EXECUTION COPY
STRUCTURED ASSET SECURITIES CORPORATION II,
Depositor
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer
and
LENNAR PARTNERS, INC.,
as Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
and
ABN AMRO BANK N.V.,
as Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of April 11, 2005
------------------------------
$1,942,131,018
LB-UBS Commercial Mortgage Trust 2005-C2
Commercial Mortgage Pass-Through Certificates,
Series 2005-C2
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.................................................................95
SECTION 1.03.
Certain Adjustments to the Principal Distributions on the
Certificates..........................96
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...........................................99
SECTION 2.02.
Acceptance of Trust Fund by
Trustee............................................................102
SECTION 2.03.
Repurchase of Trust Mortgage Loans for Document Defects and
Breaches of Representations and
Warranties...................................................................................104
SECTION 2.04.
Representations, Warranties and Covenants of the
Depositor.....................................111
SECTION 2.05.
Acceptance of Grantor Trust Assets by Trustee; Issuance of the
Class V Certificates............113
SECTION 2.06.
Acceptance of Loan REMICs by Trustee; Execution, Authentication and
Delivery of Class R-LR
Certificates; Creation of Loan REMIC Regular
Interests.......................................114
SECTION 2.07.
Conveyance of Loan REMIC Regular
Interests.....................................................114
SECTION 2.08.
Execution, Authentication and Delivery of Class R-I Certificates;
Creation of REMIC I
Regular
Interests............................................................................114
SECTION 2.09.
Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by
Trustee.....................115
SECTION 2.10.
Execution, Authentication and Delivery of Class R-II Certificates;
Creation of REMIC II
Regular
Interests............................................................................115
SECTION 2.11.
Conveyance of REMIC II Regular Interests; Acceptance of REMIC III
by Trustee...................115
SECTION 2.12.
Execution, Authentication and Delivery of REMIC III
Certificates...............................115
SECTION 2.13.
Acceptance of Loss of Value Reserve Fund by
Trustee............................................116
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01.
Administration of the Mortgage
Loans...........................................................117
SECTION 3.02.
Collection of Mortgage Loan
Payments...........................................................119
SECTION 3.03.
Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts.......122
SECTION 3.04.
Pool Custodial Account, Defeasance Deposit Account, Collection
Account, Interest Reserve
Account, Excess Liquidation Proceeds Account and Loss of Value
Reserve Fund..................124
SECTION 3.04A.
Loan Combination Custodial Accounts for Loan
Combinations......................................129
SECTION 3.05.
Permitted Withdrawals From the Pool Custodial Account, the
Collection Account, the Interest
Reserve Account and the Excess Liquidation Proceeds
Account..................................131
SECTION 3.05A.
Permitted Withdrawals From the Loan Combination Custodial
Accounts.............................139
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..........................................150
SECTION 3.07.
Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage; Environmental
Insurance....................................................................................152
SECTION 3.08.
Enforcement of Alienation
Clauses..............................................................157
SECTION 3.09.
Realization Upon Defaulted Mortgage Loans; Required Appraisals;
Appraisal Reduction
Calculation..................................................................................161
SECTION 3.10.
Trustee and Custodian to Cooperate; Release of Mortgage
Files..................................166
SECTION 3.11.
Servicing Compensation; Payment of Expenses; Certain Matters
Regarding Servicing Advances......167
SECTION 3.12.
Property Inspections; Collection of Financial Statements; Delivery
of Certain Reports..........174
SECTION 3.12A.
Delivery of Certain Reports to the Non-Trust Mortgage Loan
Noteholders.........................177
SECTION 3.12B.
Statements to the Non-Trust Mortgage Loan
Noteholders..........................................178
SECTION 3.13.
Annual Statement as to
Compliance..............................................................179
SECTION 3.14.
Reports by Independent Public
Accountants......................................................180
SECTION 3.15.
Access to Certain
Information..................................................................181
SECTION 3.16.
Title to REO Property; REO
Accounts............................................................182
SECTION 3.17.
Management of REO
Property.....................................................................184
SECTION 3.18.
Sale of Trust Mortgage Loans and REO
Properties................................................187
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...................................................191
SECTION 3.20.
Modifications, Waivers, Amendments and Consents;
Defeasance....................................193
SECTION 3.21.
Transfer of Servicing Between Master Servicer and Special Servicer;
Record Keeping.............202
SECTION 3.22.
Sub-Servicing
Agreements.......................................................................203
SECTION 3.23.
Representations and Warranties of the Master
Servicer..........................................206
SECTION 3.24.
Representations and Warranties of the Special
Servicer.........................................208
SECTION 3.25.
Certain Matters Regarding the Purchase of the Trust Mortgage Loan
in a Loan Combination........209
SECTION 3.26.
Application of Default
Charges.................................................................210
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
SECTION 4.01.
Distributions..................................................................................214
SECTION 4.02.
Statements to Certificateholders; CMSA Loan Periodic Update
File...............................228
SECTION 4.03.
P&I Advances With Respect to the Mortgage
Pool.................................................235
SECTION 4.04.
Allocations of Realized Losses and Additional Trust Fund
Expenses..............................239
SECTION 4.05.
Various Reinstatement
Amounts..................................................................240
SECTION 4.06.
Calculations...................................................................................242
SECTION 4.07.
Use of
Agents..................................................................................242
ARTICLE V
THE CERTIFICATES
SECTION 5.01.
The
Certificates...............................................................................244
SECTION 5.02.
Registration of Transfer and Exchange of
Certificates..........................................244
SECTION 5.03.
Book-Entry
Certificates........................................................................252
SECTION 5.04.
Mutilated, Destroyed, Lost or Stolen
Certificates..............................................253
SECTION 5.05.
Persons Deemed
Owners..........................................................................254
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...................................255
SECTION 6.02.
Continued Qualification and Compliance of Master Servicer; Merger,
Consolidation or
Conversion of Depositor, Master Servicer or Special
Servicer.................................255
SECTION 6.03.
Limitation on Liability of Depositor, Master Servicer and Special
Servicer.....................256
SECTION 6.04.
Resignation of Master Servicer and the Special
Servicer........................................257
SECTION 6.05.
Rights of Depositor, Trustee and Non-Trust Mortgage Loan
Noteholders in Respect of the Master
Servicer and the Special
Servicer............................................................258
SECTION 6.06.
Depositor, Master Servicer and Special Servicer to Cooperate with
Trustee......................258
SECTION 6.07.
Depositor, Special Servicer and Trustee to Cooperate with Master
Servicer......................258
SECTION 6.08.
Depositor, Master Servicer and Trustee to Cooperate with Special
Servicer......................259
SECTION 6.09.
Designation of Special Servicer and Controlling Class
Representative by the Controlling
Class; Designation of Bay Colony Special Servicer by the Bay Colony
Non-Trust Mortgage
Loan
Noteholders.............................................................................259
SECTION 6.10.
Master Servicer or Special Servicer as Owner of a
Certificate..................................263
SECTION 6.11.
Certain Powers of the Controlling Class
Representative.........................................263
SECTION 6.12.
Certain Matters Regarding the Loan
Combinations................................................265
ARTICLE VII
DEFAULT
SECTION 7.01.
Events of
Default..............................................................................271
SECTION 7.02.
Trustee to Act; Appointment of
Successor.......................................................279
SECTION 7.03.
Notification to
Certificateholders.............................................................280
SECTION 7.04.
Waiver of Events of
Default....................................................................280
SECTION 7.05.
Additional Remedies of Trustee Upon Event of
Default...........................................280
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01.
Duties of
Trustee..............................................................................282
SECTION 8.02.
Certain Matters Affecting
Trustee..............................................................283
SECTION 8.03.
Trustee and Fiscal Agent Not Liable for Validity or Sufficiency of
Certificates or Mortgage
Loans........................................................................................284
SECTION 8.04.
Trustee and Fiscal Agent May Own
Certificates..................................................284
SECTION 8.05.
Fees and Expenses of Trustee; Indemnification of and by
Trustee................................284
SECTION 8.06.
Eligibility Requirements for
Trustee...........................................................285
SECTION 8.07.
Resignation and Removal of
Trustee.............................................................286
SECTION 8.08.
Successor
Trustee..............................................................................287
SECTION 8.09.
Merger or Consolidation of Trustee and Fiscal
Agent............................................288
SECTION 8.10.
Appointment of Co-Trustee or Separate
Trustee..................................................288
SECTION 8.11.
Appointment of
Custodians......................................................................289
SECTION 8.12.
Appointment of Authenticating
Agents...........................................................290
SECTION 8.13.
Appointment of Tax
Administrators..............................................................291
SECTION 8.14.
Access to Certain
Information..................................................................291
SECTION 8.15.
Reports to the Securities and Exchange Commission and Related
Reports..........................293
SECTION 8.16.
Representations and Warranties of
Trustee......................................................299
SECTION 8.17.
The Fiscal
Agent...............................................................................301
SECTION 8.18.
Representations and Warranties of Fiscal
Agent.................................................302
ARTICLE IX
TERMINATION
SECTION 9.01.
Termination Upon Repurchase or Liquidation of All Trust Mortgage
Loans.........................304
SECTION 9.02.
Additional Termination
Requirements............................................................312
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01.
REMIC
Administration...........................................................................314
SECTION 10.02.
Grantor Trust
Administration...................................................................317
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01.
Amendment......................................................................................320
SECTION 11.02.
Recordation of Agreement;
Counterparts.........................................................322
SECTION 11.03.
Limitation on Rights of
Certificateholders.....................................................322
SECTION 11.04.
Governing Law; Consent to
Jurisdiction.........................................................323
SECTION 11.05.
Notices........................................................................................323
SECTION 11.06.
Severability of
Provisions.....................................................................324
SECTION 11.07.
Grant of a Security
Interest...................................................................324
SECTION 11.08.
Streit
Act.....................................................................................325
SECTION 11.09.
Successors and Assigns;
Beneficiaries..........................................................325
SECTION 11.10.
Article and Section
Headings...................................................................326
SECTION 11.11.
Notices to Rating
Agencies.....................................................................326
SECTION 11.12.
Complete
Agreement.............................................................................327
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
VIII
Schedule of Reference Rates
IX
Schedule of Class A-AB Planned Principal Balances
Exhibit No.
Exhibit Description
-----------
-------------------
A-1
Form of Class [A-1] [A-2] [A-3] [A-4] [A-AB] [A-5] Certificate
A-2
Form of Class X-CP Certificate
A-3
Form of Class X-CL Certificate
A-4
Form of Class [A-J] [B] [C] [D] [E] Certificate
A-5
Form of Class [F] [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S]
Certificate
A-6
Form of Class [R-I] [R-II] [R-III] [R-LR] Certificate
A-7
Form of Class V Certificate
B
Form of Distribution Date Statement
C
Form of Custodial Certification
D-1
Form of Master Servicer Request for Release
D-2
Form of Special Servicer Request for Release
E
Form of Loan Payoff Notification Report
F-1
Form of Transferor Certificate for Transfers of Definitive
Non-Registered Certificates
F-2A
Form I of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2B
Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2C
Form of Transferee Certificate for Transfers of Interests in
Rule 144A Global Certificates
F-2D
Form of Transferee Certificate for Transfers of Interests in
Regulation S Global Certificates
G-1
Form I of Transferee Certificate in Connection with ERISA
(Definitive Non-Registered Certificates)
G-2
Form II of Transferee Certificate in Connection with ERISA
(Book-Entry Non-Registered Certificates)
H-1
Form of Transfer Affidavit and Agreement regarding Residual
Interest Certificates
H-2
Form of Transferor Certificate regarding Residual Interest
Certificates
I-1
Form of Notice and Acknowledgment
I-2
Form of Acknowledgment of Proposed Special Servicer
J
Form of UCC-1 Financing Statement Schedule
K
Sub-Servicers in respect of which Sub-Servicing Agreements are
in effect or being negotiated as of the Closing Date
L-1
Form of Information Request/Investor Certification for Website
Access from Certificate [Holder] [Owner]
L-2
Form of Information Request/Investor Certification for Website
Access from Prospective Investor
M
Form of Defeasance Certification
-vi-
Exhibit No.
Exhibit Description
-----------
-------------------
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
-vii-
This Pooling and Servicing Agreement (this "Agreement") is dated
and
effective as of April 11, 2005, among STRUCTURED ASSET SECURITIES
CORPORATION
II, as Depositor, WELLS FARGO BANK, NATIONAL ASSOCIATION, as Master
Servicer,
LENNAR PARTNERS, INC., as Special Servicer, LASALLE BANK NATIONAL
ASSOCIATION,
as Trustee and ABN AMRO BANK N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, which are to be
issued
hereunder in multiple Classes and which in the aggregate will
evidence the
entire beneficial ownership interest in the Trust Fund.
As provided herein, the Trustee will elect to treat 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 there
will no Loan
REMICs, neither the Class R-LR Certificates nor any Loan REMIC
Regular Interests
will be issued and 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. A separate REMIC I Regular Interest will, on the Closing
Date, be
issued with respect to, and will thereafter relate to, each Trust
Mortgage Loan
and 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 corresponding 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) bear a numeric designation
that is the
same as the loan number for the related Trust Mortgage Loan set
forth on the
Trust Mortgage Loan Schedule; (ii) accrue interest at a per annum
rate described
in the definition of "REMIC I Remittance Rate"; and (iii) have an
initial
Uncertificated Principal Balance equal to the Cut-off Date Balance
of the
related Trust Mortgage Loan. The Legal Final Distribution Date of
each of the
REMIC I Regular Interests is the Distribution Date immediately
following the
third anniversary of the end of the remaining amortization term (as
determined
as of the Closing Date) of the related Trust Mortgage Loan. None of
the REMIC I
Regular Interests will be certificated.
As provided herein, the Trustee will elect to treat the segregated
pool
of assets consisting of the REMIC I Regular Interests as a REMIC
for federal
income tax purposes, and such segregated pool of assets will be
designated as
"REMIC II". The Class R-II Certificates will represent the sole
class of
"residual interests" in REMIC II for purposes of the REMIC
Provisions under
federal income tax law. The 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. The following table sets
forth the
designation, the REMIC II Remittance Rate and the initial
Uncertificated
Principal Balance for each of the REMIC II Regular Interests.
-2-
REMIC II
Initial Uncertificated
Designation of REMIC II
Remittance Rate of REMIC II
Principal Balance of REMIC II
Regular Interests
Regular Interests
Regular Interests
-----------------
-----------------
-----------------
A-1-1
Variable (1)
$
47,907,000
A-1-2
Variable (1)
$
22,093,000
A-2-1
Variable (1)
$
25,782,000
A-2-2
Variable (1)
$
87,781,000
A-2-3
Variable (1)
$
84,604,000
A-2-4
Variable (1)
$
40,070,000
A-2-5
Variable (1)
$
312,763,000
A-3
Variable (1)
$
81,000,000
A-4-1
Variable (1)
$
74,002,000
A-4-2
Variable (1)
$
94,147,000
A-4-3
Variable (1)
$
136,551,000
A-AB-1
Variable (1)
$
19,495,000
A-AB-2
Variable (1)
$
56,505,000
A-5-1
Variable (1)
$
60,871,000
A-5-2
Variable (1)
$
409,833,000
A-J
Variable (1)
$
121,684,000
B
Variable (1)
$
13,941,000
C
Variable (1)
$
29,204,000
D-1
Variable (1)
$
14,336,000
D-2
Variable (1)
$
22,168,000
D-3
Variable (1)
$
2,435,000
E-1
Variable (1)
$
11,900,000
E-2
Variable (1)
$
16,740,000
E-3
Variable (1)
$
12,732,000
F-1
Variable (1)
$
8,800,000
F-2
Variable (1)
$
8,236,000
G
Variable (1)
$
17,036,000
H
Variable (1)
$
17,035,000
J
Variable (1)
$
29,204,000
K
Variable (1)
$
17,036,000
L
Variable (1)
$
7,301,000
M
Variable (1)
$
2,434,000
N
Variable (1)
$
4,867,000
P
Variable (1)
$
4,867,000
Q
Variable (1)
$
4,868,000
S
Variable (1)
$
21,903,018
--------------------
(1) The REMIC II Remittance Rate in effect for any REMIC II Regular
Interest during any Interest Accrual Period shall equal the
Weighted
Average REMIC I Remittance Rate for such Interest Accrual Period.
As provided herein, the Trustee will elect to treat the segregated
pool
of assets consisting of the REMIC II Regular Interests as a REMIC
for federal
income tax purposes, and such segregated pool of assets will be
designated as
"REMIC III". The Class R-III Certificates will evidence the sole
class of
"residual interests" in REMIC III for purposes of the REMIC
Provisions under
federal income tax law. For federal income tax purposes, each Class
of the
Regular Interest Certificates (exclusive of
-3-
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. The following table sets forth the Class designation,
Pass-Through Rate
and original Class Principal Balance for each Class of the Regular
Interest
Certificates.
