special Servicer shall be deemed (as to the
Master Servicer) to be in compliance with the Servicing Standard and (E) the
Special Servicer provides the Master Servicer with assurance reasonably
satisfactory to the Master Servicer as to the items on clauses (A), (B) and (C).
(e) If both the Master Servicer and either the Special
Servicer or the Trust are named in litigation, the Master Servicer and the
Special Servicer shall cooperate with each other to afford the Master Servicer
and the Special Servicer the rights afforded to such party in this Section 3.28.
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(f) This Section 3.28 shall not apply in the event the Special
Servicer authorizes the Master Servicer, and the Master Servicer agrees (both
authority and agreement to be in writing), to make certain decisions or control
certain Trust-Related Litigation on behalf of the Trust.
(g) Notwithstanding the foregoing, (i) if any action, suit,
litigation or proceeding names the Trustee in its individual capacity, or if any
judgment is rendered against the Trustee in its individual capacity, then the
Trustee, upon prior written notice to the Master Servicer or the Special
Servicer, as applicable, may retain counsel and appear in any such proceeding on
its own behalf in order to protect and represent its interests; provided that
the Master Servicer or Special Servicer, as applicable, shall retain the right
to manage and direct any such action, suit, litigation or proceeding; (ii) in
the case of any action, suit, litigation or proceeding, other than an action,
suit, litigation or proceeding relating to the enforcement of the obligations of
a Mortgagor under the related Mortgage Loan documents, neither the Master
Servicer nor the Special Servicer shall, without the prior written consent of
the Trustee, (A) initiate any action, suit, litigation or proceeding in the name
of the Trustee, whether in such capacity or individually, (B) engage counsel to
represent the Trustee, or (C) prepare, execute or deliver any government
filings, forms, permits, registrations or other documents or take any other
similar action with intent to cause, and that actually causes, the Trustee to be
registered to do business in any state; provided that the Trustee shall not be
liable for delaying or refusing to grant such consent and neither the Master
Servicer nor the Special Servicer shall be responsible for any delay due to the
failure of the Trustee to grant such consent; and (iii) if any court finds that
the Trustee is a necessary party in respect of any action, suit, litigation or
proceeding relating to or arising from this Agreement or any Mortgage Loan, the
Trustee shall have the right to retain counsel and appear in any such
proceedings on its own behalf in order to protect and represent its interest,
whether as Trustee or individually, provided that the Master Servicer or the
Special Servicer, as applicable, shall retain the right to manage and direct any
such action, suit, litigation or proceeding.
SECTION 3.29. Deliveries in Connection with Securitization of a
Serviced Non-Trust Mortgage Loan.
(a) Each of the Master Servicer and the Special Servicer
shall, upon reasonable written request, permit a related Serviced Non-Trust
Mortgage Loan Noteholder to use such party's description contained in the
Prospectus Supplement (updated as appropriate by the Master Servicer or the
Special Servicer, as applicable) for inclusion in the disclosure materials
relating to any securitization of a Serviced Non-Trust Mortgage Loan.
(b) The Master Servicer shall timely provide to the depositor, the
mortgage loan sellers and any underwriters with respect to the
securitization of any Serviced Non-Trust Mortgage Loan such opinion(s) of
counsel and/or indemnification agreement(s) with respect to the updated
description referred in Section 3.29(a) with respect to such party,
substantially identical to those, if any, delivered by the Master Servicer
in connection with the information concerning such party in the Prospectus
Supplement and/or any other disclosure materials relating to the Subject
Securitization Transaction. The Special Servicer shall timely provide to
the depositor, the mortgage loan sellers and any underwriters with respect
to the securitization of any Serviced Non-Trust Mortgage Loan such
certification(s) with respect to the updated description referred in
Section 3.29(a) with respect to such party, substantially identical to
that or those, if any, delivered by the Special Servicer in connection
with the information concerning such party in the Prospectus Supplement
and/or any other disclosure materials relating to the Subject
Securitization Transaction. Neither the Master Servicer nor the Special
Servicer shall be obligated to deliver any such item with respect to the
securitization of a Serviced Non-Trust Mortgage Loan if it did not deliver
a corresponding item with respect to the Subject Securitization
Transaction.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, through and including the Final
Distribution Date, the Trustee shall, based on, among other things, information
provided by the Master Servicer and, if applicable, the Special Servicer,
withdraw from the Collection Account and apply the Net Available Distribution
Amount for such Distribution Date, such application to be made for the following
purposes and in the following order of priority, in each case to the extent of
remaining available funds:
first, to make distributions of interest to the Holders of
the respective Classes of the Senior Certificates, pro rata as among such
Classes of Certificateholders in accordance with the respective amounts of
Distributable Certificate Interest payable in respect of such Classes of
Certificates on such Distribution Date, up to an amount equal to all
Distributable Certificate Interest in respect of each such Class of
Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates, if any;
second, to make distributions of principal to the Holders
of the respective Classes of the Senior Class A Certificates, in the
following amounts and order of priority:
(i) to the Holders of the Class A-AB
Certificates, up to an amount equal to the lesser of (A) the excess,
if any, of the Class Principal Balance of the Class A-AB
Certificates outstanding immediately prior to such Distribution
Date, over the Class A-AB Planned Principal Balance for such
Distribution Date, and (B) the entire Adjusted Net Principal
Distribution Amount for such Distribution Date;
(ii) 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 Net
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders
of the Class A-AB Certificates pursuant to subclause (i) of this
clause second);
(iii) 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 Net
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 Senior Class A Certificates pursuant to a
prior subclause of this clause second);
(iv) 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 Net
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on
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such Distribution Date to the Holders of any other Class of Senior
Class A Certificates pursuant to a prior subclause of this clause
second);
(v) to the Holders of the Class A-AB
Certificates, up to an amount (not to exceed the Class Principal
Balance of the Class A-AB Certificates outstanding immediately prior
to such Distribution Date, net of any distributions of principal
made with respect to the Class A-AB Certificates on such
Distribution Date pursuant to subclause (i) of this clause second),
up to an amount equal to the entire Adjusted Net Principal
Distribution Amount for such Distribution Date (net of any portion
thereof distributed on such Distribution Date to the Holders of the
Class A-AB Certificates and/or to the Holders of any other Class of
Senior Class A Certificates pursuant to a prior subclause of this
clause second); and
(vi) 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 Net
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 Senior Class A Certificates pursuant to a
prior subclause of this clause second);
provided, however, that, notwithstanding the immediately preceding clauses
(i) through (vi) of this clause second, on each Distribution Date
coinciding with or following the Senior Class A Principal Distribution
Cross-Over Date, and in any event on the Final Distribution Date, the
Trustee shall, pursuant to this clause second, subject to remaining
available funds, make distributions of principal to the Holders of the
respective Classes of the Senior Class A Certificates, on a pro rata
basis, in accordance with the respective Class Principal Balances of those
Classes of Certificates outstanding immediately prior to such Distribution
Date, until the Class Principal Balance of each such Class of Certificates
has been reduced to zero (such distributions of principal to be made
without regard to the Adjusted Net Principal Distribution Amount for such
Distribution Date);
third, to reimburse the Holders of the respective Classes of the
Senior Class A Certificates, up to an amount equal to, and on a pro rata
basis as among such Classes of Certificateholders in accordance with, the
Loss Reimbursement Amount with respect to each such Class of Certificates
for such Distribution Date;
fourth, to make distributions of interest to the Holders of the
Class A-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;
fifth, after the Class Principal Balances of the respective Classes
of the Senior Class A Certificates have been reduced to zero, to make
distributions of principal to the Holders of the Class A-M Certificates,
up to an amount (not to exceed the Class Principal Balance of the Class
A-M Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Adjusted Net Principal Distribution Amount for such
Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of the respective Classes of the Senior
Class A Certificates pursuant to clause second of this Section 4.01(a));
provided,
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however, that, on the Final Distribution Date, the Trustee shall, pursuant
to this clause fifth, subject to remaining available funds, make
distributions of principal to the Holders of the Class A-M Certificates,
until the Class Principal Balance of such Class of Certificates is reduced
to zero;
sixth, to reimburse the Holders of the Class A-M Certificates, up to
an amount equal to the Loss Reimbursement Amount with respect to such
Class of Certificates for such Distribution Date;
seventh, to make distributions of interest to the Holders of the
Class A-J Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
eighth, after the Class Principal Balance of the Class A-M
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class A-J Certificates, up to an amount (not to
exceed the Class Principal Balance of the Class A-J Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire Adjusted Net Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to
the Holders of the respective Classes of the Senior Class A Certificates
pursuant to clause second of this Section 4.01(a) and/or to the Holders of
the Class A-M Certificates pursuant to clause fifth of this Section
4.01(a)); provided, however, that, on the Final Distribution Date, the
Trustee shall, pursuant to this clause eighth, subject to remaining
available funds, make distributions of principal to the Holders of the
Class A-J Certificates, until the Class Principal Balance of such Class of
Certificates is reduced to zero;
ninth, to reimburse the Holders of the Class A-J Certificates, up to
an amount equal to the Loss Reimbursement Amount with respect to such
Class of Certificates for such Distribution Date; and
tenth, to make distributions to the Holders of the remaining Classes
of the Regular Interest Certificates as provided in Section 4.01(b).
All distributions of interest, if any, made with respect to either
the Class X-CL Certificates or the Class X-CP Certificates on any Distribution
Date, pursuant to this Section 4.01(a), shall be made, and shall be deemed to
have been made, in respect of the various REMIC III Components of the subject
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, through and including the Final
Distribution Date, after making the distributions with respect to the Senior
Certificates, the Class A-M Certificates and the Class A-J Certificates provided
for in Section 4.01(a), the Trustee shall, based on, among other things,
information provided by the Master Servicer and, if applicable, the Special
Servicer, apply the remaining portion, if any, of the Net Available Distribution
Amount for such Distribution to make the distributions described in the next
paragraph to the Holders of the various Classes of the Class B Through T
Certificates, such distributions to be made sequentially among such Classes of
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Certificateholders in the alphabetic order of the Class designations of their
respective Certificates (beginning with the Class B Certificates and ending with
the Class T Certificates), in each case to the extent of the Remaining Net
Available Distribution Amount with respect to the subject Class of Certificates
for such Distribution Date.
On each Distribution Date, through and including the Final
Distribution Date, the Holders of each Class of the Class B Through T
Certificates will be entitled to receive, subject to the Remaining Net Available
Distribution Amount with respect to such Class of Certificates for such
Distribution Date, the following distributions in the following order of
priority, in each case to the extent of the remaining available funds:
first, distributions of interest, up to an amount equal to all
Distributable Certificate Interest with respect to the subject Class of
Certificates for such Distribution Date and, to the extent not previously
received, for all prior Distribution Dates, if any;
second, distributions of principal, up to an amount (not to exceed
the Class Principal Balance of the subject Class of Certificates
outstanding immediately prior to such Distribution Date) equal to the
Remaining Adjusted Net Principal Distribution Amount with respect to the
subject Class of Certificates for such Distribution Date (or, if such
Distribution Date is the Final Distribution Date, then up to an amount
equal to the entire Class Principal Balance of the subject Class of
Certificates immediately prior to, and without regard to the Remaining
Adjusted Net Principal Distribution Amount with respect to the subject
Class of Certificates for, such Distribution Date); and
third, reimbursements of any and all reductions made in the Class
Principal Balance of the subject Class of Certificates pursuant to Section
4.04(a), up to an amount equal to the Loss Reimbursement Amount with
respect to the subject Class of Certificates for such Distribution Date;
provided that no distributions of principal will be made with respect to any
Class of the Class B Through T Certificates until the reduction to zero of the
Class Principal Balance of each Class of the Class A Certificates, as well as
the Class Principal Balance of each other Class of the Class B Through T
Certificates, if any, that has an earlier alphabetic Class designation (that is,
"Class B" comes before "Class C", "Class C" comes before "Class D", and so
forth) than does the subject Class of Certificates.
On each Distribution Date, through and including the Final
Distribution Date, the Trustee shall, based on, among other things, information
provided by the Master Servicer and, if applicable, the Special Servicer, apply
the Class IUU Available Distribution Amount for such Distribution Date to make
the distributions described in the next paragraph to the Holders of the various
Classes of the Class IUU Certificates, such distributions to be made
sequentially among such Classes of Certificateholders in the numeric order of
the ending numbers of the Class designations of their respective Certificates
(beginning with the Class IUU-1 Certificates and ending with the Class IUU-10
Certificates), in each case to the extent of the Remaining Class IUU Available
Distribution Amount with respect to the subject Class of Certificates (or, in
the case of the Class IUU-1 Certificates, the entire Class IUU Available
Distribution Amount) for such Distribution Date.
On each Distribution Date, through and including the Final
Distribution Date, the Holders of each Class of the Class IUU Certificates will
be entitled to receive, subject to the Remaining Class
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IUU Available Distribution Amount with respect to such Class of Certificates
(or, in the case of the Class IUU-1 Certificates, the entire Class IUU Available
Distribution Amount) for such Distribution Date, the following distributions in
the following order of priority, in each case to the extent of the remaining
available funds:
first, distributions of interest, up to an amount equal to all
Distributable Certificate Interest with respect to the subject Class of
Certificates for such Distribution Date and, to the extent not previously
received, for all prior Distribution Dates, if any;
second, distributions of principal, up to an amount (not to exceed
the Class Principal Balance of the subject Class of Certificates
outstanding immediately prior to such Distribution Date) equal to the
Remaining Class IUU Principal Distribution Amount with respect to the
subject Class of Certificates (or, in the case of the Class IUU-1
Certificates, the entire Class IUU Principal Distribution Amount) for such
Distribution Date (or, if such Distribution Date is the Final Distribution
Date, then up to an amount equal to the entire Class Principal Balance of
the subject Class of Certificates immediately prior to, and without regard
to the Remaining Class IUU Principal Distribution Amount with respect to
the subject Class of Certificates (or, in the case of the Class IUU-1
Certificates, the Class IUU Principal Distribution Amount) for, such
Distribution Date); and
third, reimbursements of any and all reductions made in the Class
Principal Balance of the subject Class of Certificates pursuant to Section
4.04(a), up to an amount equal to the Loss Reimbursement Amount with
respect to the subject Class of Certificates for such Distribution Date;
provided that no distributions of principal will be made with respect to any
Class of Class IUU Certificates until the reduction to zero of the Class
Principal Balance of each other Class of the Class IUU Certificates, if any,
that has a Class designation that ends in an earlier number (that is, "Class
IUU-1" comes before "Class IUU-2", "Class IUU-2" comes before "Class IUU-3", and
so forth) than does the subject Class of Certificates.
Any portion of the Available Distribution Amount that remains after
the distributions with respect to the Regular Interest Certificates in
accordance with Section 4.01(a) and this Section 4.01(b) shall be applied to
make distributions to the Holders of the Residual Interest Certificates in
accordance with Section 4.01(c).
(c) On each Distribution Date, through and including the Final
Distribution Date, after making the distributions with respect to the Regular
Interest Certificates provided for in Sections 4.01(a) and 4.01(b), the Trustee
shall apply the remaining portion, if any, of the 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 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 with respect to the REMIC II Regular Interests
on such Distribution Date pursuant to Section 4.01(l), over (B) the
aggregate distributions made with respect to the Regular Interest
Certificates on such Distribution Date pursuant to Section 4.01(a) and/or
Section 4.01(b);
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(ii) 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 with respect to the REMIC I Regular Interests
on such Distribution Date pursuant to Section 4.01(m), over (B) the
aggregate distributions (other than distributions of Net Prepayment
Consideration) deemed made with respect to the REMIC II Regular Interests
on such Distribution Date pursuant to Section 4.01(l);
(iii) subject to Section 2.06(b), 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 Early
Defeasance Trust Mortgage Loans and/or any related REO Properties, over
(B) the aggregate distributions (other than distributions of Net
Prepayment Consideration) deemed made with respect to the Loan REMIC
Regular Interests on such Distribution Date pursuant to Section 4.01(n);
and
(iv) to distribute to the Holders of the Class R-I
Certificates the remaining portion, if any, of the Available Distribution
Amount.
(d) On each Distribution Date, through and including the Final
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 (exclusive, if applicable, of any portion thereof that
constitutes Class IUU 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), as applicable, 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, as follows--(i) if the subject Distribution Date
occurs during or prior to January 2009, on a pari passu basis to (A) the Holders
of the Class X-CL Certificates, in an amount equal to 98.0% of any remaining
portion of such Net Prepayment Consideration, and (B) the Holders of the Class
X-CP Certificates, in an amount equal to 2.0% of any remaining portion of such
Net Prepayment Consideration, or (ii) if the subject Distribution Date occurs
after January 2009, to the Holders of the Class X-CL Certificates, in an amount
equal to 100% of any remaining portion of such Net Prepayment Consideration.
Any Net Prepayment Consideration or portion thereof distributed with
respect to either the Class X-CL Certificates or the Class X-CP Certificates on
any Distribution Date shall be deemed to have been distributed with respect to
the respective REMIC III Components of the subject Class of Interest-Only
Certificates, on a pro rata basis in accordance with the respective amounts by
which the Component Notional Amounts of such REMIC III Components were reduced
on such Distribution Date by deemed distributions of principal pursuant to
Section 4.01(l).
On each Distribution Date, through and including the Final
Distribution Date, the Trustee shall withdraw from the Collection Account any
amount Received by the Trust during the related Collection Period that
constitutes Class IUU Net Prepayment Consideration with respect to a Split Trust
Mortgage Loan or any Split REO Trust Mortgage Loan and shall distribute such
Class IUU Net Prepayment Consideration to the Holders of the Class IUU
Certificates and, as among the respective
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Classes of the Class IUU Certificateholders, pro rata, based on the amount of
principal then being prepaid with respect to each Class of Class IUU
Certificates on such Distribution Date.
(e) On each Distribution Date, through and including the Final
Distribution Date, subject to Section 2.05(b), the Trustee shall withdraw from
the Collection Account, and distribute to the Holders of the Class V
Certificates, 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).
(f) On the Final Distribution Date, the Special Servicer shall
withdraw from the Loss of Value Reserve Fund and remit to the Trustee, and (upon
receipt) the Trustee shall distribute to the Holders of the Class R-III
Certificates, any Loss of Value Payments remaining on deposit in the Loss of
Value Reserve Fund as of the Final Distribution Date (after taking into account
any transfer of Loss of Value Payments from the Loss of Value Reserve Fund to
the Collection Account on the immediately preceding Trust Master Servicer
Remittance Date in accordance with Section 3.05(e)).
(g) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise provided below, all such distributions with
respect to each Class on each Distribution Date shall be made to the
Certificateholders of the respective Class of record at the close of business on
the related Record Date and shall be made by wire transfer of immediately
available funds to the account of any such Certificateholder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five (5)
Business Days prior to the related Record Date or, in the case of the initial
Distribution Date, no later than the close of business on the later of (i) the
fifth Business Day prior to the related Record Date and (ii) the Closing Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent Distribution Dates), or otherwise by check mailed to the address
of such Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined, in the case of a Principal Balance
Certificate, without regard to any possible future reimbursement of any related
Loss Reimbursement Amount) will be made in a like manner, but only upon
presentation and surrender of such Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to Certificateholders
of such final distribution. Prior to any termination of the Trust Fund pursuant
to Section 9.01, any distribution that is to be made with respect to a
Certificate in reimbursement of any related Loss Reimbursement Amount, 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.
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(h) Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm for which it acts as agent. Each indirect
participating brokerage firm shall be responsible for disbursing funds to the
related Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor or the Master Servicer shall have any
responsibility therefor except as otherwise provided by this Agreement or
applicable law. The Trustee and the Depositor shall perform their respective
obligations under each 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.
(i) 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.
(j) 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 related Loss Reimbursement Amount) will be made on the next
Distribution Date, the Trustee shall, as soon as reasonably practicable and, in
any event, 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(j) 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
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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(j) 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.
(k) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee shall indicate the amount withheld to such
Certificateholder.
(l) 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) or Section 4.01(d) shall be
deemed to have first been distributed on such Distribution Date 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) or Section 4.01(d) and allocable to any particular REMIC III
Component of such Class of Certificates, shall be deemed to have first been
distributed on such Distribution Date from REMIC II to REMIC III in respect of
the Corresponding REMIC II Regular Interest for such REMIC III Component. In
each case, if such distribution on any such Class of Certificates was a
distribution of accrued interest, of principal, of additional interest (in the
form of Net Prepayment Consideration or any portion thereof) or in reimbursement
of any Loss Reimbursement Amount with respect to such Class of Certificates,
then the corresponding distribution deemed to be made on a REMIC II Regular
Interest pursuant to the preceding sentence (and, if applicable, the following
paragraph of this Section 4.01(l)) shall be deemed to also be, respectively, a
distribution of accrued interest, of principal, of additional interest (in the
form of Net Prepayment Consideration or any portion thereof) or in reimbursement
of any Loss Reimbursement Amount with respect to such REMIC II Regular Interest.
If a Class of Principal Balance Certificates has two or more
Corresponding REMIC II Regular Interests, then:
(i) deemed distributions of accrued interest made on
such Corresponding REMIC II Regular Interests on any Distribution Date
shall be allocated between or among them, as applicable, on a pro rata
basis in accordance with the respective amounts of Uncertificated
Distributable Interest in respect of such Corresponding REMIC II Regular
Interests for such Distribution Date and, to the extent not previously
deemed distributed, for all prior Distribution Dates, if any;
(ii) deemed distributions of principal made on such
Corresponding REMIC II Regular Interests on any Distribution Date shall be
allocated to them in numeric order (i.e., from lowest number to highest
number) of the respective ending numbers of the respective alphanumeric
designations for such Corresponding REMIC II Regular Interests, in each
case up to an amount equal to the Uncertificated Principal Balance of the
subject Corresponding REMIC II Regular Interest outstanding immediately
prior to such Distribution Date (such that no deemed
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distributions of principal will be made on any such Corresponding REMIC II
Regular Interest until the Uncertificated Principal Balance of each other
such Corresponding REMIC II Regular Interest, if any, with an alphanumeric
designation that ends in a lower number, has been paid in full);
(iii) deemed distributions of additional interest (in
the form of Net Prepayment Consideration or any portion thereof) made on
such Corresponding REMIC II Regular Interests on any Distribution Date
shall be allocated between or among them, as applicable, on a pro rata
basis in accordance with the respective amounts of principal deemed
distributed in respect of such Corresponding REMIC II Regular Interests on
such Distribution Date; and
(iv) deemed distributions made on such Corresponding
REMIC II Regular Interests on any Distribution Date in reimbursement of
the Loss Reimbursement Amounts with respect thereto shall be allocated to
them in the same order that deemed distributions of principal made on such
Corresponding REMIC II Regular Interests are allocated to them pursuant to
subclause (ii) of this paragraph, in each case up to the amount of the
Loss Reimbursement Amount with respect to the subject REMIC II Regular
Interest for such Distribution Date.
The actual distributions made by the Trustee on each Distribution
Date in respect of the REMIC III Certificates pursuant to Section 4.01(a),
Section 4.01(b), Section 4.01(c) or Section 4.01(d), 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(l). Notwithstanding the deemed distributions on the REMIC II
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 4.01(e),
as applicable.
(m) On each Distribution Date, through and including the Final
Distribution Date, the STML Available Distribution Amount with respect to any
Split Trust Mortgage Loan or Split REO Trust Mortgage Loan 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 the related STML Group A REMIC I Regular Interest, up to an amount
equal to all Uncertificated Distributable Interest with respect to such
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 the related STML Group A REMIC I Regular Interest, up to an amount (not
to exceed the Uncertificated Principal Balance of such REMIC I Regular
Interest immediately prior to such Distribution Date) equal to either (A)
if an STML Payment Application Trigger Event does not exist with respect
to such Split Trust Mortgage Loan or Split REO Trust Mortgage Loan, as the
case may be, the product of (1) the STML Principal Distribution Amount
with respect to such Split Trust Mortgage Loan or Split REO Trust Mortgage
Loan, as the case may be, for such Distribution Date, multiplied by (2) a
fraction, the numerator of which is the Uncertificated Principal Balance
of the related STML Group A REMIC I Regular Interest immediately prior to
such Distribution Date, and the denominator of which is the Stated
Principal Balance of such Split Trust Mortgage Loan or Split
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REO Trust Mortgage Loan, as the case may be, immediately prior to such
Distribution Date, or (B) if an STML Payment Application Trigger Event
does exist with respect to such Split Trust Mortgage Loan or Split REO
Trust Mortgage Loan, as the case may be, the entire STML Principal
Distribution Amount with respect to such Split Trust Mortgage Loan or
Split REO Trust Mortgage Loan, as the case may be, for such Distribution
Date;
(iii) as deemed distributions of reimbursement with
respect to the related STML Group A REMIC I Regular Interest, up to an
amount equal to any Loss Reimbursement Amount with respect to such REMIC I
Regular Interest for such Distribution Date (with compounded interest at
the related REMIC I Remittance Rate in effect from time to time on the
aggregate amount of unreimbursed reductions made from time to time in the
Uncertificated Principal Balance of such REMIC I Regular Interest pursuant
to Section 4.04(c));
(iv) as deemed distributions of interest with respect
to the related STML Group B REMIC I Regular Interest, up to an amount
equal to all Uncertificated Distributable Interest with respect to such
REMIC I Regular Interest for such Distribution Date and, to the extent not
previously deemed distributed, for all prior Distribution Dates, if any;
(v) as deemed distributions of principal with respect
to the related STML Group B REMIC I Regular Interest, up to an amount (not
to exceed the Uncertificated Principal Balance of such REMIC I Regular
Interest outstanding immediately prior to such Distribution Date) equal to
the excess, if any, of (A) the STML Principal Distribution Amount with
respect to such Split Trust Mortgage Loan or Split REO Trust Mortgage
Loan, as the case may be, for such Distribution Date, over (B) all
distributions of principal deemed to be made with respect to the related
STML Group A REMIC I Regular Interest on such Distribution Date pursuant
to clause (ii) of this Section 4.01(m); and
(vi) as deemed distributions of reimbursement with
respect to the related STML Group B REMIC I Regular Interest, up to an
amount equal to the Loss Reimbursement Amount with respect to such REMIC I
Regular Interest for such Distribution Date (with compounded interest at
the related REMIC I Remittance Rate in effect from time to time on the
aggregate amount of unreimbursed reductions made from time to time in the
Uncertificated Principal Balance of such REMIC I Regular Interest pursuant
to Section 4.04(c));
provided that, if any amounts that would otherwise constitute part of the STML
Available Distribution Amount with respect to any Split Trust Mortgage Loan or
any successor REO Trust Mortgage Loan with respect thereto for any Distribution
Date are applied to pay or reimburse any Nonrecoverable Advance or Additional
Trust Fund Expense with respect to any Mortgage Loan or REO Property other than
such Split Trust Mortgage Loan or any related REO Property, then such amounts
shall be deemed to be distributed on such Distribution Date from REMIC I to
REMIC II with respect to, and in satisfaction of amounts payable on, the related
STML Group A REMIC I Regular Interest pursuant to clauses (i), (ii) and (iii)
above as interest, principal and loss reimbursement, respectively, and prior to
any application of the actual available funds constituting such STML Available
Distribution Amount.]
On each Distribution Date, through and including the Final
Distribution Date, the Available Distribution Amount (exclusive of amounts
distributed pursuant to the preceding paragraph) for such Distribution Date
shall be deemed to have been distributed from REMIC I to REMIC II for the
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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 (exclusive of the STML Group A REMIC I
Regular Interests and the STML Group B REMIC I Regular Interests), up to
an amount equal to, and pro rata in accordance with, all Uncertificated
Distributable Interest with respect to each such 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 (exclusive of the STML Group A REMIC I
Regular Interests and the STML Group B REMIC I Regular Interests), up to
an amount equal to, and pro rata in accordance with, as to each such REMIC
I Regular Interest, the portion of the Principal Distribution Amount for
such Distribution Date attributable to the related Trust Mortgage Loan or
any successor REO Trust Mortgage Loan with respect thereto; and
(iii) as deemed distributions of reimbursement with
respect to all the REMIC I Regular Interests (exclusive of the STML Group
A REMIC I Regular Interests and the STML Group B REMIC I Regular
Interests), up to an amount equal to, and pro rata in accordance with, any
Loss Reimbursement Amount with respect to each such REMIC I Regular
Interest for such Distribution Date (with compounded interest at the
related REMIC I Remittance Rate in effect from time to time on the
aggregate amount of unreimbursed reductions made from time to time in the
Uncertificated Principal Balance of the subject REMIC I Regular Interest
pursuant to Section 4.04(c)).
Any Net Prepayment Consideration distributed to any Class of Regular
Interest Certificates on any Distribution Date shall, in each case, be deemed to
have been distributed on such Distribution Date 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
4.01(d), as applicable, as well as the deemed distributions made on each
Distribution Date in respect of the REMIC II Regular Interests pursuant to
Section 4.01(l), 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(m). Notwithstanding the deemed distributions
on the REMIC I Regular Interests described in this Section 4.01(m), 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 4.01(e), as applicable.
(n) On each Distribution Date, through and including the Final
Distribution Date, any portion of the Available Distribution Amount for such
date allocable to an Early Defeasance Trust Mortgage Loan (or any successor REO
Trust Mortgage Loan with respect thereto) shall be deemed to have first been
distributed from the related Loan REMIC to REMIC I in respect of the
corresponding Loan REMIC Regular Interest, in each case to the extent of the
remaining portions of such funds, for the following purposes and in the
following order of priority:
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(i) as deemed distributions of interest in respect of
the related Loan REMIC Regular Interest, up to an amount equal to all
Uncertificated Distributable Interest in respect of such Loan REMIC
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 in respect of
the related Loan REMIC Regular Interest, up to an amount equal to the
portion of the Principal Distribution Amount for such Distribution Date
attributable to such Early Defeasance Trust Mortgage Loan (or any
successor REO Trust Mortgage Loan with respect thereto); and
(iii) as deemed distributions of reimbursement with
respect to the related Loan REMIC Regular Interest, up to an amount equal
to any Loss Reimbursement Amount with respect to the related Loan REMIC
Regular Interest for such Distribution Date (with compounded interest at
the related Loan REMIC Remittance Rate in effect from time to time on the
aggregate amount of unreimbursed reductions made from time to time in the
Uncertificated Principal Balance of the related Loan REMIC Regular
Interest pursuant to Section 4.04(d)).
Any Net Prepayment Consideration distributed to any Class of Regular
Interest Certificates on any Distribution Date that is allocable to an Early
Defeasance Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto) shall, in each case, be deemed to have been distributed on such
Distribution Date from the related Loan REMIC to REMIC I in respect of the Loan
REMIC Regular Interest corresponding to the prepaid Early Defeasance Trust
Mortgage Loan (or any successor REO Trust Mortgage Loan with respect thereto) as
to 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, 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 4.01(d), 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, if any, on such Distribution Date pursuant to this Section
4.01(n). Notwithstanding the deemed distributions on the Loan REMIC Regular
Interests, if any, described in this Section 4.01(n), 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 4.01(e),
as applicable.
Notwithstanding the foregoing, the applicability of this Section
4.01(n) shall be subject to Section 2.06(b).
SECTION 4.02. Statements to Certificateholders and Others.
(a) The Trustee shall prepare and, on each Distribution Date,
shall provide or make available electronically to the Depositor, the
Underwriters, the Master Servicer, the Special Servicer, the Controlling Class
Representative, the Class IUU Representative, each Rating Agency, the Holders of
each Class of Certificates and, upon their written request to the Trustee, any
Certificate Owners of the Book-Entry Certificates as may be identified to the
reasonable satisfaction of the Trustee, a statement, substantially in the form
attached hereto as Exhibit B (a "Distribution Date Statement"), together with
the CMSA Bond Level File, the CMSA Collateral Summary File and the Mortgage Pool
Data Update Report, based on information provided to it by the Master Servicer
and/or the Special Servicer, setting forth, without limitation:
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(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 Consideration;
(iv) the amount of the distribution on such Distribution
Date to the Holders of each Class of Principal Balance Certificates in
reimbursement of any related Loss Reimbursement Amount for such
Distribution Date;
(v) the total payments and other collections Received by
the Trust during the related Collection Period, the fees and expenses paid
therefrom (with an identification of the general purpose of such fees and
expenses and the party receiving such fees and expenses), the Available
Distribution Amount for such Distribution Date, the Net Available
Distribution Amount for such Distribution Date and the Class IUU Available
Distribution Amount for such Distribution Date;
(vi) the aggregate amount of P&I Advances made in
respect of the Mortgage Pool for such Distribution Date pursuant to
Section 4.03(a);
(vii) (A) the aggregate amount of xxxxxxxxxxxx X&X
Advances that had been outstanding with respect to the Mortgage Pool at
the close of business on the related Determination Date and the aggregate
amount of any interest accrued and payable to the Master Servicer, the
Trustee or any Fiscal Agent in respect of any such xxxxxxxxxxxx X&X
Advances in accordance with Section 4.03(d) as of the close of business on
such related Determination Date and (B) the aggregate amount of
unreimbursed Servicing Advances (and/or comparable advances made in
respect of an Outside Serviced Trust Mortgage Loan or related REO Property
pursuant to the related Outside Servicing Agreement) that had been
outstanding with respect to the Mortgage Pool as of the close of business
on the related Determination Date (or, in the case of an Outside Serviced
Trust Mortgage Loan or any related REO Property, as of the end of the
related Underlying Collection Period) and the aggregate amount of interest
accrued and payable to the Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent (or, if applicable, to a party under an
Outside Servicing Agreement) in respect of such unreimbursed Servicing
Advances in accordance with Section 3.11(g) (or, if applicable, any such
comparable advance(s) in accordance with the related Outside Servicing
Agreement) as of the close of business on such related Determination Date
(or, in the case of an Outside Serviced Trust Mortgage Loan or any related
REO Property, as of the end of the related Underlying Collection Period);
(viii) the aggregate unpaid principal balance of the
Mortgage Pool and the respective portions of the Split Trust Mortgage
Loans or any successor REO Trust Mortgage Loans with respect thereto
evidenced by the Class IUU Certificates outstanding as of the close of
business on the related Determination Date (or, in the case of an Outside
Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, as of the end of the related Underlying Collection
Period) and the aggregate Stated Principal Balance of the
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Mortgage Pool and the respective portions of the Split Trust Mortgage
Loans or any successor REO Trust Mortgage Loans with respect thereto
evidenced by the Class IUU Certificates outstanding immediately before and
immediately after such Distribution Date;
(ix) the number, aggregate unpaid principal balance,
weighted average remaining term to maturity and weighted average Mortgage
Rate of the Trust Mortgage Loans (but not the REO Trust Mortgage Loans) as
of the close of business on the related Determination Date (or, in the
case of an Outside Serviced Trust Mortgage Loan, as of the end of the
related Underlying Collection Period);
(x) the number, aggregate unpaid principal balance (as
of the close of business on the related Determination Date (or, in the
case of an Outside Serviced Trust Mortgage Loan, as of the end of the
related Underlying Collection Period) 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 an
Outside Serviced Trust Mortgage Loan, during the related Underlying
Collection Period), (A) the loan number thereof, (B) the nature of the
Liquidation Event and, in the case of a Final Recovery Determination, a
brief description of the basis for such Final Recovery Determination, (C)
the aggregate of all Liquidation Proceeds and other amounts received in
connection with such Liquidation Event (separately identifying the portion
thereof allocable to distributions on the Certificates), and (D) the
aggregate amount of any Realized Loss and Additional Trust Fund Expenses
in connection with such Liquidation Event;
(xiii) with respect to any Trust Mortgage Loan that was
the subject of any material modification, extension or waiver during the
related Collection Period, (A) the loan number thereof, (B) the unpaid
principal balance thereof and (C) a brief description of such
modification, extension or waiver, as the case may be;
(xiv) with respect to any Trust Mortgage Loan as to
which an uncured and unresolved Material Breach or Material Document
Defect is alleged to exist, (A) the loan number thereof, (B) the unpaid
principal balance thereof, (C) a brief description of such Material Breach
or Material Document Defect, as the case may be, and (D) the status of
such Material Breach or Material Document Defect, as the case may be,
including any actions known to the Trustee that are being taken by or on
behalf 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)
with respect thereto;
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(xv) with respect to any REO Property that was included
(or an interest in which was included) in the Trust Fund as of the close
of business on the related Determination Date (or, in the case of an
Outside Administered REO Property, as of the end of the related Underlying
Collection Period), the loan number of the related Trust Mortgage Loan,
the book value of such REO Property and the amount of REO Revenues and
other amounts, if any, Received by the Trust with respect to such REO
Property during the related Collection Period (separately 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;
(xvi) with respect to any Trust Mortgage Loan as to
which the related Mortgaged Property became an REO Property during the
related Collection Period (or, in the case of an REO Acquisition of an
Outside Administered REO Property, during the related Underlying
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;
(xvii) 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 an Outside Administered REO Property, during the
related Underlying Collection Period), (A) the loan number of the related
Trust Mortgage Loan, (B) a brief description of the basis for the Final
Recovery Determination, (C) the aggregate of all Liquidation Proceeds and
other amounts Received by the Trust with respect to such REO Property
during the related Collection Period (separately identifying the portion
thereof allocable to distributions on the Certificates), (D) the aggregate
amount of any Realized Loss and Additional Trust Fund Expenses in respect
of the related REO Trust Mortgage Loan in connection with such Final
Recovery Determination and (E), if available, the Appraised Value of such
REO Property as expressed in the most recent appraisal thereof and the
date of such appraisal;
(xviii) 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;
(xix) 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 Adjusted Net Principal Distribution Amount or the Class IUU
Principal Distribution Amount was not distributed on such Distribution
Date, the portion of the shortfall affecting each Class of Principal
Balance Certificates;
(xx) the Pass-Through Rate for each Class of Regular
Interest Certificates for such Distribution Date;
(xxi) the Principal Distribution Amount, the Net
Principal Distribution Amount, the Adjusted Net Principal Distribution
Amount and the Class IUU Principal Distribution Amount, respectively, for
such Distribution Date, separately identifying the respective components
thereof (and, in the case of any Principal Prepayment or other unscheduled
collection of principal Received by the Trust during the related
Collection Period, the loan number for the related Trust Mortgage Loan and
the amount of such prepayment or other collection of principal);
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(xxii) the aggregate of (A) all Realized Losses incurred
during the related Collection Period (or, in the case of an Outside
Serviced Trust Mortgage Loan or an Outside Administered REO Property,
during the related Underlying Collection Period) and, as of the related
Determination Date, from the Closing Date and (B) all Additional Trust
Fund Expenses (with a description thereof) incurred during the related
Collection Period (or, in the case of an Outside Serviced Trust Mortgage
Loan or an Outside Administered REO Property, during the related
Underlying Collection Period) and, as of the related Determination Date,
from the Closing Date;
(xxiii) the aggregate of all Realized Losses and
Additional Trust Fund Expenses that remain unallocated immediately
following such Distribution Date;
(xxiv) the Class Principal Balance of each Class of
Principal Balance Certificates and the Class Notional Amount of each Class
of Interest-Only Certificates, outstanding immediately before and
immediately after such Distribution Date, separately identifying any
reduction therein pursuant to Section 4.04 on such Distribution Date;
(xxv) the Certificate Factor for each Class of Regular
Interest Certificates immediately following such Distribution Date;
(xxvi) the aggregate amount of any interest on Advances
in respect of the Mortgage Pool paid to the Master Servicer, the Trustee,
any Fiscal Agent or any other party hereto during the related Collection
Period in accordance with Section 3.11(g) and/or Section 4.03(d) (and the
aggregate amount of interest on servicing advances in respect of an
Outside Serviced Trust Mortgage Loan or any Outside Administered REO
Property paid to any Outside Servicer or other applicable party during the
related Underlying Collection Period in accordance with the related
Outside Servicing Agreement);
(xxvii) (A) the loan number for each Required Appraisal
Loan (and each Outside Serviced Trust Mortgage Loan or any successor REO
Trust Mortgage Loan with respect thereto with a similar status under the
related Outside Servicing Agreement) 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 (and each Outside Serviced Trust Mortgage
Loan or any successor REO Trust Mortgage Loan with respect thereto with a
similar status under the related Outside Servicing Agreement) as of the
related Determination Date (or, in the case of an Outside Serviced Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto, if applicable, as of the end of the related Underlying Collection
Period);
(xxviii) 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
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off and (E) as to which the maturity dates had been previously extended
and are in the process of being further extended;
(xxix) the original and then current credit support
levels for each Class of Regular Interest Certificates;
(xxx) the original and then current ratings, if any, for
each Class of Regular Interest Certificates;
(xxxi) the aggregate amount of Prepayment Consideration
Received by the Trust (A) during the related Collection Period and (B)
during the period from and including the Closing Date to and including the
related Determination Date;
(xxxii) (A) the aggregate amount of servicing
compensation in respect of the Mortgage Pool (separately identifying the
amount of each category of compensation) paid to the Master Servicer, the
Special Servicer and, if payable directly out of the Trust Fund without a
reduction in the servicing compensation otherwise payable to the Master
Servicer or the Special Servicer, to each Sub-Servicer, during the related
Collection Period, (B) the aggregate amount of servicing compensation in
respect of each Outside Serviced Trust Mortgage Loan or any successor REO
Trust Mortgage Loan with respect thereto (separately identifying the
amount of each category of compensation) paid to the related Outside
Servicers during the related Underlying Collection Period and (C) such
other information as the Trustee is required by the Code or other
applicable law to furnish to enable Certificateholders to prepare their
tax returns;
(xxxiii) the amounts, if any, actually distributed with
respect to each Class of Residual Interest Certificates on such
Distribution Date; and
(xxxiv) a brief description of any Event of Default
known to the Trustee (to the extent not previously reported) and, as
determined and/or approved by the Depositor, any other information
necessary to satisfy the requirements of Item 1121(a) of Regulation AB
that can, in the Trustee's reasonable judgment, be included on the
Distribution Date Statement without undue difficulty.
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 (vi) through (xvii), (xxi),
(xxii), (xxiii), (xxvi), (xxvii), (xxviii), (xxxi), (xxxii), (xxxiii) and
(xxxiv) above, insofar as the underlying information is solely within the
control of the Depositor, the Special Servicer or the Master Servicer, the
Trustee may, absent manifest error, conclusively rely on the reports to be
provided by the Depositor, the Special Servicer or the Master Servicer, as the
case may be.
Each Distribution Date Statement shall identify the Distribution
Date to which it relates and the Record Date, the Interest Accrual Period, the
Trust Determination Date and the Trust Collection Period that correspond to such
Distribution Date.
The Trustee shall forward electronically a copy of each Distribution
Date Statement to the Depository.
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(b) The Trustee shall make available each month, to
Certificateholders, Certificate Owners, the Underwriters, the Rating Agencies,
the Controlling Class Representative, any party hereto, any Person identified by
any Certificateholder or Certificate Owner as a prospective transferee or any
designee of the Depositor, via the Trustee's internet website, on a restricted
basis, with the use of a password provided by the Trustee to such Person upon
request and, in the case of a Certificateholder, a Certificate Owner or a
prospective transferee of a Certificate or any interest therein, upon receipt by
the Trustee from such Person of a certification substantially in the form of
Exhibit L-1 or Exhibit L-2, as applicable, all Certificateholder Reports and any
additional files containing substantially similar information in an alternative
format and, with the consent or at the direction of the Depositor, such other
information regarding the Certificates and/or the Mortgage Pool as the Trustee
may have in its possession. Notwithstanding the foregoing, any reports required
to be included in the Certificateholder Reports with respect to an Outside
Serviced Trust Mortgage Loan or any Outside Administered REO Property shall be
forwarded or otherwise made available by the Trustee in accordance with this
paragraph only to the extent that such information is actually received by the
Trustee. 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 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
registration, issuance and use of a password and username, execution of an
access agreement and acceptance of a disclaimer. The Master Servicer shall not
be liable for the dissemination of information to Certificateholders and
Certificate Owners in accordance with this Agreement. Access to the Master
Servicer's internet website shall be coordinated with the Trustee and shall be
with the use of a password provided by the Master Servicer, which, in the case
of a Certificateholder or a Certificate Owner, shall only be provided upon
receipt by the Master Servicer from such Person of a certification substantially
in the form of Exhibit L-1. Notwithstanding the foregoing, upon the Depositor's
notifying the Master Servicer that the Non-Registered Certificates have been
sold by the Underwriters to unaffiliated third parties, the Master Servicer may
make the Servicer Reports available on its internet website without a password,
provided that, for so long as reports are required to be filed with the
Commission in respect of the Trust pursuant to Section 15(d) of
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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).
(c) If the Master Servicer or the Special Servicer, as the case may
be, delivers a Supplemental Report to the Trustee, in accordance with Section
3.12(d), then the Trustee shall include the Supplemental Report in or as an
attachment to the Distribution Date Statement for the following Distribution
Date and, to the extent required by Section 8.15(a), shall file such
Supplemental Report, together with such Distribution Date Statement, on the
related Distribution Report on Form 10-D 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."
(d) 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. 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.
(e) 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 any Prepayment Consideration 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
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deemed to be satisfied to the extent such information is provided pursuant to
applicable requirements of the Code from time to time in force.
(f) Upon receipt of notice from the Depositor that the
Underwriters have sold the Non-Registered Certificates to unaffiliated third
parties, the Trustee shall make available electronically or, if so requested,
forward by hard copy, on each Distribution Date, to (i) Trepp, LLC (at 000
Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other address as
Trepp, LLC may designate), (ii) Intex Solutions, Inc. (at 000 X Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000, or such other address as Intex Solutions, Inc. may
hereafter designate), (iii) Charter Research Corporation (at Two Xxxxxx Street,
00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000, or such other address as Charter
Research Corporation may hereafter designate), and (iv) any other similar third
party information provider designated by the Depositor, a copy of the reports
made available to the Holders of the Certificates on such Distribution Date as
described above.
(g) Upon written request of the Depositor or any Underwriter,
without payment of any fee, and upon written request of any Certificateholder or
any other Person, together with payment of a reasonable fee specified by the
Trustee, the Trustee shall provide any statements, reports and/or information
contemplated by this Section 4.02 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 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.
(h) The Trustee shall only be obligated to deliver the
statements, reports and information contemplated by this Section 4.02 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.
(i) The information to be furnished by the Trustee to the
Certificateholders pursuant to this Section 4.02 shall not limit the Trustee in
furnishing any such information to other Persons to whom it determines such
disclosure to be appropriate and shall not limit the Trustee in furnishing to
Certificateholders or to any Person any other information with respect to the
Trust Mortgage Loans, the Mortgaged Properties or the Trust Fund as may be
provided to it by the Depositor, the Master Servicer or the Special Servicer or
gathered by it in any investigation or other manner from time to time (such
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information, other than as described in this Section 4.02, is referred to herein
as "Additional Information") as it may reasonably deem necessary or appropriate
from time to time, provided that (A) the Trustee shall give the Depositor three
(3) Business Days' advance notice before doing so, (B) any such Additional
Information shall only be furnished with the consent or at the request of the
Depositor (except pursuant to clause (E) below), (C) the Trustee shall be
entitled to indicate the source of all information furnished by it, and the
Trustee may affix thereto any disclaimer it deems appropriate in its reasonable
discretion, (D) the Trustee shall notify Certificateholders of the availability
of any such information in any manner as it, in its sole discretion, may
determine, and (E) this provision shall not prevent the Trustee, whether with or
without the consent of the Depositor, from furnishing information with respect
to the Trust Fund and its administration thereof to any Person, if it reasonably
determines that the furnishing of such information is required by applicable
law. The Trustee shall forward to the Depositor any requests for Additional
Information which, for their fulfillment, require the consent of the Depositor.
Nothing herein shall be construed to impose upon the Trustee any obligation or
duty to furnish or distribute any Additional Information to any Person in any
instance.
SECTION 4.03. P&I Advances With Respect to the Mortgage Pool.
(a) On or before 2:00 p.m., New York City time, on each Trust
Master Servicer Remittance Date, the Master Servicer shall, subject to Section
4.03(c) below, satisfy its obligations to make any required P&I Advances with
respect to the related Distribution Date in respect of the Mortgage Pool, first,
by transferring to the Trustee for deposit in the Collection Account amounts
then held in the Pool Custodial Account for future distribution to
Certificateholders in subsequent months in discharge of such obligations, and
second, by remitting its own funds to the Trustee for deposit in the Collection
Account in an amount equal to the remaining portion of such required P&I
Advances. Any amounts held in the Pool Custodial Account for future distribution
and so used to make P&I Advances shall be appropriately reflected in the Master
Servicer's records and replaced by the Master Servicer by deposit in the Pool
Custodial Account on or before the next succeeding applicable Determination Date
(to the extent not previously replaced through the deposit of Late Collections
of the delinquent principal and interest in respect of which such P&I Advances
were made). If, as of 4:00 p.m., New York City time, on any Trust Master
Servicer Remittance Date, the Master Servicer shall not have made any P&I
Advance required to be made on such date pursuant to this Section 4.03(a) (and
shall not have delivered to the Trustee the requisite Officer's Certificate and
any required supporting documentation related to a determination of
nonrecoverability of a P&I Advance), then the Trustee shall provide notice of
such failure to a Servicing Officer of the Master Servicer by facsimile
transmission sent to telecopy no. (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 Trust Master
Servicer Remittance Date. If after such notice by facsimile, the Trustee does
not receive the full amount of such P&I Advances by 10:00 a.m., New York City
time, on the related Distribution Date, then the Trustee (or any Fiscal Agent on
its behalf) shall make the portion of such P&I Advances that was required to be,
but was not, made by the Master Servicer on such Trust Master Servicer
Remittance Date. If the Trustee fails to make any such P&I Advance on the
related Distribution Date, but a Fiscal Agent makes such P&I Advance on such
date, then the Trustee shall be deemed not to be in default hereunder.
No party hereto shall be required to make a P&I Advance with respect
to any Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto.
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(b) The aggregate amount of P&I Advances to be made by the
Master Servicer, the Trustee or any Fiscal Agent, as the case may be, pursuant
to this Section 4.03 in respect of any Distribution Date shall, subject to
Section 4.03(c) below, equal the aggregate of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments, in each case net of related
Master Servicing Fees and Workout Fees (and, in the case of each Outside
Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, further net of any related similar fees payable to third
parties with respect to the subject Outside Serviced Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto pursuant to the related
Outside Servicing Agreement) due or deemed due, as the case may be, in respect
of the Trust Mortgage Loans (including Balloon Trust Mortgage Loans delinquent
as to their respective Balloon Payments) and any REO Trust Mortgage Loans in the
Mortgage Pool on their respective Due Dates during the calendar month in which
the subject Distribution Date occurs, in each case to the extent such amount was
not Received by the Trust (including as net income from any related REO Property
as of the end of the related Collection Period; provided that--
(i) if it is determined by the applicable Outside
Servicer and reported to the applicable parties hereunder that an
Appraisal Reduction Amount exists with respect to any Outside Serviced
Loan Combination, and a portion of such Appraisal Reduction Amount is
allocable to the Trust Mortgage Loan or any successor REO Trust Mortgage
Loan with respect thereto, as applicable, that is part of such Outside
Serviced Loan Combination, then the interest portion of each P&I Advance,
if any, required to be made pursuant to this Section 4.03 with respect to
such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, as the case may be, during the period that such Appraisal
Reduction Amount continues to exist, shall be reduced to equal the product
of (A) the amount of the interest portion of the subject P&I Advance that
would otherwise be required to be made under this Section 4.03 with
respect to such Trust Mortgage Loan or any successor REO Trust Mortgage
Loan with respect thereto, as the case may be, without regard to this
proviso, multiplied by (B) a fraction, the numerator of which is equal to
the Stated Principal Balance of such Trust Mortgage Loan or any successor
REO Trust Mortgage Loan with respect thereto, as the case may be, reduced
(to not less than zero) by the portion of any Appraisal Reduction Amount
in respect of the subject Outside Serviced Loan Combination that is
allocable to such Trust Mortgage Loan or any successor REO Trust Mortgage
Loan with respect thereto, as the case may be, and the denominator of
which is equal to the then Stated Principal Balance of such Trust Mortgage
Loan or any successor REO Trust Mortgage Loan with respect thereto, as the
case may be;
(ii) if it is determined that an Appraisal Reduction
Amount exists with respect to any Serviced Loan Combination and, further,
that a portion of such Appraisal Reduction Amount is allocable to the
Trust Mortgage Loan or REO Trust Mortgage Loan, as applicable, that is
part of such Serviced Loan Combination, then the interest portion of each
P&I Advance, if any, required to be made pursuant to this Section 4.03
with respect to such Trust Mortgage Loan or REO Trust Mortgage Loan, as
the case may be, during the period that such Appraisal Reduction Amount
continues to exist, shall be reduced to equal the product of (A) the
amount of the interest portion of the subject P&I Advance that would
otherwise be required to be made under this Section 4.03 with respect to
such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be,
without regard to this proviso, multiplied by (B) a fraction, the
numerator of which is equal to the then Stated Principal Balance of such
Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be,
reduced (to not less than zero) by the portion of
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such Appraisal Reduction Amount with respect to the subject Serviced Loan
Combination that is allocable to such Trust Mortgage Loan or REO Trust
Mortgage Loan, as the case may be, and the denominator of which is equal
to the then Stated Principal Balance of such Trust Mortgage Loan or REO
Trust Mortgage Loan, as the case may be; and
(iii) if it is determined that an Appraisal Reduction
Amount exists with respect to any Trust Mortgage Loan or REO Trust
Mortgage Loan that is not part of a Loan Combination, then the interest
portion of each P&I Advance, if any, required to be made pursuant to this
Section 4.03 with respect to such Trust Mortgage Loan or REO Trust
Mortgage Loan, as the case may be, during the period that such Appraisal
Reduction Amount continues to exist, shall be reduced to equal the product
of (A) the amount of the interest portion of the subject P&I Advance that
would otherwise be required to be made under this Section 4.03 in respect
of such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may
be, without regard to this proviso, multiplied by (B) 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;
and provided, further, that the existence of an Appraisal Reduction Amount with
respect to, or that is allocable to, any Trust Mortgage Loan or REO Trust
Mortgage Loan shall not affect the principal portion of any required P&I Advance
with respect thereto.
For purposes of determining the amount of P&I Advances to be made
with respect to any Distribution Date, if an Appraisal Reduction Amount exists
with respect to any Serviced Loan Combination, then such Appraisal Reduction
Amount shall be allocated between the Mortgage Loans or REO Mortgage Loans, as
applicable, in the subject Loan Combination as follows:
(i) with respect to the 000 Xxxxxxx Xxxxxx Loan
Combination, any Appraisal Reduction Amount shall be allocated, first, to
the 000 Xxxxxxx Xxxxxx Note B Non-Trust Mortgage Loan (or any successor
REO Mortgage Loan with respect thereto) (up to the amount of the
outstanding principal balance of, and all accrued and unpaid interest
(other than Default Interest) on, the 000 Xxxxxxx Xxxxxx Note B Non-Trust
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto),
and then, on a pro rata basis by principal balance, between the 000
Xxxxxxx Xxxxxx Trust Mortgage Loan and the 000 Xxxxxxx Xxxxxx Note A-2
Non-Trust Mortgage Loan (or between any successor REO Mortgage Loans with
respect thereto); and
(ii) with respect to each Serviced A/B Loan Combination,
any Appraisal Reduction Amount shall, in each case, be allocated, first,
to the related Serviced Note B Non-Trust Mortgage Loan (or any successor
REO Mortgage Loans with respect thereto) (up to the amount of the
outstanding principal balance of, and all accrued and unpaid interest
(other than Default Interest) on, such Serviced Note B Non-Trust Mortgage
Loan (or any successor REO Mortgage Loan with respect thereto)), and then,
to the related Serviced Note A Trust Mortgage Loan (or any successor REO
Mortgage Loan with respect thereto).
If the Master Servicer, the Trustee or any Fiscal Agent makes a P&I
Advance with respect to an Outside Serviced Trust Mortgage Loan or any successor
REO Trust Mortgage Loan with respect thereto, then it shall promptly so notify
the related Outside Master Servicer of each such P&I
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Advance so made thereby and shall seek reimbursement for such P&I Advance
(together with interest thereon) out of amounts otherwise payable with respect
to the Outside Serviced Loan Combination that includes such Outside Serviced
Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto, to the maximum extent permitted by, and out of amounts specified for
such purpose under, the related Co-Lender Agreement and/or the related Outside
Servicing Agreement.
(c) Notwithstanding anything herein to the contrary, no P&I
Advance shall be required to be made under this Section 4.03 if such P&I Advance
would, if made, constitute a Nonrecoverable P&I Advance. The Trustee and any
Fiscal Agent shall be entitled to rely, conclusively, on any determination by
the Master Servicer that a P&I Advance, if made pursuant to this Section 4.03,
would be a Nonrecoverable P&I Advance; provided, however, that if the Master
Servicer has failed to make a P&I Advance pursuant to this Section 4.03 for
reasons other than a determination by the Master Servicer that such P&I Advance
would be a Nonrecoverable P&I Advance or for the reasons contemplated by the
following paragraphs of this Section 4.03(c), the Trustee or any Fiscal Agent
shall make such Advance within the time periods required by Section 4.03(a)
unless the Trustee or such Fiscal Agent, in its good faith, reasonable
discretion, makes a determination prior to the times specified in Section
4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. Upon
determining that any P&I Advance previously made or proposed to be made pursuant
to this Section 4.03 with respect to any Trust Mortgage Loan or any REO Trust
Mortgage Loan is or would, if made, constitute a Nonrecoverable P&I Advance, the
Special Servicer shall report its determination to the Master Servicer, the
Trustee and any Fiscal Agent. The Master Servicer, the Trustee and any Fiscal
Agent shall rely on any determination by the Special Servicer that a P&I Advance
made or proposed to be made pursuant to this Section 4.03 with respect to any
Trust Mortgage Loan or any REO Trust Mortgage Loan would be a Nonrecoverable P&I
Advance. Any determination by the Master Servicer or the Special Servicer that
the Master Servicer has made a Nonrecoverable P&I Advance pursuant to this
Section 4.03, or that any proposed P&I Advance, if made pursuant to this Section
4.03, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an
Officer's Certificate delivered to the Trustee, any Fiscal Agent and the
Depositor (and, if such determination is made by the Special Servicer or the
Master Servicer, to the other such servicer) on or before the related Trust
Master Servicer Remittance Date, setting forth the basis for such determination,
together with any other information that supports such determination, including
an appraisal (which appraisal shall have been conducted by an Independent
Appraiser within the 12-month period preceding such determination in accordance
with the standards of the Appraisal Institute taking into account the factors
specified in Section 3.18 or, alternatively, in the case of an Outside Serviced
Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto, shall either have been conducted by an Independent Appraiser as
provided above or received from a related Outside Servicer), related Mortgagor
operating statements and financial statements, budgets and rent rolls of the
related Mortgaged Properties (to the extent available and/or in the Master
Servicer's or the Special Servicer's possession), engineers' reports,
environmental surveys and any similar reports that the Master Servicer may have
obtained consistent with the Servicing Standard and at the expense of the Trust
Fund, that support such determination by the Master Servicer or the Special
Servicer, as applicable. If, in connection with the foregoing, it is necessary
for the Master Servicer to obtain an appraisal, the Master Servicer shall so
notify the Special Servicer and consult with the Special Servicer regarding such
appraisal. In determining whether any P&I Advance constitutes a Nonrecoverable
P&I Advance, the Master Servicer and the Special Servicer shall each be entitled
to consider (among other things) the obligations of the related Mortgagor under
the terms of the related Mortgage Loan (as such terms may have been modified),
to consider (among other things) the related Mortgaged Property in its "as is"
or then current condition and with respect to its then current occupancies, all
as modified by such
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party's reasonable assumptions (consistent with the Servicing Standard)
regarding the possibility and effects of future adverse change with respect to
the related Mortgaged Property, to estimate and consider (among other things)
future expenses and to estimate and consider (among other things) the timing of
recoveries. In addition, the Master Servicer or the Special Servicer may update
or change its recoverability determination at any time with respect to any P&I
Advance, and the Master Servicer may obtain from the Special Servicer any
analysis, appraisals or market value estimates or other information in the
possession of the Special Servicer for purposes of determining whether a P&I
Advance is a Nonrecoverable P&I Advance.
In addition, if (i) the Master Servicer reasonably believes, in
accordance with the Servicing Standard, that a P&I Advance with respect to any
Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto constitutes or may, if made, constitute a Nonrecoverable
P&I Advance, and (ii) either (A) the Master Servicer has made a request for an
appraisal with respect to the related Mortgaged Property from the applicable
Outside Servicer and has not obtained, (x) within 15 Business Days of such
request, a response from the applicable Outside Servicer indicating that an
appraisal with respect to the related Mortgaged Property would be performed
within 60 days of the date of such response or has been performed within the
prior 12-month period (or such shorter period as the Master Servicer reasonably
believes, in accordance with the Servicing Standard, is necessary) preceding the
date of such request, and (y) within 60 days of the date of such response, a
copy of an appraisal report with respect to the related Mortgaged Property,
relating to an appraisal that has been performed within the 12-month period (or
such shorter period as the Master Servicer reasonably believes, in accordance
with the Servicing Standard, is necessary) preceding the date of such request by
the Master Servicer, that complies with the requirements for such an appraisal
under the terms of the related Outside Servicing Agreement or this Agreement, or
(B) the Master Servicer has made a request for an appraisal with respect to the
related Mortgaged Property from the applicable Outside Servicer and has been
advised by the applicable Outside Servicer that such an appraisal with respect
to the related Mortgaged Property will not be performed within the time periods
specified in clause (ii)(A) above, then the Master Servicer may have an
appraisal performed with respect to the related Mortgaged 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 may be withdrawn from general collections on deposit in the Pool
Custodial Account. 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.
