Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Mortgage Loan and all documents delivered to it that constitute portions of the Mortgage File and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage File, and that it holds and will hold the Mortgage Loan and such other assets, together with any other assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future Securityholders. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (a) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 360th day following the Closing Date, the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the Mortgage Loan on the Initial Closing Date and/or the Closing Date, and the Trustee shall, subject to Sections 2.01(d), 2.02(b) and 2.02(c), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (a) of the definition of “Mortgage File”, the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (e) of the definition of “Mortgage File”, and each document specified in clauses (f), (h), and (k) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies. (b) None of the Trustee, the Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loan delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of the Trustee, the Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction. (c) In performing the reviews contemplated by Subsection (a) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clauses (a), (b), (c), (e), (f), (h) and (j) of the definition of “Mortgage File” as of the date hereof have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) above. (d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia. (e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02. (f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may be, and the Trustee shall, subject to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies. (g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) above.
Appears in 2 contracts
Samples: Trust and Servicing Agreement (American Tower Corp /Ma/), Trust and Servicing Agreement (American Tower Corp /Ma/)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Mortgage Loan and all documents delivered to it that constitute portions of the Mortgage File and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage File, and that it holds and will hold the Mortgage Loan and such other assets, together with any other assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2B-2, (i) the original Mortgage Notes specified in clause (a) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 360th day following the Closing Date, the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the Mortgage Loan on the Initial Closing Date and/or the Closing Date, and the Trustee shall, subject to Sections 2.01(d), 2.02(b) and 2.02(c), certify in the form attached hereto as Exhibit A-3 B-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (a) of the definition of “Mortgage File”, the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (e) of the definition of “Mortgage File”, and each document specified in clauses (f), (h), and (k) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the date hereofClosing Date, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(b) None of the Trustee, the Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loan delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of the Trustee, the Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(c) In performing the reviews contemplated by Subsection (a) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers Depositor as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clauses (a), (b), (c), (e), (f), (h) and (jk) of the definition of “Mortgage File” as of the date hereof Closing Date have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof Closing Date (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia), the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2B-2, (i) the original Mortgage Notes specified in clause (l)(im)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may be, and the Trustee shall, subject to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 B-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(im)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(Am)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(Bm)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iiim)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(ivm)(iv), and (l)(ivm)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (lm) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) above.
Appears in 1 contract
Samples: Trust and Servicing Agreement (American Tower Corp /Ma/)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Original Pooled Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Pooled Mortgage Loan Loans and such other assets, together with any other Pooled Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. To the extent that the Mortgage File relates to a Pooled Mortgage Loan that is part of a Serviced Mortgage Loan Group, the Trustee shall also hold such Mortgage File in trust for the use and benefit of the related Serviced Non-Pooled Mortgage Loan Noteholders. Each Master Servicer acknowledges receipt (by it or a Primary Servicer on its behalf) of all of the original Letters of Credit relating to the Serviced Pooled Mortgage Loans for which it is the applicable Master Servicer (copies of which are part of the Mortgage File) and agrees to hold (or cause a Primary Servicer on its behalf to hold ) such Letters of Credit in trust for the benefit of the Trustee. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto hereto, each Pooled Mortgage Loan Seller and each Underwriter that, as to each Pooled Mortgage Loan, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2Schedule II, (i) the original Mortgage Notes all documents specified in clause (ai) of the definition of “"Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), " are in its possession or the possession of a Custodian on its behalf, and (ii) each such the original Mortgage Note (or, if accompanied by a lost note affidavit, the copy of such Mortgage Note) received by it or copies thereof) any Custodian with respect to such Pooled Mortgage Loan has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears to have been executed (where appropriate) and (C) purports to relate to the such Pooled Mortgage Loan. .
(b) On or about the 360th 45th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Pooled Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b2.02(c) and 2.02(c2.02(d), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format writing to each of the other parties hereto (substantially in the form of Exhibit N), the Pooled Mortgage Loan Sellers, the Serviced Non-Pooled Mortgage Loan Noteholders (in each case, provided that the Trustee has received notice of the identity of and notice address information for such Serviced Non-Pooled Mortgage Loan Noteholder) and the Rating Agencies that Controlling Class Representative that, as to each Original Pooled Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (ai) of the definition of “"Mortgage File”" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a lost note affidavit and indemnity certifying that the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “such Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”Note has been lost), the original or copy of the policies of title insurance documents specified in clause clauses (eii), (iii), (iv) (except with respect to a Non-Trust-Serviced Pooled Mortgage Loan), (viii) (without regard to the verification of the effective date with respect to a title policy or the date of funding with respect to a title commitment), (x) (if the Pooled Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a leasehold interest) and (xx) (solely in the case of the Pooled Mortgage Loans secured by the Mortgaged Properties identified on the Pooled Mortgage Loan Schedule as "Marriott Xxxx", "Marriott Houston", "Midway Courtyard by Marriott", "Ramada Plaza Suites", "Best Western - Xxxxxxx Hotel", "SpringHill Suites Warrenville", "Midway Fairfield Inn by Marriott", "Comfort Inn Xxxxxxx" and "Sleep Inn at Miami International Airport") of the definition of “"Mortgage File”, and each document specified in clauses (f), (h), and (k) of the definition of “Mortgage File” is in its possession " have been received by it or the possession of a Custodian on its behalf; and (ii) if such report is due more than 180 days after the Closing Date, the recordation/filing contemplated by Section 2.01(e) has been completed (based solely on receipt by the Trustee of the particular recorded/filed documents or an appropriate receipt of recording/filing therefor); (iii) all documents received by it or any Custodian with respect to such Pooled Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appear to have been executed (where appropriate) and (C) purport to relate to the such Pooled Mortgage Loan. If any exceptions are noted ; (iv) based on the examinations referred to in Section 2.02(a) above and this Section 2.02(b) and only as to the foregoing documents, the information set forth in the exception report annexed Pooled Mortgage Loan Schedule with respect to such certification, the items specified in clause (iii)(A) and clause (vi) of the definition of "Pooled Mortgage Loan Schedule" accurately reflects the information set forth in the related Mortgage File; and (v) the Trustee on behalf of the Trust is shown as the owner of each Mortgage recorded in the name of MERS or a Custodian on its behalf shall, every 180 designee. Every 90 days after such 45th day following the delivery of such certification Closing Date, until the earlier of (i) the date on which such exceptions are eliminated and such recordation/filing has been completed, and (ii) the second anniversary of date on which all the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(b) None of the Trustee, the Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the affected Pooled Mortgage Loan delivered to it to determine that the same Loans are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of the Trustee, the Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(c) In performing the reviews contemplated by Subsection (a) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clauses (a), (b), (c), (e), (f), (h) and (j) of the definition of “Mortgage File” as of the date hereof have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of removed from the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan IncreaseFund, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate deliver electronically to the Pooled Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower SitesLoan Sellers, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Serviced Non-Pooled Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may be, Noteholders and the Trustee shall, subject Controlling Class Representative an update to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to the certification described above substantially in the form of Exhibit N, which update shall report any remaining outstanding exceptions with respect to each Original Pooled Mortgage Loan. Such delivery shall be deemed to constitute a certification of the substance of the matters set forth in the form of such certificationExhibit N (except as set forth in such exception report). The applicable Master Servicer shall provide the contact name, mailing address and e-mail address of each Serviced Non-Pooled Mortgage Loan Noteholder to the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) aboveextent not previously provided thereto, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood provided that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and applicable Master Servicer has such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) aboveinformation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr8)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Original Pooled Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Pooled Mortgage Loan Loans and such other assets, together with any other Pooled Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. To the extent that the Mortgage File relates to a Pooled Mortgage Loan that is part of the Serviced Mortgage Loan Group, the Trustee shall also hold such Mortgage File in trust for the use and benefit of the related Serviced Non-Pooled Mortgage Loan Noteholders. Each Master Servicer acknowledges receipt of all of the original Letters of Credit relating to the Serviced Pooled Mortgage Loans for which it is the applicable Master Servicer, copies of which are part of the Mortgage File and agrees to hold such Letters of Credit in trust for the benefit of the Trustee. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto hereto, each Pooled Mortgage Loan Seller and each Underwriter that, as to each Pooled Mortgage Loan, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2Schedule II, (i) the original Mortgage Notes all documents specified in clause (ai) of the definition of “"Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), " are in its possession or the possession of a Custodian on its behalf, and (ii) each such the original Mortgage Note (or, if accompanied by a lost note affidavit, the copy of such Mortgage Note) received by it or copies thereof) any Custodian with respect to such Pooled Mortgage Loan has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears to have been executed (where appropriate) and (C) purports to relate to the such Pooled Mortgage Loan. .
(b) On or about the 360th 45th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Pooled Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b2.02(c) and 2.02(c2.02(d), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format writing to each of the other parties hereto (substantially in the form of Exhibit N), the Pooled Mortgage Loan Sellers, the Serviced Non-Pooled Mortgage Loan Noteholders and the Rating Agencies that Controlling Class Representative that, as to each Original Pooled Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (ai) of the definition of “"Mortgage File”" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a lost note affidavit and indemnity certifying that the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “such Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”Note has been lost), the original or copy of the policies of title insurance documents specified in clause clauses (eii), (iii), (iv) (except with respect to the Non-Trust-Serviced Pooled Mortgage Loan), (viii) (without regard to the verification of the effective date with respect to a title policy or the date of funding with respect to a title commitment), (x) (if the Pooled Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a leasehold interest) and (xx) (solely in the case of the Pooled Mortgage Loans secured by the Mortgaged Properties identified on the Pooled Mortgage Loan Schedule as "Hilton Sandestin Beach Golf Resort & Spa", "Tampa Hilton", "Residence Inn by Marriott", "Courtyard by Marriott" and "SpringHill Suites by Marriott") of the definition of “"Mortgage File”, and each document specified in clauses (f), (h), and (k) of the definition of “Mortgage File” is in its possession " have been received by it or the possession of a Custodian on its behalf; and (ii) if such report is due more than 180 days after the Closing Date, the recordation/filing contemplated by Section 2.01(e) has been completed (based solely on receipt by the Trustee of the particular recorded/filed documents or an appropriate receipt of recording/filing therefor); (iii) all documents received by it or any Custodian with respect to such Pooled Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appear to have been executed (where appropriate) and (C) purport to relate to the such Pooled Mortgage Loan. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of ; (iiv) the date on which such exceptions are eliminated and (ii) the second anniversary of the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(b) None of the Trustee, the Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loan delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of the Trustee, the Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(c) In performing the reviews contemplated by Subsection (a) above, the Trustee or a Custodian on its behalf may conclusively rely based on the Borrowers as examinations referred to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clauses (a), (b), (c), (e), (f), (h) and (j) of the definition of “Mortgage File” as of the date hereof have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may be, and the Trustee shall, subject to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) above.in
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr6)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Original Pooled Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Pooled Mortgage Loan Loans and such other assets, together with any other Pooled Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. To the extent that the Mortgage File relates to a Pooled Mortgage Loan that is part of a Serviced Mortgage Loan Group, the Trustee shall also hold such Mortgage File in trust for the use and benefit of the related Serviced Non-Pooled Mortgage Loan Noteholders. Each Master Servicer acknowledges receipt (by it or a Primary Servicer on its behalf) of all of the original Letters of Credit relating to the Serviced Pooled Mortgage Loans for which it is the applicable Master Servicer (copies of which are part of the Mortgage File) and agrees to hold (or cause a Primary Servicer on its behalf to hold ) such Letters of Credit in trust for the benefit of the Trustee. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto hereto, each Pooled Mortgage Loan Seller and each Underwriter that, as to each Pooled Mortgage Loan, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2Schedule II, (i) the original Mortgage Notes all documents specified in clause (ai) of the definition of “"Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), " are in its possession or the possession of a Custodian on its behalf, and (ii) each such the original Mortgage Note (or, if accompanied by a lost note affidavit, the copy of such Mortgage Note) received by it or copies thereof) any Custodian with respect to such Pooled Mortgage Loan has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears to have been executed (where appropriate) and (C) purports to relate to the such Pooled Mortgage Loan. .