Class
Original Class
Designation of Regular
Pass-Through Rate of Regular
Principal Balance of Regular
Interest Certificate Classes
Interest Certificate Classes
Interest Certificate Classes
----------------------------
----------------------------
----------------------------
Class A-1
4.590% per annum
$
70,000,000
Class A-2
4.821% per annum
$
551,000,000
Class A-3
4.912% per annum
$
81,000,000
Class A-4
4.998% per annum
$
304,700,000
Class A-AB
5.007% per annum
$
76,000,000
Class A-5
Variable(1)
$
470,704,000
Class A-J
Variable (1)
$
121,684,000
Class B
Variable (1)
$
13,941,000
Class C
Variable (1)
$
29,204,000
Class D
Variable (1)
$
38,939,000
Class E
Variable (1)
$
41,372,000
Class F
Variable (1)
$
17,036,000
Class G
Variable (1)
$
17,036,000
Class H
Variable (1)
$
17,035,000
Class J
Variable (1)
$
29,204,000
Class K
Variable (1)
$
17,036,000
Class L
Variable (1)
$
7,301,000
Class M
Variable (1)
$
2,434,000
Class N
Variable (1)
$
4,867,000
Class P
Variable (1)
$
4,867,000
Class Q
Variable (1)
$
4,868,000
Class S
Variable (1)
$
21,903,018
Class X-CL
Variable (1)
(2)
Class X-CP
Variable (1)
(3)
----------------------
(1) The respective Pass-Through Rates for the Class A-5, 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 X-CL
and
Class X-CP Certificates will, in the case of each of those Classes,
be
a variable rate per annum calculated in accordance with the
definition
of "Pass-Through Rate".
(2) The Class X-CL Certificates will not have a Class Principal
Balance and
will not entitle their Holders to receive distributions of
principal.
The Class X-CL Certificates will have a Class Notional Amount which
will be equal to the aggregate of the Component Notional Amounts of
the
Class X-CL REMIC III
-4-
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-CL REMIC III Components from time
to
time.
(3) The Class X-CP Certificates will not have a Class Principal
Balance and
will not entitle their Holders to receive distributions of
principal.
The Class X-CP Certificates will have a Class Notional Amount which
will be equal to the aggregate of the Component Notional Amounts of
the
Class X-CP REMIC III Components from time to time. As more
specifically
provided herein, interest in respect of the Class X-CP Certificates
will consist of the aggregate amount of interest accrued on the
respective Component Notional Amounts of the Class X-CP REMIC III
Components from time to time.
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 $1,942,131,019.
There exists one Trust Mortgage Loan (the "Macquarie DDR Portfolio
II
Trust Mortgage Loan"), with a Cut-off Date Balance of $157,250,000,
that is
evidenced by a Mortgage Note designated as Promissory Note (Fixed
Rate) and
dated March 9, 2005 and is, together with the one other mortgage
loan that will
not be part of the Trust Fund (such other mortgage loan, the
"Macquarie DDR
Portfolio II Non-Trust Mortgage Loan"), secured on a collective
basis by the
same Mortgage encumbering the properties collectively identified on
the Trust
Mortgage Loan Schedule as Macquarie DDR Portfolio II (collectively,
the
"Macquarie DDR Portfolio II Mortgaged Property"). The Macquarie DDR
Portfolio II
Non-Trust Mortgage Loan has an unpaid principal balance as of the
Cut-off Date
of $26,450,000, is evidenced by a Mortgage Note designated as
Promissory Note
(Floating Rate) and dated March 9, 2005 and is, as of the Closing
Date, held by
the UBS Mortgage Loan Seller. The Macquarie DDR Portfolio II Trust
Mortgage Loan
and the Macquarie DDR Portfolio II Non-Trust Mortgage Loan together
constitute
the "Macquarie DDR Portfolio II Loan Combination." The relative
rights of the
respective lenders in respect of the Macquarie DDR Portfolio II
Loan Combination
are set forth in a co-lender agreement dated as of March 9, 2005
(the "Macquarie
DDR Portfolio II Co-Lender Agreement"), between the holder of the
Mortgage Note
for the Macquarie DDR Portfolio II Trust Mortgage Loan and the
holder of the
Mortgage Note for the Macquarie DDR Portfolio II Non-Trust Mortgage
Loan. From
and after the Closing Date, the entire Macquarie DDR Portfolio II
Loan
Combination is to be serviced and administered in accordance with
this
Agreement.
There exists one Trust Mortgage Loan (the "Bay Colony Trust
Mortgage
Loan"), with a Cut-off Date Balance of $145,000,000, that is
evidenced by a
Mortgage Note designated as Note A and is, together with two (2)
other mortgage
loans that will not be part of the Trust Fund (such two (2) other
mortgage
loans, the "Bay Colony Non-Trust Mortgage Loans"), secured on a
collective basis
by the same Mortgage encumbering the property identified on the
Trust Mortgage
Loan Schedule as Bay Colony Corporate Center (the "Bay Colony
Mortgaged
Property"). The Bay Colony Non-Trust Mortgage Loans consist of: (i)
one mortgage
loan (the "Bay Colony Note B1 Non-Trust Mortgage Loan") that has an
unpaid
principal balance as of the Cut-off Date of $27,500,000, is
evidenced by a
Mortgage Note designated as Note B1 and is, as of the Closing Date,
held by
Metropolitan Life Insurance Company; and (ii) one mortgage loan
(the "Bay Colony
Note B2 Non-Trust Mortgage Loan")
-5-
that has an unpaid principal balance as of the Cut-off Date of
$27,500,000, is
evidenced by a Mortgage Note designated as Note B2 and is, as of
the Closing
Date, held by Metropolitan Life Insurance Company. The Bay Colony
Trust Mortgage
Loan and the Bay Colony Non-Trust Mortgage Loans collectively
constitute the
"Bay Colony Loan Combination". The relative rights of the
respective lenders in
respect of the Bay Colony Loan Combination are set forth in a
co-lender
agreement dated as of April 18, 2005 (as amended, restated,
supplemented or
otherwise modified from time to time, the "Bay Colony Co-Lender
Agreement"),
among the holder of the Mortgage Note for the Bay Colony Trust
Mortgage Loan and
the respective holders of the Mortgage Notes for the Bay Colony
Non-Trust
Mortgage Loans. From and after the Closing Date, the entire Bay
Colony Loan
Combination is to be serviced and administered in accordance with
this
Agreement.
There exists another Trust Mortgage Loan (the "Boulevard Shops
Trust
Mortgage Loan"), with a Cut-off Date Balance of $11,000,000, that
is evidenced
by a Mortgage Note designated as Note A and is, together with one
(1) other
mortgage loan that will not be part of the Trust Fund (such other
mortgage loan,
the "Boulevard Shops Non-Trust Mortgage Loan"), secured on a
collective basis by
the same Mortgage encumbering the property identified on the Trust
Mortgage Loan
Schedule as Boulevard Shops (the "Boulevard Shops Mortgaged
Property"). The
Boulevard Shops Non-Trust Mortgage Loan has an unpaid principal
balance as of
the Cut-off Date of $500,000, is evidenced by a Mortgage Note
designated as Note
B and is, as of the Closing Date, held by an Affiliate of the
Depositor. The
Boulevard Shops Trust Mortgage Loan and the Boulevard Shops
Non-Trust Mortgage
Loan together constitute the "Boulevard Shops Loan Combination".
The relative
rights of the respective lenders in respect of the Boulevard Shops
Loan
Combination are set forth in a co-lender agreement dated as of
April 11, 2005
(as amended, restated, supplemented or otherwise modified from time
to time, the
"Boulevard Shops Co-Lender Agreement"), between the holder of the
Mortgage Note
for the Boulevard Shops Trust Mortgage Loan and the holder of the
Mortgage Note
for the Boulevard Shops Non-Trust Mortgage Loan. From and after the
Closing
Date, the entire Boulevard Shops Loan Combination is to be serviced
and
administered in accordance with this Agreement.
There exists another Trust Mortgage Loan (the "Smoky Hill Trust
Mortgage Loan"), with a Cut-off Date Balance of $3,650,000, that is
evidenced by
a Mortgage Note designated as Note A and is, together with one (1)
other
mortgage loan that will not be part of the Trust Fund (such other
mortgage loan,
the "Smoky Hill Non-Trust Mortgage Loan"), secured on a collective
basis by the
same Mortgage encumbering the property identified on the Trust
Mortgage Loan
Schedule as Smoky Hill (the "Smoky Hill Mortgaged Property"). The
Smoky Hill
Non-Trust Mortgage Loan has an unpaid principal balance as of the
Cut-off Date
of $228,750, is evidenced by a Mortgage Note designated as Note B
and is, as of
the Closing Date, held by an Affiliate of the Depositor. The Smoky
Hill Trust
Mortgage Loan and the Smoky Hill Non-Trust Mortgage Loan together
constitute the
"Smoky Hill Loan Combination". The relative rights of the
respective lenders in
respect of the Smoky Hill Loan Combination are set forth in a
co-lender
agreement dated as of April 11, 2005 (as amended, restated,
supplemented or
otherwise modified from time to time, the "Smoky Hill Co-Lender
Agreement"),
between the holder of the Mortgage Note for the Smoky Hill Trust
Mortgage Loan
and the holder of the Mortgage Note for the Smoky Hill Non-Trust
Mortgage Loan.
From and after the Closing Date, the entire Smoky Hill Loan
Combination is to be
serviced and administered in accordance with this Agreement.
There exists another Trust Mortgage Loan (the "Dayton Mall Shoppes
Trust Mortgage Loan"), with a Cut-off Date Balance of $3,942,000,
that is
evidenced by a Mortgage Note designated as Note A and is, together
with one (1)
other mortgage loan that will not be part of the Trust Fund (such
-6-
other mortgage loan, the "Dayton Mall Shoppes Non-Trust Mortgage
Loan"), secured
on a collective basis by the same Mortgage encumbering the property
identified
on the Trust Mortgage Loan Schedule as Dayton Mall Shoppes (the
"Dayton Mall
Shoppes Mortgaged Property"). The Dayton Mall Shoppes Non-Trust
Mortgage Loan
has an unpaid principal balance as of the Cut-off Date of $314,000,
is evidenced
by a Mortgage Note designated as Note B and is, as of the Closing
Date, held by
an Affiliate of the Depositor. The Dayton Mall Shoppes Trust
Mortgage Loan and
the Dayton Mall Shoppes Non-Trust Mortgage Loan together constitute
the "Dayton
Mall Shoppes Loan Combination". The relative rights of the
respective lenders in
respect of the Dayton Mall Shoppes Loan Combination are set forth
in a co-lender
agreement dated as of April 11, 2005 (as amended, restated,
supplemented or
otherwise modified from time to time, the "Dayton Mall Shoppes
Co-Lender
Agreement"), between the holder of the Mortgage Note for the Dayton
Mall Shoppes
Trust Mortgage Loan and the holder of the Mortgage Note for the
Dayton Mall
Shoppes Non-Trust Mortgage Loan. From and after the Closing Date,
the entire
Dayton Mall Shoppes Loan Combination is to be serviced and
administered in
accordance with this Agreement.
Capitalized terms used but not otherwise defined in this
Preliminary
Statement have the respective meanings assigned thereto in Section
1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal
Agent hereby agree, in each case, as follows:
-7-
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.
"ABN AMRO" shall mean ABN AMRO Bank N.V. or its successor in
interest.
"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.
-8-
"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 the Trust Fund within the meaning of Treasury
regulations section
1.856-6(b)(1), which shall be the first day on which the Trust Fund
is treated
as the owner of such REO Property or an interest therein for
federal income tax
purposes.
"Actual/360 Basis" shall mean the accrual of interest calculated on
the
basis of the actual number of days elapsed during any interest
accrual period in
a year assumed to consist of 360 days.
"Additional Designated Servicing Information" shall have the
meaning
assigned thereto in Section 8.15(a).
"Additional Information" shall have the meaning assigned thereto in
Section 4.02(a).
"Additional Interest" shall mean, with respect to any ARD Mortgage
Loan
after its Anticipated Repayment Date, 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 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, 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, 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),
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
-9-
Interest, as the case may be, immediately prior to the Distribution
Date that
corresponds to such Interest Accrual Period; provided that, if the
subject
Interest Accrual Period ends during (x) January of 2006 or any year
thereafter
that is not a leap year or (y) February of 2006 or any year
thereafter, 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; and provided, further, that, if the subject
Interest
Accrual Period ends during March of 2006 or any year thereafter,
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.
"Adjusted Principal Distribution Amount" shall mean, for any
Distribution Date, an amount equal to the Principal Distribution
Amount for such
Distribution Date, plus all amounts added to such Principal
Distribution Amount
pursuant to Section 1.03(c) for such Distribution Date, minus all
amounts
subtracted from such Principal Distribution Amount pursuant to
Section 1.03(b)
for such Distribution Date.
"Adjusted REMIC II Remittance Rate" shall mean, 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.
"Administrative Cost Rate" shall mean, with respect to each 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: (i) with respect to any Class of
Certificates, as of any date of determination, the qualification,
downgrade or
withdrawal of any rating then assigned to such Class of
Certificates by either
Rating Agency; and (ii) with respect to any class of Macquarie DDR
Portfolio II
Non-Trust Mortgage Loan Securities, as of any date of
determination, the
qualification, downgrade or withdrawal of any rating then assigned
to such
securities by either Rating Agency or by S&P.
-10-
"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 Accountants' Report" shall have the meaning assigned
thereto in
Section 3.14.
"Annual Performance Certification" shall have the meaning assigned
thereto in Section 3.13.
"Anticipated Repayment Date" shall mean, with respect to any ARD
Mortgage Loan, 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 Trust Mortgage Loan or 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 Trust Mortgage Loan, REO Trust
Mortgage Loan
or 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 the
Fiscal Agent, all unpaid interest on such Required Appraisal Loan
through the
most recent Due Date prior to the date of calculation (exclusive of
any portion
thereof that represents Additional Interest and/or Default
Interest), (iii) all
accrued and unpaid Special Servicing Fees, Liquidation Fees and
Workout Fees in
respect of such Required Appraisal Loan, (iv) all related
unreimbursed Advances
made by or on behalf of (plus all accrued interest on such Advances
payable to)
the Master Servicer and/or any other party hereto with respect to
such Required
Appraisal Loan, (v) any other unpaid items that could become
Additional Trust
Fund Expenses in respect of such Required Appraisal Loan, (vi) all
currently due
and unpaid real estate taxes and assessments, insurance premiums
and, if
applicable, ground rents, and any unfunded improvement or other
applicable
reserves, in respect of the related Mortgaged Property or REO
Property, as the
case may be (in each case, net of any amounts escrowed with the
Master Servicer
or the Special Servicer for such items) and (vii) if applicable, in
the case of
the Macquarie DDR Portfolio II Loan Combination, to the extent
known to the
Special Servicer, any and all interest accrued on delinquency
advances
comparable to P&I Advances made in respect of the Macquarie DDR
Portfolio II
Non-Trust Mortgage Loan (or any
-11-
successor REO Mortgage Loan with respect thereto) that is payable
under the
Macquarie DDR Portfolio II Non-Trust Mortgage Loan Securitization
Agreement;
over (b) the Required Appraisal Value. Notwithstanding the
foregoing, if (i) any
Trust Mortgage Loan or 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 Trust Mortgage Loan or
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 Trust Mortgage Loan or
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.
Each Appraisal Reduction Amount shall be reduced to zero as of the
date
the subject Trust Mortgage Loan or Loan Combination, as applicable,
ceases to be
a Required Appraisal Loan, and no Appraisal Reduction Amount shall
exist as to
any Trust Mortgage Loan (or any successor REO Trust Mortgage Loan
with respect
thereto) or any Loan Combination after it has been paid in full,
liquidated,
repurchased or otherwise disposed of.
Any Appraisal Reduction Amount with respect to a Loan Combination
shall
be calculated, and allocated between or among, as the case may be,
the
respective Mortgage Loans comprising the subject Loan Combination,
by the Master
Servicer pursuant to this Agreement and consistent with the related
Co-Lender
Agreement; and the related Non-Trust Mortgage Loan Noteholder(s)
shall be
entitled to rely on such calculations, and the allocations to the
subject
Non-Trust Mortgage Loan(s) or any successor REO Trust Mortgage
Loan(s) with
respect thereto, as reported to it or them, as the case may be, by
the Master
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
-12-
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.
"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
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 the 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
-13-
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, and (vi) to the extent not
included in
the amount described in clause (a)(i) of this definition, if such
Distribution Date occurs during March of 2006 or any year
thereafter, the
aggregate of the Interest Reserve Amounts transferred from the
Interest
Reserve Account to the Collection Account in respect of the
Interest
Reserve Mortgage Loans and any Interest Reserve REO Mortgage Loans
for
distribution on such Distribution Date; net of
(b) the portion of the aggregate amount described in clause (a) of
this
definition that represents one or more of the following--(i)
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 January of 2006 or any year
thereafter that
is not a leap year or during February of 2006 or any year
thereafter, the
Interest Reserve Amounts with respect to the Interest Reserve
Mortgage
Loans and any Interest Reserve REO Mortgage Loans to be withdrawn
from the
Collection Account and deposited into the Interest Reserve Account
in
respect of such Distribution Date and held for future distribution,
all
pursuant to Section 3.04(c), and (v) amounts deposited in the
Collection
Account in error;
provided that the Available Distribution Amount for the Final
Distribution Date
shall consist of all amounts on deposit in the Collection Account
as of the time
distributions are to be made to Certificateholders on the Final
Distribution
Date, exclusive of any portion of such amounts that are payable or
reimbursable
to any Person from the Collection Account pursuant to clauses (ii)
through (v)
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.