If any of the Pari Passu Non-Trust Mortgage Loans is securitized as
part of a rated commercial mortgage securitization similar to the commercial
mortgage securitization contemplated by this Agreement, and if the Master
Servicer receives written notice that the primary party responsible for making
delinquency advances similar to P&I Advances hereunder with respect to such
other commercial mortgage securitization has determined, in accordance with the
requirements of the related Non-Trust Mortgage Loan Securitization Agreement,
that any such delinquency advance made or to be made with respect to such
securitized Pari Passu Non-Trust Mortgage Loan (or any successor REO Mortgage
Loan or comparable deemed mortgage loan with respect thereto) would not
ultimately be recoverable out of collections on such Pari Passu Non-Trust
Mortgage Loan (or such REO Mortgage Loan or comparable deemed mortgage loan),
then the Master Servicer shall deliver written notice to such effect to the
Trustee, any Fiscal Agent and the Depositor.
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In addition, if the Master Servicer has actual knowledge that any of
the Pari Passu Non-Trust Mortgage Loans is securitized as part of a rated
commercial mortgage securitization similar to the commercial mortgage
securitization contemplated by this Agreement, and if the Master Servicer
determines that any P&I Advance made or to be made with respect to the related
Combination Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto) is or, if made, would be a Nonrecoverable P&I Advance, then the
Master Servicer shall, consistent with the related Co-Lender Agreement (if
applicable), notify, in writing, its counterpart under each such other
commercial mortgage securitization within one (1) Business Day of such
determination, which written notice shall be accompanied by the supporting
evidence for such determination. It will, consistent with the related Co-Lender
Agreement (if applicable), also notify, in writing, its counterpart under each
such other commercial mortgage securitization (within one (1) Business Day of
such determination) if it subsequently determines that P&I Advances made or to
be made with respect to the related Combination Trust Mortgage Loan (or any
successor REO Trust Mortgage Loan with respect thereto) are no longer
Nonrecoverable P&I Advances. Following a determination of nonrecoverability by
the Master Servicer in accordance with this paragraph or by another party
responsible for making delinquency advances similar to P&I Advances with respect
to a securitized Pari Passu Non-Trust Mortgage Loan (or any successor REO
Mortgage Loan or comparable deemed mortgage loan with respect thereto) in
accordance with the preceding paragraph, prior to the Master Servicer resuming
P&I Advances with respect to the related Combination Trust Mortgage Loan (or any
successor REO Trust Mortgage Loan with respect thereto), the Master Servicer
shall consult with its counterparts under the securitizations of any such Pari
Passu Non-Trust Mortgage Loans regarding whether circumstances with respect to
the subject mortgage loans have changed such that a proposed future P&I Advance
would not be a Nonrecoverable P&I Advance.
(d) The Master Servicer, the Trustee and any Fiscal Agent shall
each be entitled to receive interest at the Reimbursement Rate in effect from
time to time, compounded annually, accrued on the amount of each P&I Advance
made thereby under this Section 4.03 (with its own funds) for so long as such
P&I Advance is outstanding; provided that if the grace period for the delinquent
Monthly Payment as to which a P&I Advance was made under this Section 4.03 has
not elapsed as of the time such P&I Advance was made, then the total interest so
accrued on such P&I Advance prior to the expiration of such grace period, shall
not exceed the amount of Default Charges, if any, Received by the Trust in
connection with the late payment of such delinquent Monthly Payment; and
provided, further, that, in no event shall interest so accrue on any P&I Advance
as to which the corresponding Late Collection was received by the Master
Servicer or a Sub-Servicer on its behalf as of the related Trust Master Servicer
Remittance Date. Interest so accrued on any P&I Advance made under this Section
4.03 shall be payable: (i) first, in accordance with Sections 3.05(a) and 3.26,
out of any Default Charges on deposit in the Pool Custodial Account that were
collected on or in respect of the particular Trust Mortgage Loan or REO Trust
Mortgage Loan as to which the P&I Advance relates (provided that such Default
Charges will only be applied to pay interest accrued on such P&I Advance through
the date that such Default Charges were received); and (ii) then, if and to the
extent that such Default Charges are insufficient to cover such interest, but
not before the related Advance is being reimbursed or has been reimbursed
pursuant to this Agreement, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account; provided that, in the case of P&I
Advances with respect to an Outside Serviced Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto, the Master Servicer
shall, no less often than monthly, notify the related Outside Master Servicer of
the interest accruing on such P&I Advances in accordance with this Section
4.03(d) and, to the maximum extent permitted by the related Co-Lender Agreement,
prior to paying such interest on such P&I
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Advances out of general collections in respect of the Mortgage Pool on deposit
in the Pool Custodial Account, shall seek payment for such interest on such P&I
Advances from the related Outside Master Servicer out of amounts otherwise
payable with respect to the Outside Serviced Loan Combination that includes such
Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto, to the maximum extent permitted by, and out of amounts
specified for such purpose under, the related Co-Lender Agreement; and provided,
further, that, if such P&I Advance was made with respect to a Combination Trust
Mortgage Loan or any REO Trust Mortgage Loan with respect thereto, then such
interest on such P&I Advance shall first be payable out of amounts on deposit in
the related Serviced Loan Combination Custodial Account in accordance with, and
to the extent provided in, Section 3.05A. The Master Servicer shall, in
accordance with Section 3.05(a) and/or Section 3.05A, reimburse itself, the
Trustee or any Fiscal Agent, as applicable, for any outstanding P&I Advance made
thereby under this Section 4.03 as soon as practicable after funds available for
such purpose are deposited in the applicable Custodial Account. Notwithstanding
the foregoing, upon a determination that a previously made P&I Advance is a
Nonrecoverable P&I Advance, instead of obtaining reimbursement out of general
collections on the Mortgage Pool immediately, any of the Master Servicer, the
Trustee or any Fiscal Agent, as applicable, may, in its sole discretion, elect
to obtain reimbursement for such Nonrecoverable P&I Advance over a period of
time (not to exceed 12 months or such longer period of time as is approved in
writing by the Controlling Class Representative) and the unreimbursed portion of
such P&I Advance will accrue interest at the Reimbursement Rate in effect from
time to time. At any time after such a determination to obtain reimbursement
over time in accordance with the preceding sentence, the Master Servicer, the
Trustee or any Fiscal Agent, as applicable, may, in its sole discretion, decide
to obtain reimbursement immediately. The fact that a decision to recover such
Nonrecoverable P&I Advance over time, or not to do so, benefits some Classes of
Certificateholders to the detriment of other Classes shall not constitute a
violation of the Servicing Standard by the Master Servicer or a breach of any
fiduciary duty owed to the Certificateholders by the Trustee or any Fiscal
Agent, or a breach of any other contractual obligation owed to the
Certificateholders by any party to this Agreement.
SECTION 4.04. Allocations of Realized Losses and Additional
Trust Fund Expenses
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01, 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
(exclusive of the Class IUU Certificates), exceeds (ii) the aggregate Stated
Principal Balance of the Mortgage Pool (net of the Uncertificated Principal
Balances of the STML Group B REMIC I Regular Interests) that will be outstanding
immediately following such Distribution Date. If such excess does exist, then
the respective Class Principal Balances of the various Classes of the Class B
Through T Certificates shall be reduced sequentially, in reverse alphabetic
order of the respective Class designations of such Classes of Certificates
(beginning with the Class T Certificates and ending with the Class B
Certificates), in each case until such excess is eliminated or the applicable
Class Principal Balance has been reduced to zero (whichever occurs first). If,
after the reduction to zero of the respective Class Principal Balances of all
the Classes of Class B Through T Certificates, the amount described in clause
(i) of the second preceding sentence (taking into account such reductions) still
exceeds the amount described in clause (ii) of the second preceding sentence,
then the respective Class Principal Balances of the various Classes of the Class
A Certificates shall be reduced sequentially as follows, in each case to zero if
necessary, until such remaining excess is eliminated: first, the Class
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Principal Balance of the Class A-J Certificates shall be reduced; second, if and
to the extent necessary, the Class Principal Balance of the Class A-M
Certificates shall be reduced; and last, if and to the extent necessary, the
respective Class Principal Balances of the various Classes of the Senior Class A
Certificates shall be reduced, on a pro rata basis in accordance with the
respective outstanding Class Principal Balances thereof.
On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01, the Trustee
shall determine the amount, if any, by which (i) the then aggregate of the Class
Principal Balances of the Class IUU Certificates, exceeds (ii) the
Uncertificated Principal Balance of the STML Group B REMIC I Regular Interests
that will be outstanding immediately following such Distribution Date. If such
excess does exist, then the Class Principal Balances of the Class IUU-10, Class
IUU-9, Class IUU-8, Class IUU-7, Class IUU-6, Class IUU-5, Class IUU-4, Class
IUU-3, Class IUU-2 and Class IUU-1 Certificates shall be reduced sequentially as
among such Classes, in that order, in each case until such excess or the related
Class Principal Balance is reduced to zero (whichever occurs first).
Any and all such reductions in the Class Principal Balances of the
respective Classes of the Principal Balance Certificates pursuant to this
Section 4.04(a) shall be deemed to constitute allocations of Realized Losses and
Additional Trust Fund Expenses.
(b) If the Class Principal Balance of any Class of Principal
Balance Certificates is reduced on any Distribution Date pursuant to Section
4.04(a), then the Uncertificated Principal Balance of such Class' Corresponding
REMIC II Regular Interest (or, if applicable, the aggregate Uncertificated
Principal Balance of such Class' Corresponding REMIC II Regular Interests) shall
be deemed to have first been reduced on such Distribution Date by the exact same
amount. If a Class of Principal Balance Certificates has two or more
Corresponding REMIC II Regular Interests, then the respective Uncertificated
Principal Balances of such Corresponding REMIC II Regular Interests shall be
reduced as contemplated by the preceding sentence in the same sequential order
that principal distributions are deemed made on such Corresponding REMIC II
Regular Interests pursuant to Section 4.01(l), such that no reduction shall be
made in the Uncertificated Principal Balance of any such Corresponding REMIC II
Regular Interest pursuant to this Section 4.04(b) until the Uncertificated
Principal Balance of each other such Corresponding REMIC II Regular Interest, if
any, with an alphanumeric designation that ends in a lower number, has been
reduced to zero. Any and all such reductions in the Uncertificated Principal
Balances 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(m), the Uncertificated Principal Balance of each REMIC I Regular
Interest (after taking account of such deemed distributions) shall be reduced,
if and to the extent necessary, to equal the Stated Principal Balance of the
related Trust Mortgage Loan or REO Trust Mortgage Loan (or, in the case of an
STML Group B REMIC I Regular Interest, to equal the excess, if any, of the
Stated Principal Balance of the related Split Trust Mortgage Loan or related
Split REO Trust Mortgage Loan, over the Uncertificated Principal Balance of the
STML Group A REMIC I Regular Interest that corresponds to the same Split Trust
Mortgage Loan or Split REO Trust Mortgage Loan), as applicable, that will be
outstanding immediately following such Distribution Date. Any and all such
reductions in the Uncertificated Principal Balances of the respective
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REMIC I Regular Interests shall be deemed to constitute allocations of Realized
Losses and Additional Trust Fund Expenses.
(d) On each Distribution Date, following any deemed
distributions to be made in respect of the Loan REMIC Regular Interests pursuant
to Section 4.01(n), subject to Section 2.06(b), the Uncertificated Principal
Balance of each Loan REMIC Regular Interest (after taking account of such deemed
distributions) shall be reduced to equal the Stated Principal Balance of the
related Early Defeasance Trust Mortgage Loan or any successor REO Trust Mortgage
Loan with respect thereto, 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 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 (net of the
Uncertificated Principal Balances of the STML Group B REMIC I Regular Interests)
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 (exclusive of the Class IUU 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 the Senior 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 Senior Class A
Certificates with respect to such Distribution Date (minus any amounts
reimbursed in respect of such respective Loss Reimbursement Amounts on the
subject Distribution Date pursuant to Section 4.01(a)); second, to the Class A-M
Certificates, up to any Loss Reimbursement Amount for the Class A-M Certificates
with respect to such Distribution Date (minus any amount reimbursed in respect
of such Loss Reimbursement Amount on the subject Distribution Date pursuant to
Section 4.01(a)); third, to the Class A-J Certificates, up to any Loss
Reimbursement Amount for the Class A-J Certificates with respect to such
Distribution Date (minus any amount reimbursed in respect of such Loss
Reimbursement Amount on the subject Distribution Date pursuant to Section
4.01(a)); and then to the respective Classes of the Class B Through T
Certificates, sequentially as among such Classes in alphabetic order based on
the respective Class designations thereof (beginning with the Class B
Certificates and ending with the Class T Certificates), in each case up to any
Loss Reimbursement Amount for the applicable Class of Class B Through T
Certificates with respect to such Distribution Date (minus any amount reimbursed
in respect of such Loss Reimbursement Amount on the subject Distribution Date
pursuant to Section 4.01(b)). Any portion of the Total Principal Reinstatement
Amount for any Distribution Date that is allocated to a particular Class of
Principal Balance Certificates (exclusive of the Class IUU 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 (exclusive of the Class IUU Certificates) on any
Distribution Date shall be a result of the collection of Recovered Amounts
Received by the Trust during the related Collection Period and the addition of
such Recovered Amounts to the
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Principal Distribution Amount for purposes of calculating the Adjusted Net
Principal Distribution Amount for such Distribution Date.
(b) In connection with the reinstatement of all or any portion
of the Class Principal Balance of any one or more Classes of Principal Balance
Certificates on any Distribution Date, pursuant to Section 4.05(a), the Trustee
shall calculate the amount of lost Distributable Certificate Interest that would
have accrued on the respective Classes of Regular Interest Certificates through
and including the end of the Interest Accrual Period for such Distribution Date
if no reduction to the Class Principal Balance of any Class of Principal Balance
Certificates, pursuant to Section 4.04(a), and no corresponding reduction to the
Uncertificated Principal Balance of any REMIC II Regular Interest(s), pursuant
to Section 4.04(b), had resulted on a prior Distribution Date from the
reimbursement out of general collections of principal on the Mortgage Pool of
the particular Advances (with interest thereon) that relate to the Recovered
Amounts associated with such reinstatement of outstanding principal on the
subject Distribution Date. Once determined, such lost Distributable Certificate
Interest in respect of any particular Class of Regular Interest Certificates
shall be reinstated and become due and payable on future Distribution Dates as
part of the unpaid Distributable Certificate Interest for such Class of Regular
Interest Certificates from prior Distribution Dates. All such reinstated
Distributable Certificate Interest in respect of any particular Class of Regular
Interest Certificates shall be treated the same as any other unpaid
Distributable Certificate Interest in respect of such Class of Regular Interest
Certificates.
(c) If the Class Principal Balance of any Class of Principal
Balance Certificates is increased on any Distribution Date pursuant to Section
4.05(a), then the Uncertificated Principal Balance of such Class' Corresponding
REMIC II Regular Interest (or, if applicable, the aggregate Uncertificated
Principal Balance of such Class' Corresponding REMIC II Regular Interests) shall
be deemed to have first been increased on such Distribution Date by the exact
same amount. In circumstances where there are multiple Corresponding REMIC II
Regular Interests with respect to a Class of Principal Balance Certificates, the
increases in the respective Uncertificated Principal Balances of such
Corresponding REMIC II Regular Interests as contemplated by the prior sentence
shall be made in the reverse order that reductions are made to such
Uncertificated Principal Balances pursuant to Section 4.04(b), in each case up
to the amount of the Loss Reimbursement Amount with respect to the subject REMIC
II Regular Interest for such Distribution Date (minus any amount reimbursed in
respect of such Loss Reimbursement Amount on the subject Distribution Date
pursuant to Section 4.01(l)).
(d) If any lost Distributable Certificate Interest is reinstated
with respect to any Class of Regular Interest Certificates on any Distribution
Date pursuant to Section 4.05(b), then a corresponding amount of Uncertificated
Distributable Interest shall be reinstated with respect to such Class'
Corresponding REMIC II Regular Interest(s) (or, in the case of a Class of
Interest-Only Certificates, insofar as such lost Distributable Certificate
Interest corresponds to a particular REMIC III Component of such Class, a
corresponding amount of Uncertificated Distributable Interest shall be
reinstated with respect to such REMIC III Component's Corresponding REMIC II
Regular Interest). In circumstances where there are multiple Corresponding REMIC
II Regular Interests with respect to a Class of Principal Balance Certificates,
the reinstatement of such lost Uncertificated Distributable Interest with
respect to such Corresponding REMIC II Regular Interests as contemplated by the
prior sentence shall be effected taking into account the respective portions of
such lost Uncertificated Distributable Interest attributable to such
Corresponding REMIC II Regular Interests. Once reinstated, such lost
Uncertificated Distributable Interest in respect of any particular REMIC II
Regular Interest shall become due and payable on future Distribution Dates as
part of the unpaid Uncertificated
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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, the allocations of Realized Losses and Additional Trust Fund Expenses to be
made pursuant to Section 4.04 and the reinstatements of principal balance and
interest to be made pursuant to Section 4.05. The Trustee shall calculate the
Available Distribution Amount, the Net Available Distribution Amount and the
Class IUU Available Distribution Amount for each Distribution Date and shall
allocate such respective amounts among Certificateholders in accordance with
this Agreement, and the Trustee shall have no obligation to recompute,
recalculate or verify any information provided to it by the Special Servicer or
Master Servicer. The calculations by the Trustee of such amounts shall, in the
absence of manifest error, be presumptively deemed to be correct for all
purposes hereunder.
SECTION 4.07. Use of Agents.
Subject to Section 3.22(f), the Master Servicer or the Special
Servicer 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. To the extent permitted by Section 8.02(vi), and
subject to the provisos to Section 8.02(vi), 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).
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) Subject to Sections 2.05(b) and 2.06(b), the Certificates
will be substantially in the respective forms attached hereto as Exhibits X-0,
X-0, X-0, X-0, X-0, X-0, A-7 and A-8; 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 X-0, Xxxxx X-0, Class A-AB, Class
A-4, Class A-M, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates, $250,000 in the case of the Interest-Only Certificates, and
$250,000 in the case of the remaining Regular Interest Certificates, and in each
such case in integral multiples of $1 in excess thereof. Subject to Sections
2.05(b) and 2.06(b), 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 applicable 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 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global
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Securities and Trust Services Group--LB-UBS Commercial Mortgage Trust 2006-C1.
The 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, except in the case of a Residual Interest Certificate, 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 (or, in the case of Residual Interest
Certificate, to the effect that the prospective Transferee is a Qualified
Institutional Buyer) and such Transfer may be made without registration under
the Securities Act (which Opinion of Counsel shall not be an expense of the
Trust Fund or of the Depositor, the Master Servicer, the Special Servicer, the
Tax Administrator, the Trustee, any Fiscal Agent or the Certificate Registrar in
their respective capacities as such), together with the written certification(s)
as to the facts surrounding such Transfer from the Certificateholder desiring to
effect such Transfer and/or such Certificateholder's prospective Transferee on
which such Opinion of Counsel is based.
No beneficial interest in the Rule 144A Global Certificate for any
Class of Book-Entry Non-Registered Certificates may be held by any Person that
is not a Qualified Institutional Buyer. If a Transfer of any interest in the
Rule 144A Global Certificate for any Class of Book-Entry Non-
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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-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. If any Transferee of an interest in the Rule 144A Global
Certificate for any Class of Book-Entry Non-Registered Certificates does not, in
connection with the subject Transfer, deliver to the Transferor the Opinion of
Counsel or the certification described in the 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 to any Non-United States Securities Person who takes delivery
in the form of a beneficial interest in the Regulation S Global Certificate for
such Class of Certificates, provided that the Certificate Owner desiring to
effect such Transfer (i) complies with the requirements for Transfers of
interests in such Regulation S Global Certificate set forth in the following
paragraph and (ii) delivers or causes to be delivered to the Certificate
Registrar and the Trustee (A) a certificate from such Certificate Owner
confirming its ownership of the beneficial interests in the subject Class of
Book-Entry Non-Registered Certificates to be transferred, (B) a copy of the
certificate to be obtained by such Certificate Owner from its prospective
Transferee in accordance with the second sentence of the following paragraph and
(C) such written orders and instructions as are required under the applicable
procedures of the Depository, Clearstream and Euroclear to direct the 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 and the Trustee of such certifications 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 Book-Entry Non-Registered
Certificates, and increase the denomination of the Regulation S Global
Certificate for such Class of Certificates, by the denomination of the
beneficial interest in such Class of Certificates specified in such orders and
instructions.
No beneficial interest in the Regulation S Global Certificate for
any Class of Book-Entry Non-Registered Certificates may be held by any Person
that is a United States Securities Person. Any Certificate Owner desiring to
effect any Transfer of a beneficial interest in the Regulation S Global
Certificate for any Class of Book-Entry Non-Registered Certificates shall be
required to obtain from such Certificate Owner's prospective Transferee a
certificate substantially in the form set forth in Exhibit F-2D hereto to the
effect that such Transferee is not a United States Securities Person. If any
Transferee of an interest in the Regulation S Global Certificate for any Class
of Book-Entry Non-
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Registered Certificates does not, in connection with the subject Transfer,
deliver to the Transferor the certification described in the preceding sentence,
then such Transferee shall be deemed to have represented and warranted that all
the certifications set forth in Exhibit F-2D hereto are, with respect to the
subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred to any Qualified Institutional Buyer that takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates, provided that the Certificate Owner
desiring to effect such transfer (i) complies with the requirements for
Transfers of interests in such Rule 144A Global Certificate set forth in the
third paragraph of this Section 5.02(b) and (ii) delivers or causes to be
delivered to the Certificate Registrar and the Trustee (A) a certificate from
such Certificate Owner confirming its ownership of the beneficial interests in
the subject Class of Book-Entry Non-Registered Certificates to be transferred,
(B) a copy of the certificate or Opinion of Counsel to be obtained by such
Certificate Owner from its prospective Transferee in accordance with the second
sentence of the third paragraph of this Section 5.02(b) and (C) such written
orders and instructions as are required under the applicable procedures of the
Depository, Clearstream and Euroclear to direct the 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 and the Trustee of such certification(s) and/or Opinion of Counsel 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 Book-Entry
Non-Registered Certificates, and increase the denomination of the Rule 144A
Global Certificate for such Class of Certificates, by the denomination of the
beneficial interest in such Class of Certificates specified in such orders and
instructions.
Also notwithstanding the foregoing, any interest in a Global
Certificate with respect to any Class of Book-Entry Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
that takes delivery in the form of a Definitive Certificate of the same Class as
such Global Certificate upon delivery to the Certificate Registrar and the
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 Global Certificate. Upon
delivery to the Certificate Registrar and the Trustee 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 Global Certificate by
the denomination of the transferred interests in such Global Certificate, and
shall cause a Definitive Certificate of the same Class as such Global
Certificate, and in a denomination equal to the reduction in the denomination of
such Global Certificate, to be executed, authenticated and delivered in
accordance with this Agreement to the applicable Transferee.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify 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-
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Registered Certificate or interest therein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of any Non-Registered Certificate or interest therein shall, and does
hereby agree to, indemnify the Depositor, the Underwriters, the Trustee, any
Fiscal Agent, the Master Servicer, the Special Servicer, the Tax Administrator
and the Certificate Registrar against any liability that may result if such
Transfer is not exempt from the registration and/or qualification requirements
of the Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
(c) No Transfer of a Certificate or any interest therein shall
be made (i) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or the Code (each, a "Plan"), or (ii) to any Person who is
directly or indirectly purchasing such Certificate or interest therein on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan, if the
purchase and holding of such Certificate or interest therein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial issuance of the
Non-Registered Certificates or any Transfer of a Non-Registered Certificate or
any interest therein by the Depositor, Xxxxxx Brothers or any of their
respective Affiliates or, in the case of a Global Certificate for any Class of
Book-Entry Non-Registered Certificates, any Transfer thereof to a successor
Depository or to the applicable Certificate Owner(s) in accordance with Section
5.03, the Certificate Registrar shall refuse to register the Transfer of a
Definitive Non-Registered Certificate unless it has received from the
prospective Transferee, and any Certificate Owner transferring an interest in a
Global Certificate for any Class of Book-Entry Non-Registered Certificates shall
be required to obtain from its prospective Transferee, one of the following: (i)
a certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing such Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) alternatively, except in the case of a Residual Interest Certificate or, if
issued hereunder taking into account Section 2.05(b), a Class V Certificate, a
certification to the effect that the purchase and holding of such Certificate or
interest therein by such prospective Transferee is exempt from the prohibited
transaction provisions of Sections 406(a) and (b) and 407 of ERISA and the
excise taxes imposed on such prohibited transactions by Sections 4975(a) and (b)
of the Code, by reason of Sections I and III of Prohibited Transaction Class
Exemption 95-60; or (iii) alternatively, but only in the case of a
Non-Registered Certificate that is an Investment Grade Certificate (other than,
if applicable, a Residual Interest Certificate or, if issued hereunder taking
into account Section 2.05(b), a Class V Certificate) that is being acquired by
or on behalf of a Plan in reliance on the Prohibited Transaction Exemption, a
certification to the effect that such Plan (X) is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act, (Y) is not
sponsored (within the meaning of Section 3(16)(B) of ERISA) by the Trustee, the
Depositor, any Mortgage Loan Seller, the Master Servicer, the Special Servicer,
any Sub-Servicer, any Person responsible for servicing an Outside Serviced Trust
Mortgage Loan or administering an Outside Administered 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
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requirements of the immediately preceding clauses (iii)(X) and (iii)(Y); or (iv)
alternatively, a certification of facts and an Opinion of Counsel which
otherwise establish to the reasonable satisfaction of the Trustee or such
Certificate Owner, as the case may be, that such Transfer will not result in a
violation of Section 406 or 407 of ERISA or Section 4975 of the Code or result
in the imposition of an excise tax under Section 4975 of the Code. It is hereby
acknowledged that the forms of certification attached hereto as Exhibit G-1 (in
the case of Definitive Non-Registered Certificates) and Exhibit G-2 (in the case
of ownership interests in Book-Entry Non-Registered Certificates) are acceptable
for purposes of the preceding sentence. If any Transferee of a Certificate
(including a Registered Certificate) or any interest therein does not, in
connection with the subject Transfer, deliver to the Certificate Registrar (in
the case of a Definitive Certificate) or the 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.
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(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 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
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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 result of
any regulated investment company, real estate investment trust, common
trust fund, partnership, trust, estate or organization described in
Section 1381 of the Code that holds an Ownership Interest in a Residual
Interest Certificate having as among its record holders at any time any
Person which is a Disqualified Organization, and each of the other parties
hereto shall furnish to the Tax Administrator all information in its
possession necessary for the Tax Administrator to discharge such
obligation. The Person holding such Ownership Interest shall be
responsible for the reasonable compensation of the Tax Administrator for
providing information thereto pursuant to this subsection (d)(iii) and
Section 10.01(h)(i).
(iv) The provisions of this Section 5.02(d) set forth
prior to this clause (iv) may be modified, added to or eliminated,
provided that there shall have been delivered to the Trustee and the Tax
Administrator the following:
(A) written confirmation from each Rating Agency to the
effect that the modification of, addition to or
elimination of such provisions will not cause an
Adverse Rating Event with respect to any Class of
Certificates; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee and the Tax Administrator,
obtained at the expense of the party seeking such
modification of, addition to or elimination of such
provisions (but in no event at the expense of the
Trustee, the Tax Administrator or the Trust), to the
effect that doing so will not (1) cause any REMIC Pool
to cease to qualify as a REMIC or be subject to an
entity-level tax caused by the Transfer of any
Residual Interest Certificate to a Person which is not
a Permitted Transferee or (2) cause a Person other
than the prospective Transferee to be subject to a
REMIC-related tax caused by the Transfer of a Residual
Interest Certificate to a Person that is not a
Permitted Transferee.
(e) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of an
interest in a Book-Entry Non-Registered Certificate, to the Certificate Owner
that is transferring such interest) a certification to the effect that, and such
other evidence as may be reasonably required by the Trustee (or such Certificate
Owner) to confirm that, it has (i) sole investment discretion with respect to
each such account and (ii) full power to make the applicable foregoing
acknowledgments, representations, warranties, certifications and agreements with
respect to each such account as set forth in subsections (b), (c) and/or (d), as
appropriate, of this Section 5.02.
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(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 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 5.02(b) and Section 5.03(c), 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 5.02(b) and
Section 5.03(c), shall not be entitled to definitive, fully registered
Certificates ("Definitive Certificates") in respect of such Ownership Interests.
The Class X-CL, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class P, Class Q, Class S, Class T, Class IUU-1, Class IUU-2, Class IUU-3, Class
IUU-4, Class IUU-5, Class IUU-6, Class IUU-7, Class IUU-8, Class IUU-9 and Class
IUU-10 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 G, Class
H, Class J, Class K, Class L, Class M, Class N, Class P, Class Q, Class S, Class
T, Class IUU-1, Class IUU-2, Class IUU-3, Class IUU-4, Class IUU-5, Class IUU-6,
Class IUU-7, Class IUU-8, Class IUU-9 and Class IUU-10 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
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in the name of Cede & Co. as nominee of the Depository. All Transfers by
Certificate Owners of their respective Ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing each such Certificate
Owner. Each Depository Participant shall only transfer the Ownership Interests
in the Book-Entry Certificates of Certificate Owners it represents or of
brokerage firms for which it acts as agent in accordance with the Depository's
normal procedures. Each Certificate Owner is deemed, by virtue of its
acquisition of an Ownership Interest in the applicable Class of Book-Entry
Certificates, to agree to comply with the transfer requirements provided for in
Section 5.02.
(b) The Trustee, the Master Servicer, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The 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 notifies the Depository of its intent to
terminate the book-entry system through the Depository with respect to a Class
of Book-Entry Certificates and (in the event applicable law and/or the
Depository's procedures require that the Depository Participants holding
Ownership Interests in such Class of Book-Entry Certificates submit a withdrawal
request to the Depository in order to so terminate the book-entry system) the
Depositor additionally notifies those Depository Participants and those
Depository Participants submit a withdrawal request with respect to such
termination, then 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.
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(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 therewith. Any replacement
Certificate issued pursuant to this section shall constitute complete and
indefeasible evidence of ownership in the applicable REMIC Pool or the Grantor
Trust (if created hereunder taking into account Section 2.05(b)), as applicable,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agent of any of them may treat the Person in whose
name any Certificate is registered as the owner of such Certificate for the
purpose of receiving distributions pursuant to Section 4.01 and for all other
purposes whatsoever and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Registrar or any agent of any of them
shall be affected by notice to the contrary.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER
AND THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and
Special Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
SECTION 6.02. Continued Qualification and Compliance of Master
Servicer; Merger, Consolidation or Conversion of
Depositor, Master Servicer or Special Servicer.
Subject to the following paragraph, the Depositor, the Master
Servicer and the Special Servicer shall each keep in full effect its existence,
rights and franchises as a legal entity under the laws of the jurisdiction of
its organization, and each will obtain and preserve its qualification to do
business as a foreign entity in, and will otherwise remain in compliance with
the laws of, each jurisdiction in which such qualification and compliance is or
shall be necessary to protect the validity and enforceability of this Agreement,
the Certificates or any of the Mortgage Loans and to perform its respective
duties under this Agreement.
Each of the Depositor, the Master Servicer and the Special Servicer
may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets (which, in the case of the Master Servicer or
the Special Servicer, may be limited to all or substantially all of its assets
related to commercial mortgage loan servicing) to any Person, in which case any
Person resulting from any merger or consolidation to which the Depositor, the
Master Servicer or the Special Servicer shall be a party, or any Person
succeeding to the business (which, in the case of the Master Servicer or the
Special Servicer, may be limited to the commercial mortgage loan servicing
business) of the Depositor, the Master Servicer or the Special Servicer, shall
be the successor of the Depositor, the Master Servicer or the Special Servicer,
as the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of the Master Servicer or the Special
Servicer unless (i) as confirmed (at the expense of such successor or surviving
Person) in writing by each of the Rating Agencies (and, if any Specially
Designated Non-Trust Mortgaged Loan Securities are rated thereby, Xxxxx'x), such
succession will not result in an Adverse Rating Event with respect to any Class
of Certificates or any class of Specially Designated Non-Trust Mortgage Loan
Securities rated by such rating agency, and (ii) such successor or surviving
Person makes the applicable representations and warranties set forth in Section
3.23 (in the case of a successor or surviving Person to the Master Servicer) or
Section 3.24 (in the case of a successor or surviving Person to the Special
Servicer), as applicable. The successor or surviving Person shall be responsible
for the cost of obtaining the rating confirmations contemplated by clause (i) of
the proviso to the preceding sentence.
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SECTION 6.03. Limitation on Liability of Depositor, Master
Servicer and Special Servicer.
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any liability to the Trust Fund, the Trustee, the
Certificateholders or the Serviced Non-Trust Mortgage Loan Noteholders for any
action taken, or not taken, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect the
Depositor, the Master Servicer or the Special Servicer against any liability to
the Trust Fund, the Trustee, the Certificateholders or the Serviced Non-Trust
Mortgage Loan Noteholders for the breach of a representation or warranty made
herein by such party, or against any expense or liability specifically required
to be borne by such party without right of reimbursement pursuant to the terms
hereof, or against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of its
obligations or duties hereunder or negligent disregard of such obligations or
duties. The Depositor, the Master Servicer, the Special Servicer and any
director, manager, member, officer, employee or agent of the Depositor, the
Master Servicer or the Special Servicer may rely in good faith on any document
of any kind which, prima facie, is properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Master Servicer,
the Special Servicer and any director, manager, member, officer, employee or
agent of the Depositor, the Master Servicer or the Special Servicer shall be
indemnified and held harmless by the Trust Fund out of the Pool Custodial
Account against any loss, liability or reasonable expense (including reasonable
legal fees and expenses) incurred in connection with any legal action or claim
relating to this Agreement or the Certificates (including in connection with the
dissemination of information and reports as contemplated by this Agreement),
other than any such loss, liability or expense: (i) specifically required to be
borne by the party seeking indemnification, without right of reimbursement
pursuant to the terms hereof; (ii) which constitutes a Servicing Advance that is
otherwise reimbursable hereunder; (iii) incurred in connection with any legal
action or claim against the party seeking indemnification, resulting from any
breach on the part of that party of a representation or warranty made herein; or
(iv) incurred in connection with any legal action or claim against the party
seeking indemnification, resulting from any willful misfeasance, bad faith or
negligence on the part of that party in the performance of its obligations or
duties hereunder or negligent disregard of such obligations or duties; provided
that, if a Serviced Loan Combination is involved, such indemnity shall be
payable out of the related Loan Combination Custodial Account pursuant to
Section 3.05A and, if and to the extent not solely attributable to one or more
Serviced Non-Trust Mortgage Loans (or any successor REO Mortgage Loan(s) with
respect thereto) included in such Serviced Loan Combination, shall also be
payable out of the Pool Custodial Account if amounts on deposit in the related
Loan Combination Custodial Account(s) are insufficient therefor; and provided,
further, that in making a determination as to whether any such indemnity is
solely attributable to one or more Serviced Non-Trust Mortgage Loans (or any
successor REO Mortgage Loan(s) with respect thereto), the fact that any related
legal action was instituted by a related Serviced Non-Trust Mortgage Loan
Noteholder shall not create a presumption that such indemnity is solely
attributable thereto. None of the Depositor, the Master Servicer or the Special
Servicer shall be under any obligation to appear in, prosecute or defend any
legal action, unless such action is related to its respective duties under this
Agreement and either (i) it is specifically required hereunder to bear the costs
of such action or (ii) such action will not, in its reasonable and good faith
judgment, involve it in any ultimate expense or liability for which it would not
be reimbursed hereunder. Notwithstanding the foregoing, the Depositor, the
Master Servicer or the Special Servicer may in its discretion undertake any such
action which it may deem necessary or desirable with respect to the enforcement
and/or protection of the rights and duties of the parties hereto and the
interests of the Certificateholders (or, if a Serviced Loan Combination is
affected, the rights of
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the Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s) (as a collective whole)). In such event, the legal expenses and
costs of such action, and any liability resulting therefrom, shall be expenses,
costs and liabilities of the Trust Fund, and the Depositor, the Master Servicer
and the Special Servicer shall be entitled to be reimbursed therefor from the
Pool Custodial Account as provided in Section 3.05(a); provided, however, that
if and to the extent a Serviced Loan Combination and/or a Serviced Non-Trust
Mortgage Loan Noteholder is involved, such expenses, costs and liabilities shall
be payable out of the related Loan Combination Custodial Account pursuant to
Section 3.05A and, if and to the extent attributable to one or more Trust
Mortgage Loans and/or REO Trust Mortgage Loans, shall also be payable out of the
Pool Custodial Account if amounts on deposit in the related Loan Combination
Custodial Account are insufficient therefor. In no event shall the Master
Servicer or the Special Servicer be liable or responsible for any action taken
or omitted to be taken by the other of them (unless they are the same Person or
Affiliates) or for any action taken or omitted to be taken by the Depositor, the
Trustee, any Certificateholder or any Serviced Non-Trust Mortgage Loan
Noteholder (unless they are the same Person or Affiliates).
SECTION 6.04. Resignation of Master Servicer and the Special
Servicer.
(a) The Master Servicer and, subject to Section 6.09, the
Special Servicer may each resign from the obligations and duties hereby imposed
on it, upon a determination that its duties hereunder are no longer permissible
under applicable law or are in material conflict by reason of applicable law
with any other activities carried on by it (the other activities of the Master
Servicer or the Special Servicer, as the case may be, so causing such a conflict
being of a type and nature carried on by the Master Servicer or the Special
Servicer, as the case may be, at the date of this Agreement). Any such
determination requiring the resignation of the Master Servicer or the Special
Servicer, as applicable, shall be evidenced by an Opinion of Counsel to such
effect which shall be delivered to the Trustee. Unless applicable law requires
the Master Servicer's or Special Servicer's resignation to be effective
immediately, and the Opinion of Counsel delivered pursuant to the prior sentence
so states, no such resignation shall become effective until the Trustee or other
successor shall have assumed the responsibilities and obligations of the
resigning party in accordance with Section 6.09 or Section 7.02 hereof. The
Master Servicer and, subject to the rights of the Controlling Class under
Section 6.09 to appoint a successor special servicer, the Special Servicer shall
each have the right to resign at any other time, provided that (i) a willing
successor thereto reasonably acceptable to the Depositor has been found
(provided that if the Depositor has not responded to a request for consent to a
successor within 15 days, such successor shall be deemed approved thereby), (ii)
each Rating Agency confirms in writing (at the expense of the resigning party)
that the resignation and the successor's appointment will not result in an
Adverse Rating Event with respect to any Class of Certificates rated by such
Rating Agency, (iii) the resigning party pays all costs and expenses in
connection with such resignation and the resulting transfer of servicing, and
(iv) the successor accepts appointment prior to the effectiveness of such
resignation and agrees in writing to be bound by the terms and conditions of
this Agreement. Neither the Master Servicer nor the Special Servicer shall be
permitted to resign except as contemplated above in this Section 6.04(a).
(b) Consistent with Section 6.04(a), neither the Master Servicer
nor the Special Servicer shall, except as expressly provided herein, assign or
transfer any of its rights, benefits or privileges hereunder to any other Person
or, except as provided in Sections 3.22, 4.07 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
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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 Serviced
Non-Trust Mortgage Loan Noteholders in Respect of
the Master Servicer and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor, each Underwriter, the Trustee and each Serviced Non-Trust Mortgage
Loan Noteholder, upon reasonable notice, during normal business hours access to
all records maintained thereby in respect of its rights and obligations
hereunder. Upon reasonable request, the Master Servicer and the Special Servicer
shall each furnish the Depositor, each Underwriter, the Trustee and each
Serviced Non-Trust Mortgage Loan Noteholder with its most recent publicly
available financial statements (or, if not available, the most recent publicly
available audited annual financial statements of its corporate parent, on a
consolidated basis) and such other non-proprietary information as the Master
Servicer or the Special Servicer, as the case may be, shall determine in its
sole and absolute discretion as it possesses, which is relevant to the
performance of its duties hereunder and which it is not prohibited by applicable
law or contract from disclosing. The Depositor may, but is not obligated to,
enforce the obligations of the Master Servicer and the Special Servicer
hereunder and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of the Master Servicer or Special Servicer
hereunder or exercise the rights of the Master Servicer and the Special Servicer
hereunder; provided, however, that neither the Master Servicer nor the Special
Servicer shall be relieved of any of its obligations hereunder by virtue of such
performance by the Depositor or its designee and, provided, further, that the
Depositor may not exercise any right pursuant to Section 7.01 to terminate the
Master Servicer or the Special Servicer as a party to this Agreement. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Master Servicer or the Special Servicer and is not
obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
SECTION 6.06. Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer shall
each furnish such reports, certifications and information as are reasonably
requested by the Trustee in order to enable it to perform its duties hereunder.
SECTION 6.07. Depositor, Special Servicer and Trustee to
Cooperate with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Master Servicer in order to enable it to perform its duties hereunder.
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SECTION 6.08. Depositor, Master Servicer and Trustee to
Cooperate with Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Special Servicer in order to enable it to perform its duties hereunder.
SECTION 6.09. Designation of Special Servicer, Controlling Class
Representative and Class IUU Representative;
Replacement of Special Servicer by the Controlling
Class and Others.
(a) Subject to Section 6.09(d), the Majority Controlling Class
Certificateholder(s) may at any time and from time to time designate a Person to
serve as Special Servicer hereunder and to replace any existing Special Servicer
without cause 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; provided that the Majority Controlling Class
Certificateholder(s) may not designate any Person to act as successor Special
Servicer with respect to any Serviced Loan Combination if such Person was
previously terminated as Special Servicer with respect to such Serviced Loan
Combination pursuant to Section 7.01. Such Holder or Holders shall so designate
a Person to serve as replacement Special Servicer by the delivery to the
Trustee, the Depositor, the Master Servicer, each Serviced Non-Trust Mortgage
Loan Noteholder and the existing Special Servicer of a written notice stating
such designation. The Trustee shall, promptly after receiving any such notice,
deliver to the Rating Agencies an executed Notice and Acknowledgment in the form
attached hereto as Exhibit I-1. If such Holders have not replaced the Special
Servicer within 30 days of such Special Servicer's resignation or the date such
Special Servicer has ceased to serve in such capacity, and subject to the prior
rights of any particular party to appoint a special servicer with respect to a
Split Trust Mortgage Loan, a Split REO Trust Mortgage Loan, the Triangle Town
Center Loan Combination and/or the 000 Xxxxxxx Xxxxxx Loan Combination in
accordance with Section 6.09(d), the Trustee shall designate a successor Special
Servicer, subject to removal by the Majority Controlling Class
Certificateholder(s) or as and to the extent otherwise provided in Section
6.09(d) and appointment of a successor thereto pursuant to the terms of this
Section 6.09. Subject to Section 6.09(d) and the proviso to the first sentence
of this Section 6.09(a), any designated Person (whether designated by Holders of
the Controlling Class or by the Trustee) shall become the Special Servicer on
the date as of which the Trustee shall have received all of the following: (1)
written confirmation from each Rating Agency (and, if applicable, Xxxxx'x)
(obtained at the expense of the outgoing Special Servicer, in connection with a
resignation or a termination for cause, including pursuant to Section 7.01, and
otherwise at the expense of the Controlling Class Certificateholders
contemplated by the next paragraph) that the appointment of such Person will not
result in an Adverse Rating Event with respect to any Class of Certificates or
any outstanding class of Specially Designated Non-Trust Mortgage Loan Securities
rated by such rating agency; (2) an Acknowledgment of Proposed Special Servicer
in the form attached hereto as Exhibit I-2, executed by the designated Person;
and (3) an Opinion of Counsel (at the expense of the Person designated to become
the Special Servicer) to the effect that, upon the execution and delivery of the
Acknowledgment of Proposed Special Servicer, the designated Person shall be
bound by the terms of this Agreement and, subject to customary limitations, that
this Agreement shall be enforceable against the designated Person in accordance
with its terms. Subject to Section 6.09(d) and the proviso to the first sentence
of this Section 6.09(a), any existing Special Servicer shall be deemed to have
resigned simultaneously with such designated Person's becoming the Special
Servicer hereunder; provided,
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however, that (i) the outgoing Special Servicer shall continue to be entitled to
receive all amounts accrued or owing to it under this Agreement on or prior to
the effective date of such resignation, whether in respect of Servicing Advances
or otherwise, (ii) if the outgoing Special Servicer was terminated without
cause, it shall be entitled to a portion of certain Workout Fees thereafter
payable with respect to the Corrected Mortgage Loans or otherwise (but only if
and to the extent permitted by Section 3.11(c)) and (iii) the outgoing Special
Servicer shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such resignation. The outgoing Special Servicer shall
cooperate with the Trustee and the replacement Special Servicer in effecting the
termination of the outgoing Special Servicer's responsibilities and rights
hereunder, including the transfer within two (2) Business Days to the
replacement Special Servicer for administration by it of all cash amounts that
shall at the time be or should have been credited by the outgoing 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 Serviced Non-Trust Mortgage Loan Noteholders of
any termination of the Special Servicer and appointment of a new Special
Servicer in accordance with this Section 6.09(a).
Any out-of-pocket costs and expenses incurred in connection with the
removal (without cause) of a Special Servicer pursuant to this Section 6.09(a)
and its replacement by a Person designated by the Majority Controlling Class
Certificateholder(s), that are not paid by the replacement Special Servicer
shall be paid by such Holder or Holders. The rights of the Majority Controlling
Class Certificateholders to replace the Special Servicer under this Section
6.09(a) shall be subject to Section 6.09(d), as well as to the provisions of the
respective Co-Lender Agreement for each Serviced Loan Combination if and to the
extent that such Co-Lender Agreement entitles one or more of the related
Non-Trust Mortgage Loan Noteholders to be consulted in connection with such
replacement; and it shall be an additional condition to any such replacement
that the Majority Controlling Class Certificateholder(s) shall have fulfilled,
or caused the fulfillment of, any conditions precedent to such replacement that
are set forth in such Co-Lender Agreements.
(b) The Majority Controlling Class Certificateholder(s) may also
select a representative (the "Controlling Class Representative") from whom the
Special Servicer will seek advice and approval and take direction under certain
circumstances, as described herein, and shall promptly notify the Trustee, the
Master Servicer and the Special Servicer of that selection. Notwithstanding the
foregoing, until a Controlling Class Representative is so selected in accordance
with the preceding sentence, or after receipt of a notice from the Majority
Controlling Class Certificateholder(s) that a Controlling Class Representative
is no longer designated, the Certificateholder (or, if the Certificates of the
Controlling Class are Book-Entry Certificates, the Certificate Owner), if any,
that beneficially owns more than 50% of the Class Principal Balance of the
Controlling Class of Certificates will be deemed to be the Controlling Class
Representative. The Controlling Class Representative shall be required to keep
all non-public information received by it in such capacity pursuant to this
Agreement confidential and, upon its designation as such, the Controlling Class
Representative (except with respect to the initial Controlling Class
Representative as provided in the following sentence) shall deliver to the
Trustee, the Master Servicer and the Special Servicer a written confirmation to
such effect, in the form of Exhibit O attached hereto (the "Controlling Class
Representative Confirmation"). The Controlling Class Representative Confirmation
shall also include confirmation of its acceptance of its appointment as
Controlling Class Representative, an address and facsimile number for the
delivery of notices and other correspondence and a list of officers or employees
of such Person with whom the parties to this
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Agreement may deal (including their names, titles, work addresses and facsimile
numbers)). No appointment of any Person as a Controlling Class Representative
shall be effective until such Person provides the Trustee and the Master
Servicer with a Controlling Class Representative Confirmation; provided that,
upon its acquisition of all the Class T Certificates, Delaware Securities
Holdings, LLC shall be the initial Controlling Class Representative without the
need for delivery of a Controlling Class Representative Confirmation, 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.
The Majority Class IUU Certificateholder(s), as certified by the
Certificate Registrar from time to time, shall also be entitled to select a
particular Holder or Certificate Owner of Class IUU Certificates as a
representative (the "Class IUU Representative") from whom the Special Servicer
will, as to any Split Trust Mortgage Loan or any related REO Property, during a
Class IUU Control Period with respect thereto, seek advice and approval under
certain circumstances, as provided herein, and shall promptly notify the
Trustee, the Master Servicer and the Special Servicer of that selection;
provided, however, that until a Class IUU Representative is so selected or after
receipt of a notice from the Majority Class IUU Certificateholder(s) that a
Class IUU Representative is no longer designated, the Holder or Certificate
Owner, as applicable, of Class IUU Certificates that is entitled to the largest
percentage of Voting Rights allocated to the Class IUU Certificates will be the
Class IUU Representative. Each Class IUU Representative shall be required to
keep all non-public information received by it in such capacity pursuant to this
Agreement confidential.
(c) Notwithstanding the foregoing, if the Controlling Class of
Certificates or the Class IUU Certificates, as applicable, consists or consist,
as applicable, of Book-Entry Certificates, then the rights of the Holders of the
Certificates of the Controlling Class or the Class IUU Certificates, as
applicable, set forth in Section 6.09(a) or Section 6.09(b) above may be
exercised directly by the relevant Certificate Owner(s), provided that the
identity of such Certificate Owner(s) has been confirmed to the Trustee to its
reasonable satisfaction. If the Certificates of the Controlling Class consist of
Book-Entry Certificates, then any costs or expenses incurred in connection with
determining the identity of the Controlling Class Representative shall be paid
by the Trust or, if paid by the Trustee, reimbursed to the Trustee out of the
Trust Fund (in any event, out of amounts otherwise payable with respect to the
Controlling Class of Certificates). If the Class IUU Certificates consist of
Book-Entry Certificates, then any costs or expenses incurred in connection with
determining the identity of the Class IUU 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 Class
IUU Certificates).
(d) For so long as a Class IUU Control Period is in effect with
respect to any Split Trust Mortgage Loan or Split REO Trust Mortgage Loan, the
Class IUU Representative shall be entitled, solely with respect to such Split
Trust Mortgage Loan or any related REO Property, to exercise any and all rights
to terminate, appoint and/or replace the Special Servicer that are granted to
the Majority Controlling Class Certificateholder(s) pursuant to the first
paragraph of Section 6.09(a), in all cases subject to the same terms, conditions
and limitations as are applicable to any such termination, appointment and/or
replacement by the Majority Controlling Class Certificateholder(s).
Notwithstanding anything herein to the contrary, the Class IUU Representative
shall not have any right to terminate, replace or appoint any party as Special
Servicer in respect of any Mortgage Loan or REO
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Property other than a Split Trust Mortgage Loan and any related REO Property as
to which a Class IUU Control Period is in effect.
For so long as no Serviced Loan Combination Change of Control Event
has occurred and is continuing with respect to the Triangle Town Center Loan
Combination, the Triangle Town Center Note B Non-Trust Mortgage Loan Noteholder
(in its capacity as Serviced Loan Combination Directing Holder with respect to
the Triangle Town Center Loan Combination) shall be entitled, solely with
respect to the Triangle Town Center Loan Combination, to exercise any and all
rights to terminate, appoint and/or replace the Special Servicer that are
granted to the Majority Controlling Class Certificateholder(s) pursuant to the
first paragraph of Section 6.09(a), in all cases subject to the same terms,
conditions and limitations as are applicable to any such termination,
appointment and/or replacement by the Majority Controlling Class
Certificateholder(s). Notwithstanding anything herein to the contrary, the
Triangle Town Center Note B Non-Trust Mortgage Loan Noteholder in respect of the
Triangle Town Center Loan Combination shall not have any right to terminate,
replace or appoint any party as Special Servicer in respect of any Mortgage Loan
or REO Property other than the Triangle Town Center Loan Combination and any
related REO Property.
For so long as no Serviced Loan Combination Change of Control Event
has occurred and is continuing with respect to the 000 Xxxxxxx Xxxxxx Loan
Combination, the 000 Xxxxxxx Xxxxxx Note B Non-Trust Mortgage Loan Noteholder
(in its capacity as Serviced Loan Combination Directing Holder with respect to
the 000 Xxxxxxx Xxxxxx Loan Combination) shall be entitled, solely with respect
to the 000 Xxxxxxx Xxxxxx Loan Combination, to exercise any and all rights to
terminate, appoint and/or replace the Special Servicer that are granted to the
Majority Controlling Class Certificateholder(s) pursuant to the first paragraph
of Section 6.09(a), in all cases subject to the same terms, conditions and
limitations as are applicable to any such termination, appointment and/or
replacement by the Majority Controlling Class Certificateholder(s).
Notwithstanding anything herein to the contrary, the 000 Xxxxxxx Xxxxxx Note B
Non-Trust Mortgage Loan Noteholder in respect of the 000 Xxxxxxx Xxxxxx Loan
Combination shall not have any right to terminate, replace or appoint any party
as Special Servicer in respect of any Mortgage Loan or REO Property other than
the 000 Xxxxxxx Xxxxxx Loan Combination and any related REO Property.
Notwithstanding the foregoing, the Majority Controlling Class
Certificateholder(s) shall continue to have all rights to terminate, appoint
and/or replace a Special Servicer in accordance with Section 6.09; provided
that: (i) for so long as a Class IUU Control Period is in effect with respect to
any Split Trust Mortgage Loan or Split REO Trust Mortgage Loan, the Majority
Controlling Class Certificateholder(s) may not terminate or replace, without
cause, any Special Servicer appointed by the Class IUU Representative with
respect to such Split Trust Mortgage Loan or any related REO Property pursuant
to this Section 6.09(d); (ii) for so long as no Serviced Loan Combination Change
of Control Event has occurred and is continuing with respect to the 000 Xxxxxxx
Xxxxxx Loan Combination, the Majority Controlling Class Certificateholder(s) may
not terminate or replace, without cause, any Special Servicer appointed by the
000 Xxxxxxx Xxxxxx Note B Non-Trust Mortgage Loan Noteholder with respect to the
000 Xxxxxxx Xxxxxx Loan Combination or any related REO Property pursuant to this
Section 6.09(d); and (iii) for so long as no Serviced Loan Combination Change of
Control Event has occurred and is continuing with respect to the Triangle Town
Center Loan Combination, the Majority Controlling Class Certificateholder(s) may
not terminate or replace, without cause, any Special Servicer appointed by the
Triangle Town Center Note B Non-Trust Mortgage Loan Noteholder with respect to
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the Triangle Town Center Loan Combination or any related REO Property pursuant
to this Section 6.09(d).
If the Person acting as Special Servicer with respect to the 000
Xxxxxxx Xxxxxx Loan Combination or the Triangle Town Center Loan Combination is
different from the Person acting as Special Servicer with respect to the
Mortgage Pool (exclusive of the Split Trust Mortgage Loans, the Combination
Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect
thereto), then the Person acting as Special Servicer with respect to such Loan
Combination shall constitute a Loan Combination-Specific Special Servicer and
the provisions of Section 7.01(e) shall apply in respect of such circumstances.
If the Person acting as Special Servicer with respect to a Split
Trust Mortgage Loan or any related REO Property is different from the Person
acting as Special Servicer with respect to the Mortgage Pool (exclusive of the
Split Trust Mortgage Loans, the Combination Trust Mortgage Loans or any
successor REO Trust Mortgage Loans with respect thereto), then the provisions of
Section 7.01(e) shall be deemed to apply to the Person acting as Special
Servicer with respect to such Split Trust Mortgage Loan or any related REO
Property as if such Person was a Loan Combination-Specific Special Servicer and
such Split Trust Mortgage Loan was a Serviced Loan Combination.
(e) Any existing Loan Combination-Specific Special Servicer or
STML Special Servicer removed pursuant to Section 6.09(d) shall be deemed to
have resigned simultaneously with its replacement becoming the new Loan
Combination-Specific Special Servicer hereunder with respect to the subject Loan
Combination or the new STML Special Servicer hereunder with respect to the
subject Split Trust Mortgage Loan or any related REO Property, as the case may
be; provided, however, that (i) the outgoing Loan Combination-Specific Special
Servicer or STML Special Servicer, as applicable, 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, in respect of the subject Loan Combination or the subject
Split Trust Mortgage Loan, as applicable, or any related REO Property, (ii) if
the outgoing Loan-Combination Specific Special Servicer or STML Special
Servicer, as applicable, was terminated without cause, it shall be entitled to a
portion of certain Workout Fees thereafter payable with respect to any Corrected
Mortgage Loan(s) constituting the subject Loan Combination or the subject Split
Trust Mortgage Loan, as applicable, but only if and to the extent permitted by
Section 3.11(c), and (iii) the outgoing Loan Combination-Specific Special
Servicer or STML Special Servicer, as applicable, shall continue to be entitled
to the benefits of Section 6.03 notwithstanding any such resignation. The
outgoing Loan Combination-Specific Special Servicer or STML Special Servicer, as
applicable, shall cooperate with the Trustee and its replacement in effecting
the termination of the responsibilities and rights hereunder of the outgoing
Loan Combination-Specific Special Servicer or STML Special Servicer, as
applicable, including the transfer within two (2) Business Days to the
replacement Loan Combination-Specific Special Servicer or STML Special Servicer,
as applicable, for administration by it of all cash amounts relating to the
subject Loan Combination or the subject Split Trust Mortgage Loan, as
applicable, or any related REO Property that shall at the time be or should have
been credited by the Loan Combination-Specific Special Servicer or STML Special
Servicer, as applicable, 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 the subject Loan Combination,
subject Split Trust Mortgage Loan and/or any related REO Property. The Trustee
shall notify the other parties hereto and the Certificateholders of any
termination of a Loan Combination-Specific Special Servicer or STML Special
Servicer, as applicable, in accordance with
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Section 6.09(d) and appointment of a new Loan Combination-Specific Special
Servicer or STML Special Servicer, as applicable, in accordance with Section
6.09(d).
Any out-of-pocket costs and expenses incurred in connection with the
removal (without cause) of a Loan Combination-Specific Special Servicer or a
STML Special Servicer, as applicable, and the appointment of its replacement,
pursuant to Section 6.09(d), that are not paid by the replacement Loan
Combination-Specific Special Servicer or replacement STML Special Servicer, as
applicable, shall be paid by the Person(s) effecting the removal in accordance
with Section 6.09(d). The rights of any Serviced Loan Combination Controlling
Party to replace the related Loan Combination-Specific Special Servicer under
Section 6.09(d) shall be subject to the provisions of the related Co-Lender
Agreement; and it shall be an additional condition to any such replacement that
such Serviced Loan Combination Controlling Party shall have fulfilled, or caused
the fulfillment of, any conditions precedent to such replacement that are set
forth in the related Co-Lender Agreement.
SECTION 6.10. Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer, the Special Servicer or any Affiliate of either
of them may become the Holder of (or, in the case of a Book-Entry Certificate,
Certificate Owner with respect to) any Certificate with (except as otherwise set
forth in the definition of "Certificateholder") the same rights it would have if
it were not the Master Servicer or the Special Servicer or an Affiliate thereof.
If, at any time during which the Master Servicer or the Special Servicer or an
Affiliate of the Master Servicer or the Special Servicer is the Holder of (or,
in the case of a Book-Entry Certificate, Certificate Owner with respect to) any
Certificate, the Master Servicer or the Special Servicer proposes to take action
(including for this purpose, omitting to take action) that is not expressly
prohibited by the terms hereof and would not, in the Master Servicer's or the
Special Servicer's reasonable, good faith judgment, violate the Servicing
Standard, but that, if taken, might nonetheless, in the Master Servicer's or the
Special Servicer's good faith judgment, be considered by other Persons to
violate the Servicing Standard, then the Master Servicer or the Special Servicer
may (but need not) seek the approval of the Certificateholders to such action by
delivering to the Trustee a written notice that (a) states that it is delivered
pursuant to this Section 6.10, (b) identifies the Percentage Interest in each
Class of Certificates beneficially owned by the Master Servicer or an Affiliate
thereof or the Special Servicer or an Affiliate thereof, as appropriate, and (c)
describes in reasonable detail the action that the Master Servicer or the
Special Servicer proposes to take. The Trustee, upon receipt of such notice,
shall forward it to the Certificateholders (other than the Master Servicer and
its Affiliates or the Special Servicer and its Affiliates, as appropriate),
together with such instructions for response as the Trustee shall reasonably
determine. If at any time Certificateholders holding greater than 50% of the
Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Master Servicer or its Affiliates or the
Special Servicer or its Affiliates, as appropriate) shall have failed to object
in writing (with a copy to the related Serviced Non-Trust Mortgage Loan
Noteholder(s), if a Serviced Loan Combination is involved) to the proposal
described in the written notice, and if the Master Servicer or the Special
Servicer shall act as proposed in the written notice within 30 days, such action
shall be deemed to comply with, but not modify, the Servicing Standard. The
Trustee shall be entitled to reimbursement from the Master Servicer or the
Special Servicer, as applicable, for the reasonable expenses of the Trustee
incurred pursuant to this paragraph. It is not the intent of the foregoing
provision that the Master Servicer or the Special Servicer be permitted to
invoke the procedure set forth herein with respect to routine servicing matters
arising hereunder, but rather only in the case of unusual circumstances.
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SECTION 6.11. Certain Powers of the Controlling Class
Representative and the Class IUU Representative.