(b) On or about the 360th 45th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Pooled Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b2.02(c) and 2.02(c2.02(d), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format writing to each of the other parties hereto (substantially in the form of Exhibit N), the Pooled Mortgage Loan Sellers, the Serviced Non-Pooled Mortgage Loan Noteholders (in each case, provided that the Trustee has received notice of the identity of and notice address information for such Serviced Non-Pooled Mortgage Loan Noteholder) and the Rating Agencies that Controlling Class Representative that, as to each Original Pooled Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (ai) of the definition of “"Mortgage File”" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a lost note affidavit and indemnity certifying that the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “such Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”Note has been lost), the original or copy of the policies of title insurance documents specified in clause clauses (eii), (iii), (iv) (except with respect to a Non-Trust-Serviced Pooled Mortgage Loan), (viii) (without regard to the verification of the effective date with respect to a title policy or the date of funding with respect to a title commitment), (x) (if the Pooled Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a leasehold interest) and (xx) (solely in the case of the Pooled Mortgage Loans secured by the Mortgaged Properties identified on the Pooled Mortgage Loan Schedule as "The Westin Xxxxxx Place", "Skamania Lodge", "Renaissance Long Beach", "Renaissance Westchester", "Embassy Suites LAX", "Valley River Inn", "Radisson Hotel Trevose", "Hampton Inn - Springboro", "Holiday Inn Express - Bowling Green", "Holiday Inn Express - Wilmington" and "Holiday Inn Express - Xxxx") of the definition of “"Mortgage File”, and each document specified in clauses (f), (h), and (k) of the definition of “Mortgage File” is in its possession " have been received by it or the possession of a Custodian on its behalf; and (ii) if such report is due more than 180 days after the Closing Date, the recordation/filing contemplated by Section 2.01(e) has been completed (based solely on receipt by the Trustee of the particular recorded/filed documents or an appropriate receipt of recording/filing therefor); (iii) all documents received by it or any Custodian with respect to such Pooled Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appear to have been executed (where appropriate) and (C) purport to relate to the such Pooled Mortgage Loan. If any exceptions are noted ; (iv) based on the examinations referred to in Section 2.02(a) above and this Section 2.02(b) and only as to the foregoing documents, the information set forth in the exception report annexed Pooled Mortgage Loan Schedule with respect to such certification, the items specified in clause (iii)(A) and clause (vi) of the definition of "Pooled Mortgage Loan Schedule" accurately reflects the information set forth in the related Mortgage File; and (v) the Trustee on behalf of the Trust is shown as the owner of each Mortgage recorded in the name of MERS or a Custodian on its behalf shall, every 180 designee. Every 90 days after such 45th day following the delivery of such certification Closing Date, until the earlier of (i) the date on which such exceptions are eliminated and such recordation/filing has been completed, and (ii) the second anniversary of date on which all the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(b) None of the Trustee, the Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the affected Pooled Mortgage Loan delivered to it to determine that the same Loans are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of the Trustee, the Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(c) In performing the reviews contemplated by Subsection (a) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clauses (a), (b), (c), (e), (f), (h) and (j) of the definition of “Mortgage File” as of the date hereof have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of removed from the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan IncreaseFund, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate deliver electronically to the Pooled Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower SitesLoan Sellers, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Serviced Non-Pooled Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may be, Noteholders and the Trustee shall, subject Controlling Class Representative an update to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to the certification described above substantially in the form of Exhibit N, which update shall report any remaining outstanding exceptions with respect to each Original Pooled Mortgage Loan. Such delivery shall be deemed to constitute a certification of the substance of the matters set forth in the form of such certificationExhibit N (except as set forth in such exception report). The applicable Master Servicer shall provide the contact name, mailing address and e-mail address of each Serviced Non-Pooled Mortgage Loan Noteholder to the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) aboveextent not previously provided thereto, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood provided that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and applicable Master Servicer has such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) aboveinformation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr10)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Original Pooled Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Pooled Mortgage Loan Loans and such other assets, together with any other Pooled Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. To the extent that the Mortgage File for the Lion Industrial Portfolio Pooled Mortgage Loans relates to the Lion Industrial Portfolio Non-Pooled Subordinate Loans, the Trustee shall also hold such Mortgage File in trust for the use and benefit of the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder. Each Master Servicer acknowledges receipt of all of the original Letters of Credit relating to the Serviced Pooled Mortgage Loans for which it is the applicable Master Servicer, copies of which are part of the Mortgage File and agrees to hold such Letters of Credit in trust for the benefit of the Trustee. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto hereto, each Pooled Mortgage Loan Seller and each Underwriter that, as to each Pooled Mortgage Loan, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2Schedule II, (i) the original Mortgage Notes all documents specified in clause (ai) of the definition of “"Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), " are in its possession or the possession of a Custodian on its behalf, and (ii) each such the original Mortgage Note (or, if accompanied by a lost note affidavit, the copy of such Mortgage Note) received by it or copies thereof) any Custodian with respect to such Pooled Mortgage Loan has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears to have been executed (where appropriate) and (C) purports to relate to the such Pooled Mortgage Loan. , and further that a copy of each Mortgage Loan Group Intercreditor Agreement is in its possession or the possession of a Custodian on its behalf.
(b) On or about the 360th 45th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), every 90 days thereafter until the earlier of (i) the date on which such exceptions are eliminated and such recordation/filing has been completed, and (ii) the date on which all the affected Pooled Mortgage Loans are removed from the Trust Fund), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Pooled Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b2.02(c) and 2.02(c2.02(d), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format writing to each of the other parties hereto (substantially in the form of Exhibit N), the Pooled Mortgage Loan Sellers, the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder and the Rating Agencies that Controlling Class Representative that, as to each Original Pooled Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (ai) of the definition of “"Mortgage File”" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a lost note affidavit and indemnity certifying that the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “such Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”Note has been lost), the original or copy of the policies of title insurance documents specified in clause clauses (eii), (iii), (iv) (except with respect to any Non-Trust-Serviced Pooled Mortgage Loan), (viii) (without regard to the verification of the effective date with respect to a title policy or the date of funding with respect to a title commitment) and (x) (if the Pooled Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a leasehold interest) of the definition of “"Mortgage File”, and each document specified in clauses (f), (h), and (k) of the definition of “Mortgage File” is in its possession " have been received by it or the possession of a Custodian on its behalf; and (ii) if such report is due more than 180 days after the Closing Date, the recordation/filing contemplated by Section 2.01(e) has been completed (based solely on receipt by the Trustee of the particular recorded/filed documents or an appropriate receipt of recording/filing therefor); (iii) all documents received by it or any Custodian with respect to such Pooled Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appear to have been executed (where appropriate) and (C) purport to relate to the such Pooled Mortgage Loan. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated ; and (iiiv) the second anniversary of the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(b) None of the Trustee, the Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loan delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of the Trustee, the Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(c) In performing the reviews contemplated by Subsection (a) above, the Trustee or a Custodian on its behalf may conclusively rely based on the Borrowers examinations referred to in Section 2.02(a) above and this Section 2.02(b) and only as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clauses (a), (b), (c), (e), (f), (h) and (j) of the definition of “Mortgage File” as of the date hereof have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites)foregoing documents, the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions information set forth in this Section 2.02(e), including, without limitation, with respect to any the Pooled Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter Schedule with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes items specified in clause (l)(iiii)(A) and clause (vi) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may be, and the Trustee shall, subject to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) above.the
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr3)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Original Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Mortgage Loan Loans and such other assets, together with any other Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. The Trustee or such Custodian shall hold any Letter of Credit in a custodial capacity only and shall have no obligation to maintain, extend the term of, enforce or otherwise pursue any rights under such Letter of Credit. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto and the Mortgage Loan Sellers that, as to each Original Mortgage Loan, except as to any LOC Cash Reserve and except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2B-2, (i) the original Specially Designated Mortgage Notes specified in clause (a) of the definition of “Mortgage File” Loan Documents and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), allonges are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 360th day following the Closing Date, the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the Mortgage Loan on the Initial Closing Date and/or the Closing Date, and the Trustee shall, subject to Sections 2.01(d), 2.02(b) and 2.02(c), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (a) of the definition of “Mortgage File”, the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (e) of the definition of “Mortgage File”, and each document specified in clauses (f), (h), and (k) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Documents, and all Mortgage Note allonges, have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appear to have been executed (where appropriate) and (C) purport to relate to the such Mortgage Loan. If Further, with respect to the documents described in clause (viii) of the definition of Mortgage File, absent actual knowledge to the contrary or copies of UCC Financing Statements delivered to the Trustee as part of the Mortgage File indicating otherwise, the Trustee may assume, for purposes of the certification delivered in this Section 2.02(a), that the related Mortgage File should include one local UCC Financing Statement filing for each related Mortgaged Property and one state-level UCC Financing Statement for each related Borrower.
(b) On or about the 45th day following the Closing Date (and, if any exceptions are noted in or if the exception report annexed to such certification, recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee or a Custodian on its behalf shallof the particular documents showing evidence of the recordation/filing), every 180 90 days after the delivery of such certification thereafter until the earlier earliest of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(b) None of the Trustee, the Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loan delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of the Trustee, the Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(c) In performing the reviews contemplated by Subsection (a) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clauses (a), (b), (c), (e), (f), (h) and (j) of the definition of “Mortgage File” as of the date hereof have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and recordation/filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalfcompleted, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of on which all the addition of any Additional Sites or Additional Borrower Sitesaffected Mortgage Loans are removed from the Trust Fund), the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the each Original Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may beLoan, and the Trustee shall, subject to 2.02(bSections 1.04, 2.02(c) and 2.02(g2.02(d), certify in writing (substantially in the form attached hereto as of Exhibit A-3 in a mutually acceptable electronic format B-3) to each of the other parties hereto hereto, the Mortgage Loan Sellers and the Rating Agencies that Controlling Class Representative that, as to each Original Mortgage Loan then subject to this Agreement (except as to any LOC Cash Reserve and except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes Note specified in clause (l)(ii) of the definition of “"Mortgage File”" and all allonges thereto, and/orif any (or a copy of such Mortgage Note, in the case of the addition of Additional Sites or Additional Borrower Sites, together with a lost note affidavit certifying that the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “such Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”Note has been lost), the original or copy of the policies of title insurance documents specified in clause clauses (l)(iiiii) through (v) and (vii) of the definition of “"Mortgage File”" and, and each document in the case of a hospitality property, the documents specified in clauses clause (l)(iv), and (l)(ivviii) of the definition of “"Mortgage File” is in its possession " (without regard to the parenthetical) and any other Specially Designated Mortgage Loan Documents, have been received by it or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to if such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every is due more than 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such additionDate, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) above.the
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass THR Cert Ser 2001-Ckn5)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the The Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of accepts, subject to the Trustother provisions in this Section 2.02, receipt, directly or through a Custodian on its behalf, of (i) the Original Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files or Trust Receipts in respect thereof and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents subsequently received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Mortgage Loan Loans and such other assets, together with any other Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. The Trustee or such Custodian shall hold any Letter of Credit in a custodial capacity only and shall have no obligation to maintain, extend the term of, enforce or otherwise pursue any rights under such Letter of Credit. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto hereto, the Sellers and the Underwriter that, as to each Original Mortgage Loan, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2B-2, (i) the original Mortgage Notes all documents specified in clause clauses (ai) through (v) and (vii) of the definition of “"Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), " are in its possession or the possession of a Custodian on its behalfbehalf (or, if any such document is missing, the Trustee or a Custodian on its behalf is in possession of a Trust Receipt covering the missing document), and (ii) each all documents and instruments received by it or any Custodian with respect to such Mortgage Note (or copies thereof) has Loan have been reviewed by it or by such Custodian on its behalf and (A) appears appear regular on its their face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersMortgagor), (B) appears appear to have been executed (where appropriate) and (C) purports purport to relate to the such Mortgage Loan. .