-14-
"Balloon Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that
is a Balloon Mortgage Loan.
"Bay Colony Change of Control Event" shall mean the event that
occurs
when: (a) the aggregate outstanding principal amount of the Bay
Colony Non-Trust
Mortgage Loans or any successor REO Mortgage Loans with respect
thereto (net of
any existing Appraisal Reduction Amount with respect to the Bay
Colony Loan
Combination) is less than 27.5% of an amount equal to (i) the
original aggregate
principal amount of the Bay Colony Non-Trust Mortgage Loans, minus
(ii) any
principal payments allocated to and received on the Bay Colony
Non-Trust
Mortgage Loans made by the related Mortgagor; and (b) the Bay
Colony Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto has
not been repaid in full.
"Bay Colony Co-Lender Agreement" shall have the meaning assigned
thereto in the Preliminary Statement.
"Bay Colony Collection Period" shall mean, with respect to any Bay
Colony Master Servicer Remittance Date, any Trust Master Servicer
Remittance
Date or any Distribution Date, the period commencing on the day
immediately
following the Bay Colony Determination Date in the calendar month
preceding the
calendar month in which such Bay Colony Master Servicer Remittance
Date, such
Trust Master Servicer Remittance Date or such Distribution Date, as
the case may
be, occurs (or, in the case of each of the initial Bay Colony
Master Servicer
Remittance Date, the initial Trust Master Servicer Remittance Date
and the
initial Distribution Date, commencing immediately following the
Cut-off Date)
and ending on and including the Bay Colony Determination Date in
the calendar
month in which such Bay Colony Master Servicer Remittance Date,
such Trust
Master Servicer Remittance Date or such Distribution Date, as the
case may be,
occurs.
"Bay Colony Controlling Party" shall mean the Bay Colony Directing
Lender or any representative appointed thereby, consistent with
Section 3.02(d)
of the Bay Colony Co-Lender Agreement, to exercise the rights and
powers of the
Bay Colony Directing Lender under the Bay Colony Co-Lender
Agreement or this
Agreement.
"Bay Colony Cure Rights" shall mean the cure rights granted to the
Bay
Colony Note B1 Non-Trust Mortgage Loan Noteholder under Article
VIII of the Bay
Colony Co-Lender Agreement.
"Bay Colony Custodial Account" shall mean the Loan Combination
Custodial Account created and maintained by the Master Servicer
pursuant to
Section 3.04A on behalf of the Bay Colony Noteholders, which shall
be entitled
"[NAME OF MASTER SERVICER], as Master Servicer, in trust for [NAME
OF BAY COLONY
NOTEHOLDERS], as their interests may appear".
"Bay Colony Determination Date" shall mean the "Determination Date"
under the Bay Colony Co-Lender Agreement.
"Bay Colony Directing Lender" shall mean, as of any date of
determination, the "Directing Lender" under the Bay Colony
Co-Lender Agreement.
"Bay Colony Loan Combination" shall have the meaning assigned
thereto
in the Preliminary Statement (and shall include any successor REO
Mortgage Loans
with respect to the Bay Colony Mortgage Loans).
-15-
"Bay Colony Master Servicer Remittance Date" shall mean the
"Remittance
Date" under the Bay Colony Co-Lender Agreement.
"Bay Colony Mortgage Loan" shall mean the Bay Colony Trust Mortgage
Loan or a Bay Colony Non-Trust Mortgage Loan, as applicable.
"Bay Colony Mortgaged Property" shall have the meaning assigned
thereto
in the Preliminary Statement.
"Bay Colony Non-Trust Mortgage Loan Noteholder" shall mean the
holder
(or, if applicable, the collective holders) of the Mortgage Note
for a Bay
Colony Non-Trust Mortgage Loan.
"Bay Colony Non-Trust Mortgage Loans" shall have the meaning
assigned
thereto in the Preliminary Statement.
"Bay Colony Note B1 Non-Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Bay Colony Note B1 Non-Trust Mortgage Loan Noteholder" shall mean
the
holder (or, if applicable, the collective holders) of the Mortgage
Note for the
Bay Colony Note B1 Non-Trust Mortgage Loan.
"Bay Colony Note B2 Non-Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Bay Colony Noteholders" shall mean the holder of the Mortgage Note
for
the Bay Colony Trust Mortgage Loan, together with the Bay Colony
Non-Trust
Mortgage Loan Noteholders.
"Bay Colony REO Account" shall mean the Loan Combination REO
Account
created and maintained by the Special Servicer pursuant to Section
3.16 on
behalf of the Bay Colony Noteholders, which shall be entitled
"[NAME OF SPECIAL
SERVICER], as Special Servicer, in trust for [NAME OF BAY COLONY
NOTEHOLDERS],
as their interests may appear".
"Bay Colony REO Mortgage Loan" shall mean any REO Mortgage Loan
relating to any Bay Colony REO Property.
"Bay Colony REO Property" shall mean the Bay Colony Mortgaged
Property
at such time as it becomes an REO Property hereunder.
"Bay Colony REO Trust Mortgage Loan" shall mean any REO Trust
Mortgage
Loan relating to any Bay Colony REO Property.
"Bay Colony Special Servicer" shall mean any special servicer
hereunder
responsible for special servicing the Bay Colony Loan Combination
or any related
REO Property; provided that, if such special servicer has special
servicing
responsibilities with respect to other Mortgage Loans and/or REO
Properties,
then the term "Bay Colony Special Servicer" shall refer to such
party only to
the extent of its rights, duties and obligations in respect of the
Bay Colony
Loan Combination or any related REO Property.
-16-
"Bay Colony Specially Designated Servicing Action" shall mean, with
respect to the Bay Colony Loan Combination or any related REO
Property, any of
the actions specified in clauses (i) through (vii) of the first
paragraph of
Section 3.02(a) of the Bay Colony Co-Lender Agreement.
"Bay Colony 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 4 and is, together
with the Bay
Colony Non-Trust Mortgage Loans, secured by the same Mortgage on
the Bay Colony
Mortgaged Property.
"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.
"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.
"Boulevard Shops Change of Control Event" shall mean the event that
occurs when: (a) the principal amount of the Boulevard Shops
Non-Trust Mortgage
Loan or any successor REO Mortgage Loan with respect thereto (net
of any
existing Appraisal Reduction Amount with respect to the Boulevard
Shops Loan
Combination) is less than 25.0% of the original principal amount of
the
Boulevard Shops Non-Trust Mortgage Loan; and (b) the Boulevard
Shops Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto has
not been repaid in full.
"Boulevard Shops Co-Lender Agreement" shall have the meaning
assigned
thereto in the Preliminary Statement.
"Boulevard Shops Controlling Party" shall mean the Boulevard Shops
Directing Lender or any representative appointed thereby,
consistent with
Section 3.02(d) of the Boulevard Shops Co-Lender Agreement, to
exercise the
rights and powers of the Boulevard Shops Directing Lender under the
Boulevard
Shops Co-Lender Agreement or this Agreement.
"Boulevard Shops Custodial Account" shall mean the Loan Combination
Custodial Account created and maintained by the Master Servicer
pursuant to
Section 3.04A on behalf of the Boulevard Shops Noteholders, which
shall be
entitled "[NAME OF MASTER SERVICER], as Master Servicer, in trust
for [NAME OF
BOULEVARD SHOPS NOTEHOLDERS], as their interests may appear".
"Boulevard Shops Directing Lender" shall mean, as of any date of
determination, the "Directing Lender" under the Boulevard Shops
Co-Lender
Agreement.
-17-
"Boulevard Shops Loan Combination" shall have the meaning assigned
thereto in the Preliminary Statement (and shall include any
successor REO
Mortgage Loans with respect to the Boulevard Shops Mortgage Loans).
"Boulevard Shops Mortgage Loan" shall mean the Boulevard Shops
Trust
Mortgage Loan or the Boulevard Shops Non-Trust Mortgage Loan, as
applicable.
"Boulevard Shops Mortgaged Property" shall have the meaning
assigned
thereto in the Preliminary Statement.
"Boulevard Shops Non-Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Boulevard Shops Non-Trust Mortgage Loan Noteholder" shall mean the
holder (or, if applicable, the collective holders) of the Mortgage
Note for the
Boulevard Shops Non-Trust Mortgage Loan.
"Boulevard Shops Noteholders" shall mean the holder of the Mortgage
Note for the Boulevard Shops Trust Mortgage Loan, together with the
Boulevard
Shops Non-Trust Mortgage Loan Noteholder.
"Boulevard Shops REO Account" shall mean the Loan Combination REO
Account created and maintained by the Special Servicer pursuant to
Section 3.16
on behalf of the Boulevard Shops Noteholders, which shall be
entitled "[NAME OF
SPECIAL SERVICER], as Special Servicer, in trust for [NAME OF
BOULEVARD SHOPS
NOTEHOLDERS], as their interests may appear".
"Boulevard Shops REO Mortgage Loan" shall mean any REO Mortgage
Loan
relating to any Boulevard Shops REO Property.
"Boulevard Shops REO Property" shall mean the Boulevard Shops
Mortgaged
Property at such time as it becomes an REO Property hereunder.
"Boulevard Shops REO Trust Mortgage Loan" shall mean any REO Trust
Mortgage Loan relating to the Boulevard Shops REO Property.
"Boulevard Shops Specially Designated Servicing Action" shall mean,
with respect to the Boulevard Shops Loan Combination or any related
REO
Property, any of the actions specified in clauses (i) through (xiv)
of the first
paragraph of Section 3.02(a) of the Boulevard Shops Co-Lender
Agreement.
"Boulevard Shops 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 33 and is, together
with the
Boulevard Shops Non-Trust Mortgage Loan, secured by the same
Mortgage on the
Boulevard Shops Mortgaged Property.
"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
-18-
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 2005-C2, Commercial Mortgage Pass-Through Certificates,
Series 2005-C2, as
executed by the Certificate Registrar and authenticated and
delivered hereunder
by the Authenticating Agent.
"Certificate Factor" shall mean, with respect to any Class of
Regular
Interest Certificates, as of any date of determination, a fraction,
expressed as
a decimal carried to six places, the numerator of which is the then
current
Class Principal Balance or Class Notional Amount, as the case may
be, of such
Class of Regular Interest Certificates, and the denominator of
which is the
Original Class Principal Balance or Original Class Notional Amount,
as the case
may be, of such Class of Regular Interest Certificates.
"Certificate Notional Amount" shall mean, with respect to any
Interest-Only Certificate, as of any date of determination, the
then notional
amount of such Certificate equal to the product of (a) the then
Certificate
Factor for the Class of Interest-Only Certificates to which such
Certificate
belongs, multiplied by (b) the amount specified on the face of such
Certificate
as the initial Certificate Notional Amount thereof.
"Certificate Owner" shall mean, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such
Certificate as
reflected on the books of the Depository or on the books of a
Depository
Participant or on the books of an indirect participating brokerage
firm for
which a Depository Participant acts as agent.
"Certificate Principal Balance" shall mean, with respect to any
Principal Balance Certificate, as of any date of determination, the
then
outstanding principal balance of such Certificate equal to the
product of (a)
the then Certificate Factor for the Class of Principal Balance
Certificates to
which such Certificate belongs, multiplied by (b) the amount
specified on the
face of such Certificate as the initial Certificate Principal
Balance thereof.
"Certificate Register" shall mean the register maintained pursuant
to
Section 5.02.
"Certificate Registrar" shall mean the registrar appointed pursuant
to
Section 5.02.
"Certificateholder" shall mean the Person in whose name a
Certificate
is registered in the Certificate Register, except that: (i) neither
a
Disqualified Organization nor a Disqualified Non-United States Tax
Person shall
be Holder of a Residual Interest Certificate for any purpose
hereof; and (ii)
solely for the purposes of giving any consent, approval or waiver
pursuant to
this Agreement that relates to the rights and/or obligations of any
of the
Depositor, the Master Servicer, the Special Servicer, the Fiscal
Agent or the
Trustee in its respective capacity as such, any Certificate
registered in the
name of the Depositor, the Master Servicer, the Special Servicer,
the Fiscal
Agent or the Trustee, as the case may be, or any Certificate
registered in the
name of any of its Affiliates, shall be deemed not to be
outstanding, and the
Voting Rights to which it is entitled shall not be taken into
account in
determining whether the requisite percentage of Voting Rights
necessary to
effect any such consent, approval or
-19-
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 (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 any rights under Section 6.09 with respect to any
election,
removal or replacement of the Special Servicer or the Controlling
Class
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 Certificate is registered in the name of
an Affiliate
of such Person. All references herein to "Certificateholders" shall
reflect the
rights of Certificate Owners as they may indirectly exercise such
rights through
the Depository and the Depository Participants, except as otherwise
specified
herein; provided, however, that the parties hereto shall be
required to
recognize as a "Certificateholder" only the Person in whose name a
Certificate
is registered in the Certificate Register.
"Certificateholder Reports" shall mean, collectively, the
Distribution
Date Statement, the Mortgage Pool Data Update Report, the Loan
Payoff
Notification Report and the CMSA Investor Reporting Package.
"Certifying Officer" shall have the meaning assigned thereto in
Section
8.15(d).
"Certifying Party" shall have the meaning assigned thereto in
Section
8.15(d).
"Class" shall mean, collectively, all of the Certificates bearing
the
same alphabetic or alphanumeric, as applicable, class designation.
"Class A-1 Certificate" shall mean any one of the Certificates with
a
"Class A-1" designation on the face thereof, substantially in the
form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of
"regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-2 Certificate" shall mean any one of the Certificates with
a
"Class A-2" designation on the face thereof, substantially in the
form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of
"regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-3 Certificate" shall mean any one of the Certificates with
a
"Class A-3" designation on the face thereof, substantially in the
form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of
"regular
interests" in REMIC III for purposes of the REMIC Provisions.
"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-5 Certificate" shall mean any one of the Certificates with
a
"Class A-5" 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.
-20-
"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 IX 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 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 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.
"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-5 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 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.
-21-
"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.
"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.
-22-
"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 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.
"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 36
separate "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class X-CL REMIC III Component" shall mean any of the 36 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-CL REMIC III Components shall have the following alphabetic
and
alphanumeric designations: X-CL-A-1-1; X-CL-A-1-2; X-CL-A-2-1;
X-CL-A-2-2;
X-CL-A-2-3; X-CL-A-2-4; X-CL-A-2-5; X-CL-A-3; X-CL-A-4-1;
X-CL-A-4-2;
X-CL-A-4-3; X-CL-A-AB-1; X-CL-A-AB-2; X-CL-A-5-1; X-CL-A-5-2;
X-CL-A-J; X-CL-B;
X-CL-C; X-CL-D-1; X-CL-D-2; X-CL-D-3; X-CL-E-1; X-CL-E-2; X-CL-E-3;
X-CL-F-1;
X-CL-F-2; X-CL-G; X-CL-H; X-CL-J; X-CL-K; X-CL-L; X-CL-M; X-CL-N;
X-CL-P;
X-CL-Q; and X-CL-S.
"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 25
separate "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class X-CP REMIC III Component" shall mean any of the 25 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".
-23-
"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-1-2
April 2006
X-CP-A-2-1
April 2006
X-CP-A-2-2
April 2007
X-CP-A-2-3
April 2008
X-CP-A-2-4
April 2009
X-CP-A-2-5
October 2009
X-CP-A-3
October 2009
X-CP-A-4-1
October 2009
X-CP-A-4-2
April 2010
X-CP-A-4-3
April 2011
X-CP-A-AB-1
April 2010
X-CP-A-AB-2
April 2011
X-CP-A-5-1
April 2011
X-CP-A-5-2
April 2012
X-CP-A-J
April 2012
X-CP-B
April 2012
X-CP-C
April 2012
X-CP-D-1
April 2010
X-CP-D-2
April 2011
X-CP-D-3
April 2012
X-CP-E-1
April 2009
X-CP-E-2
October 2009
X-CP-E-3
April 2010
X-CP-F-1
April 2008
X-CP-F-2
April 2009
"Clearstream" shall mean Clearstream Banking, Luxembourg or any
successor.
"Closing Date" shall mean April 20, 2005.
"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
-24-
definition does not exist, "CMSA" shall be deemed to refer to such
other
association or organization as shall be selected by the Master
Servicer and
reasonably acceptable to the Trustee, the Special Servicer and the
Controlling
Class Representative.
"CMSA 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.
"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
-25-
of the "Historical Loan Modification and Corrected Mortgage Loan
Report"
available as of the Closing Date on the CMSA Website, or such other
form for the
presentation of such information and containing such additional
information as
may from time to time be approved by the CMSA for commercial
mortgage securities
transactions generally.
"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following six electronic files: (i) CMSA Loan Setup File,
(ii)
CMSA Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA
Bond
Level File, (v) CMSA Financial File and (vi) CMSA Collateral
Summary File;
(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 Mortgage Loans,
and by the
Special Servicer with respect to Specially Serviced Mortgage Loans
and 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.