(a) The Special Servicer shall notify (in writing) the
Controlling Class Representative (and, if a Split Trust Mortgage Loan is
involved, the Class IUU Representative) of its intention to take any Specially
Designated Servicing Action with respect to any Serviced Mortgage Loan and shall
provide the Controlling Class Representative (and, if a Split Trust Mortgage
Loan is involved, the Class IUU Representative) with all reasonably requested
information with respect thereto. Subject to Section 6.11(b) and the penultimate
paragraph of this Section 6.11(a), the Controlling Class Representative will be
entitled to advise the Special Servicer or the Master Servicer with respect to
any and all Specially Designated Servicing Actions of the Special Servicer
relating to the Serviced Mortgage Loans and any Administered REO Properties;
and, further subject to Section 6.11(b) and the penultimate paragraph of this
Section 6.11(a), the Special Servicer will not be permitted to take (or, if and
to the extent applicable, consent to the Master Servicer's taking) any Specially
Designated Servicing Action with respect to any Serviced Mortgage Loan or
Administered REO Property if the Controlling Class Representative has objected
in writing within ten (10) Business Days of having been notified in writing
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 ten
(10) Business Day period, then the Controlling Class Representative will be
deemed to have approved the taking of the subject action); provided that, if the
Special Servicer determines that failure to take such action would violate the
Servicing Standard, then the Special Servicer may take (or, if and to the extent
applicable, consent to the Master Servicer's taking) any such action without
waiting for the Controlling Class Representative's response; and provided,
further, that the foregoing rights of the Controlling Class Representative shall
not relate to any Serviced Mortgage Loan that is part of, or any Administered
REO Property that relates to, a Serviced Loan Combination, regarding which the
rights and powers of the specified Persons set forth under Section 6.12 are
instead applicable.
In addition, subject to Section 6.11(b) and the next paragraph of
this Section 6.11(a), the Controlling Class Representative may direct the
Special Servicer to take, or to refrain from taking, any actions with respect to
the servicing and/or administration of a Specially Serviced Mortgage Loan or an
Administered REO Property as the Controlling Class Representative may deem
advisable or as to which provision is otherwise made herein; provided that the
foregoing rights of the Controlling Class Representative shall not relate to any
Specially Serviced Mortgage Loan that is part of, or any Administered REO
Property that relates to, a Serviced Loan Combination. Upon reasonable request,
the Special Servicer shall provide the Controlling Class Representative with any
information in such servicer's possession with respect to such matters,
including its reasons for determining to take a proposed action; provided that
such information shall also be provided, in a written format, to the Trustee,
who shall make it available for review pursuant to Section 8.14(b).
Notwithstanding the foregoing, but subject to Section 6.11(b), for
so long as a Class IUU Control Period is in effect with respect to any Split
Trust Mortgage Loan or related REO Property, the Class IUU Representative
(rather than the Controlling Class Representative) shall be entitled to exercise
all of the rights and powers of the Controlling Class Representative specified
in the two preceding paragraphs, including rights to approve or consent to
actions of, to advise and/or to direct the Special Servicer, with respect to,
but solely with respect to, such Split Trust Mortgage Loan or any related REO
Property.
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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, if a Split Trust Mortgage Loan is involved, the Class IUU
Representative) of any release or substitution of collateral for a Serviced
Mortgage Loan that is not part of a Loan Combination even if such release or
substitution is required by the terms of such Serviced Mortgage Loan.
(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection from or by the Controlling Class Representative or the
Class IUU Representative, as applicable, with respect to any Serviced Mortgage
Loan or Administered REO Property, as contemplated by Section 6.11(a), may (and
the Special Servicer and the Master Servicer shall each ignore and act without
regard to any such advice, direction or objection that such servicer has
determined, in its reasonable, good faith judgment, would) require or cause the
Master Servicer or the Special Servicer, as applicable, to violate any provision
of this Agreement (exclusive of Section 6.11(a)) (including such servicer's
obligation to act in accordance with the Servicing Standard), the related loan
documents (including any applicable co-lender and/or intercreditor agreements)
or applicable law (including the REMIC Provisions). Furthermore, the Special
Servicer shall not be obligated to seek approval from the Controlling Class
Representative or the Class IUU Representative, as applicable, pursuant to
Section 6.11(a), for any actions to be taken by the Special Servicer with
respect to the workout or liquidation of any particular Specially Serviced Trust
Mortgage Loan if:
(i) the Special Servicer has, as provided in Section
6.11(a), notified the Controlling Class Representative or the Class IUU
Representative, as appropriate, in writing of various actions that the
Special Servicer proposes to take with respect to the workout or
liquidation of such Specially Serviced Trust Mortgage Loan; and
(ii) for 60 days following the first such notice, the
Controlling Class Representative or the Class IUU Representative, as the
case may be, has objected to all of those proposed actions and has failed
to suggest any alternative actions that the Special Servicer considers to
be consistent with the Servicing Standard.
Also notwithstanding anything herein to the contrary, the provisions
of Section 6.11(a), and the rights and powers of the Controlling Class
Representative provided for in Section 6.11(a), shall not apply to any Serviced
Loan Combination or any related Administered REO Property; provided that this
paragraph is not intended to limit any rights or powers that the Controlling
Class Representative may have under Section 6.12.
(c) The Controlling Class Representative is hereby authorized to
exercise the rights and powers of the Trustee, as holder of the Mortgage Note
for each Outside Serviced Trust Mortgage Loan, under Section 3.02 of the related
Co-Lender Agreement (and any corresponding provisions of the related Outside
Servicing Agreement), including for purposes of exercising, either individually
or together with related Non-Trust Mortgage Loan Noteholder(s), as the case may
be, consent rights, consultation rights, rights to direct servicing and rights
to replace the related Outside Special Servicer; provided that any purchase
option or cure rights may be exercised by the Controlling Class Representative
only in its individual capacity with its own funds. Promptly following the
initial such appointment of a Controlling Class Representative and any
subsequent such appointment of a successor Controlling Class Representative,
with respect to each Outside Serviced Trust Mortgage Loan, the
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Trustee shall inform the related Outside Master Servicer, the related Outside
Special Servicer and the related Non-Trust Mortgage Loan Noteholder(s) (and from
time to time shall ensure that such parties remain similarly informed) that the
Controlling Class Representative is entitled, to the full extent permitted under
the related Co-Lender Agreement, to exercise such rights and powers of the
Trustee, in its capacity as holder of the Mortgage Note for the subject Outside
Serviced Trust Mortgage Loan, under Section 3.02 of the related Co-Lender
Agreement (and any corresponding provisions of the related Outside Servicing
Agreement), and, further, the Trustee shall take such other actions as may be
required under the related Co-Lender Agreement in order to permit the
Controlling Class Representative to exercise such rights and powers. 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 subject Outside Serviced Trust Mortgage Loan. In addition, subject to
Section 7.01(f) and each other section hereof that specifically addresses a
particular matter with respect to any Outside Serviced Trust Mortgage Loan, if
the Trustee is requested to take any action in its capacity as holder of the
Mortgage Note for such Outside Serviced Trust Mortgage Loan, pursuant to the
related Co-Lender Agreement and/or the related Outside Servicing Agreement, then
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, with respect to any Outside Serviced Trust
Mortgage Loan or Outside Administered REO Property, (i) shall not be required to
take any action that relates to directing or approving any servicing related
action under the related Outside Servicing Agreement or the related Outside
Co-Lender Agreement, to the extent that the Controlling Class Representative has
been notified thereof and has failed to provide instructions with respect to
such action within the prescribed time period, and (ii) shall not take any
action that is not permitted under applicable law or the terms of the related
Co-Lender Agreement or the related Outside Servicing Agreement or any action
that is, in the good faith, reasonable discretion of the Trustee, materially
adverse to the interests of the Certificateholders (as a collective whole).
(d) Neither the Controlling Class Representative nor the Class
IUU Representative will have any liability to the Certificateholders for any
action taken, or for refraining from the taking of any action, pursuant to this
Agreement (whether pursuant to this Section 6.11 or otherwise), or for errors in
judgment; provided, however, that neither the Controlling Class Representative
nor the Class IUU Representative will be protected against any liability to any
Controlling Class Certificateholder or Class IUU Certificateholder, as
applicable, that 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 of Certificates; (iii) the Controlling Class Representative does not have
any duties or liability to the Holders of any Class of Certificates other than
the Controlling Class of Certificates; (iv) the Controlling Class Representative
may, and is permitted hereunder to, take actions that favor interests of the
Holders of the Controlling Class of Certificates over the interests of the
Holders of one or more other Classes of Certificates; (v) the Controlling Class
Representative shall not be deemed to have been negligent or reckless, or to
have acted in bad faith or engaged in willful misconduct, by reason of its
having acted solely in the interests of the Holders of the Controlling Class
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of Certificates; 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 of Certificates, and no Certificateholder may take any
action whatsoever against the Controlling Class Representative, any Holder of
the Controlling Class of Certificates or any director, officer, employee, agent
or principal thereof for having so acted. Each Certificateholder acknowledges
and agrees, by its acceptance of its Certificates, that: (i) the Class IUU
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 Class IUU Representative may, and is permitted hereunder
to, act solely in the interests of the Holders of the Class IUU Certificates;
(iii) the Class IUU Representative does not have any duties or liability to the
Holders of any Class of Certificates other than the Class IUU Certificates; (iv)
the Class IUU Representative may, and is permitted hereunder to, take actions
that favor interests of the Holders of the Class IUU Certificates over the
interests of the Holders of one or more other Classes of Certificates; (v) the
Class IUU 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 Class IUU
Certificates; and (vi) the Class IUU Representative shall have no liability
whatsoever for having acted solely in the interests of the Holders of the Class
IUU Certificates, and no Certificateholder may take any action whatsoever
against the Class IUU Representative, any Holder of the Controlling Class of
Certificates or any director, officer, employee, agent or principal thereof for
having so acted.
SECTION 6.12. Certain Matters Regarding the Serviced Loan
Combinations.
(a) Each of the Master Servicer and the Special Servicer, as
applicable, shall notify (in writing and, if applicable, in accordance with the
related Co-Lender Agreement) the Controlling Class Representative, the related
Non-Trust Mortgage Loan Noteholder(s) and, if different, the related Serviced
Loan Combination Controlling Party of its intention to take any Specially
Designated Servicing Action with respect to any Serviced Loan Combination or
related REO Property and shall provide each such party with all reasonably
requested information with respect thereto. Subject to Section 6.12(b), and
further subject to Section 3.01(b), Section 3.01(c) and Section 3.02(b) of the
related Co-Lender Agreement, the applicable Serviced Loan Combination
Controlling Party will be entitled to advise the Special Servicer (in the event
the Special Servicer is authorized under this Agreement to take the subject
action) or the Master Servicer (in the event the Master Servicer is authorized
under this Agreement to take the subject action), as applicable, with respect to
any and all Specially Designated Servicing Actions with respect to a Serviced
Loan Combination or any related REO Property; and, further subject to Section
6.12(b) of this Agreement and Section 3.02(b) of the related Co-Lender
Agreement, neither the Master Servicer nor the Special Servicer shall be
permitted to take (or, in the case of the Special Servicer, if and when
appropriate hereunder, to consent to the Master Servicer's taking) any of the
related Specially Designated Servicing Actions with respect to a Serviced Loan
Combination or any related REO Property if the applicable Serviced Loan
Combination Controlling Party has objected in writing within ten (10) Business
Days of the applicable Serviced Loan Combination Controlling Party having been
notified in writing thereof and having been provided with all reasonably
requested information with respect thereto (it being understood and agreed that
if such written objection to the subject action on the part of the applicable
Serviced Loan Combination Controlling Party has not been received by the Master
Servicer or the Special Servicer, as applicable, within such ten (10) Business
Day period, then the applicable Serviced Loan Combination Controlling Party will
be deemed to have approved of the subject action); provided that, if the Special
Servicer or the Master Servicer, as applicable, determines that immediate action
is necessary to protect the interests
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of the Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s) (as a collective whole), then the Special Servicer or the Master
Servicer, as the case may be, may take (or, in the case of the Special Servicer,
if and when appropriate hereunder, may consent to the Master Servicer's taking)
any such action without waiting for the applicable Serviced Loan Combination
Controlling Party's response; and provided, further, that, under circumstances
where the Controlling Class Representative is not the applicable Serviced Loan
Combination Controlling Party, nothing herein shall be intended to limit the
right of the Controlling Class Representative to consult with the Master
Servicer or the Special Servicer, as applicable, regarding any Serviced Loan
Combination or related REO Property, and during the ten (10) Business Day period
referred to above (or such shorter period as is contemplated by the immediately
preceding proviso), the Master Servicer or the Special Servicer, as applicable,
shall consult with the Controlling Class Representative regarding its views as
to the proposed action (but may, in its sole discretion, reject any advice,
objection or direction from the Controlling Class Representative) and, upon
reasonable request, the Master Servicer or the Special Servicer, as applicable,
shall provide the Controlling Class Representative with any information in such
servicer's possession with respect to such matters, including its reasons for
determining to take a proposed action.
In addition, subject to Section 6.12(b), and further subject to
Section 3.01(b), Section 3.01(c) and Section 3.02(b) of the related Co-Lender
Agreement, if and to the extent provided for under the subject Co-Lender
Agreement, the applicable Serviced Loan Combination Controlling Party may direct
the Special Servicer or the Master Servicer, as appropriate based on their
respective duties hereunder, to take, or to refrain from taking, such actions
with respect to each Serviced Loan Combination or any related REO Property as
the applicable Serviced Loan Combination Controlling Party may deem consistent
with the related Co-Lender Agreement or as to which provision is otherwise made
in the related Co-Lender Agreement. Upon reasonable request, the Special
Servicer or the Master Servicer, as appropriate based on their respective duties
hereunder, shall, with respect to each Serviced Loan Combination or any related
REO Property, provide the applicable Serviced Loan Combination Controlling Party
with any information in such servicer's possession with respect to such matters,
including its reasons for determining to take a proposed action; provided that
such information shall also be provided, in a written format, to the Trustee who
shall make it available for review pursuant to Section 8.14(b). Promptly
following the Special Servicer or the Master Servicer receiving any direction
with respect to a Serviced Loan Combination or any related REO Property from the
applicable Serviced Loan Combination Controlling Party as contemplated by this
paragraph, and in any event prior to acting on such direction, such servicer
shall notify the Trustee, the Controlling Class Representative (if it is not the
applicable Serviced Loan Combination Controlling Party) and each related
Serviced Non-Trust Mortgage Loan Noteholder (if neither it nor its designee is
the applicable Serviced Loan Combination Controlling Party).
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 related Serviced Non-Trust
Mortgage Loan Noteholder, the Controlling Class Representative and any other
Person that may be the applicable Serviced Loan Combination Controlling Party of
any release or substitution of collateral for a Serviced Loan Combination even
if such release or substitution is required by the terms of such Serviced Loan
Combination.
(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection with respect to any Serviced Loan Combination or related
REO Property from or by the applicable
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Serviced Loan Combination Controlling Party, as contemplated by Section 6.12(a),
may (and the Special Servicer and the Master Servicer shall each ignore and act
without regard to any such advice, direction or objection that the Special
Servicer or the Master Servicer, as applicable, has determined, in its
reasonable, good faith judgment, will) require, cause or permit such servicer to
violate any provision of the related Co-Lender Agreement or this Agreement
(exclusive of Section 6.12(a)) (including such servicer's obligation to act in
accordance with the Servicing Standard), the related loan documents or
applicable law or result in an Adverse REMIC Event or an Adverse Grantor Trust
Event. Furthermore, neither the Special Servicer nor the Master Servicer shall
be obligated to seek approval from the applicable Serviced Loan Combination
Controlling Party for any actions to be taken by such servicer with respect to
the workout or liquidation of any Serviced Loan Combination if: (i) such
servicer has, as provided in Section 6.12(a), notified the applicable Serviced
Loan Combination Controlling Party, in writing of various actions that such
servicer proposes to take with respect to the workout or liquidation of such
Serviced Loan Combination; and (ii) for 60 days following the first such notice,
the applicable Serviced Loan Combination Controlling Party has objected to all
of those proposed actions and has failed to suggest any alternative actions that
such servicer considers to be consistent with the Servicing Standard.
Also notwithstanding the foregoing, in the case of the 000 Xxxxxxx
Xxxxxx Loan Combination, if the 000 Xxxxxxx Xxxxxx Noteholders (exclusive of the
000 Xxxxxxx Xxxxxx Note B Non-Trust Mortgage Loan Noteholder) or their
respective representatives are together acting as the related Serviced Loan
Combination Controlling Party, and if those 000 Xxxxxxx Xxxxxx Noteholders--or
their respective representatives--have not, within the requisite time period
provided for in the related Co-Lender Agreement, executed a mutual consent with
respect to any advice, consent or direction regarding a specified servicing
action, the Special Servicer or Master Servicer, as applicable, will implement
the servicing action that it deems to be in accordance with the Servicing
Standard, and the decision of the Special Servicer or the Master Servicer, as
applicable, will be binding on all such parties.
(c) The Serviced Loan Combination Controlling Party for a
Serviced Loan Combination will not have any liability to the Trust or the
Certificateholders, in the case of a related Serviced Non-Trust Mortgage Loan
Noteholder or its designee acting in such capacity, or to the related Serviced
Non-Trust Mortgage Loan Noteholder(s), in the case of the Controlling Class
Representative acting in such capacity, for any action taken, or for refraining
from the taking of any action, in good faith pursuant to this Agreement or the
related Co-Lender Agreement, or for errors in judgment; provided, however, that
such Serviced Loan Combination Controlling Party will not be protected against
any liability which would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence in the performance of duties or by reason of negligent
disregard of obligations or duties.
(d) The Serviced Loan Combination Directing Lender for a
Serviced Loan Combination may, in accordance with Section 3.02(d) of the related
Co-Lender Agreement, designate a representative to exercise its rights and
powers under Section 3.02 of the related Co-Lender Agreement and this Section
6.12 or otherwise under the related Co-Lender Agreement and this Agreement. In
that regard, upon the occurrence and continuance of a Serviced Loan Combination
Change of Control Event (if applicable) with respect to a Serviced Loan
Combination or related REO Property, and/or if and for so long as the Trust, as
holder of the Serviced Combination Trust Mortgage Loan in such Serviced Loan
Combination (or any successor REO Trust Mortgage Loan with respect thereto), is
or may be part of, as
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applicable, the applicable Serviced Loan Combination Directing Lender, then the
Controlling Class Representative (i) is hereby designated as the representative
of the Trust for purposes of or in connection with exercising the rights and
powers of the applicable Serviced Loan Combination Directing Lender or Serviced
Loan Combination Controlling Party, as applicable, under Section 3.02 of the
related Co-Lender Agreement and (ii) shall be (or, if applicable in the case of
the 000 Xxxxxxx Xxxxxx Loan Combination, may be part of) the applicable Serviced
Loan Combination Controlling Party hereunder. The Trustee shall take such
actions as are necessary or appropriate to make such designation effective in
accordance with Section 3.02(d) of the related Co-Lender Agreement, including
providing notices to the related Serviced Non-Trust Mortgage Loan Noteholder(s).
The Master Servicer shall provide the parties to this Agreement with notice of
the occurrence of a Serviced Loan Combination Change of Control Event (if
applicable) with respect to any Serviced Loan Combination or related REO
Property, promptly upon becoming aware thereof.
(e) Each related Serviced 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 a Serviced Loan Combination or any related REO Property by any other party
hereto. Subject to the related Co-Lender Agreement, any such other party shall
be permitted to require payment of a sum sufficient to cover the reasonable
costs and expenses of providing such copies in accordance with this Section
6.12(e).
(f) Notwithstanding anything herein to the contrary, any
appointment of a successor Special Servicer hereunder, insofar as it affects any
Serviced Loan Combination or any related REO Property, will be subject to any
consultation rights of the related Serviced Non-Trust Mortgage Loan
Noteholder(s) expressly provided for under the related Co-Lender Agreement.
(g) The parties hereto recognize and acknowledge, in the case of
each Serviced Loan Combination, the rights of each related Serviced Non-Trust
Mortgage Loan Noteholder under the related Co-Lender Agreement, including: (i)
in the case of each Serviced A/B Loan Combination, the right to purchase the
related Serviced Combination Trust Mortgage Loan under the circumstances
contemplated by Section 4.03 of the related Co-Lender Agreement; and (ii) in the
case of each of the 000 Xxxxxxx Xxxxxx Loan Combination and the Triangle Town
Center Loan Combination, the right to exercise cure rights with respect to the
related Serviced Combination Trust Mortgage Loan. In connection with the
foregoing, the Master Servicer (if the subject Serviced Combination Trust
Mortgage Loan is a Performing Serviced Mortgage Loan) or the Special Servicer
(if the subject Serviced Combination Trust Mortgage Loan is a Specially Serviced
Mortgage Loan), as applicable, shall take all actions required on the part of
the holder of the subject Serviced Combination Trust Mortgage Loan or
contemplated to be performed by a servicer, in any case, under the related
Co-Lender Agreement, including the delivery of all necessary notices on a timely
basis and/or the calculation of the applicable purchase price, as well as all
other actions necessary and appropriate to effect the transfer of the subject
Serviced Combination Trust Mortgage Loan (in connection with the purchase
thereof under the related Co-Lender Agreement) to the applicable Serviced
Non-Trust Mortgage Loan Noteholder or its designee and/or to permit the
applicable Serviced Non-Trust Mortgage Loan Noteholder to effectuate a cure of
any defaults under the subject Serviced Combination Non-Trust Mortgage Loan.
Further in connection with the foregoing, with respect to any Serviced Loan
Combination as to which the related Co-Lender Agreement provides for cure rights
on the part of the related Non-Trust Mortgage Loan Noteholder, the Master
Servicer (if the subject Serviced Combination Trust Mortgage Loan is a
Performing Serviced Mortgage Loan) or the
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Special Servicer (if the subject Serviced Combination Trust Mortgage Loan is a
Specially Serviced Mortgage Loan), as applicable, shall notify such Non-Trust
Mortgage Loan Noteholder (i) of any event of default with respect to the subject
Serviced Loan Combination that is susceptible of cure under the related
Co-Lender Agreement, promptly (and, in any event, within two Business Days)
after the applicable servicer has actual knowledge thereof (although such notice
is not required to state whether such event of default is susceptible of cure
thereunder), and (ii) of any material event of default (although such notice is
not required to state whether such event of default is material).
(h) The Master Servicer (if the related Serviced Combination
Trust Mortgage Loan is a Performing Serviced Mortgage Loan) or the Special
Servicer (if the related Serviced Combination Trust Mortgage Loan is a Specially
Serviced Mortgage Loan), as applicable, shall take all actions relating to the
servicing and/or administration of, and the preparation and delivery of reports
and other information with respect to, each Serviced Loan Combination or any
related REO Property required to be performed by the holder of the related
Serviced Combination Trust Mortgage Loan or contemplated to be performed by a
servicer, in any case pursuant to the related Co-Lender Agreement and/or any
related mezzanine loan intercreditor agreement.
(i) For purposes of determining whether a Serviced Loan
Combination Change of Control Event has occurred, as well as the identity of the
Serviced Loan Combination Directing Lender, with respect to any Serviced Loan
Combination, any Appraisal Reduction Amount that exists with respect to a
Serviced Loan Combination shall be allocated: (i) in the case of a Serviced A/B
Loan Combination, first, to the related Serviced Note B Non-Trust Mortgage Loan
(or any successor REO Mortgage Loan with respect thereto), up to an aggregate
amount equal to the then unpaid principal balance of the related Serviced
Non-Trust Mortgage Loan (or any successor REO Mortgage Loan with respect
thereto), together with all accrued and unpaid interest thereon (other than
Default Interest), and then, to the related Serviced Combination Trust Mortgage
Loan (or any successor REO Trust Mortgage Loan with respect thereto); and (ii)
in the case of the 000 Xxxxxxx Xxxxxx Loan Combination, first, to the 000
Xxxxxxx Xxxxxx Note B Non-Trust Mortgage Loan (or any successor REO Mortgage
Loan with respect thereto), up to an aggregate amount equal to the then unpaid
principal balance of the 000 Xxxxxxx Xxxxxx Note B Non-Trust Mortgage Loan (or
any successor REO Mortgage Loan with respect thereto), together with all accrued
and unpaid interest thereon (other than Default Interest), and then, to the 000
Xxxxxxx Xxxxxx Trust Mortgage Loan and the 000 Xxxxxxx Xxxxxx Note A-2 Non-Trust
Mortgage Loan (or any successor REO Mortgage Loans with respect thereto), on a
pro rata basis by principal balance.
(j) Notwithstanding anything herein to the contrary, if this
Agreement provides for obtaining a rating confirmation with respect to any
Specially Designated Non-Trust Mortgage Loan Securities in connection with any
action hereunder, no party hereto shall obtain such rating confirmation unless
it is reasonably assured that the cost of such rating confirmation (or the
applicable share thereof in accordance with the related Co-Lender Agreement)
will be borne (without right of reimbursement from the Trust) by the related
Non-Trust Mortgage Loan Securitization Trust or by another third party other
than the Trust.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default and Outside Servicer Defaults.
(a) "Event of Default", wherever used herein, means any one of
the following events:
(i) any failure by the Master Servicer to deposit into
a Custodial Account, any amount required to be so deposited by it under
this Agreement, which failure continues unremedied for one (1) Business
Day following the date on which a deposit was first required to be made;
or
(ii) any failure by the Special Servicer to deposit into
an REO Account or to deposit into, or to remit to the Master Servicer for
deposit into, a Custodial Account, any amount required to be so deposited
or remitted under this Agreement, which failure continues unremedied for
one (1) Business Day following the date on which a deposit or remittance
was first required to be made; or
(iii) any failure by the Master Servicer to deposit into,
or remit to the Trustee for deposit into, the Collection Account, any
amount (including any P&I Advances and any amounts to cover Prepayment
Interest Shortfalls) required to be so deposited or remitted by it under
this Agreement, which failure continues unremedied until 11:00 a.m. (New
York City time) on the applicable Distribution Date, or any failure by the
Master Servicer to make, on a timely basis, any required payment to any
Serviced Non-Trust Mortgage Loan Noteholder, which failure continues
unremedied until 11:00 a.m. (New York City time) on the Business Day next
following the date on which such payment was first required to be made; or
(iv) any failure by the Master Servicer or the Special
Servicer to timely make any Servicing Advance required to be made
hereunder, which Servicing Advance remains unmade by it for a period of
three (3) Business Days following the date on which notice of such failure
shall have been given to the Master Servicer or the Special Servicer, as
the case may be, by any other party hereto; or
(v) any failure on the part of the Master Servicer or
the Special Servicer duly to observe or perform in any material respect
any other covenants or agreements on the part of the Master Servicer or
the Special Servicer, as the case may be, contained in this Agreement,
which failure either (A) in the case of any such failure other than a
failure referred to in clause (v)(B) below, continues unremedied for a
period of 30 days (or 15 days in the case of payment of insurance
premiums) after the date on which written notice of the subject failure,
requiring the same to be remedied, shall have been given to the Master
Servicer or the Special Servicer, as the case may be, by any other party
hereto or to the Master Servicer or the Special Servicer, as the case may
be (with a copy to each other party hereto), by a Serviced Non-Trust
Mortgage Loan Noteholder (if affected thereby) or by the Holders of
Certificates entitled to at least 25% of the Voting Rights, provided,
however, that with respect to any such failure (other than a failure
referred to in clause (v)(B) below) 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
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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 the subject failure within the initial 30-day (or, if applicable,
15-day) period and has provided the Trustee and any affected Serviced
Non-Trust Mortgage Loan Noteholder with an Officer's Certificate
certifying that it has diligently pursued, and is diligently continuing to
pursue, a full cure, or (B) in the case of the failure to deliver to the
Trustee the Annual Statement of Compliance, the Annual Assessment Report
and/or the Annual Attestation Report with respect to the Master Servicer
(or any Additional Servicer or Sub-Servicing Function Participant, as
applicable, engaged thereby that is not identified on Exhibit K hereto) or
the Special Servicer (or any Additional Servicer or Sub-Servicing Function
Participant, as applicable, engaged thereby), as applicable, pursuant to
Section 3.13 or Section 3.14, as applicable, which is required to be part
of or incorporated in a Subsequent Exchange Act Report required to be
filed with respect to the Trust pursuant to the Exchange Act and this
Agreement, continues unremedied beyond 5:00 p.m. (New York City time) on
the second Business Day after the date on which Servicer Notice of the
subject failure has been given to the Master Servicer or the Special
Servicer, as the case may be, by or on behalf of any other party hereto;
in accordance with Section 3.13 or Section 3.14, as applicable; or
(vi) any breach on the part of the Master Servicer or the
Special Servicer of any of its representations or warranties contained in
this Agreement that materially and adversely affects the interests of any
Class of Certificateholders or any Serviced Non-Trust Mortgage Loan
Noteholder and which breach continues unremedied for a period of 30 days
after the date on which written notice of such breach, requiring the same
to be remedied, shall have been given to the Master Servicer or the
Special Servicer, as the case may be, by any other party hereto or to the
Master Servicer or the Special Servicer, as the case may be (with a copy
to each other party hereto), by a Serviced Non-Trust Mortgage Loan
Noteholder (if affected thereby) or by the Holders of Certificates
entitled to at least 25% of the Voting Rights, provided, however, that
with respect to any such breach which is not curable within such 30-day
period, the Master Servicer or the Special Servicer, as the case may be,
shall have an additional cure period of 30 days so long as the Master
Servicer or the Special Servicer, as the case may be, has commenced to
cure such breach within the initial 30-day period and has provided the
Trustee and any affected Serviced Non-Trust Mortgage Loan Noteholder with
an Officer's Certificate certifying that it has diligently pursued, and is
diligently continuing to pursue, a full cure; or
(vii) a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises in an
involuntary case under any present or future federal or state bankruptcy,
insolvency or similar law for the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Master Servicer or the Special Servicer and
such decree or order shall have remained in force undischarged,
undismissed or unstayed for a period of 60 days; or
(viii) the Master Servicer or the Special Servicer shall
consent to the appointment of a conservator, receiver, liquidator, trustee
or similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating
to it or of or relating to all or substantially all of its property; or
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(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) the Master Servicer or the Special Servicer is
removed from S&P's Select Servicer List as a U.S. Commercial Mortgage
Master Servicer or a U.S. Commercial Mortgage Special Servicer, as the
case may be, and is not reinstated within 60 days, and the ratings of one
or more Classes of Certificates or one or more classes of Specially
Designated Non-Trust Mortgage Loan Securities by S&P are qualified,
downgraded or withdrawn in connection with the removal; or
(xi) the Master Servicer fails to be rated at least
"CMS3" by Fitch as a master servicer or the Special Servicer fails to be
rated at least "CSS3" by Fitch as a special servicer, and in either case
that rating is not restored within 60 days after the subject downgrade or
withdrawal; or
(xii) one or more ratings assigned by Fitch to one or more
Classes of the Certificates or one or more classes of Specially Designated
Non-Trust Mortgage Loan Securities have been qualified, downgraded or
withdrawn, or otherwise made the subject of a "negative" credit watch that
remains in effect for at least 60 days, which action Fitch has determined,
and provided notification in writing or electronically, including by
public announcement, is solely or in material part a result of the Master
Servicer or Special Servicer, as the case may be, acting in such capacity;
or
(xiii) at any time that any Specially Designated Non-Trust
Mortgage Loan Securities are rated by Xxxxx'x, a Servicing Officer of the
Master Servicer or the Special Servicer, as the case may be, obtains
actual knowledge that one or more ratings assigned by Xxxxx'x to the
Certificates or to any Specially Designated Non-Trust Mortgage Loan
Securities have been qualified, downgraded or withdrawn, or otherwise made
the subject of a "negative" credit watch that remains in effect for at
least 60 days, which action Xxxxx'x has determined, and provided
notification in writing or electronically, including by public
announcement, is solely or in material part a result of the Master
Servicer or Special Servicer, as the case may be, acting in such capacity.
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 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
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Mortgage Loan or any interest therein; provided that the Master Servicer may not
be terminated solely for an Event of Default that affects only a Serviced
Non-Trust Mortgage Loan Noteholder or any class of Specially Designated
Non-Trust Mortgage Loan Securities (except that a Sub-Servicer may be appointed
in accordance with Section 7.01(d)); and provided, further, that, except as
provided in Section 7.01(d), the Special Servicer may not be terminated solely
for an Event of Default that affects only a Serviced Non-Trust Mortgage Loan
Noteholder or any class of Specially Designated Non-Trust Mortgage Loan
Securities. From and after the receipt by the Defaulting Party of such written
notice of termination, subject to Section 7.01(c), all authority and power of
the Defaulting Party under this Agreement, whether with respect to the
Certificates (other than as a holder of any Certificate), the Trust Fund, the
Serviced Non-Trust Mortgage Loans (other than as a holder thereof or any
interest therein) or otherwise, shall pass to and be vested in the Trustee
pursuant to and under this section, and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of and at the
expense of the Defaulting Party, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Trust Mortgage Loans, the Serviced Non-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 ten (10) Business Days subsequent to its receipt
of the notice of termination) provide the Trustee with all documents and
records, including those in electronic form, requested thereby to enable the
Trustee to assume the Master Servicer's or Special Servicer's, as the case may
be, functions hereunder, and shall cooperate with the Trustee in effecting the
termination of the Master Servicer's or Special Servicer's, as the case may be,
responsibilities and rights hereunder, including (i) if the Master Servicer is
the Defaulting Party, the immediate transfer to the Trustee or a successor
Master Servicer for administration by it of all cash amounts that shall at the
time be or should have been credited by the Master Servicer to a Custodial
Account, the Collection Account, the Defeasance Deposit Account, a Servicing
Account or a Reserve Account or that are thereafter received by or on behalf of
it with respect to any Trust Mortgage Loan, any Serviced Non-Trust Mortgage Loan
or, to the extent it relates to the foregoing, any REO Property or (ii) if the
Special Servicer is the Defaulting Party, the transfer within two (2) Business
Days to the Trustee or a successor Special Servicer for administration by it of
all cash amounts that shall at the time be or should have been credited by the
Special Servicer to an REO Account, a Custodial Account, a Servicing Account or
a Reserve Account or should have been delivered to the Master Servicer or that
are thereafter received by or on behalf of it with respect to any Trust Mortgage
Loan, any Serviced Non-Trust Mortgage Loan or, to the extent it relates to the
foregoing, any REO Property; provided, however, that the Master Servicer and the
Special Servicer each shall, if terminated pursuant to this Section 7.01(b),
continue to be entitled to receive all amounts accrued or owing to it under this
Agreement on or prior to the date of such termination, whether in respect of
Advances or otherwise, and it shall continue to be entitled to the benefits of
Section 6.03 notwithstanding any such termination. Any costs 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
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thereof or unless notice of any event which is in fact such an Event of Default
is received by the Trustee and such notice references the Certificates, the
Trust Fund or this Agreement.
(c) In the case of an Adverse Rating Event or prospective
Adverse Rating Event that has resulted in or may give rise to an Event of
Default under Section 7.01(a)(x), (xii) or (xiii) in respect of the Master
Servicer or the Special Servicer and of which the Trustee has notice, the
Trustee shall, promptly following its receipt of notice thereof, provide written
notice thereof to the Master Servicer or the Special Servicer, as applicable.
Notwithstanding Section 7.01(b), if the Master Servicer receives a notice of
termination under Section 7.01(b) solely due to an Event of Default under
Section 7.01(a)(x), (xi), (xii) or (xiii), and if the terminated Master Servicer
provides the Trustee with the appropriate "request for proposal" materials
within five (5) Business Days following such termination, then the Master
Servicer shall continue to serve in such capacity hereunder until a successor
thereto is selected in accordance with this Section 7.01(c) or the expiration of
45 days from the Master Servicer's receipt of the notice of termination,
whichever occurs first. Upon receipt of such "request for proposal" materials
from the terminated Master Servicer, the Trustee shall promptly thereafter
(using such "request for proposal" materials) solicit good faith bids for the
rights to master service the Serviced Mortgage Loans and, to the extent
applicable, the Outside Serviced Trust Mortgage Loans under this Agreement from
at least three (3) Persons qualified to act as a successor Master Servicer
hereunder in accordance with Section 6.02 and Section 7.02 (any such Person so
qualified, a "Qualified Bidder") or, if three (3) Qualified Bidders cannot be
located, then from as many Persons as the Trustee can determine are Qualified
Bidders; provided that at the Trustee's request, the terminated Master Servicer
shall supply the Trustee with the names of Persons from whom to solicit such
bids; and provided, further, that the Trustee shall not be responsible if less
than three (3) or no Qualified Bidders submit bids for the right to master
service the Serviced Mortgage Loans and, to the extent applicable, the Outside
Serviced Trust Mortgage Loans under this Agreement. The bid proposal shall
require any Successful Bidder (as defined below), as a condition of such bid, to
enter into this Agreement as successor Master Servicer, and to agree to be bound
by the terms hereof, within 45 days after the receipt of notice of termination
by the terminated Master Servicer. The Trustee shall solicit bids on the basis
of both: (i) such successor Master Servicer (x) retaining all existing
Sub-Servicers to continue the primary servicing of the Serviced Mortgage Loans
pursuant to the terms of the respective Sub-Servicing Agreements and (y)
entering into a Sub-Servicing Agreement with the terminated Master Servicer
under which the terminated Master Servicer would sub-service each of the
Serviced Mortgage Loans not then subject to a Sub-Servicing Agreement at a
sub-servicing fee rate per annum equal to the related Master Servicing Fee Rate
minus, in the case of each Trust Mortgage Loan serviced, 0.01% per annum (each,
a "Servicing-Retained Bid"); and (ii) terminating each existing Sub-Servicing
Agreement and Sub-Servicer that it is permitted to terminate in accordance with
Section 3.22 (each, a "Servicing-Released Bid"). The Trustee shall select the
Qualified Bidder with the highest cash Servicing-Retained Bid (or, if none, the
highest cash Servicing Released Bid) (the "Successful Bidder") to act as
successor Master Servicer hereunder. The Trustee shall direct the Successful
Bidder to enter into this Agreement as successor Master Servicer pursuant to the
terms hereof (and, if the successful bid was a Servicing-Retained Bid, to enter
into a Sub-Servicing Agreement with the terminated Master Servicer as
contemplated above) no later than 45 days after the receipt of notice of
termination by the terminated Master Servicer.
Upon the assignment and acceptance of the master servicing rights
hereunder to and by the Successful Bidder, the Trustee shall remit or cause to
be remitted (i) if the successful bid was a Servicing-Retained Bid, to the
terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid
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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 Outside Serviced Trust Mortgage Loans, which expenses are not
reimbursed to the party that incurred such expenses pursuant to the preceding
paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 45 days after the terminated Master Servicer
received written notice of termination or no Successful Bidder was identified
within such 45-day period, then the terminated Master Servicer shall reimburse
the Trustee for all reasonable "out-of-pocket" expenses incurred by the Trustee
in connection with such bid process and the Trustee shall have no further
obligations under this Section 7.01(c). 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: (1) affects a
Serviced Non-Trust Mortgage Loan Noteholder or any class of Specially Designated
Non-Trust Mortgage Loan Securities, and the Master Servicer is not otherwise
terminated in accordance with Section 7.01(b), then the Master Servicer may not
be terminated by or at the direction of the related Serviced Non-Trust Mortgage
Loan Noteholder, or (2) affects solely a Serviced Non-Trust Mortgage Loan
Noteholder or any class of Specially Designated Non-Trust Mortgage Loan
Securities, then the Master Servicer may not be terminated by the Trustee;
provided, however, in the case of (1) or (2), at the request of such affected
Serviced Non-Trust Mortgage Loan Noteholder, subject to the terms of the related
Co-Lender Agreement the Trustee shall require the Master Servicer to appoint,
within 30 days of the Trustee's request, a Sub-Servicer (or, if the related
Serviced Loan Combination is currently being sub-serviced, to replace, within 30
days of the Trustee's request, the then-current Sub-Servicer with a new
Sub-Servicer) with respect to the related Serviced Loan Combination. In
connection with the appointment of a Sub-Servicer in accordance with this
Section 7.01(d), the Master Servicer shall obtain, at its own expense, written
confirmation from each Rating Agency (and, if applicable, Moody's) that such
appointment will not result in an Adverse Rating Event with respect to any Class
of Certificates or, if the subject Serviced Loan Combination includes a
Specially Designated Securitized Non-Trust Mortgage Loan (or any successor REO
Mortgage Loan with respect thereto), any related class of Specially Designated
Non-Trust Mortgage Loan Securities rated by such rating agency. The related
Sub-Servicing Agreement shall provide that any Sub-Servicer appointed 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 this
Agreement with respect to the subject Serviced Loan Combination, except that the
Master Servicer shall be entitled to retain that portion of the Master Servicing
Fee for the Trust Mortgage Loan or REO Trust Mortgage Loan included in the
subject Serviced Loan Combination that accrues at a rate equal to 0.01% per
annum. Such Sub-Servicing Agreement shall also provide that such Sub-Servicer
shall agree to become the master servicer under a separate servicing agreement
(as contemplated by the related Co-Lender Agreement) in the event that the
subject Serviced Loan Combination is no longer to be serviced and administered
hereunder, which separate servicing agreement shall contain servicing and
administration, limitation of liability, indemnification and servicing
compensation provisions substantially similar to the corresponding provisions of
this Agreement, except for the fact that the subject Serviced Loan Combination
and the related Mortgaged Property shall be the sole assets serviced and
administered thereunder and the sole
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source of funds thereunder. If any Sub-Servicer appointed in accordance with
this Section 7.01(d) shall at any time resign or be terminated, then (subject to
the related Co-Lender Agreement) the Master Servicer shall be required to
promptly appoint a substitute Sub-Servicer, which appointment shall not result
in an Adverse Rating Event with respect to any Class of Certificates or, if the
subject Serviced Loan Combination includes a Specially Designated Securitized
Non-Trust Mortgage Loan (or any successor REO Mortgage Loan with respect
thereto), any related class of Specially Designated Non-Trust Mortgage Loan
Securities rated by either Rating Agency or, if applicable, Moody's (as
evidenced in a writing obtained by the Master Servicer, at its own expense, from
each applicable rating agency). In the event that a successor Master Servicer is
acting hereunder and such 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
Serviced Non-Trust Mortgage Loan Noteholder, and the Special Servicer is not
otherwise terminated in accordance with Section 7.01(b), then such Serviced
Non-Trust Mortgage Loan Noteholder may require the Trustee to terminate the
duties and obligations of the Special Servicer with respect to the related
Serviced Loan Combination only, but as to no other Serviced Mortgage Loan; and,
in such event, subject to any applicable consultation rights of any particular
related Serviced Non-Trust Mortgage Loan Noteholder under the related Co-Lender
Agreement, the appropriate party shall appoint in accordance with Section 6.09
(or, in the event of the failure of such party to so appoint, the Trustee shall
appoint in accordance with Section 7.02), within 30 days of such Serviced
Non-Trust Mortgage Loan Noteholder's request, a replacement special servicer
with respect to the subject Serviced Loan Combination. In connection with the
appointment of a replacement special servicer with respect to the subject
Serviced Loan Combination at the request of a related Serviced Non-Trust
Mortgage Loan Noteholder in accordance with this Section 7.01(d), the Trustee
shall obtain written confirmation from each Rating Agency (and, if applicable,
Moody's) that such appointment will not result in an Adverse Rating Event with
respect to any Class of Certificates or, if the subject Serviced Loan
Combination includes a Specially Designated Securitized Non-Trust Mortgage Loan
(or any successor REO Mortgage Loan with respect thereto), any related class of
Specially Designated Non-Trust Mortgage Loan Securities rated by such rating
agency (such rating confirmation to be an expense of the terminated Special
Servicer or, if not paid thereby, an expense of the requesting Serviced
Non-Trust Mortgage Loan Noteholder). Any replacement special servicer appointed
at the request of a Serviced Non-Trust Mortgage Loan Noteholder in accordance
with this Section 7.01(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 subject Serviced Loan Combination. Any replacement special
servicer appointed at the request of a Serviced Non-Trust Mortgage Loan
Noteholder in accordance with this Section 7.01(d) hereby agrees to become, upon
request, the special servicer under a separate servicing agreement (as
contemplated by the related Co-Lender Agreement) in the event that the subject
Serviced Loan Combination is no longer to be serviced and administered
hereunder, which separate servicing agreement shall contain servicing and
administration, limitation of liability, indemnification and servicing
compensation provisions substantially similar to the corresponding provisions of
this Agreement, except for the fact that the subject Serviced Loan Combination
and the related Mortgaged Property shall be the sole assets serviced and
administered thereunder and the sole source of funds thereunder. If any
replacement special servicer appointed at the request of a Serviced Non-Trust
Mortgage Loan Noteholder in accordance with this Section 7.01(d)
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shall at any time resign or be terminated, then (subject to any applicable
consultation rights of any particular related Serviced Non-Trust Mortgage Loan
Noteholder under the related Co-Lender Agreement) the appropriate party in
accordance with Section 6.09 (or the Trustee in accordance with Section 7.02, if
such party fails to do so) shall be required to promptly appoint a substitute
replacement special servicer, which appointment shall not result in an Adverse
Rating Event (as evidenced in writing by each Rating Agency and, if applicable,
Moody's) with respect to any Class of Certificates or, if the subject Serviced
Loan Combination includes a Specially Designated Securitized Non-Trust Mortgage
Loan, with respect to any related class of Specially Designated Non-Trust
Mortgage Loan Securities.
In no event shall any waiver of an Event of Default pursuant to
Section 7.04 affect the rights of any Serviced Non-Trust Mortgage Loan
Noteholder under this Section 7.01(d).
(e) If a replacement special servicer is appointed with respect
to a Serviced Loan Combination at the request of a related Serviced Non-Trust
Mortgage Loan Noteholder in accordance with Section 7.01(d) or any appropriate
party in accordance with Section 6.09(d) (any such replacement special servicer,
a "Loan Combination-Specific Special Servicer"), such that there are multiple
parties acting as Special Servicer hereunder, then, unless the context clearly
requires otherwise: (i) when used in the context of imposing duties and
obligations on the Special Servicer hereunder or the performance of such duties
and obligations, the term "Special Servicer" shall mean the related Loan
Combination-Specific Special Servicer, insofar as such duties and obligations
relate to a Serviced Loan Combination as to which a Loan Combination-Specific
Special Servicer has been appointed, and shall mean the General Special Servicer
(as defined below), in all other cases (provided that, in Section 3.13, Section
3.14 and Section 3.15, the term "Special Servicer" shall mean each of the Loan
Combination-Specific Special Servicer(s) and the General Special Servicer); (ii)
when used in the context of identifying the recipient of any information, funds,
documents, instruments and/or other items, the term "Special Servicer" shall
mean the related Loan Combination-Specific Special Servicer, insofar as such
information, funds, documents, instruments and/or other items relate to a
Serviced Loan Combination as to which a Loan Combination-Specific Special
Servicer has been appointed, and shall mean the General Special Servicer, in all
other cases; (iii) when used in the context of granting the Special Servicer the
right to purchase Specially Serviced Trust Mortgage Loans pursuant to Section
3.18, the term "Special Servicer" shall mean the related Loan
Combination-Specific Special Servicer, if such Specially Serviced Trust Mortgage
Loan is a Serviced Combination Trust Mortgage Loan as to which a Loan
Combination-Specific Special Servicer has been appointed, and shall mean the
General Special Servicer, in all other cases; (iv) when used in the context of
granting the Special Servicer the right to purchase all of the Trust Mortgage
Loans and any REO Properties remaining in the Trust Fund pursuant to Section
9.01, the term "Special Servicer" shall mean the General Special Servicer only;
(v) when used in the context of the Special Servicer being replaced, pursuant to
Section 6.09(a), by the Majority Controlling Class Certificateholder(s), the
term "Special Servicer" shall mean the General Special Servicer or any Loan
Combination-Specific Special Servicer, as applicable, taking into account the
limitations of Section 6.09(d) (provided that no Loan Combination-Specific
Special Servicer can be succeeded by a Person that itself had been replaced,
pursuant to Section 7.01(d), as the Special Servicer with respect to the subject
Serviced Loan Combination); (vi) when used in the context of granting the
Special Servicer any protections, limitations on liability, immunities and/or
indemnities hereunder, the term "Special Servicer" shall mean each of the Loan
Combination-Specific Special Servicer(s) and the General Special Servicer; and
(vii) when used in the context of requiring indemnification from, imposing
liability on, or exercising any remedies against, the Special Servicer for any
breach of a representation, warranty or covenant hereunder or for any
negligence, bad faith or willful misconduct in the performance of duties
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and obligations hereunder or any negligent disregard of such duties and
obligations or otherwise holding the Special Servicer responsible for any of the
foregoing, the term "Special Servicer" shall mean the related Loan
Combination-Specific Special Servicer or the General Special Servicer, as
applicable. References in this Section 7.01(e) to "General Special Servicer"
means the Person performing the duties and obligations of special servicer with
respect to the Mortgage Pool (exclusive of each Serviced Loan Combination as to
which a Loan Combination-Specific Special Servicer has been appointed).
(f) If, pursuant to the terms of any Outside Servicing Agreement
under which any Outside Serviced Trust Mortgage Loan or Administered REO
Property is being serviced and/or administered, an Outside Servicer Default has
occurred with respect to an Outside Servicer under such Outside Servicing
Agreement and remains unremedied, then the Trustee may, if materially and
adversely affected in its capacity as holder of such Outside Serviced Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, to
the fullest extent permitted by such Outside Servicing Agreement, either (i)
waive such Outside Servicer Default (but only if directed to do so in accordance
with Section 7.04), or (ii) absent such waiver, direct the appropriate party
under such Outside Servicing Agreement to exercise such remedies thereunder
regarding the termination and replacement of, or the appointment of a new
subservicer to perform the duties of, the Outside Servicer as to which such
Outsider Servicer Default relates. In connection with the foregoing, 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 subject Outside Serviced Trust Mortgage Loan or
any successor REO Trust Mortgage Loan with respect thereto; and, furthermore, if
and to the extent necessary, the Trustee shall contact and act with the other
applicable Non-Trust Mortgage Loan Noteholders in exercising such rights.
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, Section 7.01(c) or Section 7.01(d), 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, subject to the last sentence of the second
paragraph of Section 3.11(c), 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.
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Notwithstanding the above, the Trustee may, if it shall be unwilling
to so act as either Master Servicer or Special Servicer, as the case may be, or
shall, if it is unable to so act as either Master Servicer or Special Servicer,
as the case may be, or if the Trustee is not approved as a master servicer or a
special servicer, as the case may be, by any of the Rating Agencies, or if the
Holders of Certificates entitled to a majority of the Voting Rights so request
in writing to the Trustee, promptly appoint (subject, in the case of a resigning
or terminated Special Servicer, to any applicable consultation rights of any
particular related Serviced Non-Trust Mortgage Loan Noteholder(s) under the
related Co-Lender Agreement), or petition a court of competent jurisdiction to
appoint, any established mortgage loan servicing institution as the successor to
the resigning or terminated Master Servicer or the Special Servicer, as the case
may be, hereunder in the assumption of all or any part of the responsibilities,
duties or liabilities of the resigning or terminated Master Servicer or the
Special Servicer, as the case may be, hereunder; provided, however, that no such
appointee shall succeed to the rights and obligations of the Master Servicer or
Special Servicer hereunder unless (i) as confirmed in writing by each Rating
Agency and, if applicable, by Moody's, such succession will not result in an
Adverse Rating Event with respect to any Class of Certificates or any class of
Specially Designated Non-Trust Mortgage Loan Securities rated by such rating
agency, and (ii) such appointee makes the applicable representations and
warranties set forth in Section 3.23 or Section 3.24, as applicable; and
provided, further, that in the case of a resigning or terminated Special
Servicer, such appointment shall be subject to the rights of the Majority
Controlling Class Certificateholder(s) to designate a successor pursuant to
Section 6.09. No appointment of a successor to the Master Servicer or the
Special Servicer hereunder shall be effective until the assumption by the
successor to such party of all its responsibilities, duties and liabilities
under this Agreement. Pending appointment of a successor to the Master Servicer
or the Special Servicer hereunder, the Trustee shall act in such capacity as
hereinabove provided. In connection with any such appointment and assumption
described herein, the Trustee may make such arrangements for the compensation of
such successor out of payments on the Serviced Mortgage Loans and the
Administered REO Properties as it and such successor shall agree, subject to the
terms of this Agreement and/or the related Co-Lender Agreement limiting the use
of funds received in respect of a Serviced Loan Combination to matters related
to such Loan Combination; provided, however, that no such compensation shall be
in excess of that permitted the resigning or terminated party hereunder. Such
successor and the other parties hereto shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09, the Trustee shall give prompt written notice thereof to the Depositor, to
Certificateholders at their respective addresses appearing in the Certificate
Register and to each Serviced Non-Trust Mortgage Loan Noteholder.
(b) Not later than 10 days (or, in the case of notice to the
Depositor, as soon as reasonably practicable) 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 an
Outside Servicer Default, the Trustee shall transmit by mail to the Depositor,
all the
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Certificateholders and the Rating Agencies notice of such occurrence, unless
such default shall have been cured.
SECTION 7.04. Waiver of Events of Default and Outside Servicer
Defaults.
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 Outside Servicer Default under an Outside Servicing Agreement
may waive such Event of Default or direct the Trustee, to the extent it is
permitted to do so under the applicable Outside Servicing Agreement, to waive
such Outside Servicer Default, as the case may be; provided, however, that (A)
an Event of Default under any of clauses (i), (ii), (iii), (x), (xi) and (xii)
of Section 7.01(a) or any comparable Outside Servicer Default may be waived only
by all of the Certificateholders of the affected Classes and (B) waiver of an
Event of Default under clause (iii) of Section 7.01(a) further requires the
written consent of the Trustee. Upon any such waiver of an Event of Default or
an Outside Servicer Default, such Event of Default or, to the extent it is in
fact waived under the applicable Outside Servicing Agreement, such Event of
Default or such Outside Servicer Default, as the case may be, shall cease to
exist and shall be deemed to have been remedied for every purpose hereunder
(except as otherwise provided in Section 7.01(d)). No such waiver shall extend
to any subsequent or other Event of Default or Outside Servicer 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 Outside Servicer Default pursuant to
this Section 7.04, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to Voting Rights with respect to
the matters described above.
SECTION 7.05. Additional Remedies of Trustee Upon Event of
Default or Outside Servicer Default.
During the continuance of any Event of Default or Outside Servicer
Default that shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust and on behalf of any Serviced Non-Trust Mortgage
Loan Noteholder, to take all actions now or hereafter existing at law, in equity
or by statute to enforce its rights and remedies and to protect the interests,
and enforce the rights and remedies, of the Certificateholders and the Serviced
Non-Trust Mortgage Loan Noteholders (including the institution and prosecution
of all judicial, administrative and other proceedings and the filings of proofs
of claim and debt in connection therewith). Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every remedy shall be cumulative and
in addition to any other remedy, and no delay or omission to exercise any right
or remedy shall impair any such right or remedy or shall be deemed to be a
waiver of any Event of Default or Outside Servicer Default.
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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 an Outside Servicer Default and after the curing or waiver of all Events of
Default and all Outside Servicer Defaults that 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 an Outside Servicer 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 that are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement. 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 an
Outside Servicer Default, and after the curing of all such Events of
Default and all such Outside Servicer Defaults that may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Agreement;
(ii) The Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the terms of this
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Agreement and the direction of the Controlling Class or Holders of
Certificates entitled to at least 25% of the Voting Rights, relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Agreement or, as holder of an Outside Serviced
Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with respect
thereto), under an Outside Servicing Agreement, as the case may be; 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 an Outside Servicer Default that 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;
(v) prior to the occurrence of an Event of Default or an
Outside Servicer Default, and after the curing of all Events of Default
and all Outside Servicer Defaults that may
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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 provided, further, that,
unless and until the Trustee has filed a Form 15 with respect to the Trust
in accordance with Section 8.15, the Trustee may not engage any such agent
or attorney-in-fact that would constitute an Additional Servicer or a
Sub-Servicing Function Participant, unless it first (i) obtains the
written consent of the Depositor, which consent shall not be unreasonably
withheld, and (ii) delivers to the Depositor an indemnity reasonably
acceptable to the Depositor to cover any losses, liabilities, claims,
damages, costs or expenses incurred by the Depositor by reason of such
agent or attorney-in-fact failing to timely deliver an Annual Statement of
Compliance, an Annual Assessment Report or an Annual Attestation Report,
in each case as contemplated by Section 3.13 and/or Section 3.14, as
applicable; 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 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 or any Fiscal Agent in Article II and
Section 8.16 and Section 8.18 and the signature of the Certificate Registrar and
the Authenticating Agent set forth on each outstanding Certificate, shall not be
taken as the statements of the Trustee or such Fiscal Agent, and neither the
Trustee nor such Fiscal Agent shall assume any responsibility for their
correctness. Except as expressly set forth in Section 8.16 and 8.18, neither the
Trustee nor any Fiscal Agent makes any representations as to the validity or
sufficiency of this Agreement or of any Certificate (other than as to the
signature of the Trustee set forth thereon) or of any Mortgage Loan or related
document. Neither the Trustee nor any Fiscal Agent shall be accountable for the
use or application by the Depositor of any of the Certificates issued to it or
of the proceeds of such Certificates, or for the use or application of any funds
paid to the Depositor in respect of the assignment of the 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. Neither the Trustee nor any Fiscal Agent shall
be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other
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instrument furnished by the Depositor, the Master Servicer or the Special
Servicer, and accepted by the Trustee in good faith, pursuant to this Agreement.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee, any Fiscal Agent or any agent of the Trustee or a
Fiscal Agent, in its individual or any other capacity, may become the owner or
pledgee of Certificates with (except as otherwise provided in the definition of
"Certificateholder") the same rights it would have if it were not the Trustee,
such Fiscal Agent or such agent, as the case may be.
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. Except as
otherwise provided in Section 3.06, 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 (whether in its individual capacity or its
capacity as Trustee) and any director, officer, employee or agent of the Trustee
shall be entitled to be indemnified for and held harmless by the Trust Fund out
of the Pool Custodial Account and the Collection Account (and, to the extent
that a Serviced Loan Combination or any related REO Property is affected, by the
Trust Fund and/or the related Serviced Non-Trust Mortgage Loan Noteholder(s) out
of the related Loan Combination Custodial Account) against any loss, liability
or reasonable "out-of-pocket" expense (including costs and expenses incurred in
connection with removal of the Special Servicer and Master Servicer pursuant to
Sections 7.01 and 7.02, and costs and expenses of litigation and of
investigation, including counsel fees, damages, judgments and amounts paid in
settlement) arising out of, or incurred in connection with, this Agreement or
the Certificates (any such loss, liability or expense, a "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 an
Advance (the reimbursement of which has otherwise been provided for herein) or
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
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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.
SECTION 8.06. Eligibility Requirements for Trustee.
(a) The Trustee hereunder shall at all times be a bank, a trust
company, a banking association or a banking 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, banking association or banking 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, banking
association or banking 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 (i) "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 "AA-" from Fitch or, if a
Fiscal Agent meeting the requirements of Section 8.17(a) is then currently
acting in such capacity, "A-" from S&P and "A-" from Fitch, or (ii) in the case
of either Rating Agency, such other rating as shall not result in an Adverse
Rating Event with respect to any Class of Certificates, as confirmed in writing
by such Rating Agency. The Trustee shall at all times satisfy the requirements
of Section 26(a)(1) of the Investment Company Act of 1940, as amended. 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 the Trustee shall
not be required to resign due to the existence of an affiliation described in
the last sentence of this Section 8.06 until such time as it has actual
knowledge or receives written notice of the existence of such affiliation; and
provided, further, that if the Trustee shall cease to be so eligible because its
combined capital and surplus is no longer at least $50,000,000 or its long-term
unsecured debt rating no longer conforms to the requirements of the immediately
preceding sentence, and if the Trustee proposes to the other parties hereto to
enter into an agreement with (and reasonably acceptable to) each of them, and if
in light of such agreement the Trustee's continuing to act in such capacity
would not (as evidenced in writing by each Rating Agency) cause an Adverse
Rating Event with respect to any Class of Certificates, then upon the execution
and delivery of such agreement the Trustee shall not be required to resign, and
may continue in such capacity, for so long as none of the ratings assigned by
the Rating Agencies to the Certificates is adversely affected thereby. The bank,
trust company, banking corporation or banking association serving as Trustee may
have normal banking and trust relationships with the Depositor, the Master
Servicer, the Special Servicer and their respective Affiliates. Notwithstanding
the foregoing, except to the extent permitted or required by Section 7.02, the
Trustee shall not be an "affiliate" (as such term is defined in Section III of
PTE 2000-58) of the Master Servicer, the Special Servicer, any Sub-Servicer,
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any Outside Servicer, the Depositor, or any obligor with respect to Trust
Mortgage Loans constituting more than 5% of the aggregate unamortized principal
balance of the Mortgage Pool as of the Closing Date or any "affiliate" (as such
term is defined in Section III of PTE 2000-58) of any such Person.