(b) On or about the 360th 180th day following the Closing Date (and, if any exceptions are noted, again on or about the first anniversary of the Closing Date), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b2.01, 2.02(c) and 2.02(c2.02(d), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format writing to each of the other parties hereto hereto, the Sellers, the Controlling Class Representative and the Rating Agencies that Underwriter that, as to each Original Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification): exception
(i) the original executed Mortgage Note specified in clause (ai) of the definition of “"Mortgage File”", the each original or copies of the Mortgages and deeds of trust certified recorded document specified in clause clauses (bii) through (v) of the definition of “"Mortgage File”", the each original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”, the original or copy of the policies policy of title insurance specified in clause (evii) of the definition of “"Mortgage File”, " and each document specified in clauses clause (f), (h), and (kviii) of the definition of “"Mortgage File” ", is in its possession or the possession of a Custodian on its behalf, and an insurance certificate purporting on its face to relate to a hazard insurance policy with respect to the related Mortgaged Property as described by clause (xi) of the definition of "Mortgage File" is in its possession or the possession of a Custodian on its behalf ; and (ii) the recordation/filing contemplated by Section 2.01(e) has been completed (based solely on receipt by the Trustee of the particular recorded/filed documents); (iii) all documents received by it or any Custodian with respect to such Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersMortgagor), (B) appear to have been executed (where appropriate) and (C) purport to relate to the such Mortgage Loan. If any exceptions are noted ; and (iv) based on the examinations referred to in Section 2.02(a) above and this Section 2.02(b) and only as to the exception report annexed to such certificationforegoing documents, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(b) None of the Trustee, the Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to information set forth in the Mortgage Loan delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of the Trustee, the Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance Schedule with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(c) In performing the reviews contemplated by Subsection (a) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as respect to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents items specified in clauses (aii), (b), (c), (e), (f), (hv) and (jvi)(B) of the definition of “"Mortgage File” as of Loan Schedule" accurately reflects the date hereof have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) above.
(d) With respect to each UCC Financing Statement included set forth in the Mortgage File (including after the addition of any Additional Sites File. If a Seller or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all a Column Third Party Originator substitutes a Replacement Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a for any Deleted Mortgage Loan Increase as provided contemplated by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites2.03, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the such Replacement Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may beLoan, and the Trustee shallshall deliver a comparable certification in respect of such Replacement Mortgage Loan, subject to 2.02(b) and 2.02(g)on or about the 30th day following the related date of substitution (and, certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shallnoted, every 180 90 days after thereafter for so long as any exceptions remain or until such Replacement Mortgage Loan is removed from the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating AgenciesTrust Fund).
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) above.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (DLJ Commercial Mort Corp Comm Mort Pass THR Cer Ser 1998-Cg1)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Original Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files, (ii) the Loan REMIC Interests and the Loan REMIC Declaration, and (iiiii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Mortgage Loans, the Loan REMIC Declaration and such other assets, together with any other Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. The Trustee or such Custodian shall hold any Letter of Credit in a custodial capacity only and shall have no obligation to maintain, extend the term of, enforce or otherwise pursue any rights under such Letter of Credit. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto and the Mortgage Loan Sellers that, as to each Original Mortgage Loan, except as to any LOC Cash Reserve and except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2B-2, (i) the original Specially Designated Mortgage Notes specified in clause (a) of the definition of “Mortgage File” Loan Documents and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), allonges are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Loan Documents, and all Mortgage Note (or copies thereof) has allonges, have been reviewed by it or by such Custodian on its behalf and (A) appears appear regular on its their face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears appear to have been executed and (C) purports purport to relate to the such Mortgage Loan. .
(b) On or about the 360th 60th day following the Closing Date (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), every 90 days thereafter until the earliest of (i) the date on which such exceptions are eliminated and such recordation/filing has been completed, (ii) the date on which all the affected Mortgage Loans are removed from the Trust Fund, and (iii) the second anniversary of the Closing Date), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b2.02(c) and 2.02(c2.02(d), certify in writing (substantially in the form attached hereto as of Exhibit A-3 in a mutually acceptable electronic format B-3) to each of the other parties hereto hereto, the Mortgage Loan Sellers and the Rating Agencies that Controlling Class Representative that, as to each Original Mortgage Loan (other than the Crystal Pavilion/Xxxxx Building Mortgage Loan) then subject to this Agreement (except as to any LOC Cash Reserve and except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (ai) of the definition of “"Mortgage File”" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a lost note affidavit certifying -71- that the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “such Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”Note has been lost), the original or copy of the policies of title insurance documents specified in clause clauses (eii) through (v) and (vii) of the definition of “"Mortgage File”" and, and each document in the case of a hospitality property, the documents specified in clauses clause (f), (h), and (kviii) of the definition of “"Mortgage File” is in its possession " (without regard to the parenthetical) and any other Specially Designated Mortgage Loan Documents, have been received by it or the possession of a Custodian on its behalf; and (ii) if such report is due more than 180 days after the Closing Date, the recordation/filing contemplated by Section 2.01(e) has been completed (based solely on receipt by the Trustee of the particular recorded/filed documents); (iii) all documents received by it or any Custodian with respect to such Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appear to have been executed (where appropriate) and (C) purport to relate to such Mortgage Loan; and (iv) based on the examinations referred to in Section 2.02(a) above and this Section 2.02(b) and only as to the foregoing documents, the information set forth in the Mortgage LoanLoan Schedule with respect to the items specified in clause (ii) (other than the zip code) of the definition of "Mortgage Loan Schedule" accurately reflects the information set forth in the related Mortgage File. If At any exceptions are noted in time subsequent to the second anniversary of the Closing Date, the Trustee shall, upon request, prepare and deliver to the requesting party (including any Certificateholder or Certificate Owner) an updated version of the exception report annexed to such certificationprovided for in the prior sentence. If a Mortgage Loan Seller, Union Capital or CSFB Mortgage Capital substitutes a Replacement Mortgage Loan for any Defective Mortgage Loan as contemplated by Section 2.03, the Trustee or a Custodian on its behalf shallshall review the documents delivered to it or such Custodian with respect to such Replacement Mortgage Loan, and the Trustee shall deliver a certification comparable to that described in the prior paragraph, in respect of such Replacement Mortgage Loan, on or about the 30th day following the related date of substitution (and, if any exceptions are noted, every 180 90 days after the delivery of such certification thereafter until the earlier earliest of (i) the date on which such exceptions are eliminated and all related recording/filing has been completed, (ii) the date on which such Replacement Mortgage Loan is removed from the Trust Fund and (iii) the second anniversary of the date hereofon which such Replacement Mortgage Loan was added to the Trust Fund). At any time subsequent to the second anniversary of the date on which such Replacement Mortgage Loan is added to the Trust Fund, the Trustee shall, upon request, prepare and thereafter upon request by deliver to the requesting party (including any party hereto Certificateholder or any Rating Agency, distribute Certificate Owner) an updated version of the exception report to provided for in the other parties hereto and to the Rating Agenciesprior sentence.
(bc) None of the Trustee, the Master Servicer, the Special Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loan Loans delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, except as expressly provided in Section 2.01(e), none of the Trustee, the Master Servicer, the Special Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(cd) In performing the reviews contemplated by Subsection subsections (a) and (b) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers related Mortgage Loan Seller as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s 's review of the Mortgage File Files is limited solely to confirming that the documents specified in clauses (ai) through (v), in clause (b)vii) and, in the case of any Mortgage Loan secured by a Mortgage on a hospitality property, in clause (c), (e), (f), (h) and (jviii) of the definition of “"Mortgage File” as of the date hereof have been received " and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all other Specially Designated Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may be, and the Trustee shall, subject to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may beDocuments, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection subsections (fa) and (b) above.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Credit Suisse Fr Bs Mor Sec Cp Com Mor Ps Th Ce Ser 2001-Ck1)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Original Pooled Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Pooled Mortgage Loan Loans and such other assets, together with any other Pooled Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. To the extent that the Mortgage File relates to a Pooled Mortgage Loan that is part of a Serviced Mortgage Loan Group, the Trustee shall also hold such Mortgage File in trust for the use and benefit of the related Serviced Non-Pooled Mortgage Loan Noteholders. Each Master Servicer acknowledges receipt of all of the original Letters of Credit relating to the Serviced Pooled Mortgage Loans for which it is the applicable Master Servicer, copies of which are part of the Mortgage File and agrees to hold such Letters of Credit in trust for the benefit of the Trustee. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto hereto, each Pooled Mortgage Loan Seller and each Underwriter that, as to each Pooled Mortgage Loan, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2Schedule II, (i) the original Mortgage Notes all documents specified in clause (ai) of the definition of “"Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), " are in its possession or the possession of a Custodian on its behalf, and (ii) each such the original Mortgage Note (or, if accompanied by a lost note affidavit, the copy of such Mortgage Note) received by it or copies thereof) any Custodian with respect to such Pooled Mortgage Loan has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears to have been executed (where appropriate) and (C) purports to relate to the such Pooled Mortgage Loan. .
(b) On or about the 360th 45th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Pooled Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b2.02(c) and 2.02(c2.02(d), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format writing to each of the other parties hereto (substantially in the form of Exhibit N), the Pooled Mortgage Loan Sellers, the Serviced Non-Pooled Mortgage Loan Noteholders and the Rating Agencies that Controlling Class Representative that, as to each Original Pooled Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (ai) of the definition of “"Mortgage File”" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a lost note affidavit and indemnity certifying that the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “such Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”Note has been lost), the original or copy of the policies of title insurance documents specified in clause clauses (eii), (iii), (iv) (except with respect to a Non-Trust-Serviced Pooled Mortgage Loan), (viii) (without regard to the verification of the effective date with respect to a title policy or the date of funding with respect to a title commitment) and (x) (if the Pooled Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a leasehold interest) of the definition of “"Mortgage File”, and each document specified in clauses (f), (h), and (k) of the definition of “Mortgage File” is in its possession " have been received by it or the possession of a Custodian on its behalf; and (ii) if such report is due more than 180 days after the Closing Date, the recordation/filing contemplated by Section 2.01(e) has been completed (based solely on receipt by the Trustee of the particular recorded/filed documents or an appropriate receipt of recording/filing therefor); (iii) all documents received by it or any Custodian with respect to such Pooled Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appear to have been executed (where appropriate) and (C) purport to relate to the such Pooled Mortgage Loan. If any exceptions are noted ; (iv) based on the examinations referred to in Section 2.02(a) above and this Section 2.02(b) and only as to the foregoing documents, the information set forth in the exception report annexed Pooled Mortgage Loan Schedule with respect to such certification, the items specified in clause (iii)(A) and clause (vi) of the definition of "Pooled Mortgage Loan Schedule" accurately reflects the information set forth in the related Mortgage File; and (v) the Trustee on behalf of the Trust is shown as the owner of each Mortgage recorded in the name of MERS or a Custodian on its behalf shall, every 180 designee. Every 90 days after such 45th day following the delivery of such certification Closing Date, until the earlier of (i) the date on which such exceptions are eliminated and such recordation/filing has been completed, and (ii) the second anniversary of date on which all the date hereofaffected Pooled Mortgage Loans are removed from the Trust Fund, the Trustee or a Custodian on its behalf shall deliver electronically to the Pooled Mortgage Loan Sellers, the Serviced Non-Pooled Mortgage Loan Noteholders and thereafter upon request by any party hereto or any Rating Agency, distribute the Controlling Class Representative an updated update to the exception report annexed to the other parties hereto certification described above substantially in the form of Exhibit N, which update shall report any remaining outstanding exceptions with respect to each Original Pooled Mortgage Loan. The applicable Master Servicer shall provide the contact name, mailing address and e-mail address of each Serviced Non-Pooled Mortgage Loan Noteholder to the Rating AgenciesTrustee, upon request, to the extent not previously provided thereto, provided that the applicable Master Servicer has such information.