-26-
"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
"www.cmbs.org"
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 agreement governing the relative rights of the
respective holders
of the Mortgage Loans comprising such Loan Combination. The
Co-Lender Agreements
consist of the Macquarie DDR Portfolio II Co-Lender Agreement, the
Bay Colony
Co-Lender Agreement, the Boulevard Shops Co-Lender Agreement, the
Smoky Hill
Co-Lender Agreement and the Dayton Mall Shoppes Co-Lender
Agreement.
"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 2005-C2, Commercial Mortgage
Pass-Through
Certificates, Series 2005-C2".
"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
-27-
those Trust Mortgage Loans and any REO Trust Mortgage Loans that
are part of a
Loan Combination) and all related matters.
"Combination Trust Mortgage Loan" shall mean any Trust Mortgage
Loan
that constitutes part of a Loan Combination. The Combination Trust
Mortgage
Loans are the Macquarie DDR Portfolio II Trust Mortgage Loan, the
Bay Colony
Trust Mortgage Loan, the Boulevard Shops Trust Mortgage Loan, the
Smoky Hill
Trust Mortgage Loan and the Dayton Mall Shoppes Trust Mortgage
Loan.
"Commission" shall mean the 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 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 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 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.
"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 135 South
LaSalle
Street, Suite 1625, Chicago, Illinois 60603, Attention: Global
Securities and
Trust Services Group -- LB-UBS Commercial Mortgage Trust 2005-C2.
-28-
"Corrected Mortgage Loan" shall mean any Mortgage Loan that had
been a
Specially Serviced Mortgage Loan but has ceased to be such in
accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by
reason of a
Liquidation Event occurring in respect of such Mortgage Loan or the
related
Mortgaged Property's becoming an REO Property).
"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-1-" shall
be a
Corresponding REMIC II Regular Interest with respect to the Class
A-1
Certificates, 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-AB-" shall be a
Corresponding REMIC II Regular Interest with respect to the Class
A-AB
Certificates, each REMIC II Regular Interest with an alphanumeric
designation
that begins "A-5-" shall be a Corresponding REMIC II Regular
Interest with
respect to the Class A-5 Certificates, each REMIC II Regular
Interest with an
alphanumeric designation that begins "D-" shall be a Corresponding
REMIC II
Regular Interest with respect to the Class D 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 "F-" shall be a Corresponding REMIC II
Regular Interest
with respect to the Class F Certificates); (b) with respect to any
Class X-CL
REMIC 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-CL REMIC 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-CL REMIC III Component, any Class X-CP REMIC III
Component that
has the same Corresponding REMIC II Regular Interest as such Class
X-CL REMIC
III Component. If the Corresponding REMIC II Regular Interest for
any Class X-CL
REMIC III Component is not also a Corresponding REMIC II Regular
Interest for a
Class X-CP REMIC III Component, then such Class X-CL REMIC 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
-29-
$10,000,000, the entire amount of such costs and expenses, but only
in the event
such costs and expenses exceed a threshold of $25,000. In the case
of each of
clauses (i) and (ii) above in this definition, in the event the
subject costs
and expenses do not exceed the required threshold stated in the
subject clause,
the "Covered Costs" shall be $0.
"Cross-Collateralized Group" shall mean any group of
Cross-Collateralized Mortgage Loans; provided that no Loan
Combination shall
constitute a Cross-Collateralized Group.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan
that
is cross-defaulted and cross-collateralized with any other Mortgage
Loan;
provided that none of the Mortgage Loans in a Loan Combination
shall constitute
a Cross-Collateralized Mortgage Loan.
"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 April 11, 2005.
"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.
"Dayton Mall Shoppes Change of Control Event" shall mean the event
that
occurs when: (a) the principal amount of the Dayton Mall Shoppes
Non-Trust
Mortgage Loan or any successor REO Mortgage Loan with respect
thereto (net of
any existing Appraisal Reduction Amount with respect to the Dayton
Mall Shoppes
Loan Combination) is less than 25.0% of the original principal
amount of the
Dayton Mall Shoppes Non-Trust Mortgage Loan; and (b) the Dayton
Mall Shoppes
Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect
thereto has not been repaid in full.
"Dayton Mall Shoppes Co-Lender Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"Dayton Mall Shoppes Controlling Party" shall mean the Dayton Mall
Shoppes Directing Lender or any representative appointed thereby,
consistent
with Section 3.02(d) of the Dayton Mall Shoppes Co-Lender
Agreement, to exercise
the rights and powers of the Dayton Mall Shoppes Directing Lender
under the
Dayton Mall Shoppes Co-Lender Agreement or this Agreement.
"Dayton Mall Shoppes Custodial Account" shall mean the Loan
Combination
Custodial Account created and maintained by the Master Servicer
pursuant to
Section 3.04A on behalf of the Dayton Mall Shoppes Noteholders,
which shall be
entitled "[NAME OF MASTER SERVICER], as Master Servicer, in trust
for [NAME OF
DAYTON MALL SHOPPES NOTEHOLDERS], as their interests may appear".
-30-
"Dayton Mall Shoppes Directing Lender" shall mean, as of any date
of
determination, the "Directing Lender" under the Dayton Mall Shoppes
Co-Lender
Agreement.
"Dayton Mall Shoppes Loan Combination" shall have the meaning
assigned
thereto in the Preliminary Statement (and shall include any
successor REO
Mortgage Loans with respect to the Dayton Mall Shoppes Mortgage
Loans).
"Dayton Mall Shoppes Mortgage Loan" shall mean the Dayton Mall
Shoppes
Trust Mortgage Loan or the Dayton Mall Shoppes Non-Trust Mortgage
Loan, as
applicable.
"Dayton Mall Shoppes Mortgaged Property" shall have the meaning
assigned thereto in the Preliminary Statement.
"Dayton Mall Shoppes Non-Trust Mortgage Loan" shall have the
meaning
assigned thereto in the Preliminary Statement.
"Dayton Mall Shoppes Non-Trust Mortgage Loan Noteholder" shall mean
the
holder (or, if applicable, the collective holders) of the Mortgage
Note for the
Dayton Mall Shoppes Non-Trust Mortgage Loan.
"Dayton Mall Shoppes Noteholders" shall mean the holder of the
Mortgage
Note for the Dayton Mall Shoppes Trust Mortgage Loan, together with
the Dayton
Mall Shoppes Non-Trust Mortgage Loan Noteholder.
"Dayton Mall Shoppes REO Account" shall mean the Loan Combination
REO
Account created and maintained by the Special Servicer pursuant to
Section 3.16
on behalf of the Dayton Mall Shoppes Noteholders, which shall be
entitled "[NAME
OF SPECIAL SERVICER], as Special Servicer, in trust for [NAME OF
DAYTON MALL
SHOPPES NOTEHOLDERS], as their interests may appear".
"Dayton Mall Shoppes REO Mortgage Loan" shall mean any REO Mortgage
Loan relating to any Dayton Mall Shoppes REO Property.
"Dayton Mall Shoppes REO Property" shall mean the Dayton Mall
Shoppes
Mortgaged Property at such time as it becomes an REO Property
hereunder.
"Dayton Mall Shoppes REO Trust Mortgage Loan" shall mean any REO
Trust
Mortgage Loan relating to the Dayton Mall Shoppes REO Property.
"Dayton Mall Shoppes Specially Designated Servicing Action" shall
mean,
with respect to the Dayton Mall Shoppes Loan Combination or any
related REO
Property, any of the actions specified in clauses (i) through (xiv)
of the first
paragraph of Section 3.02(a) of the Dayton Mall Shoppes Co-Lender
Agreement.
"Dayton Mall Shoppes 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 67
and is,
together with the Dayton Mall Shoppes Non-Trust Mortgage Loan,
secured by the
same Mortgage on the Dayton Mall Shoppes Mortgaged Property.
-31-
"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 Non-Trust Mortgage Loan Noteholder) in respect of
any Mortgage
Loan or any successor REO Mortgage Loan with respect thereto.
"Default Interest" shall mean, with respect to any 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 Mortgage Loan (or any
successor REO
Mortgage Loan with respect thereto), at the related Mortgage Rate
(net of any
applicable Additional Interest Rate included as part of such
Mortgage Rate), and
(ii) in the case of an ARD Mortgage Loan (or any successor REO
Trust Mortgage
Loan with respect thereto) after the related Anticipated Repayment
Date, any
Additional Interest.
"Defaulting Party" shall have the meaning assigned thereto in
Section
7.01(b).
"Defeasance Certificate" shall have the meaning assigned thereto in
Section 3.20(k).
"Defeasance Collateral" shall mean, with respect to any Defeasance
Mortgage Loan, the Government Securities required or permitted to
be pledged in
lieu of prepayment pursuant to the terms thereof in order to obtain
a release of
the related Mortgaged Property.
"Defeasance Deposit Account" shall have the meaning assigned
thereto in
Section 3.04(a).
"Defeasance Mortgage Loan" shall mean any Mortgage Loan that
permits
the related Mortgagor to pledge Defeasance Collateral to the holder
of such
Mortgage Loan in connection with obtaining the release of all or
any portion of
the related Mortgaged Property (or permits the holder of such
Mortgage Loan to
require the related Mortgagor to pledge Defeasance Collateral to
the holder of
such Mortgage Loan in lieu of prepayment).
"Defeasance Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that is a Defeasance Mortgage Loan.
"Definitive Certificate" shall have the meaning assigned thereto in
Section 5.03(a).
"Definitive Non-Registered Certificate" shall mean any
Non-Registered
Certificate that has been issued as a Definitive Certificate.
"Definitive Subordinate Certificate" shall mean any Subordinate
Certificate that has been issued as a Definitive Certificate.
"Depositor" shall mean SASCO II.
"Depositor Backup Certification" shall have the meaning assigned
thereto in Section 8.15(j).
-32-
"Depository" shall mean The Depository Trust Company or any
successor
Depository hereafter named as contemplated by Section 5.03(c). The
nominee of
the initial Depository for purposes of registering those
Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depository
shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the
Uniform
Commercial Code of the State of New York and a "clearing agency"
registered
pursuant to the provisions of Section 17A of the Exchange Act.
"Depository Participant" shall mean a broker, dealer, bank or other
financial institution or other Person for whom from time to time
the Depository
effects book-entry transfers and pledges of securities deposited
with the
Depository.
"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 REO Property,
the
furnishing or rendering of services to the tenants thereof, the
management or
operation of such REO Property, the holding of such REO Property
primarily for
sale or lease, the performance of any construction work thereon or
any use of
such REO Property in a trade or business conducted by 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 REO
Property solely because the Trustee (or the Special Servicer or any
Sub-Servicer
on behalf of the Trustee) establishes rental terms, chooses
tenants, enters into
or renews leases, deals with taxes and insurance, or makes
decisions as to
repairs or capital expenditures with respect to such REO Property.
"Discount Rate" shall mean, with respect to any prepaid Trust
Mortgage
Loan or REO Trust Mortgage Loan, for purposes of allocating any
Prepayment
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
-33-
with the requirements of the Code and the regulations promulgated
thereunder and
(y) such Transfer of such Residual Interest Certificate will not be
disregarded
for United States federal income tax purposes.
"Disqualified Organization" shall mean any of the following: (i)
the
United States, any State or any political subdivision thereof, any
foreign
government, international organization, or any agency or
instrumentality of any
of the foregoing; (ii) any organization (except certain farmers'
cooperatives
described in Section 521 of the Code) that is exempt from the tax
imposed by
Chapter 1 of the Code (unless such organization is subject to the
tax imposed by
Section 511 of the Code on unrelated business income); (iii) rural
electric and
telephone cooperatives described in Section 1381 of the Code; or
(iv) any other
Person so designated by the Trustee or the Tax Administrator based
upon an
Opinion of Counsel that the holding of an Ownership Interest in a
Residual
Interest Certificate by such Person may cause the Trust Fund or any
Person
having an Ownership Interest in any Class of Certificates, other
than such
Person, to incur a liability for any federal tax imposed under the
Code that
would not otherwise be imposed but for the Transfer of an Ownership
Interest in
a Residual Interest Certificate to such Person. The terms "United
States",
"State" and "international organization" shall have the meanings
set forth in
Section 7701 of the Code or successor provisions.
"Disqualified Partnership" shall mean any domestic entity
classified as
a partnership under the Code if any of its beneficial owners are
Disqualified
Non-United States Tax Persons.
"Distributable Certificate Interest" shall mean, with respect to
any
Class of Regular Interest Certificates for any Distribution Date,
subject to
Section 4.05(b), an amount of interest equal to (a) the amount of
Accrued
Certificate Interest in respect of such Class of Certificates for
the related
Interest Accrual Period, reduced (to not less than zero) by (b)
that portion, if
any, of the Net Aggregate Prepayment Interest Shortfall for such
Distribution
Date allocated to such Class of Certificates as provided below. For
purposes of
the foregoing, the portion of the Net Aggregate Prepayment Interest
Shortfall,
if any, for each Distribution Date that is allocable to each Class
of Regular
Interest Certificates shall equal the lesser of (A) the amount of
Accrued
Certificate Interest with respect to the subject Class of Regular
Interest
Certificates for the related Interest Accrual Period and (B) the
product of (1)
the entire amount of such Net Aggregate Prepayment Interest
Shortfall,
multiplied by (2) a fraction, the numerator of which is equal to
the amount of
Accrued Certificate Interest with respect to the subject Class of
Regular
Interest Certificates for the related Interest Accrual Period, and
the
denominator of which is equal to the aggregate amount of Accrued
Certificate
Interest with respect to all the Classes of Regular Interest
Certificates for
the related Interest Accrual Period.
"Distributable Component Interest" shall mean, with respect to any
REMIC III Component of either Class of Interest-Only Certificates
for any
Distribution Date, subject to Section 4.05(b), an amount of
interest equal to
(a) the amount of Accrued Component Interest in respect of such
REMIC III
Component for the related Interest Accrual Period, reduced (to not
less than
zero) by (b) the product of (i) the entire portion of any Net
Aggregate
Prepayment Interest Shortfall for such Distribution Date that was
allocated to
such Class of Interest-Only Certificates in accordance with the
definition of
"Distributable Certificate Interest", multiplied by (ii) a
fraction, the
numerator of which is the amount of any Accrued Component Interest
in respect of
such REMIC III Component for the related Interest Accrual Period,
and the
denominator of which is the amount of the Accrued Certificate
Interest in
respect of such Class of Interest-Only Certificates for the related
Interest
Accrual Period.
-34-
"Distribution Date" shall mean the date each month, commencing in
May
2005, 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.
"EDGAR" shall mean the Commission's Electronic Data Gathering,
Analysis
and Retrieval system.
"Eligible Account" shall mean any of: (i) an account maintained
with a
federal or state chartered depository institution or trust company,
the
long-term deposit or unsecured debt obligations of which are rated
at least
"Aa3" by Moody's, at least "AA-" by Fitch and, if applicable, at
least "AA-"
(or, if such depository institution or trust company has short-term
unsecured
debt obligations rated at least "A-1" by S&P, at least "A-") by
S&P (or, in the
case of either Rating Agency (or, if applicable, S&P), such
lower rating as will
not result in an Adverse Rating Event with respect to any Class of
Certificates
(or, in the case of an account that relates solely to the Macquarie
DDR
Portfolio II Loan Combination, with respect to any Class of
Certificates or any
class of Macquarie DDR Portfolio II Non-Trust Mortgage Loan
Securities) that is
rated by such Rating Agency (or, if applicable, by S&P), as
evidenced in writing
by such Rating Agency (or, if applicable, by S&P)) at any time
funds are on
deposit therein (if such funds are to be held for more than 30
days), or the
short-term deposits of which are rated at least "P-1" by Moody's,
at least "F-1"
by Fitch and, if applicable, at least "A-1" by S&P (or, in the
case of either
Rating Agency (or, if applicable, S&P), such lower rating as
will not result in
an Adverse Rating Event with respect to any Class of Certificates
(or, in the
case of an account that relates solely to the Macquarie DDR
Portfolio II Loan
Combination, with respect to any Class of Certificates or any class
of Macquarie
DDR Portfolio II Non-Trust Mortgage Loan Securities) that is rated
by such
Rating Agency (or, if applicable, by S&P), as evidenced in
writing by such
Rating Agency (or, if applicable, by S&P)) at any time funds
are on deposit
therein (if such funds are to be held for 30 days or less); or (ii)
a segregated
trust account maintained with the trust department of a federal or
state
chartered depository institution or trust company acting in its
fiduciary
capacity (which may be the Trustee), which has a combined capital
and surplus of
at least $50,000,000, is subject to supervision or examination by
federal or
state authority and, in the case of a state chartered depository
institution or
trust company, is subject
-35-
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, in the case of an account that relates
solely to the
Macquarie DDR Portfolio II Loan Combination, with respect to any
Class of
Certificates or any class of Macquarie DDR Portfolio II Non-Trust
Mortgage Loan
Securities) that is rated by either Rating Agency (or, if
applicable, S&P), as
evidenced in writing by such Rating Agency (or, if applicable, by
S&P).