SECTION 8.07. Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from
the trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer, all Certificateholders and all Serviced
Non-Trust Mortgage Loan Noteholders. Upon receiving such notice of resignation,
the Depositor shall promptly appoint a successor trustee acceptable to the
Depositor by written instrument, in duplicate, which instrument shall be
delivered to the resigning Trustee and to the successor trustee. A copy of such
instrument shall be delivered to the Master Servicer, the Special Servicer, the
Certificateholders and the Serviced Non-Trust Mortgage Loan Noteholders by the
Depositor. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Depositor, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, or if the Trustee
shall fail (other than by reason of the failure of either the Master Servicer or
the Special Servicer to timely perform its obligations hereunder or as a result
of other circumstances beyond the Trustee's reasonable control) to timely
deliver or otherwise make available in accordance with this Agreement any
current or revised Distribution Date Statement, CMSA Loan Periodic Update File,
CMSA Property File, CMSA Financial File or other report or statement required by
Section 4.02 and such failure shall continue unremedied for a period of five
days after receipt of written notice by the Trustee of such failure, or if the
Trustee shall fail (other than by reason of the failure of the Master Servicer,
the Special Servicer or the Depositor or any sub-Servicer, Subcontractor, vendor
or agent of the foregoing to timely perform its obligations hereunder or in
connection herewith or as a result of other circumstances beyond the Trustee's
reasonable control) to timely perform any of its obligations set forth in
Section 3.13, Section 3.14 or Section 8.15(a) and such failure adversely affects
the Depositor's ability to use or file a registration statement on Form S-3 for
purposes of publicly offering commercial mortgage-backed securities, or if a tax
is imposed or threatened with respect to the Trust Fund by any state in which
the Trustee is located or in which it holds any portion of the Trust Fund, then
the Depositor may remove the Trustee and appoint a successor trustee acceptable
to the Depositor and the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer, the Certificateholders and the Serviced
Non-Trust Mortgage Loan Noteholders by the successor trustee so appointed.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee (with or without cause) and
appoint a successor trustee by written instrument or instruments, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Master Servicer, one complete set to the
Trustee so removed and one complete set to the successor trustee so appointed. A
copy of such instrument shall be delivered to the Depositor, the Special
Servicer, the remaining Certificateholders and the Serviced Non-Trust Mortgage
Loan Noteholders by the successor trustee so appointed.
(d) In the event that the Trustee is terminated or removed
pursuant to this Section 8.07, all of its and any corresponding Fiscal Agent's
rights and obligations under this Agreement and (as among the parties hereto) in
and to the Trust Mortgage Loans and the Serviced Non-Trust Mortgage
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Loans shall be terminated, other than (i) 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) or (ii) any rights or immunities described in
this Agreement as surviving any resignation or removal of the Trustee, including
but not limited to the rights set forth in Sections 8.05(b) and (c).
(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 all Mortgage Files and related documents
and statements and moneys held by it hereunder (other than any Mortgage Files at
the time held on its behalf by a third-party Custodian, which Custodian shall
become the agent of the successor trustee), and the Depositor, the Master
Servicer, the Special Servicer and the predecessor trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
to more fully and certainly vest and confirm in the successor trustee all such
rights, powers, duties and obligations, and to enable the successor trustee to
perform its obligations hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08, unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor, the Master Servicer, the
Special Servicer, the Certificateholders and the Serviced Non-Trust Mortgage
Loan Noteholders.
(d) Any and all costs and expenses associated with transferring
the duties of a Trustee that has resigned or been removed or terminated, as
contemplated by Section 8.07, to a successor Trustee, including those associated
with transfer of the Mortgage Files and other documents and statements held by
the predecessor Trustee to the successor Trustee, as contemplated by Section
8.08(a), shall be paid by: (i) the predecessor Trustee, if such predecessor
Trustee has resigned in accordance with Section 8.07(a), has been removed in
accordance with Section 8.07(b) or has been removed with cause in accordance
with Section 8.07(c); (ii) the Certificateholders that effected the removal, if
the predecessor Trustee has been removed without cause in accordance with
Section 8.07(c); and (iii) the Trust, if such costs and expenses are not paid by
the predecessor Trustee or the subject Certificateholders, as contemplated by
the immediately preceding clauses (i) and (ii), within 90 days
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after they are incurred (provided that such predecessor Trustee or such subject
Certificateholders, as applicable, shall remain liable to the Trust for such
costs and expenses).
SECTION 8.09. Merger or Consolidation of Trustee and Fiscal
Agent.
Any entity into which the Trustee or any Fiscal Agent may be merged
or converted, or with which the Trustee or any Fiscal Agent may be consolidated,
or any entity resulting from any merger, conversion or consolidation to which
the Trustee or any Fiscal Agent shall be a party, or any entity succeeding to
the corporate trust business of the Trustee, shall be the successor of the
Trustee or such Fiscal Agent, as the case may be, hereunder, provided such
entity shall be eligible under the provisions of Section 8.06 or Section 8.17,
as applicable, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing the same may at the time be
located, the Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee or co-trustees, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of the Trust Fund, and to vest in such
Person or Persons, in such capacity, such title to the Trust Fund, or any part
thereof, and, subject to the other provisions of this Section 8.10, such powers,
duties, obligations, rights and trusts as the Master Servicer and the Trustee
may consider necessary or desirable. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 8.06 hereunder and no notice to Holders of Certificates of the
appointment of co-trustee(s) or separate trustee(s) shall be required under
Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
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(d) Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall cease to exist, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts 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 an agreement to appoint a Custodian which is not the
Trustee, provided that such agreement: (i) is consistent with this Agreement in
all material respects and requires the Custodian to comply with all of the
applicable conditions of this Agreement; (ii) provides that if the Trustee shall
for any reason no longer act in the capacity of Trustee hereunder, the successor
trustee or its designee may thereupon assume all of the rights and, except to
the extent they arose prior to the date of assumption, obligations of the
Custodian under such agreement or, alternatively, may terminate such agreement
without cause and without payment of any penalty or termination fee; and (iii)
may provide that the related Custodian will be entitled to be indemnified out of
the assets of the Trust Fund in connection with losses arising from the
performance by such Custodian of its duties in accordance with the provisions of
the related custodial agreement if and to the extent such indemnification would
be permitted under Section 8.05(b) with respect to agents of the Trustee. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible for all acts
and omissions of any Custodian. In the absence of any other Person appointed in
accordance herewith acting as Custodian, the Trustee agrees to act in such
capacity in accordance with the terms hereof. Notwithstanding anything herein to
the contrary, if the Trustee is no longer the Custodian, any provision or
requirement herein requiring notice or any information or documentation to be
provided to the Custodian shall be construed to require that such notice,
information or documents also be provided to the Trustee. Any Custodian
hereunder shall at all times maintain a fidelity bond and errors and omissions
policy in amounts customary for custodians performing duties similar to those
set forth in this Agreement and, in any event, satisfying the same requirements
(including as to the insurer) as are applicable to any such bond or policy
required to be maintained by the Master Servicer pursuant to Section 3.07. Any
engagement of a third party to act as Custodian with respect to the Mortgage
File or any portion thereof with respect to a Serviced Loan Combination shall be
subject to any relevant provisions of the related Co-Lender Agreement.
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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 and liable 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 Certificate Registrar, 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, the Certificate Registrar 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 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
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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 Certificate Registrar, 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, the Certificate Registrar and the Depositor. Upon receiving
a notice of such a resignation or upon such a termination, or in case at any
time any Tax Administrator shall cease to be eligible in accordance with the
provisions of this Section 8.13, the Trustee may appoint a successor Tax
Administrator, in which case the Trustee shall give written notice of such
appointment to the Master Servicer, the Special Servicer and the Depositor and
shall mail notice of such appointment to all Holders of Certificates; provided,
however, that no successor Tax Administrator shall be appointed unless eligible
under the provisions of this Section 8.13. Any successor Tax Administrator upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Tax Administrator.
SECTION 8.14. Access to Certain Information.
(a) The Trustee shall afford to the Master Servicer, the Special
Servicer and the Depositor, and to the OTS, the FDIC and any other banking or
insurance regulatory authority that may exercise authority over any
Certificateholder or Certificate Owner, access to any documentation regarding
the Trust Mortgage Loans within its control that may be required to be provided
by this Agreement or by applicable law. Such access shall be afforded without
charge but only upon reasonable prior written request and during normal business
hours at the offices of the Trustee designated by it.
(b) The Trustee shall maintain in its possession and, upon
reasonable prior written request and during normal business hours, shall make
available at its offices for review by the Depositor, the Rating Agencies, the
Serviced Non-Trust Mortgage Loan Noteholders and their respective designees, the
Controlling Class Representative and, subject to the succeeding paragraph, any
Certificateholder, Certificate Owner or Person identified to the Trustee as a
prospective Transferee of a Certificate or an interest therein, originals and/or
copies of the following items: (i) the Prospectus, the Prospectus Supplement,
any private placement memorandum and any other disclosure document relating to
the Certificates, in the form most recently provided to the Trustee by the
Depositor or by any Person designated by the Depositor; (ii) this Agreement,
each Sub-Servicing Agreement delivered to the Trustee since the Closing Date and
any amendments hereto or thereto; (iii) all Certificateholder Reports
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made available to Certificateholders pursuant to Section 4.02(a) since the
Closing Date; (iv) all Annual Statements of Compliance delivered to the Trustee
since the Closing Date; (v) all Annual Assessment Reports and Annual Attestation
Reports delivered to the Trustee since the Closing Date; (vi) any and all
notices and reports delivered to the Trustee with respect to any Mortgaged
Property as to which the environmental testing contemplated by Section 3.09(c)
revealed that either of the conditions set forth in clauses (i) and (ii) of the
first sentence thereof was not satisfied; (vii) each of the Mortgage Files,
including any and all modifications, extensions, waivers and amendments of the
terms of a Trust Mortgage Loan or Serviced Non-Trust Mortgage Loan entered into
or consented to by the Special Servicer and delivered to the Trustee pursuant to
Section 3.20; (viii) the most recent appraisal for each Mortgaged Property and
REO Property that has been delivered to the Trustee (each appraisal obtained
hereunder with respect to any Mortgaged Property or REO Property to be delivered
to the Trustee by the Master Servicer or Special Servicer, as applicable,
promptly following its having been obtained); (ix) any and all Officer's
Certificates and other evidence delivered to or by the Trustee to support its,
the Master Servicer's, the Special Servicer's or any Fiscal Agent's, as the case
may be, determination that any Advance was (or, if made, would be) a
Nonrecoverable Advance; (x) any and all information provided to the Trustee
pursuant to Section 6.11(a) or Section 6.12(a); (xi) any exception report
prepared by the Trustee pursuant to Section 2.02(b); (xii) all notices of a
breach of representation and warranty given by or received by the Trustee with
respect to any party hereto; (xiii) any Officer's Certificate delivered to the
Trustee by the Special Servicer in connection with a Final Recovery
Determination pursuant to Section 3.09(h); and (xiv) any and all reports,
statements and other written or electronic information relating to an Outside
Serviced Trust Mortgage Loan, the related Mortgaged Property and/or the borrower
under such related Outside Serviced Trust Mortgage Loan, to the extent such
items were received by the Master Servicer from a related Outside Servicer or
other applicable party under the related Outside Servicing Agreement 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.
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
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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 any Exchange Act Reporting Year, the Trustee
shall:
(i) within 15 days (or within such other period as may
be provided under the Exchange Act, and the rules and regulations
promulgated thereunder) after each Distribution Date during such fiscal
year, in accordance with the Exchange Act, the rules and regulations
promulgated thereunder, and applicable releases and "no-action letters"
issued by the Commission, prepare for filing, arrange for execution by the
Depositor and properly and timely file with the Commission with respect to
the Trust, a Distribution Report on Form 10-D with or including, as the
case may be, a copy of the applicable Distribution Date Statement
(exclusive of the CMSA Bond Level File and the CMSA Collateral Summary
File) and, to the extent delivered to--or otherwise actually known by a
Responsible Officer of--the Trustee, any other Form 10-D Required
Information to be reported for the period covered by the subject Form
10-D;
(ii) during such fiscal year, at the direction of the
Depositor, in accordance with the Exchange Act, the rules and regulations
promulgated thereunder, and applicable releases and "no-action letters"
issued by the Commission, prepare for filing, arrange for execution by the
Depositor and properly and timely file with the Commission with respect to
the Trust, a Current Report on Form 8-K regarding and disclosing any Form
8-K Required Information (to the extent a Responsible Officer of the
Trustee has actual knowledge of, or has been provided with written notice
of, such information), within the time periods specified under Form 8-K,
the Exchange Act, the rules and regulations promulgated thereunder and
applicable releases and "no-action letters" issued by the Commission;
provided that the Depositor shall cooperate with the Trustee to determine
the applicable required time period; and provided, further, that, if the
Depositor directs the Trustee to file a Current Report on Form 8-K in
accordance with this clause (ii), the Depositor shall cooperate with the
Trustee in obtaining all necessary information in order to prepare such
Current Report on Form 8-K and the Trustee will report the subject
information in accordance with the Exchange Act, the rules and regulations
promulgated thereunder and applicable releases and "no-action letters"
issued by the Commission;
(iii) within 90 days following the end of such fiscal
year, prepare for filing, arrange for execution by the Depositor 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; and
(iv) at the reasonable request of, and in accordance with
the reasonable directions of, the Certifying Party (as defined in Section
8.15(d)) or the Depositor, prepare for
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filing, arrange for execution by the Depositor and promptly file with the
Commission an amendment to any Current Report on Form 8-K, Distribution
Report on Form 10-D or Annual Report on Form 10-K previously filed with
the Commission with respect to the Trust during or relating to, as
applicable, such fiscal year;
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) a Current Report on Form
8-K reporting the establishment of the Trust and a Current Report on Form 8-K
whereby this Agreement will be filed as an exhibit (the Current Reports on Form
8-K contemplated by this subclause (y) being herein referred to as the "Initial
Current Reports on Form 8-K"); and provided, further, that if all or any
required portion of an Annual Report on Form 10-K or a Distribution Report on
Form 10-D cannot be timely filed by the Trustee (other than for a reason
contemplated by Rule 12b-25(g) of the Exchange Act), then (i) the Trustee (upon
becoming aware thereof or the reasonable likelihood thereof) shall immediately
notify the Depositor, (ii) the Trustee shall (to the extent appropriate) file a
Form 12b-25 (17 C.F.R. 249.322) in connection therewith consistent with Rule
12b-25 of the Exchange Act, each party hereto shall reasonably cooperate with
the Trustee and the Depositor to complete the subject Exchange Act Report and
such Exchange Act Report (or the applicable portions thereof) shall be filed
with the Commission as soon as reasonably practicable and, if the Depositor is
relying upon Rule 12b-25 of the Exchange Act, within the time frames
contemplated thereby; and provided, further, that if all or any required portion
of any Exchange Act Report cannot be timely filed by the Trustee for the sole
reason that the Trustee is unable to file the report in electronic format, then
(i) the Trustee (upon becoming aware thereof or the reasonable likelihood
thereof) shall immediately notify the Depositor and, as determined by the
Depositor, the Depositor and the Trustee shall comply with either Rule 201 or
202 of Regulation S-T or apply for an adjustment of filing date pursuant to Rule
13b of Regulation S-T. 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 required
to be delivered by such party pursuant to this Agreement and contemplated to be
filed with the Commission pursuant to this Section 8.15(a), other than the
financial statements or other financial information of a Significant Obligor.
All Current Reports on Form 8-K, Distribution Reports on Form 10-D
and Annual Reports on Form 10-K, as well as any amendments to those reports,
that are to be filed with respect to the Trust pursuant to the Exchange Act, and
the rules and regulations promulgated thereunder, and this Section 8.15(a), are
(together with the exhibits thereto) herein referred to as the "Exchange Act
Reports". The Exchange Act Reports, exclusive of the Initial Current Reports on
Form 8-K, are herein referred to as the "Subsequent Exchange Act Reports".
Notwithstanding any other provision of this Agreement, the Trustee shall have no
liability to any Person with respect to any failure to properly prepare or
timely 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. The Trustee shall have no liability to any Person for a failure to
file on a timely basis any Subsequent Exchange Act Report to the extent that the
Trustee is not provided within the time frames set forth in this Agreement all
required attachments and information (including notices with respect thereto) to
be filed with such Subsequent Exchange Act Report in properly executed form. The
Trustee shall be entitled to conclusively rely upon, without any duty to review
or analyze, the form and content of any information, disclosure, attachments or
exhibits provided to it for inclusion in any Subsequent Exchange Act Report. All
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Subsequent Exchange Act Reports prepared by the Trustee pursuant to this Section
8.15(a) shall be executed by the Depositor promptly upon delivery thereto and
subject to the Subsequent Exchange Act Report being in form and substance
reasonably acceptable thereto.
The Trustee shall make available to all Certificateholders and
Certificate Owners on its internet website each Subsequent Exchange Act Report
that is filed with the Commission with respect to the Trust. The Trustee shall
post each such report on its internet website as soon as reasonably practicable
after the filing thereof with the Commission. In addition, the Trustee shall,
free of charge, upon request, deliver to any Certificateholder, Certificate
Owner or party identified as a prospective Certificateholder or Certificate
Owner copies of all Subsequent Exchange Act Reports that are filed with the
Commission with respect to the Trust. Any request contemplated by the prior
sentence shall be made to LaSalle Bank, N.A., 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxx Xxxxxxxx (telephone number:
000-000-0000) or to such other Person, address and/or phone number as the
Trustee may specify by notice to Certificateholders.
(b) At all times during each Exchange Act Reporting Year,
each of the Trustee, the Master Servicer and the Special Servicer shall (and
shall use reasonable efforts to cause each Servicing Representative that is a
Servicer acting on its behalf hereunder and, solely in the case of the Trustee,
each Trustee Appointee to) monitor for, and (as soon as reasonably practicable
after becoming aware thereof) notify the Depositor and the Trustee in writing
of, the occurrence or existence of any and all events, conditions, circumstances
and/or matters that constitute or may constitute related Exchange Act Reportable
Events with respect thereto; provided that, unless any such particular event,
condition, circumstance and/or matter specifically relates to the party
obligated to undertake such monitoring, any Affiliate thereof, any Servicing
Representative that is a Servicer retained or engaged thereby or, solely in the
case of the Trustee, any Trustee Appointee, the obligation to so monitor for any
such particular event, condition, circumstance and/or matter shall be limited to
maintaining a reasonable awareness as regards the existence thereof in the
normal course of performing its respective obligations and duties hereunder or
otherwise in respect of the Trust Fund. Within one Business Day of becoming
aware of any Form 8-K Required Information, the Trustee shall promptly notify
the Depositor in writing that the filing of a Current Report on Form 8-K may be
required with respect to any of the events, conditions, circumstances and/or
matters that are the subject of that information and, further, shall consult
with the Depositor regarding whether to prepare and file a Current Report on
Form 8-K under Section 8.15(a)(ii) above with respect to such events,
conditions, circumstances and/or matters and, if prepared, the form and content
of such filing (and the Trustee shall be entitled to rely on a written direction
of the Depositor with regard to whether to make and the form and content of such
filing). For purposes of this paragraph, none of the Trustee, the Master
Servicer or the Special Servicer shall be considered to be aware of any related
Exchange Act Reportable Event, and the Trustee shall not be considered to be
aware of any Form 8-K Required Information, Form 10-D Required Information or
Form 10-K Required Information, unless a Responsible Officer (in the case of the
Trustee) or a Servicing Officer (in the case of the Master Servicer or the
Special Servicer) thereof has actual knowledge.
Upon reasonable request of the Depositor or the Trustee, each other
party hereto shall (and shall use reasonable efforts to cause any Servicing
Representative that is a Servicer acting on its behalf hereunder or, solely in
the case of the Trustee, any Trustee Appointee, to) promptly provide to the
requesting party any information in its possession as is necessary or
appropriate for the Depositor or the Trustee, as applicable, to prepare fully
and properly any Exchange Act Report with respect to the Trust
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in accordance with the Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder.
If, during any Exchange Act Reporting Year, a new Master Servicer,
Special Servicer or Trustee is appointed, then such new Master Servicer, Special
Servicer or Trustee, as the case may be, shall in connection with its acceptance
of such appointment provide the Depositor and, in the case of a new Master
Servicer or Special Servicer, the Trustee with such information regarding
itself, its business and operations and its experience and practices regarding
the duties it is to perform under this Agreement, as is required to be reported
by the Depositor pursuant to Item 6.02 of Form 8-K. If, during any Exchange Act
Reporting Year, the Master Servicer, Special Servicer or Trustee appoints a
Servicing Representative that constitutes a Servicer contemplated by Item
1108(a)(2) of Regulation AB, then the Master Servicer, Special Servicer or
Trustee, as the case may be, shall cause such Servicing Representative, in
connection with its acceptance of such appointment, to provide the Depositor and
the Trustee with such information regarding itself, its business and operations
and its servicing experience and practices, as is required to be reported by the
Depositor pursuant to Item 6.02 of Form 8-K.
Each of the Trustee, any Fiscal Agent, the Master Servicer and the
Special Servicer acknowledges and agrees that the information to be provided by
it (or by any Servicing Representative acting on its behalf hereunder or, solely
in the case of the Trustee, any Trustee Appointee) pursuant to or as
contemplated by this Section 8.15(b) is intended to be used in connection with
the preparation of Exchange Act Reports with respect to the Trust.
If the 000 Xxxxxxx Xxxxxx Note A-2 Non-Trust Mortgage Loan has been
included in a Non-Trust Mortgage Loan Securitization Trust, then the Form 8-K
Required Information, Form 10-D Required Information and Form 10-K Required
Information required to be reported to the Depositor under this Section 8.15(b)
shall simultaneously be reported to the depositor and trustee in respect of such
Non-Trust Mortgage Loan Securitization Trust to the extent required for such
depositor and/or trustee to satisfy any Exchange Act reporting requirements in
respect of such Non-Trust Mortgage Loan Securitization Trust.
(c) If as of the beginning of any fiscal year for the Trust
(other than fiscal year 2006), the Registered Certificates are held in the
aggregate by less than 300 holders (which may consist of (x) in the case of
Registered Certificates held in definitive form, direct Holders of such
Definitive Certificates, and/or (y) in the case of Registered Certificates held
in book-entry form through the Depository, 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 and shall notify all parties to this Agreement in writing that
a Form 15 has been so filed.
(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
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accordance with the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated
thereunder, any Xxxxxxxx-Xxxxx Certification, a "Certifying Officer").
(e) The Depositor shall 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. 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 March 25 of the applicable calendar year
in which the filing is to occur, 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 (i) 12:00 noon, New York City time, on the
Business Day prior to any filing of a Current Report on Form 8-K (other than an
Initial Current Report on Form 8-K) that is to be made with respect to the Trust
as contemplated by Section 8.15(a), (ii) March 20 of the applicable calendar
year in which the filing of any Annual Report on Form 10-K is to be made with
respect to the Trust as contemplated by Section 8.15(a), and (iii) two (2)
Business Days prior to any filing of any other 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 Exchange Act Report, together with all
exhibits thereto (to the extent received by the Trustee), for review by the
Depositor and the Special Servicer. Promptly upon receipt of any such report and
the accompanying exhibits, each of the Depositor and the Special Servicer shall
(and, if and to the extent applicable, shall cause any Servicing Representative
acting on its behalf hereunder to) promptly 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 and the Special Servicer) prior to
the filing of such report and the accompanying exhibits.
(g) No later than March 20 of any year in which an Annual
Report on Form 10-K is to be filed, the Trustee shall cause a Responsible
Officer of the Trustee 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, liabilities,
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 Trustee in connection with the performance by the Trustee of
its duties hereunder.
(h) No later than March 20 of the year in which such Annual
Report on Form 10-K is to be filed with respect to the Trust, 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 Officer) 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 any Outside Serviced Trust Mortgage Loans
and any Outside Administered REO Properties, to the extent required in
accordance with Exhibit Q). In addition, within the time periods set forth in
the related Co-Lender Agreement (or, if no such time periods are set forth
therein, by March 20 of any calendar year in which any Annual Report on Form
10-K is to be filed with
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respect to the related securitization trust), the Master Servicer shall execute
and deliver to the depositor, trustee and/or other certifying party and
certifying officer executing a Xxxxxxxx-Xxxxx Certification in connection with
any public securitization of any Serviced Non-Trust Mortgage Loan that either is
a Pari Passu Non-Trust Mortgage Loan or has, as of the Closing Date, an unpaid
principal balance in excess of $20,000,000, a master servicer backup
certification covering such Serviced Non-Trust Mortgage Loan (and that may be
relied on by each such party to which it is delivered), which master servicer
backup certification will be substantially similar to the Master Servicer Backup
Certification and will cover only the subject Non-Trust Mortgage Loan. 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, liabilities, 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 March 20 of the year in which any Annual
Report on Form 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 Officer) 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 any Outside Serviced Trust Mortgage Loan that is then
specially serviced under the related Outside Servicing Agreement or any Outside
Administered REO Property, if the Special Servicer is, is an Affiliate of, or
receives a comparable certification relating thereto from, the related Outside
Special Servicer). In addition, within the time periods set forth in the related
Co-Lender Agreement (or, if no such time periods are set forth therein, by March
20 of any calendar year in which any Annual Report on Form 10-K is to be filed
with respect to the related securitization trust), the Special Servicer shall
execute and deliver to the depositor, trustee and/or other certifying party and
certifying officer executing a Xxxxxxxx-Xxxxx Certification in connection with
any public securitization of the 000 Xxxxxxx Xxxxxx Note A Non-Trust Mortgage
Loan or the Triangle Town Center Note B Non-Trust Mortgage Loan, a special
servicer backup certification covering such Serviced Non-Trust Mortgage Loan
(and that may be relied on by each such party to which it is delivered), which
special servicer backup certification will be substantially similar to the
Special Servicer Backup Certification and will cover only the subject Non-Trust
Mortgage Loan. 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, liabilities, 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 March 20 of the year in which any Annual
Report on Form 10-K is to be filed with respect to the Trust, unless the
Depositor is to be the Certifying Party, the Depositor
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shall cause an officer of the Depositor to execute and deliver to each
Certifying Party and Certifying Officer a certification (a "Depositor Backup
Certification"), which Depositor Backup Certification shall be in a form
mutually acceptable to the Certifying Party and the Depositor. The Depositor
shall indemnify and hold harmless each Certifying Party and Certifying Officer
to whom it delivers any Depositor Backup Certification for any and all losses,
liabilities, claims, damages, costs and expenses (including reasonable
attorneys' fees and expenses) incurred by such Certifying Party or Certifying
Officer resulting from a breach of any certification made in such Depositor
Backup Certification.
(k) The respective parties hereto agree to cooperate with
all reasonable requests made by any Certifying Party or Certifying Officer in
connection with such Person's attempt to conduct any due diligence that such
Person reasonably believes to be appropriate in order to allow it to deliver any
Xxxxxxxx-Xxxxx Certification or portion thereof with respect to the Trust.
(l) Unless the other parties hereto receive written notice
from the Trustee to the contrary, the Trustee hereby certifies that it intends
to file any Annual Report on Form 10-K with respect to the Trust for any
particular fiscal year on the last Business Day that is not more than 90 days
following the end of such fiscal year. Unless an alternative time period is
provided for in this Agreement, the respective parties hereto shall deliver to
the Trustee, not more than 60 days following the end of such fiscal year, any
items required to be delivered by such party that are to be an exhibit to such
Annual Report on Form 10-K.
(m) In the event the parties to this Agreement desire to
further clarify or amend any provision of this Section 8.15, this Agreement
shall be amended to reflect the new agreement between the parties covering
matters in this Section 8.15 pursuant to Section 11.01, which amendment shall
not require any Opinion of Counsel or Rating Agency confirmations or the consent
of any Certificateholder or any Serviced Non-Trust Mortgage Loan Noteholder;
provided that no such amendment shall diminish the filing requirements under
this Section 8.15 on the part of the parties to this Agreement, as a collective
whole, in contravention of applicable law.
SECTION 8.16. Representations and Warranties of Trustee.
(a) The Trustee hereby represents and warrants to the Master
Servicer, the Special Servicer and the Depositor and for the benefit of the
Certificateholders and the Serviced Non-Trust Mortgage Loan Noteholders, as of
the Closing Date, that:
(i) The Trustee is a national banking association
duly organized, validly existing and in good standing under the laws of
the United States of America.
(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
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and authority to enter into and consummate all transactions contemplated
by this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization,
execution and delivery by the other parties hereto, constitutes a valid,
legal and binding obligation of the Trustee, enforceable against the
Trustee in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(v) The Trustee is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement, including, but not limited
to, its responsibility to make P&I Advances if the Master Servicer fails
to make a P&I Advance, will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee.
(vi) No litigation is pending or, to the best of the
Trustee's knowledge, threatened against the Trustee that, if determined
adversely to the Trustee, would prohibit the Trustee from entering into
this Agreement or, in the Trustee's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of the
Trustee to perform its obligations under this Agreement or the financial
condition of the Trustee.
(vii) Any consent, approval, authorization or order
of any court or governmental agency or body required for the execution,
delivery and performance by the Trustee of or compliance by the Trustee
with this Agreement, or the consummation of the transactions contemplated
by this Agreement, has been obtained and is effective, except where the
lack of consent, approval, authorization or order would not have a
material adverse effect on the performance by the Trustee under this
Agreement.
(viii) The Trustee is eligible to act as trustee
hereunder in accordance with Section 8.06.
(ix) The Trustee is an "Institutional Lender/Owner"
or such other entity defined under the related Co-Lender Agreement as an
entity qualified to be a transferee or holder of the Trust Mortgage Loan
included in the related Loan Combination (if such definition exists in the
subject Co-Lender), as applicable, within the meaning of each Co-Lender
Agreement.
(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.
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(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. Appointment of a Fiscal Agent.
(a) In order to satisfy the eligibility requirements of
Section 8.06 (insofar as such requirements relate to ratings), the Trustee may
appoint a Fiscal Agent. Any 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 such
Fiscal Agent's short-term unsecured debt rating is at least "A-1" by S&P) and
"AA-" from Fitch (or, in the case of either Rating Agency, such other rating as
shall not result in an Adverse Rating Event with respect to any Class of
Certificates rated by such Rating Agency, 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, any Fiscal Agent appointed by the Trustee shall make such Advance as and
when required by the terms of this Agreement on behalf the Trustee as if such
Fiscal Agent were the Trustee hereunder. To the extent that a 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.
(c) Notwithstanding anything contained in this Agreement to
the contrary, any Fiscal Agent shall be entitled to all limitations on
liability, rights of reimbursement and indemnities that the Trustee is entitled
to hereunder as if it were the Trustee, except that all fees and expenses of any
Fiscal Agent (other than any interest owed to such Fiscal Agent in respect of
unreimbursed Advances) incurred by such Fiscal Agent in connection with the
transactions contemplated by this Agreement shall be borne by the Trustee, and
neither the Trustee nor such Fiscal Agent shall be entitled to reimbursement
therefor from any of the Trust Fund, the Depositor, the Master Servicer or the
Special Servicer.
(d) The obligations of a Fiscal Agent set forth in this
Section 8.17 or otherwise pursuant to this Agreement shall exist only for so
long as the Trustee that appointed it shall act as Trustee hereunder. A 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 a Fiscal Agent shall be
deemed to have resigned at such time as the Trustee that appointed it resigns or
is removed as Trustee hereunder (in which case the responsibility for appointing
a successor Fiscal Agent shall belong to the successor Trustee, and which
appointment the successor Trustee shall use its best efforts to make, 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 a 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 with respect to any
Class of Certificates.
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(e) The Trustee shall promptly notify the other parties
hereto, the Certificateholders and the Serviced Non-Trust Mortgage Loan
Noteholders in writing of the appointment, resignation or removal of any Fiscal
Agent.
SECTION 8.18. Representations and Warranties of Fiscal Agent.
(a) Any Fiscal Agent shall hereby represent and warrant to
each of the other parties hereto and for the benefit of the Certificateholders
and the Serviced Non-Trust Mortgage Loan Noteholders, as of the date of its
appointment, that:
(i) Such Fiscal Agent is a legal entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization.
(ii) The execution and delivery of this Agreement by
such Fiscal Agent, and the performance and compliance with the terms of
this Agreement by such Fiscal Agent, will not violate such 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) Such 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 such Fiscal Agent, enforceable against
such 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) Such 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 such Fiscal Agent's good faith
and reasonable judgment, is likely to affect materially and adversely
either the ability of such Fiscal Agent to perform its obligations under
this Agreement or the financial condition of such Fiscal Agent.
(vi) No litigation is pending or, to the best of
such Fiscal Agent's knowledge, threatened against such Fiscal Agent that,
if determined adversely to such Fiscal Agent, would prohibit such Fiscal
Agent from entering into this Agreement or, in such Fiscal Agent's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of such Fiscal Agent to perform its obligations
under this Agreement or the financial condition of such Fiscal Agent.
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(vii) Any consent, approval, authorization or order
of any court or governmental agency or body required for the execution,
delivery and performance by such Fiscal Agent of or compliance by such
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 such Fiscal Agent under
this Agreement.
(b) The representations and warranties of any Fiscal Agent set
forth in Section 8.18(a) shall survive its appointment as such under 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.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Trust Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer, any Fiscal Agent and the Trustee (other
than the obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment): (i) to the Certificateholders of all amounts held by or
on behalf of the Trustee and required hereunder to be so paid on the
Distribution Date following the earlier to occur of (A) the purchase by the
Special Servicer, any Controlling Class Certificateholder, the Master Servicer,
the Depositor or Xxxxxx Brothers 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, any Fiscal Agent, the
Master Servicer, the Special Servicer and the members, managers, officers,
directors, employees and/or agents of each of them of all amounts which may have
become due and owing to any of them hereunder; provided, however, that in no
event shall the trust created hereby continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late ambassador of the United States to the Court of St. Xxxxx, living on the
date hereof.
Each of the 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), the Master Servicer, the Depositor or Xxxxxx Brothers, in that order of
priority (with the Special Servicer 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 aggregate Certificate Principal
Balance of all of the Principal Balance Certificates, 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 Special Servicer's,
a Controlling Class Certificateholder's, the Master Servicer's, the Depositor's
or Xxxxxx Brothers' purchase of all of the Trust Mortgage Loans and each
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REO Property remaining in the Trust Fund, then the Special Servicer, a
Controlling Class Certificateholder, the Master Servicer, the Depositor or
Xxxxxx Brothers, as applicable, not later than the fifth Business Day preceding
the Distribution Date on which the final distribution on the Certificates is to
occur, shall: (x) deposit, or deliver to the Master Servicer for deposit, in the
Pool Custodial Account an amount in immediately available funds equal to the
above-described purchase price (provided, however, that if any REO Property
relating to a Serviced Loan Combination is being purchased pursuant to the
foregoing, the portion of the above-described purchase price allocable to such
REO Property shall initially be deposited into the related Loan Combination
Custodial Account); and (y) deliver to the Trustee an Opinion of Counsel, at the
expense of the party effecting the purchase, stating that the termination of the
Trust satisfies the requirements of a qualified liquidation under Section 860F
of the Code and any regulations thereunder. In addition, on the Trust Master
Servicer Remittance Date immediately preceding the Final Distribution Date, the
Master Servicer shall transfer to the Collection Account all amounts required to
be transferred thereto on such Trust Master Servicer Remittance Date from the
Pool Custodial Account pursuant to the first paragraph of Section 3.04(b),
together with any other amounts on deposit in the Pool Custodial Account that
would otherwise be held for future distribution. Upon confirmation that such
final deposits have been made, the Trustee shall release or cause to be released
to the Special Servicer, the purchasing Controlling Class Certificateholder, the
Master Servicer, the Depositor or Xxxxxx Brothers, 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 Special Servicer, the
purchasing Controlling Class Certificateholder, the Master Servicer, the
Depositor or Xxxxxx Brothers, as applicable, as shall be necessary to effectuate
transfer of the Trust Mortgage Loans and REO Properties to the Special Servicer,
the purchasing Controlling Class Certificateholder, the Master Servicer, the
Depositor or Xxxxxx Brothers (or their respective designees), as applicable;
provided that, if any Trust Mortgage Loan purchased pursuant to this Section
9.01 is a Serviced Combination Trust Mortgage Loan, then the release,
endorsement or assignment of the documents constituting the related Mortgage
File and Servicing File shall be in the manner contemplated by Section 3.25. Any
transfer of Trust Mortgage Loans pursuant to this paragraph, except in the case
of the Outside Serviced Trust Mortgage Loans, shall be on a servicing-released
basis.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders and the Non-Trust Mortgage Loan Noteholders mailed
(i) if such notice is given in connection with the Special Servicer's, a
Controlling Class Certificateholder's, the Master Servicer's, the Depositor's or
Xxxxxx Brothers' 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 (ii) otherwise during the month of such final distribution
on or before the eighth day of such month, in each case specifying (A) the
Distribution Date upon which the Trust Fund will terminate and final payment of
the Certificates will be made, (B) the amount of any such final payment and (C)
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
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the Collection Account and/or the Loss of Value Reserve Fund that are, in
accordance with Section 4.01, allocable to payments on the Class of Certificates
so presented and surrendered.
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.
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, then the Trust Fund (and, accordingly, each REMIC
Pool) shall be terminated in accordance with the following additional
requirements, unless the Person effecting such purchase obtains at its own
expense and delivers to the Trustee and the Tax 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
Person effecting the purchase of all the Trust Mortgage Loans and REO
Properties 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 each Loan REMIC, if
any, to the appropriate Person 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
Sections 4.01 and 9.01 all cash on hand (other than cash retained to meet
claims), and each REMIC Pool shall terminate at that time.
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In addition, the foregoing requirements of this Section 9.02 shall
apply, mutatis mutandis, to the repurchase of any Early Defeasance Trust
Mortgage Loan and liquidation of any related Loan REMIC if the defeasance
proceeds are less than the Purchase Price of such Early Defeasance Trust
Mortgage Loan, the Mortgagor notifies the Master Servicer of its intent to
defease the Early Defeasance Trust Mortgage Loan or the Mortgagor is to tender
other collateral that does not constitute a cash amount equal to or greater than
the Purchase Price of the Early Defeasance Trust Mortgage Loan, under the
circumstances described in Sections 2.03(j) and 2.03(k).
(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. Outside Administered REO Properties.
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
Outside Administered REO Property included in the Trust, and such rights shall
be taken into account in calculating the purchase price payable under Section
9.01 for the purchase of assets out of the Trust Fund.
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The Tax Administrator shall elect to treat each REMIC Pool
as a REMIC under the Code and, if necessary, under applicable state law. Such
election will be made on Form 1066 or other appropriate federal or state Tax
Returns for the taxable year ending on the last day of the calendar year in
which the Certificates are issued.
(b) The REMIC I Regular Interests, the REMIC II Regular
Interests and the Regular Interest Certificates (or, in the case of each Class
of Interest Interest-Only Certificates, each of the REMIC III Components of such
Class) are hereby designated as "regular interests" (within the meaning of
Section 860G(a)(1) of the Code) in REMIC I, REMIC II and REMIC III,
respectively. The Class R-I Certificates, the Class R-II Certificates and the
Class R-III Certificates are hereby designated as the single class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code) in REMIC I,
REMIC II and REMIC III, respectively. Subject to Section 2.06(b), the related
Loan REMIC Regular Interest is hereby designated as a "regular interest" (within
the meaning of Section 860G(a)(1) of the Code), and the Class R-LR Certificates
will evidence the single class of "residual interests" (within the meaning of
Section 860G(a)(2) of the Code, in each Loan REMIC. 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 any REMIC Pool (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 for each Loan
REMIC Regular Interest (if any), each REMIC I Regular Interest, each REMIC II
Regular Interest and each Class of Regular Interest Certificates (or, in the
case of each Class of Interest-Only Certificates, each REMIC III Component of
such Class) is designated in the Preliminary Statement hereto.
(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 any
Grantor Trust 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.
The parties also intend that the portion of the Trust Fund consisting of the
Loss of Value Reserve Fund shall constitute, and the affairs of such portion of
the Trust Fund shall be conducted so as to qualify as, an "outside reserve fund"
within the meaning of Treasury regulations section 1.860G-2(h) and the
provisions hereof shall be interpreted consistently with this intention.
(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
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Administrator has advised it in writing that the Tax Administrator has received
or obtained an Opinion of Counsel to the effect that an Adverse REMIC Event or
an Adverse Grantor Trust Event could result from such action or failure to act.
In addition, prior to taking any action with respect to any REMIC Pool, or
causing any REMIC Pool to take any action, that is not expressly permitted under
the terms of this Agreement, the Master Servicer and the Special Servicer shall
consult with the Tax Administrator or its designee, in writing, with respect to
whether such action could cause an Adverse REMIC Event or an Adverse Grantor
Trust Event to occur. The Tax Administrator may consult with counsel to make
such 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 any related Loan REMIC, as applicable, constitute a
"qualified mortgage" as defined in Section 860G(a)(3) of the Code; or (vi) the
Trust Fund, excluding any Grantor Trust Assets, 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 any 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.
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(m) None of the Trustee, the Master Servicer and the Special
Servicer shall consent to or, to the extent it is within the control of such
Person, permit: (i) the sale or disposition of any of the Trust Mortgage Loans
(except in connection with (A) the default or reasonably foreseeable material
default of a Trust Mortgage Loan, including, but not limited to, the sale or
other disposition of a Mortgaged Property acquired by deed in lieu of
foreclosure, (B) the bankruptcy of any REMIC Pool, (C) the termination of any
REMIC Pool pursuant to Article IX of this Agreement, or (D) a purchase of Trust
Mortgage Loans pursuant to or as contemplated by Article II or III of this
Agreement); (ii) the sale or disposition of any investments in the Collection
Account, the Interest Reserve Account, the Excess Liquidation Proceeds Account,
any Custodial Account or any 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
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or accrual method of accounting, as applicable, and to report on such
Certificateholder's fiscal year if other than the calendar year. The other
parties hereto shall provide on a timely basis to the Tax Administrator or its
designee such information with respect to the Grantor Trust as is in its
possession and reasonably requested by the Tax Administrator to enable it to
perform its obligations under this Section 10.02. Without limiting the
generality of the foregoing, the Depositor, within ten days following the Tax
Administrator's request therefor, shall provide in writing to the Tax
Administrator such information as is reasonably requested by the Tax
Administrator for tax purposes, and the Tax Administrator's duty to perform its
reporting and other tax compliance obligations under this Section 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
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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.
(g) Notwithstanding the foregoing provisions of this Section
10.02, the applicability of this Section 10.02 is subject to Section 2.05(b).
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the
mutual agreement of the parties hereto, without the consent of any of the
Certificateholders or any of the Non-Trust Mortgage Loan Noteholders, (i) to
cure any ambiguity, (ii) to correct, modify or supplement any provision herein
which may be inconsistent with any other provision herein or with the
description thereof in the Prospectus or the Prospectus Supplement, (iii) to add
any other provisions with respect to matters or questions arising hereunder
which shall not be inconsistent with the existing provisions hereof, (iv) to
relax or eliminate any requirement hereunder imposed by the REMIC Provisions or
the Grantor Trust Provisions if those 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 (if created hereunder taking into account
Section 2.05(b)) 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 (if created hereunder taking into account
Section 2.05(b)), (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) hereof,
(viii) to amend any provision of Section 8.15 as contemplated by Section 8.15(m)
hereof, or (ix) to otherwise modify or delete existing provisions of this
Agreement; provided that such amendment (other than any amendment for any of the
specific purposes described in clauses (i), (ii), (iv), (v), (vi), (vii) and
(viii) above) shall not adversely affect in any material respect the interests
of any Certificateholder or Serviced 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 an acknowledgment to such effect from the
subject Certificateholder or Serviced Non-Trust Mortgage Loan Noteholder, as the
case may be, or, in the case of a Class of Certificates to which a rating has
been assigned by one or more Rating Agencies, written confirmation from each
applicable Rating Agency to the effect that such amendment shall not result in
an Adverse Rating Event with respect to any Class of Certificates; 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 Mortgage Loans that
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are required to be distributed on any Certificate, without the consent of the
Holder of such Certificate, or that are required to be distributed to any
Serviced Non-Trust Mortgage Loan Noteholder, without the consent of such
Serviced Non-Trust Mortgage Loan Noteholder, (ii) adversely affect in any
material respect the interests of the Holders of any Class of Certificates or
the interests of any Serviced 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
Serviced 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 not less than 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 all of
the Serviced Non-Trust Mortgage Loan Noteholders, (v) modify the Servicing
Standard without the consent of the Holders of all Regular Interest Certificates
then outstanding, 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 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 (if
created hereunder taking into account Section 2.05(b)) 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 Serviced
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 Pool Custodial Account, in the case of the
Master Servicer and the Special Servicer, pursuant to Section 3.05(a), or out of
the Collection Account, in the case of the Trustee, pursuant to Section 3.05(b).
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund or, to the
extent that it benefits them, the Serviced Non-Trust Mortgage Loan Noteholders,
but only upon direction accompanied by an Opinion of Counsel (the cost of which
may be paid out of the Pool Custodial Account pursuant to Section 3.05(a) or, to
the extent that it benefits the Serviced Non-Trust Mortgage Loan Noteholders,
out of the Loan Combination Custodial Accounts pursuant to Section 3.05A), to
the effect that such recordation materially and beneficially affects the
interests of the Certificateholders and/or the Serviced Non-Trust Mortgage Loan
Noteholders; provided, however, that the Trustee shall have no obligation or
responsibility to determine whether any such recordation of this Agreement is
required.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder (except as expressly provided for
herein) shall have any right to vote or in any manner otherwise control the
operation and management of the Trust Fund, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Person previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates entitled to at least 25% of the
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Voting Rights shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and (except
in the case of a default by the Trustee) 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 any Fiscal Agent each hereby irrevocably (i) submits to the
jurisdiction of any New York State and federal courts sitting in New York City,
to the exclusion of all other courts, with respect to matters arising out of or
relating to this Agreement; (ii) agrees that all claims with respect to such
action or proceeding shall be heard and determined in such New York State or
federal courts, to the exclusion of all other courts; (iii) waives the defense
of an inconvenient forum in connection with such action or proceeding commenced
in such New York State or federal courts; 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; provided that, if both a New York State and a federal court sitting in New
York in which an action or proceeding has been duly and properly commenced by
any party to this Agreement regarding a matter arising out of or relating to
this Agreement have refused to accept jurisdiction over or otherwise have not
accepted such action or proceeding within, in the case of each such court, 60
days of the commencement or filing thereof, then the words "to the exclusion of
all other courts" in clause (i) and clause (ii) of this sentence shall not apply
with regard to such action or proceeding and the reference to "shall" in clause
(ii) of this paragraph shall be deemed to be "may".
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 2006-C1, 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 2006-C1, facsimile number: (704)
715-0036; (iii) in the case of the Special Servicer, LNR Partners, Inc., 0000
Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx 00000, Attention: Xxxxx
Xxxxxxx, LB-UBS Commercial Mortgage Trust 2006-C1, facsimile number: (305)
695-5601; (iv) in the
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case of the Trustee, LaSalle Bank National Association, 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and
Trust Services Group--LB-UBS Commercial Mortgage Trust 2006-C1, facsimile
number: (000) 000-0000; (v) in the case of the Underwriters, (A) Xxxxxx
Brothers, Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx
Xxxx--LB-UBS Commercial Mortgage Trust 2006-C1, facsimile number: (646)
758-4203, and (B) UBS Securities LLC, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxx Xxxxxxxxx, facsimile number: (000) 000-0000, with
a copy to Xxxxxx X. Xxxxxxxxxx, General Counsel; (vi) in the case of the Rating
Agencies, (A) Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Commercial Mortgage Surveillance, facsimile number: (000) 000-0000,
and (B) Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx
Companies, Inc., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: CMBS Surveillance Department, facsimile number: (000) 000-0000; and
(vii) in the case of the initial Controlling Class Representative, Delaware
Securities Holdings LLC, 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx
00000, Attention: Xxxxxx X. Xxxxxx, LB-UBS Commercial Mortgage Trust 2006-C1,
facsimile number: (000) 000-0000; or, as to each such Person, such other address
as may hereafter be furnished by such Person to the parties hereto in writing.
Any communication required or permitted to be delivered to a 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 following
property, whether now owned or existing or hereafter acquired or arising-- (A)
the Trust Mortgage Loans, (B) the UBS/Depositor Mortgage Loan Purchase
Agreement, (C) the respective Co-Lender Agreements, (D) all other assets
included or to be included the Trust Fund, including all principal, interest and
other amounts received or receivable on or with respect to the Trust Mortgage
Loans and due after the Cut-off Date (other than any Principal Prepayments
received on or prior to the Cut-off Date), all amounts (other than those
allocable to the Serviced Non-Trust Mortgage Loans and/or any successor REO
Mortgage Loans with respect thereto) held from time to time in the Custodial
Accounts, the Collection Account, the Interest Reserve Account, the Excess
Liquidation Proceeds Account and, if established, the REO Account(s), the Loss
of Value Reserve Fund and the Defeasance Deposit Account and any and all
reinvestment earnings on such
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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 (E) all proceeds and products of the foregoing; and (ii)
this Agreement shall constitute a security agreement under applicable law. The
Depositor shall file or cause to be filed, a UCC Financing Statement or Form
UCC-1, which shall include a Schedule I substantially in the form attached as
Exhibit J hereto, in the State of Delaware promptly following the initial
issuance of the Certificates, and the Trustee shall prepare, execute and file at
each such office, with the consent of the Depositor hereby given, continuation
statements with respect thereto, in each case within six months prior to the
fifth anniversary of the immediately preceding filing. The Depositor shall
cooperate in a reasonable manner with the Trustee and the Master Servicer in
preparing and filing such continuation statements. This Section 11.07 shall
constitute notice to the Trustee pursuant to any of the requirements of the UCC.
SECTION 11.08. Xxxxxx Act.
Any provisions required to be contained in this Agreement by Section
126 of Article 4-A of the New York Real Property Law are hereby incorporated
herein, and such provisions shall be in addition to those conferred or imposed
by this Agreement; provided, however, that to the extent that such Section 126
shall not have any effect, and if said Section 126 should at any time be
repealed or cease to apply to this Agreement or be construed by judicial
decision to be inapplicable, said Section 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 Outside Master
Servicer and Outside Special Servicer in respect of each Outside Serviced Trust
Mortgage Loan shall be a third-party beneficiary to this Agreement with respect
to its rights as specifically provided for herein and under the related
Co-Lender
-356-
Agreement. The UBS Mortgage Loan Seller shall be a third-party beneficiary to
this Agreement with respect to its rights as specifically provided for in the
second paragraph of Section 2.01(d). LBHI shall be a third-party beneficiary to
this Agreement with respect to its rights as specifically provided for in
Section 3.20(k). This Agreement may not be amended in any manner that would
materially and adversely affect the rights of any such third-party beneficiary
without its consent. No other Person, including any Mortgagor, shall be entitled
to any benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.10. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.11. Notices to Rating Agencies.
(a) The Trustee shall promptly provide notice (which notice
can be set forth on the Distribution Date Statement despite the requirements of
Section 11.05) 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 Outside
Servicer Default that has not been cured;
(iii) the resignation or termination of a 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) [reserved];
(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;
(ii) any change in the location of any Custodial
Account;
(iii) any assumption of, or release of a Mortgagor
under, a Trust Mortgage Loan that is, or a concentration of Trust Mortgage
Loans (by the related sponsor) that is, one of the ten largest Trust
Mortgage Loans as of the date of the assumption (by Stated Principal
Balance); and
-357-
(iv) any incurrence of additional indebtedness
encumbering the Mortgaged Property securing a Trust Mortgage Loan that is,
or a concentration of Trust Mortgage Loans (by the related sponsor) that
is, one of the ten largest Trust Mortgage Loans as of the date that such
debt is incurred (by Stated Principal Balance).
(c) The Special Servicer shall furnish each Rating Agency with
respect to a Specially Serviced Mortgage Loan such information as the Rating
Agency shall reasonably request and which the Special Servicer can reasonably
provide in accordance with applicable law, with copies to the Trustee.
(d) To the extent applicable, each of the Master Servicer and
the Special Servicer shall promptly furnish to each Rating Agency copies of the
following items:
(i) each of its annual statements as to compliance
described in Section 3.13;
(ii) each of its annual independent public accountants'
servicing reports described in Section 3.14; and
(iii) any Officer's Certificate delivered by it to the
Trustee pursuant to Section 3.11(h) or 4.03(c).
(e) The Trustee shall (i) make available to each Rating
Agency, upon reasonable notice, the items described in Section 8.14(b) and (ii)
promptly deliver to each Rating Agency a copy of any notices given pursuant to
Section 7.03(a) or Section 7.03(b).
(f) The Trustee shall promptly deliver to each Rating Agency a
copy of each of the statements and reports described in Section 4.02(a) that is
prepared by it.
(g) The Master Servicer shall give each of Fitch and S&P at
least 15 days' notice prior to any reimbursement to it of Nonrecoverable
Advances from amounts in the Pool Custodial Account allocable to interest on the
Trust Mortgage Loans unless (1) the Master Servicer determines in its sole
discretion that waiting 15 days after such a notice could jeopardize the Master
Servicer's ability to recover Nonrecoverable Advances, (2) changed circumstances
or new or different information becomes known to the Master Servicer that could
affect or cause a determination of whether any Advance is a Nonrecoverable
Advance, whether to defer reimbursement of a Nonrecoverable Advance or the
determination in clause (1) above, or (3) the Master Servicer has not timely
received from the Trustee information requested by the Master Servicer to
consider in determining whether to defer reimbursement of a Nonrecoverable
Advance; provided that, if clause (1), (2) or (3) apply, the Master Servicer
shall give Fitch and S&P notice of an anticipated reimbursement to it of
Nonrecoverable Advances from amounts in the Pool Custodial Account allocable to
interest on the Trust Mortgage Loans as soon as reasonably practicable in such
circumstances. The Master Servicer shall have no liability for any loss,
liability or expense resulting from any notice provided to Fitch or S&P
contemplated by the immediately preceding sentence.
(h) Each of the Trustee, the Master Servicer and the Special
Servicer shall provide to each Rating Agency such other information with respect
to the Mortgage Loans and the Certificates, to the extent such party possesses
such information, as such Rating Agency shall reasonably request.
-358-
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.
-359-
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
STRUCTURED ASSET SECURITIES CORPORATION II
Depositor
By: /s/ Xxxxx Xxxx
-------------------------------------------------
Name: Xxxxx Xxxx
Title: Senior Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
Master Servicer
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
LNR PARTNERS, INC.