(bc) If a Pooled Mortgage Loan Seller substitutes a Replacement Pooled Mortgage Loan for any Defective Pooled Mortgage Loan as contemplated by Section 2.03, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to such Replacement Pooled Mortgage Loan, and the Trustee shall deliver a certification comparable to that described in the prior paragraph, in respect of such Replacement Pooled Mortgage Loan, on or about the 30th day following the related date of substitution (and, if any exceptions are noted, every 90 days thereafter until the earlier of (i) the date on which such exceptions are eliminated and all related recording/filing has been completed, and (ii) the date on which such Replacement Pooled Mortgage Loan is removed from the Trust Fund). With respect to the documents described in clause (iii) of the definition of "Mortgage File", absent actual knowledge to the contrary, the Trustee may assume, for purposes of the certification(s) delivered in this Section 2.02(a) or to be delivered pursuant to Section 2.02(b), that the Mortgage File for each Pooled Mortgage Loan includes a separate Assignment of Leases. With respect to the documents described in clause (ix) of the definition of "Mortgage File", absent actual knowledge to the contrary or copies of UCC Financing Statements delivered to the Trustee as part of the Mortgage File indicating otherwise, the Trustee may assume, for purposes of the certification(s) to be delivered pursuant to this Section 2.02(b), that the Mortgage File for each Pooled Mortgage Loan should include a copy of one state-level UCC Financing Statement filed in the state of incorporation or organization of the related Borrower for each Mortgaged Property (or with respect to any Pooled Mortgage Loan that has two or more Borrowers, for each related Borrower). To the extent appropriate under applicable law, the UCC Financing Statements to be assigned to the Trust will be delivered on the new national forms and in recordable form and will be filed in the state of incorporation or organization as so indicated on the documents provided.
(d) None of the Depositor, the Certificate Administrator, the Trustee, the Master Servicers, the Special Servicer or any Custodian is under any duty or obligation to (i) determine whether any of the documents specified in clauses (iii), (iv)(B), (v), (vi), (vii), (ix) and (xi) through (xviii) of the definition of "Mortgage File" exist or are required to be delivered by the Pooled Mortgage Loan Sellers in respect of any Pooled Mortgage Loan unless such item(s) are specified on the related Mortgage File Checklist, or (ii) inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Pooled Mortgage Loan Loans delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, except as expressly provided in Section 2.01(e), none of the Depositor, the Trustee, the Master Servicers, the Special Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(ce) In performing the reviews contemplated by Subsection subsections (a) and (b) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers related Pooled Mortgage Loan Seller as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s 's review of the Mortgage File Files is limited solely to confirming that the documents specified in clauses (ai), (bii), (ciii), (eiv) (except with respect to a Non-Trust-Serviced Pooled Mortgage Loan), (f), viii) (hwithout regard to the verification of the effective date with respect to a title policy or the date of funding with respect to a title commitment) and (jx) (if the Pooled Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a leasehold interest) of the definition of “"Mortgage File” as of the date hereof " have been received by it or a Custodian on its behalf and such additional information as will be necessary for making and/or delivering the certifications required by Subsection subsections (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may be, and the Trustee shall, subject to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (fb) above.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr5)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Original Pooled Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Pooled Mortgage Loan Loans and such other assets, together with any other Pooled Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. To the extent that the Mortgage File relates to a Pooled Mortgage Loan that is part of a Serviced Mortgage Loan Group, the Trustee shall also hold such Mortgage File in trust for the use and benefit of the related Serviced Non-Pooled Mortgage Loan Noteholders. Each Master Servicer acknowledges receipt (by it or a Primary Servicer on its behalf) of all of the original Letters of Credit relating to the Serviced Pooled Mortgage Loans for which it is the applicable Master Servicer (copies of which are part of the Mortgage File) and agrees to hold (or cause a Primary Servicer on its behalf to hold ) such Letters of Credit in trust for the benefit of the Trustee; provided, however, that the applicable Master Servicer for the PMCF Pooled Mortgage Loans, for which the applicable Pooled Mortgage Loan Seller is required to deliver the originals of any Letters of Credit to the Trustee, the applicable Master Servicer acknowledges receipt of copies of such Letters of Credit. In the case of the PMCF Pooled Mortgage Loans, the Trustee shall deliver to the applicable Master Servicer upon request any original Letters of Credit relating to the Serviced Pooled Mortgage Loans for which it is the applicable Master Servicer in connection with the performance by such Master Servicer of its duties hereunder. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto hereto, each Pooled Mortgage Loan Seller and each Underwriter that, as to each Pooled Mortgage Loan, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2Schedule II, (i) the original Mortgage Notes all documents specified in clause (ai) of the definition of “"Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), " are in its possession or the possession of a Custodian on its behalf, and (ii) each such the original Mortgage Note (or, if accompanied by a lost note affidavit, the copy of such Mortgage Note) received by it or copies thereof) any Custodian with respect to such Pooled Mortgage Loan has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears to have been executed (where appropriate) and (C) purports to relate to the such Pooled Mortgage Loan. .
(b) On or about the 360th 75th day following the Closing Date, the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Pooled Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b2.02(c) and 2.02(c2.02(d), certify in writing (and, if any exceptions are noted or if the form recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), the Trustee or such Custodian shall deliver updates to any exception list attached hereto as Exhibit A-3 to such certification in a mutually acceptable electronic format accordance with the penultimate sentence of this paragraph) to each of the other parties hereto (substantially in the form of Exhibit N), the Pooled Mortgage Loan Sellers, the Serviced Non-Pooled Mortgage Loan Noteholders (in each case, provided that the Trustee has received notice of the identity of and notice address information for such Serviced Non-Pooled Mortgage Loan Noteholder) and the Rating Agencies that Controlling Class Representative that, as to each Original Pooled Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (ai) of the definition of “"Mortgage File”, the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (e) of the definition of “Mortgage File”, and each document specified in clauses (f), (h), and (k) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(b) None of the Trustee, the Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loan delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of the Trustee, the Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(c) In performing the reviews contemplated by Subsection (a) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clauses (a), (b), (c), (e), (f), (h) and (j) of the definition of “Mortgage File” as of the date hereof have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” " and all allonges thereto, if any (or, or a copy of the such Mortgage NotesNote, together with a “lost note affidavit” affidavit and indemnity certifying that the relevant original of such Mortgage Note has been lost), are the original or copy of documents specified in its possession clauses (ii), (iii), (iv) (except with respect to a Non-Trust-Serviced Pooled Mortgage Loan), (viii) (without regard to the verification of the effective date with respect to a title policy or the possession date of funding with respect to a title commitment), (x) (if the Pooled Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a Custodian on its behalf, leasehold interest) and (iixx) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (solely in the case of the Pooled Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed Loans secured by the Borrowers), (B) appears to have been executed and (C) purports to relate to Mortgaged Properties identified on the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Pooled Mortgage Loan Increase on the Additional Closing Date or with respect to such additionSchedule as "RRI Portfolio", as the case may be"Marriott Houston Westchase", and the Trustee shall"Norfolk Marriott", subject to 2.02(b) and 2.02(g)"Trumbull Marriott", certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase"HRC Portfolio 3", the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”"HRC Xxxxxxxxx 0", and/or"XXX Portfolio 2", in the case of the addition of Additional Sites or Additional Borrower Sites"Candlewood Suites Northwoods Mall", the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”"Clarion Inn & Suites Orlando", the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) above."Holiday Inn Express
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2007-Pwr18)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Original Pooled Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Pooled Mortgage Loan Loans and such other assets, together with any other Pooled Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. To the extent that the Mortgage File for the Ballston Common Pooled Mortgage Loan or the Renaissance Pooled Mortgage Loan relates to the related B-Note Mortgage Loan, the Trustee shall also hold such Mortgage File in trust for the use and benefit of the related B-Note Holder. Each Master Servicer acknowledges receipt of all of the original Letters of Credit relating to the Serviced Pooled Mortgage Loans for which it is the applicable Master Servicer, copies of which are part of the Mortgage File and agrees to hold such Letters of Credit in trust for the benefit of the Trustee. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto hereto, each Pooled Mortgage Loan Seller and each Underwriter that, as to each Pooled Mortgage Loan, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2Schedule II, (i) the original Mortgage Notes all documents specified in clause (ai) of the definition of “"Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), " are in its possession or the possession of a Custodian on its behalf, and (ii) each such the original Mortgage Note (or, if accompanied by a lost note affidavit, the copy of such Mortgage Note) received by it or copies thereof) any Custodian with respect to such Pooled Mortgage Loan has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears to have been executed (where appropriate) and (C) purports to relate to the such Pooled Mortgage Loan. , and further that a copy of each of the 1290 Avenue of the Americas Servicing Agreement, the 1290 Avenue of the Americas Intercreditor Agreement, the Ballston Common Co-Lender Agreement and the Renaissance Co-Lender Agreement is in its possession or the possession of a Custodian on its behalf.