Notwithstanding anything in this definition to the contrary, any
rating
requirement with respect to S&P set forth in this definition
shall only be
required if any class of Macquarie DDR Portfolio II Non-Trust
Mortgage Loan
Securities is rated by S&P.
"Environmental Assessment" shall mean a "Phase I assessment" as
described in and meeting the criteria of Chapter 5 of the Fannie
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 Mortgage
Loans
identified on Schedule IV hereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974,
as amended.
"Escrow Payment" shall mean any payment received by the Master
Servicer
or the Special Servicer for the account of any Mortgagor for
application toward
the payment of real estate taxes, assessments, insurance premiums,
ground rents
(if applicable) and other items for which an escrow has been
created in respect
of the related Mortgaged Property.
"Euroclear" shall mean The Euroclear System or any successor.
"Event of Default" shall have the meaning assigned thereto in
Section
7.01(a).
"Excess 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 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 Loan
Combination,
the portion of such Net Liquidation Proceeds
-36-
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 2005-C2,
Commercial Mortgage Pass-Through Certificates, Series 2005-C2".
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Act Reports" shall have the meaning assigned thereto in
Section 8.15(a).
"Exemption-Favored Party" shall mean any of (i) Lehman Brothers,
(ii)
any Person directly or indirectly, through one or more
intermediaries,
controlling, controlled by or under common control with Lehman
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.
"Fannie Mae" shall mean the Federal National Mortgage Association
or
any successor.
"FASB 140" shall mean the Financial Accounting Standards Board's
Statement No. 140, entitled "Accounting for Transfers and Servicing
of Financial
Assets and Extinguishment of Liabilities", issued in September
2002.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation or
any
successor.
"Final Distribution Date" shall mean the Distribution Date on which
the
final distribution is to be made with respect to the Certificates
in connection
with a termination of the Trust Fund pursuant to Article IX.
"Final Recovery Determination" shall mean a determination by the
Special Servicer with respect to any Specially Serviced Mortgage
Loan or 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 REO Property,
as the case
may be, that was the subject of a Permitted Purchase.
"Fiscal Agent" shall mean ABN AMRO, in its capacity as fiscal agent
hereunder, or any successor fiscal agent appointed as herein
provided.
"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, the Fiscal Agent, the Master
Servicer and the
Special
-37-
Servicer, and specific ratings of Fitch, Inc. herein referenced
shall be deemed
to refer to the equivalent ratings of the party so designated.
"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).
"Global Certificate" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates, either the related Rule
144A Global
Certificate or any 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.
"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 Non-Trust Mortgage Loan Noteholder
-38-
and any and all Affiliates thereof, (ii) does not have any direct
financial
interest in or any material indirect financial interest in any of
the Depositor,
any Mortgage Loan Seller, the Master Servicer, the Special
Servicer, any
Controlling Class Certificateholder, any Non-Trust Mortgage Loan
Noteholder, or
any Affiliate thereof, and (iii) is not connected with the
Depositor, any
Mortgage Loan Seller, the Master Servicer, the Special Servicer,
any Controlling
Class Certificateholder, any Non-Trust Mortgage Loan Noteholder or
any Affiliate
thereof as an officer, employee, promoter, underwriter, trustee,
partner,
director or Person performing similar functions; provided, however,
that a
Person shall not fail to be Independent of the Depositor, a
Mortgage Loan
Seller, the Master Servicer, the Special Servicer, a Controlling
Class
Certificateholder, a Non-Trust Mortgage Loan Noteholder or any
Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of
any class of
securities issued by the Depositor, such Mortgage Loan Seller, the
Master
Servicer, the Special Servicer, such Controlling Class
Certificateholder, such
Non-Trust Mortgage Loan Noteholder or any Affiliate thereof, as the
case may be;
provided that such ownership constitutes less than 1% of the total
assets owned
by such Person.
"Independent Appraiser" shall mean an Independent professional real
estate appraiser who (i) is a member in good standing of the
Appraisal
Institute, (ii) if the state in which the subject Mortgaged
Property is located
certifies or licenses appraisers, is certified or licensed in such
state, and
(iii) has a minimum of five years experience in the subject
property type and
market.
"Independent Contractor" shall mean: (a) any Person that would be
an
"independent contractor" with respect to REMIC I (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
Loan Combination is involved, to the related 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 Loan Combination is involved, by the related 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 REO Property
by such
Person, subject to any conditions therein specified, that is
otherwise herein
contemplated to be taken by an Independent Contractor, will not
cause such REO
Property to cease to qualify as "foreclosure property" within the
meaning of
Section 860G(a)(8) of the Code for purposes of Section 860D(a) of
the Code, or
cause any income realized in respect of such REO Property to fail
to qualify as
Rents from Real Property, due to such Person's failure to be
treated as an
Independent Contractor.
"Initial 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.
-39-
"Initial Deposit Mortgage Loans" shall mean each of the Trust
Mortgage
Loans, if any, identified on Schedule V hereto.
"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).
"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, the Fiscal Agent, any
Certificateholder, or any
Affiliate of any such Person.
"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
-40-
Trustee, in trust for the registered holders of LB-UBS Commercial
Mortgage Trust
2005-C2, Commercial Mortgage Pass-Through Certificates, Series
2005-C2".
"Interest Reserve Amount" shall mean, with respect to each Interest
Reserve Mortgage Loan and Interest Reserve REO Mortgage Loan, for
any
Distribution Date that occurs during February of 2006 or February
of any year
thereafter or that occurs during January of 2006 or January of any
year
thereafter that is not a leap year, an amount equal to one day's
interest
accrued at the related Mortgage Rate (net of the related Additional
Interest
Rate, in the case of an ARD Trust Mortgage Loan or any successor
REO Trust
Mortgage Loan with respect thereto after the related Anticipated
Repayment Date)
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.
"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 Loan Combination, on each related Loan Combination
Determination
Date) and commences immediately following the end of the prior such
period (or,
in the case of the first such period, commences on the Closing
Date); (b) with
respect to any investment of funds in 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
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,
-41-
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 Lehman 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 April 11,
2005, between the
Lehman Mortgage Loan Seller and the Depositor.
"Legal Final Distribution Date" shall mean, with respect to any
Loan
REMIC Regular Interest, any REMIC I Regular Interest, any REMIC II
Regular
Interest, any Class of Regular Interest Certificates or any
particular REMIC III
Component of a Class of Interest-Only Certificates, the "latest
possible
maturity date" thereof, calculated solely for purposes of
satisfying Treasury
regulations section 1.860G-1(a)(4)(iii).
"Lehman Brothers" shall mean Lehman Brothers Inc. or its successor
in
interest.
"Lehman Mortgage Loan Seller" shall mean LBHI.
"Lehman Trust Mortgage Loan" shall mean any Trust Mortgage Loan
transferred by the Lehman Mortgage Loan Seller to the Depositor,
pursuant to the
LBHI/Depositor Mortgage Loan Purchase Agreement.
"Lennar" shall mean Lennar Partners, Inc. (whose name is expected
to
change in May 2005 to LNR Partners, Inc.) or its successor in
interest.
"Liquidation Event" shall mean: (a) with respect to any Mortgage
Loan,
any of the following events--(i) such Mortgage Loan is paid in
full, (ii) a
Final Recovery Determination is made with respect to such Mortgage
Loan, or
(iii) in the case of a Trust Mortgage Loan, such Mortgage Loan
-42-
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 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 REO Property pursuant
to, Section
3.11(c).
"Liquidation Fee Rate" shall mean, with respect to each Specially
Serviced Mortgage Loan or 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 Loan Combination or any related REO
Property,
collected on behalf of the Trust and/or the related 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.
"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 Macquarie
DDR Portfolio II Loan Combination, the Bay Colony Loan Combination,
the
Boulevard Shops Loan Combination, the Smoky Hill Loan Combination
and the Dayton
Mall Shoppes Loan Combination.
"Loan Combination Change of Control Event" shall mean: (a) with
respect
to the Bay Colony Loan Combination, the Bay Colony Change of
Control Event; (b)
with respect to the Boulevard Shops Loan Combination, the Boulevard
Shops Change
of Control Event; (c) with respect to the Smoky Hill Loan
Combination, the Smoky
Hill Change of Control Event; and (d) with respect to the Dayton
Mall Shoppes
Loan Combination, the Dayton Mall Shoppes Change of Control Event.
There shall
not be any Loan Combination Change of Control Event with respect to
the
Macquarie DDR Portfolio II Loan Combination.
"Loan Combination Collection Period" shall mean, individually and
collectively, as applicable in the context used, (i) the Macquarie
DDR Portfolio
II Collection Period with respect to the
-43-
Macquarie DDR Portfolio II Loan Combination and all related
matters, (ii) the
Bay Colony Collection Period with respect to the Bay Colony Loan
Combination and
all related matters, and (iii) the Trust Collection Period with
respect to each
other Loan Combination and all related matters.
"Loan Combination Controlling Party" shall mean: (a) with respect
to
the Macquarie DDR Portfolio II Loan Combination, the Macquarie DDR
Portfolio II
Controlling Party; (b) with respect to the Bay Colony Loan
Combination, the Bay
Colony Controlling Party; (c) with respect to the Boulevard Shops
Loan
Combination, the Boulevard Shops Controlling Party; (d) with
respect to the
Smoky Hill Loan Combination, the Smoky Hill Controlling Party; and
(e) with
respect to the Dayton Mall Shoppes Loan Combination, the Dayton
Mall Shoppes
Controlling Party.
"Loan Combination Custodial Account" shall mean, with respect to
each
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 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 Macquarie
DDR Portfolio
II Determination Date with respect to the Macquarie DDR Portfolio
II Loan
Combination and all related matters, (ii) the Bay Colony
Determination Date with
respect to the Bay Colony Loan Combination and all related matters,
and (iii)
the Trust Determination Date with respect to each other Loan
Combination and all
related matters.
"Loan Combination Directing Lender" shall mean: (a) with respect to
the
Macquarie DDR Portfolio II Loan Combination, the Macquarie DDR
Portfolio II
Directing Lender; (b) with respect to the Bay Colony Loan
Combination, the Bay
Colony Directing Lender; (c) with respect to the Boulevard Shops
Loan
Combination, the Boulevard Shops Directing Lender; (d) with respect
to the Smoky
Hill Loan Combination, the Smoky Hill Directing Lender; and (e)
with respect to
the Dayton Mall Shoppes Loan Combination, the Dayton Mall Shoppes
Directing
Lender.
"Loan Combination Master Servicer Remittance Date" shall mean,
individually and collectively, as applicable in the context used,
(i) the
Macquarie DDR Portfolio II Master Servicer Remittance Date with
respect to the
Macquarie DDR Portfolio II Loan Combination and all related
matters, (ii) the
Bay Colony Master Servicer Remittance Date with respect to the Bay
Colony Loan
Combination and all related matters, and (iii) the Trust Master
Servicer
Remittance Date with respect to each other Loan Combination and all
related
matters.
"Loan Combination REO Account" shall mean, with respect to each
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 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".
"Loan Combination Servicing Reports" shall mean, with respect to
each
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,
-44-
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 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
Administrative
Cost Rate for such corresponding Trust Mortgage Loan (or any
successor REO Trust
Mortgage Loan with respect thereto); 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
-45-
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 Administrative Cost Rate for the corresponding Trust Mortgage
Loan (or any
successor REO Trust Mortgage Loan with respect thereto).
"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
2005-C2, Commercial Mortgage Pass-Through Certificates, Series
2005-C2, 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(l);
(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(k);
(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(j), plus (B) the
-46-
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).
"Macquarie DDR Portfolio II Co-Lender Agreement" shall have the
meaning
assigned thereto in the Preliminary Statement.
"Macquarie DDR Portfolio II Collection Period" shall mean, with
respect
to any Distribution Date, any Macquarie DDR Portfolio II Master
Servicer
Remittance Date or any Trust Master Servicer Remittance Date, the
period
commencing on the day immediately following the Macquarie DDR
Portfolio II
Determination Date in the calendar month preceding the month in
which such
Distribution Date, such Macquarie DDR Portfolio II Master Servicer
Remittance
Date or such Trust Master Servicer Remittance Date, as the case may
be, occurs
(or, in the case of each of the initial Distribution Date, the
initial Macquarie
DDR Portfolio II Master Servicer Remittance Date and the initial
Trust Master
Servicer Remittance Date, commencing immediately following the
Cut-off Date) and
ending on and including the Macquarie DDR Portfolio II
Determination Date in the
calendar month in which such Distribution Date, such Macquarie DDR
Portfolio II
Master Servicer Remittance Date or such Trust Master Servicer
Remittance Date,
as the case may be, occurs.
"Macquarie DDR Portfolio II Controlling Party" shall mean the
Macquarie
DDR Portfolio II Directing Lender or any representative appointed
thereby,
consistent with Section 3.02(d) of the Macquarie DDR Portfolio II
Co-Lender
Agreement, to exercise the rights and powers of the Macquarie
Portfolio II
Directing Lender under the Macquarie DDR Portfolio II Co-Lender
Agreement or
this Agreement.
"Macquarie DDR Portfolio II Custodial Account" shall mean the Loan
Combination Custodial Account created and maintained by the Master
Servicer
pursuant to Section 3.04A on behalf of the Macquarie DDR Portfolio
II
Noteholders, which shall be entitled "[NAME OF MASTER SERVICER], as
Master
Servicer, in trust for [NAMES OF MACQUARIE DDR PORTFOLIO II
NOTEHOLDERS], as
their interests may appear".
"Macquarie DDR Portfolio II Determination Date" shall mean the "Due
Date" under the Macquarie DDR Portfolio II Co-Lender Agreement.
"Macquarie DDR Portfolio II Directing Lender" shall mean the
"Directing
Lender" under the Macquarie DDR Portfolio II Co-Lender Agreement.
-47-
"Macquarie DDR Portfolio II Loan Combination" shall have the
meaning
assigned thereto in the Preliminary Statement (and shall include
any successor
REO Mortgage Loans with respect to the Macquarie DDR Portfolio II
Mortgage
Loans).
"Macquarie DDR Portfolio II Master Servicer Remittance Date" shall
mean
the "Remittance Date" under the Macquarie DDR Portfolio II
Co-Lender Agreement.
"Macquarie DDR Portfolio II Mortgage Loan" shall mean the Macquarie
DDR
Portfolio II Trust Mortgage Loan or the Macquarie DDR Portfolio II
Non-Trust
Mortgage Loan, as applicable.
"Macquarie DDR Portfolio II Mortgaged Property" shall have the
meaning
assigned thereto in the Preliminary Statement.
"Macquarie DDR Portfolio II Non-Trust Mortgage Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"Macquarie DDR Portfolio II Non-Trust Mortgage Loan Noteholder"
shall
mean the holder of the Mortgage Note for the Macquarie DDR
Portfolio II
Non-Trust Mortgage Loan.
"Macquarie DDR Portfolio II Non-Trust Mortgage Loan Securities"
shall
mean any securities evidencing an interest in, or secured by, the
Macquarie DDR
Portfolio II Non-Trust Mortgage Loan or any successor REO Mortgage
Loan with
respect thereto.
"Macquarie DDR Portfolio II Non-Trust Mortgage Loan Securitization
Agreement" shall mean any agreement governing the securitization of
the
Macquarie DDR Portfolio II Non-Trust Mortgage Loan or any successor
REO Mortgage
Loan with respect thereto.
"Macquarie DDR Portfolio II Non-Trust Mortgage Loan Securitization
Trust" shall mean any commercial mortgage securitization trust
similar to the
commercial mortgage securitization trust contemplated by this
Agreement, that
from time to time holds the Macquarie DDR Portfolio II Non-Trust
Mortgage Loan
or any successor REO Mortgage Loan with respect thereto.
"Macquarie DDR Portfolio II Noteholders" shall mean the holder of
the
Mortgage Note for the Macquarie DDR Portfolio II Trust Mortgage
Loan, together
with the Macquarie DDR Portfolio II Non-Trust Mortgage Loan
Noteholder.
"Macquarie DDR Portfolio II REO Account" shall mean the Loan
Combination REO Account created and maintained by the Special
Servicer pursuant
to Section 3.16 on behalf of the Macquarie DDR Portfolio II
Noteholders, which
shall be entitled "[NAME OF SPECIAL SERVICER], as Special Servicer,
in trust for
[NAMES OF MACQUARIE DDR PORTFOLIO II NOTEHOLDERS], as their
interests may
appear".
"Macquarie DDR Portfolio II REO Mortgage Loan" shall mean any REO
Mortgage Loan relating to any Macquarie DDR Portfolio II REO
Property.
"Macquarie DDR Portfolio II REO Property" shall mean the Macquarie
DDR
Portfolio II Mortgaged Property at such time that it becomes an
"REO Property"
hereunder.
-48-
"Macquarie DDR Portfolio II REO Trust Mortgage Loan" shall mean any
REO
Trust Mortgage Loan relating to any Macquarie DDR Portfolio II REO
Property.
"Macquarie DDR Portfolio II Specially Designated Servicing Action"
shall mean, with respect to the Macquarie DDR Portfolio II Loan
Combination or
any related REO Property, any of the actions specified in clauses
(i) through
(xiv) of the first paragraph of Section 3.02(a) of the Macquarie
DDR Portfolio
II Co-Lender Agreement.