Special Servicer
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION
Trustee
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 1st day of February, 2006, before me, a notary public
in and for said State, personally appeared Xxxxx Xxxx, known to me to be a
Senior Vice President of STRUCTURED ASSET SECURITIES CORPORATION II, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxx Xxxxxxx
----------------------------------------
Notary Public
[Notarial Seal]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 26th day of January, 2006, before me, a notary public in and
for said State, personally appeared Xxxxx Xxxxxxxx, 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/ Xxxxx X. Xxxx
----------------------------------------
Notary Public
[Notarial Seal]
STATE OF FLORIDA )
) ss.:
COUNTY OF MIAMI-DADE )
On the 30th day of January, 2006, before me, a notary public in and
for said State, personally appeared Xxxxxx X. Xxxxxx, known to me to be a Vice
President of LNR PARTNERS, INC., one of the entities that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such entity, and acknowledged to me that such entity executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/S/ Xxxxx X. Xxxxxx
----------------------------------------
Notary Public
[Notarial Seal]
STATE OF IL. )
) ss.:
COUNTY OF XXXX )
On the 1st day of February, 2006, before me, a notary public
in and for said State, personally appeared Xxxxxxx X. Xxxxxx, known to me to be
a 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 X'Xxxx
----------------------------------------
Notary Public
[Notarial Seal]
SCHEDULE I
TRUST MORTGAGE LOAN SCHEDULE
MORTGAGE
LOAN
NUMBER PROPERTY NAME ADDRESS CITY STATE
-------- ------------------------------------------- --------------------------------------- ---------------- -------
1 1301 Avenue of the Americas 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx XX
2 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx Xxx Xxxx XX
3 Triangle Town Center 0000 Xxxxxxxx Xxxx Xxxxxxxxx Xxxxxxx XX
0 Xxxxxx Xxxxx Xxxx 0000 Xxxxxxxxx Xxxx Colorado Springs CO
5 Courtyard by Marriott II Fee Portfolio Various Various Various
6 Ashford I Portfolio Various Various Various
7 Ashford II Portfolio Various Various Various
8 One Financial Center 000 Xxxxxxxx Xxxxxx Xxxxxx XX
0 Xxxxxxx Xxxxxx Xxxxxxx Xxxx Xxxx 000 Xxxxx Xxx Xxxxxx Xxx Xxxx XX
10 Highwoods II Portfolio Various Various Various
11 DHL Center 000 Xxxxxx Xxx Xxxxxxxxxxxxx XX
00 Xxxxx Xxxxxx Xxxx 0000 Xxxxx Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx XX
13 Sterling Portfolio Xxxxxxx Xxxxxxx XX
00 Xxxxxxxx Xxxx Xxxxxx Xxxx 100, 200, 000 Xxxxx Xxxxxx Xxxxxxx XX
15 Club Quarters Midtown 00 Xxxx 00xx Xxxxxx Xxx Xxxx XX
00 Xxxx Xxxxxxxx Xxxxxxxxxx, X.X. 000 00xx Xxxxxx, XX Xxxxxxxxxx XX
17 Xxxxxx Leasehold 300 and 0000 Xxxxx Xxxxx Xxxxxxxxx XX
18 Intel Corporate Building 0000 Xxxxx 00 Xxxxxxxxxx XX
19 Windsor at Briarhill Apartments 0000 Xxxxxxxx Xxxx Xxxxxxx XX
00 Xxxxxxxx Xxxxxx 0000-0000 Xx Xxxxx 0 Xxxxx Xxxxxxxxx NJ
21 Rock Creek Apartments 0000 Xxxx Xxxx Xxxx Xxxxxx XX
22 11451 Katy Freeway 00000 Xxxx Xxxxxxx Xxxxxxx XX
23 U-Haul Portfolio - 26 Facilities Portfolio Various Various Various
24 Xxxxxx Fee Interest - Land 300 and 0000 Xxxxx Xxxxx Xxxxxxxxx XX
25 The Shoppes at Schererville 000-000 X.X. Xxxxxxx 00 Xxxxxxxxxxxx XX
00 Xxxx Xxxx Xxxxx 000 Xxxxx 00xx Xxxxxx Xxxxxxx XX
00 Xxxxxxxxx Xxxxx Apartments 000 Xxxx Xxxx Xxxxxxxxxxx XX
00 Xxx Xxxxxxxx at University Place 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxx XX
29 000 Xxxxx Xxxxxx 000-000 Xxxxx Xxxxxx Xxxxxx XX
30 Xxxxxx Xxxxxxxxx Various Various NY
31 000-00 Xxxxxxx Xxxxxx 000-00 Xxxxxxx Xxxxxx Xxxxxxx XX
32 Towne Crossing Shopping Center 0000 Xxx Xxxxxxxxx Xxxx Xxxxxxxx XX
33 U-Haul Portfolio - SAC Portfolio Various Various Various
34 Waldbaums - Farmingdale 000 Xxxx Xxxxxx Xxxxxxxxxxx XX
35 Gap - Fordham 000-000 Xxxx Xxxxxxx Xxxx Xxx Xxxx XX
36 The Barcelona Apartments 000 Xxxxxxx Xxxxxx Xxx Xxxxx XX
00 Xxxxxxxxx Xxxxxxxxx Xxxx 000 Xxxxx 000 Xxxxxxxx XX
38 Williamsburg Manor 0000 Xxxxxxxx Xxxx Xxxxxxxxxx XX
00 Xxxxxxxxxx Xxxxxx 00000 and 00000 Xxxxxxxxxx Xxxxxx Xxxxx Xxxxxxxxxx XX
40 Xxxxxx Multifamily Portfolio Various Various MN
00 Xxxxxxxx Xxxxx 11912-11974 Foothill Boulevard Lakeview Terrace CA
42 MeadWestvaco 0000 Xxxxx Xxxxx Xxxxx Xxxxxxxxxx XX
00 Xx. Xxxxx Xxxxxxx 000 Xxxxx Xxxxx Xxxxx Xxxx Xxxxxxx XX
44 417 North 8th 000-000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxxxx XX
45 Triangle Shopping Center 0000 Xxx Xxxxxx Xxxx Xxxxxxxxx Xxxx XX
00 Xxxxxxx Xxx Xxxxxxxx 000 Xxxxxx Xxxxxx Xxxxxxxx XX
00 Xxxx Xxxx Xxxxx 0000 X. Xxxx Xxxx Xxxx Xxxxxxx XX
48 00 Xxx Xxxx Xxxxx Xxxx 00 Xxx Xxxx Xxxxx Xxxx Xxxxxxxxx XX
49 Walgreens - Milwaukee & Armitage 0000 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxxx XX
50 Xxxxxxx Xxxx Apartments 0000 Xxxxxxx Xxxx Xxxx Xxxxxx XX
51 Holiday Inn-Solana Beach 000 Xxxxx Xxxxxxx 000 Xxxxxx Xxxxx XX
00 Xxxxxxxxxx Xxxxxx 0000 Xxxxxxx Xxxx Xxxxx Xxxxx OR
53 Holiday Inn Express - Destin 000 Xxxxxxxxxx Xxxxxx Xxxxxx XX
54 Walgreens - Lincoln & Xxxxxxxx 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxx XX
00 Xxxxxxx Xxx xxx Xxxxxx - XX 00000 Xxxxx Street Omaha NE
56 Xxxxx - Enterprise Tower 000 Xxxxxxxx Xxxxxx Xxxxxxx XX
57 Peppertree Apartments 0000 Xxxxxxx Xxxxxx Xxxxxxxxx XX
58 Berkshire Manor Apartments 0000 Xxxxxxxxxxx Xxx Xxxxxxxxxxx XX
00 Xxxxxxxxxx Xxxxxx Xxxxx 0000-0000 XxXxxxx Avenue Valparaiso IN
60 Pasadena Apartments 0000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxxx XX
00 Xxxxxxxx Xxxxx 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx Xxxxxxxxxx XX
00 Xxxxxxxx Xxxxx 00000 Xxxxxxx 0 Xxxxxxxxxx XX
00 Xxxx Xxxxx Xxxxxxxx Xxxxxx 0000 Xxxx 00xx Xxxxxx Xxxxxxxx XX
64 Walgreens - Toledo 0000 Xxxxx Xxxx Xxxxxx XX
65 Kroger's - Las Vegas 0000 X. Xxxxx Xxxxxxxxx Xxx Xxxxx XX
MORTGAGE
LOAN CUT-OFF DATE MONTHLY P&I MORTGAGE
NUMBER ZIP CODE BALANCE PAYMENT RATE
-------- -------- -------------- ------------ --------
1 10019 420,783,734.08 1,907,737.99 5.36600
2 10106 145,894,000.00 703,237.79 5.70500
3 27616 127,034,076.00 760,478.36 5.73700
4 80920 121,595,466.83 657,534.50 5.03500
5 Various 120,000,000.00 684,738.69 5.54500
6 Various 110,899,000.00 697,619.10 5.74920
7 Various 100,576,000.00 629,979.72 5.70470
8 02111 99,894,715.70 555,284.30 5.40000
9 10282 84,500,000.00 436,578.44 6.11500
10 Various 71,000,000.00 344,933.45 5.75000
11 18031 55,850,000.00 261,893.84 5.55000
12 43130 50,000,000.00 288,617.89 5.65000
13 Various 49,000,000.00 286,262.05 5.76000
14 02451 45,000,000.00 262,036.00 5.73000
15 10036 42,000,000.00 194,854.24 5.49100
16 20006 30,000,000.00 139,181.60 5.49100
17 14623 24,800,000.00 122,369.63 5.84000
18 07054 23,960,022.00 113,467.62 5.60500
19 30324 23,040,000.00 101,226.67 5.20000
20 08902 20,000,000.00 110,936.76 5.29000
21 75254 19,500,000.00 111,699.60 5.58000
22 77079 18,500,000.00 108,196.14 5.77000
23 Various 18,131,352.63 113,732.35 5.68800
24 14623 17,200,000.00 84,869.26 5.84000
25 46375 16,600,000.00 92,490.07 5.33000
26 68505 16,000,000.00 91,348.81 5.55000
27 31028 15,950,711.87 89,545.53 5.37000
28 28262 13,340,000.00 78,612.99 5.84000
29 07102 13,000,000.00 74,794.30 5.62000
30 Various 12,650,000.00 73,720.84 5.75000
31 11432 12,605,266.19 74,830.10 5.90000
32 75150 12,488,917.50 72,867.22 5.74000
33 Various 12,454,664.78 77,277.72 5.60700
34 11735 11,440,000.00 64,224.26 5.41000
35 10458 11,000,000.00 62,031.74 5.45000
36 92101 10,150,000.00 60,073.52 5.88000
37 10509 9,978,918.17 55,841.37 5.35000
38 46383 9,826,000.00 57,154.74 5.72000
39 20874 9,800,000.00 55,827.92 5.53000
40 Various 9,484,091.23 59,360.87 6.39000
41 91342 9,250,000.00 52,172.80 5.44000
42 29405 8,892,109.26 51,881.46 5.74000
43 08520 8,827,186.68 51,558.66 5.75000
44 19123 8,800,000.00 51,131.02 5.71000
45 78148 8,480,000.00 50,660.46 5.57000
46 07834 8,434,157.82 50,065.98 5.89000
47 32809 8,350,000.00 46,575.57 5.34000
48 10532 8,191,967.45 45,738.88 5.34000
49 60647 8,000,000.00 38,054.63 5.63000
50 75254 7,950,000.00 45,539.07 5.58000
51 92075 7,853,174.92 48,701.81 5.54000
52 97302 7,200,000.00 41,652.05 5.67000
53 32541 7,000,000.00 45,186.72 6.02000
54 60659 6,656,000.00 32,392.53 5.76000
55 65164 6,481,371.19 40,734.95 5.71000
56 79602 6,406,835.79 40,575.54 5.79000
57 28205 6,265,000.00 35,887.08 5.58000
58 32304 6,100,000.00 34,558.62 5.48000
59 46383 6,000,000.00 34,786.01 5.69000
60 48207 5,645,142.79 33,367.74 5.86000
61 33313 5,500,000.00 31,090.50 5.46000
62 55345 5,435,395.63 32,336.28 5.92000
63 66047 5,426,200.00 30,809.37 5.50000
64 43623 5,400,000.00 24,865.63 5.45000
65 89108 5,395,039.74 31,000.26 5.60000
00 Xxxxx - Xxxxxxxxx 0000-0000 Xxxxx 14th Abilene TX
00 Xxxxxxxx Xxxx 000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx XX
68 Palmiers Apartments 0000-0000 Xxxxxxxxx 00xx Xxxxxx Xxxx Xxxxxxxxxx XX
69 Walgreens - Ennis 000 Xxxxx Xxxxxx Xxxxx XX
70 BJs Wholesale Club - Oakhurst 0000 Xxxxx Xxxxxxx 00 Xxxxxxxx XX
71 Wheatland Village Shopping Center 0000-0000 Xxxx Xxxxxxxxx Xxxx Xxxxxx XX
72 Walgreens - Dayton 0000 Xxxxxxxxxx-Xxxxxxxxxxx Xxxx Xxxxxx XX
00 Xxxxxxx Xxx - Xxxxxxx 0000 Xxxxxxx Xxxx Xxxxxxx XX
00 Xxxxxxxx Xxxxxxxx 0000 Xxxxxxxx Xxxxxxx Xxxxxxx XX
75 Allstar Self Storage 0000 Xxxxxx Xxxxxxxxx Xxxxxxxxxx XX
00 Xxxxxxxxx Xxxxxxxxxx Xxxxxxx Xxxx Xxxxx at Cedar Street Greenville NC
00 Xxxxxx Xxxx Self Storage 00000 Xxxxx Xxx Xxxxxx XX
78 Woodland Arms Apartments 00000-00000 Xxxx Xxxxx Xxxx Xxxx Xxxxxxx XX
79 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx Xxxxxxxxx XX
80 1300 Belmont 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx XX
00 Xxxxxxxxx Xxxxxxxxx XX Xxxxxxx Xxxxxx XX
82 000-000 X. Xxxxxxx Xxxxx 000-000 X. Xxxxxxx Xxxxx Xxxxxxx Xxxxx XX
83 000 0xx Xxxxxx 000 0xx Xxxxxx Xxx Xxxxxxxxx XX
84 Hemet Plaza 0000-0000 X. Xxxxxxx Xxx Xxxxx XX
00 Xxxxxxxxx - Xxxxxxx 0000 Xxxxxxx Xxxxx Xxxxxxx TX
86 Infinity Office and Warehouse 0000 Xxxxxxxx Xxxxx Xxxxxxxx XX
87 Willow Tree Apartments 0000 Xxxxxxxxx Xxxx Xxxxxxx XX
00 Xxxx Xxxxxxx Apartments 0000-0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx XX
89 Palms Plaza Shopping Center 0000 X. Xxxx Xxxxx Xxxxxxx Xxxxx XX
00 Xxx Xxxxxx & May 42 Self Storage 0000 XX 00xx Xxxxxx Xxxxxxxx Xxxx XX
91 Grammary, Callowhill & Silk Mill Apartments Various Reading PA
92 0 Xxxxxxxx Xxxxxx 00-00 Xxxxxx Xxxxxx Xxxxxx XX
93 Plaza Mini Storage 0000 Xxxx Xxxxxxxxx Xxxxxx Xxx Xxxxx XX
00 Xx Xxxxx Xxxxx 0000-0000 X. Xxxxxxx Xxxxxx Xxxxxx XX
95 Avenue J 0000-0000 Xxxxxx X Xxxxxxxx XX
96 Spring Ridge II 1105 - 0000 Xxxxx 000xx Xx Xxxxx XX
97 Storage Express Pool III Various Various IN
98 Storage Express Pool I Various Various IN
00 Xxxx Xxxxxxxxxx 000 Xxxxxx Xxxx Xxxxxx NY
000 Xxxxxx Xxxxx 0000 Xxxxx Xxx Xxxxxx Xxxxxx Xxxxxxx XX
101 Hyattsville Warehouse 0000 Xxxxxxxxx Xxxxx Xxxxxxxxxxx XX
000 Xxxxxxxxx Xxxxx Self Storage 0000 Xxxxxxxx Xxxx Xxxxxx XX
000 Xxxxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxxxx Xxxx Xxxxxxx Xxxxx XX
104 Orchard Corners Apartments 0000 Xxxxx Xxxx Xxxxxxxx XX
000 Xxxxxxxx Xxxx Xxxxxxx Xxxxxxx XX
000 Xxxxxxxxx Xxxxx 0 Xxxx Xxxxxx Xxxxxxxxx XX
107 Xxxx Xxxx'x Self Storage 000 Xxxxxx Xxxxxx Xxxxxxxxxx XX
108 Sweetbriar Apartments 000 Xxxxxxxxxx Xxxxx Xxxxxxx XX
109 Park City Shopping Center 000-000 Xxxxx Xxxx Xxxxxx XX
110 Xxxxx - Crossroads 0000 Xxxxxxx Xxx Xxxx Xxxxxxx XX
000 Xxx Xxxxxx Xxxxxx 0000 Xxxx Xxxxxx Xxxxxxx Xxxxxxxxxx XX
112 Xxxxxxxxx Shopping Center 0000 Xxxxx Xxxxx Xxxxxx Xxxxxx XX
113 Keep Safe Self Storage 0000 Xxxxx Xxxxxx Xx. Xxxxxxxxx XX
114 Secur-It Self Storage 0000 Xxxx Xxxxx Xxxx Xxxxxxxxx XX
115 Storage Depot West 000 Xxxxx 0xx Xxxxxx Xxxxxxx XX
000 Xxxxxxxxxx Xxxxxxxx Xxxxxx 000 X. Xxxxxxxxxx Xxxxxxx Xxxxxxxxxx XX
117 Atrium Professional Center 0000 X. Xxxxxxx Xxx Xxxxxx XX
118 Storage Express Pool II Various New Albany IN
119 Village at Killeen Mall 0000 Xxxxx X.X. Xxxxx Xxxxx Xxxxxxx XX
120 Best Western Raleigh Inn & Suites 0000 Xxx Xxxx Xxxxxx Xxxxxxx XX
000 Xxxxx Xxxxx Xxxxxx 000 Xxxxx Xxxx Xxxxxxxx XX
122 Real Blocks 00000 Xxxxxx Xxxx Xxxxx Xxxxx XX
123 Xxxxxxxx Mobile Home Park 00 Xxxxxxxx Xxxx Xxxxxxxxxxxx XX
000 Xxxxxxxx Xxxx 0000-0000 Xxxx Xxxxxxxxx Xxxxxxxx Xxxx XX
000 00xx & Xxxx Xxxx/Xxxxxx Xxxx Xxxxx 0000 Xxxx Xxxxxx, 0000 Xxxx Xxxxxx,
0000-0000 Xxxxx 0 Xxxxx XX
000 Xxxxxx Xxxxxxxx 000 Xxxxxxxxxxx Xxxx Xxxxxx XX
127 SSA Abilene 0000 X. Xxxxx 00xx Xxxxxx Xxxxxxx XX
128 Pine Xxxxx Apts 00000 Xxxx Xxxxx Xxxxx Xxxxxxxx Xxxx XX
000 Xxxxxxxxxx Xxxxx 0000-0000 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxx XX
130 4346 Frankford Plaza 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxxx XX
000 Xxx Xxxxxxxxx xx Xxxxxx Xxxxx 00000 Xxxxx Xxxx 000 Xxxxx Xxxx XX
66 79605 5,185,299.02 32,839.34 5.79000
67 48340 5,100,000.00 30,119.55 5.86000
68 33334 5,100,000.00 29,808.53 5.81000
69 75119 5,072,000.00 23,141.00 5.40000
70 07755 5,000,000.00 29,433.24 5.83000
71 75237 4,909,649.84 27,504.59 5.36000
72 45459 4,867,000.00 23,110.36 5.62000
73 28027 4,779,195.33 29,677.19 5.57000
74 75089 4,752,500.00 29,231.06 6.24000
75 95826 4,639,617.80 28,755.55 6.19000
76 27858 4,585,766.43 25,687.03 5.35000
77 80134 4,391,812.80 26,165.62 5.92400
78 48219 4,344,294.55 27,656.03 5.86000
79 14611 4,300,000.00 24,875.53 5.67000
80 60657 4,300,000.00 25,249.55 5.80700
81 Various 4,300,000.00 25,753.03 5.99000
82 90212 4,200,000.00 23,453.38 5.35000
83 94105 4,200,000.00 25,391.37 6.09000
84 92544 4,187,517.94 23,926.25 5.53000
85 76712 4,066,666.00 18,725.96 5.45000
86 35022 4,050,000.00 23,815.10 5.82000
87 77017 4,000,000.00 21,816.41 5.14000
88 80907 3,875,000.00 22,490.52 5.70000
89 33629 3,642,644.32 20,861.91 5.56000
90 73112 3,596,881.07 21,191.93 5.83000
91 Various 3,593,145.45 21,168.98 5.82000
92 02110 3,588,984.13 20,215.11 5.40000
93 89119 3,493,217.65 20,402.82 5.74000
94 92869 3,493,128.08 20,269.68 5.68000
95 11230 3,450,403.21 20,306.07 5.81000
96 68130 3,450,220.15 20,191.62 5.75000
97 Various 3,425,507.56 19,510.90 5.51000
98 Various 3,310,741.83 18,857.22 5.51000
99 14616 3,300,000.00 20,383.10 6.28000
100 79701 3,250,463.91 18,714.98 5.60000
101 20781 3,200,000.00 18,904.20 5.87500
102 78748 3,097,300.47 18,209.00 5.81000
103 44138 3,088,000.00 17,630.32 5.55000
104 66044 2,980,000.00 16,640.73 5.35000
105 Various 2,797,434.46 16,091.87 5.61000
106 07042 2,780,000.00 15,489.30 5.33000
107 71106 2,775,000.00 16,300.07 5.81000
108 41071 2,750,000.00 15,908.77 5.67000
109 71055 2,700,000.00 16,554.19 6.21000
110 79601 2,692,366.79 17,051.20 5.79000
111 75010 2,691,774.94 15,195.06 5.42000
112 65251 2,650,000.00 15,397.41 5.71000
113 76001 2,638,823.44 14,830.98 5.37000
114 32514 2,600,000.00 15,338.46 5.85000
115 17043 2,594,611.62 14,648.53 5.43000
116 31313 2,592,500.00 15,228.09 5.81000
117 92866 2,592,203.00 14,746.21 5.49000
118 47150 2,425,049.79 13,812.52 5.51000
119 76543 2,400,000.00 13,401.93 5.35000
120 27610 2,397,290.35 16,370.32 6.61000
121 71635 2,238,702.22 12,465.76 5.27300
122 48393 2,228,161.41 13,398.66 6.02000
123 12601 2,144,157.60 13,878.78 6.02000
124 33781 2,045,769.65 11,575.45 5.45000
125
68134 1,998,144.38 11,431.18 5.56000
126 06478 1,995,774.65 11,155.82 5.34000
127 75225 1,991,883.46 11,418.60 5.55000
128 48189 1,928,000.00 11,251.28 5.75000
129 44128 1,896,358.35 11,136.21 5.79000
130 19124 1,775,000.00 11,556.00 6.11000
131 78717 1,769,807.82 10,189.90 5.60000
000 Xxxxx - Xxxxxxxxxx Xxxxx 0000 Xxxxxx Xxxx (X.X. 380) Brownfield TX
133 Monte Carlo Mobile Home Park 0000-0000 Xxxxxxxxx-Xxxx Xxxx, Xxxxx
Xxxxx 0 Xxxxxxxxx XX
000 Xxxxx - Xxxxxxx Xxxxxx 0000-0000 Xxxxxxx Xxxxxxx Xxxxxx XX
135 63055 Corporate Place 00000 Xxxxxxxxx Xxxxx Xxxx XX
136 Dollar Tree 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxxx XX
137 Life Center 0000 Xxxxxxx 000 Xxxx Xxxxxx XX
138 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx Xxxxxxxx XX
139 Xxxxx - Xxxx Verde 0000 Xxxxx Xxxxxxx Xxxxx Xxxxxxx XX
000 Xxxx Xxxx Xxxxxxx 0000 Xxxxxxx Xxxx Xxxx Xxxx XX
141 Family Dollar 2 0000-0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx XX
142 Family Dollar 4 and 5 Portfolio Various Various IL
143 Family Dollar 3 0000 Xxxx 00xx Xxxxxx Xxxxxxx XX
144 Shadybrook Mobile Home Park 0000 Xxxxx Xxxxx 0 Xxxxxx XX
145 Bixby - Park Plaza 0000-0000 Xxxxxx Xxx Xxxxxxxxx XX
132 79316 1,745,052.56 11,051.70 5.79000
133
14423 1,698,546.09 10,061.58 5.88000
134 79331 1,685,222.17 10,672.79 5.79000
135 97701 1,598,463.08 9,004.48 5.42000
136 19082 1,596,626.91 8,934.62 5.35000
137 78735 1,546,766.96 8,703.75 5.40000
138 11211 1,485,000.00 9,613.32 6.05000
139 79707 1,371,112.72 8,683.48 5.79000
140 38637 1,324,752.81 9,320.16 5.75000
141 60609 1,217,439.00 7,740.12 5.86000
142 Various 1,188,452.00 7,555.83 5.86000
143 60636 1,172,025.00 7,451.39 5.86000
144 13166 1,150,000.00 6,414.60 5.34000
145 76801 1,057,003.27 6,694.17 5.79000
MORTGAGE REMAINING REMAINING INTEREST PRIMARY MORTGAGE
LOAN TERM TO MATURITY AMORTIZATION ACCRUAL ADMINISTRATIVE SERVICING LOAN
NUMBER MATURITY DATE TERM BASIS COST RATE FEE GROUND LEASE? SELLER
-------- --------- ---------- ------------ -------- -------------- --------- ---------------------- --------
1 120 1/11/2016 0 Act/360 0.02040 0.00 Fee Simple LB/UBS
2 0 1/11/2016 0 Act/360 0.02040 0.00 Leasehold UBS
3 0 12/5/2015 0 30/360 0.02040 0.00 Fee Simple UBS
4 60 10/11/2010 360 Act/360 0.02040 0.00 Fee Simple LB
5 111 4/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
6 0 12/11/2014 0 Act/360 0.02040 0.00 Fee Simple UBS
7 0 12/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
8 142 10/1/2017 360 30/360 0.02040 0.00 Fee Simple / Leasehold LB
9 60 12/11/2010 0 Act/360 0.02040 0.00 Leasehold LB
10 60 1/11/2011 0 Act/360 0.02040 0.00 Fee Simple LB
11 0 1/11/2016 0 Act/360 0.02040 0.00 Fee Simple UBS
12 120 1/11/2016 360 Act/360 0.02040 0.00 Fee Simple LB
13 0 12/11/2015 0 Act/360 0.02040 0.00 Fee Simple / Leasehold UBS
14 120 1/11/2016 360 Act/360 0.02040 0.00 Fee Simple LB
15 84 11/11/2012 0 Act/360 0.02040 0.00 Fee Simple LB
16 84 11/11/2012 0 Act/360 0.02040 0.00 Fee Simple LB
17 0 1/11/2016 0 Act/360 0.02040 0.00 Leasehold UBS
18 60 1/11/2011 0 Act/360 0.08040 0.07 Fee Simple LB
19 60 9/11/2010 0 Act/360 0.02040 0.00 Fee Simple LB
20 120 10/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
21 120 10/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
22 120 1/11/2016 360 Act/360 0.06040 0.05 Fee Simple LB
23 120 10/11/2015 300 Act/360 0.02040 0.00 Fee Simple LB
24 0 1/11/2016 0 Act/360 0.02040 0.00 Fee Simple UBS
25 120 10/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
26 119 5/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
27 120 10/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
28 180 8/11/2020 360 Act/360 0.02040 0.00 Fee Simple LB
29 0 1/11/2016 0 Act/360 0.02040 0.00 Fee Simple UBS
30 0 12/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
31 0 12/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
32 120 12/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
33 120 10/11/2015 300 Act/360 0.02040 0.00 Fee Simple LB
34 0 12/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
35 0 11/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
36 0 1/11/2016 0 Act/360 0.02040 0.00 Fee Simple UBS
37 120 11/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
38 0 12/11/2012 0 Act/360 0.02040 0.00 Fee Simple UBS
39 0 11/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
40 0 11/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
41 120 7/11/2015 360 Act/360 0.11040 0.10 Fee Simple LB
42 0 12/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
43 0 12/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
44 0 1/11/2016 0 Act/360 0.02040 0.00 Fee Simple UBS
45 120 11/11/2015 324 Act/360 0.02040 0.00 Fee Simple LB
46 0 11/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
47 120 10/11/2015 360 Act/360 0.08040 0.07 Fee Simple LB
48 120 12/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
49 0 1/11/2016 0 Act/360 0.02040 0.00 Fee Simple UBS
50 120 10/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
51 84 9/11/2012 300 Act/360 0.02040 0.00 Fee Simple LB
52 120 11/11/2015 360 Act/360 0.06040 0.05 Fee Simple LB
53 60 1/11/2011 300 Act/360 0.02040 0.00 Fee Simple LB
54 0 1/11/2016 0 Act/360 0.02040 0.00 Fee Simple UBS
55 120 11/11/2015 300 Act/360 0.09040 0.08 Fee Simple LB
56 120 11/11/2015 300 Act/360 0.11040 0.10 Fee Simple LB
57 120 10/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
58 114 7/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
59 120 1/11/2016 360 Act/360 0.02040 0.00 Fee Simple LB
60 120 12/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
61 120 11/11/2015 360 Act/360 0.07040 0.06 Fee Simple LB
62 120 12/11/2015 360 Act/360 0.06040 0.05 Fee Simple LB
63 120 10/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
64 0 11/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
65 120 12/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
66 120 11/11/2015 300 Act/360 0.11040 0.10 Fee Simple LB
67 120 12/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
68 0 1/11/2016 0 Act/360 0.02040 0.00 Fee Simple UBS
69 0 11/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
70 0 1/11/2016 0 Act/360 0.02040 0.00 Fee Simple UBS
71 120 11/11/2015 360 Act/360 0.08040 0.07 Fee Simple LB
72 0 12/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
73 120 10/11/2015 300 Act/360 0.02040 0.00 Fee Simple LB
74 180 12/11/2020 360 Act/360 0.02040 0.00 Fee Simple LB
75 113 11/11/2014 353 Act/360 0.02040 0.00 Fee Simple LB
76 120 10/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
77 72 11/11/2011 360 Act/360 0.02040 0.00 Fee Simple LB
78 120 12/11/2015 300 Act/360 0.02040 0.00 Fee Simple LB
79 0 12/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
80 0 11/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
81 0 1/11/2016 0 Act/360 0.02040 0.00 Fee Simple UBS
82 120 12/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
83 0 1/11/2016 0 Act/360 0.02040 0.00 Fee Simple UBS
84 120 10/11/2015 360 Act/360 0.08040 0.07 Fee Simple LB
85 0 11/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
86 120 12/11/2015 360 Act/360 0.04040 0.03 Fee Simple LB
87 120 8/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
88 0 11/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
89 120 11/11/2015 360 Act/360 0.08040 0.07 Leasehold LB
90 120 12/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
91 120 11/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
92 120 10/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
93 120 11/11/2015 360 Act/360 0.07040 0.06 Fee Simple LB
94 120 11/11/2015 360 Act/360 0.08040 0.07 Fee Simple LB
95 0 11/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
96 120 10/11/2015 360 Act/360 0.11040 0.10 Fee Simple LB
97 120 11/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
98 120 11/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
99 0 11/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
100 0 10/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
101 0 11/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
102 120 12/11/2015 360 Act/360 0.06040 0.05 Fee Simple LB
103 0 11/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
104 120 6/11/2015 360 Act/360 0.11040 0.10 Fee Simple LB
105 0 12/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
106 120 11/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
107 0 1/11/2016 0 Act/360 0.02040 0.00 Fee Simple UBS
108 0 12/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
109 180 1/11/2021 360 Act/360 0.02040 0.00 Fee Simple LB
110 120 11/11/2015 300 Act/360 0.11040 0.10 Fee Simple LB
111 120 10/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
112 120 1/11/2016 360 Act/360 0.02040 0.00 Fee Simple LB
113 120 9/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
114 0 1/11/2016 0 Act/360 0.02040 0.00 Fee Simple UBS
115 120 11/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
116 120 12/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
117 120 10/11/2015 360 Act/360 0.11040 0.10 Fee Simple LB
118 120 11/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
119 120 8/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
120 120 12/11/2015 300 Act/360 0.02040 0.00 Fee Simple LB
121 120 8/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
122 120 12/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
123 0 11/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
124 120 11/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
125 120 12/11/2015 360 Act/360 0.06040 0.05 Fee Simple LB
126 120 11/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
127 120 9/11/2015 360 Act/360 0.06040 0.05 Fee Simple LB
128 120 12/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
129 0 11/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
130 0 11/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
131 120 10/11/2015 360 Act/360 0.08040 0.07 Fee Simple LB
132 120 11/11/2015 300 Act/360 0.11040 0.10 Fee Simple LB
133 0 12/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
134 120 11/11/2015 300 Act/360 0.11040 0.10 Fee Simple LB
135 120 12/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
136 120 11/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
137 120 11/11/2015 360 Act/360 0.02040 0.00 Fee Simple LB
138 0 1/11/2016 0 Act/360 0.02040 0.00 Fee Simple UBS
139 120 11/11/2015 300 Act/360 0.11040 0.10 Fee Simple LB
140 120 12/11/2015 240 Act/360 0.02040 0.00 Fee Simple LB
141 0 1/11/2016 0 Act/360 0.02040 0.00 Fee Simple UBS
142 0 1/11/2016 0 Act/360 0.02040 0.00 Fee Simple UBS
143 0 1/11/2016 0 Act/360 0.02040 0.00 Fee Simple UBS
144 0 10/11/2015 0 Act/360 0.02040 0.00 Fee Simple UBS
145 120 11/11/2015 300 Act/360 0.11040 0.10 Fee Simple LB
MORTGAGE ARD ANTICIPATED
LOAN MORTGAGE REPAYMENT ARD CROSS MORTGAGE LOAN
NUMBER DEFEASANCE LOAN DATE SPREAD COLLATERALIZED SELLER LOAN ID
-------- ------------------------------- -------- ----------- ------ -------------- --------------
1 Defeasance No N/A N/A No 051012009
2 Defeasance No N/A N/A No UBS36
3 Defeasance No N/A N/A No UBS12
4 Defeasance No N/A N/A No 050907005
5 Defeasance No N/A N/A No 051006001
6 Xxxxxxxxxx Xx X/X X/X Xx 00000
7 Defeasance No N/A N/A No 11028
8 Yield Maintenance No N/A N/A No 050816043
9 Yield Maintenance No N/A N/A No 050509001
10 Defeasance No N/A N/A No 051006010
11 Defeasance or Yield Maintenance No N/A N/A No UBS37
12 Defeasance No N/A N/A No 050926002
13 Defeasance No N/A N/A No 11084
14 Defeasance No N/A N/A No 051027011
15 Defeasance or Yield Maintenance No N/A N/A No 051021001
16 Defeasance or Yield Maintenance No N/A N/A No 050928010
17 Yield Maintenance No N/A N/A Yes (UBS-J) 11041
18 Defeasance No N/A N/A No 050608002
19 Defeasance No N/A N/A No 050810002
20 Defeasance No N/A N/A No 050719004
21 Defeasance No N/A N/A No 050519007
22 Defeasance No N/A N/A No 050819001
23 Defeasance No N/A N/A No 000508160400
24 Yield Maintenance No N/A N/A Yes (UBS-J) 11042
25 Defeasance No N/A N/A No 050531003
26 Defeasance No N/A N/A No 050215000
27 Defeasance No N/A N/A No 050809003
28 Yield Maintenance No N/A N/A No 050418002
29 Defeasance No N/A N/A No 11037
30 Defeasance No N/A N/A No 10986
31 Defeasance No N/A N/A No 11015
32 Defeasance No N/A N/A No 051005007
33 Defeasance No N/A N/A No 509270020
34 Defeasance No N/A N/A No 10994
35 Defeasance No N/A N/A No 10985
36 Defeasance No N/A N/A No 11053
37 Yield Maintenance No N/A N/A No 050727005
38 Defeasance No N/A N/A No 11119
39 Defeasance No N/A N/A No 11062
40 Defeasance No N/A N/A No 10751
41 Defeasance No N/A N/A No 050304001
42 Defeasance No N/A N/A No 11083
43 Defeasance No N/A N/A No 10750
44 Defeasance No N/A N/A No 11066
45 Defeasance No N/A N/A No 050719005
46 Defeasance No N/A N/A No 11043
47 Defeasance No N/A N/A No 050712001
48 Yield Maintenance No N/A N/A No 050829005
49 Defeasance No N/A N/A No 11036
50 Defeasance No N/A N/A No 050519006
51 Defeasance No N/A N/A No 050408002
52 Defeasance No N/A N/A No 050809002
53 Defeasance No N/A N/A No 050818001
54 Defeasance No N/A N/A No 11054
55 Yield Maintenance No N/A N/A No 050630001
56 Defeasance No N/A N/A Yes (LB-E) 050812006
57 Defeasance No N/A N/A No 050519001
58 Defeasance No N/A N/A No 050412000
59 Defeasance No N/A N/A No 050921003
60 Defeasance No N/A N/A No 050729001
61 Defeasance No N/A N/A No 050705001
62 Defeasance No N/A N/A No 050815005
63 Defeasance No N/A N/A No 050711001
64 Defeasance No N/A N/A No UBS24
65 Yield Maintenance No N/A N/A No 050714001
66 Defeasance No N/A N/A Yes (LB-E) 050812007
67 Defeasance No N/A N/A No 050729002
68 Defeasance No N/A N/A No 11080
69 Defeasance No N/A N/A No UBS23
70 Defeasance No N/A N/A No UBS34
71 Defeasance No N/A N/A No 050809001
72 Defeasance No N/A N/A No UBS26
73 Defeasance No N/A N/A No 050620006
74 Yield Maintenance No N/A N/A No 050803008
75 Defeasance No N/A N/A No 040421009
76 Defeasance No N/A N/A No 050815006
77 Defeasance No N/A N/A No 050608004
78 Defeasance No N/A N/A No 050729003
00 Xxxxx Xxxxxxxxxxx Xx X/X X/X Xx 00000
80 Defeasance No N/A N/A No 11055
81 Defeasance No N/A N/A No 11112
82 Defeasance No N/A N/A No 050825001
83 Defeasance No N/A N/A No 94105
84 Defeasance No N/A N/A No 050726001
85 Defeasance No N/A N/A No 11039
86 Defeasance No N/A N/A No 050719006
87 Defeasance No N/A N/A No 050602003
88 Defeasance No N/A N/A No 11030
89 Defeasance No N/A N/A No 050804004
90 Defeasance No N/A N/A No 050830019
91 Defeasance No N/A N/A No 050829001
92 Defeasance No N/A N/A No 050731001
93 Defeasance No N/A N/A No 050713001
94 Defeasance No N/A N/A No 050809004
95 Defeasance No N/A N/A No 11049
96 Defeasance No N/A N/A No 050411034
97 Defeasance No N/A N/A No 051020007
98 Defeasance No N/A N/A No 051020005
99 Defeasance No N/A N/A No 11034
100 Defeasance No N/A N/A No 10974
101 Defeasance No N/A N/A No 10878
102 Defeasance No N/A N/A No 050906032
103 Defeasance No N/A N/A No 10972
104 Defeasance No N/A N/A No 050512003
105 Defeasance No N/A N/A No 11035
106 Defeasance No N/A N/A No 050803009
000 Xxxxx Xxxxxxxxxxx Xx X/X X/X Xx 00000
108 Defeasance No N/A N/A No 11060
109 Yield Maintenance No N/A N/A No 050630006
110 Defeasance No N/A N/A Yes (LB-E) 050812002
111 Defeasance No N/A N/A No 050718002
112 Defeasance No N/A N/A No 050823001
113 Defeasance No N/A N/A No 050706001
000 Xxxxx Xxxxxxxxxxx Xx X/X X/X Xx 00000
115 Defeasance No N/A N/A No 050516007
116 Defeasance No N/A N/A No 050817040
117 Defeasance No N/A N/A No 050719002
118 Defeasance No N/A N/A No 051020006
119 Defeasance No N/A N/A No 050201005
120 Defeasance No N/A N/A No 050506002
121 Defeasance No N/A N/A No 050204006
122 Defeasance No N/A N/A No 050606001
123 Defeasance No N/A N/A No 10937
124 Defeasance No N/A N/A No 050629007
125 Defeasance No N/A N/A No 050929001
126 Yield Maintenance No N/A N/A No 050727006
127 Yield Maintenance No N/A N/A No 050328000
128 Defeasance No N/A N/A No 050610002
129 Defeasance No N/A N/A No 10973
130 Defeasance No N/A N/A No 10957
131 Defeasance No N/A N/A No 050819003
132 Defeasance No N/A N/A Yes (LB-E) 050812001
000 Xxxxxxxxxx Xx X/X X/X Xx 00000
134 Defeasance No N/A N/A Yes (LB-E) 050812005
135 Defeasance No N/A N/A No 050411013
136 Defeasance No N/A N/A No 050628003
137 Defeasance No N/A N/A No 050803001
138 Defeasance Xx X/X X/X Xx 00000
000 Xxxxxxxxxx Xx X/X X/X Yes (LB-E) 050812003
140 Defeasance No N/A N/A No 050808001
141 Defeasance No N/A N/A No 11130b
000 Xxxxxxxxxx Xx X/X X/X Xx 00000x
143 Defeasance No N/A N/A No 11130c
144 Defeasance No N/A N/A No 10942
145 Defeasance No N/A N/A Yes (LB-E) 050812004
SCHEDULE II
REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR
(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 January 2006 (or, if the Mortgage
Loan does not have a Due Date in January 2006, then as of the Cut-off Date).
(ii) Legal Compliance. If such Mortgage Loan was originated by the
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 the 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 in the origination of
comparable mortgage loans by the Xxxxxx Mortgage Loan Seller, as of the date of
its origination, such Mortgage Loan complied in all material respects with, or
was exempt from, all requirements of federal, state or local law relating to the
origination of such Mortgage Loan.
(iii) Ownership of Xxxxxx Trust Mortgage Loan. The Depositor owns such
Mortgage Loan, has good title thereto, has full right, power and authority to
sell, assign and transfer such Mortgage Loan and is transferring such Mortgage
Loan free and clear of any and all liens, pledges, charges or security interests
of any nature encumbering such Mortgage Loan, exclusive of the servicing rights
pertaining thereto; no provision of the Mortgage Note, Mortgage(s) or other loan
documents relating to such Mortgage Loan prohibits or restricts the Depositor's
right to assign or transfer such Mortgage Loan to the Trustee (except in the
case of a Loan Combination, which may, pursuant to the related Co-Lender
Agreement, require notice to one or more rating agencies or another lender
which, if required, has already been provided); no governmental or regulatory
approval or consent is required for the sale of such Mortgage Loan by the
Depositor; and the Depositor has validly conveyed to the Trustee a legal and
beneficial interest in and to such Mortgage Loan free and clear of any lien,
claim or encumbrance of any nature.
(iv) No Holdback. The proceeds of such Mortgage Loan have been fully
disbursed (except in those cases where the full amount of such Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
to be released pending the satisfaction of certain conditions relating to
leasing, repairs or other matters with respect to the related Mortgaged
Property) and there is no requirement for future advances thereunder.
(v) Loan Document Status. Each of the related Mortgage Note,
Mortgage(s), Assignment(s) of Leases, if separate from the related Mortgage, and
other agreements executed in favor of the lender in connection therewith is the
legal, valid and binding obligation of the maker thereof (subject to the
non-recourse provisions therein and any state anti-deficiency legislation),
enforceable in accordance with its terms, except that (A) such enforcement may
be limited by (1) bankruptcy, insolvency, receivership, reorganization,
liquidation, voidable preference, fraudulent conveyance and transfer, moratorium
and/or other similar laws affecting the enforcement of creditors' rights
generally, and (2) general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law), and (B) certain provisions in the subject agreement or
instrument may be further limited or rendered unenforceable by applicable law,
but subject to the limitations set forth in the foregoing clause (A), such
limitations will not render that subject agreement or instrument invalid as a
whole or substantially interfere with the mortgagee's realization of the
principal benefits and/or security provided by the subject agreement or
instrument. Such Mortgage Loan is non-recourse to the Mortgagor or any other
Person except to the extent provided in certain nonrecourse carveouts and/or in
any applicable guarantees. 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 or expenses
suffered or incurred by the mortgagee under such Mortgage Loan by reason of or
in connection with and to the extent of (A) any material intentional fraud or
material intentional misrepresentation by the related mortgagor; (B) any breach
on the part of the related mortgagor of any environmental representations
warranties and covenants contained in the related Mortgage Loan documents; and
(C) the filing of a voluntary bankruptcy or insolvency proceeding by the related
mortgagor; provided that, instead of any breach described in clause (B) of this
paragraph, the related Mortgagor or such other Person may instead be liable 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 (v)
above, there was no valid offset, defense, counterclaim or right to rescission,
abatement of amounts due under the Mortgage Note or diminution of amounts due
under the Mortgage Note 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 (v) above, there is no valid offset,
defense, counterclaim or right of rescission, abatement of amounts due under the
Mortgage Note or diminution of amounts due under the Mortgage Note with respect
to any of the related Mortgage Note, Mortgage(s) or other agreements executed in
connection with such Mortgage Loan.
(vii) Assignments. The assignment of the related Mortgage(s) and
Assignment(s) of Leases to the Trustee (or, in the case of an Outside Serviced
Trust Mortgage Loan, to the related Outside Trustee) constitutes the legal,
valid, binding and, subject to the limitations and exceptions as to
enforceability set forth in paragraph (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).
(viii) First Lien. Each related Mortgage is a valid and, subject to
the limitations and exceptions in paragraph (v) above, enforceable first lien on
the related Mortgaged Property including all improvements thereon (other than
any tenant owned improvements), 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 the subject Xxxxxx Trust Mortgage Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Cross-Collateralized Group; provided
that, in the case of a Xxxxxx Trust Mortgage Loan that is part of a Loan
Combination, such Mortgage also secures the other mortgage loan(s) in such Loan
Combination. With respect to the subject 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 cash flow to enable the related Mortgagor to timely pay in full the
principal and interest on the related Mortgage Note (other than a Balloon
Payment, which would require a refinancing). If the related Mortgaged Property
is operated as a nursing facility or a hospitality property, the related
Mortgage, together with any security agreement, chattel mortgage or similar
agreement and UCC financing statement, if any, establishes and creates a first
priority, perfected security interest (subject only to any prior purchase money
security interest, revolving credit lines and any personal property leases), to
the extent such security interest can be perfected by the recordation of a
Mortgage or the filing of a UCC financing statement, in all material personal
property owned by the Mortgagor that is used in, and is reasonably necessary to,
the operation of the related Mortgaged Property, and that is located on the
related Mortgaged Property, which personal property includes, in the case of
Mortgaged Properties operated by the related Mortgagor as a nursing facility or
hospitality property, all furniture, fixtures, equipment and other personal
property located at the subject Mortgaged Property that are owned by the related
Mortgagor and reasonably necessary or material to the operation of the subject
Mortgaged Property. In the case of any Xxxxxx Trust Mortgage Loan secured by a
hotel, the related loan documents contain such provisions as are necessary and
UCC financing statements have been filed as necessary, in each case, to perfect
a valid first priority security interest, to the extent such security interest
can be perfected by the inclusion of such provisions and the filing of a UCC
financing statement, in the Mortgagor's right to receive related hotel room
revenues with respect to such Mortgaged Property.
(ix) Taxes and Assessments. All taxes, governmental assessments, water
charges, sewer rents or similar governmental charges which, in all such cases,
were directly related to the related Mortgaged Property and could constitute
liens on the related Mortgaged Property prior to the lien of the related
Mortgage, together with all ground rents, that prior to the related Due Date in
January 2006 (or, if the Mortgage Loan does not have a Due Date in January 2006,
then prior to the Cut-off Date) 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 subject Mortgaged
Property and could constitute liens on the subject Mortgaged Property prior to
the lien of the related Mortgage that prior to the Closing Date became due and
delinquent in respect of any related Mortgaged Property, or in any such case an
escrow of funds in an amount sufficient to cover such payments has been
established.
(x) No Material Damage. As of the date of origination of such Mortgage
Loan and, to the actual knowledge of the Depositor, as of the Closing Date,
there was no pending proceeding for the total or partial condemnation of any
related Mortgaged Property that materially affects the value thereof and such
Mortgaged Property is free of material damage. Except for certain amounts not
greater than amounts which would be considered prudent by an institutional
commercial mortgage lender with respect to a similar mortgage loan and which are
set forth in the related Mortgage or other loan documents relating to such
Mortgage Loan, and further 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)
to either the repair or restoration of all or part of the related Mortgaged
Property or the reduction of the outstanding principal balance of such Mortgage
Loan.
(xi) Title Insurance. Each related Mortgaged Property is covered by an
ALTA (or its equivalent) lender's title insurance policy issued by a nationally
recognized title insurance company, insuring that each related Mortgage is a
valid first lien on such Mortgaged Property in the original principal amount of
such Mortgage Loan (or, if such Mortgage Loan is part of a Loan Combination, in
the original principal amount of such Loan Combination) after all advances of
principal, subject only to Permitted Encumbrances and, in the case of a Xxxxxx
Trust Mortgage Loan that is part of a Loan Combination, further subject to the
fact that the related Mortgage also secures the related Non-Trust Mortgage
Loan(s) (or, if such policy has not yet been issued, such insurance may be
evidenced by a binding commitment or binding pro forma marked as binding and
signed (either thereon or on a related escrow letter attached thereto) by the
title insurer or its authorized agent) from a title insurer qualified and/or
licensed in the applicable jurisdiction, as required, to issue such policy; such
title insurance 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 an Outside Serviced Trust Mortgage Loan, the benefit of the related Outside
Trustee) as sole insured as mortgagee of record, or any such commitment or
binding pro forma is a legal, valid and binding obligation of such insurer; no
claims have been made by the Depositor or the Xxxxxx Mortgage Loan Seller under
such title insurance; and neither the Depositor nor the Xxxxxx Mortgage Loan
Seller (or any of its Affiliates) has done, by act or omission, anything that
would materially impair the coverage of any such title insurance policy; such
policy or commitment or binding pro forma contains no exclusion for (or
alternatively it insures over such exclusion, unless such coverage is
unavailable in the relevant jurisdiction) (A) access to a public road, (B) that
there is no material encroachment by any improvements on the related Mortgaged
Property either to or from any adjoining property or across any easements on the
related Mortgaged Property, and (C) that the land shown on the survey materially
conforms to the legal description of the related Mortgaged Property.
(xii) Property Insurance. As of the date of its origination and, to
the Depositor's actual knowledge, as of the Cut-off Date, all insurance required
under each related Mortgage (except where a tenant under a lease is permitted to
insure or self-insure under a lease)
was in full force and effect with respect to each related Mortgaged Property;
such insurance included (A) fire and extended perils insurance included within
the classification "All Risk of Physical Loss" or the equivalent thereof in an
amount (subject to a customary deductible) at least equal to the lesser of (1)
100% of the full insurable value of the improvements located on such Mortgaged
Property and (2) the outstanding principal balance of such Mortgage Loan 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 or in
"seismic zone" 3 or 4 and (2) a seismic assessment as described below revealed a
maximum probable or bounded loss in excess of 20% of the amount of the estimated
replacement cost of the improvements on such Mortgaged Property, seismic
insurance; it is an event of default under such Mortgage Loan if the
above-described insurance coverage is not maintained by the related Mortgagor
(except where a tenant under a lease is permitted to insure or self-insure under
a lease) and the related loan documents provide (in either a general cost and
expense recovery provision or a specific provision with respect to recovery of
insurance costs and expenses) that any reasonable out-of-pocket costs and
expenses incurred by the mortgagee in connection with such default in obtaining
such insurance coverage may be recovered from the related Mortgagor; the related
Evidence of Property Insurance and certificate of liability insurance (which may
be in the form of an Xxxxx 27 or an Xxxxx 25, respectively), or forms
substantially similar thereto, provide that the related insurance policy may not
be terminated or reduced without at least 10 days prior notice to the mortgagee
and (other than those limited to liability protection) name the mortgagee and
its successors as loss payee; no notice of termination or cancellation with
respect to any such insurance policy has been received by the Depositor or the
Xxxxxx Mortgage Loan Seller; all premiums under any such insurance policy have
been paid through the Cut-off Date; the insurance policies specified in clauses
(A), (B) and (C) above are required to be maintained with insurance companies
having "financial strength" or "claims paying ability" ratings of at least
"A: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 for rating the Certificates); and, except for certain
amounts not greater than amounts which would be considered prudent by an
institutional commercial mortgage lender with respect to a similar mortgage loan
and which are set forth in the related Mortgage or other loan documents relating
to such Mortgage Loan, and subject to the related exception schedules, the
related Mortgage Loan documents provide that any property insurance proceeds
will be applied (or, at the discretion of the mortgagee, will be applied) either
to the repair or restoration of all or part of the related Mortgaged Property or
the reduction of the outstanding principal balance of such Mortgage Loan;
provided that the related Mortgage Loan 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 (xii), with regard to insurance for acts of terrorism, any such
insurance and the amount 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. If the related Mortgaged Property is located in the State of
California or in "seismic zone" 3 or 4, then: (A) either a seismic assessment
was conducted with respect to the related Mortgaged Property in connection with
the origination of
such Mortgage Loan or earthquake insurance was obtained; and (B) the probable
maximum loss for the related Mortgaged Property as reflected in such seismic
assessment, if any, was determined based upon a return period of not less than
475 years, an exposure period of 50 years and a 10% probability of incidence.
Schedule III-(xii) attached hereto is true and correct in all material respects.
(xiii) No Material Defaults. Other than payments due but not yet 30
days or more delinquent, there is (A) no material default, breach, violation or
event of acceleration existing under the related Mortgage Note, the related
Mortgage or other loan documents relating to such Mortgage Loan, and (B), to the
knowledge of the Depositor, no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
material default, breach, violation or event of acceleration under any of such
documents; provided, however, that this representation and warranty does not
cover any default, breach, violation or event of acceleration (A) that
specifically pertains to or arises out of the subject matter otherwise covered
by any other representation and warranty made by the Depositor in this Schedule
II) or (B) with respect to which neither the Depositor nor the Xxxxxx Mortgage
Loan Seller has any actual knowledge. Neither the Depositor nor the Xxxxxx
Mortgage Loan Seller has waived, in writing or with knowledge, any material
default, breach, violation or event of acceleration under any of such documents.
Under the terms of such Mortgage Loan, no person or party other than the
mortgagee or its servicing agent may declare an event of default or accelerate
the related indebtedness under such Mortgage Loan.
(xiv) No Payment Delinquency. As of the Closing Date, such Mortgage
Loan is not, and in the prior 12 months (or since the date of origination if
such Mortgage Loan has been originated within the past 12 months), has not been,
30 days or more past due in respect of any Monthly Payment.
(xv) Interest Accrual Basis. Such Mortgage Loan accrues interest on an
Actual/360 Basis or a 30/360 Basis; and such Mortgage Loan accrues interest
(payable monthly in arrears) at a fixed rate of interest throughout the
remaining term thereof (except if such Mortgage Loan is an ARD Mortgage Loan, in
which case the accrual rate for interest will increase after its Anticipated
Repayment Date, and except in connection with the occurrence of a default and
the accrual of default interest).
(xvi) Subordinate Debt. Each related Mortgage or other loan document
relating to such Mortgage Loan does not provide for or permit, without the prior
written consent of the holder of the related Mortgage Note, any related
Mortgaged Property or any direct controlling interest in the Mortgagor to secure
any other promissory note or debt (other than another Mortgage Loan in the Trust
Fund and, if such Mortgage Loan is part of a Loan Combination, the other
mortgage loan(s) that are part of such Loan Combination, as applicable).
(xvii) Qualified Mortgage. Such Mortgage Loan is "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code. Accordingly, either as of
the date of origination or the Closing Date, the fair market value of the real
property securing such Mortgage Loan was not less than 80% of the "adjusted
issue price" (within the meaning of the REMIC Provisions) of such Mortgage Loan.
For purposes of the preceding sentence, the fair market value of the real
property securing such Mortgage Loan was first reduced by the amount of any lien
on such real property that is senior to the lien that secures such Mortgage
Loan, and
was further reduced by a proportionate amount of any lien that is on a parity
with the lien that secures such Mortgage Loan. No action that occurs by
operation of the terms of such Mortgage Loan would cause such Mortgage Loan to
cease to be a "qualified mortgage" and such Mortgage Loan does not permit the
release or substitution of collateral if such release or substitution (A) would
constitute a "significant modification" of such Mortgage Loan within the meaning
of Treasury regulations section 1.1001-3, (B) would cause such Mortgage Loan not
to be a "qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code (without regard to clauses (A)(i) or (A)(ii) thereof) or (C) would cause a
"prohibited transaction" within the meaning of Section 860F(a)(2) of the Code.
The related Mortgaged Property, if acquired in connection with the default or
imminent default of such Mortgage Loan, would constitute "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code.
(xviii) Prepayment Consideration. Prepayment Premiums and Yield
Maintenance Charges payable with respect to such Mortgage Loan, if any,
constitute "customary prepayment penalties" within the meaning of Treasury
regulations section 1.860G-1(b)(2).
(xix) Environmental Conditions. One or more environmental site
assessments or 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 of 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 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.
The Mortgagor with respect to such Mortgage Loan has represented,
warranted and covenanted generally to the effect that, to its knowledge, except
as set forth in the environmental reports described above, it has not used,
caused or permitted to exist, and will not use, cause or permit to exist, on the
related Mortgaged Property, any Hazardous Materials in any manner which violates
applicable federal, state or local laws governing the use, storage, handling,
production or disposal of Hazardous Materials at the related Mortgaged Property
and (A) the related Mortgagor and a natural person have agreed to indemnify the
mortgagee under such Mortgage Loan, and its successors and assigns, against any
losses, liabilities, damages, penalties, fines, claims and reasonable out of
pocket expenses (excluding lost profits, consequential damages and diminution of
value of the related Mortgaged Property, provided that no Xxxxxx Trust Mortgage
Loan with an original principal balance equal to or greater than
$15,000,000 contains an exclusion for "diminution of value" of the related
Mortgaged Property) paid, suffered or incurred by such mortgagee resulting from
such Mortgagor's material violation of any environmental law or a material
breach of the environmental representations and warranties or covenants given by
the related Mortgagor in connection with such Mortgage Loan or (B) environmental
insurance has been obtained. If such Mortgage Loan is a Mortgage Loan as to
which neither a natural person has provided the indemnity set forth above nor
environmental insurance has been obtained, such Mortgage Loan is set forth on
Schedule III-(xix).
The Depositor has not taken any action with respect to such Mortgage
Loan or the related Mortgaged Property that could subject the Depositor or its
successors and assigns in respect of such Mortgage Loan to liability under
CERCLA or any other applicable federal, state or local environmental law. The
related Mortgage or other loan documents require the related Mortgagor to comply
with all applicable federal, state and local environmental laws and regulations.
(xx) Realization Against Real Estate Collateral. The related Mortgage
Note, Mortgage(s), Assignment(s) of Leases and other loan documents securing
such Mortgage Loan, if any, contain customary and, subject to the limitations
and exceptions as to enforceability in paragraph (v) above, enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property or
Properties of the principal benefits of the security intended to be provided
thereby, including realization by judicial or, if applicable, non-judicial
foreclosure.
(xxi) Bankruptcy. The related Mortgagor is not a debtor in any
bankruptcy, reorganization, insolvency or comparable proceeding; provided,
however, that this representation and warranty does not cover any such
bankruptcy, reorganization, insolvency or comparable proceeding with respect to
which: (1) neither the Depositor nor the Xxxxxx Mortgage Loan Seller has any
actual knowledge and (2) written notice of the discovery thereof is not
delivered to the Depositor by the Trustee or the Master Servicer on or prior to
the date occurring twelve months after the Closing Date.
(xxii) Loan Security. Such Mortgage Loan is secured by a Mortgage on a
fee simple interest and/or a leasehold estate in a commercial property or
multifamily property, including the related Mortgagor's interest in the
improvements on the related Mortgaged Property.
(xxiii) Amortization. Such Mortgage Loan does not provide for negative
amortization, unless such Mortgage Loan is an ARD Mortgage Loan, in which case
it may occur only after the Anticipated Repayment Date.
(xxiv) Whole Loan. Such Mortgage Loan is a whole loan, contains no
equity participation by the lender or shared appreciation feature and does not
provide for any contingent interest in the form of participation in the cash
flow of the related Mortgaged Property.
(xxv) Due-on-Encumbrance. Each Xxxxxx Trust Mortgage Loan contains
provisions for the acceleration of the payment of the unpaid principal balance
of such Mortgage Loan if, without the prior written consent of the mortgagee or
Rating Agency confirmation that an Adverse Rating Event with respect to any
Class of Certificates would not occur, any related
Mortgaged Property or any direct controlling interest in the Mortgagor is
directly encumbered in connection with subordinate financing; and, except in the
case of a Xxxxxx Trust Mortgage Loan that is part of a Loan Combination (for
which such consent has been granted with respect to the other mortgage loan(s)
in such Loan Combination), and except for the respective Xxxxxx Trust Mortgage
Loans secured by the Mortgaged Properties listed on Schedule III-(xxv) (for
which such consent has been granted with respect to mezzanine debt), no such
consent has been granted by the Xxxxxx Mortgage Loan Seller. To the Depositor's
knowledge, no related Mortgaged Property is encumbered in connection with
subordinate financing (except that each Mortgaged Property securing a Xxxxxx
Trust Mortgage Loan that is part of a Loan Combination also secures the other
mortgage loan(s) in such Loan Combination); however, if the related Mortgaged
Property is listed on Schedule III-(xxv), then certain direct controlling equity
holders in the related Mortgagor are known to the Depositor to have incurred
debt secured by their ownership interest in the related Mortgagor.
(xxvi) Due-on-Sale. Except with respect to transfers of certain
non-controlling and/or minority interests in the related Mortgagor as specified
in the related Mortgage or with respect to transfers of interests in the related
Mortgagor between immediate family members and with respect to transfers by
devise, by descent or by operation of law or otherwise upon the death or
incapacity of a person having an interest in the related Mortgagor, each Xxxxxx
Trust Mortgage Loan contains either (A) provisions for the acceleration of the
payment of the unpaid principal balance of such Mortgage Loan if any related
Mortgaged Property or interest therein is directly or indirectly transferred or
sold without the prior written consent of the mortgagee or rating agency
confirmation, or (B) provisions for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if any related Mortgaged Property
or interest therein is directly or indirectly transferred or sold without the
related Mortgagor having satisfied certain conditions specified in the related
Mortgage with respect to permitted transfers.
(xxvii) Mortgagor Concentration. Except in the case of the Xxxxxx
Trust Mortgage Loans secured by the Mortgaged Properties identified on the Trust
Mortgage Loan Schedule as 1301 Avenue of the Americas and Chapel Hills Mall,
respectively, 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.
(xxviii) Waivers; Modifications. Except as set forth in a written
instrument included in the related Mortgage File, the (A) material terms of the
related Mortgage Note, the related Mortgage(s) and any related loan agreement
and/or lock-box agreement have not been waived, modified, altered, satisfied,
impaired, canceled, subordinated or rescinded by the mortgagee in any manner,
and (B) no portion of a related Mortgaged Property has been released from the
lien of the related Mortgage, in the case of (A) and/or (B), to an extent or in
a manner that in any such event materially interferes with the security intended
to be provided by such document or instrument.
(xxix) Inspection. Each related Mortgaged Property was inspected by or
on behalf of the related originator during the six-month period prior to the
related origination date.
(xxx) Property Release. The terms of the related Mortgage Note,
Mortgage(s) or other loan document securing such Mortgage Loan do not provide
for the release from the lien of such Mortgage of any material portion of the
related Mortgaged Property that is necessary to
the operation of such Mortgaged Property or was given material value in the
underwriting of such Mortgage Loan at origination, without (A) payment in full
of such Mortgage Loan, (B) delivery of Defeasance Collateral in the form of
"government securities" within the meaning of Section 2(a)(16) of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), (C) delivery of
substitute real property collateral, or (D) payment of a release price equal to
at least 125% of the amount of such Mortgage Loan allocated to the related
Mortgaged Property subject to the release or (E) the satisfaction of certain
underwriting and legal requirements which the Xxxxxx Mortgage Loan Seller
required in the origination of comparable mortgage loans.
(xxxi) Qualifications; Licensing; Zoning. The related Mortgagor has
covenanted in the related Mortgage Loan documents to maintain the related
Mortgaged Property in compliance in all material respects with, to the extent it
is not grandfathered under, all applicable laws, zoning ordinances, rules,
covenants and restrictions affecting the construction, occupancy, use and
operation of such Mortgaged Property, and the related originator performed the
type of due diligence in connection with the origination of such Mortgage Loan
customarily performed by such originator in the origination of comparable
mortgage loans 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 (xi) above (or an endorsement thereto)); to the
Depositor's knowledge (based on surveys, opinions, letters from municipalities
and/or title insurance obtained in connection with the origination of such
Mortgage Loan), no improvement that was included for the purpose of determining
the appraised value of the related Mortgaged Property at the time of origination
of such Mortgage Loan lay outside the boundaries and building restriction lines
of such property, in effect at the time of origination of such Mortgage Loan, to
an extent which would have a material adverse affect on the related Mortgagor's
use and operation of such Mortgaged Property (unless grandfathered with respect
thereto or affirmatively covered by the title insurance referred to in paragraph
(xi) above (or an endorsement thereto)), and no improvements on adjoining
properties encroached upon such Mortgaged Property to any material extent.
(xxxii) Property Financial Statements. The related Mortgagor has
covenanted in the related Mortgage Loan documents to deliver to the mortgagee
annual operating statements and rent rolls of each related Mortgaged Property.
If such Mortgage Loan had an original principal balance greater than $15
million, the related Mortgagor has covenanted to provide such operating
statements and rent rolls on a quarterly basis.
(xxxiii) Single Purpose Entity. If such Mortgage Loan has a Cut-off
Date Balance in excess of $25 million, then the related Mortgagor is obligated
by its organizational documents and the related Mortgage Loan documents to be a
Single Purpose Entity for so long as such Mortgage Loan is outstanding; and, if
such Mortgage Loan has a Cut-off Date Balance greater than $5 million and less
than $25 million, then the related Mortgagor is obligated by its organizational
documents and/or the related Mortgage Loan documents to own the related
Mortgaged Property and no other material assets, except such as are incidental
to the ownership of such Mortgaged Property for so long as such Mortgage Loan is
outstanding. For purposes of this representation, "Single Purpose Entity" means
an entity whose organizational documents or the related Mortgage Loan documents
provide substantially to the effect that such entity: (A) is
formed or organized solely for the purpose of owning and operating one or more
of the Mortgaged Properties securing such Mortgage Loan, (B) may not engage in
any business unrelated to the related Mortgaged Property or Mortgaged
Properties, (C) does not have any material assets other than those related to
its interest in and operation of such Mortgaged Property or Mortgaged Properties
and (D) may not incur indebtedness other than as permitted by the related
Mortgage or other Mortgage Loan documents. If such Mortgage Loan has an initial
principal balance of $25 million and above and the related Mortgagor is a single
member limited liability company, such Mortgagor's organizational documents
provide that such Mortgagor shall not dissolve or liquidate upon the bankruptcy,
dissolution, liquidation or death of its sole member and is organized in a
jurisdiction that provides for such continued existence and there was obtained
opinion of counsel confirming such continued existence. If such Mortgage Loan
has, or is part of a group of Xxxxxx Trust Mortgage Loans with affiliated
Mortgagors having, a Cut-off Date Balance equal to or greater than 2% of the
Initial Pool Balance, or if such Mortgage Loan has an original principal balance
equal to or greater than $25 million, there was obtained an opinion of counsel
regarding non-consolidation of such Mortgagor.
(xxxiv) Advancing of Funds. No advance of funds has been made,
directly or indirectly, by the originator or the Depositor to the related
Mortgagor other than pursuant to the related Mortgage Note; and, to the actual
knowledge of the Depositor, no funds have been received from any Person other
than such Mortgagor for or on account of payments due on the related Mortgage
Note.
(xxxv) Legal Proceedings. To the Depositor's actual knowledge, there
are no pending actions, suits or proceedings by or before any court or
governmental authority against or affecting the related Mortgagor or any related
Mortgaged Property that, if determined adversely to such Mortgagor or Mortgaged
Property, would materially and adversely affect the value of such Mortgaged
Property or the ability of such Mortgagor to pay principal, interest or any
other amounts due under such Mortgage Loan.
(xxxvi) Originator Duly Authorized. To the extent required under
applicable law as of the Closing Date, the originator of such Mortgage Loan was
qualified and authorized to do business in each jurisdiction in which a related
Mortgaged Property is located at all times when it held such Mortgage Loan to
the extent necessary to ensure the enforceability of such Mortgage Loan.
(xxxvii) Trustee under Deed of Trust. If the related Mortgage is a
deed of trust, a trustee, duly qualified under applicable law to serve as such,
is properly designated and serving under such Mortgage, and no fees and expenses
are payable to such trustee except in connection with a trustee sale of the
related Mortgaged Property following a default or in connection with the release
of liens securing such Mortgage Loan.
(xxxviii) Cross-Collateralization. The related Mortgaged Property is
not, to the Depositor's knowledge, collateral or security for any mortgage loan
that is not in the Trust Fund and, if such Mortgage Loan is
cross-collateralized, it is cross-collateralized only with other Mortgage Loans
in the Trust Fund, except that a Xxxxxx Trust Mortgage Loan that is part of a
Loan Combination is secured by one or more Mortgaged Properties that also secure
the related Non-Trust Mortgage Loan(s). The security interest/lien on each
material item of collateral for
such Mortgage Loan has been assigned to the Trustee (or, in the case of an
Outside Serviced Trust Mortgage Loan, to the related Outside Trustee).