(b) On or about the 360th 45th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), every 90 days thereafter until the earlier of (i) the date on which such exceptions are eliminated and such recordation/filing has been completed, and (ii) the date on which all the affected Pooled Mortgage Loans are removed from the Trust Fund), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Pooled Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b2.02(c) and 2.02(c2.02(d), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format writing to each of the other parties hereto (substantially in the form of Exhibit N), the Pooled Mortgage Loan Sellers, the B-Note Holders and the Rating Agencies that Controlling Class Representative that, as to each Original Pooled Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification): ):
(i) the original Mortgage Note specified in clause (ai) of the definition of “"Mortgage File”" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a lost note affidavit and indemnity certifying that the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “such Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”Note has been lost), the original or copy of the policies of title insurance documents specified in clause clauses (eii), (iii), (iv) (except with respect to the 1290 Avenue of the Americas Pooled Mortgage Loan), (viii) (without regard to the verification of the effective date with respect to a title policy or the date of funding with respect to a title commitment) and (x) (if the Pooled Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a leasehold interest) of the definition of “"Mortgage File”, and each document specified in clauses (f), (h), and (k) of the definition of “Mortgage File” is in its possession " have been received by it or the possession of a Custodian on its behalf; and (ii) if such report is due more than 180 days after the Closing Date, the recordation/filing contemplated by Section 2.01(e) has been completed (based solely on receipt by the Trustee of the particular recorded/filed documents or an appropriate receipt of recording/filing therefor); (iii) all documents received by it or any Custodian with respect to such Pooled Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appear to have been executed (where appropriate) and (C) purport to relate to the such Pooled Mortgage Loan; and (iv) based on the examinations referred to in Section 2.02(a) above and this Section 2.02(b) and only as to the foregoing documents, the information set forth in the Pooled Mortgage Loan Schedule with respect to the items specified in clause (iii)(A) and clause (vi) of the definition of "Pooled Mortgage Loan Schedule" accurately reflects the information set forth in the related Mortgage File. If a Pooled Mortgage Loan Seller substitutes a Replacement Pooled Mortgage Loan for any exceptions are noted in the exception report annexed to such certificationDefective Pooled Mortgage Loan as contemplated by Section 2.03, the Trustee or a Custodian on its behalf shallshall review the documents delivered to it or such Custodian with respect to such Replacement Pooled Mortgage Loan, and the Trustee shall deliver a certification comparable to that described in the prior paragraph, in respect of such Replacement Pooled Mortgage Loan, on or about the 30th day following the related date of substitution (and, if any exceptions are noted, every 180 90 days after the delivery of such certification thereafter until the earlier of (i) the date on which such exceptions are eliminated and all related recording/filing has been completed, and (ii) the second anniversary date on which such Replacement Pooled Mortgage Loan is removed from the Trust Fund). With respect to the documents described in clause (iii) of the date hereofdefinition of "Mortgage File", and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report absent actual knowledge to the other parties hereto and contrary, the Trustee may assume, for purposes of the certification(s) delivered in this Section 2.02(a) or to be delivered pursuant to Section 2.02(b), that the Mortgage File for each Pooled Mortgage Loan includes a separate Assignment of Leases. With respect to the Rating Agenciesdocuments described in clause (ix) of the definition of "Mortgage File", absent actual knowledge to the contrary or copies of UCC Financing Statements delivered to the Trustee as part of the Mortgage File indicating otherwise, the Trustee may assume, for purposes of the certification(s) to be delivered pursuant to this Section 2.02(b), that the Mortgage File for each Pooled Mortgage Loan should include a copy of one state-level UCC Financing Statement filed in the state of incorporation or organization of the related Borrower for each Mortgaged Property (or with respect to any Pooled Mortgage Loan that has two or more Borrowers, for each related Borrower). To the extent appropriate under applicable law, the UCC Financing Statements to be assigned to the Trust will be delivered on the new national forms and in recordable form and will be filed in the state of incorporation or organization as so indicated on the documents provided.
(bc) None of the Depositor, the Certificate Administrator, the Trustee, the Master Servicers, the Special Servicer or any Custodian is under any duty or obligation to (i) determine whether any of the documents specified in clauses (iii), (iv)(B), (v), (vi), (vii), (ix) and (xi) through (xviii) of the definition of "Mortgage File" exist or are required to be delivered by the Pooled Mortgage Loan Sellers in respect of any Pooled Mortgage Loan unless such item(s) are specified on the related Mortgage File Checklist, or (ii) inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Pooled Mortgage Loan Loans delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, except as expressly provided in Section 2.01(e), none of the Depositor, the Trustee, the Master Servicers, the Special Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(cd) In performing the reviews contemplated by Subsection subsections (a) and (b) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers related Pooled Mortgage Loan Seller as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s 's review of the Mortgage File Files is limited solely to confirming that the documents specified in clauses (ai), (bii), (ciii), (eiv) (except with respect to the 1290 Avenue of the Americas Pooled Mortgage Loan), (f), viii) (hwithout regard to the verification of the effective date with respect to a title policy or the date of funding with respect to a title commitment) and (jx) (if the Pooled Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a leasehold interest) of the definition of “"Mortgage File” as of the date hereof " have been received by it or a Custodian on its behalf and such additional information as will be necessary for making and/or delivering the certifications required by Subsection subsections (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may be, and the Trustee shall, subject to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (fb) above.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Prudential Securities Sec Fin Corp Com Mort Tr 2003 Pwr1)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section SECTION 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files, (ii) the Loan REMIC Interests and the Loan REMIC Declarations and (iiiii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Mortgage Loans, the Loan REMIC Interests and such other assets, together with any other assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. The Trustee shall hold any Letter of Credit in a custodial capacity only and shall have no obligation to maintain, extend the term of, enforce or otherwise pursue any rights under such Letter of Credit. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto and to the Mortgage Loan Sellers that, as to each Mortgage Loan, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2EXHIBIT B-2, (i) the original Specially Designated Mortgage Notes specified in clause Loan Documents (awithout regard to Assignments of Leases, modification agreements and assumption agreements) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, behalf and (ii) each such Mortgage Note (or copies thereof) has Loan Documents have been reviewed by it or by such Custodian on its behalf and each (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowersrelated Borrower and lender), (B) appears to have been executed and (C) purports to relate to the such Mortgage Loan. .
(b) On or about the 360th 60th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by SECTION 2.01(E) has not been completed (based solely on receipt by the Trustee or a Custodian on its behalf of the particular documents showing evidence of the recordation/filing), every 90 days thereafter until the earlier of (i) the date on which such exceptions are eliminated and such recordation/filing has been completed and (ii) the date on which all the affected Mortgage Loans are removed from the Trust Fund), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)SECTIONS 1.05, 2.02(b2.02(C) and 2.02(c2.02(D), certify in writing (substantially in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format of EXHIBIT B-3) to each of the other parties hereto hereto, the Mortgage Loan Sellers and the Rating Agencies that Controlling Class Representative that, as to each Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification, which exception report, if and to the extent applicable and delivered to any Mortgage Loan Seller shall constitute notice to such Mortgage Loan Seller of any Document Defects identified thereon): (i) if such Mortgage Loan is a Serviced Mortgage Loan, the original Mortgage Note specified in clause CLAUSE (aA)(I) of the definition of “"Mortgage File”" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a "lost note affidavit and indemnity" certifying that the original of such Mortgage Note has been lost), the original or copies a copy of the Mortgages and deeds of trust each document specified in clause CLAUSES (bA)(II), (A)(IV), and (A)(VII) of the definition of “"Mortgage File”", the original assignments originals or copies of Mortgages any documents specified in clause CLAUSES (cA)(III), (A)(V), (A)(IX), (A)(X), (A)(XI), (A)(XII), (A)(XIII) and (A)(XIV) of the definition of “"Mortgage File”, " (to the original or copy of extent that the policies of title insurance specified in clause Trustee has actual knowledge that such documents exist) and any other Specially Designated Mortgage Loan Documents (e) of the definition of “Mortgage File”, without regard to modification agreements and each document specified in clauses (fassumption agreements), (h), and (k) of have been received by the definition of “Mortgage File” is in its possession Trustee or the possession of a Custodian on its behalf; (ii) if such Mortgage Loan is the [Separately Serviced Mortgage Loan], the original Mortgage Note specified in CLAUSE (B)(I) of the definition of "Mortgage File" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a "lost note affidavit and indemnity" certifying that the original of such Mortgage Note has been lost), and the original or a copy of each document specified in CLAUSES (B)(II), (B)(III) and (iiB)(IV) of the definition of "Mortgage File", have been received by the Trustee or a Custodian on its behalf; (iii) if such report is more than 180 days after the Closing Date, the recordation/filing contemplated by SECTION 2.01(E) (except in the case of the [Separately Serviced Mortgage Loan]) has been completed (based solely on receipt by the Trustee or a Custodian on its behalf of the particular recorded/filed documents or an appropriate receipt of recording/filing therefor); (iv) all documents received by it or any Custodian with respect to such Mortgage Loan have been reviewed by it the Trustee or by such a Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowersrelated Borrower and lender), (B) appear to have been executed (where appropriate) and (C) purport to relate to such Mortgage Loan; and (v) based on the examinations referred to in SECTION 2.02(A) above and this SECTION 2.02(B) and only as to the foregoing documents, the information set forth in the Mortgage Loan. If any exceptions are noted Loan Schedule with respect to the items specified in CLAUSES (III)(A) and (VI)(B) of the definition of "Mortgage Loan Schedule" accurately reflects the information set forth in the exception report annexed Mortgage File. The Trustee shall deliver electronically or via its website to such certificationthe Controlling Class Representative and, upon request, to any other party to this Agreement, the Trustee Rating Agencies or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such Certificateholders current exception reports for as long as there are exceptions are eliminated and (ii) the second anniversary of the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agenciesoutstanding.
(bc) None of the Trustee, the Master Servicer, the Special Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loan Loans delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, except as expressly provided in SECTION 2.01(E), none of the Trustee, the Master Servicer, the Special Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(cd) In performing the reviews contemplated by Subsection SUBSECTIONS (aA) and (B) above, the Trustee or a any Custodian on its behalf may conclusively rely on the Borrowers related Mortgage Loan Seller as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any 's or such Custodian’s 's review of the Mortgage File Files is limited solely to confirming that the documents specified in clauses CLAUSES (aA)(I), (bA)(II), (cA)(III) (to the extent that the Trustee has actual knowledge that such documents exist), (eA)(IV), (fA)(V) (to the extent that the Trustee has actual knowledge that such documents exist), (hA)(VI) (to the extent that the Trustee has actual knowledge that such documents exist), (A)(VII), (A)(IX) through (A)(XIII) (to the extent that the Trustee has actual knowledge that such documents exist), (A)(XIV), (B)(I), (B)(II), (B)(III) and (jB)(IV) of the definition of “"Mortgage File” as of the date hereof " and any other Specially Designated Mortgage Loan Documents (without regard to modification agreements and assumption agreements) have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection SUBSECTIONS (aA) and (B) above.
(d) . With respect to each UCC Financing Statement included any of the documents described in CLAUSES (A)(III), (A)(V), (A)(VI), (A)(IX), (A)(X), (A)(XI), (A)(XII) and (A)(XIII) of the definition of "Mortgage File (including after File", the addition Trustee shall be deemed to have knowledge of the existence of the subject document in respect of any Additional Sites or Additional Borrower Sites), Serviced Mortgage Loan if the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior subject document is listed on any closing binder index that may be delivered to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; providedTrustee as part of, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgiadelivery of, the Servicer shall receive those Mortgage File for such Serviced Mortgage Loan. With respect to the documents on behalf described in CLAUSE (VIII) of the Trust and definition of "Mortgage File", absent actual knowledge to the Servicer shall deliver contrary or copies of UCC Financing Statements delivered to the Trustee originals as part of all such the Mortgage File indicating otherwise, the Trustee may assume, for purposes of the certification(s) to be made or otherwise delivered pursuant to this SECTION 2.02, that the Mortgage File for each Mortgage Loan Documents received by should include one state-level UCC Financing Statement filed in the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with state of incorporation or organization of the provisions set forth in this Section 2.02(e), including, without limitation, related Borrower for each Mortgaged Property (or with respect to any Mortgage Loan Increasethat has two or more Borrowers, any documents for each related Borrower). To the extent appropriate under applicable law, the UCCs to be included assigned to the Trust will be delivered on the new national forms and in recordable form and will be filed in the Mortgage File relating to such Mortgage Loan Increase and any review state of incorporation or organization as so indicated on the documents provided. To the extent the Trustee has actual knowledge or is notified of any document to be performed in relation to the Closing Date fixture or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increasereal property UCC Financing Statements, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate file an assignment to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Mortgage Loan Increase on the Additional Closing Date or Trust with respect to such addition, as the case may be, and the Trustee shall, subject to 2.02(b) and 2.02(g), certify UCC Financing Statements in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each appropriate jurisdiction under the UCC at the expense of the other parties hereto and related Mortgage Loan Seller (to the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) extent provided in the case of a related Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(ivPurchase Agreement), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) above.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by ------------ its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Mortgage Loan and all documents delivered to it that constitute portions of the Mortgage File and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage File, and that it holds and will hold the Mortgage Loan and such other assets, together with any other assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future Securityholders. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2, to
(i) the original Mortgage Notes Note specified in clause (a) of the definition of “"Mortgage File” " and all allonges thereto, if any (or, a copy of the Mortgage NotesNote, together with a “"lost note affidavit” " certifying that the relevant original of the Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies copy thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 360th 60th day following the Closing Settlement Date and, if any exceptions are noted or if the recordation/filing contemplated by Section ------- 2.01(e) has not been completed (based solely on receipt by the Trustee of the ------ particular documents showing evidence of the recordation/filing), every 180 days thereafter until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Settlement Date, the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d), 2.02(b) and 2.02(c), certify in the form attached hereto as --------------- ------ ------ Exhibit A-3 B-3 in a mutually acceptable electronic format to each of the other ----------- parties hereto and hereto, the Rating Agencies and the Controlling Class Representative that (except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (a) of the definition of “"Mortgage File”", the original or copies copy of the Mortgages and deeds of trust each recorded document specified in clause clauses (b) through (e) of the definition of “"Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”", the original or copy of the policies policy of title insurance specified in clause (eg) of the definition of “"Mortgage File”, " and each document specified in clauses (f), clause (h), and (k) of the definition of “"Mortgage File” " is in its possession or the possession of a Custodian on its behalf; (ii) the information contained in items (a)(i) (without respect to zip code) and (iib)(i) of the definition of Mortgage Loan Schedule is correct; (iii) if such report is due after June 1, 2002, the recordation/filing contemplated by Section 2.01(e) has been completed (based solely on receipt by -------------- the Trustee of the particular recorded/filed documents); and (iv) all documents received by it or any Custodian with respect to such Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(b) None of the Trustee, the Servicer, the Special Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loan delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of the Trustee, the Servicer, the Special Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(c) In performing the reviews contemplated by Subsection subsection (a) above, the ------------- Trustee or a Custodian on its behalf may conclusively rely on the Borrowers Seller as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s 's and any Custodian’s 's review of the Mortgage File is limited solely to confirming that the documents specified in clauses (a), (b), (c), (d), (e), (f), (hg) and (jh) of the definition of “"Mortgage -------- File” as of the date hereof " have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection subsection (a) ------------- above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may be, and the Trustee shall, subject to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) above.