"Macquarie DDR Portfolio II Trust Mortgage Loan" shall have the
meaning
assigned thereto in the Preliminary Statement, which mortgage loan
is identified
on the Trust Mortgage Loan Schedule by loan number 3 and is,
together with the
Macquarie DDR Portfolio II Non-Trust Mortgage Loan, secured by the
same Mortgage
on the Macquarie DDR Portfolio II Mortgaged Property.
"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 Wells Fargo, 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).
"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
-49-
respect to each Loan Combination and all related matters, and (ii)
the Trust
Master Servicer Remittance Date with respect to the Mortgage Pool
(exclusive of
the Combination Trust Mortgage Loans and any REO Trust Mortgage
Loans with
respect to the Combination Trust Mortgage Loans) and all related
matters.
"Master Servicing Fee" shall mean, with respect to each of the
Trust
Mortgage Loans, any REO Trust Mortgage Loans, the Macquarie DDR
Portfolio II
Non-Trust Mortgage Loan and any successor REO Mortgage Loan with
respect to the
Macquarie DDR Portfolio II Non-Trust Mortgage Loan, the fee
designated as such
and payable to the Master Servicer pursuant to Section 3.11(a).
There shall not
be any Master Servicing Fee with respect to the Bay Colony
Non-Trust Mortgage
Loans, the Boulevard Shops Non-Trust Mortgage Loan, the Smoky Hill
Non-Trust
Mortgage Loan and the Dayton Mall Shoppes Non-Trust Mortgage Loan
or with
respect to any successor REO Mortgage Loan in respect of any such
Non-Trust
Mortgage Loan.
"Master Servicing Fee Rate" shall mean: (a) with respect to each
Trust
Mortgage Loan (and any successor REO Trust Mortgage Loan with
respect thereto),
a rate per annum equal to the related Administrative Cost Rate
minus the Trustee
Fee Rate; (b) with respect to the Macquarie DDR Portfolio II
Non-Trust Mortgage
Loan (and any successor REO Mortgage Loan with respect thereto),
0.01% per
annum; (c) with respect to each Bay Colony Non-Trust Mortgage Loan
(and any
successor REO Mortgage Loan with respect thereto), 0.0% per annum;
and (d) with
respect to each of the Boulevard Shops Non-Trust Mortgage Loan, the
Smoky Hill
Non-Trust Mortgage Loan and the Dayton Mall Shoppes Non-Trust
Mortgage Loan (and
any successor REO Mortgage Loans with respect thereto), 0.0% per
annum.
"Material Breach" shall have the meaning assigned thereto in
Section
2.03(a).
"Material Document Defect" shall have the meaning assigned thereto
in
Section 2.03(a).
"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
he Special
Servicer (or the Master Servicer, if applicable) pursuant to
Section 3.20.
"Modified Loan" shall mean any 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
-50-
Special Servicer (at the expense of the related Mortgagor and upon
which
the Special Servicer may conclusively rely); or
(c) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impairs the security for such Mortgage Loan or
materially reduces the likelihood of timely payment of amounts due
thereon.
"Monthly Payment" shall mean, with respect to any Mortgage Loan, as
of
any Due Date, the scheduled monthly debt service payment (or, in
the case of an
ARD Mortgage Loan after its Anticipated Repayment Date, the monthly
debt service
payment required to be paid on a current basis) on such Mortgage
Loan that is
actually payable by the related Mortgagor from time to time under
the terms of
the related Mortgage Note (as such terms may be changed or modified
in
connection with a bankruptcy or similar proceeding involving the
related
Mortgagor or by reason of a modification, extension, waiver or
amendment granted
or agreed to by the Special Servicer pursuant to Section 3.20,
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 Moody's Investors Service, Inc. or its
successor
in interest. If neither such rating agency nor any successor
remains in
existence, "Moody's" shall be deemed to refer to such other
nationally
recognized statistical rating agency or other comparable Person
designated by
the Depositor, notice of which designation shall be given to the
Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, and
specific ratings
of Moody's Investors Service, Inc. herein referenced shall be
deemed to refer to
the equivalent ratings of the party so designated.
"Mortgage" shall mean, with respect to any Mortgage Loan, the
mortgage,
deed of trust, deed to secure debt or similar instrument that
secures such
Mortgage Loan and creates a lien on the related Mortgaged Property.
"Mortgage File" shall mean, with respect to any Trust Mortgage Loan
and, in the case of each Loan Combination, also with respect to
each Non-Trust
Mortgage Loan that is part of such Loan Combination, the following
documents
collectively (which, in the case of each Loan Combination, except
for the
Mortgage Notes referred to in clause (i) of this definition and any
modifications thereof referred to in clause (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 2005-C2, Commercial
Mortgage Pass-Through Certificates, Series 2005-C2" or in
blank, and further showing a complete, unbroken chain of
endorsement from the originator (if such originator is other
-51-
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 Loan Combination, a copy
of the executed Mortgage Note for each 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
2005-C2, Commercial Mortgage Pass-Through Certificates,
Series 2005-C2" (or, in the case of a Loan Combination, in
favor of "LaSalle Bank National Association, in its capacity
as trustee for the registered holders of LB-UBS Commercial
Mortgage Trust 2005-C2, Commercial Mortgage Pass-Through
Certificates, Series 2005-C2, and in its capacity as lead
lender on behalf of the [IDENTIFY RELATED 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
2005-C2, Commercial Mortgage Pass-Through Certificates,
Series 2005-C2" (or, in the case of a Loan Combination, in
favor of "LaSalle Bank National Association, in its capacity
as trustee for the registered holders of LB-UBS Commercial
Mortgage Trust 2005-C2, Commercial Mortgage Pass-Through
Certificates, Series 2005-C2, and in its capacity as lead
lender on behalf of the [IDENTIFY RELATED 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);
-52-
(vii)
an original or a copy of the Ground Lease relating to such
Trust Mortgage Loan, if any;
(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 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 2005-C2,
Commercial Mortgage Pass-Through Certificates, Series
2005-C2" (or, in the case of a Loan Combination, in favor of
"LaSalle Bank National Association, in its capacity as
trustee for the registered holders of LB-UBS Commercial
Mortgage Trust 2005-C2, Commercial Mortgage Pass-Through
Certificates, Series 2005-C2, and in its capacity as lead
lender on behalf of the [IDENTIFY RELATED 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 (iv) or clause (v) of this definition), in favor of
-53-
"LaSalle Bank National Association, in its capacity as
trustee for the registered holders of LB-UBS Commercial
Mortgage Trust 2005-C2, Commercial Mortgage Pass-Through
Certificates, Series 2005-C2" (or, in the case of a Loan
Combination, in favor of "LaSalle Bank National Association,
in its capacity as trustee for the registered holders of
LB-UBS Commercial Mortgage Trust 2005-C2, Commercial
Mortgage Pass-Through Certificates, Series 2005-C2, and in
its capacity as lead lender on behalf of the [IDENTIFY
RELATED NON-TRUST MORTGAGE LOAN NOTEHOLDER(S)]");
(xvii)
if such Trust Mortgage Loan is a 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);
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 (vii) through (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.
"Mortgage Loan Origination Documents" shall mean, with respect to
any
Trust Mortgage Loan, any of the following documents (other than any
document
that constitutes part of the Mortgage File for such Trust Mortgage
Loan), if
applicable with respect to such 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 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 Trust Mortgage Loan, (b) relates to the administration or
servicing of such
Trust Mortgage Loan, (c) is reasonably necessary for the ongoing
administration
and/or servicing of such 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 Trust
Mortgage Loan is
a Lehman Trust Mortgage Loan) or the UBS Mortgage Loan Seller (if
such Trust
Mortgage Loan is a UBS Trust Mortgage Loan), as applicable;
provided that
neither the Depositor nor the UBS Mortgage Loan Seller
-54-
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 or the UBS/Depositor Mortgage Loan
Purchase
Agreement, as applicable.
"Mortgage Loan Seller" shall mean the Lehman Mortgage Loan Seller
or
the UBS Mortgage Loan Seller, as applicable.
"Mortgage Note" shall mean the original executed note evidencing
the
indebtedness of a Mortgagor under a Mortgage Loan, together with
any rider,
addendum or amendment thereto, or any renewal, substitution or
replacement of
such note.
"Mortgage Pool" shall mean all of the Trust Mortgage Loans and any
REO Trust Mortgage Loans, collectively.
"Mortgage Pool Data Update Report" shall mean, with respect to any
Distribution Date, a report (which may be included as part of the
Distribution
Date Statement), prepared by the Trustee, containing information
regarding the
Trust Mortgage Loans as of the end of the related Collection
Period, which
report shall contain substantially the categories of information
regarding the
Trust Mortgage Loans set forth on Annexes A-1 through A-4 to the
Prospectus
Supplement (calculated, where applicable, on the basis of the most
recent
relevant information provided by the Mortgagors to the Master
Servicer or the
Special Servicer, as the case may be, and by the Master Servicer or
the Special
Servicer, as the case may be, to the Trustee), and which
information shall be
presented in tabular format substantially similar to the format
utilized on such
annexes and shall also include a loan-by-loan listing (in
descending balance
order) showing loan number, property type, location, unpaid
principal balance,
Mortgage Rate, paid-through date, maturity date, gross interest
portion of the
Monthly Payment, principal portion of the Monthly Payment, and any
Prepayment
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 and
applicable law, as such rate may be modified in accordance with
Section 3.20 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
-55-
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 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 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 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 Non-Trust
Mortgage Loan
Noteholder) with respect to any Mortgage Loan or REO Mortgage Loan,
net of any
Workout Fee or Liquidation Fee payable therefrom.
"New Lease" shall mean any lease of an 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 Loan
Combination, the
related Non-Trust Mortgage Loan Noteholder(s).
-56-
"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 the 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 Specially Serviced Trust Mortgage Loan or any
REO Trust Mortgage Loan that the Special Servicer has
determined, in accordance with the Servicing Standard, will
not be ultimately recoverable from late payments, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds, or
any other recovery on or in respect of such Specially
Serviced Trust Mortgage Loan or REO Trust Mortgage Loan, as
the case may be.
"Nonrecoverable Servicing Advance" shall mean:
(1)
any Servicing Advance previously made or proposed to be made
in respect of any Mortgage Loan or REO Property by the
Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent, which Servicing Advance such party has
determined, in its reasonable, good faith judgment, will not
be ultimately recoverable from late payments, Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds, or
any other recovery on or in respect of such Mortgage Loan
(or, if such Mortgage Loan is part of a Loan Combination, on
or in respect of such Loan Combination) or such REO
Property, as the case may be; and
(2)
any Servicing Advance previously made or proposed to be made
in respect of any Specially Serviced Mortgage Loan or REO
Property by the Master Servicer, the Special Servicer, the
Trustee or the 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 Specially
Serviced Mortgage Loan (or, if such Mortgage Loan is part of
a Loan Combination, on or in respect of such Loan
Combination) or such 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 F, Class G, Class H, Class J, Class K,
Class L,
Class M, Class N, Class P, Class Q, Class S, Class R-I, Class R-II
and Class
R-III 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.
-57-
"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 Macquarie DDR Portfolio II Non-Trust Mortgage
Loan, Bay
Colony Non-Trust Mortgage Loans, the Boulevard Shops Non-Trust
Mortgage Loan,
the Smoky Hill Non-Trust Mortgage Loan and the Dayton Mall Shoppes
Non-Trust
Mortgage Loan.
"Non-Trust Mortgage Loan Noteholder" shall mean the holder of the
Mortgage Note for a Non-Trust Mortgage Loan.
"Non-United States Tax Person" shall mean any Person other than a
United States Tax Person.
"Offering Memorandum" shall mean the Offering Memorandum dated
April
11, 2005, relating to the Class X-CL, Class F, Class G, Class H,
Class J, Class
K, Class L, Class M, Class N, Class P, Class Q and Class S
Certificates.
"Officer's Certificate" shall mean a certificate signed by a
Servicing
Officer of the Master Servicer or the Special Servicer, as the case
may be, or
by a Responsible Officer of the Trustee or the Fiscal Agent, as the
case may be,
and shall mean with respect to any other Person, a certificate
signed by any of
the Chairman of the Board, the Vice Chairman of the Board, the
President, any
Vice President or Managing Director, an Assistant Vice President or
any other
authorized officer (however denominated) or another officer
customarily
performing functions similar to those performed by any of the above
designated
officers or, with respect to a particular matter, any other officer
to whom such
matter is referred because of such officer's knowledge of and
familiarity with
the particular subject.
"Opinion of Counsel" shall mean a written opinion of counsel, who
may,
without limitation, be salaried counsel for the Depositor, the
Master Servicer
or the Special Servicer, acceptable in form and delivered to the
Trustee or any
other specified Person, as the case may be, except that any opinion
of counsel
relating to (a) the qualification of 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.
"Original Class Notional Amount" shall mean, with respect to either
Class of Interest-Only Certificates, the initial Class Notional
Amount thereof
as of the Closing Date, which shall equal $1,942,131,018, in the
case of the
Class X-CL Certificates, and $1,767,673,000, 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.
-58-
"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 the
Fiscal Agent pursuant to Section 4.03.
"Pass-Through Rate" shall mean:
(a) with respect to the Class A-1 Certificates, for any Interest
Accrual Period, 4.590% per annum;
(b) with respect to the Class A-2 Certificates, for any Interest
Accrual Period, 4.821% per annum;
(c) with respect to the Class A-3 Certificates, for any Interest
Accrual Period, 4.912% per annum;
(d) with respect to the Class A-4 Certificates, for any Interest
Accrual Period, 4.998% per annum;
(e) with respect to the Class A-AB Certificates, for any Interest
Accrual Period, 5.007% per annum;
(f) with respect to the Class A-5 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)
5.150% 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)
5.205% per annum;
(h) with respect to the Class B Certificates, for any Interest
Accrual
Period, an annual rate equal to the Weighted Average REMIC I
Remittance
Rate for such Interest Accrual Period, minus 0.323%;
(i) with respect to the Class C Certificates, for any Interest
Accrual
Period, an annual rate equal to the Weighted Average REMIC I
Remittance
Rate for such Interest Accrual Period, minus 0.304%;
(j) with respect to the Class D Certificates, for any Interest
Accrual
Period, an annual rate equal to the Weighted Average REMIC I
Remittance
Rate for such Interest Accrual Period, minus 0.264%;
(k) with respect to the Class E Certificates, for any Interest
Accrual
Period, an annual rate equal to the Weighted Average REMIC I
Remittance
Rate for such Interest Accrual Period, minus 0.195%;
-59-
(l) with respect to the Class F Certificates, for any Interest
Accrual
Period, an annual rate equal to the Weighted Average REMIC I
Remittance
Rate for such Interest Accrual Period, minus 0.100%;
(m) with respect to the Class G Certificates, for any Interest
Accrual
Period, an annual rate equal to the Weighted Average REMIC I
Remittance
Rate for such Interest Accrual Period;
(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, Class L, Class M, Class N, Class
P,
Class Q and Class S Certificates, for any Interest Accrual Period,
an
annual rate equal to the lesser of (i) the Weighted Average REMIC I
Remittance Rate for such Interest Accrual Period and (ii) 4.928%
per annum;
(q) with respect to any Class X-CL REMIC III Component, for any
Interest Accrual Period, an annual rate equal to either: (i) if
such Class
X-CL REMIC 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-CL REMIC 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-CL REMIC 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-CL REMIC 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-CL REMIC III Component's
Corresponding
REMIC II Regular Interest for such Interest Accrual Period;
(r) 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-CL REMIC III
Components for
such Interest Accrual Period, weighted on the basis of the
respective
Component Notional Amounts of the Class X-CL REMIC III Components
outstanding immediately prior to the related Distribution Date;
(s) 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
-60-
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
(t) with respect to the Class X-CP Certificates, for any Interest
Accrual Period, an annual rate equal to the weighted average
(expressed as
a percentage and rounded to six decimal places) of the respective
Pass-Through Rates applicable to the Class X-CP REMIC III
Components for
such Interest Accrual Period, weighted on the basis of the
respective
Component Notional Amounts of the Class X-CP REMIC III Components
outstanding immediately prior to the related Distribution Date;
provided
that, for reporting purposes, the Pass-Through Rate of the Class
X-CP
Certificates for each Interest Accrual Period shall be calculated
in
accordance with the Prospectus Supplement.
The Weighted Average REMIC I Remittance Rate referenced above in
this
definition is also the REMIC II Remittance Rate for each REMIC II
Regular
Interest.
"Percentage Interest" shall mean: (a) with respect to any Regular
Interest Certificate, the portion of the relevant Class evidenced
by such
Certificate, expressed as a percentage, the numerator of which is
the
Certificate Principal Balance or Certificate Notional Amount, as
the case may
be, of such Certificate as of the Closing Date, as specified on the
face
thereof, and the denominator of which is the Original Class
Principal Balance or
Original Class Notional Amount, as the case may be, of the relevant
Class; and
(b) with respect to 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 Mortgage Loan" shall mean any Corrected Mortgage Loan
and
any Mortgage Loan as to which a Servicing Transfer Event has never
occurred.