(xxxix) Flood Hazard Insurance. None of the improvements on any
related Mortgaged Property are located in a flood hazard area as defined by the
Federal Insurance Administration or, if any portion of the improvements on the
related Mortgaged Property are in an area identified in the Federal Register by
the Federal Emergency Management Agency as having special flood hazards falling
within zones A or V in the national flood insurance program, the Mortgagor has
obtained and is required to maintain flood insurance.
(xl) Engineering Assessments. One or more engineering assessments or
updates of a previously conducted engineering assessment were performed by an
Independent engineering consulting firm with respect to each related Mortgaged
Property during the 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 material and adverse engineering condition or circumstance
affecting such Mortgaged Property that was not disclosed in such report(s); and,
to the extent such assessments revealed deficiencies, deferred maintenance or
similar conditions, either (A) the estimated cost has been escrowed or a letter
of credit has been provided, (B) repairs have been made or (C) the scope of the
deferred maintenance relative to the value of such Mortgaged Property was de
minimis.
(xli) Escrows. All escrow deposits and payments relating to such
Mortgage Loan are under control of the Depositor or the servicer of such
Mortgage Loan and all amounts required as of the date hereof under the related
Mortgage Loan documents to be deposited by the related Mortgagor have been
deposited. The Depositor is transferring to the Trustee (or, in the case of an
Outside Serviced Trust Mortgage Loan, to the related Outside Trustee) all of its
right, title and interest in and to such amounts.
(xlii) Licenses, Permits and Authorizations. The related Mortgagor has
represented in the related Mortgage Loan documents that, and to the actual
knowledge of the Depositor, as of the date of origination of such Mortgage Loan,
all material licenses, permits and authorizations then required for use of the
related Mortgaged Property by such Mortgagor, the related lessee, franchisor or
operator have been issued and were valid and in full force and effect.
(xliii) Servicing and Collection Practices. The servicing and
collection practices used by the Depositor and the Xxxxxx Mortgage Loan Seller
or, to the Depositor's knowledge, any other prior holder of the related Mortgage
Note with respect to such Mortgage Loan have been in all respects legal and have
met customary industry standards.
(xliv) Fee Simple. Unless such Mortgage Loan is covered by the
representation and warranty in the immediately following paragraph (xlv), such
Mortgage Loan is secured in whole or in material part by a fee simple interest.
(xlv) Leasehold Interest Only. If such Mortgage Loan is secured in
whole or in material part by the interest of the related Mortgagor as a lessee
under a Ground Lease but not by the related fee interest, then:
(A) such Ground Lease or a memorandum thereof has been or will be
duly recorded and such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage or, if consent of
the lessor thereunder is required, it has been obtained prior to the
Closing Date;
(B) upon the foreclosure of such Mortgage Loan (or acceptance of
a deed in lieu thereof), the Mortgagor's interest in such Ground Lease
is assignable to the Trustee (or, in the case of an Outside Serviced
Trust Mortgage Loan, to the related Outside 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 an Outside Serviced Trust Mortgage Loan, by the related
Outside Trustee) and its successors without a need to obtain the
consent of such lessor (or, if any such consent is required, it has
been obtained prior to the Closing Date or may not be unreasonably
withheld);
(C) such Ground Lease may not be amended or modified without the
prior written consent of the mortgagee under such Mortgage Loan and
any such action without such consent is not binding on such mortgagee,
its successors or assigns;
(D) unless otherwise set forth in such Ground Lease, such Ground
Lease does not permit any increase in the amount of rent payable by
the ground lessee thereunder during the term of such Mortgage Loan;
(E) such Ground Lease was in full force and effect as of the date
of origination of the related Mortgage Loan and, at the Closing Date,
such Ground Lease is in full force and effect; to the actual knowledge
of the 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 (including
any options exercisable by the holder of the related Mortgage) that
extends not less than 20 years beyond the Stated Maturity Date of the
related Mortgage Loan;
(J) under the terms of such Ground Lease, any estoppel or consent
letter received by the mortgagee under such Mortgage Loan from the
lessor and the related Mortgage Loan documents, taken together, any
related insurance proceeds, other than de minimis amounts for minor
casualties, with respect to the leasehold interest, or condemnation
proceeds will be applied either to the repair or restoration of all or
part of the related Mortgaged Property, with the mortgagee or a
trustee appointed by it having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in such cases
where a provision entitling another party to hold and disburse such
proceeds would not be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or to the payment of the outstanding
principal balance of the Mortgage Loan, together with any accrued
interest thereon;
(K) such Ground Lease does not impose any restrictions on use or
subletting which would be viewed as commercially unreasonable by a
prudent commercial mortgage lender;
(L) upon the request of the mortgagee under such Mortgage Loan,
the ground lessor under such Ground Lease is required to enter into a
new lease upon termination of the Ground Lease for any reason prior to
the expiration of the term thereof, including as a result of the
rejection of the Ground Lease in a bankruptcy of the related Mortgagor
unless the mortgagee under such Mortgage Loan fails to cure a default
of the lessee under such Ground Lease following notice thereof from
the lessor; and
(M) the terms of the related Ground Lease have not been waived,
modified, altered, satisfied, impaired, canceled, subordinated or
rescinded in any manner which materially interferes with the security
intended to be provided by such Mortgage, except as set forth in an
instrument or document contained in the related Mortgage File.
(xlvi) Fee Simple and Leasehold Interest. If such Mortgage Loan is
secured by the interest of the related Mortgagor under a Ground Lease and by the
related fee interest, then (A) such fee interest is subject, and subordinated of
record, to the related Mortgage, (B) the related Mortgage does not by its terms
provide that it will be subordinated to the lien of any other mortgage or other
lien upon such fee interest, and (C) upon occurrence of a default under the
terms of the related Mortgage by the related Mortgagor, the mortgagee under such
Mortgage Loan has the right (subject to the limitations and exceptions set forth
in paragraph (v) above) to foreclose upon or otherwise exercise its rights with
respect to such fee interest.
(xlvii) Tax Lot; Utilities. Each related Mortgaged Property
constitutes one or more complete separate tax lots (or the related Mortgagor has
covenanted to obtain separate tax lots and an escrow of funds in an amount
sufficient to pay taxes resulting from a breach thereof has been established) or
is subject to an endorsement under the related title insurance policy; and each
related Mortgaged Property is served by a public or other acceptable water
system, a public sewer (or, alternatively, a septic) system, and other customary
utility facilities.
(xlviii) Defeasance. If such Mortgage Loan is a Defeasance Mortgage
Loan, the related Mortgage Loan documents require the related Mortgagor to pay
all reasonable costs associated with the defeasance thereof, and either: (A)
require the prior written consent of, and compliance with the conditions set by,
the holder of such Mortgage Loan for defeasance or (B) require that (1)
defeasance may not occur prior to the second anniversary of the Closing Date,
(2) the Defeasance Collateral must be government securities within the meaning
of Treasury regulations section 1.860G-2(a)(8)(i) and must be sufficient to make
all scheduled payments under the related Mortgage Note when due (assuming for
each ARD Mortgage Loan that it matures on its Anticipated Repayment Date or on
the date when any open prepayment period set forth in the related Mortgage Loan
documents commences) or, in the case of a partial defeasance that effects the
release of a material portion of the related Mortgaged Property, to make all
scheduled payments under the related Mortgage Note on that part of such Mortgage
Loan equal to at least 110% of the allocated loan amount of the portion of the
Mortgaged Property being released, (3) an independent accounting firm (which may
be the Mortgagor's independent accounting firm) certify that the Defeasance
Collateral is sufficient to make such payments, (4) such Mortgage Loan be
assumed by a successor entity designated by the holder of such Mortgage Loan (or
by the Mortgagor with the approval of such lender), and (5) counsel provide an
opinion letter to the effect that the Trustee (or, in the case of an Outside
Serviced Trust Mortgage Loan, the related Outside Trustee) has a perfected
security interest in such Defeasance Collateral prior to any other claim or
interest.
(xlix) Primary Servicing Rights. Except with respect to the Outside
Servicers, no Person has been granted or conveyed the right to primary service
such Mortgage Loan or receive any consideration in connection therewith except
(A) as contemplated in this Agreement with respect to primary servicers that are
to be sub-servicers of the Master Servicer, (B) as has been conveyed to the
Master Servicer, or (C) as has been terminated.
(l) Mechanics' and Materialmen's Liens. As of origination, (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 (xi) above
(or an endorsement thereto)). The Depositor has not received actual notice with
respect to such Mortgage Loan that any mechanics' and materialmen's liens have
encumbered the related Mortgaged Property since origination that have not been
released, bonded, insured against or escrowed for.
(li) Due Date. 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, the fifth day or the eleventh day of each month.
(lii) Assignment of Leases. Subject only to Permitted Encumbrances,
the related Assignment of Leases set forth in or separate from the related
Mortgage and delivered in connection with such Mortgage Loan establishes and
creates a valid and, subject only to the exceptions and limitations in paragraph
(v) above, enforceable first priority lien and first priority security interest
in the related Mortgagor's right to receive payments due under any and all
leases, subleases, licenses or other agreements pursuant to which any Person is
entitled to occupy, use or possess all or any portion of the related Mortgaged
Property subject to the related Mortgage, except that a license may have been
granted to the related Mortgagor to exercise certain rights and perform certain
obligations of the lessor under the relevant lease or leases; and each assignor
thereunder has the full right to assign the same.
(liii) Mortgagor Formation or Incorporation. To the Depositor's
knowledge, the related Mortgagor is a Person formed or incorporated in a
jurisdiction within the United States.
(liv) No Ownership Interest in Mortgagor. The Depositor has no
ownership interest in the related Mortgaged Property or the related Mortgagor
other than as the holder of such Mortgage Loan being sold and assigned, and
neither the Depositor nor any affiliate of the Depositor has any obligation to
make any capital contributions to the related Mortgagor under the Mortgage or
any other related Mortgage Loan document.
(lv) No Undisclosed Common Ownership. To the Depositor's knowledge,
except where multiple properties secure an individual Xxxxxx Trust Mortgage Loan
and except for properties securing Xxxxxx Trust Mortgage Loans that are
cross-defaulted and cross-collateralized and except as listed on Schedule
III-(lv), no two properties securing Xxxxxx Trust Mortgage Loans are directly or
indirectly under common ownership.
(lvi) Loan Outstanding. Such Mortgage Loan has not been satisfied in
full, and except as expressly contemplated by the related loan agreement or
other documents contained in the related Mortgage File, no material portion of
the related Mortgaged Property has been released.
(lvii) Usury. Such Mortgage Loan complied with or was exempt from all
applicable usury laws in effect at its date of origination.
(lviii) ARD Mortgage Loan. If such Mortgage Loan is an ARD Mortgage
Loan 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;
(C) no later than the related Anticipated Repayment Date, the
related Mortgagor is required (if it has not previously done so) to
enter into a "lockbox agreement" whereby all revenue from the related
Mortgaged Property will be deposited directly into a designated
account controlled by the mortgagee under such Mortgage Loan; and
(D) the interest rate of such Mortgage Loan will increase by at
least two (2) percentage points in connection with the passage of its
Anticipated Repayment Date.
(lix) Appraisal. An appraisal of the related Mortgaged Property was
conducted in connection with the origination of such Mortgage Loan; and such
appraisal satisfied either (A) the requirements of the "Uniform Standards of
Professional Appraisal Practice" as adopted by the Appraisal Standards Board of
the Appraisal Foundation, or (B) the guidelines in Title XI of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989, in either case as in
effect on the date such Mortgage Loan was originated.
SCHEDULE I
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR- 2006 C-1
The following are the exceptions for the Xxxxxx loans to the Representations and
Warranties for the above-referenced transaction:
REPRESENTATION FROM
SECTION 2.04 Property and Exception
(v) Loan Document Status One Financial Center. The non-recourse
carve-outs do not include carve-outs for
material misrepresentations relating to the
representations made with respect to the leases
affecting the related mortgaged real property
and the security deposits delivered in
connection with such leases and the mortgagor's
representations concerning the mortgaged real
property's compliance with applicable zoning
and building codes and the related mortgagor's
possession of all necessary permits and
licenses for the operation of the related
mortgaged real property is deemed to have been
made to the best knowledge of the related
mortgagor.
Palms Plaza Shopping Center. The definition of
"Losses" in the guaranty of recourse
obligations excludes diminutions in value and
consequential damages.
Towne Crossing Shopping Center. The definition
of "Losses" in the guaranty of recourse
obligations excludes diminutions in value. The
carve-outs in the guaranty of recourse
obligations do not include the failure of the
related mortgagor to comply with the terms of
the environmental indemnity. The guarantor's
liability for non-recourse carve outs is capped
at the respective loan amount of the loan.
(viii) First Lien Under the law of the State of Illinois,
subsequently filed mechanic's liens can be
superior to the lien of a mortgage.
Any related mortgaged real property which is
subject to condominium documents may become
subject to a lien for the failure to pay
certain common charges owed pursuant to such
documents, and that lien would be prior to the
related mortgage.
00000 Xxxxxxxxx Xxxxx. The related borrower has
notified the lender that the City of Bend,
Oregon, where the related mortgaged real
property is located, has requested the related
borrower to grant certain construction and
access easements across the related mortgaged
real property to permit the City of Bend to use
a portion of the related property as a
construction staging area while it constructs
certain public improvements on property
adjacent to the related property and to permit
vehicular and pedestrian access across paved
portions of the related property in order to
access such adjacent property and the public
improvements thereon. The related mortgage loan
documents require the consent of the lender,
which consent may be withheld in the sole and
absolute discretion of the borrower.
Courtyard by Marriott II Fee Portfolio. The
lien of each of the mortgages is subject and
subordinate to the existing ground leases
(which are, among other collateral, encumbered
by $550,000,000 financing provided by Xxxxxx in
March 2005) and the existing management
agreements.
The lien of the mortgage does not extend to
personalty used in the operation of the hotels
on the properties as the personalty is not
owned by the related mortgagor and the related
mortgagor has no present interest therein. As
long as the ground lease remains in effect, the
lien of the mortgage encumbers only the
mortgagor's fee interest in the land and not
the improvements or personalty used in
connection with the operation of the hotels.
Embassy Suites Battery Park City. The related
mortgagor's leasehold interest in the related
mortgaged real property is subject and
subordinate to (i) the Ground Lease between the
Battery Park City Authority ("BPCA") and BPCA,
(ii) the Master Lease between BPCA and BPCA and
(iii) the option to purchase the fee interest
granted to City of New York.
Kroger's-Las Vegas. The lease between the
related mortgagor and the sole tenant of the
related property, Xxxxx'x Food and Drug, Inc.
("Kroger's") gives Kroger's the right to
terminate its lease in the event that it
determines that the leased premises have become
uneconomic or unsuitable for its business
operations and in connection with such
termination, Kroger's is obligated to offer to
purchase the related mortgaged real property
for the sum of $6,783,930 plus any prepayment
premium owed to any lender of which Kroger's
has been given notice provided , that, such
prepayment premium shall be in an amount equal
to the greater of (i) 1% and (ii) any yield
maintenance premium in effect. Although
pursuant to the terms of such lease the related
borrower or lender may reject such offer, the
related loan documents contain provisions which
would preclude the related mortgagor from
rejecting such offer and which would thus
require prepayment in full of the underlying
mortgage loan, together with any yield
maintenance prepayment premium due upon
Kroger's exercise of such termination right.
The lease between the related mortgagor and the
single property gives that tenant a right of
first refusal with respect to any bona fide
offer from a third party for the purchase of
the mortgaged real property, which offer the
related mortgagor desires to accept. If such
tenant does not accept an offer submitted to it
by the related mortgagor within the time period
specified in the lease, such right of first
refusal shall be considered waived as to that
offer; provided, however, that the right of
first refusal shall be a continuing right as to
any subsequent or modified purchase offer. The
foregoing right of first refusal shall be
inapplicable to a transfer of the mortgaged
real property upon foreclosure of the related
mortgage, upon a deed in lieu of foreclosure,
or upon the first transfer by the lender to a
third party.
(x) No Material Damage Courtyard by Marriott II Fee Portfolio. The
application of condemnation awards is governed
by the ground lease and if not applied to
restoration will only be applied to the debt to
the extent that the award represents the
related mortgagor's residual interest in the
property free and clear of the ground lease.
(xi) Title Insurance Courtyard by Marriott II Fee Portfolio. The
title insurance amounts are subject to tie-in
endorsements in states where tie-in
endorsements are legally available. In states
where they are unavailable the policy amount
was limited to an agreed upon percentage of the
applicable allocated loan amount for the
particular property.
Highwoods II Portfolio. Title insurance
policies in amounts equal to the portion of the
loan allocated to each property will be issued,
together with tie-in endorsements which will
result in coverage for all of the Florida and
all of the Georgia properties equal to the
total of the allocated loan amounts for the
properties in the respective states.
One Financial Center. The title policy neither
expressly excludes nor affirmatively insures
(A) access to a public road, (B) that there is
no material encroachment by any improvements on
the related mortgaged real property, and (C)
that the mortgaged real property, as shown on
the survey materially conforms to the legal
description of the related mortgaged real
property.
(xii) Property Insurance With respect to substantially all of the Xxxxxx
Trust Mortgage Loans, the related Mortgages
require that any "financial strength" or
"claims paying ability rating from A.M. Best be
at least "A-:VIII", provided the foregoing does
not apply to 1301 Avenue of the Americas,
Chapel Hills Mall, Courtyard by Marriott II Fee
Portfolio, Embassy Suites Battery Park City and
One Financial Center.
1301 Avenue of the Americas. The related loan
documents require that the "All Risk" policy of
insurance cover the actual replacement cost of
the improvements, regardless of the initial
balance of the related loan.
$75,000,000 of primary insurance coverage may
be provided by Real State Insurance Corporation
("RSIC"), an affiliate of EOP Operating Limited
Partnership, the sponsor, provided, among other
things, that RSIC maintains an AM Best rating
of "A-/VIII" and the sponsor maintains a rating
no lower than "BBB-/Baa3/BBB-" from S&P,
Xxxxx'x, and Fitch, respectively, or provides a
rating agency confirmation. Rating requirements
may be satisfied by a "cut through" endorsement
from an "A" rated insurer.
Xxxxx-Xxxxxxxxxx Plaza, Xxxxx-Crossroads,
Xxxxx-Xxxx Verde, Bixby-Park Plaza,
Xxxxx-Pioneer Square, Xxxxx-The Enterprise
Tower, Xxxxx-Woodhaven. The related mortgagor
is required to obtain comprehensive all risk
insurance in an amount equal to the "full
appraised value" established from time to time
by appraisals approved by lender. The related
mortgagor is not required to cover HVAC
equipment under the policy.
Chapel Hills Mall. Commercial general liability
insurance may be maintained with a syndicate of
insurers as long as 60% of the coverage is with
carriers with an S&P rating of not less than
"A" provided that at least 75% of the total
coverage must be with carriers rated at least
"BBB".
With respect to insurance in general (subject
to the foregoing note regarding commercial
general liability insurance), coverage may be
maintained with a syndicate as long as 75% (if
the syndicate comprises 4 or fewer members) or
60% (if the syndicate comprises 5 or fewer
members) of the coverage (and all first-loss
risk) is with carriers with an S&P rating of
not less than "A", provided that the balance of
the coverage is with carriers rated not lower
than "BBB".
Courtyard by Marriott II Fee Portfolio. As to
all-risk coverage, the related mortgagor is
obligated to insure in an amount equal to full
replacement cost without regard to loan amount.
As to business income coverage, the related
mortgagor is obligated to insure in an amount
equal to the ground rents payable under the
applicable ground lease for 24 months plus a 12
month extended period of indemnity. The
insurance may be provided under a Marriott
insurance program but the rating requirement is
an S&P "A." Casualty proceeds are subject to
the terms of the ground leases which govern
application to restoration. As long as the
ground leases are in effect, the terms of the
ground leases will control and the mortgagor
has no right to require restoration of a
damaged property. The ground lease provides
that under certain circumstances, the property
does not need to be restored, and if in such
case, the ground lease terminates, the related
mortgagor may be required to prepay the loan.
Embassy Suites Battery Park City. Either or
both of Essex Insurance Company and Allied
World Assurance Company, Ltd. (together with
their successors and assigns, the "Designated
Insurers") shall be permitted to provide
insurance coverage as part of a syndicate of
insurers provided that (i) neither of the
Designated Insurers shall provide coverage as
part of the first layer of coverage of at least
$25 million, (ii) the relevant Designated
Insurer has (A) in the case of Essex Insurance
Company, a general policy rating of "A" or
better and a financial class of XII or better
as assigned by A.M. Best Company, Inc. and a
minimum financial strength rating of "BBB-" or
better from S&P, and (B) in the case of Allied
World Assurance Company, Ltd., a general policy
rating of "A" or better and a financial class
of XII or better as assigned by A.M. Best
Company, Inc., and (iii) the Designated
Insurers do not provide coverage that, in the
aggregate, comprises more than 5% of the
aggregate coverage provided by the entire
syndicate of insurers. In addition, if the
related mortgagor obtains a separate policy to
insure against acts of terrorism, then an
insurer having a rating for financial strength
claims paying ability of "A3" or better
assigned by Xxxxx'x or "A-" or better assigned
by S&P shall be acceptable.
In the event all or substantially all of the
related mortgaged real property is subject to
condemnation, condemnation proceeds are first
distributed to the related mortgagor's landlord
for the value of the land and landlord's "Civic
Facilities" (e.g., electrical mains, water
mains, sewers, fire hydrants, street lighting,
curbs, sidewalks, esplanade, etc.).
One Financial Center. The insurance companies
that the insurance policies are maintained with
must be authorized to do business in the
Commonwealth of Massachusetts and be approved
by the lender, which approval shall be given if
the insurance companies have claims paying
ability of "A" or better according to S&P.
Notwithstanding the foregoing, the related
mortgagor shall be entitled to maintain the
insurance policies with FM Global for so long
as (i) FM Global's claims paying ability rating
with S&P does not fall below
"BBB(p)(i)" and (ii) FM Global's claims paying
ability rating with Fitch, Inc. does not fall
below "AA-".
(xiii) No Material Defaults Holiday Inn-Solana Beach. The related mortgagor
has received a 90-day notice of default and
termination under the related franchise
agreement, dated October 21, 2005, from a
Holiday Inn franchise administration department
stating that, based on the hotel's failure to
achieve the licensor's minimum quality and
service requirements on two occasions (as
reported to the hotel in September 2004 and in
October 2005), if the hotel fails to achieve
such minimum quality and service score on
January 16, 2006, the matter will be referred
to the compliance committee of licensor for its
review and consideration. According to the
notice, unless the compliance committee extends
the January 16, 2006 termination date, the
hotel's license will be terminated. Pursuant to
the terms of the related mortgage, the related
mortgagor has agreed to promptly perform all
covenants and agreements required to be
performed by it under the hotel license, and a
default beyond applicable cure periods under
the hotel license shall constitute an event of
default under such mortgage.
One Financial Center. The related loan
documents provide in part that so long as the
One Financial Center non-trust mortgage loan is
outstanding, (a) the related mortgagor shall
send all notices requests of consent,
information and required documents to the
holder of the One Financial non-trust mortgage
loan unless the lender identified as such in a
global modification of loan documents dated as
of December 23, 2005 has retained a servicer to
service the related loan combination, in which
event to such servicer and (b) the related
mortgagor shall be entitled to conclusively
rely on the response of the holder of the One
Financial Center non-trust mortgage loan or
servicer, as applicable. The related co-lender
agreement between the holder of the One
Financial Center mortgage loan and the One
Financial non-trust mortgage loan does not
permit the holder of the non-trust loan to
exercise any rights with respect to the One
Financial Center loan combination upon such
loan combination becoming specially serviced.
(xvi) Subordinate Debt With respect to substantially all of the Xxxxxx
Trust Mortgage Loans for which future mezzanine
financing is permitted subject to certain
requirements including debt service coverage
ratio requirements, in the event that such
mezzanine financing bears interest at a
floating rate, lender may determine the debt
service coverage ratio on the basis of a
market-based constant reasonably determined by
mortgage lender.
00 Xxx Xxxx Xxxxx Xxxx; 11451 Katy Freeway
Building; Commerce Center; Infinity Office and
Warehouse; Southeast Executive Park; Towne
Crossing Shopping Center; Woodhill Plaza. The
equity holders of the related mortgagor have
the right to obtain mezzanine financing from a
mezzanine lender, secured by pledges of
partnership or other equity interests in the
related mortgagor, provided that the following
requirements, among others, are satisfied: (a)
achievement of a combined minimum debt service
coverage ratio not less than 1.15x and a
combined maximum loan-to-value ratio not to
exceed 85%; (b) the mortgage lender receives
written rating agency approval; and (c)
execution of a subordination agreement by
mortgage lender and the mezzanine lender in
form and content acceptable to the mortgage
lender under the related mortgage
loan.
1301 Avenue of the Americas. The related
mortgagor's sole member has obtained a
mezzanine loan in the amount of $65,821,125.71
secured by a pledge of its membership interests
in the related mortgagor. The mezzanine lender
has executed an intercreditor agreement with
the mortgage lender.
From and after December 16, 2008 and upon
repayment of the existing mezzanine loan, the
related mortgagor's member may incur mezzanine
debt secured by such mezzanine the mortgagor's
equity interests in the related mortgagor,
subject to the satisfaction of certain
conditions which include without limitation,
that (i) the combined debt service coverage
ratio shall be no less than the debt service
coverage ratio as of December 16, 2005, (ii)
the combined loan to value ratio shall not
exceed 65%, (iii) the related mortgagor
provides a satisfactory rating agency
confirmation and non-consolidation opinion, and
(iv) the mezzanine lender shall enter into an
intercreditor agreement acceptable to the
mortgage lender and to the rating agencies
rating the 2006-C1 Certificates.
Chapel Hills Mall. The owner of direct
interests in the related mortgagor may incur
mezzanine debt secured by such mezzanine the
mortgagor's equity interests in the related
mortgagor, subject to the satisfaction of
certain conditions which include without
limitation, that (i) the mezzanine loan
documents require that (a) if the mezzanine
loan shall bear interest at a floating rate,
the related mortgagor shall purchase an
interest cap at the initial funding of such
mezzanine debt at a fixed strike price such
that the combined debt service coverage ratio
shall be no less than 1.15x and (b) if the
mezzanine loan shall bear interest at a
fixed rate, the anticipated combined debt
service coverage ratio shall be no less than
1.15x, (ii) combined loan-to-value ratio shall
not exceed 80%, (iii) the combined debt service
coverage ratio shall be no less than 1.15x,
(iv) the related mortgagor provides a
satisfactory rating agency confirmation, and
(v) the mezzanine lender shall enter into an
intercreditor agreement acceptable to the
mortgage lender and to the rating agencies
rating the 2006-C1 Certificates.
Club Quarters Midtown; Club Quarters
Washington, D.C. The equity holders of the
related mortgagor have the right to obtain
mezzanine financing from a mezzanine lender,
secured by pledges of partnership or other
equity interests in the related mortgagor,
provided that the following requirements, among
others, are satisfied: (a) achievement of a
combined minimum debt service coverage ratio
not less than 1.35x and a combined maximum
loan-to-value ratio not to exceed 70%; (b) the
mortgage lender receives written rating agency
approval; and (c) execution of a subordination
agreement by mortgage lender and the mezzanine
lender in form and content acceptable to the
mortgage lender under the related mortgage
loan.
Embassy Suites Battery Park City. There is a
mezzanine loan which was made by Promus Hotels,
Inc. to the managing member of the related
mortgagor, secured by such member's equity
interests in the related mortgagor. As of
November 30, 2005, the outstanding principal
balance of the mezzanine loan was approximately
$14,946,376. The mortgage lender and mezzanine
lender
have entered into an intercreditor agreement.
Also, the related mortgagor is permitted to
replace the existing mezzanine loan with a new
mezzanine loan from a "Qualified Mezzanine
Lender" so long as (i) certain debt service
coverage ratio and loan-to-value thresholds are
not exceeded, (ii) the new mezzanine loan does
not mature earlier than the maturity date of
the related mortgage loan and (iii) the terms
of the new mezzanine loan are reasonably
acceptable to the lender and will not result in
the downgrade, qualification or withdrawal of
any ratings then authorized by such rating
agencies to any class of securities.
Highwoods II Portfolio. The loan agreement
authorizes the pledge by CAT Owners LLC (an
upper tier entity which is indirectly the sole
member of CAT-ATLFLA LLC, which is the sole
member of the related borrowers) of the right
to receive 49% of the limited liability company
distributions from CAT-ATLFLA LLC, as security
for the floating rate loan originated by the
lender to CAT-B Owners LLC, an affiliated
borrower, simultaneously with the loan.
Intel Corporate Building. The sole member of
the related mortgagor has pledged 100% of its
interest in the related mortgagor to TD
BankNorth, N.A. as security for a loan of up to
$2,500,000. TD BankNorth, N.A. has executed an
intercreditor agreement.
Macton Building. The new mortgagor may
obtain mezzanine financing from the original
related mortgagor or a lending institution
acceptable to mortgage lender, secured by a
pledge of equity interests in such new the
mortgagor, provided that the following
requirements, among others, are satisfied: (a)
achievement of a combined minimum debt service
coverage ratio not less than 1.15x and a
combined maximum loan-to-value ratio not to
exceed 85%, (b) the mortgage lender receives
written rating agency approval; and (c)
execution of a subordination agreement by
mortgage lender and the mezzanine lender in
form and content acceptable to the mortgage
lender under the related mortgage loan.
One Financial Center. The related loan
documents do not prohibit Metropolitan Life
Insurance Company and Bostrose Associates,
L.L.C., the two general partners of the related
borrower, from encumbering or pledging their
respective direct interests in the related
borrower.
Orchard Corners Apartments. The related
mortgage loan documents permit the related
mortgagor to obtain mezzanine financing,
subject to mortgage lender approval, in an
amount which will result in a combined debt
service coverage ratio not less than 1.10x and
a combined loan to value ratio not to exceed
90%, in accordance with mortgage lender's
standard mezzanine financing requirements in
the related mortgage loan documents.
Sunnyslope Centre. The related mortgage loan
documents permit the related mortgagor to
obtain mezzanine financing, subject to mortgage
lender approval, in an amount which will result
in a combined debt service coverage ratio not
less than 1.25x and a combined loan to value
ratio not to exceed 75%, in accordance with
mortgage lender's standard mezzanine financing
requirements in the related mortgage loan
documents.
Twenty Mile Self Storage. The related mortgage
loan documents permit the members of the
related mortgagor to obtain mezzanine financing
from a mezzanine lender acceptable to the
mortgage lender, secured by equity interest in
the related mortgagor, provided that the
following requirements, among others, are
satisfied: (a) achievement of a combined
minimum debt service coverage ratio of 1.15x
and a combined maximum loan-to-value ratio of
85%, (b) the mortgage lender receives written
rating agency approval; and (c) execution of a
subordination agreement by mortgage lender and
the mezzanine lender in form and content
acceptable to the mortgage lender under the
related mortgage loan. Furthermore, the equity
interests in the related mortgagor may be
transferred in connection with a foreclosure
under such approved and qualified mezzanine
financing.
(xix) Environmental Conditions With respect to substantially all of the Xxxxxx
Trust Mortgage Loans, environmental insurance
is not required to be carried.
1301 Avenue of the Americas; Chapel Hills Mall;
Club Quarters Midtown; Club Quarters
Washington, D.C.; Courtyard by Marriott II Fee
Portfolio; Embassy Suites Battery Park City;
Triangle Shopping Center. The related borrower
is the sole environmental indemnitor.
1301 Avenue of the Americas; Palms Plaza
Shopping Center; Prospect Hill Office Park;
Towne Crossing Shopping Center. "Losses" as
defined in the environmental indemnity
agreement specifically exclude consequential
damages.
Chapel Hills Mall; Courtyard by Marriott II Fee
Portfolio. "Losses" as defined in the
environmental indemnity agreement do not
specifically include diminution in value.
Intel Corporate Building; Lakeview Crossing;
Palms Plaza Shopping Center; Park City Shopping
Center; Park Plaza Shopping Center; Xxxxxxxx
Xxxx Xxxxxx Xxxx; Xxxxx Xxxxxx Xxxx; Shoppes at
Schererville; The Terraces at University Place;
Towne Crossing Shopping Center; Triangle
Shopping Center; U-Haul Portfolio-26 Facilities
Portfolio; U-Haul Portfolio-SAC Portfolio. The
related environmental indemnitor is an entity,
not an individual.
Commerce Center. The Phase I consultant
reported that prior environmental site
assessments revealed the presence of
solvent-impacted soil attributed to historic
dry cleaning operations on the subject
property. In connection with its prior
ownership of the property, Xxxxxx Brothers,
Inc. assumed responsibility for addressing the
environmental remediation of the subject
property. Environmental remediation reportedly
has been undertaken and Xxxxxx Brothers, Inc.
has submitted an application for closure status
to the New Jersey Department of Environmental
Protection with respect to the identified
contamination.
Courtyard by Marriott II Fee Portfolio. With
respect to 37 of the 49 Courtyard by Marriott
II Fee Portfolio mortgaged real properties,
Phase I environmental site assessments were
conducted within 16 months of the cut-off date.
A third party consultant prepared a regulatory
database review update on December 2,
2005.
Courtyard by Marriott Lincroft Red Bank. The
Phase I consultant recommended abandonment of
three on-site groundwater monitoring xxxxx in
accordance with state and local regulations. No
estimate of abandonment costs was provided.
Courtyard by Marriott Portland Beaverton. The
Phase I consultant reported that groundwater at
an adjacent property is contaminated with
trichloroethylene and additional contaminants
which have minimally encroached on the subject
property. Because the contamination is wholly
attributed to an off-site release, and due to
the fact that drinking water for the property
is not obtained from on-site xxxxx, the Phase I
consultant recommended no further action.
Montclair Court. The Phase I consultant
reported that the property is located within
the boundaries of a designated National
Priorities List site and a Comprehensive
Environmental Response, Compensation and
Liability Information System (CERCLIS) site
where historic radium processing waste was
formerly deposited. No environmental concerns
with respect to the subject property itself
were identified, and the consultant did not
recommend any action.
Park Plaza Shopping Center; Shoppes at
Schererville. The obligations and liabilities
of the guarantors under the environmental
indemnity shall terminate on the fifth
anniversary of (i) the payment in full of the
related mortgage loan or (ii) the transfer of
possession of the related mortgaged real
property by foreclosure, a sale pursuant to a
power of sale contained in the related
mortgaged document or delivery of a deed in
lieu of foreclosure, provided that no action
shall have been instituted on the environmental
indemnity prior to said fifth anniversary.
Sunnyslope Shopping Center. The Phase I
consultant reported that the subject property
is listed on the State of Oregon Environmental
Cleanup Site Inventory and Confirmed Release
List, due to a previous discovery of
chlorinated solvents in soil and groundwater
near the southern boundary of the property. The
identified contamination is attributed to
historic on-site dry cleaning operations.
Limited remedial work reportedly has been
conducted at the subject property, and a state
issued partial No Further Action Letter
determination with respect to a portion of the
subject property was obtained. The Phase I
consultant indicated that the current owners of
the property listed on the CRL are eligible for
state funded cleanup through the Oregon
Department of Environmental Quality Dry Cleaner
Program. The subject property's current owner
has submitted a claim for enrollment in the
ODEQ Dry Cleaner Program.
Towne Crossing Shopping Center. The related
mortgagor's knowledge is qualified to the
related mortgagor's current actual
knowledge. Indemnitor is not liable for matters
arising as the result of actions of indemnified
parties or hazardous materials introduced to
the related mortgaged real property by anyone
other than indemnitor following termination or
satisfaction of the mortgage, foreclosure of
the mortgage or the delivery of a deed in lieu
of
foreclosure or the taking of possession of the
related mortgaged real property by a receiver
appointed at the request of mortgage lender.
U-Haul Portfolio-SAC Portfolio and U-Haul
Portfolio-26 Facilities Portfolio.
U-Haul-Center Skylake. The Phase I consultant
reported that soil at the subject property has
been impacted by gasoline from a historic
leaking underground storage tank ("UST") and
the historic removal of three underground
storage tanks ("USTs"). According to the Phase
I consultant's review of correspondence with
the applicable state agency, the subject
property is eligible for state-funded cleanup
through the Early Detection Incentives Program.
Due to the subject property's low priority
ranking in the state program, however, remedial
work is currently inactive.
U-Haul-Harbor City. The Phase I consultant
recommended proper abandonment of monitoring
xxxxx that remained on-site but were no longer
in use. Estimated abandonment cost is
$1,000-$1,500.
U-Haul-North St. Petersburg. The subject
property is enrolled in the Florida Department
of Environmental Protection state-funded
clean-up program to address soil and
groundwater contamination that resulted in
connection with removal of an on-site
underground storage tank ("UST") used by a
former gasoline station on the subject
property. Due to the site's low priority
ranking, cleanup has not commenced. According
to the Phase I report, the state program
requires the tank's registered owner to
contribute 25% of remediation costs that fall
below $300,000 and all remediation costs in
excess of $300,000.
U-Haul-Route 18. The Phase I consultant
reported that lead levels in drinking water in
the first draw and a flush drinking water
sample exceeded federal action levels. The
consultant recommended conducting additional
testing to identify appropriate follow-up
action. According to the Phase I consultant,
the subject property is listed on the state's
leaking underground storage tank list in
connection with historic releases of petroleum
constituents from two former on-site tanks. The
Phase I consultant reported that contaminated
soil had been excavated from the site and that
semi-annual groundwater monitoring was in
place. The Phase I consultant further reported
that, based on a prior consultant's
recommendations following sampling activities
performed in 2001, during which low levels of
contaminants were detected in soil not
conducive to extensive contaminant movement, an
application for No Further Action status was
submitted to the applicable state agency in
2002. The Phase I consultant recommended that a
file review be conducted to determine the
current regulatory closure status.
(xxii) Loan Security Courtyard by Marriott II Fee Portfolio. As long
as the ground leases are in effect, the
mortgage does not encumber the improvements on
the related property.
(xxiv) Whole Loan Highwoods II Portfolio. LB Southeast LLC, an
affiliate of Xxxxxx, is a non-managing member
of CAT Holdings Owner LLC, which is a member of
CAT-A Holdings LLC, which is the sole member of
CAT Owners LLC, the sole member of CAT-ATLFLA
LLC, the sole members of both CAT-ATL Manager
LLC and CAT-FLA Manager LLC, which are,
respectively, the sole
members of each mortgagor.
One Financial Center. The originating lender
and the current holder of the One Financial
Center non-trust loan is Metropolitan Life
Insurance Company. Metropolitan Life Insurance
Company is a general partner of the related
mortgagor.
(xxv) Due-on-Encumbrance 00 Xxx Xxxx Xxxxx Xxxx; 1301 Avenue of the
Americas; 11451 Katy Freeway Building; Chapel
Hills Mall, Club Quarters Midtown; Club
Quarters Washington, D.C.; Commerce Center;
Embassy Suites Battery Park City; Infinity
Office and Warehouse; Highwoods II Portfolio;
Intel Corporate Building; Macton Building;
Orchard Corners Apartments; Southeast Executive
Park; Sunnyslope Centre; Towne Crossing
Shopping Center; Twenty Mile Self Storage;
Woodhill Plaza. With respect to these loans see
also the entry in Schedule I (xvi) "Subordinate
Debt" above.
1301 Avenue of the Americas. The related loan
documents provide that the pledge or
encumbrance of any interest in a sponsor of the
related mortgagor or of a qualified equity
holder (other than the related mortgagor and
its sole member) do not constitute a sale,
conveyance, mortgage, pledge or other transfer.
The related loan documents further do not
prohibit the pledge or encumbrance of any
direct or indirect interest in Equity Office
Properties Trust ("EOP") or any permitted
successor thereto, nor of any direct or
indirect interest in EOP Operating Limited
Partnership ("EOPOP") or its permitted
successor provided that EOP or its permitted
successor shall continue to be the general
partner of EOPOP or its successor.
One Financial Center. The related loan
documents do not prohibit Metropolitan Life
Insurance Company and Bostrose Associates,
L.L.C., the two general partners of the related
borrower, from encumbering or pledging their
respective direct interests in the related
borrower.
(xxvi) Due-on-Sale With respect to substantially all of the Xxxxxx
Trust Mortgage Loans for which future mezzanine
financing is permitted upon satisfaction of
certain conditions including but not limited to
execution of a subordination and intercreditor
agreement between mezzanine lender and the
lender, upon an event of default of the
mezzanine loan, the mezzanine lender may
accelerate and foreclose on its security
interest in the pledged equity interests of the
related mortgagor without further consent from
the mortgage lender.
00 Xxx Xxxx Xxxxx Xxxx; 1301 Avenue of the
Americas; 11451 Katy Freeway Building; Chapel
Hills Mall, Club Quarters Midtown; Club
Quarters Washington, D.C.; Commerce Center;
Embassy Suites Battery Park City; Infinity
Office and Warehouse; Highwoods II Portfolio;
Intel Corporate Building; Macton Building;
Orchard Corners Apartments; Southeast Executive
Park; Sunnyslope Centre; Towne Crossing
Shopping Center; Twenty Mile Self Storage;
Woodhill Plaza. With respect to these loans and
permitted or existing mezzanine indebtedness,
see also the entry in Schedule I (xvi)
"Subordinate Debt" above.
00 Xxx Xxxx Xxxxx Xxxx. Permitted holders of
the mezzanine financing are permitted to
acquire the equity interest in the related
mortgagor without
payment of an assumption fee.
1301 Avenue of the Americas. The related loan
documents permit the transfer of the related
mortgaged real property or of a direct interest
in the related mortgagor provided that, among
other conditions, (i) a qualified manager shall
continue to manage the property, (ii) a
transferee of the related property, if
applicable, shall assume the obligations of the
related mortgagor under the related loan
document, (iii) neither the transferee nor its
principals shall have been subject to any
bankruptcy proceedings in the preceding 7
years; (iv) no material litigation shall be
pending against the transferee or its
principals, and (v) unless qualified equity
holders individually or collectively own
directly or indirectly, at least 51% of, and
control, the transferee, the related mortgagor
shall have delivered a rating agency
confirmation. The related loan documents do not
prohibit one or more corporate mergers or other
reorganizations involving, or sales of
interests in, Equity Office Properties Trust or
its successors, subject to the satisfaction of
various conditions, which include, without
limitation, that the related mortgaged real
property continues to be managed by an EOP
affiliate or other qualified manager, that
borrower's successor be a single purpose
entity, that EOP or a permitted successor to
EOP remains the sole general partner of EOPOP
or a permitted successor to EOPOP, and that
EOPOP or a permitted successor of EOPOP shall
continue to own at least 10 similar office
properties with at least 5,000,000 gross square
feet.
Chapel Hills Mall. The related loan documents
permit the sale (but not the 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 mortgagor; 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 of direct or indirect interests in the
related mortgagor 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 the
mortgagor; and (iv) the related property will
continue to be managed by current manager or
else must be managed by a "qualifying manager."
Entities holding direct or indirect interests
in the related mortgagor may transfer or redeem
such interests provided that specified
conditions relating to ongoing control of such
entities and/or the related mortgagor are
satisfied.
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.
Embassy Suites Battery Park City. The following
transfers are permitted without the lender's
consent: (i) the transfer of the membership
interests in the related mortgagor, directly or
indirectly, provided that following any such
transfer (1) the related mortgagor remains
directly or indirectly under the control of,
individually or collectively, Xxxxx Xxxxxx
(together with any trust for the benefit of any
of his family members, "Xxxxxx"), Forest City
Enterprises, Inc. (together with its successors
and assigns, "Forest City") and/or Hilton
Corporation (together with its successors and
assigns, "Hilton") and (2) at least 51% of the
membership interests directly or indirectly in
the related mortgagor are owned by,
individually or collectively, Xxxxxx, Forest
City and/or Hilton; (ii) the transfer of stock
or other ownership interests in Forest City,
Hilton or any other Restricted Party on a
nationally recognized securities exchange,
provided that following any such transfer such
stock or other ownership interests of such
entity continues to be traded on such exchange;
(iii) the current pledge (but not the
conveyance or transfer) of membership interests
in BPC Hotel, LLC and the issued and
outstanding capital stock in FCDT-BPC Corp. in
favor of Promus Hotels, Inc. ("Promus"); and
(iv) a transfer of one hundred percent (100%)
(and not less than 100%) of the direct or
indirect interests in the related mortgagor
owned by Hilton to a person or entity
controlled by Hilton management, provided that
such transfer is being done in connection with
a "privatization" of Hilton. The term
"Restricted Party" means the related mortgagor
or any shareholder, partner, member or
non-member manager, or any direct or indirect
legal or beneficial owner of, the related
mortgagor or any non-member manager thereof.
Grammary Court Apartments, Silk Mill
Apartments, and Callowhill Apartments. The
related mortgage loan documents permit
transfers of DBC, LLC's tenancy in common
interest to Apogee Partners, LLC pursuant to
the terms and conditions of the related
mortgage loan documents.
Highwoods II Portfolio. The related loan
documents permit:
1. the transfer among upper-tier entities owned
by (a) Capital Partners, (b) LB Southeast LLC
(an affiliate of Xxxxxx) and (c) GEBAM (an
affiliate of General Electric) in CAT-A
Holdings LLC, provided that, if such transfer
would result in the transferee owning 49% or
more of the direct or indirect interests on the
mortgagor, non-consolidation opinions are
obtained, and further provided that each such
transferee remains in compliance with the
applicable "Control Standard" as follows: (a)
in the case of the Capital Partners entities,
by one or more of the individual guarantors
(Heistand, Evans, Xxx or Xxxxx) and one or more
of the guarantors (including the Xxxxxxxx
Family Trust) own 50% or more of such entities;
(b) in the case of LB Southeast LLC, such
entities remains controlled by Xxxxxx, and (c)
in the case of GEBAM, such entities remain
controlled by General Electric;
2. the transfer of interests (a) among members
of the Capital Partners Group (individuals
consisting of Heistand, Evans, Cox, Pratt,
Xxxxxxx and Xxxx), provided the "Control
Standard" applicable to the Capital Partners
entities is maintained; (b) the transfer by
Xxxxxx of its interest in LB Southeast LLC to
entities controlled by Xxxxxx or to an
investment fund sponsored by Xxxxxx; and (c)
the transfer by General Electric of its
interest in GEBAM, subject, in the case of (a)
and (b), to non-consolidation opinions if the
transfer would
result in 49% or more of direct or indirect
interest in the mortgagors being transferred;
and
3. transfers of direct or indirect interests in
the related mortgagor to a "Qualified
Equityholder", consisting of customarily
defined institutional investors having total
assets in excess of $600,000,000 and, except as
to pension advisory firms and other
fiduciaries, capital/statutory surplus or
shareholders equity in excess of $250,000,000.
One Financial Center. The sale or assignment of
interests in Metropolitan Life Insurance
Company, a general partner of the related
mortgagor, is not prohibited. Re this loan also
see entry under Schedule I (xxv) "Due on
Encumbrance" above.
SSA-Abilene. Following the earlier to occur of
(i) the sale of the Loan, whether in a
securitization or otherwise, and (ii) two (2)
years from the date hereof, Lender's consent to
a one-time sale, assignment, or other transfer
of the property shall not be withheld provided
that the lender receives sixty (60) days prior
written notice of such transfer hereunder and
no event of default has occurred and is
continuing.
Spring Ridge II. Equity interests in any of the
three tenant-in-common the mortgagors may be
transferred to Xxxx X. Xxxxx without lender
consent.
The Terraces at University Place. The related
mortgagor is a wholly-owned subsidiary of an
"exchange intermediary". The related mortgagor
has the right and obligation to transfer the
entire property in a single transfer, within
180 days of the closing of the loan, to one or
more (but not more than 10) tenants in common
(each, a "Xxxxxx Entity"). A Xxxxxx Entity is a
newly-formed entity in which the Xxxxxx family
members owns a 100% direct or indirect
interest, and which entity meets rating agency
standards for special purpose, bankruptcy
remote entities (but without requirement for
independent director(s)).
Towne Crossing Shopping Center. The related
mortgage loan documents permit transfers of
shares in PE Ltd. GP in connection with a
public offering of PE Ltd. (and/or any other
transfer required in order to effectuate such
public offering), provided that upon such
transfer either Xxxxxxx Xxxxxx or Xxxxxxx X.
Xxxxxxxx (the "PE Principals") shall occupy the
position of chief executive officer, chairman
of the board of directors or president of such
entity without any intention or plan for their
removal or resignation from such position.
The related mortgage loan documents permit the
sale or transfer of direct or indirect equity
interests in the related mortgagor so long as
at all times following such a transfer (a) a
person with a net worth in excess of
$25,000,000 controlled by PE Principals"
("Qualified Equity Owner") shall be the direct
or indirect owner of at least 25% of the equity
interests and all of the controlling interests
in the related mortgagor and (b) one of the PE
Principals shall occupy the position of chief
executive officer, chairman of the board of
directors or president of a Qualified Equity
Owner.
(xxvii) The mortgagor 1301 Avenue of the Americas.
Concentration
Chapel Hills Mall.
(xxiii) Waivers; Modifications Embassy Suites Battery Park City. The related
mortgage documents were modified to correct the
prepayment lock-out period and to clarify and
confirm certain conditions to the partial
release contemplated therein.
Hemet Plaza. Insurance escrows have been waived
per insurance escrow waiver letter.
(xxx) Property Release Xxxxx-Xxxxxxxxxx Plaza; Xxxxx-Crossroads;
Xxxxx-Xxxx Verde; Bixby-Park Plaza;
Xxxxx-Pioneer Square; Xxxxx-The Enterprise
Tower; Xxxxx-Woodhaven. The loan is part of a
portfolio of cross-defaulted and
cross-collateralized loans. Upon the transfer
or defeasance of any of the loans in accordance
with the loan documents the subject property
shall cease to be cross-collateralized with the
others.
Courtyard by Marriott II Fee Portfolio. The
related mortgagor is permitted to partially
defease the loan and obtain the release of one
or more properties. The defeasance amount is
110% of the allocated loan amount of the
applicable properties sought to be released. In
addition, in the event that a ground lease
terminates as a result of a casualty or
condemnation, the related mortgagor may be
obligated to prepay at par the allocated
portion of the loan amount applicable to the
loan (i) within 180 days of the date of such
termination if on the date of such termination
the ground lease(s) applicable to one or more
other Courtyard by Marriott II Fee Portfolio
mortgaged real properties having, in the
aggregate, allocated loan amounts equal to or
in excess of 5% of the original principal
balance of the Courtyard by Marriott II Fee
Portfolio Mortgage Loan terminated as a result
of a casualty or condemnation at such other
Courtyard by Marriott II Fee Portfolio
Mortgaged real properties or (ii) within 180
days following the date that the debt service
coverage ratio applicable to the Courtyard by
Marriott II Fee Portfolio Mortgage Loan is less
than debt service coverage ratio on the closing
date of the Courtyard by Marriott II Fee
Portfolio Mortgage Loan.
Embassy Suites Battery Park City. The related
mortgagor is permitted to release an aggregate
of up to 213 hotel rooms in connection with the
conversion of a portion of the related
mortgaged real property into a hotel
condominium. No more than three separate
releases can occur, and the remaining mortgaged
real property must contain no less than 250
hotel rooms. The release price is equal to (a)
the greater of (I) the product of the number of
hotel rooms being released and $228,500 and
(II) the product of $459 and the aggregate
square footage of the hotel rooms being
released, plus (b) if the related mortgage
borrower must bear more than its proportionate
share (based on square footage of released
property and remaining property) of the
liability for making recapture amount payments,
the dollar amount by which such actual
liability is greater than the proportionate
share of such liability and, in connection with
such a partial prepayment of the related
mortgage loan, the related mortgage borrower
must also pay (x) a prepayment consideration
equal to the greater of 1% of the principal
amount prepaid and yield maintenance if such
prepayment occurs prior to September 10, 2010,
and (y) all other sums
then due under the related mortgage loan
documents.
Highwoods II Portfolio. The related mortgagor
may obtain releases of individual Properties in
the following ways:
(i) by partial defeasance: after the expiration
of two years following the Issue Date, the
Highwoods II mortgagor may partially
defease the Highwoods II Portfolio Mortgage
loan and obtain the release of an individual
mortgage property subject to, among other
things, (i) the partial defeasance of 120% of
principal amount of the Highwoods II Portfolio
Mortgage loan allocated to the individual
mortgaged real property to be released, (ii)
the remaining properties included within the
Highwoods II Portfolio Mortgaged real
properties having a debt service coverage ratio
of at least 1.30x and (iii) requisite rating
agency confirmations;
(ii) by substitution: the related borrower is
permitted from time to time to substitute
another office property (a "Highwoods II
Portfolio Substitute Property") for an
individual property included among the related
mortgaged real properties (a "Highwoods II
Portfolio Replaced Property") provided that,
among other things, the following conditions
are satisfied: (a) the Highwoods II Portfolio
Substitute Property has a fair market value no
less than the fair market value of the
Highwoods II Portfolio Replaced Property
immediately prior to the substitution (based on
an appraisal); (b) after giving effect to the
substitution, the debt service coverage ratio
for all of the related mortgaged real
properties (including the Highwoods II
Portfolio Substitute Property) is at least
equal to the debt service coverage for the
related mortgaged real properties (including
the Highwoods II Portfolio Replaced Property
but excluding the Highwoods II Portfolio
Substitute Property) for the 12 full calendar
months immediately preceding the substitution;
and (c) requisite rating agency confirmations
are obtained; and
(iii) by severance: the lender has agreed that,
after January 11, 2007, it shall not
unreasonably withhold the consent to not more
than one sale to a purchaser of such individual
properties included within the related
mortgaged real properties as the related
borrower shall designate, and in connection
with such sale to sever the related mortgage
loan into two separate mortgage loans, subject
to, among other things, the following: (i) no
event of default has occurred and is continuing
and all representation and warranties in the
related loan documents remain in effect; (ii)
receipt of all information concerning the
proposed purchaser that a lender would require
for extending credit, together with an
application fee not exceeding $25,000; (iii)
the lender approves such purchaser in its
reasonable discretion, which may be conditioned
on obtaining rating agency confirmations in
connection with the loan severance; (iv) the
lender shall have received a fee equal to 0.5%
of the amount of the related loan being assumed
by the purchaser; (v) the debt service coverage
ratio of each severed loan shall be either (x)
not less than 1.30:1.00 or (y) not less than
the debt service coverage ratio both
immediately prior to the severance and at the
inception of the related mortgage loan; (vi)
after giving effect to the severance
transaction, the principal balance of each
severed loan shall be not less than 30% of the
principal balance of the related mortgage loan
immediately prior to the severance transaction,
and (vii) the gross purchase price for the
individual properties being sold shall be at
least 1.25 times the allocated loan amount for
the related properties. The purchaser of the
individual properties being allocated to a
severed loan may be an affiliate of the related
borrower or an approved third party purchaser.
(xxxi) Qualifications; Courtyard by Marriott II Fee Portfolio.
Licensing; Zoning Although the loan documents impose burdens on
the related mortgagor, the related mortgagor is
the fee owner of the property, subject to an
existing ground lease to a third party. This
third party operates a hotel on each property
and is obligated under the ground lease to
maintain property in accordance with licenses
and zoning.
Embassy Suites Battery Park City. The related
mortgaged real property is a condominium unit
housing a hotel which is part of a larger
building which also includes a retail portion.
The building is subject to several municipal
violations.
(xxxii) Property Financial Rent rolls are not required or obtained in the
Statements case of certain property types which do not
customarily generate rent rolls, including
without limitation, hotels and certain
self-storage facilities.
Towne Crossing Shopping Center. The related
mortgagor is required to provide an annual
balance sheet and profit and loss statement of
the related mortgagor, within ninety (90) days
after the close of each fiscal year of the
related mortgagor and, if available (without
any obligation to obtain same), any financial
statement prepared by an independent certified
public accountant within thirty (30) days of
the date the same are made available to the
related mortgagor, provided that so long as
100% of the equity interests in the related
mortgagor are directly or indirectly owned by
PE Ltd., the related mortgagor shall furnish to
mortgage lender an annual balance sheet and
profit and loss statement for PE Ltd. prepared
by an independent certified public accountant
and which includes supplemental information on
an individual property basis and which
otherwise complies with the requirements of
this clause.
(xxxiii) Single Purpose Entity One Financial Center. The related loan
documents require the related mortgagor to be a
single purpose entity. The related mortgagor's
organizational documents, however, do not
require the related mortgagor to remain a
single purpose entity for so long as the
subject mortgage loan remains outstanding. A
substantive non-consolidation opinion was not
obtained.
(xlii) Licenses, Permits and Holiday Inn-Solana Beach. The related mortgagor
Authorizations has received a 90-day notice of default and
termination under the related franchise
agreement, dated October 21, 2005, from a
Holiday Inn franchise administration department
stating that, based on the hotel's failure to
achieve the licensor's minimum quality and
service requirements on two occasions (as
reported to the hotel in September 2004 and in
October 2005), if the hotel fails to achieve
such minimum quality and service score on
January 16, 2006, the matter will be referred
to the compliance committee of licensor for its
review and consideration. According to the
notice, unless the compliance committee extends
the January 16, 2006 termination date, the
Holiday Inn Solana Beach hotel's license will
be terminated. Pursuant to the terms of the
related mortgage, the related mortgagor has
agreed to promptly perform all covenants and
agreements required to be performed by it under
the hotel license, and a default beyond
applicable cure periods under the hotel license
shall constitute
an event of default under such mortgage.
(xliv) Fee Simple Embassy Suites Battery Park City. The related
mortgage loan is secured by the related
mortgagor's sub-subleasehold interest in the
related mortgaged real property. The landlord
and tenant under each of the over-leases (the
"Ground Lease" and the "Master Lease") is
Battery Park City Authority.
One Financial Center. A small portion of the
related mortgaged real property is encumbered
by a ground lease.
(xlv) Leasehold Interest Only Kroger's- Las Vegas. With respect to this loan,
see also the entry in Schedule I, (viii) "First
Lien" above.
Embassy Suites Battery Park City. The letters
below designate the applicable sub-part to
representation (xlv) to which the noted
exception information relates.
(B) The trustee must obtain lessor's consent
(which consent is not to be unreasonably
withheld, conditioned or delayed) in order to
further assign the related mortgagor's lease
(the "Lease") post-foreclosure.
(D) The Lease provides for a fair market value
calculation in determining base rent payments
starting in the year 2020.
(G) In addition to any Permitted Encumbrances,
the related mortgagor's interest in the Lease
will be subject and subordinate to (i) the
Ground Lease between Battery Park City
Authority ("BPCA") and BPCA, (ii) the Master
Lease between BPCA and BPCA and (iii) the
option to purchase the fee interest granted to
City of New York.
(J) All insurance proceeds and condemnation
awards with respect to Common Elements (as
defined in the related condominium declaration)
of the building are to be paid to a depository,
which can be a Registered Lender (as defined in
the related condominium declaration) that is an
Institutional Lender(as defined in the related
condominium declaration), so long as such
depository is approved by both condominium unit
owners and their Registered Lenders. The
current holder (the "Retail Unit Lender") of
the mortgage (the "Retail Unit Mortgage")
currently encumbering the Retail Unit of the
building is currently designated as Depository.
The related mortgagor has agreed that, upon the
earliest to occur of the refinancing of the
Retail Unit Mortgage, the disqualification of
the Retail Unit Lender to act as a depository
under the Condominium Documents, or the
resignation or refusal by the Retail Lender to
act as the Depository under the Condominium
Documents, then the related mortgagor shall
take, and shall cause any affiliated owner of
the Retail Unit to take, any and all actions as
shall be necessary to cause the lender under
the related mortgage loan to be designated as
the Depository. Under the terms of the Lease,
lessor is entitled to receive condemnation
proceeds equal to the fair market value of the
land as encumbered by the Lease, Ground Lease
and Master Lease; however, under the terms of
the Master Lease, the fee owner is entitled to
condemnation proceeds equal to the fair market
value of the land as unencumbered (i.e., under
the terms of the Master Lease, which are
superior to the terms of the Lease, the
mortgagor could receive less proceeds than it
would otherwise be entitled to under the
Lease).
With respect to use restrictions, the related
mortgaged real property must be
used as and for a mixed use hotel in accordance
with the Lease and certain use and development
documents described therein and for no other
purposes. Tenant may not assign the Lease or
any interest of tenant in the Lease, sublet the
premises as an entirety or substantially as an
entirety (as opposed to a sublease for less
than substantially all of the space, for which
tenant does not need Landlord's consent) or
enter into any transfer without obtaining
Landlord's approval (which is not to
unreasonably withheld, conditioned or delayed).
Tenant may not make a transfer, assign the
Lease or sublease the premises to any Person in
which an ownership interest of 5% or greater
(in the aggregate) is then held, directly or
indirectly, by any individual (i) who has ever
been convicted of a felony, (ii) against whom
any action or proceeding is pending to enforce
the rights of the State of New York or its
agencies arising out of a mortgage obligation
to the State of New York or its agencies, or
(iii) with respect to whom any notice of
substantial monetary default which remains
uncured has been given by the State of New York
or its agencies arising out of a mortgage
obligations to the State of New York or its
agencies.
(L) Landlord is only required to enter into a
new lease if the Lease terminates by reason of
an event of default under the Lease, which
includes termination or rejection of the Lease
in bankruptcy.