Appears in 1 contract
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Original Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Mortgage Loan Loans and such other assets, together with any other Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. The Trustee or such Custodian (acting through the applicable Master Servicer) shall hold any Letter of Credit in a custodial capacity only and shall have no obligation to maintain, extend the term of, enforce or otherwise pursue any rights under such Letter of Credit which obligation the applicable Master Servicer hereby undertakes. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto and the Mortgage Loan Sellers that, as to each Original Mortgage Loan, except as to any LOC Cash Reserve and except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2B-2, (i) the original Specially Designated Mortgage Notes specified in clause Loan Documents (awithout regard to Assignments of Leases, modification agreements and assumption agreements) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has Loan Documents have been reviewed by it or by such Custodian on its behalf and (A) appears appear regular on its their face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears appear to have been executed and (C) purports purport to relate to the such Mortgage Loan. To the extent that the contents of the Mortgage File for any A Loan relate to the corresponding B Loan or Washington Center Junior Loans, as the case may be, the Trustee will also hold such Mortgage File in trust for the benefit of the holder of the related B Loan or the Washington Center Junior Loans.
(b) On or about the 360th 75th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), every 90 days thereafter until the earlier of (i) the date on which such exceptions are eliminated and such recordation/filing has been completed, and (ii) the date on which all the affected Mortgage Loans are removed from the Trust Fund), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b2.02(c) and 2.02(c2.02(d), certify in writing (substantially in the form attached hereto as of Exhibit A-3 in a mutually acceptable electronic format B-3) to each of the other parties hereto hereto, the Mortgage Loan Sellers and the Rating Agencies that Controlling Class Representative that, as to each Original Mortgage Loan then subject to this Agreement (except as to any LOC Cash Reserve and except as specifically identified in any exception report annexed to such certification): ):
(i) the original Mortgage Note specified in clause (aa)(i) of the definition of “"Mortgage File”" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a lost note affidavit and indemnity certifying that the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “such Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”Note has been lost), the original or copy of the policies of title insurance documents specified in clause clauses (ea)(ii) through (a)(v), (a)(vii), (a)(x), (a)(xii) and (a)(xiii) of the definition of “"Mortgage File”" and, in the case of a hospitality property, the documents specified in clause (a)(viii) of the definition of "Mortgage File" (without regard to the parenthetical) and any other Specially Designated Mortgage Loan Documents (without regard to modification agreements and assumption agreements), have been received by it or a Custodian on its behalf; (ii) if such Mortgage Loan is the Great Lakes Crossing Mortgage Loan, the original Mortgage Note specified in clause (b)(i) of the definition of "Mortgage File" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a "lost note affidavit and indemnity" certifying that the original of such Mortgage Note has been lost), and the original or a copy of each document specified in clauses (f), (h), b)(ii) and (kb)(iii) of the definition of “"Mortgage File” is in its possession ", have been received by the Trustee or the possession of a Custodian on its behalf; and (iiiii) if such report is due more than 180 days after the Closing Date, the recordation/filing contemplated by Section 2.01(e) (except in the case of the Great Lakes Crossing Mortgage Loan) has been completed (based solely on receipt by the Trustee of the particular recorded/filed documents or an appropriate receipt of recording/filing therefor); (iv) all documents received by it or any Custodian with respect to such Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appear to have been executed (where appropriate) and (C) purport to relate to such Mortgage Loan; and (v) based on the examinations referred to in Section 2.02(a) above and this Section 2.02(b) and only as to the foregoing documents, the information set forth in the Mortgage LoanLoan Schedule with respect to the items specified in clause (iii)(A) and clause (vi) of the definition of "Mortgage Loan Schedule" accurately reflects the information set forth in the related Mortgage File. If a Mortgage Loan Seller or the Column Performance Guarantor substitutes a Replacement Mortgage Loan for any exceptions are noted in the exception report annexed to such certificationDefective Mortgage Loan as contemplated by Section 2.03, the Trustee or a Custodian on its behalf shallshall review the documents delivered to it or such Custodian with respect to such Replacement Mortgage Loan, and the Trustee shall deliver a certification comparable to that described in the prior paragraph, in respect of such Replacement Mortgage Loan, on or about the 30th day following the related date of substitution (and, if any exceptions are noted, every 180 90 days after the delivery of such certification thereafter until the earlier of (i) the date on which such exceptions are eliminated and all related recording/filing has been completed, and (ii) the second anniversary date on which such Replacement Mortgage Loan is removed from the Trust Fund). With respect to the documents described in clause (a)(iii) of the date hereofdefinition of "Mortgage File", and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report absent actual knowledge to the other parties hereto and contrary, the Trustee may assume, for purposes of the certification(s) delivered in this Section 2.02(a) or to be delivered pursuant to Section 2.02(b), that the Mortgage File for each Mortgage Loan includes a separate Assignment of Leases. With respect to the Rating Agenciesdocuments described in clause (a)(viii) of the definition of "Mortgage File", absent actual knowledge to the contrary or copies of UCC Financing Statements delivered to the Trustee as part of the Mortgage File indicating otherwise, the Trustee may assume, for purposes of the certification(s) to be delivered pursuant to this Section 2.02(b), that the Mortgage File for each Mortgage Loan should include one state-level UCC Financing Statement filing in the state of incorporation or organization of the related Borrower for each Mortgaged Property (or with respect to any Mortgage Loan that has two or more Borrowers, for each related Borrower). To the extent appropriate under applicable law, the UCC-2s and UCC-3s in favor of the Trustee will be delivered on the new national forms and in recordable form and will be filed in the state of incorporation or organization as so indicated on the documents provided.
(bc) None of the Trustee, the Servicer Master Servicers, the Special Servicers or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loan Loans delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their faceface or to determine whether any of the representations and warranties made by any Mortgage Loan Seller in its respective Mortgage Loan Purchase Agreement are true and correct when made. Furthermore, except as expressly provided in Section 2.01(e), none of the Trustee, the Servicer Master Servicers, the Special Servicers or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(cd) In performing the reviews contemplated by Subsection subsections (a) and (b) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers related Mortgage Loan Seller as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s 's review of the Mortgage File Files is limited solely to confirming that the documents specified in clauses (aa)(i) through (a)(v), clause (b)a)(vii) and, in the case of any Mortgage Loan secured by a Mortgage on a hospitality property, clause (c), (e), (f), (h) and (ja)(viii) of the definition of “"Mortgage File” as of the date hereof have been received " and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all other Specially Designated Mortgage Loan Documents executed (without regard to modification agreements and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(eassumption agreements), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may be, and the Trustee shall, subject to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection subsections (fa) and (b) above.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Credit Suisse First Boston Mor Sec Corp Com Cer Ser 2003-C3)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Original Pooled Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Pooled Mortgage Loan Loans and such other assets, together with any other Pooled Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. To the extent that the Mortgage File relates to a Pooled Mortgage Loan that is part of a Serviced Mortgage Loan Group, the Trustee shall also hold such Mortgage File in trust for the use and benefit of the related Serviced Non-Pooled Mortgage Loan Noteholders. Each Master Servicer acknowledges receipt of all of the original Letters of Credit relating to the Serviced Pooled Mortgage Loans for which it is the applicable Master Servicer, copies of which are part of the Mortgage File and agrees to hold such Letters of Credit in trust for the benefit of the Trustee. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto hereto, each Pooled Mortgage Loan Seller and each Underwriter that, as to each Pooled Mortgage Loan, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2Schedule II, (i) the original Mortgage Notes all documents specified in clause (ai) of the definition of “"Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), " are in its possession or the possession of a Custodian on its behalf, and (ii) each such the original Mortgage Note (or, if accompanied by a lost note affidavit, the copy of such Mortgage Note) received by it or copies thereof) any Custodian with respect to such Pooled Mortgage Loan has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears to have been executed (where appropriate) and (C) purports to relate to the such Pooled Mortgage Loan. .
(b) On or about the 360th 45th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Pooled Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b2.02(c) and 2.02(c2.02(d), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format writing to each of the other parties hereto (substantially in the form of Exhibit N), the Pooled Mortgage Loan Sellers, the Serviced Non-Pooled Mortgage Loan Noteholders (in each case, provided that the Trustee has received notice of the identity of and notice address information for such Serviced Non-Pooled Mortgage Loan Noteholder) and the Rating Agencies that Controlling Class Representative that, as to each Original Pooled Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (ai) of the definition of “"Mortgage File”" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a lost note affidavit and indemnity certifying that the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “such Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”Note has been lost), the original or copy of the policies of title insurance documents specified in clause clauses (eii), (iii), (iv) (except with respect to a Non-Trust-Serviced Pooled Mortgage Loan), (viii) (without regard to the verification of the effective date with respect to a title policy or the date of funding with respect to a title commitment), (x) (if the Pooled Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a leasehold interest) and (xx) (solely in the case of the Pooled Mortgage Loans secured by the Mortgaged Properties identified on the Pooled Mortgage Loan Schedule as "Courtyard Marriott DC", "Holiday Inn Council Bluffs" and "Hampton Inn Council Bluffs") of the definition of “"Mortgage File”, and each document specified in clauses (f), (h), and (k) of the definition of “Mortgage File” is in its possession " have been received by it or the possession of a Custodian on its behalf; and (ii) if such report is due more than 180 days after the Closing Date, the recordation/filing contemplated by Section 2.01(e) has been completed (based solely on receipt by the Trustee of the particular recorded/filed documents or an appropriate receipt of recording/filing therefor); (iii) all documents received by it or any Custodian with respect to such Pooled Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appear to have been executed (where appropriate) and (C) purport to relate to the such Pooled Mortgage Loan. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of ; (iiv) the date on which such exceptions are eliminated and (ii) the second anniversary of the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(b) None of the Trustee, the Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loan delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of the Trustee, the Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(c) In performing the reviews contemplated by Subsection (a) above, the Trustee or a Custodian on its behalf may conclusively rely based on the Borrowers as examinations referred to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clauses (a), (b), (c), (e), (f), (h) and (j) of the definition of “Mortgage File” as of the date hereof have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may be, and the Trustee shall, subject to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) above.in
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files, (ii) the Loan REMIC Interests and the Loan REMIC Declarations and (iiiii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Mortgage Loans, the Loan REMIC Interests and such other assets, together with any other assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. The Trustee shall hold any Letter of Credit in a custodial capacity only and shall have no obligation to maintain, extend the term of, enforce or otherwise pursue any rights under such Letter of Credit. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto and to the Mortgage Loan Sellers that, as to each Mortgage Loan, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2B-2, (i) the original Specially Designated Mortgage Notes specified in clause Loan Documents (awithout regard to Assignments of Leases, modification agreements and assumption agreements) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, behalf and (ii) each such Mortgage Note (or copies thereof) has Loan Documents have been reviewed by it or by such Custodian on its behalf and each (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowersrelated Borrower and lender), (B) appears to have been executed and (C) purports to relate to the such Mortgage Loan. .