"Performing Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that is a Performing 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
-61-
the short-term deposit or debt obligations of the party
agreeing to repurchase such obligations are rated in the
highest rating category of each of Fitch, Moody's and, if
applicable, S&P (or, in the case of either Rating Agency or,
if applicable, S&P, such lower rating as will not result in
an Adverse Rating Event with respect to any Class of
Certificates or any class of Macquarie DDR Portfolio II
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;
(iii)
certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company organized
under the laws of the United States or any state thereof
(having original maturities of not more than 365 days), the
short term obligations of which are rated in the highest
rating category of each of Fitch, Moody's and, if
applicable, S&P (or, in the case of either Rating Agency or,
if applicable, S&P, such lower rating as will not result in
an Adverse Rating Event with respect to any Class of
Certificates or any class of Macquarie DDR Portfolio II
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 of Fitch, Moody's and, if applicable, S&P (or, in
the case of either Rating Agency or, if applicable, S&P,
such lower rating as will not result in an Adverse Rating
Event with respect to any Class of Certificates or any class
of Macquarie DDR Portfolio II 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 of Fitch, Moody's and, if
applicable, S&P (or, in the case of either Rating Agency or,
if applicable, S&P, such lower rating as will not result in
an Adverse Rating Event with respect to any Class of
Certificates or any class of Macquarie DDR Portfolio II
Non-Trust Mortgage Loan Securities that is rated by such
rating
-62-
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 and, if applicable, S&P, evidence of
which acceptability shall (1) in the case of either Rating
Agency or, if applicable, S&P, be evidenced in a writing by
such Rating Agency or, if applicable, S&P 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 Macquarie DDR Portfolio II Non-Trust Mortgage
Loan Securities that is rated by such rating agency, or (2)
otherwise be evidenced in a writing by each Rating Agency
and, if applicable, S&P to the Master Servicer, the Special
Servicer and the Trustee, (B) has a short-term rating of at
least "A-1" or its equivalent from each Rating 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 the
phrases "and,
if applicable, S&P" and "or, if applicable, S&P" in this
definition shall mean
that if any class of Macquarie DDR Portfolio II Non-Trust Mortgage
Loan
Securities is rated by S&P, the S&P rating shall be
applicable.
"Permitted Purchase" shall mean:
(i) the repurchase of a Lehman 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 a
Controlling Class Certificateholder, the Special Servicer, the
Master
Servicer, the Depositor or Lehman 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; or
-63-
(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.
"Permitted Transferee" shall mean any Transferee of a Residual
Interest
Certificate other than (a) a Disqualified Organization, (b) any
Person as to
whom, as determined by the Trustee (based upon an Opinion of
Counsel, obtained
at the request of the Trustee at the expense of such Person or the
Person
seeking to Transfer a Residual Interest Certificate, supporting
such
determination), the Transfer of a Residual Interest Certificate may
cause any
REMIC Pool to fail to qualify as a REMIC at any time that any
Certificate is
outstanding, (c) a Disqualified Non-United States Tax Person, (d) a
Disqualified
Partnership, or (e) a foreign permanent establishment or fixed base
(within the
meaning of any applicable income tax treaty between the United
States and any
foreign jurisdiction) of a United States Tax Person.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability
company, trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
"Plan" shall have the meaning assigned thereto in Section 5.02(c).
"Plurality Residual Interest Certificateholder" shall mean, as to
any
taxable year of any REMIC Pool, the Holder of Certificates
evidencing the
largest Percentage Interest in the related Class of Residual
Interest
Certificates.
"Pool Custodial Account" shall mean the segregated account or
accounts
created and maintained by the Master Servicer pursuant to Section
3.04(a) on
behalf of the Trustee in trust for the Certificateholders, which
shall be
entitled "[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 2005-C2, Commercial Mortgage Pass-Through
Certificates, Series
2005-C2, Pool Custodial Account".
"Pool REO Account" shall mean the segregated account or accounts
created and maintained by the Special Servicer pursuant to Section
3.16 on
behalf of the Trustee in trust for the Certificateholders, which
shall be
entitled "[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 2005-C2, Commercial Mortgage Pass-Through
Certificates, Series
2005-C2, Pool REO Account".
"Prepayment Assumption" shall mean, for purposes of determining the
accrual of original issue discount, market discount and premium, if
any, on the
Certificates for federal income tax purposes, the assumption that
no Mortgage
Loan is prepaid prior to stated maturity, except that it is assumed
that each
ARD Mortgage Loan is repaid on its Anticipated Repayment Date.
"Prepayment Consideration" shall mean any Prepayment Premium, 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
-64-
(or any successor REO Trust Mortgage Loan with respect thereto) 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
to the excess,
if any, of the Mortgage Rate for such Trust Mortgage Loan (or REO
Trust Mortgage
Loan) over the relevant Discount Rate, and further multiplied by
(z) a fraction,
the numerator of which is equal to the amount of principal to be
distributed on
such Class of YM Principal Balance Certificates on such
Distribution Date
pursuant to Section 4.01 or 9.01, as applicable, and the
denominator of which is
equal to the Adjusted Principal Distribution Amount for such
Distribution Date.
"Prepayment Interest Excess" shall mean, with respect to any
Mortgage
Loan that was subject to a Principal Prepayment in full or in part
made (or, if
resulting from the application of Insurance Proceeds or
Condemnation Proceeds,
any other early recovery of principal received) after its Due Date
in any
applicable Collection Period, any payment of interest (net of
related Master
Servicing Fees) actually collected from the related Mortgagor or
otherwise and
intended to cover interest accrued on such Principal Prepayment
during the
period from and after such Due Date (exclusive, however, of any
related
Prepayment 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).
"Prepayment Interest Shortfall" shall mean, with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or
in part made
(or, if resulting from the application of Insurance Proceeds or
Condemnation
Proceeds, any other early recovery of principal received) prior to
its Due Date
in any applicable Collection Period, the amount of interest, to the
extent not
collected from the related Mortgagor or otherwise (without regard
to any
Prepayment 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).
"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.
"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 45
Fremont Street, 2nd Floor, San Francisco, California 94105, and the
Primary
Servicing Office of the Special Servicer is located at 1601
Washington Avenue,
Suite 800, Miami Beach, Florida 33139.
"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
-65-
ceases to publish the "prime rate", then the Trustee shall select
an equivalent
publication that publishes such "prime rate"; and if such "prime
rate" is no
longer generally published or is limited, regulated or administered
by a
governmental or quasi-governmental body, then the Trustee shall
select a
comparable interest rate index. In either case, such selection
shall be made by
the Trustee in its sole discretion and the Trustee shall notify the
Fiscal
Agent, the Master Servicer, the Special Servicer and each Non-Trust
Mortgage
Loan Noteholder in writing of its selection.
"Principal Balance Certificate" shall mean any Regular Interest
Certificate (other than an Interest-Only Certificate).
"Principal Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to the aggregate (without
duplication) of the
following:
(a) the aggregate of all payments of principal (other than
Principal
Prepayments) Received by the Trust with respect to the Trust
Mortgage Loans
during the related Collection Period, in each case exclusive of any
portion
of the particular payment that represents a Late Collection of
principal
for which a P&I Advance was previously made under this
Agreement for a
prior Distribution Date or that represents the principal portion of
a
Monthly Payment due on or before the Cut-off Date or on a Due Date
subsequent to the related Collection Period;
(b) the aggregate of the principal portions of all Monthly Payments
due
in respect of the Trust Mortgage Loans for their respective Due
Dates
occurring during the related Collection Period, that were Received
by the
Trust prior to the related Collection Period;
(c) the aggregate of all Principal Prepayments Received by the
Trust on
the Trust Mortgage Loans during the related Collection Period;
(d) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds
and Insurance Proceeds Received by the Trust with respect to any
Trust
Mortgage Loans during the related Collection Period that were
identified
and applied by the Master Servicer as recoveries of principal of
such Trust
Mortgage Loans, in each case exclusive of any portion of such
proceeds that
represents a Late Collection of principal due on or before the
Cut-off Date
or for which a P&I Advance was previously made under this
Agreement for a
prior Distribution Date;
(e) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds,
Insurance Proceeds and REO Revenues Received by the Trust with
respect to
any REO Properties during the related Collection Period that were
identified and applied by the Master Servicer as recoveries of
principal of
the related REO Trust Mortgage Loans, in each case exclusive of any
portion
of such proceeds and/or revenues that represents a Late Collection
of
principal due on or before the Cut-off Date or for which a P&I
Advance was
previously made under this Agreement for a prior Distribution Date;
and
(f) the aggregate of the principal portions of all P&I Advances
made
under this Agreement with respect to the Trust Mortgage Loans and
any REO
Trust Mortgage Loans for such Distribution Date;
-66-
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 Lehman 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 24, 2005, as
supplemented by the Prospectus Supplement, relating to the
Registered
Certificates.
"Prospectus Supplement" shall mean the prospectus supplement dated
April 11, 2005, 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, in the case of an ARD Trust
Mortgage Loan (or,
in the case of an REO Property, any successor REO Trust Mortgage
Loan with
respect thereto) after its Anticipated Repayment Date, Additional
Interest), (c)
all related unreimbursed Servicing Advances with respect to such
Trust Mortgage
Loan (or REO Property), if any, together with the amount of any
Servicing
Advance (and accrued interest thereon in accordance with Section
3.11(g)) with
respect to such Trust Mortgage Loan (or REO Property) that has been
previously
reimbursed as a Nonrecoverable Advance out of general collections
of principal
on the Mortgage Pool (but only to the extent such amounts have not
been
reimbursed to the Trust), (d) all accrued and unpaid interest, if
any, in
respect of related Advances in accordance with, as applicable,
Section 3.11(g)
and/or Section 4.03(d), and (e) in the case of a repurchase by the
Depositor
pursuant to Section 2.03 or by the UBS Mortgage Loan Seller
pursuant to the
UBS/Depositor Mortgage Loan Purchase Agreement, (i) to the extent
not otherwise
included in the amount described in clause (d) of this definition,
any unpaid
Special Servicing Fees and other Additional Trust Fund Expenses
with respect to
such Trust Mortgage Loan (or REO Property), including any
-67-
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 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-J Certificates, the
Distribution
Date in April 2030; and (b) with respect to the other Classes of
Principal
Balance Certificates (exclusive of the Class S Certificates), the
Distribution
Date in April 2040.
"Rating Agency" shall mean each of Fitch and Moody's.
"Realized Loss" shall mean:
(1) with respect to each Mortgage Loan as to which a Final Recovery
Determination has been made, or with respect to any 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 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
-68-
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;
(2) with respect to each Mortgage Loan as to which any portion of
the
principal or previously accrued interest payable thereunder was
canceled in
connection with a bankruptcy or similar proceeding involving the
related
Mortgagor or a modification, extension, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant
to
Section 3.20, the amount of such principal and/or interest (other
than
Default Interest and, in the case of an ARD Mortgage Loan after its
Anticipated Repayment Date, Additional Interest) so canceled;
(3) with respect to each Mortgage Loan as to which the Mortgage
Rate
thereon has been permanently reduced and not recaptured for any
period in
connection with a bankruptcy or similar proceeding involving the
related
Mortgagor or a modification, extension, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant
to
Section 3.20, 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).
"Received by the Trust" shall mean, in the case of any Trust
Mortgage
Loan or REO Property, received by the Master Servicer or any of its
Sub-Servicers, the Special Servicer or any of its Sub-Servicers or
the Trustee,
as the case may be, in any event on behalf of the Trust.
"Record Date" shall mean, with respect to any Distribution Date,
the
last Business Day of the month immediately preceding the month in
which such
Distribution Date occurs.
"Recording/Filing Agent" shall have the meaning assigned thereto in
Section 2.01(c).
"Recovered Amount" shall have the meaning assigned thereto in
Section
1.03(c).
"Reference Rate" shall mean, with respect to any Interest Accrual
Period, the applicable rate per annum set forth on the Reference
Rate Schedule.
-69-
"Reference Rate Schedule" shall mean the list of Reference Rates
set
forth on the schedule attached hereto as Schedule VIII.
"Registered Certificate" shall mean any Certificate that has been
the
subject of registration under the Securities Act. As of the Closing
Date, the
Class A-1, Class A-2, Class A-3, Class A-4, Class A-AB, Class A-5,
Class X-CP,
Class A-J, Class B, Class C, Class D and Class E Certificates are
Registered
Certificates.
"Regular Interest Certificate" shall mean any REMIC III Certificate
other than a Class R-III Certificate.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Global Certificate" shall mean, with respect to any
Class
of Book-Entry Non-Registered Certificates offered and sold outside
of the United
States in reliance on Regulation S, one or collectively more global
Certificates
of such Class registered in the name of the Depository or its
nominee, in
definitive, fully registered form without interest coupons, each of
which
Certificates bears a Regulation S Legend.
"Regulation S Legend" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside the
United
States in reliance on Regulation S, a legend generally to the
effect that such
Certificates may not be offered, sold, pledged or otherwise
transferred in the
United States or to a United States Securities Person prior to the
applicable
Regulation S Release Date, except pursuant to an exemption from the
registration
requirements of the Securities Act.
"Regulation S Release Date" shall mean, with respect to any Class
of
Book-Entry Non-Registered Certificates offered and sold outside the
United
States in reliance on Regulation S, the date that is 40 days after
the later of
(a) the commencement of the offering of such Certificates to
Persons other than
distributors in reliance on Regulation S, and (b) the date of
closing of the
offering.
"Reimbursement Rate" shall mean the rate per annum applicable to
the
accrual of interest, compounded annually, on Servicing Advances in
accordance
with Section 3.11(g) and on P&I Advances in accordance with
Section 4.03(d),
which rate per annum is equal to the Prime Rate.
"REMIC" shall mean a "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC I" shall mean the segregated pool of assets constituting the
primary trust created hereby and to be administered hereunder with
respect to
which a separate REMIC election is to be made, and consisting of:
(i) 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
-70-
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) 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; 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 Loan) that accrues interest on a
30/360 Basis, a
rate per annum that is, for any Interest Accrual Period, equal to
(i) the
Mortgage Rate in effect for such corresponding Trust Mortgage Loan
as of the
Closing Date (without regard to any modifications, extensions,
waivers or
amendments of such corresponding Trust Mortgage Loan subsequent to
the Closing
Date), minus (ii) the Administrative Cost Rate for such
corresponding Trust
Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto);
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 Administrative Cost Rate for the
corresponding
Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect
thereto).
"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 36 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
-71-
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, with respect to any REMIC II
Regular Interest for any Interest Accrual Period, an annual rate
equal to the
Weighted Average REMIC I Remittance Rate for such Interest Accrual
Period.
"REMIC III" shall mean the segregated pool of assets consisting of
all
of the REMIC II Regular Interests conveyed in trust to the Trustee
for the
benefit of the Holders of the REMIC III Certificates, pursuant to
Section 2.11,
with respect to which a separate REMIC election is to be made.
"REMIC III Certificate" shall mean any Class A-1, Class A-2, Class
A-3,
Class A-4, Class A-AB, Class A-5, Class X-CL, Class X-CP, 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 R-III
Certificate.
"REMIC III Component" shall mean:
(a) with respect to the Class X-CL Certificates, any of the Class
X-CL
REMIC 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.
"REO Disposition" shall mean the sale or other disposition of any
REO
Property pursuant to Section 3.18.
"REO Extension" shall have the meaning assigned thereto in Section
3.16(a).
-72-
"REO Mortgage Loan" shall mean the mortgage loan (or, if a 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
Loan Combination, one of the two or more Mortgage Loans) relating
to the subject
REO Property. Each REO Mortgage Loan shall be deemed to provide for
monthly
payments of principal and/or interest equal to its Assumed Monthly
Payment and
otherwise to have the same terms and conditions as its predecessor
Mortgage Loan
(such terms and conditions to be applied without regard to the
default on such
predecessor Mortgage Loan and the acquisition of the related REO
Property as
part of the Trust Fund or, if applicable in the case of any REO
Property that
relates to a Loan Combination, on behalf of the Trust and the
related Non-Trust
Mortgage Loan Noteholder(s)). Each REO Mortgage Loan shall be
deemed to have an
initial unpaid principal balance and, if applicable hereunder, an
initial Stated
Principal Balance equal to the unpaid principal balance and Stated
Principal
Balance, respectively, of its predecessor Mortgage Loan as of the
date of the
related REO Acquisition. All Monthly Payments (other than a Balloon
Payment),
Assumed Monthly Payments (in the case of a Balloon Mortgage Loan
delinquent in
respect of its Balloon Payment) and other amounts due and owing, or
deemed to be
due and owing, in respect of the predecessor Mortgage Loan as of
the date of the
related REO Acquisition, shall be deemed to continue to be due and
owing in
respect of an REO Mortgage Loan. Amounts Received by the Trust (or,
if
applicable, received on behalf of the related 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 the related REO Property or for the reimbursement of
the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent for
other
related Servicing Advances) shall be treated: first, as a recovery
of accrued
and unpaid interest on such REO Mortgage Loan at the related
Mortgage Rate 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 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, 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 Macquarie
DDR
Portfolio II Mortgage Loans become REO Mortgage Loans, amounts
(other than Loss
of Value Payments deemed to constitute Liquidation Proceeds with
respect to any
Macquarie DDR
-73-
Portfolio II REO Trust Mortgage Loan and other than Liquidation
Proceeds
resulting from a purchase of the Trust's interest in any Macquarie
DDR Portfolio
II REO Property pursuant to or as contemplated by Section 2.03)
received with
respect to the Macquarie DDR Portfolio II REO Mortgage Loans shall
be allocated
between those REO Mortgage Loans as provided in the Macquarie DDR
Portfolio II
Co-Lender Agreement and such payments and other collections so
allocated to each
such Macquarie DDR Portfolio II REO Mortgage Loan shall be applied
to amounts
due and owing under such REO Mortgage Loan (including for principal
and accrued
and unpaid interest) in accordance with the foregoing provisions of
this
definition of "REO Mortgage Loan" (provided that references to the
recovery of
any related unpaid servicing expenses and unreimbursed Servicing
Advances above
in this definition, with respect to each Macquarie DDR Portfolio II
REO Mortgage
Loan, shall be deemed to refer to that Macquarie DDR Portfolio II
REO Mortgage
Loan's allocable share of the related servicing expense and/or
Servicing
Advance, as applicable, allocated thereto in accordance with the
Macquarie DDR
Portfolio II Co-Lender Agreement; and provided, further, that if
the Mortgage
Loans comprising any other 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 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 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 the 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 the 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 the Fiscal Agent, as
the case may
be, in respect of an REO Mortgage Loan.