One Financial Center. Insurance proceeds from
casualty or condemnation will be applied to the
repair or restoration of the related mortgaged
real property and/or portions of the ground
lessor's property. However, the related
lender's disbursement rights are limited. The
proceeds shall be deposited in a bank account
in the name of the ground lessor and the first
leasehold lender jointly. After disbursement of
the insurance proceeds for repair or
reconstruction: (i) the ground lessor and the
first leasehold lender may inspect the work or
verify the accuracy of vouchers certified to be
used to pay for such work and, the ground
lessor and the first leasehold lender may
withhold from such amount to be paid, ten
percent (10%) until the work is completed and
proof furnished that no lien or liability will
attach to the related mortgaged real property
or; (ii) the related mortgagor may furnish a
surety company bond to assure completion of the
work.
Palms Plaza Shopping Center. In the event that
the condemnation proceeds are not used for
restoration of the related mortgaged real
property, the landlord shall be entitled to
receive that portion of the condemnation
proceeds attributable to landlord's
reversionary interest in the related mortgage
real property and the improvements thereon.
(xlviii) Defeasance Some of the Xxxxxx Mortgage Loans included in
this pool which are not ARD loans contemplate
scheduled defeasance payments calculated as if
the related note matures upon commencement of
the open prepayment periods.
(l) Mechanics' and Under the law of the State of Illinois,
Materialmen's Liens subsequently filed mechanic's liens can be
superior to the lien of a mortgage.
Any related mortgaged real property which is
subject to condominium documents may become
subject to a lien for the failure to pay
certain common charges owed pursuant to such
documents, and that lien would be prior to the
related mortgage.
(liv) No Ownership Interest Highwoods II Portfolio. LB Southeast LLC, an
affiliate of Xxxxxx, holds a
in The mortgagor 50% interest as a non-managing member of CAT
Holdings Owner LLC, a member of CAT-A Holdings
LLC, which is indirectly the sole member of the
Highwoods II Portfolio borrower.
(lv) Common Ownership 00 Xxx Xxxx Xxxxx Xxxx; Macton Building and
Southeast Executive Park.
Atrium Professional Center and El Paseo Plaza.
Club Quarters Midtown and Club Quarters
Washington, D.C.
Edgewood Park; Pasadena Apartments and Woodland
Arms Apartments.
Keep Safe Self Storage and May Avenue & May 42
Self Storage.
Park Plaza Shopping Center and The Shoppes at
Schererville.
Peppertree Apartments; Xxxxxxx Xxxx Apartments
and Rock Creek Apartments.
Storage Express Pool I, Storage Express Pool II
and Storage Express Pool III.
The Terraces at University Place; Lakeview
Crossing and Park City Shopping Center.
U-Haul Portfolio-26 Facilities Portfolio and
U-Haul Portfolio-SAC Portfolio.
SCHEDULE IV
SCHEDULE OF ENVIRONMENTALLY INSURED MORTGAGE LOANS
MORTGAGE
LOAN CUT-OFF DATE
NUMBER PROPERTY NAME ADDRESS BALANCE
-------- ------------- -------------------------------- ------------
34 Waldbaums - 000 Xxxx Xxxxxx, Xxxxxxxxxxx, XX $11,440,000
Farmingdale
SCHEDULE V
SCHEDULE OF INITIAL DEPOSIT MORTGAGE LOANS
NONE
SCHEDULE VI
SCHEDULE OF MORTGAGE LOANS SECURED BY
A HOSPITALITY PROPERTY OR NURSING FACILITY
-------------------------------------------------------------------------------------------------------------------------
Mortgage Loan Mortgage Loan
Number Property Name and Address Type of Property Date of Origination Seller
-------------------------------------------------------------------------------------------------------------------------
Courtyard by Marriott II Fee Portfolio
5 Various Hotel 12/29/05 LBHI
-------------------------------------------------------------------------------------------------------------------------
Ashford I Portfolio
6 Various Hotel 11/14/05 UBS
---------------------------------------------------------------------------------- --------------------------------------
Ashford II Portfolio
7 Various Hotel 11/14/05 UBS
---------------------------------------------------------------------------------- --------------------------------------
Embassy Suites Battery Park City
000 Xxxxx Xxx Xxxxxx
0 Xxx Xxxx, Xxx Xxxx 00000 Hotel 12/9/05 LBHI
---------------------------------------------------------------------------------- --------------------------------------
Club Quarters Xxxxxxx
00 Xxxx 00xx Xxxxxx
15 New York, New York 10036 Hotel 10/28/05 LBHI
---------------------------------------------------------------------------------- --------------------------------------
Club Quarters Washington, D.C.
000 00xx Xxxxxx, XX
00 Xxxxxxxxxx, XX 00000 Hotel 10/28/05 LBHI
---------------------------------------------------------------------------------- --------------------------------------
Hampton Inn Denville
000 Xxxxxx Xxxxxx
00 Xxxxxxxx, Xxx Xxxxxx 00000 Hotel 11/10/05 UBS
---------------------------------------------------------------------------------- --------------------------------------
Holiday Inn - Solana Beach
000 Xxxxx Xxxxxxx 000
00 Xxxxxx Xxxxx, Xxxxxxxxxx 00000 Hotel 8/17/05 LBHI
---------------------------------------------------------------------------------- --------------------------------------
Holiday Inn Express - Destin
000 Xxxxxxxxxx Xxxxxx
00 Xxxxxx, Xxxxxxx 00000 Hotel 12/22/05 LBHI
---------------------------------------------------------------------------------- --------------------------------------
Xxxxxxx Xxx xxx Xxxxxx - XX
00000 Xxxxx Xxxxxx
55 Xxxxx, Xxxxxxxx 00000 Hotel 10/13/05 LBHI
---------------------------------------------------------------------------------- --------------------------------------
Xxxxxxx Inn - Concord
0000 Xxxxxxx Xxxx
00 Xxxxxxx, Xxxxx Xxxxxxxx 00000 Hotel 9/23/05 LBHI
---------------------------------------------------------------------------------- --------------------------------------
Best Western Raleigh Inn & Suites
0000 Xxx Xxxx Xxxxxx
000 Xxxxxxx, Xxxxx Xxxxxxxx 00000 Hotel 11/18/05 LBHI
---------------------------------------------------------------------------------- --------------------------------------
SCHEDULE VII
SCHEDULE OF EARLY DEFEASANCE MORTGAGE LOANS
NONE
SCHEDULE VIII
SCHEDULE OF OUTSIDE SERVICED TRUST MORTGAGE LOANS
NONE
SCHEDULE IX
SCHEDULE OF REFERENCE RATES
INTEREST ACCRUAL
PERIODS BY INTEREST ACCRUAL
NUMERICAL ORDER PERIOD BEGINNING IN: REFERENCE RATE
---------------- -------------------- --------------
1 January 2006 5.53057%
2 February 2006 5.53068%
3 March 2006 5.69957%
4 April 2006 5.53064%
5 May 2006 5.69962%
6 June 2006 5.53070%
7 July 2006 5.69968%
8 August 2006 5.69971%
9 September 2006 5.53078%
10 October 2006 5.69977%
11 November 2006 5.53083%
12 December 2006 5.53086%
13 January 2007 5.53088%
14 February 2007 5.53106%
15 March 2007 5.69991%
16 April 2007 5.53096%
17 May 2007 5.69997%
18 June 2007 5.53101%
19 July 2007 5.70003%
20 August 2007 5.70005%
21 September 2007 5.53109%
22 October 2007 5.70011%
23 November 2007 5.53114%
24 December 2007 5.70016%
25 January 2008 5.53118%
26 February 2008 5.53125%
27 March 2008 5.70025%
28 April 2008 5.53122%
29 May 2008 5.70031%
30 June 2008 5.53126%
31 July 2008 5.70037%
32 August 2008 5.70039%
33 September 2008 5.53130%
34 October 2008 5.70045%
35 November 2008 5.53134%
36 December 2008 5.53136%
37 January 2009 5.53138%
38 February 2009 5.53162%
INTEREST ACCRUAL
PERIODS BY INTEREST ACCRUAL
NUMERICAL ORDER PERIOD BEGINNING IN: REFERENCE RATE
---------------- -------------------- --------------
39 March 2009 5.70062%
40 April 2009 5.53144%
41 May 2009 5.70068%
42 June 2009 5.53148%
43 July 2009 5.70075%
44 August 2009 5.70078%
45 September 2009 5.53153%
46 October 2009 5.70085%
47 November 2009 5.53157%
48 December 2009 5.53159%
49 January 2010 5.53160%
50 February 2010 5.53189%
51 March 2010 5.70098%
52 April 2010 5.53163%
53 May 2010 5.70102%
54 June 2010 5.53165%
55 July 2010 5.70107%
56 August 2010 5.70109%
57 September 2010 5.53539%
58 October 2010 5.70544%
59 November 2010 5.53806%
60 December 2010 5.53802%
61 January 2011 5.53711%
62 February 2011 5.54026%
63 March 2011 5.70408%
64 April 2011 5.53696%
65 May 2011 5.70400%
66 June 2011 5.53686%
67 July 2011 5.70392%
68 August 2011 5.70316%
69 September 2011 5.53604%
70 October 2011 5.70308%
71 November 2011 5.53594%
72 December 2011 5.70299%
73 January 2012 5.53583%
74 February 2012 5.53592%
75 March 2012 5.70287%
76 April 2012 5.53567%
77 May 2012 5.70278%
78 June 2012 5.53556%
79 July 2012 5.70270%
80 August 2012 5.70192%
81 September 2012 5.53555%
INTEREST ACCRUAL
PERIODS BY INTEREST ACCRUAL
NUMERICAL ORDER PERIOD BEGINNING IN: REFERENCE RATE
---------------- -------------------- --------------
82 October 2012 5.70266%
83 November 2012 5.53833%
84 December 2012 5.53827%
SCHEDULE X
SCHEDULE OF CLASS A-AB PLANNED PRINCIPAL BALANCES
MONTH AND YEAR CLASS A-AB PLANNED
OF DISTRIBUTION DATE PRINCIPAL BALANCE
-------------------- ------------------
February 2006 $94,000,000.00
March 2006 $94,000,000.00
April 2006 $94,000,000.00
May 2006 $94,000,000.00
June 2006 $94,000,000.00
July 2006 $94,000,000.00
August 2006 $94,000,000.00
September 2006 $94,000,000.00
October 2006 $94,000,000.00
November 2006 $94,000,000.00
December 2006 $94,000,000.00
January 2007 $94,000,000.00
February 2007 $94,000,000.00
March 2007 $94,000,000.00
April 2007 $94,000,000.00
May 2007 $94,000,000.00
June 2007 $94,000,000.00
July 2007 $94,000,000.00
August 2007 $94,000,000.00
September 2007 $94,000,000.00
October 2007 $94,000,000.00
November 2007 $94,000,000.00
December 2007 $94,000,000.00
January 2008 $94,000,000.00
February 2008 $94,000,000.00
March 2008 $94,000,000.00
April 2008 $94,000,000.00
May 2008 $94,000,000.00
June 2008 $94,000,000.00
July 2008 $94,000,000.00
August 2008 $94,000,000.00
September 2008 $94,000,000.00
October 2008 $94,000,000.00
November 2008 $94,000,000.00
December 2008 $94,000,000.00
January 2009 $94,000,000.00
February 2009 $94,000,000.00
March 2009 $94,000,000.00
April 2009 $94,000,000.00
May 2009 $94,000,000.00
June 2009 $94,000,000.00
July 2009 $94,000,000.00
August 2009 $94,000,000.00
September 2009 $94,000,000.00
October 2009 $94,000,000.00
November 2009 $94,000,000.00
December 2009 $94,000,000.00
January 2010 $94,000,000.00
MONTH AND YEAR CLASS A-AB PLANNED
OF DISTRIBUTION DATE PRINCIPAL BALANCE
-------------------- ------------------
February 2010 $94,000,000.00
March 2010 $94,000,000.00
April 2010 $94,000,000.00
May 2010 $94,000,000.00
June 2010 $94,000,000.00
July 2010 $94,000,000.00
August 2010 $94,000,000.00
September 2010 $94,000,000.00
October 2010 $94,000,000.00
November 2010 $94,000,000.00
December 2010 $94,000,000.00
January 2011 $92,344,653.54
February 2011 $90,622,000.00
March 2011 $88,405,000.00
April 2011 $86,663,000.00
May 2011 $84,752,000.00
June 2011 $82,994,000.00
July 2011 $81,066,000.00
August 2011 $79,290,000.00
September 2011 $77,505,000.00
October 2011 $75,552,000.00
November 2011 $69,707,000.00
December 2011 $67,742,000.00
January 2012 $65,927,000.00
February 2012 $64,104,000.00
March 2012 $61,954,000.00
April 2012 $60,112,000.00
May 2012 $58,103,000.00
June 2012 $56,242,000.00
July 2012 $54,215,000.00
August 2012 $52,335,000.00
September 2012 $51,200,000.00
October 2012 $51,000,000.00
November 2012 $50,800,000.00
December 2012 $48,460,494.21
January 2013 $46,562,000.00
February 2013 $44,656,000.00
March 2013 $42,280,000.00
April 2013 $40,352,000.00
May 2013 $38,263,000.00
June 2013 $36,317,000.00
July 2013 $34,209,000.00
August 2013 $32,243,000.00
September 2013 $30,268,000.00
October 2013 $28,131,000.00
November 2013 $26,137,000.00
December 2013 $23,981,000.00
January 2014 $21,966,000.00
February 2014 $19,942,000.00
March 2014 $17,457,000.00
April 2014 $15,411,000.00
May 2014 $13,206,000.00
June 2014 $11,140,000.00
July 2014 $ 8,914,000.00
August 2014 $ 6,827,000.00
MONTH AND YEAR CLASS A-AB PLANNED
OF DISTRIBUTION DATE PRINCIPAL BALANCE
-------------------- ------------------
September 2014 $4,731,000.00
October 2014 $2,475,000.00
November 2014 and thereafter $ 0.00
EXHIBIT A-1
FORM OF CLASS [A-1] [A-2] [A-3] [A-AB] [A-4] CERTIFICATE
LB-UBS COMMERCIAL MORTGAGE TRUST 2006-C1
CLASS [A-1] [A-2] [A-3] [A-AB] [A-4] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE,
SERIES 2006-C1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Pass-Through Rate: ___% per annum
Date of Pooling and Servicing Agreement: January 11, 2006
Cut-off Date: January 11, 2006
Closing Date: February 1, 2006
First Distribution Date: February 17, 2006
Master Servicer: Wachovia Bank, National Association
Special Servicer: LNR Partners, Inc.
Certificate No. [A-1] [A-2] [A-3] [A-AB] [A-4] - ___
Initial Certificate Principal Balance of this Certificate as of the Closing
Date: $____________
Class Principal Balance of all the Class [A-1] [A-2] [A-3] [A-AB] [A-4]
Certificates as of the Closing Date: $____________
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,483,260,647
Trustee: LaSalle Bank National Association
CUSIP No.: _____________
A-1-1
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, 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, LNR
PARTNERS, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling
A-1-2
and Servicing Agreement, dated as specified above (the "Agreement"), between
Structured Asset Securities Corporation II, as depositor (the "Depositor", which
term includes any successor entity under the Agreement), Wachovia Bank, National
Association as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), LNR Partners, Inc., as special servicer
(the "Special Servicer", which term includes any successor entity under the
Agreement), and LaSalle Bank National Association, as trustee (the "Trustee",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the event of any conflict between
any provision of this Certificate and any provision of the Agreement, such
provision of this Certificate shall be superseded to the extent of such
inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs, provided that, in the case of the initial
Distribution Date, the Record Date shall be the Closing Date. All distributions
made under the Agreement in respect of this Certificate will be made by the
Trustee by wire transfer in immediately available funds to the account of the
Person entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions generally no less than five (5) Business Days prior to (or,
in the case of the first such distribution, no later than) the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
A-1-3
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[FOR BOOK ENTRY CERTIFICATES: Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.]
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all
A-1-4
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust. The Agreement permits, but does not require, the 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), the Master Servicer, the Depositor or Xxxxxx
Brothers Inc., in that order of priority (with the Special Servicer having the
most senior priority) 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 1.0% of the initial aggregate Certificate Principal
Balance of all of the Principal Balance Certificates.
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 any 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 any 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 Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-1-5
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1] [A-2] [A-3] [A-AB] [A-4] Certificates
referred to in the within-mentioned Agreement.
Dated: _______________
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
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-CP CERTIFICATE
LB-UBS COMMERCIAL MORTGAGE TRUST 2006-C1
CLASS X-CP COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2006-C1
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
Date of Pooling and Servicing Agreement: January 11, 2006
Cut-off Date: January 11, 2006
Closing Date: February 1, 2006
First Distribution Date: February 17, 2006
Master Servicer: Wachovia Bank, National Association
Special Servicer: LNR Partners, Inc.
Certificate No. X-CP-___
Initial Certificate Notional Amount of this Certificate as of the Closing Date:
$____________
Class Notional Amount of all the Class X-CP Certificates as of the Closing Date:
$____________
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,483,260,647
Trustee: LaSalle Bank National Association
CUSIP No.: _____________
A-2-1
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, 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, LNR
PARTNERS, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL
BALANCE AND DOES NOT ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF
PRINCIPAL. THE HOLDER HEREOF WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST
ACCRUED AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN ON
THE CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE, WHICH AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
A-2-2
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), LNR Partners,
Inc., as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement), and LaSalle Bank National Association, as
trustee (the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs, provided that, in the case of the initial
Distribution Date, the Record Date shall be the Closing Date. All distributions
made under the Agreement in respect of this Certificate will be made by the
Trustee by wire transfer in immediately available funds to the account of the
Person entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions generally 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
A-2-3
advances made, or certain expenses incurred, with respect to the Mortgage Loans
and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[FOR BOOK ENTRY CERTIFICATES: Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.]
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
A-2-4
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 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), the Master Servicer, the Depositor or Xxxxxx
Brothers Inc., in that order of priority (with the Special Servicer having the
most senior priority) 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 1.0% of the initial aggregate Certificate Principal
Balance of all of the Principal Balance Certificates.
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 any 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 any 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 Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X-CP Certificates referred to in the
within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
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 X-CL CERTIFICATE
LB-UBS COMMERCIAL MORTGAGE TRUST 2006-C1
CLASS X-CL COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2006-C1
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
Date of Pooling and Servicing Agreement: January 11, 2006
Cut-off Date: January 11, 2006
Closing Date: February 1, 2006
First Distribution Date: February 17, 2006
Master Servicer: Wachovia Bank, National Association
Special Servicer: LNR Partners, Inc.
Certificate No. X-CL-___
Initial Certificate Notional Amount of this Certificate as of the Closing Date:
$____________
Class Notional Amount of all the Class X-CL Certificates as of the Closing Date:
$____________
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,483,260,647
Trustee: LaSalle Bank National Association
CUSIP No.: _____________
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[FOR BOOK ENTRY CERTIFICATES: UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, 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, LNR
PARTNERS, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE
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A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT ENTITLE THE HOLDER HEREOF TO ANY
DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF WILL BE ENTITLED TO DISTRIBUTIONS
OF INTEREST ACCRUED AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE, WHICH AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
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), LNR Partners,
Inc., as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement), and LaSalle Bank National Association, as
trustee (the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs, provided that, in the case of the initial
Distribution Date, the Record Date shall be the Closing Date. All distributions
made under the Agreement in respect of this Certificate will be made by the
Trustee by wire transfer in immediately available funds to the account of the
Person entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions generally 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.
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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, any
Fiscal Agent or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such Transfer from the Certificateholder desiring to effect such Transfer and/or
such Certificateholder's prospective Transferee on which such Opinion of Counsel
is based. If 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
A-3-4
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.
No beneficial interest in a Rule 144A Global Certificate for any Class
of Book-Entry Non-Registered Certificates may be held by any Person that is not
a Qualified Institutional Buyer. If 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. 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 preceding sentence, then such Transferee shall be
deemed to have represented and warranted that all the certifications set forth
in Exhibit F-2C attached to the Agreement are, with respect to the subject
Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the Rule 144A
Global Certificate for a Class of Book-Entry Non-Registered Certificates may be
transferred to any Non-United States Securities Person who takes delivery in the
form of a beneficial interest in the Regulation S Global Certificate for such
Class of Certificates, provided that the Certificate Owner desiring to effect
such Transfer (i) complies with the requirements for Transfers of interests in
such Regulation S Global Certificate set forth in the following paragraph and
(ii) delivers or causes to be delivered to the Certificate Registrar and the
Trustee (A) a certificate from such Certificate Owner confirming its ownership
of the beneficial interests in the subject Class of Book-Entry Non-Registered
Certificates to be transferred, (B) a copy of the certificate to be obtained by
such Certificate Owner from its prospective Transferee in accordance with the
second sentence of the following paragraph and (C) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the 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 and
the Trustee of such certifications 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 Book-Entry Non-Registered Certificates, and
increase the denomination of the Regulation S Global Certificate for such Class
of Certificates, by the denomination of the beneficial interest in such Class of
Certificates specified in such orders and instructions.
No beneficial interest in the Regulation S Global Certificate for any
Class of Book-Entry Non-Registered Certificates may be held by a United States
Securities Person. Any Certificate Owner desiring to effect any Transfer of an
interest in the Regulation S Global Certificate for any Class of Book-Entry
Non-Registered Certificates shall be required to obtain from such Certificate
Owner's prospective Transferee a certificate substantially in the form set forth
in Exhibit F-2D to the Agreement to the effect that such Transferee is not a
United States Securities Person. If any Transferee of an
A-3-5
interest in the Regulation S Global Certificate for any Class of Book-Entry
Non-Registered Certificates does not, in connection with the subject Transfer,
deliver to the Transferor the certification described in the preceding sentence,
then such Transferee shall be deemed to have represented and warranted that all
the certifications set forth in Exhibit F-2D to the Agreement are, with respect
to the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred to any Qualified Institutional Buyer that takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates, provided that the Certificate Owner
desiring to effect such transfer (i) complies with the requirements for
Transfers of interests in such Rule 144A Global Certificate set forth in the
third paragraph above this paragraph and (ii) delivers or causes to be delivered
to the Certificate Registrar and the Trustee (A) a certificate from such
Certificate Owner confirming its ownership of the beneficial interests in the
subject Class of Book-Entry Non-Registered Certificates to be transferred, (B) a
copy of the certificate or Opinion of Counsel to be obtained by such Certificate
Owner from its prospective Transferee in accordance with the second sentence of
the third paragraph above this paragraph and (C) 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 and the Trustee of such certification(s) and/or Opinion of Counsel 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 Book-Entry
Non-Registered Certificates, and increase the denomination of the Rule 144A
Global Certificate for such Class of Certificates, by the denomination of the
beneficial interest in such Class of Certificates specified in such orders and
instructions.
Also notwithstanding the foregoing, any interest in a Global
Certificate with respect to any Class of Book-Entry Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
that takes delivery in the form of a Definitive Certificate of the same Class as
such Global Certificate upon delivery to the Certificate Registrar and the
Trustee of (i) such certifications and/or opinions as are contemplated by the
fifth paragraph above this paragraph 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 Global Certificate. Upon
delivery to the Certificate Registrar and the Trustee of the certifications
and/or opinions contemplated by the fifth paragraph above this paragraph, the
Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the subject Global Certificate by
the denomination of the transferred interests in such Global Certificate, and
shall cause a Definitive Certificate of the same Class as such Global
Certificate, and in a denomination equal to the reduction in the denomination of
such Global Certificate, to be executed, authenticated and delivered in
accordance with the Agreement to the applicable Transferee.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other
A-3-6
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, any Fiscal Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar and their respective Affiliates against any
liability that may result if such Transfer is not exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan, if the purchase
and holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial issuance of the
Certificates or any Transfer of this Certificate or any interest herein by the
Depositor, Xxxxxx Brothers Inc. or any of their respective Affiliates or, if
this Certificate constitutes a Global Certificate, any Transfer of this
Certificate to a successor Depository or to the applicable Certificate Owner in
accordance with Section 5.03 of the Agreement, the Certificate Registrar shall
refuse to register the Transfer of this Certificate unless it has received from
the prospective Transferee, and, if this Certificate constitutes a Global
Certificate, any Certificate Owner transferring an interest herein shall be
required to obtain from its prospective Transferee one of the following: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate or such interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) a certification to the effect that the purchase and holding of
this Certificate or such interest herein by such prospective Transferee is
exempt from the prohibited transaction provisions of Sections 406(a) and (b) and
407 of ERISA and the excise taxes imposed on such prohibited transactions by
Sections 4975(a) and (b) of the Code, by reason of Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) if this Certificate is
rated in one of the four highest generic rating categories by either Rating
Agency, and this Certificate or an interest herein is being acquired by or on
behalf of a Plan in reliance on any of Prohibited Transaction Exemption 91-14, a
certification to the effect that such Plan (X) is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act, (Y) is not
sponsored (within the meaning of Section 3(16)(B) of ERISA) by the Trustee, the
Depositor, any Mortgage Loan Seller, the Master Servicer, the Special Servicer,
any Sub-Servicer, any Person responsible for servicing any Outside Serviced
Trust Mortgage Loan or administering an Outside Administered 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
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407 of ERISA or Section 4975 of the Code or result in the imposition of an
excise tax under Section 4975 of the Code. If any Transferee of this Certificate
or any interest herein does not, in connection with the subject Transfer,
deliver to the Certificate Registrar (if this Certificate constitutes a
Definitive Certificate) or the Transferor (if this Certificate constitutes a
Global Certificate) a certification and/or Opinion of Counsel as required by the
preceding sentence, then such Transferee shall be deemed to have represented and
warranted that either: (i) such Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate or any interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of this Certificate or such interest herein by such
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[FOR BOOK ENTRY CERTIFICATES: Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.]
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement
A-3-8
of all Mortgage Loans and any REO Properties remaining in the Trust. The
Agreement permits, but does not require, 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), the Master Servicer, the Depositor or Xxxxxx Brothers Inc.,
in that order of priority (with the Special Servicer having the most senior
priority) 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 1.0% of the initial aggregate Certificate Principal Balance of all of the
Principal Balance Certificates.
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 any 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 any 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 Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-3-9
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X-CL Certificates referred to in the
within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
------------------------------------
Authorized Officer
A-3-10
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code
of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: ______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ________
______________________) and all applicable statements and notices should be
mailed to _____________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
X-0-00
XXXXXXX X-0
FORM OF CLASS [A-M] [A-J] [B] [C] [D] [E] [F] CERTIFICATE
LB-UBS COMMERCIAL MORTGAGE TRUST 2006-C1
CLASS [A-M] [A-J] [B] [C] [D] [E] [F] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE,
SERIES 2006-C1
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
Date of Pooling and Servicing Agreement: January 11, 2006
Cut-off Date: January 11, 2006
Closing Date: February 1, 2006
First Distribution Date: February 17, 2006
Master Servicer: Wachovia Bank, National Association
Special Servicer: LNR Partners, Inc.
Certificate No. [A-M] [A-J] [B] [C] [D] [E] [F]-___
Initial Certificate Principal Balance of this Certificate as of the Closing
Date: $_______________
Class Principal Balance of all the Class [A-M] [A-J] [B] [C] [D] [E] [F]
Certificates as of the Closing Date: $_______________
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date
(the "Initial Pool Balance"): $2,483,260,647
Trustee: LaSalle Bank National Association
CUSIP No.: _____________
A-4-1
[FOR BOOK ENTRY CERTIFICATES: UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, 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, LNR
PARTNERS, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its
A-4-2
"Certificate Principal Balance") as of the Closing Date by the aggregate
principal balance of all the Certificates of the same Class as this Certificate
(their "Class Principal Balance") as of the Closing Date) in that certain
beneficial ownership interest in the Trust evidenced by all the Certificates of
the same Class as this Certificate. The Trust was created and the Certificates
were issued pursuant to a Pooling and Servicing Agreement, dated as specified
above (the "Agreement"), between Structured Asset Securities Corporation II, as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), Wachovia Bank, National Association, as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement), LNR
Partners, Inc., as special servicer (the "Special Servicer", which term includes
any successor entity under the Agreement), and LaSalle Bank National
Association, as trustee (the "Trustee", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound. In
the event of any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs, provided that, in the case of the initial
Distribution Date, the Record Date shall be the Closing Date. All distributions
made under the Agreement in respect of this Certificate will be made by the
Trustee by wire transfer in immediately available funds to the account of the
Person entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions generally 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.
A-4-3
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[FOR BOOK ENTRY CERTIFICATES: Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.]
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
A-4-4
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust. The Agreement permits, but does not require, the 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), the Master Servicer, the Depositor or Xxxxxx
Brothers Inc., in that order of priority (with the Special Servicer having the
most senior priority) 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 1.0% of the initial aggregate Certificate Principal
Balance of all of the Principal Balance Certificates.
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 any 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 any 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 Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-4-5
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-M] [A-J] [B] [C] [D] [E] [F] Certificates
referred to in the within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
---------------------------------
Authorized Officer
A-4-6
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 [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S] [T] CERTIFICATE
LB-UBS COMMERCIAL MORTGAGE TRUST 2006-C1
CLASS [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S] [T] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-C1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Pass-Through Rate: [__% per annum] [Variable]
Date of Pooling and Servicing Agreement: January 11, 2006
Cut-off Date: January 11, 2006
Closing Date: February 1, 2006
First Distribution Date: February 17, 2006
Master Servicer: Wachovia Bank, National Association
Special Servicer: LNR Partners, Inc.
Certificate No. [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S] [T]-_____
Initial Certificate Principal Balance of this Certificate as of the Closing
Date: $___________
Class Principal Balance of all the Class [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S]
[T] Certificates as of the Closing Date: $___________
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,483,260,647
Trustee: LaSalle Bank National Association
CUSIP No.: ___________
A-5-1
[FOR BOOK ENTRY CERTIFICATES: UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, 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, LNR
PARTNERS, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A
A-5-2
"REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
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), LNR Partners, Inc., as special servicer
(the "Special Servicer", which term includes any successor entity under the
Agreement), and LaSalle Bank National Association, as trustee (the "Trustee",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the event of any conflict between
any provision of this Certificate and any provision of the Agreement, such
provision of this Certificate shall be superseded to the extent of such
inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs, provided that, in the case of the initial
Distribution Date, the Record Date shall be the Closing Date. All distributions
made under the Agreement in respect of this Certificate will be made by the
Trustee by wire transfer in immediately available funds to the account of the
Person entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions generally 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
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notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
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
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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, any Fiscal
Agent or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
Transfer from the Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If 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.
No beneficial interest in a Rule 144A Global Certificate for any Class
of Book-Entry Non-Registered Certificates may be held by any Person that is not
a Qualified Institutional Buyer. If 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. 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 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. Furthermore, if this Certificate constitutes a Rule
144A Global Certificate for the Class T Certificates 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 above in this 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 2006-C1, facsimile number: (000) 000-0000.
Notwithstanding the preceding paragraph, any interest in the Rule 144A
Global Certificate for a Class of Book-Entry Non-Registered Certificates may be
transferred to any Non-United States Securities Person who takes delivery in the
form of a beneficial interest in the Regulation S Global Certificate for such
Class of Certificates, provided that the Certificate Owner desiring to effect
such Transfer (i) complies with the requirements for Transfers of interests in
such Regulation S Global Certificate set forth in the following paragraph and
(ii) delivers or causes to be delivered to the Certificate Registrar and the
Trustee (A) a certificate from such Certificate Owner confirming its ownership
of the beneficial interests in the subject Class of Book-Entry Non-Registered
Certificates to be transferred, (B) a copy of the certificate to be obtained by
such Certificate Owner from its prospective Transferee in accordance with the
second sentence of the following paragraph and (C) such written
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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 and the Trustee of such certifications 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 Book-Entry Non-Registered
Certificates, and increase the denomination of the Regulation S Global
Certificate for such Class of Certificates, by the denomination of the
beneficial interest in such Class of Certificates specified in such orders and
instructions.
No beneficial interest in the Regulation S Global Certificate for any
Class of Book-Entry Non-Registered Certificates may be held by a United States
Securities Person. Any Certificate Owner desiring to effect any Transfer of an
interest in the Regulation S Global Certificate for any Class of Book-Entry
Non-Registered Certificates shall be required to obtain from such Certificate
Owner's prospective Transferee a certificate substantially in the form set forth
in Exhibit F-2D to the Agreement to the effect that such Transferee is not a
United States Securities Person. If any Transferee of an interest in the
Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates does not, in connection with the subject Transfer, deliver to the
Transferor the certification described in the preceding sentence, then such
Transferee shall be deemed to have represented and warranted that all the
certifications set forth in Exhibit F-2D to the Agreement are, with respect to
the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred to any Qualified Institutional Buyer that takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates, provided that the Certificate Owner
desiring to effect such transfer (i) complies with the requirements for
Transfers of interests in such Rule 144A Global Certificate set forth in the
third paragraph above this paragraph and (ii) delivers or causes to be delivered
to the Certificate Registrar and the Trustee (A) a certificate from such
Certificate Owner confirming its ownership of the beneficial interests in the
subject Class of Book-Entry Non-Registered Certificates to be transferred, (B) a
copy of the certificate or Opinion of Counsel to be obtained by such Certificate
Owner from its prospective Transferee in accordance with the second sentence of
the third paragraph above this paragraph and (C) 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 and the Trustee of such certification(s) and/or Opinion of Counsel 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 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.
A-5-6
Also notwithstanding the foregoing, any interest in a Global
Certificate with respect to any Class of Book-Entry Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
that takes delivery in the form of a Definitive Certificate of the same Class as
such Global Certificate upon delivery to the Certificate Registrar and the
Trustee of (i) such certifications and/or opinions as are contemplated by the
fifth paragraph above this paragraph 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 Global Certificate. Upon
delivery to the Certificate Registrar and the Trustee of the certifications
and/or opinions contemplated by the fifth paragraph above this paragraph, the
Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the subject Global Certificate by
the denomination of the transferred interests in such Global Certificate, and
shall cause a Definitive Certificate of the same Class as such Global
Certificate, and in a denomination equal to the reduction in the denomination of
such Global Certificate, to be executed, authenticated and delivered in
accordance with the Agreement to the applicable Transferee.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, Xxxxxx Brothers Inc., UBS Securities LLC, the
Trustee, any Fiscal Agent, the Master Servicer, the Special Servicer, the
Certificate Registrar and their respective Affiliates against any liability that
may result if such Transfer is not exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan, if the purchase
and holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial issuance of the
Certificates or any Transfer of this Certificate or any interest herein by the
Depositor, Xxxxxx Brothers Inc. or any of their respective Affiliates or, if
this Certificate constitutes a Global Certificate, any Transfer of this
Certificate to a successor Depository or to the applicable Certificate Owner in
accordance with Section 5.03 of the Agreement, the Certificate Registrar shall
refuse to register the Transfer of this Certificate unless it has received from
the prospective Transferee, and, if this Certificate constitutes a Global
Certificate, any Certificate Owner transferring an interest herein shall be
required to obtain from its prospective Transferee, one of the following: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate or such interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) a certification to the effect that the purchase and holding of
this Certificate or such interest herein by such prospective Transferee is
exempt from the prohibited transaction provisions of Sections 406(a) and (b)
A-5-7
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 an Outside Serviced Trust
Mortgage Loan or administering an Outside Administered 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
A-5-8
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust. The Agreement permits, but does not require, the 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), the Master Servicer, the Depositor or Xxxxxx
Brothers Inc., in that order of priority (with the Special Servicer having the
most senior priority) 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 1.0% of the initial aggregate Certificate Principal
Balance of all of the Principal Balance Certificates.
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 any 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 any 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 Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
A-5-9
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-5-10
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [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 Authenticating Agent
By:
-------------------------------
Authorized Officer
A-5-11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: ______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ________
__________________________) and all applicable statements and notices should be
mailed to _____________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
X-0-00
XXXXXXX X-0
FORM OF CLASS [R-I] [R-II] [R-III] [R-LR] CERTIFICATE
LB-UBS COMMERCIAL MORTGAGE TRUST 2006-C1
CLASS [R-I] [R-II] [R-III] [R-LR] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE,
SERIES 2006-C1
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: January 11, 2006
Cut-off Date: January 11, 2006
Closing Date: February 1, 2006
First Distribution Date: February 17, 2006
Master Servicer: Wachovia Bank, National Association
Special Servicer: LNR Partners, Inc.
Certificate No. [R-I] [R-II] [R-III] [R-LR]- ___
Percentage Interest evidenced by this Certificate in the related Class: ___%
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,483,260,647
Trustee: LaSalle Bank National Association
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 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, LNR
PARTNERS, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that _______________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate (as specified
above) in that certain beneficial ownership
A-6-2
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), LNR Partners,
Inc., as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement), and LaSalle Bank National Association, as
trustee (the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs, provided that, in the case of the initial
Distribution Date, the Record Date shall be the Closing Date. All distributions
made under the Agreement in respect of this Certificate will be made by the
Trustee by wire transfer in immediately available funds to the account of the
Person entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions generally no less than five (5) Business Days prior to (or,
in the case of the first such distribution, no later than) the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in
A-6-3
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of this Certificate is to be made without registration
under the Securities Act (other than in connection with the initial issuance of
the Certificates or a Transfer of this Certificate by the Depositor, Xxxxxx
Brothers Inc. or any of their respective Affiliates), then the Certificate
Registrar shall refuse to register such Transfer unless it receives (and, upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such Transfer substantially in the form
attached as Exhibit F-1 to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached as
Exhibit F-2A to the Agreement; or (ii) an Opinion of Counsel satisfactory to the
Trustee to the effect that such Transferee is a Qualified Institutional Buyer
and such Transfer may be made without registration under the Securities Act
(which Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
Transfer from the Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If any Transferee of this Certificate does not, in connection with the
subject Transfer, deliver to the Certificate Registrar the certification
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in Exhibit F-2A 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, any Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar and
their respective Affiliates against any liability that may result if such
Transfer is not exempt from the registration and/or qualification requirements
of the Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
A-6-4
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan, if the purchase
and holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial issuance of the
Certificates or any Transfer of this Certificate by the Depositor, Xxxxxx
Brothers Inc. or any of their respective Affiliates, the Certificate Registrar
shall refuse to register the Transfer of this Certificate unless it has received
from the prospective Transferee, 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 transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Trustee
and the Tax Administrator of any change or impending change in its status as a
Permitted Transferee. In connection with any proposed Transfer of any Ownership
Interest in this Certificate, the Certificate Registrar shall require delivery
to it, and shall not register the transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit H-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its Ownership
Interest in this Certificate as a nominee, trustee or agent for any Person that
is not a Permitted Transferee, that for so long as it retains its Ownership
Interest in this Certificate, it will endeavor to remain a Permitted Transferee,
and that it has reviewed the provisions of Section 5.02(d) of the Agreement and
agrees to be bound by them. Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee, if the Certificate Registrar has actual
knowledge that the proposed Transferee is not a Permitted Transferee, the
Certificate Registrar shall not register the
A-6-5
Transfer of an Ownership Interest in this Certificate to such proposed
Transferee. In addition, the Certificate Registrar shall not register the
transfer of an Ownership Interest in this Certificate to any entity classified
as a partnership under the Code unless at the time of transfer, all of its
beneficial owners are United States Tax Persons.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to Transfer its Ownership Interest
herein and (y) not to Transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Trustee and the Tax
Administrator written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury regulations section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Trustee and the Tax Administrator the following: (a) written notification from
each Rating Agency to the effect that the modification of, addition to or
elimination of such provisions will not cause such Rating Agency to withdraw,
qualify or downgrade its then-current rating of any Class of Certificates; and
(b) an opinion of counsel, in form and substance satisfactory to the Trustee and
the Tax Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not (i) cause any REMIC Pool to (A) cease to
qualify as a REMIC or (B) be subject to an entity-level tax caused by the
Transfer of a Residual Interest Certificate to a Person which is not a Permitted
Transferee, or (ii) cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Residual Interest
Certificate to a Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not (i) a
Disqualified Organization, (ii) any Person as to whom the transfer of this
Certificate may cause any REMIC Pool to fail to qualify as a REMIC, (iii) a
Disqualified Non-United States Tax Person, (iv) a Disqualified Partnership or
(v) a foreign permanent establishment or fixed base (within the meaning of any
applicable income tax treaty between the United States and any foreign
jurisdiction) of a United States Tax Person.
A "Disqualified Organization" is (i) the United States, any State or
political subdivision thereof, a foreign government, an international
organization, or any agency or instrumentality of any of the foregoing, (ii) any
organization (other than certain farmers' cooperatives described in Section 521
of the Code) that is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iii) rural electric and telephone cooperatives described in
Section 1381 of the Code and (iv) any other Person so designated by the Trustee
or the Tax Administrator based upon an opinion of counsel that the holding of an
Ownership Interest in a Residual Interest Certificate by such Person may cause
the Trust or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Residual Interest Certificate to such Person. The
terms "United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
A-6-6
A "Disqualified Non-United States Tax Person" is, with respect to any
Residual Interest Certificate, any Non-United States Tax Person or agent thereof
other than: (1) a Non-United States Tax Person that (a) holds such Residual
Interest Certificate and, for purposes of Treasury regulations section
1.860G-3(a)(3), is subject to tax under Section 882 of the Code, (b) certifies
that it understands that, for purposes of Treasury regulations section
1.860E-1(c)(4)(ii), as a holder of such Residual Interest Certificate for United
States federal income tax purposes, it may incur tax liabilities in excess of
any cash flows generated by such Residual Interest Certificate and intends to
pay taxes associated with holding such Residual Interest Certificate, and (c)
has furnished the Transferor and the Trustee with an effective IRS Form W-8ECI
or successor form and has agreed to update such form as required under the
applicable Treasury regulations; or (2) a Non-United States Tax Person that has
delivered to the Transferor, the Trustee and the Certificate Registrar an
opinion of nationally recognized tax counsel to the effect that (x) the Transfer
of such Residual Interest Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and (y) such
Transfer of such Residual Interest Certificate will not be disregarded for
United States federal income tax purposes.
A "Disqualified Partnership" is any domestic entity classified as a
partnership under the Code, if any of its beneficial owners are Disqualified
Non-United States Tax Persons.
A "Non-United States Tax Person" is any Person other than a United
States Tax Person. A "United States Tax Person" is a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision
thereof, or an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of the
trust (or to the extent provided in the Treasury regulations, if the trust was
in existence on August 20, 1996 and elected to be treated as a United States
person), all within the meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
A-6-7
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust. The Agreement permits, but does not require, the 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), the Master Servicer, the Depositor or Xxxxxx
Brothers Inc., in that order of priority (with the Special Servicer having the
most senior priority) 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 1.0% of the initial aggregate Certificate Principal
Balance of all of the Principal Balance Certificates.
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 any 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 any 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 Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-6-8
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I] [R-II] [R-III] [R-LR] Certificates
referred to in the within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
------------------------------------
Authorized Officer
A-6-9
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 V CERTIFICATE
LB-UBS COMMERCIAL MORTGAGE TRUST 2006-C1
CLASS V COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2006-C1
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: January 11, 2006
Cut-off Date: January 11, 2006
Closing Date: February 1, 2006
First Distribution Date: February 17, 2006
Master Servicer: Wachovia Bank, National Association
Special Servicer: LNR Partners, Inc.
Certificate No. V- ___
Percentage Interest evidenced by this Certificate in Class V: ___%
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,483,260,647
Trustee: LaSalle Bank National Association
A-7-1
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 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, LNR
PARTNERS, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD 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), LNR
Partners, Inc., as special servicer (the "Special Servicer", which term includes
any successor entity under the Agreement), and LaSalle Bank National
Association, as trustee (the "Trustee", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound. In
the event of any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
A-7-2
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs, provided that, in the case of the initial
Distribution Date, the Record Date shall be the Closing Date. All distributions
made under the Agreement in respect of this Certificate will be made by the
Trustee by wire transfer in immediately available funds to the account of the
Person entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions generally 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-7-3
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, any
Fiscal Agent or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such Transfer from the Certificateholder desiring to effect such Transfer and/or
such Certificateholder's prospective Transferee on which such Opinion of Counsel
is based. If 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, any Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar and
their respective Affiliates against any liability that may result if such
Transfer is not exempt from the registration and/or qualification requirements
of the Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan, if the purchase
and holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial issuance of the
Certificates or any Transfer of this Certificate by the Depositor, Xxxxxx
Brothers Inc. or any of their respective Affiliates, the Certificate Registrar
shall refuse to register the Transfer of this Certificate unless it has received
from the prospective Transferee, 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
A-7-4
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 on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of this Certificate or such interest herein by such
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust. The Agreement permits, but does not require, the 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), the Master Servicer, the Depositor or Xxxxxx
Brothers Inc., in that order of priority (with the Special Servicer having the
most senior priority) to purchase from the Trust all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement
A-7-5
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 1.0% of the initial aggregate Certificate Principal
Balance of all of the Principal Balance Certificates.
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 any 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 any 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 Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-7-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class V Certificates referred to in the
within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
------------------------------------
Authorized Officer
A-7-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal
zip code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: ______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ________
______________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS IUU CERTIFICATE
LB-UBS COMMERCIAL MORTGAGE TRUST 2006-C1
CLASS [IUU-1] [IUU-2] [IUU-3] [IUU-4] [IUU-5] [IUU-6] [IUU-7]
[IUU-8] [IUU-9] [IUU-10]
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2006-C1
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]
Date of Pooling and Servicing Agreement: January 11, 2006
Cut-off Date: January 11, 2006
Closing Date: February 1, 2006
First Distribution Date: February 17, 2006
Master Servicer: Wachovia Bank, National Association
Special Servicer: LNR Partners, Inc.
Certificate No. [IUU-1] [IUU-2] [IUU-3] [IUU-4] [IUU-5] [IUU-6] [IUU-7] [IUU-8]
[IUU-9] [IUU-10]- ___
Initial Certificate Principal Balance of this Certificate as of the Closing
Date: $_____________
Class Principal Balance of all the Class [IUU-1] [IUU-2] [IUU-3] [IUU-4] [IUU-5]
[IUU-6] [IUU-7] [IUU-8] [IUU-9] [IUU-10] Certificates as of the Closing Date:
$_____________
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,483,260,647
Trustee: LaSalle Bank National Association
CUSIP No.: _____________
A-8-1
[FOR BOOK ENTRY CERTIFICATES: UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, 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, LNR
PARTNERS, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE REPRESENTS A SUBORDINATED INTEREST IN CERTAIN MORTGAGE LOANS
AND RELATES SOLELY TO SUCH MORTGAGE LOANS, AS AND TO THE EXTENT PROVIDED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A
A-8-2
"REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
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), LNR Partners, Inc., as special servicer
(the "Special Servicer", which term includes any successor entity under the
Agreement), and LaSalle Bank National Association, as trustee (the "Trustee",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the event of any conflict between
any provision of this Certificate and any provision of the Agreement, such
provision of this Certificate shall be superseded to the extent of such
inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs, provided that, in the case of the initial
Distribution Date, the Record Date shall be the Closing Date. All distributions
made under the Agreement in respect of this Certificate will be made by the
Trustee by wire transfer in immediately available funds to the account of the
Person entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions generally 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
A-8-3
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
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
A-8-4
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, any Fiscal
Agent or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
Transfer from the Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If 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.
No beneficial interest in a Rule 144A Global Certificate for any Class
of Book-Entry Non-Registered Certificates may be held by any Person that is not
a Qualified Institutional Buyer. If 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. 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 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. Furthermore, if this Certificate constitutes a Rule
144A Global Certificate for the Class T Certificates 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 above in this 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 2006-C1, facsimile number: (000) 000-0000.
Notwithstanding the preceding paragraph, any interest in the Rule 144A
Global Certificate for a Class of Book-Entry Non-Registered Certificates may be
transferred to any Non-United States Securities Person who takes delivery in the
form of a beneficial interest in the Regulation S Global Certificate for such
Class of Certificates, provided that the Certificate Owner desiring to effect
such Transfer (i) complies with the requirements for Transfers of interests in
such Regulation S Global Certificate set forth in the following paragraph and
(ii) delivers or causes to be delivered to the Certificate Registrar and the
Trustee (A) a certificate from such Certificate Owner confirming its ownership
of the beneficial interests in the subject Class of Book-Entry Non-Registered
Certificates to be transferred, (B) a copy of the certificate to be obtained by
such Certificate Owner from its prospective Transferee in accordance with the
second sentence of the following paragraph and (C) such written
A-8-5
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 and the Trustee of such certifications 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 Book-Entry Non-Registered
Certificates, and increase the denomination of the Regulation S Global
Certificate for such Class of Certificates, by the denomination of the
beneficial interest in such Class of Certificates specified in such orders and
instructions.
No beneficial interest in the Regulation S Global Certificate for any
Class of Book-Entry Non-Registered Certificates may be held by a United States
Securities Person. Any Certificate Owner desiring to effect any Transfer of an
interest in the Regulation S Global Certificate for any Class of Book-Entry
Non-Registered Certificates shall be required to obtain from such Certificate
Owner's prospective Transferee a certificate substantially in the form set forth
in Exhibit F-2D to the Agreement to the effect that such Transferee is not a
United States Securities Person. If any Transferee of an interest in the
Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates does not, in connection with the subject Transfer, deliver to the
Transferor the certification described in the preceding sentence, then such
Transferee shall be deemed to have represented and warranted that all the
certifications set forth in Exhibit F-2D to the Agreement are, with respect to
the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred to any Qualified Institutional Buyer that takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates, provided that the Certificate Owner
desiring to effect such transfer (i) complies with the requirements for
Transfers of interests in such Rule 144A Global Certificate set forth in the
third paragraph above this paragraph and (ii) delivers or causes to be delivered
to the Certificate Registrar and the Trustee (A) a certificate from such
Certificate Owner confirming its ownership of the beneficial interests in the
subject Class of Book-Entry Non-Registered Certificates to be transferred, (B) a
copy of the certificate or Opinion of Counsel to be obtained by such Certificate
Owner from its prospective Transferee in accordance with the second sentence of
the third paragraph above this paragraph and (C) 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 and the Trustee of such certification(s) and/or Opinion of Counsel 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 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.
A-8-6
Also notwithstanding the foregoing, any interest in a Global
Certificate with respect to any Class of Book-Entry Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
that takes delivery in the form of a Definitive Certificate of the same Class as
such Global Certificate upon delivery to the Certificate Registrar and the
Trustee of (i) such certifications and/or opinions as are contemplated by the
fifth paragraph above this paragraph 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 Global Certificate. Upon
delivery to the Certificate Registrar and the Trustee of the certifications
and/or opinions contemplated by the fifth paragraph above this paragraph, the
Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the subject Global Certificate by
the denomination of the transferred interests in such Global Certificate, and
shall cause a Definitive Certificate of the same Class as such Global
Certificate, and in a denomination equal to the reduction in the denomination of
such Global Certificate, to be executed, authenticated and delivered in
accordance with the Agreement to the applicable Transferee.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, Xxxxxx Brothers Inc., UBS Securities LLC, the
Trustee, any Fiscal Agent, the Master Servicer, the Special Servicer, the
Certificate Registrar and their respective Affiliates against any liability that
may result if such Transfer is not exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan, if the purchase
and holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial issuance of the
Certificates or any Transfer of this Certificate or any interest herein by the
Depositor, Xxxxxx Brothers Inc. or any of their respective Affiliates or, if
this Certificate constitutes a Global Certificate, any Transfer of this
Certificate to a successor Depository or to the applicable Certificate Owner in
accordance with Section 5.03 of the Agreement, the Certificate Registrar shall
refuse to register the Transfer of this Certificate unless it has received from
the prospective Transferee, and, if this Certificate constitutes a Global
Certificate, any Certificate Owner transferring an interest herein shall be
required to obtain from its prospective Transferee, one of the following: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate or such interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) a certification to the effect that the purchase and holding of
this Certificate or such interest herein by such prospective Transferee is
exempt from the prohibited transaction provisions of Sections 406(a) and (b)
A-8-7
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 an Outside Serviced Trust
Mortgage Loan or administering an Outside Administered 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
A-8-8
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust. The Agreement permits, but does not require, the 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), the Master Servicer, the Depositor or Xxxxxx
Brothers Inc., in that order of priority (with the Special Servicer having the
most senior priority) 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 1.0% of the initial aggregate Certificate Principal
Balance of all of the Principal Balance Certificates.
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 any 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 any 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 Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
A-8-9
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-8-10
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [IUU-1] [IUU-2] [IUU-3] [IUU-4] [IUU-5]
[IUU-6] [IUU-7] [IUU-8] [IUU-9] [IUU-10] Certificates referred to in the
within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
------------------------------------
Authorized Officer
A-8-11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: ______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ________
______________________) and all applicable statements and notices should be
mailed to _____________________________________________________________________.
This information is provided by ______________________________, the assignee
named above, or __________________________________, as its agent.
A-8-12
EXHIBIT B
FORM OF DISTRIBUTION DATE STATEMENT
See Annex D in the 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 2006-C1 Commercial Mortgage Pass
Through Certificates, Series 2006-C1 (the "Certificates")
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement
dated as of January 11, 2006, 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 or referred to in subclause (A) of
Section 2.02(b) 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 (except in the case of an Outside Serviced Trust Mortgage Loan) has
been completed (based solely on receipt by the Trustee or by a Custodian on its
behalf of the particular recorded/filed documents); (iii) all documents received
by it or any Custodian with respect to such Mortgage Loan have been reviewed by
it or by such Custodian on its behalf and (A) appear regular on their face
(handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (B) appear to have been executed
(where appropriate) and (C) purport to relate to such Mortgage Loan; and (iv)
based on the examinations referred to in Sections 2.02(a) and 2.02(b) of the
Agreement and in this Certification and only as to the foregoing documents, the
information set forth in the Trust Mortgage Loan Schedule with respect to the
items specified in clauses (v) and (vi)(B) of the definition of "Trust Mortgage
Loan Schedule" accurately reflects the information set forth in the Mortgage
File.
Neither the Trustee nor any Custodian is under any duty or obligation
to inspect, review or examine any of the documents, instruments, certificates or
other papers relating to the Mortgage Loans delivered to it to determine that
the same are valid, legal, effective, genuine, binding, enforceable, sufficient
or appropriate for the represented purpose or that they are other than what they
purport to be on their face. Furthermore, neither the Trustee nor any Custodian
shall have any responsibility for determining whether the text of any assignment
or endorsement is in proper or recordable form, whether the requisite recording
of any document is in accordance with the requirements of any applicable
jurisdiction, or whether a blanket assignment is permitted in any applicable
jurisdiction. In performing the review contemplated herein, the Trustee or any
Custodian may rely on the Depositor as to the purported genuineness of any such
document and any signature thereon.
C-1
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Agreement.
Respectfully,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
Title:
C-2
SCHEDULE A
Wachovia Bank, National Association
NC 1075
8739 Research Drive - URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: LB-UBS Commercial Mortgage Trust 2006-C1
LNR Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2006-C1
Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2006-C1
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2006-C1
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2006-C1
LUBS Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2006-C1
UBS Securities LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2006-C1
UBS Real Estate Investments Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2006-C1
[EACH OF THE 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: Global Securities and Trust Services Group-- LB-UBS Commercial
Mortgage Trust 2006-C1
Re: LB-UBS Commercial Mortgage Trust 2006-C1, Commercial Mortgage
Pass-Through Certificates, Series 2006-C1
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 January 11, 2006 (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"), LNR Partners,
Inc., as special servicer (the "Special Servicer"), and LaSalle Bank National
Association, as trustee (the "Trustee), the undersigned hereby requests a
release of the Mortgage File (or the portion thereof specified below) held by or
on behalf of you as Trustee, with respect to the following described Mortgage
Loan for the reason indicated below.
Property Name: _______________________________________________________
Address: _____________________________________________________________
Control No.: _________________________________________________________
If only particular documents in the Mortgage File are requested,
please specify which: __________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned hereby certifies
that all amounts received in connection with the Mortgage
Loan that are required to be credited to the Custodial
Accounts pursuant to the Pooling and Servicing Agreement,
have been or will be so credited.
______ 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,
D-1-1
unless the Mortgage Loan has been paid in full, in which case the Mortgage File
(or such portion thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
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: Global Securities and Trust Services Group--
LB-UBS Commercial Mortgage Trust 2006-C1
Re: LB-UBS Commercial Mortgage Trust 2006-C1, Commercial Mortgage
Pass-Through Certificates, Series 2006-C1
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 January 11, 2006 (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"), LNR Partners,
Inc., as special servicer (the "Special Servicer"), and LaSalle Bank National
Association, as trustee (the "Trustee), the undersigned hereby requests a
release of the Mortgage File (or the portion thereof specified below) held by or
on behalf of you as Trustee, with respect to the following described Mortgage
Loan for the reason indicated below.
Property Name: _______________________________________________________
Address: _____________________________________________________________
Control No.: _________________________________________________________
If only particular documents in the Mortgage File are requested,
please specify which: __________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned hereby certifies
that all amounts received in connection with the Mortgage
Loan that are required to be credited to the Custodial
Accounts pursuant to the Pooling and Servicing Agreement,
have been or will be so credited.
______ 2. Other. (Describe) ___________________________________________
_____________________________________________________________
_____________________________________________________________
D-2-1
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof (or within such
longer period as we have indicated as part of our reason for the request),
unless the Mortgage Loan has been paid in full or otherwise liquidated, in which
case the Mortgage File (or such portion thereof) will be retained by us
permanently.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
LNR 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
----------------------------------------------------------------------------------------------------------------------
PRECEDING
SHORT NAME SCHEDULED PAID FISCAL YR.
(WHEN PROPERTY MORTGAGE LOAN THRU CURRENT MATURITY DSCR MOST RECENT
PROSPECTUS ID APPROPRIATE) TYPE STATE BALANCE DATE INTEREST RATE DATE NCR DSCR NCF
----------------------------------------------------------------------------------------------------------------------
SCHEDULED PAYMENTS
UNSCHEDULED PAYMENT
----------------------------------------------------------------------------------------------------------------------
TOTAL: $
----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------
S4 SERVICER ESTIMATED INFORMATION
-----------------------------------------------------
EXPECTED EXPECTED
YIELD PAYMENT DISTRIBUTION
PROSPECTUS 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: Global Securities and Trust Services Group--
LB-UBS Commercial Mortgage Trust 2006-C1
Re: LB-UBS Commercial Mortgage Trust 2006-C1, Commercial Mortgage
Pass-Through Certificates, Series 2006-C1, Class _____, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of February 1, 2006 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 January 11, 2006, between Structured
Asset Securities Corporation II, as Depositor, Wachovia Bank, National
Association, as Master Servicer, LNR Partners, Inc., as Special Servicer, and
LaSalle Bank National Association, as Trustee. All capitalized terms used herein
and not otherwise defined shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, and for the benefit of the Trustee
and the Depositor, that:
1. The Transferor is the lawful owner of the Transferred Certificates
with the full right to transfer such Certificates free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any offer
to buy or accept a transfer, pledge or other disposition of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security with any person in
any manner, (d) made any general solicitation with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security by means of general advertising or in any other
manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security, which (in the case of any of the acts described in clauses (a)
through (e) hereof) would constitute a distribution of the Transferred
Certificates under the Securities Act of 1933, as amended (the "Securities
Act"), would render the disposition of the Transferred
F-1-1
Certificates a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state securities
laws.
Very truly yours,
----------------------------------------
Print Name of Transferor
By:
------------------------------------
Name:
Title:
F-1-2
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group--
LB-UBS Commercial Mortgage Trust 2006-C1
Re: LB-UBS Commercial Mortgage Trust 2006-C1, Commercial Mortgage
Pass-Through Certificates, Series 2006-C1, Class ___, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of February 1, 2006 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 January 11, 2006, between Structured Asset Securities Corporation II, as
Depositor, Wachovia Bank, National Association, as Master Servicer, LNR
Partners, Inc., as Special Servicer, and LaSalle Bank National Association, as
Trustee. All capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, and for the benefit of the Trustee and the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it
is being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer and to whom notice is given that the resale, pledge or transfer is
being made in reliance on Rule 144A, or (b) pursuant to another exemption
from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing
F-2A-1
of the Trust Mortgage Loans, (d) the Pooling and Servicing Agreement and
the Trust Fund created pursuant thereto, and (e) all related matters, that
it has requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
----------------------------------------
Print Name of 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.
----------------------------------------
Print Name of Nominee
By:
------------------------------------
Name:
Title:
F-2A-2
ANNEX 1 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended, because (i) [the Transferee] [each of the Transferee's equity
owners] owned and/or invested on a discretionary basis
$______________________(1) in securities (other than the excluded
securities referred to below) as of the end of such entity's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and
(ii) the Transferee satisfies the criteria in the category marked below.
_____ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
_____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S. territory
or the District of Columbia, the business of which is substantially
confined to banking and is supervised by the state or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. bank, and not more than 18
months preceding such date of sale in the case of a foreign bank or
equivalent institution.
_____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a state or federal authority having supervision
over any such institutions, or is a foreign savings and loan
association
----------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee
or any such equity owner, as the case may be, is a dealer, and, in that
case, Transferee or such equity owner, as the case may be, must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
F-2A-3
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan association,
and not more than 18 months preceding such date of sale in the case
of a foreign savings and loan association or equivalent
institution.
_____ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
_____ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory or the District of Columbia.
_____ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of the state or its political subdivisions, for the
benefit of its employees.
_____ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974.
_____ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
_____ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule 144A.
_____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1) _____________________________________________________
___________________________________________________________________
__________________________________________________________________.
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated
with such Person, (ii) securities that are part of an unsold allotment to
or subscription by such Person, if such Person is a dealer, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee used the cost of such securities to such Person, unless such
Person reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities
were valued at market. Further, in determining
F-2A-4
such aggregate amount, the Transferee may have included securities owned by
subsidiaries of such Person, but only if such subsidiaries are consolidated
with such Person in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such
subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned,
consolidated subsidiary of another enterprise and such Person is not itself
a reporting company under the Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one
or more sales to the Transferee may be in reliance on Rule 144A.