(b) On or about the 360th 60th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee or a Custodian on its behalf of the particular documents showing evidence of the recordation/filing), every 90 days thereafter until the earlier of (i) the date on which such exceptions are eliminated and such recordation/filing has been completed and (ii) the date on which all the affected Mortgage Loans are removed from the Trust Fund), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.05, 2.02(b2.02(c) and 2.02(c2.02(d), certify in writing (substantially in the form attached hereto as of Exhibit A-3 in a mutually acceptable electronic format B-3) to each of the other parties hereto hereto, the Mortgage Loan Sellers and the Rating Agencies that Controlling Class Representative that, as to each Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification, which exception report, if and to the extent applicable and delivered to any Mortgage Loan Seller shall constitute notice to such Mortgage Loan Seller of any Document Defects identified thereon): (i) if such Mortgage Loan is a Serviced Mortgage Loan, the original Mortgage Note specified in clause (aa)(i) of the definition of “"Mortgage File”" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a "lost note affidavit and indemnity" certifying that the original of such Mortgage Note has been lost), the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”, the original or a copy of the policies of title insurance specified in clause (e) of the definition of “Mortgage File”, and each document specified in clauses (fa)(ii), (ha)(iv), and (ka)(vii) of the definition of “"Mortgage File” is ", originals or copies of any documents specified in its possession clauses (a)(iii), (a)(v), (a)(ix), (a)(x), (a)(xi), (a)(xii), (a)(xiii) and (a)(xiv) of the definition of "Mortgage File" (to the extent that the Trustee has actual knowledge that such documents exist) and any other Specially Designated Mortgage Loan Documents (without regard to modification agreements and assumption agreements), have been received by the Trustee or the possession of a Custodian on its behalf; (ii) if such Mortgage Loan is the [Separately Serviced Mortgage Loan], the original Mortgage Note specified in clause (b)(i) of the definition of "Mortgage File" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a "lost note affidavit and indemnity" certifying that the original of such Mortgage Note has been lost), and the original or a copy of each document specified in clauses (b)(ii), (b)(iii) and (iib)(iv) of the definition of "Mortgage File", have been received by the Trustee or a Custodian on its behalf; (iii) if such report is more than 180 days after the Closing Date, the recordation/filing contemplated by Section 2.01(e) (except in the case of the [Separately Serviced Mortgage Loan]) has been completed (based solely on receipt by the Trustee or a Custodian on its behalf of the particular recorded/filed documents or an appropriate receipt of recording/filing therefor); (iv) all documents received by it or any Custodian with respect to such Mortgage Loan have been reviewed by it the Trustee or by such a Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowersrelated Borrower and lender), (B) appear to have been executed (where appropriate) and (C) purport to relate to such Mortgage Loan; and (v) based on the -77- examinations referred to in Section 2.02(a) above and this Section 2.02(b) and only as to the foregoing documents, the information set forth in the Mortgage Loan. If any exceptions are noted Loan Schedule with respect to the items specified in clauses (iii)(A) and (vi)(B) of the definition of "Mortgage Loan Schedule" accurately reflects the information set forth in the exception report annexed Mortgage File. The Trustee shall deliver electronically or via its website to such certificationthe Controlling Class Representative and, upon request, to any other party to this Agreement, the Trustee Rating Agencies or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such Certificateholders current exception reports for as long as there are exceptions are eliminated and (ii) the second anniversary of the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agenciesoutstanding.
(bc) None of the Trustee, the Master Servicer, the Special Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loan Loans delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, except as expressly provided in Section 2.01(e), none of the Trustee, the Master Servicer, the Special Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(cd) In performing the reviews contemplated by Subsection subsections (a) and (b) above, the Trustee or a any Custodian on its behalf may conclusively rely on the Borrowers related Mortgage Loan Seller as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any 's or such Custodian’s 's review of the Mortgage File Files is limited solely to confirming that the documents specified in clauses (aa)(i), (ba)(ii), (ca)(iii) (to the extent that the Trustee has actual knowledge that such documents exist), (ea)(iv), (fa)(v) (to the extent that the Trustee has actual knowledge that such documents exist), (ha)(vi) (to the extent that the Trustee has actual knowledge that such documents exist), (a)(vii), (a)(ix) through (a)(xiii) (to the extent that the Trustee has actual knowledge that such documents exist), (a)(xiv), (b)(i), (b)(ii), (b)(iii) and (jb)(iv) of the definition of “"Mortgage File” as of the date hereof " and any other Specially Designated Mortgage Loan Documents (without regard to modification agreements and assumption agreements) have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection subsections (a) and (b) above.
(d) . With respect to each UCC Financing Statement included any of the documents described in clauses (a)(iii), (a)(v), (a)(vi), (a)(ix), (a)(x), (a)(xi), (a)(xii) and (a)(xiii) of the definition of "Mortgage File (including after File", the addition Trustee shall be deemed to have knowledge of the existence of the subject document in respect of any Additional Sites or Additional Borrower Sites), Serviced Mortgage Loan if the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior subject document is listed on any closing binder index that may be delivered to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; providedTrustee as part of, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgiadelivery of, the Servicer shall receive those Mortgage File for such Serviced Mortgage Loan. With respect to the documents on behalf described in clause (viii) of the Trust and definition of "Mortgage File", absent actual knowledge to the Servicer shall deliver contrary or copies of UCC Financing Statements delivered to the Trustee originals as part of all such the Mortgage File indicating otherwise, the Trustee may assume, for purposes of the certification(s) to be made or otherwise delivered pursuant to this Section 2.02, that the Mortgage File for each Mortgage Loan Documents received by should include one state-level UCC Financing Statement filed in the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with state of incorporation or organization of the provisions set forth in this Section 2.02(e), including, without limitation, related Borrower for each Mortgaged Property (or with respect to any Mortgage Loan Increasethat has two or more Borrowers, any documents for each related Borrower). To the extent appropriate under applicable law, the UCCs to be included assigned to the Trust will be delivered on the new national forms and in recordable form and will be filed in the Mortgage File relating to such Mortgage Loan Increase and any review state of incorporation or organization as so indicated on the documents provided. To the extent the Trustee has actual knowledge or is notified of any document to be performed in relation to the Closing Date fixture or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increasereal property UCC Financing Statements, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate file an assignment to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Mortgage Loan Increase on the Additional Closing Date or Trust with respect to such addition, as the case may be, and the Trustee shall, subject to 2.02(b) and 2.02(g), certify UCC Financing Statements in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each appropriate jurisdiction under the UCC at the expense of the other parties hereto and related Mortgage Loan Seller (to the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) extent provided in the case of a related Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(ivPurchase Agreement), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) above.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Securities Inc)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Original Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Mortgage Loan Loans and such other assets, together with any other Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. The Trustee (acting through the applicable Master Servicer) shall hold any Letter of Credit in a custodial capacity only and shall have no obligation to maintain, extend the term of, enforce or otherwise pursue any rights under such Letter of Credit. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto and the Mortgage Loan Sellers that, as to each Original Mortgage Loan, except as to any LOC Cash Reserve and except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2B-2, (i) the original Specially Designated Mortgage Notes specified in clause (a) of the definition of “Mortgage File” Loan Documents and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), allonges are in its possession or the possession of a Custodian on its behalf, and (ii) each such Specially Designated Mortgage Loan Documents, and all Mortgage Note (or copies thereof) has allonges, have been reviewed by it or by such Custodian on its behalf and (A) appears appear regular on its their face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears appear to have been executed and (C) purports purport to relate to such Mortgage Loan; provided that with respect to any Letters of Credit, the Trustee's certification shall be based upon copies of the Letters of Credit (including related amendment, assignment and transfer documents) delivered to the Trustee or its Custodian. To the extent that the contents of the Mortgage File for any A Loan relate to the corresponding B Loan, the Trustee will also hold such Mortgage File in trust for the benefit of the holder of the related B Loan. Further, with respect to the documents described in clause (viii) of the definition of "Mortgage File," absent actual knowledge to the contrary or copies of UCC Financing Statements delivered to the Trustee as part of the Mortgage File indicating otherwise, the Trustee may assume, for purposes of the filings and certification delivered in this Section 2.02(a), that the related Mortgage File should include one state level UCC Financing Statement filing in the state of incorporation or organization for each Borrower and, if such state level UCC Financing Statement was not filed on the national form, one local UCC Financing Statement filing in the county of each related Mortgaged Property. The UCC-2's and UCC-3's in favor of the Trustee referred to in clause (viii) of the definition of "Mortgage File" will be delivered in form suitable for filing and will be filed in the state of incorporation or organization of the related Borrower or the county wherein the related Mortgaged Property is located, as so indicated on the documents provided.
(b) On or about the 360th 60th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), every 90 days thereafter until the earliest of (i) the date on which such exceptions are eliminated and such recordation/filing has been completed, and (ii) the date on which all the affected Mortgage Loans are removed from the Trust Fund), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b2.02(c) and 2.02(c2.02(d), certify in writing (substantially in the form attached hereto as of Exhibit A-3 in a mutually acceptable electronic format B-3) to each of the other parties hereto hereto, the Mortgage Loan Sellers and the Rating Agencies that Controlling Class Representative that, as to each Original Mortgage Loan then subject to this Agreement (except as to any LOC Cash Reserve and except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (ai) of the definition of “"Mortgage File”" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a lost note affidavit certifying that the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “such Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”Note has been lost), the original or copy of the policies of title insurance documents specified in clause clauses (eii) through (v) and (vii) of the definition of “"Mortgage File”" and, and each document in the case of a hospitality property, the documents specified in clauses clause (f), (h), and (kviii) of the definition of “"Mortgage File” is in its possession " (without regard to the parenthetical), and any other Specially Designated Mortgage Loan Documents, have been received by it or the possession of a Custodian on its behalf; and (ii) if such report is due more than 180 days after the Closing Date, the recordation/filing contemplated by Section 2.01(e) has been completed (based solely on receipt by the Trustee of the particular recorded/filed documents or an appropriate receipt of recording/filing therefor); (iii) all documents received by it or any Custodian with respect to such Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appear to have been executed (where appropriate) and (C) purport to relate to the such Mortgage Loan. If a Mortgage Loan Seller or the Column Performance Guarantor substitutes a Replacement Mortgage Loan for any exceptions are noted in the exception report annexed to such certificationDefective Mortgage Loan as contemplated by Section 2.03, the Trustee or a Custodian on its behalf shallshall review the documents delivered to it or such Custodian with respect to such Replacement Mortgage Loan, and the Trustee shall deliver a certification comparable to that described in the prior paragraph, in respect of such Replacement Mortgage Loan, on or about the 30th day following the related date of substitution (and, if any exceptions are noted, every 180 90 days after the delivery of such certification thereafter until the earlier earliest of (i) the date on which such exceptions are eliminated and all related recording/filing has been completed, and (ii) the second anniversary of date on which such Replacement Mortgage Loan is removed from the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating AgenciesTrust Fund).
(bc) None of the Trustee, the Servicer Master Servicers, the Special Servicers or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loan Loans delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, except as expressly provided in Section 2.01(e), none of the Trustee, the Servicer Master Servicers, the Special Servicers or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(cd) In performing the reviews contemplated by Subsection subsections (a) and (b) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers related Mortgage Loan Seller as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s 's review of the Mortgage File Files is limited solely to confirming that the documents specified in clauses (ai) through (v), clause (b)vii) and, in the case of any Mortgage Loan secured by a Mortgage on a hospitality property, clause (c), (e), (f), (h) and (jviii) of the definition of “"Mortgage File” as of the date hereof have been received " and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all other Specially Designated Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may be, and the Trustee shall, subject to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may beDocuments, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection subsections (fa) and (b) above.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CSFB Mortgage Sec Corp Comm Mort Pass THR Cert Ser 2003-Cnp1)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the The Trustee, by its the execution and delivery of this Agreement, hereby accepts acknowledges receipt by it, subject to the provisions of Sections 2.01 and 2.02(c), to any exceptions noted on behalf the Trustee Exception Report, and to the further review provided for in Section 2.02(b), of the TrustNotes, directly or through a Custodian on its behalf, fully executed original counterparts of (i) the Mortgage Loan Purchase Agreements and all documents delivered to it that constitute portions of the Mortgage File and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received delivered or caused to be delivered by it that constitute portions of the Mortgage FileLoan Sellers constituting the Mortgage Files, and that it holds and will hold the Mortgage Loan and such other assets, together with any other assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders; provided that to the extent that a Mortgage File relates to an A Loan, the Trustee shall also hold such Mortgage File in the trust on behalf of the related B Loan Holders; provided, further, that the Trustee or any Custodian appointed by the Trustee pursuant to Section 8.12 shall hold any Letter of Credit in a custodial capacity only and shall have no obligation to maintain, extend the term of, enforce or otherwise pursue any rights under such Letter of Credit which obligation the Master Servicer hereby undertakes. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto and the Mortgage Loan Sellers that, as to each Original Mortgage Loan, except as to any LOC Cash Reserve and except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2B-2, (i) the original Specially Designated Mortgage Notes specified in clause (a) of the definition of “Mortgage File” Loan Documents and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), allonges are in its possession or the possession of a Custodian on its behalf, and (ii) each such Specially Designated Mortgage Loan Documents, and all Mortgage Note (or copies thereof) has allonges, have been reviewed by it or by such Custodian on its behalf and (A) appears appear regular on its their face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears appear to have been executed and (C) purports purport to relate to such Mortgage Loan; provided that with respect to any Letters of Credit, the Trustee's certification shall be based upon copies of the Letters of Credit (including related amendment, assignment and transfer documents) delivered to the Trustee or its Custodian. To the extent that the contents of the Mortgage File for any A Loan relate to the corresponding B Loan. , the Trustee will also hold such Mortgage File in trust for the benefit of the holder of the related B Loan.
(b) On or about the 360th 90th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), every 90 days thereafter until the earliest of (i) the date on which such exceptions are eliminated and such recordation/filing has been completed, and (ii) the date on which all the affected Mortgage Loans are removed from the Trust Fund), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b2.02(c) and 2.02(c2.02(d), certify in writing (substantially in the form attached hereto as of Exhibit A-3 in a mutually acceptable electronic format B-3) to each of the other parties hereto hereto, the Mortgage Loan Sellers and the Rating Agencies that Controlling Class Representative that, as to each Original Mortgage Loan then subject to this Agreement (except as to any LOC Cash Reserve and except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (ai) of the definition of “"Mortgage File”" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a lost note affidavit certifying that the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “such Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”Note has been lost), the original or copy of the policies of title insurance documents specified in clause clauses (eii) through (v), (vii), (ix), (xi), (xii), (xv), (xvi), (xvii) and (xix) of the definition of “"Mortgage File”" and, and each document in the case of a hospitality property, the documents specified in clauses clause (f), (h), and (kviii) of the definition of “"Mortgage File” is in its possession " (without regard to the parenthetical), and any other Specially Designated Mortgage Loan Documents, have been received by it or the possession of a Custodian on its behalf; and (ii) if such report is due more than 180 days after the Closing Date, the recordation/filing contemplated by Section 2.01(d) has been completed (based solely on receipt by the Trustee of the particular recorded/filed documents or an appropriate receipt of recording/filing therefor); (iii) all documents received by it or any Custodian with respect to such Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appear to have been executed (where appropriate) and (C) purport to relate to the such Mortgage Loan. If any exceptions are noted Further, with respect to the documents described in clause (viii) of the definition of "Mortgage File," the Trustee may assume, for purposes of the certification delivered pursuant to this Section 2.02(b), that the related Mortgage File should include one state level UCC Financing Statement filing in the exception report annexed state of incorporation of the related Borrower for each Mortgaged Property, or, with respect to any Mortgage Loan that has two or more Borrowers, one state level UCC Financing Statement filing in the state of incorporation of each such certificationBorrower. The Trustee shall, upon request, provide the Master Servicer with recording and filing information as to recorded Mortgages, Assignments of Lease and UCC Financing Statements to the extent that the Trustee receives them from the related recording offices. If a Mortgage Loan Seller or the Column Performance Guarantor substitutes a Replacement Mortgage Loan for any Defective Mortgage Loan as contemplated by Section 2.03, the Trustee or a Custodian on its behalf shallshall review the documents delivered to it or such Custodian with respect to such Replacement Mortgage Loan, and the Trustee shall deliver a certification comparable to that described in the prior paragraph, in respect of such Replacement Mortgage Loan, on or about the 30th day following the related date of substitution (and, if any exceptions are noted, every 180 90 days after the delivery of such certification thereafter until the earlier earliest of (i) the date on which such exceptions are eliminated and all related recording/filing has been completed, and (ii) the second anniversary of date on which such Replacement Mortgage Loan is removed from the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating AgenciesTrust Fund).
(bc) None of It is herein acknowledged that the Trustee, the Servicer or any Custodian Trustee is not under any duty or obligation (A) to determine whether any of the documents specified in clauses (vi), (x), (xiii), (xiv), (xvi), (xvii) and (xviii) of the definition of "Mortgage File" and all documents specified on the Mortgage Loan checklist referred to in clause (xix) of the definition of "Mortgage File" exist or are required to be delivered by the Depositor, the Mortgage Loan Seller or any other Person other than to the extent identified on the related Mortgage Loan Schedule, or (B) to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loan Loans delivered to it to determine that the same are valid, legal, effective, in recordable form, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of To the Trustee, extent the Servicer Trustee has actual knowledge or any Custodian shall have any responsibility for determining whether the text is notified of any assignment fixture or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(c) In performing the reviews contemplated by Subsection (a) abovereal property UCC Financing Statements, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as shall file an assignment to the purported genuineness of any Trust with respect to such document and any signature thereon. It is understood that UCC Financing Statements in the scope of appropriate jurisdiction under the Trustee’s and any Custodian’s review UCC at the expense of the Mortgage File is limited solely to confirming that the documents specified in clauses (a), (b), (c), (e), (f), (h) and (j) of the definition of “Mortgage File” as of the date hereof have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) aboveLoan Seller.
(d) With respect to each UCC Financing Statement included If, in the process of reviewing the Mortgage File (including after the addition of Files or at any Additional Sites or Additional Borrower Sites)time thereafter, the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, Trustee finds that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, Defect exists with respect to any Mortgage Loan IncreaseFile, any documents to be included in the Trustee shall promptly so notify the Depositor, the Master Servicer, the Special Servicer and the Mortgage File relating Loan Seller (and, solely with respect to any A/B Loan Pair, the related B Loan Holder(s), as applicable), by providing a written report (the "Trustee Exception Report") setting forth for each affected Mortgage Loan, with particularity, the nature of such Mortgage Loan Increase and any review Defect. The Trustee shall not be required to verify the conformity of any document with the Mortgage Loan Schedule, except that such documents have been properly executed or received, have been recorded or filed (if recordation is specified for such document in the definition of "Mortgage File"), appear to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating related to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian Loans identified on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Mortgage Loan Increase on the Additional Closing Date or with respect Schedule, appear to such addition, as the case may be what they purport to be, and the Trustee shallor have not been torn, subject to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites mutilated or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agenciesotherwise defaced.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) above.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Original Pooled Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Pooled Mortgage Loan Loans and such other assets, together with any other Pooled Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. To the extent that the Mortgage File relates to a Pooled Mortgage Loan that is part of a Serviced Mortgage Loan Group, the Trustee shall also hold such Mortgage File in trust for the use and benefit of the related Serviced Non-Pooled Mortgage Loan Noteholders. Each Master Servicer acknowledges receipt of all of the original Letters of Credit relating to the Serviced Pooled Mortgage Loans for which it is the applicable Master Servicer, copies of which are part of the Mortgage File and agrees to hold such Letters of Credit in trust for the benefit of the Trustee. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto hereto, each Pooled Mortgage Loan Seller and each Underwriter that, as to each Pooled Mortgage Loan, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2Schedule II, (i) the original Mortgage Notes all documents specified in clause (ai) of the definition of “"Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), " are in its possession or the possession of a Custodian on its behalf, and (ii) each such the original Mortgage Note (or, if accompanied by a lost note affidavit, the copy of such Mortgage Note) received by it or copies thereof) any Custodian with respect to such Pooled Mortgage Loan has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears to have been executed (where appropriate) and (C) purports to relate to the such Pooled Mortgage Loan. .
(b) On or about the 360th 45th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), every 90 days thereafter until the earlier of (i) the date on which such exceptions are eliminated and such recordation/filing has been completed, and (ii) the date on which all the affected Pooled Mortgage Loans are removed from the Trust Fund), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Pooled Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b2.02(c) and 2.02(c2.02(d), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format writing to each of the other parties hereto (substantially in the form of Exhibit N), the Pooled Mortgage Loan Sellers, the Serviced Non-Pooled Mortgage Loan Noteholders and the Rating Agencies that Controlling Class Representative that, as to each Original Pooled Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (ai) of the definition of “"Mortgage File”" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a lost note affidavit and indemnity certifying that the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “such Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”Note has been lost), the original or copy of the policies of title insurance documents specified in clause clauses (eii), (iii), (iv) (except with respect to the Non-Trust-Serviced Pooled Mortgage Loan), (viii) (without regard to the verification of the effective date with respect to a title policy or the date of funding with respect to a title commitment) and (x) (if the Pooled Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a leasehold interest) of the definition of “"Mortgage File”, and each document specified in clauses (f), (h), and (k) of the definition of “Mortgage File” is in its possession " have been received by it or the possession of a Custodian on its behalf; and (ii) if such report is due more than 180 days after the Closing Date, the recordation/filing contemplated by Section 2.01(e) has been completed (based solely on receipt by the Trustee of the particular recorded/filed documents or an appropriate receipt of recording/filing therefor); (iii) all documents received by it or any Custodian with respect to such Pooled Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appear to have been executed (where appropriate) and (C) purport to relate to the such Pooled