"REO Property" shall mean a Mortgaged Property acquired on behalf
and
in the name of the Trustee for the benefit of the
Certificateholders (or, in the
case of a Mortgaged Property related to a 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).
"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.
-74-
"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 was obtained or conducted within the
prior 12
months, a "desktop" value estimate performed by the Special
Servicer.
"Required Appraisal Loan" shall mean any 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 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
-75-
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
Trust Mortgage Loan or Loan Combination.
"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 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.
"Reserve Account" shall have the meaning assigned thereto in
Section
3.03(d).
"Reserve Funds" shall mean, with respect to any Mortgage Loan, any
amounts delivered by the related Mortgagor to be held by or on
behalf of the
mortgagee representing reserves for repairs, capital improvements
and/or
environmental remediation in respect of the related Mortgaged
Property or debt
service on such Mortgage Loan.
"Residual Interest Certificate" shall mean 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 the Fiscal Agent, any officer thereof.
"Review Package" shall mean a package of documents consisting of a
memorandum outlining the analysis and recommendation (in accordance
with the
Servicing Standard) of the Master Servicer or the Special Servicer,
as the case
may be, with respect to the matters that are the subject thereof,
and copies of
all relevant documentation.
-76-
"Rule 144A Global Certificate" shall mean, with respect to any
Class of
Book-Entry Non-Registered Certificates, one or collectively more
global
certificates of such Class registered in the name of the Depository
or its
nominee, in definitive, fully registered form without interest
coupons, none of
which certificates bears a Regulation S Legend, and each of which
certificates
has a Rule 144A CUSIP number.
"S&P" shall mean Standard & Poor's Ratings Services, a
division of The
McGraw-Hill Companies, Inc. or its successor in interest.
"Sarbanes-Oxley Act" shall have the meaning assigned thereto in
Section
8.15(d).
"Sarbanes-Oxley Certification" shall have the meaning assigned
thereto
in Section 8.15(d).
"SASCO II" shall mean Structured Asset Securities Corporation II or
any
successor in interest.
"Scheduled Payment" shall mean, with respect to any Mortgage Loan,
for
any Due Date following the Cut-off Date as of which it is
outstanding, the
Monthly Payment on such Mortgage Loan that is or would be, as the
case may be,
payable by the related Mortgagor on such Due Date under the terms
of the related
Mortgage Note as in effect on the Closing Date, without regard to
any subsequent
change in or modification of such terms in connection with a
bankruptcy or
similar proceeding involving the related Mortgagor or a
modification, extension,
waiver or amendment of such Mortgage Loan granted or agreed to by
the Special
Servicer pursuant to Section 3.20, 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.
"Securitization Agreement" shall mean, with respect to the
Macquarie
DDR Portfolio II Non-Trust Mortgage Loan, the Macquarie DDR
Portfolio II
Non-Trust Mortgage Loan Securitization Agreement.
"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 Lehman 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
-77-
Section 2.03(a) (in the case of a Lehman 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 Lehman 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.
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
Lehman 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
Lehman 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
-78-
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 Lehman
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 A-2, Class
A-3,
Class A-4, Class A-AB, Class A-5, 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-4, Class A-AB and Class A-5 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-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 and Class S 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).
"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 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
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 Report.
"Servicing Account" shall have the meaning assigned thereto in
Section
3.03(a).
"Servicing Advances" shall mean all customary, reasonable and
necessary
"out of pocket" costs and expenses (including attorneys' fees and
fees and
expenses of real estate brokers)
-79-
incurred by the Master Servicer, the Special Servicer, the Fiscal
Agent or the
Trustee in connection with the servicing and administration of a
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 REO Property, including, but not limited to,
the cost of
(a) compliance with the obligations of the Master Servicer, the
Special
Servicer, the Fiscal Agent or the Trustee, if any, set forth in
Section 3.03(c),
(b) the preservation, insurance, restoration, protection and
management of a
Mortgaged Property, (c) obtaining any Insurance Proceeds,
Condemnation Proceeds
or Liquidation Proceeds, (d) any enforcement or judicial
proceedings with
respect to a Mortgaged Property, including foreclosures, (e) any
Required
Appraisal or any other appraisal or update thereof expressly
permitted or
required to be obtained hereunder, (f) the operation, management,
maintenance
and liquidation of any REO Property, and (g) obtaining any related
ratings
confirmation; provided that, notwithstanding anything to the
contrary,
"Servicing Advances" shall not include allocable overhead of the
Master
Servicer, the Special Servicer or the Trustee, such as costs for
office space,
office equipment, supplies and related expenses, employee salaries
and related
expenses and similar internal costs and expenses, or costs and
expenses incurred
by any such party in connection with its purchase of any Mortgage
Loan or REO
Property pursuant to any provision of this Agreement, any Co-Lender
Agreement or
any intercreditor agreement relating to mezzanine debt.
"Servicing Fees" shall mean, with respect to each Mortgage Loan
(and
any successor REO Mortgage Loan with respect thereto), the Master
Servicing Fee
and the Special 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 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 Non-Trust
Mortgage Loan, a
copy of the related Mortgage Note.
"Servicing Officer" shall mean any officer or employee of the
Master
Servicer or the Special Servicer involved in, or responsible for,
the
administration and servicing of the Mortgage Loans, whose name and
specimen
signature appear on a list of servicing officers furnished by such
party to the
Trustee and the Depositor on the Closing Date, as such list may be
amended from
time to time.
"Servicing-Released Bid" shall have the meaning assigned thereto in
Section 7.01(c).
"Servicing-Retained Bid" shall have the meaning assigned thereto in
Section 7.01(c).
"Servicing Standard" shall mean, with respect to the Master
Servicer or
the Special Servicer, to service and administer the Mortgage Loans
and any 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
-80-
foreclosure properties), and (B) the same manner in which, and with
the same
care, skill, prudence and diligence with which, the Master Servicer
or Special
Servicer, as the case may be, services and administers comparable
mortgage loans
and foreclosure properties owned by the Master Servicer or Special
Servicer, as
the case may be, in either case exercising reasonable business
judgment and
acting in accordance with applicable law, the terms of this
Agreement and the
terms of the respective 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 Mortgage Loans or, in the case of any such Mortgage Loan
that is (1) a
Specially Serviced Mortgage Loan or (2) a Mortgage Loan as to which
the related
Mortgaged Property has become an REO Property, the maximization of
recovery on
the subject Mortgage Loan to the Certificateholders (as a
collective whole) (or,
if a Loan Combination is involved, the maximization of recovery on
such Loan
Combination to the Certificateholders and the related 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 Loan Combination is involved, to the Certificateholders
and the
related Non-Trust Mortgage Loan Noteholder(s) (as a collective
whole)) to be
performed at the related Mortgage Rate (or, in the case of a 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 Mortgage
Loan, the occurrence of any of the events described in clauses (a)
through (g)
of the definition of "Specially Serviced Mortgage Loan".
"Single Certificate" shall mean, for purposes of Section 4.02, a
hypothetical Regular Interest Certificate evidencing an initial
$1,000
denomination.
"Single Purpose Entity" shall mean an entity, other than an
individual,
whose organizational documents and/or the related loan documents
provide
substantially to the effect that: (i) it was formed or organized
solely for the
purpose of either owning and operating the Mortgaged Property or
Properties
securing one or more Mortgage Loans, or owning and pledging
Defeasance
Collateral in connection with the defeasance of a Defeasance
Mortgage Loan, as
the case may be, (ii) it may not engage in any business unrelated
to such
Mortgaged Property or Properties or such Defeasance Collateral, as
the case may
be, (iii) it will not have any assets other than those related to
its interest
in and operation of such Mortgaged Property or such Defeasance
Collateral, as
the case may be, (iv) it may not incur indebtedness other than
incidental to its
ownership and operation of the applicable Mortgaged Property or
Properties or
Defeasance Collateral, as the case may be, (v) it will maintain its
own books
-81-
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.
"Smoky Hill Change of Control Event" shall mean the event that
occurs
when: (a) the principal amount of the Smoky Hill Non-Trust Mortgage
Loan or any
successor REO Mortgage Loan with respect thereto (net of any
existing Appraisal
Reduction Amount with respect to the Smoky Hill Loan Combination)
is less than
25.0% of the original principal amount of the Smoky Hill Non-Trust
Mortgage
Loan; and (b) the Smoky Hill Trust Mortgage Loan or any successor
REO Trust
Mortgage Loan with respect thereto has not been repaid in full.
"Smoky Hill Co-Lender Agreement" shall have the meaning assigned
thereto in the Preliminary Statement.
"Smoky Hill Controlling Party" shall mean the Smoky Hill Directing
Lender or any representative appointed thereby, consistent with
Section 3.02(d)
of the Smoky Hill Co-Lender Agreement, to exercise the rights and
powers of the
Smoky Hill Directing Lender under the Smoky Hill Co-Lender
Agreement or this
Agreement.
"Smoky Hill Custodial Account" shall mean the Loan Combination
Custodial Account created and maintained by the Master Servicer
pursuant to
Section 3.04A on behalf of the Smoky Hill Noteholders, which shall
be entitled
"[NAME OF MASTER SERVICER], as Master Servicer, in trust for [NAME
OF SMOKY HILL
NOTEHOLDERS], as their interests may appear".
"Smoky Hill Directing Lender" shall mean, as of any date of
determination, the "Directing Lender" under the Smoky Hill
Co-Lender Agreement.
"Smoky Hill Loan Combination" shall have the meaning assigned
thereto
in the Preliminary Statement (and shall include any successor REO
Mortgage Loans
with respect to the Smoky Hill Mortgage Loans).
"Smoky Hill Mortgage Loan" shall mean the Smoky Hill Trust Mortgage
Loan or the Smoky Hill Non-Trust Mortgage Loan, as applicable.
"Smoky Hill Mortgaged Property" shall have the meaning assigned
thereto
in the Preliminary Statement.
"Smoky Hill Non-Trust Mortgage Loan" shall have the meaning
assigned
thereto in the Preliminary Statement.
"Smoky Hill Non-Trust Mortgage Loan Noteholder" shall mean the
holder
(or, if applicable, the collective holders) of the Mortgage Note
for the Smoky
Hill Non-Trust Mortgage Loan.
"Smoky Hill Noteholders" shall mean the holder of the Mortgage Note
for
the Smoky Hill Trust Mortgage Loan, together with the Smoky Hill
Non-Trust
Mortgage Loan Noteholder.
-82-
"Smoky Hill REO Account" shall mean the Loan Combination REO
Account
created and maintained by the Special Servicer pursuant to Section
3.16 on
behalf of the Smoky Hill Noteholders, which shall be entitled
"[NAME OF SPECIAL
SERVICER], as Special Servicer, in trust for [NAME OF SMOKY HILL
NOTEHOLDERS],
as their interests may appear".
"Smoky Hill REO Mortgage Loan" shall mean any REO Mortgage Loan
relating to any Smoky Hill REO Property.
"Smoky Hill REO Property" shall mean the Smoky Hill Mortgaged
Property
at such time as it becomes an REO Property hereunder.
"Smoky Hill REO Trust Mortgage Loan" shall mean any REO Trust
Mortgage
Loan relating to any Smoky Hill Trust REO Property.
"Smoky Hill Specially Designated Servicing Action" shall mean, with
respect to the Smoky Hill Loan Combination or any related REO
Property, any of
the actions specified in clauses (i) through (xiv) of the first
paragraph of
Section 3.02(a) of the Smoky Hill Co-Lender Agreement.
"Smoky Hill 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 72 and is, together
with the
Smoky Hill Non-Trust Mortgage Loan, secured by the same Mortgage on
the Smoky
Hill Mortgaged Property.
"Special Servicer" shall mean, subject to Section 7.01(e) (insofar
as
such section contemplates multiple parties acting as Special
Servicer), Lennar,
in its capacity as special servicer hereunder, or any successor
special servicer
appointed as herein provided.
"Special Servicer Backup Certification" shall have the meaning
assigned
thereto in Section 8.15(i).
"Special Servicing Fee" shall mean, with respect to each Specially
Serviced Mortgage Loan and REO Mortgage Loan, 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 REO Mortgage Loan, 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 and each entire 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);
-83-
(iii)
the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such
Trust Mortgage Loan (or, if such policy has not been issued,
a "marked-up" pro forma title policy, or an irrevocable,
binding commitment to issue such title insurance policy);
(iv)
an original or copy of any Ground Lease and Ground Lease
estoppels, if any, relating to such Trust Mortgage Loan; and
(v)
with respect to Trust Mortgage Loans secured by hospitality
properties only, the related franchise agreement (if any)
and franchisor comfort letter (if any).
provided that whenever the term "Specially Designated Mortgage Loan
Documents"
is used to refer to documents actually received by the Trustee or
by a Custodian
on its behalf, such term, with respect to any receipt or
certification by the
Trustee or a Custodian on its behalf for documents described in
clauses (iv) and
(v) of this definition, shall be deemed to include such documents
only to the
extent the Trustee or a Custodian on its behalf has actual
knowledge of their
existence.
"Specially Designated Servicing Action" means:
(a) with respect to the Macquarie DDR Portfolio II Loan
Combination, a
Macquarie DDR Portfolio II Specially Designated Servicing Action;
(b) with respect to the Bay Colony Loan Combination, a Bay Colony
Specially Designated Servicing Action;
(c) with respect to the Boulevard Shops Loan Combination, a
Boulevard
Shops Specially Designated Servicing Action;
(d) with respect to the Smoky Hill Loan Combination, a Smoky Hill
Specially Designated Servicing Action;
(e) with respect to the Dayton Mall Shoppes Loan Combination, a
Dayton
Mall Shoppes Specially Designated Servicing Action; and
(f) with respect to each other Mortgage Loan and REO Property, any
of
the following actions--
(i) any foreclosure upon or comparable conversion (which may
include acquisitions of an 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 REO Property (other than in
connection with the termination of the Trust Fund) for less than
the
Purchase Price,
-84-
(iv) any acceptance of a discounted payoff with respect to a
Specially Serviced Mortgage Loan,
(v) any determination to bring a Mortgaged Property securing a
Specially Serviced Mortgage Loan or an 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 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 Mortgage Loan, and
(ix) any acceptance of an assumption agreement releasing a
borrower from liability under any Mortgage Loan.
"Specially Serviced Mortgage Loan" shall mean any 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 Combination
Trust
Mortgage Loan, by a related Non-Trust Mortgage Loan Noteholder
exercising
any cure rights under the related Co-Lender 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 (i)
materially impairs the value of the related Mortgaged Property as
security
for such Mortgage Loan or otherwise materially adversely affects
the
interests of Certificateholders (or, in the case of a Non-Trust
Mortgage
Loan, the interests of the related Non-Trust Mortgage Loan
Noteholder) (it
being acknowledged and agreed that any default requiring a
Servicing
Advance shall be deemed to materially and adversely affect the
interests of
Certificateholders or, in the case of a Non-Trust Mortgage Loan,
the
interests of the related Non-Trust Mortgage Loan Noteholder), and
(ii)
continues unremedied
-85-
by the related Mortgagor, any related guarantor or otherwise
(including, in
the case of a Combination Trust Mortgage Loan, by a related
Non-Trust
Mortgage Loan Noteholder exercising any cure rights under the
related
Co-Lender 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
Mortgage Loan)
or (B) otherwise, the greater of (1) the applicable grace period
under the
terms of such 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 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 Combination Trust Mortgage Loan, by a
related
Non-Trust Mortgage Loan Noteholder exercising any cure rights under
the
related Co-Lender 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 Mortgage Loan or otherwise materially adversely affect the
interests of Certificateholders (or, in the case of a Non-Trust
Mortgage
Loan, the related 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