[_] [_] Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of such third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Transferred Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the
Transferee is a bank or savings and loan as provided above, the Transferee
agrees that it will furnish to such parties any updated annual financial
statements that become available on or before the date of such purchase,
promptly after they become available.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant
to which the Transferred Certificates were issued.
-----------------------------------------
Print Name of Transferee
By:
-------------------------------------
Name:
Title:
Date:
F-2A-5
ANNEX 2 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity purchasing the Transferred Certificates (the "Transferee") or,
if the Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended, because the Transferee is part of a Family of Investment Companies
(as defined below), is an executive officer of the investment adviser (the
"Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the
end of the Transferee's most recent fiscal year. For purposes of
determining the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of such securities
was used, unless the Transferee or any member of the Transferee's Family of
Investment Companies, as the case may be, reports its securities holdings
in its financial statements on the basis of their market value, and no
current information with respect to the cost of those securities has been
published, in which case the securities of such entity were valued at
market.
______ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
______ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than
the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies,
F-2A-6
(ii) bank deposit notes and certificates of deposit, (iii) loan
participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies,
the securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one
or more sales to the Transferee will be in reliance on Rule 144A.
[_] [_] Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of such third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until
such notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
F-2A-7
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant
to which the Transferred Certificates were issued.
-----------------------------------------
Print Name of Transferee or Adviser
By:
-------------------------------------
Name:
Title:
Date:
IF ABOVE IS AN ADVISER:
-----------------------------------------
Print Name of Transferee
Date: ___________________________________
F-2A-8
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group--
LB-UBS Commercial Mortgage Trust 2006-C1
Re: LB-UBS Commercial Mortgage Trust 2006-C1, Commercial Mortgage
Pass-Through Certificates, Series 2006-C1, Class _____, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of February 1, 2006 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 January 11, 2006, between Structured
Asset Securities Corporation II, as Depositor, Wachovia Bank, National
Association, as Master Servicer, LNR Partners, Inc., as Special Servicer, and
LaSalle Bank National Association, as Trustee. All capitalized terms used herein
and not otherwise defined shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, as Certificate Registrar, and for the benefit of the Trustee
and the Depositor, that:
1. The Transferee is acquiring the Transferred Certificates for its
own account for investment and not with a view to or for sale or transfer
in connection with any distribution thereof, in whole or in part, in any
manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b)
none of the Depositor, the Trustee or the Certificate Registrar is
obligated so to register or qualify the Class of Certificates to which the
Transferred Certificates belong, and (c) neither a Transferred Certificate
nor any security issued in exchange therefor or in lieu thereof may be
resold or transferred unless it is (i) registered pursuant to the
Securities Act and registered or qualified pursuant to any applicable state
securities laws or (ii) sold or transferred in transactions which are
exempt from such registration and qualification and the Certificate
Registrar has received: (A) a certification from the Certificateholder
desiring to effect such transfer substantially in the form attached as
Exhibit F-1 to the Pooling and Servicing Agreement and a certification from
such Certificateholder's prospective transferee substantially
F-2B-1
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 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
F-2B-2
advertising or in any other manner, or (e) taken any other action with
respect to any Transferred Certificate, any interest in any Transferred
Certificate or any other similar security, which (in the case of any of the
acts described in clauses (a) through (e) above) would constitute a
distribution of the Transferred Certificates under the Securities Act,
would render the disposition of the Transferred Certificates a violation of
Section 5 of the Securities Act or any state securities law or would
require registration or qualification of the Transferred Certificates
pursuant thereto. The Transferee will not act, nor has it authorized or
will it authorize any person to act, in any manner set forth in the
foregoing sentence with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security.
5. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto, (d) the nature, performance and servicing of the Mortgage
Loans, and (e) all related matters, that it has requested.
6. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or
an entity in which all of the equity owners come within such paragraphs.
The Transferee has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an
investment in the Transferred Certificates; the Transferee has sought such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Transferee is able to bear the
economic risks of such investment and can afford a complete loss of such
investment.
F-2B-3
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgement below.
Very truly yours,
----------------------------------------
Print Name of 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.
----------------------------------------
Print Name of Nominee
By:
------------------------------------
Name:
Title:
F-2B-4
EXHIBIT F-2C
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: LB-UBS Commercial Mortgage Trust 2006-C1, Commercial Mortgage
Pass-Through Certificates, Series 2006-C1, Class _____, having
an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of February 1, 2006 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 January 11, 2006, between Structured Asset Securities
Corporation II, as Depositor, Wachovia Bank, National Association, as Master
Servicer, LNR Partners, Inc., as Special Servicer, and LaSalle Bank National
Association, as Trustee. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to and
agrees with you, and for the benefit of the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the Transfer to
it of the Transferor's interest in the Transferred Certificates is being
made in reliance on Rule 144A. The Transferee is acquiring such interest in
the Transferred Certificates for its own account or for the account of
another Qualified Institutional Buyer.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b)
none of the Depositor, the Trustee or the Certificate Registrar is
obligated so to register or qualify the Transferred Certificates and (c) no
interest in the Transferred Certificates may be resold or transferred
unless (i) such Certificates are registered pursuant to the Securities Act
and registered or qualified pursuant any applicable state securities laws,
or (ii) such interest is sold or transferred in a transaction which is
exempt from such registration and qualification and the Transferor desiring
to effect such transfer has received (A) a certificate from such
Certificate Owner's prospective transferee substantially in the form
attached as Exhibit F-2C to the Pooling and Servicing Agreement or (B) an
opinion of counsel to
F-2C-1
the effect that, among other things, such prospective transferee is a
Qualified Institutional Buyer and such transfer may be made without
registration under the Securities Act.
3. The Transferee understands that it may not sell or otherwise
transfer the Transferred Certificates or any interest therein except in
compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that the
Transferred Certificates will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO
(A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
F-2C-2
4. The Transferee understands that, if the Transferred Certificate is
a Class T Certificate, it may not sell or otherwise transfer such
Transferred Certificate or any interest therein unless it has provided
prior written notice of such transfer (together with a copy of the
Transferee Certificate in the form hereof executed by the proposed
transferee of such Transferred Certificate) to Structured Asset Securities
Corporation II, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx Xxxxxxx--LB-UBS Commercial Mortgage Trust 2006-C1, facsimile number:
(000) 000-0000.
5. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust Fund created pursuant
thereto, (e) any credit enhancement mechanism associated with the
Transferred Certificates, and (f) all related matters, that it has
requested.
Very truly yours,
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
Title:
F-2C-3
ANNEX 1 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of Structured Asset Securities
Corporation II with respect to the mortgage pass-through certificates being
transferred in book-entry form (the "Transferred Certificates") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity acquiring interests in the Transferred Certificates (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) [the Transferee] [each of the Transferee's equity
owners] owned and/or invested on a discretionary basis $____________(1) in
securities (other than the excluded securities referred to below) as of the
end of such entity's most recent fiscal year (such amount being calculated
in accordance with Rule 144A) and (ii) the Transferee satisfies the
criteria in the category marked below.
_____ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
_____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S. territory
or the District of Columbia, the business of which is substantially
confined to banking and is supervised by the state or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. bank, and not more than 18
months preceding such date of sale in the case of a foreign bank or
equivalent institution.
_____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a state or federal authority having supervision
over any such institutions or is a foreign savings and loan
----------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee
or any such equity owner, as the case may be, is a dealer, and, in that
case, Transferee or such equity owner, as the case may be, must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
F-2C-4
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto, as of a
date not more than 16 months preceding the date of sale of the
Transferred Certificates in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date of
sale in the case of a foreign savings and loan association or
equivalent institution.
_____ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
_____ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory or the District of Columbia.
_____ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of the state or its political subdivisions, for the
benefit of its employees.
_____ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974.
_____ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
_____ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule 144A.
_____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated
with such Person, (ii) securities that are part of an unsold allotment to
or subscription by such Person, if such Person is a dealer, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee used the cost of such securities to such Person, unless such
Person reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities
were valued at market. Further, in determining such aggregate amount, the
Transferee may have included securities owned by subsidiaries of such
Person, but only if such subsidiaries are consolidated with such Person in
its financial
F-2C-5
statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under
such Person's direction. However, such securities were not included if such
Person is a majority-owned, consolidated subsidiary of another enterprise
and such Person is not itself a reporting company under the Securities
Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the
Transferred Certificates are relying and will continue to rely on the
statements made herein because one or more Transfers to the Transferee may
be in reliance on Rule 144A.
[_] [_] Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a
third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of
such third party has been established by the Transferee through one or more
of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's acquisition of any
interest in of the Transferred Certificates will constitute a reaffirmation
of this certification as of the date of such acquisition. In addition, if
the Transferee is a bank or savings and loan as provided above, the
Transferee agrees that it will furnish to such parties any updated annual
financial statements that become available on or before the date of such
acquisition, promptly after they become available.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which
the Transferred Certificates were issued.
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
Title:
Date:
F-2C-6
ANNEX 2 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of Structured Asset Securities
Corporation II with respect to the mortgage pass-through certificates being
transferred in book-entry form (the "Transferred Certificates") as described in
the Transferee certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity acquired interests the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional buyer" as
that term is defined in Rule 144A under the Securities Act of 1933, as
amended ("Rule 144A"), because the Transferee is part of a Family of
Investment Companies (as defined below), is an executive officer of the
investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, as amended, and (ii) as marked
below, the Transferee alone owned and/or invested on a discretionary basis,
or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For
purposes of determining the amount of securities owned by the Transferee or
the Transferee's Family of Investment Companies, the cost of such
securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports
its securities holdings in its financial statements on the basis of their
market value, and no current information with respect to the cost of those
securities has been published, in which case the securities of such entity
were valued at market.
_____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
_____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $_________________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
F-2C-7
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies, (ii) bank deposit notes
and certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, or owned by the Transferee's Family
of Investment Companies, the securities referred to in this paragraph were
excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one
or more Transfers to the Transferee will be in reliance on Rule 144A.
[_] [_] Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a
third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of
such third party has been established by the Transferee through one or more
of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until
such notice, the Transferee's acquisition of any interest in the
Transferred Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such acquisition.
F-2C-8
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which
the Transferred Certificates were issued.
----------------------------------------
Print Name of Transferee or Adviser
By:
------------------------------------
Name:
Title:
Date:
IF ABOVE IS AN ADVISER:
Print Name of Transferee
----------------------------------------
Date:
F-2C-9
EXHIBIT F-2D
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: LB-UBS Commercial Mortgage Trust 2006-C1, Commercial Mortgage
Pass-Through Certificates, Series 2006-C1, Class _____, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of February 1, 2006 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 January 11, 2006, between Structured Asset Securities
Corporation II, as Depositor, Wachovia Bank, National Association, as Master
Servicer, LNR Partners, Inc., as Special Servicer, and LaSalle Bank National
Association, as Trustee. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to and
agrees with you, and for the benefit of the Depositor, that the Transferee is
not a United States Securities Person.
For purposes of this certification, "United States Securities Person"
means (i) any natural person resident in the United States, (ii) any partnership
or corporation organized or incorporated under the laws of the United States,
(iii) any estate of which any executor or administrator is a United States
Securities Person, other than any estate of which any professional fiduciary
acting as executor or administrator is a United States Securities Person if an
executor or administrator of the estate who is not a United States Securities
Person has sole or shared investment discretion with respect to the assets of
the estate and the estate is governed by foreign law, (iv) any trust of which
any trustee is a United States Securities Person, other than a trust of which
any professional fiduciary acting as trustee is a United States Securities
Person if a trustee who is not a United States Securities Person has sole or
shared investment discretion with respect to the trust assets and no beneficiary
of the trust (and no settlor if the trust is revocable) is a United States
Securities Person, (v) any agency or branch of a foreign entity located in the
United States, unless the agency or branch operates for valid business reasons
and is engaged in the business of insurance or banking and is subject to
substantive insurance or banking regulation, respectively, in the jurisdiction
where located, (vi) any non-discretionary account or similar account (other than
an estate or trust) held by a dealer or other fiduciary for the benefit or
account of a United States Securities Person, (vii) any discretionary account or
similar account (other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated or (if an individual) resident in the
X-0X-0
Xxxxxx Xxxxxx, other than one held for the benefit or account of a non-United
States Securities Person by a dealer or other professional fiduciary organized,
incorporated or (if any individual) resident in the United States, or (viii) any
partnership or corporation if (a) organized or incorporated under the laws of
any foreign jurisdiction and (b) formed by a United States Securities Person
principally for the purpose of investing in securities not registered under the
Securities Act, unless it is organized or incorporated, and owned, by
"accredited investors" (as defined in Rule 501(a)) under the United States
Securities Act of 1933, as amended (the "Securities Act"), who are not natural
persons, estates or trusts; provided, however, that the International Monetary
Fund, the International Bank for Reconstruction and Development, the
Inter-American Development Bank, the Asian Development Bank, the African
Development Bank, the United Nations and their agencies, affiliates and pension
plans, any other similar international organizations, their agencies, affiliates
and pension plans shall not constitute United States Securities Persons.
The Transferee understands that this certification is required in
connection with certain securities laws of the United States. In connection
therewith, if administrative or legal proceedings are commenced or threatened in
connection with which this certification is or would be relevant, we irrevocably
authorize you to produce this certification to any interested party in such
proceedings.
Dated: __________, _____
----------------------------------------
Print Name of Transferee or Adviser
By:
------------------------------------
Name:
Title:
Date:
IF ABOVE IS AN ADVISER:
Print Name of Transferee
----------------------------------------
Date:
F-2D-2
EXHIBIT G-1
FORM I OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (DEFINITIVE NON-REGISTERED CERTIFICATES)
_____________, 20__
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group--
LB-UBS Commercial Mortgage Trust 2006-C1
Re: LB-UBS Commercial Mortgage Trust 2006-C1, Commercial Mortgage
Pass-Through Certificates, Series 2006-C1 (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 February 1, 2006 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 January 11, 2006, between Structured Asset
Securities Corporation II, as depositor, Wachovia Bank, National Association, as
master servicer, LNR Partners, Inc., as special servicer, and LaSalle Bank
National Association, as trustee. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you as Certificate Registrar, as follows (check the applicable paragraph):
_____ The Transferee (A) is not an employee benefit plan or other
retirement arrangement, including an individua l retirement account
or annuity, a Xxxxx plan or a collective investment fund or separate
account in which such plans, accounts or arrangements are invested,
including, without limitation, an insurance company general account,
that is subject to ERISA or the Code (each, a "Plan"), and (B) is not
directly or indirectly purchasing the Transferred Certificates on
behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or
_____ The Transferee is using funds from an insurance company general
account to acquire the Transferred Certificates, however, the
purchase and holding of such Certificates by such Person is exempt
from the prohibited transaction provisions of Sections 406 and 407 of
ERISA and the excise taxes imposed on such prohibited transactions by
Section 4975 of the Code, by reason of Sections I and III of
Prohibited Transaction Class Exemption 95-60.
_____ The Transferred Certificates are rated in one of the four highest
generic rating categories by one of the Rating Agencies and are being
acquired by or on behalf
G-1-1
of a Plan in reliance on Prohibited Transaction Exemption 91-14; and
such Plan (X) is an accredited investor as defined in Rule 501(a)(1)
of Regulation D of the Securities Act, (Y) is not sponsored (within
the meaning of Section 3(16)(B) of ERISA) by the Trustee, the
Depositor, any Mortgage Loan Seller, the Master Servicer, the Special
Servicer, any Sub-Servicer, any Person responsible for servicing an
Outside Serviced Trust Mortgage Loan or administering an Outside
Administered 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,
----------------------------------------
Print Name of 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 2006-C1, Commercial Mortgage
Pass-Through Certificates, Series 2006-C1 (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 Company ("DTC") and the Depository Participants) in Class
___ Certificates [having an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of February 1, 2006 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 January 11,
2006 (the "Pooling and Servicing Agreement"), among Structured Asset Securities
Corporation II, as depositor, Wachovia Bank, National Association, as master
servicer, LNR Partners, Inc., as special servicer, and LaSalle Bank National
Association, as trustee. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you as
follows (check the applicable paragraph):
_____ The Transferee (A) is not an employee benefit plan or other
retirement arrangement, including an individual retirement account or
annuity, a Xxxxx plan or a collective investment fund or separate
account in which such plans, accounts or arrangements are invested,
including, without limitation, an insurance company general account,
that is subject to ERISA or the Code (each, a "Plan"), and (B) is not
directly or indirectly purchasing an interest in the Transferred
Certificates on behalf of, as named fiduciary of, as trustee of, or
with assets of a Plan.
_____ The Transferee is using funds from an insurance company general
account to acquire an interest in the Transferred Certificates,
however, the purchase and holding of such interest by such Person is
exempt from the prohibited transaction provisions of Sections 406(a)
and (b) and 407 of ERISA and the excise taxes imposed on such
prohibited transactions by Sections 4975(a) and (b) of the Code, by
reason of Sections I and III of Prohibited Transaction Class
Exemption 95-60.
_____ The Transferred Certificates are rated in one of the four highest
generic rating categories by one of the Rating Agencies and an
interest in such Certificates is
G-2-1
being acquired by or on behalf of a Plan in reliance on Prohibited
Transaction Exemption 91-14 and such Plan (X) is an accredited
investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (Y) is not sponsored (within the meaning of Section
3(16)(B) of ERISA) by the Trustee, the Depositor, any Mortgage Loan
Seller, the Master Servicer, the Special Servicer, any Sub-Servicer,
any Person responsible for servicing an Outside Serviced Trust
Mortgage Loan or administering an Outside Administered 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,
----------------------------------------
Print Name of 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, AND
TREASURY REGULATION SECTION 1.860E-1(C)(4)
Re: LB-UBS Commercial Mortgage Trust 2006-C1, Commercial Mortgage
Pass-Through Certificates, Series 2006-C1 (the "Certificates"),
issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of January 11, 2006,
between Structured Asset Securities Corporation II, as Depositor,
Wachovia Bank, National Association, as Master Servicer, LNR
Partners, Inc., as Special Servicer, and LaSalle Bank National
Association, as Trustee
STATE OF __________________________ )
) Section: _____________________________
COUNTY OF ________________________ )
The undersigned declares that, to the best knowledge and belief of the
undersigned, the following representations are true, correct and complete:
1. ______________________________ (the "Purchaser"), is acquiring
[Class R-I] [Class R-II] [Class R-III] [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").
2. The Purchaser is not a "Disqualified Organization" (as defined
below), and 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
H-1-1
instrumentality of the United States or of any state or political subdivision
thereof if all of its activities are subject to tax (except for the Federal Home
Loan Mortgage Corporation) and a majority of its board of directors is not
selected by such governmental unit. The terms "United States" and "international
organization" shall have the meanings set forth in Section 7701 of the Code.
3. The Purchaser acknowledges that Section 860E(e) of the Code would
impose a substantial tax on the transferor or, in certain circumstances, on an
agent for the transferee, with respect to any transfer of any interest in any
[Class R-I] [Class R-II] [Class R-III] [Class R-LR] Certificates to a
Disqualified Organization.
4. 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 2 and 7 hereof are not
satisfied, or to any person or entity with respect to which the Purchaser has
not (at the time of such transfer) satisfied the requirements under the Code to
conduct a reasonable investigation of the financial condition of such person or
entity (or its current beneficial owners if such person or entity is classified
as a partnership under the Code).
5. The Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the prohibition
against transferring the [Class R-I] [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 paragraph 7.
6. The Purchaser consents to the designation of the Trustee as the
agent of the Tax Matters Person of [REMIC I] [REMIC II] [REMIC III] [the Loan
REMIC] pursuant to Section 10.01(d) of the Pooling and Servicing Agreement.
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
[CHOOSE BETWEEN PARAGRAPHS 8 OR 9 BELOW]
[_] 8. If the Transferor requires the safe harbor under Treasury
regulations section 1.860E-1 to apply:
i. The Purchaser historically has paid its debts as they have come due
and intends to pay its debts as they come due in the future and the
Purchaser intends to pay taxes associated with holding the [Class R-I]
[Class R-II] [Class R-III] [Class R-LR] Certificates as they become
due.
ii. 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.
iii. The Purchaser is not a foreign permanent establishment or a fixed base
(within the meaning of any applicable income tax treaty between the
United States and any foreign jurisdiction) of a United States Tax
Person.
H-1-2
iv. 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.
[IF PARAGRAPH 8 IS CHECKED, CHOOSE BETWEEN (V) AND (VI) BELOW]
[_] v) In accordance with Treasury Regulations Section 1.860E-1, the
Purchaser:
a) is an "eligible corporation" as defined in Section
1.860E-1(c)(6)(i) of the Treasury regulations (i.e., a domestic C
corporation other than a corporation which is exempt from, or is not
subject to, tax under Section 11 of the Code; a Regulated Investment
Company as defined in Section 851(a) of the Code; a Real Estate
Investment Trust as defined in Section 856(a) of the Code; a REMIC as
defined in Section 860D of the Code; or an organization to which part
I of subchapter T of chapter 1 of subtitle A of the Code applies, as
to which the income of [Class R-I] [Class R-II] [Class R-III] [Class
R-LR] Certificates will only be subject to taxation in the United
States,
b) has, and has had in each of its two preceding fiscal years, gross
assets for financial reporting purposes (excluding any obligation of a
person related to the transferee within the meaning of Section
1.860E-1(c)(6)(ii) of the Treasury regulations or any other assets if
a principal purpose for holding or acquiring such asset is to satisfy
this condition) in excess of $100 million and net assets of $10
million, and
c) hereby agrees only to transfer the Certificate to another "eligible
corporation" meeting the criteria set forth in Treasury regulations
section 1.860E-1.
OR
[_] vi) The Purchaser is a United States Tax Person and the consideration
paid to the Purchaser for accepting the [Class R-I] [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-1-3
[_] 9. If the Transferor does not require the safe harbor under
Treasury regulations section 1.860E-1 to apply:[IF PARAGRAPH 9 IS CHECKED,
CHOOSE BETWEEN (I) AND (II) BELOW]
[_] i) The Purchaser is a "United States person" as defined in Section
7701(a) of the Code and the regulations promulgated thereunder
(the Purchaser's U.S. taxpayer identification number is
______________). The Purchaser is not classified as a partnership
under the Code (or, if so classified, all of its beneficial
owners are United States persons).
OR
[_] ii) The Purchaser is not a United States person. However, the
Purchaser:
a) conducts a trade or business within the United States and, for
purposes of Treasury regulations section 1.860G-3(a)(3), is
subject to tax under Section 882 of the Code;
b) understands that, for purposes of Treasury regulations section
1.860E-1(c)(4)(ii), as a holder of a [Class R-I] [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
Capitalized terms used but not defined herein have the meanings
assigned thereto in the Pooling and Servicing Agreement.
H-1-4
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
duly executed on its behalf by its duly authorized officer this _______ day of
___________________________.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
Personally appeared before me ___________________________ and
___________________________, known or proved to me to be the same persons who
executed the foregoing instrument and to be a _______________________ and
_______________________ of the Purchaser, and acknowledged to me that he/she
each executed the same at his/her free act and deed and at the free act and deed
of the Purchaser.
Subscribed and sworn before me this
_________ day of ______________________, 20_____.
_________________________________________________
Notary Public
X-0-0
XXXXXXX X-0
FORM OF TRANSFEROR CERTIFICATE
REGARDING RESIDUAL INTEREST CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group--
LB-UBS Commercial Mortgage Trust 2006-C1
Re: LB-UBS Commercial Mortgage Trust 2006-C1, Commercial Mortgage
Pass-Through Certificates, Series 2006-C1 (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 January 11, 2006
(the "Pooling and Servicing Agreement"), between Structured Asset Securities
Corporation II, as depositor, Wachovia Bank, National Association, as master
servicer, LNR Partners, Inc., as special servicer, and LaSalle Bank National
Association, as trustee. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Interest Certificates by the Transferor to the Transferee is or
will be to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered
to you a Transfer Affidavit and Agreement in the form attached to the
Pooling and Servicing Agreement as Exhibit H-1. The Transferor does not
know or believe that any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee (or
the beneficial owners of the Transferee if it is classified as a
partnership under the Internal Revenue Code of 1986, as amended) as
contemplated by Treasury regulations section 1.860E-1(c)(4)(i) and, as a
result of that investigation, the Transferor has determined that the
Transferee has historically paid its debts as they became due and has found
no significant evidence to indicate that the Transferee will not continue
to pay its debts as they become due in the future. The Transferor
understands that the transfer of the Residual Interest Certificates may not
be respected for United States
H-2-1
income tax purposes (and the Transferor may continue to be liable for
United States income taxes associated therewith) unless the Transferor has
conducted such an investigation.
Very truly yours,
________________________________________
Print Name of Transferor
By:
------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF NOTICE AND ACKNOWLEDGEMENT
[Date]
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the Pooling
and Servicing Agreement, dated as of January 11, 2006 and relating to LB-UBS
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2006-C1 (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]
[________________ Note B Non-Trust Mortgage Loan Noteholder has] [Class IUU
Representative has] designated ________________ to serve as the Special Servicer
under the Agreement with respect to [the ______________ [Loan Combination]
[Trust Mortgage Loan] or any related REO Property] [the Mortgage Pool [(other
than __________________)]].
The designation of __________________ as Special Servicer with respect
to [the ______________ [Loan Combination] [Trust Mortgage Loan] or any related
REO Property] [the Mortgage Pool [(other than __________________)]] 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 with respect to [the
______________ [Loan Combination] [Trust Mortgage Loan] or any related REO
Property] [the Mortgage Pool [(other than __________________)]] were to serve as
such, such event would not result in the qualification, downgrade or withdrawal
of the rating or ratings assigned by you to one or more Classes of the
Certificates. Accordingly, such confirmation is hereby requested as soon as
possible.
I-1-1
Please acknowledge receipt of this notice by signing the enclosed copy
of this notice where indicated below and returning it to the Trustee, in the
enclosed stamped self-addressed envelope.
Very truly yours,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
Title:
Receipt acknowledged:
FITCH, INC.
By:
---------------------------------
Name:
Title:
Date:
STANDARD & POOR'S RATINGS SERVICES
By:
---------------------------------
Name:
Title:
Date:
I-1-2
EXHIBIT I-2
FORM OF ACKNOWLEDGEMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[FISCAL AGENT]
[MASTER SERVICER]
[DEPOSITOR]
Re: LB-UBS Commercial Mortgage Trust 2006-C1, Commercial Mortgage
Pass-Through Certificates, Series 2006-C1
Ladies and Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement, dated
as of January 11, 2006, relating to LB-UBS Commercial Mortgage Trust 2006-C1,
Commercial Mortgage Pass-Through Certificates, Series 2006-C1 (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 with respect to [the ______________ [Loan Combination] [Trust Mortgage
Loan] or any related REO Property] [the Mortgage Pool [(other than
__________________)]]. 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 with respect
to [the ______________ [Loan Combination] [Trust Mortgage Loan] or any related
REO Property] [the Mortgage Pool [(other than __________________)]]. 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:
____________________.
Capitalized terms used but not defined herein have the respective
meanings assigned thereto in the Agreement.
[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 2006-C1, Commercial Mortgage Pass-Through
Certificates, Series 2006-C1 (referred to as the "Secured Party" for purposes of
this financing statement only), under that certain Pooling and Servicing
Agreement, dated as of January 11, 2006 (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"),
and LNR Partners, Inc., as special servicer (the "Special Servicer"), relating
to the issuance of the LB-UBS Commercial Mortgage Trust 2006-C1, Commercial
Mortgage Pass-Through Certificates, Series 2006-C1 (the "Series 2006-C1
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 UBS/Depositor Mortgage Loan Purchase Agreement; and (b)
the respective Co-Lender Agreements;
(4) (a) the Custodial Accounts and the Defeasance Deposit Account
required to be maintained by the Master Servicer pursuant to the Pooling and
Servicing Agreement, (b) all funds from time to time on deposit in the Custodial
Accounts and the Defeasance Deposit Account, (c) the investments of any such
funds consisting of securities, instruments or other obligations, and (d) the
general intangibles consisting of the contractual right to payment, including,
without limitation, the right to payments of principal and interest and the
right to enforce the related payment obligations, arising from or under any such
investments;
(5) all REO Property acquired in respect of defaulted Mortgage Loans;
(6) (a) the REO Accounts and any Loss of Value Reserve Fund required
to be maintained by the Special Servicer pursuant to the Pooling and Servicing
Agreement, (b) all funds from time to time on deposit in the REO Accounts and
any Loss of Value Reserve Fund, (c) any 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
J-2
payments of principal and interest and the right to enforce the related payment
obligations, arising from or under any such investments;
(7) (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;
(8) (a) the Interest Reserve Account and any Excess Liquidation
Proceeds 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 and any Excess Liquidation Proceeds 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) (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;
(10) 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;
(12) any and all general intangibles (as defined in the Uniform
Commercial Code) consisting of, arising from or relating to any of the
foregoing; and
(13) 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 2006-C1 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
J-3
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.
A PURCHASE OF OR SECURITY INTEREST IN ANY COLLATERAL DESCRIBED IN THIS FINANCING
STATEMENT WILL VIOLATE THE RIGHTS OF THE SECURED PARTY.
J-4
EXHIBIT A TO SCHEDULE 1
(See Schedule I- Trust Mortgage Loan Schedule)
J-5
EXHIBIT K
SUB-SERVICERS IN RESPECT OF WHICH SUB-SERVICING AGREEMENTS ARE IN
EFFECT OR BEING NEGOTIATED AS OF THE CLOSING DATE
Northmarq Capital, Inc.
X.X. Xxxxxx & Company of Texas, LP
GMAC Commercial Mortgage Corporation
Xxxxxxxx & Co., LLC
Xxxxxxx Capital Group, Inc.
Holiday Xxxxxxxx Xxxxxx, XX
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: Global Securities and Trust Services Group--
LB-UBS Commercial Mortgage Trust 2006-C1]
Wachovia Bank, National Association
0000 Xxxxxxxx Xxxxx-XXX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: LB-UBS Commercial Mortgage Trust 2006-C1
Re: LB-UBS Commercial Mortgage Trust 2006-C1, Commercial Mortgage
Pass-Through Certificates, Series 2006-C1
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of January 11, 2006 (the "Pooling and Servicing Agreement"),
between Structured Asset Securities Corporation II, as depositor (the
"Depositor"), Wachovia Bank, National Association, as master servicer, LNR
Partners, Inc., as special servicer, and LaSalle Bank National Association, as
trustee (the "Trustee"), with respect to LB-UBS Commercial Mortgage Trust
2006-C1, Commercial Mortgage Pass-Through Certificates, Series 2006-C1 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a [beneficial owner] [registered holder] of the
Class _____ Certificates.
2. The undersigned is requesting (Please check as applicable):
(i) ____ the information (the "Information") identified on the
schedule attached hereto pursuant to Section 8.14 of the Pooling and
Servicing Agreement; or
(ii) ____ a password [and username] pursuant to Section 4.02 of
the Pooling and Servicing Agreement for access to information (also,
the "Information") provided on the [Trustee's] [Master Servicer's]
Internet Website.
L-1-1
3. In connection with accessing the website of the [Master Servicer]
[Trustee], the undersigned hereby agrees to register, execute or accept an
access agreement and accept a disclaimer, as and to the extent required by the
[Master Servicer] or [Trustee] in accordance with Section 4.02 of the Pooling
and Servicing Agreement.
4. In consideration of the [Trustee's] [Master Servicer's] disclosure
to the undersigned of the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in evaluating
its interest in Certificates, from its accountants and attorneys, and otherwise
from such governmental or banking authorities to which the undersigned is
subject), and such Information will not, without the prior written consent of
the [Trustee] [Master Servicer], be disclosed by the undersigned or by its
officers, directors, partners, employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in whole or in
part; provided that the undersigned may provide all or any part of the
Information to any other person or entity that holds or is contemplating the
purchase of any Certificate or interest therein, but only if such person or
entity confirms in writing such ownership interest or prospective ownership
interest and agrees to keep it confidential.
5. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any Non-Registered
Certificate pursuant to Section 5 of the Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[BENEFICIAL OWNER OF A CERTIFICATE]
[REGISTERED HOLDER OF A CERTIFICATE]
By:
------------------------------------
Name:
Title:
----------------------------------------
By:
------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION FOR WEBSITE
ACCESS FROM PROSPECTIVE INVESTOR
[Date]
[LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group--
LB-UBS Commercial Mortgage Trust 2006-C1]
Wachovia Bank, National Association
NC 1075
8739 Research Drive - URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: LB-UBS Commercial Mortgage Trust 2006-C1
Re: LB-UBS Commercial Mortgage Trust 2006-C1, Commercial Mortgage
Pass-Through Certificates, Series 2006-C1
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of January 11, 2006 (the "Pooling and Servicing Agreement"),
between Structured Asset Securities Corporation II, as depositor (the
"Depositor"), Wachovia Bank, National Association, as master servicer, LNR
Partners, Inc., as special servicer, and LaSalle Bank National Association, as
trustee (the "Trustee") with respect to LB-UBS Commercial Mortgage Trust
2006-C1, Commercial Mortgage Pass-Through Certificates, Series 2006-C1 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class _____
Certificates.
2. The undersigned is requesting (please check as applicable):
(i) ____ information (the "Information") for use in evaluating
the possible investment described above as identified on the schedule
attached hereto pursuant to Section 8.14 of the Pooling and Servicing
Agreement; or
(ii) ____ a password [and username] pursuant to Section 4.02 of
the Pooling and Servicing Agreement for access to information (also,
the "Information") provided on the [Trustee's] [Master Servicer's]
Internet Website.
L-2-1
3. In connection with accessing the website of the [Master Servicer]
[Trustee], the undersigned hereby agrees to register, execute or accept an
access agreement and accept a disclaimer, as and to the extent required by the
[Master Servicer] or [Trustee] in accordance with Section 4.02 of the Pooling
and Servicing Agreement.
4. In consideration of the [Trustee's] [Master Servicer's] disclosure
to the undersigned of the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in making the
investment decision described in paragraph 1 above, from its accountants and
attorneys, and otherwise from such governmental or banking authorities and
agencies to which the undersigned is subject), and such Information will not,
without the prior written consent of the [Trustee] [Master Servicer], be
disclosed by the undersigned or by its officers, directors, partners, employees,
agents or representatives (collectively, the "Representatives") in any manner
whatsoever, in whole or in part.
5. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities Act
of 1933, as amended ( the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any Non-Registered
Certificate pursuant to Section 5 of the Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[PROSPECTIVE PURCHASER OF A CERTIFICATE
OR INTEREST THEREIN]
By:
------------------------------------
Name:
Title:
----------------------------------------
By:
------------------------------------
Name:
Title:
L-2-2
EXHIBIT M
FORM OF DEFEASANCE CERTIFICATION
M-1
FORM OF NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
For Mortgage Loans: (a) having an unpaid balance of $20,000,000 or less, (b)
that constitute less than 5% of the aggregate unpaid principal balance of the
Mortgage Pool, or (c) that are not then one of the ten largest (measured by
unpaid principal balance) Mortgage Loans in the Mortgage Pool
To: [Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000]
[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 January 11, 2006 (the "Pooling and Servicing Agreement"), between
Structured Asset Securities Corporation II, as depositor, the Master
Servicer, LNR Partners, Inc., as special servicer, and LaSalle Bank
National Association, as trustee (the "Trustee").
Date: _________, 20___
Re: LB-UBS Commercial Mortgage Trust 2006-C1,
Commercial Mortgage Pass-Through Certificates, Series 2006-C1
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:
M-2
____ 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;
2. Certify that each of the following is true, 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
M-3
____ 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").
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.
M-4
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 in the Mortgage Pool 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 (or a Custodian on
its behalf) 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.
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
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx]
[UBS Securities LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx]
[Controlling Class Representative (if known)]
[Wachovia Bank, National Association
NC 1075
8739 Research Drive - URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: LB-UBS Commercial Mortgage Trust 2006-C1]
[LNR Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: LB-UBS Commercial Mortgage Trust 2006-C1]
[LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group- LB-UBS Commercial
Mortgage Trust 2006-C1]
Re: LB-UBS Commercial Mortgage Trust 2006-C1,
Commercial Mortgage Pass-Through Certificates, Series 2006-C1
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 2.03 of the Pooling
and Servicing Agreement, dated as of January 11, 2006 (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")]; [the Mortgage
Loan/Loans identified on Exhibit A to Schedule I attached hereto (the "Subject
Trust Mortgage Loans")].
Check which of the following applies:
______ We hereby advise you that a Material Document Defect or
Material Breach [may exist] [exists] with respect to the
Subject Trust Mortgage [Loan] [Loans] due to the occurrence
set forth on Schedule 1 attached hereto.
N-1
______ We hereby request that you cure the Material Document Defect
or Material Breach in all material respects with respect to
the Subject Trust Mortgage [Loan] [Loans] or repurchase the
Subject Trust Mortgage [Loan] [Loans] 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].
______ We hereby advise you that a Servicing Transfer Event has
occurred with respect to the Subject Trust Mortgage [Loan]
[Loans] 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] [has
occurred] with respect to the Subject Trust Mortgage [Loan]
[Loans], 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] [actual] assumption] has occurred with respect to
the Subject Trust Mortgage [Loan] [Loans]; therefore, we
hereby direct you to cure the subject Material Document
Defect in all material respects 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] [Loans].
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______ We hereby request that you repurchase the Subject Trust
Mortgage [Loan] [Loans] 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:]
[LNR PARTNERS, INC.,
as Special Servicer
By:
------------------------------------
Name:
Title:]
In the event this notice constitutes a request to repurchase the
Subject Trust Mortgage [Loan] [Loans], a copy of this Seller/Depositor
Notification has been delivered to each of:
(i) Counsel to the UBS Mortgage Loan Seller:
Cadwalader, Xxxxxxxxxx & Xxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx;
N-3
and
(ii) Internal Counsel to the Depositor/Xxxxxx Mortgage Loan Seller:
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
N-4
SCHEDULE 1
Mortgage Loan Number: [________________] [See Exhibit A hereto]
Name of Mortgaged Property: _______________________________________________
Material Breach: Explain the nature of the Material Breach: _______________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
[Potential] Material Document Defect: [List the affected documents and
describe nature of the Material Document Defect:] [The Subject Trust Mortgage
[Loan] [Loans] have the document defects outlined on Exhibit A hereto] _________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Servicing Transfer Event/Assumption: Explain the nature of the Servicing
Transfer Event/Assumption: _____________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Other: Set forth any necessary additional information: ____________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
N-5
EXHIBIT O
FORM OF CONTROLLING CLASS REPRESENTATIVE
CONFIDENTIALITY AGREEMENT
[Date]
[LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group--
LB-UBS Commercial Mortgage Trust 2006-C1]
[Wachovia Bank, National Association
NC 1075
8739 Research Drive - URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: LB-UBS Commercial Mortgage Trust 2006-C1]
[LNR Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: LB-UBS Commercial Mortgage Trust 2006-C1]
Re: LB-UBS Commercial Mortgage Trust 2006-C1,
Commercial Mortgage Pass-Through Certificates, Series 2006-C1
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of January 11, 2006 the ("Pooling and Servicing Agreement"),
between Structured Asset Securities Corporation II, as depositor (the
"Depositor"), Wachovia Bank, National Association, as master servicer, LNR
Partners, Inc., as special servicer, and LaSalle Bank National Association, as
trustee (the "Trustee"), with respect to LB-UBS Commercial Mortgage Trust
2006-C1, Commercial Mortgage Pass-Through Certificates, Series 2006-C1 (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 or
counsel); provided that the undersigned may provide all or any part of the
Information to any other person or
O-1
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.
3. The undersigned will not use or disclose the Information in any
manner which could result in a violation on the part of any person or entity 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.
4. The undersigned confirms its acceptance of its appointment as
Controlling Class Representative. Notices and other correspondences should be
delivered to: [Name/ Address/ Phone/ Facsimile/ Email]. Below is a list of
officers or employees with whom parties to the Pooling and Servicing Agreement
may deal with.
NAME TITLE WORK ADDRESS FACSIMILE NUMBER
[_____________] [_____________] [_____________] [_____________]
[_____________] [_____________] [_____________] [_____________]
To the extent not defined herein, the capitalized terms used herein
have the respective meanings assigned in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[CONTROLLING CLASS REPRESENTATIVE]
By:
------------------------------------
Name:
Title:
----------------------------------------
By:
------------------------------------
Name:
Title:
O-2
EXHIBIT P
FORM OF TRUSTEE BACKUP CERTIFICATION
TO BE PROVIDED TO DEPOSITOR
Re: LB-UBS Commercial Mortgage Trust 2006-C1 (the "Trust") Commercial
Mortgage Pass-Through Certificates, Series 2006-C1 (the
"Certificates")
Pursuant to Section 8.15 of the Pooling and Servicing Agreement, dated
as of January 11, 2006 (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") and LNR
Partners, Inc. as special servicer (the "Special Servicer"), relating to the
Certificates, the undersigned, a ____________________ of the Trustee and on
behalf of the Trustee, hereby certifies to ___________________ (the "Certifying
Party") and to ____________________ as the officer executing the subject
certification pursuant to the Xxxxxxxx-Xxxxx Act of 2002 (the "Certifying
Officer") and its partners, representatives, affiliates, members, managers,
directors, officers, employees and agents, to the extent that the following
information is within our normal area of responsibilities and duties under the
Pooling and Servicing Agreement, and with the knowledge and intent that they
will rely upon this certification, that:
1. I have reviewed (i) the information reported or caused to be
reported by the Trustee to the Depositor pursuant to Section 8.15(b) of the
Pooling and Servicing Agreement (the "Section 8.15(b) Information") for the
Trust's fiscal year _____, and (ii) the annual report on Form 10-K for the
Trust's fiscal year _______, and all distribution reports on Form 10-D and
current reports on Form 8-K filed in respect of periods included in the
year covered by that annual report, of the Trust (such annual report,
distribution reports and current reports, collectively, the "Reports");
2. Based on 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), the information in the Reports relating to
distributions on and/or characteristics (including Certificate Principal
Balances, Certificate Notional Amounts and Pass-Through Rates) of the
Certificates, and/or relating to the Trustee, its Affiliates, any and all
sub-servicers, subcontractors and agents retained or engaged by the Trustee
and/or any and all Trustee Appointees, 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. Based on my knowledge, the information in the Reports relating
to distributions on and/or characteristics (including Certificate Principal
Balances, Certificate Notional Amounts and Pass-Through Rates) of the
Certificates and/or relating to the Trustee, its Affiliates, any and all
sub-servicers, subcontractors and agents retained or engaged by the Trustee
and/or any and all Trustee Appointees, includes all information of such
type required to be included in the Reports for the relevant period covered
by the subject Annual Report on Form 10-K;
P-1
4. To my knowledge, the Section 8.15(b) Information did not
contain any untrue statement of a material fact required to be reported or
caused to be reported to the Depositor by the Trustee pursuant to Section
8.15(b);
5. To my knowledge, the information in the Reports includes all
information that was provided to the Trustee by the Master Servicer and/or
the Special Servicer pursuant to Section 8.15(b) of the Pooling and
Servicing Agreement and, if and to the extent contemplated by Section 8/15
of the Pooling and Servicing Agreement, approved by the Depositor for
inclusion in the Reports, and all Servicer Reports provided to the Trustee
by the Master Servicer and/or the Special Servicer under the Pooling and
Servicing Agreement, for the Trust's fiscal year; and
6. To my knowledge, the Reports include all Form 8-K Required
Information, Form 10-D Relevant Information, Form 10-D Required Information
and Form 10-K Required Information that the Trustee had actual knowledge of
for the Trust's fiscal year and that, if and to the extent contemplated by
Section 8.15 of the Pooling and Servicing Agreement, approved by the
Depositor for inclusion in the Reports.
7. All Annual Statements of Compliance and all Annual Assessment
Reports and their related Annual Attestation Reports required to be
provided to the Depositor by the Trustee and its Servicing Representatives
with respect to the Trust's fiscal year _____ under or as contemplated by
the Pooling and Servicing Agreement, have been so provided thereby, with
the following exceptions: ____________________________.
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 2006-C1 (the "Trust") Commercial
Mortgage Pass-Through Certificates, Series 2006-C1 (the
"Certificates")
Pursuant to Section 8.15 of the Pooling and Servicing Agreement, dated
as of January 11, 2006 (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") and LNR
Partners, Inc. as special servicer (the "Special Servicer"), relating to the
Certificates, the undersigned, a ____________________ of the Master Servicer and
on behalf of the Master Servicer, 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: (i) all the information delivered by the
Master Servicer to the Depositor and the Trustee pursuant to Section
8.15(b) of the Pooling and Servicing Agreement (the "Section 8.15(b)
Information") for the Trust's fiscal year __________; and (ii) all the
Servicer Reports delivered by the Master Servicer to the Trustee, in each
case, for the Trust's 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 delivered by the Master Servicer to the Trustee for the Trust's
fiscal 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, and/or relating to the Master Servicer, its Affiliates
and/or any and all sub-servicers, subcontractors and agents of the Master
Servicer, 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
delivered by the Master Servicer to the Trustee for the Trust's fiscal 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, and/or relating to the Master Servicer, its Affiliates and/or
any and all sub-servicers, subcontractors and agents of the Master
Servicer, together with the
Q-1
Section 8.15(b) Information for the Trust's fiscal year __________,
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 on my knowledge and the review required
under the Pooling and Servicing Agreement, and except as disclosed in the
Annual Statement of Compliance delivered by the Master Servicer for such
year, the Master Servicer has fulfilled its obligations under the Pooling
and Servicing Agreement;
5. All Annual Statements of Compliance and all Assessment Reports
and their related Annual Attestation Reports required to be provided to
the Trustee and the Depositor by the Master Servicer or any Additional
Servicer or Sub-Servicing Function Participant under or as contemplated by
the Pooling and Servicing Agreement have been provided thereby, with the
following exceptions: ____________________________. Based on my knowledge,
there are no significant deficiencies relating to the Master Servicer's or
any such other party's compliance with the Servicing Criteria, in each
case based upon the Annual Attestation Report provided by a registered
public accounting firm, after conducting a review in compliance with the
standards for attestation engagements issued or adopted by the PCAOB,
delivered pursuant to Section 3.14 of the Pooling and Servicing Agreement,
except as disclosed in such report.
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" 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 (i) Section 8.15(b) Information or (ii) the
information in the Servicer Reports delivered by the Master Servicer to the
Trustee and/or the Depositor and referred to in such clauses 2. and 3. above
Q-2
that is in turn dependent upon information provided by (other than, if and to
the extent such information has been provided by such party, the certification
under clause 3. above) (a) the Special Servicer under the Pooling and Servicing
Agreement, beyond the corresponding certification actually provided by the
Special Servicer, and/or (b) an Outside Servicer under the applicable Outside
Servicing Agreement, beyond the corresponding certification actually provided by
such Outside Servicer; provided, that clause (b) shall not apply with respect to
any particular Outside Servicer if such Outside Servicer is the same entity as,
or is an Affiliate of, the Master Servicer. Further, notwithstanding the
foregoing certifications, the Master Servicer does not make any certification
under the foregoing clauses 1. through 5. that is in turn dependent upon
information required to be provided by any Sub-Servicer identified on Exhibit K
to the Pooling and Servicing Agreement, acting under a Sub-Servicing Agreement
that the Master Servicer entered into in connection with the issuance of the
Certificates, or upon the performance by any such Sub-Servicer of its
obligations pursuant to any such Sub-Servicing Agreement, in each case beyond
the respective backup certifications actually provided by such Sub-Servicer to
the Master Servicer with respect to the information that is the subject of such
certification.
Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement.
Date:
[NAME OF MASTER SERVICER]
By:
------------------------------------
Name:
Title:
Q-3
EXHIBIT R
FORM OF SPECIAL SERVICER BACKUP CERTIFICATION
TO BE PROVIDED TO DEPOSITOR/MASTER SERVICER
Re: LB-UBS Commercial Mortgage Trust 2006-C1 (the "Trust") Commercial
Mortgage Pass-Through Certificates, Series 2006-C1 (the
"Certificates")
Pursuant to Section 8.15 of the Pooling and Servicing Agreement, dated
as of January 11, 2005 (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") and LNR
Partners, Inc. as special servicer (the "Special Servicer"), relating to the
Certificates, the undersigned, a ____________________ of the Special Servicer
and on behalf of the Special Servicer, hereby certifies to ___________________
(the "Certifying Party") and to ____________________ as the officer executing
the subject certification pursuant to the Xxxxxxxx-Xxxxx Act of 2002 (the
"Certifying Officer") and its partners, representatives, affiliates, members,
managers, directors, officers, employees and agents, to the extent that the
following information is within our normal area of responsibilities and duties
under the Pooling and Servicing Agreement, and with the knowledge and intent
that they will rely upon this certification, that:
1. I have reviewed (i) all the Servicer Reports delivered by the
Special Servicer to the Master Servicer and/or the Trustee for the Trust's
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"), and (ii) all the information delivered by the Special Servicer to
the Depositor and the Trustee pursuant to Section 8.15(b) of the Pooling and
Servicing Agreement for the Trust's fiscal year _____________ (the "Section
8.15(b) Information").
2. To the best of my knowledge, the Section 8.15(b) Information and
the information in the Servicer Reports delivered to the Master Servicer and/or
the Trustee for Trust's fiscal year _____________ relating to servicing
information in respect of Specially Serviced Mortgage Loans and REO Properties,
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, and/or relating to the Special Servicer,
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading as of
the last day of such fiscal year.
3. To the best of my knowledge, the information in the Servicer
Reports 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,
and/or relating to the Special Servicer, together with the Section 8.15(b)
Information, includes all information of such type required to be
R-1
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 on my
knowledge and the compliance reviews conducted in preparing the Special
Servicer's Annual Statement of Compliance under the Pooling and Servicing
Agreement, and except as disclosed in the Annual Statement of Compliance
delivered to the Depositor pursuant to Section 3.13 in the Pooling and Servicing
Agreement, the Special Servicer has fulfilled its obligations under the Pooling
and Servicing Agreement.
5. All Annual Statements of Compliance and all Annual Assessment
Reports and their related Annual Attestation Reports required to be provided to
the Depositor and the Trustee by the Special Servicer and its Servicing
Representatives with respect to the Trust's fiscal year ______ under or as
contemplated by the Pooling and Servicing Agreement, have been so provided
thereby, with the following exceptions: __________________________.
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 the Section 8.15(b) Information relating
to any other person or any other topic.
Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement.
Date:
[NAME OF SPECIAL SERVICER]
By:
------------------------------------
Name:
Title:
R-2
EXHIBIT S
FORM OF OUTSIDE MASTER SERVICER NOTICE
[Date]
[OUTSIDE MASTER SERVICER]
[OUTSIDE TRUSTEE]
Re: Co-Lender Agreement, dated as of [_________], 2005 (the "Co-Lender
Agreement") among [SPECIFY PARTIES]
Ladies and Gentlemen:
This notice is being delivered to you in connection with the Co-Lender
Agreement and pursuant to Section 3.02(c) and Section 6.11(c) of the Pooling and
Servicing Agreement dated as of January 11, 2006 (the "Agreement") between
Structured Asset Securities Corporation II, as depositor, Wachovia Bank,
National Association, as master servicer (the "Master Servicer", which term
includes any successor entity under the Agreement), LNR Partners, Inc., as
special servicer, and LaSalle Bank National Association, as trustee (the
"Trustee", which term includes any successor entity under the Agreement), which
Agreement relates to the issuance of the LB-UBS Commercial Mortgage Trust
2006-C1, Commercial Mortgage Pass-Through Certificates, Series 2006-C1. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Co-Lender Agreement.
[Notice is hereby given that as of February 1, 2006, the "Closing
Date" under the Agreement, the Trustee is the holder of [the Note ___ Mortgage
Loan] [Loan ___] (as defined in the Co-Lender Agreement), and, in that capacity,
the Trustee assumes the rights and obligations of the [Note ____ Lender] [_____
Noteholder] under the Co-Lender Agreement.]
[You are hereby directed to remit to the Master Servicer all amounts
payable to the [Note ___ Lender] [__ Noteholder] under the Co-Lender Agreement
and the governing Servicing Agreement, to the following account:
Account: [___________]
Account #: [________]
Title: [Wachovia Bank, National Association, as Master Servicer, on
behalf of LaSalle Bank National Association, as Trustee, in trust for
the registered holders of LB-UBS Commercial Mortgage Trust 2006-C1,
Commercial Mortgage Pass-Through Certificates, Series 2006-C1, Pool
Custodial Account]
Location: [Wachovia Bank, National Association]]
S-1
[You are hereby further directed to forward, deliver, or otherwise
make available to the Master Servicer, all reports, statements, documents,
communications and other information that are to be forwarded, delivered or
otherwise made available to the [Note ___ Lender] [___ Noteholder] under the
Co-Lender Agreement and the governing Servicing Agreement, to the following:
[address/facsimile/email address/telephone number]]
[Please also be advised that [______________], as the initial
"Controlling Class Representative" under the Agreement is, to the fullest extent
permitted under the Co-Lender Agreement, entitled to exercise any rights and
powers of the Trustee, in its capacity as [Note ___ Lender] [___ Noteholder],
under Section ___ of the Co-Lender Agreement.]
[Please also be advised that a new controlling Controlling Class
Representative has been appointed in accordance with Section 6.09(b) of the
Agreement, which new Controlling Class Representative is
_________________________ [include notice information] and such party is, to the
fullest extent permitted under the Co-Lender Agreement, entitled to exercise any
rights and powers of the Trustee, in its capacity as [Note ___ Lender] [___
Noteholder], under Section ___ of the Co-Lender Agreement.]
Very truly yours,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
Title:
c.c. [OTHER RELATED NON-TRUST MORTGAGE LOAN NOTEHOLDERS]
S-2
EXHIBIT T
RELEVANT SERVICING CRITERIA MATRIX
----------------------- ------------------------------------------------------------------- ------------------------------
1122 ITEM DESCRIPTION OF SERVICING CRITERIA RESPONSIBLE PARTY*
----------------------- ------------------------------------------------------------------- ------------------------------
GENERAL SERVICING CONSIDERATIONS
--------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance Master Servicer,
or other triggers and events of default in accordance with the Special Servicer,
transaction agreements. Trustee
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third Master Servicer,
parties, policies and procedures are instituted to monitor the Special Servicer,
third party's performance and compliance with such servicing Trustee
activities.
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a Not Applicable
back-up servicer for the pool assets are maintained.
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on Master Servicer,
the party participating in the servicing function throughout the Special Servicer,
reporting period in the amount of coverage required by and Custodian
otherwise in accordance with the terms of the transaction
agreements.
--------------------------------------------------------------------------------------------------------------------------
CASH COLLECTION AND ADMINISTRATION
--------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on pool assets are deposited into the appropriate Master Servicer,
custodial bank accounts and related bank clearing accounts no Special Servicer,
more than two business days of receipt, or such other number of Trustee
days specified in the transaction agreements.
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or Master Servicer,
to an investor are made only by authorized personnel. Special Servicer,
Trustee
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows Master Servicer,
or distributions, and any interest or other fees charged for such Special Servicer,
advances, are made, reviewed and approved as specified in the Trustee
transaction agreements.
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve Master Servicer,
accounts or accounts established as a form of Special Servicer,
overcollateralization, are separately maintained (e.g., with Trustee
respect to commingling of cash) as set forth in the transaction
agreements.
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured Master Servicer,
depository institution as set forth in the transaction Special Servicer,
agreements. For purposes of this criterion, "federally insured Trustee
depository institution" with respect to a foreign financial
institution means a foreign financial institution that meets the
requirements of Sec. 240.13k-1(b)(1) of this chapter.
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized Master Servicer,
access. Special Servicer,
Trustee
----------------------- ------------------------------------------------------------------- ------------------------------
T-1
----------------------- ------------------------------------------------------------------- ------------------------------
1122 ITEM DESCRIPTION OF SERVICING CRITERIA RESPONSIBLE PARTY*
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all Master Servicer,
asset-backed securities related bank accounts, including Special Servicer,
custodial accounts and related bank clearing accounts. These Trustee
reconciliations: (A) Are mathematically accurate; (B) Are
prepared within 30 calendar days after the bank statement cutoff
date, or such other number of days specified in the transaction
agreements; (C) Are reviewed and approved by someone other than
the person who prepared the reconciliation; and (D) Contain
explanations for reconciling items. These reconciling items are
resolved within 90 calendar days of their original
identification, or such other number of days specified in the
transaction agreements.
----------------------- ------------------------------------------------------------------- ------------------------------
INVESTOR REMITTANCES AND REPORTING
--------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the Master Servicer,
Commission, are maintained in accordance with the transaction Trustee
agreements and applicable Commission requirements. Specifically,
such reports:
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(3)(i)(A) (A) Are prepared in accordance with timeframes and other terms Master Servicer,
set forth in the transaction agreements; Trustee
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(3)(i)(B) (B) Provide information calculated in accordance with the terms Master Servicer,
specified in the transaction agreements; Trustee
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(3)(i)(C) (C) Are filed with the Commission as required by its rules and Trustee
regulations; and
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(3)(i)(D) (D) Agree with investors' or the Trustee's records as to the Trustee
total unpaid principal balance and number of pool assets serviced
by the servicer.
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance Trustee
with timeframes, distribution priority and other terms set forth
in the transaction agreements.
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within two business Trustee
days to the servicer's investor records, or such other number of
days specified in the transaction agreements.
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with Trustee
cancelled checks, or other form of payment, or custodial bank
statements.
--------------------------------------------------------------------------------------------------------------------------
POOL ASSET ADMINISTRATION
--------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on pool assets is maintained as required Master Servicer,
by the transaction agreements or related pool asset documents. Special Servicer,
Custodian
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(4)(ii) Pool assets and related documents are safeguarded as required by Special Servicer,
the transaction agreements. Custodian
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are Master Servicer,
made, reviewed and approved in accordance with any conditions or Special Servicer,
requirements in the transaction agreements. Trustee,
Custodian
----------------------- ------------------------------------------------------------------- ------------------------------
T-2
----------------------- ------------------------------------------------------------------- ------------------------------
1122 ITEM DESCRIPTION OF SERVICING CRITERIA RESPONSIBLE PARTY*
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(4)(iv) Payments on pool assets, including any payoffs, made in Master Servicer,
accordance with the related pool asset documents are posted to Special Servicer
the applicable servicer's obligor records maintained no more than
two business days after receipt, or such other number of days
specified in the transaction agreements, and allocated to
principal, interest or other items (e.g., escrow) in accordance
with the related pool asset documents.
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(4)(v) The servicer's records regarding the pool assets agree with the Master Servicer
servicer's records with respect to an obligor's unpaid principal
balance.
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's pool Master Servicer,
asset (e.g., loan modifications or re-agings) are made, reviewed Special Servicer
and approved by authorized personnel in accordance with the
transaction agreements and related pool asset documents.
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, Special Servicer
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and
concluded in accordance with the timeframes or other requirements
established by the transaction agreements.
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained during the Master Servicer,
period a pool asset is delinquent in accordance with the Special Servicer
transaction agreements. Such records are maintained on at least a
monthly basis, or such other period specified in the transaction
agreements, and describe the entity's activities in monitoring
delinquent pool assets including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency
is deemed temporary (e.g., illness or unemployment).
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for pool assets Not applicable
with variable rates are computed based on the related pool asset
documents.
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow
accounts) See followings:
----------------------- ------------------------------------------------------------------- ------------------------------
(A) Such funds are analyzed, in accordance with the obligor's Master Servicer
pool asset documents, on at least an annual basis, or such other
period specified in the transaction agreements;
----------------------- ------------------------------------------------------------------- ------------------------------
(B) Interest on such funds is paid, or credited, to obligors in Master Servicer
accordance with applicable pool asset documents and state laws;
and
----------------------- ------------------------------------------------------------------- ------------------------------
(C) Such funds are returned to the obligor within 30 calendar days Master Servicer
of full repayment of the related pool asset, or such other number
of days specified in the transaction agreements.
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance Master Servicer
payments) are made on or before the related penalty or expiration
dates, as indicated on the appropriate bills or notices for such
payments, provided that such support has been received by the
servicer at least 30 calendar days prior to these dates, or such
other number of days specified in the transaction agreements.
----------------------- ------------------------------------------------------------------- ------------------------------
T-3
----------------------- ------------------------------------------------------------------- ------------------------------
1122 ITEM DESCRIPTION OF SERVICING CRITERIA RESPONSIBLE PARTY*
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be Master Servicer
made on behalf of an obligor are paid from the servicer's funds
and not charged to the obligor, unless the late payment was due
to the obligor's error or omission.
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two Master Servicer
business days to the obligor's records maintained by the
servicer, or such other number of days specified in the
transaction agreements.
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are Master Servicer,
recognized and recorded in accordance with the transaction Special Servicer
agreements.
----------------------- ------------------------------------------------------------------- ------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified in Item Not Applicable
1114(a)(1) through (3) or Item 1115 of this Regulation AB, is
maintained as set forth in the transaction agreements.
----------------------- ------------------------------------------------------------------- ------------------------------
With respect to each Servicing Criteria set forth above in this Exhibit T,
"Responsible Party" shall additionally include any Sub-Servicer, sub-contractor,
vendor, agent or other Person acting on behalf of such Responsible Party, which
Sub-Servicer, sub-contractor, vendor, agent or other Person is a "party
participating in the servicing function" (within the meaning of the instructions
to Item 1122 of Regulation AB) with respect to the subject Servicing Criteria
and as regards the Trust Fund.
T-4
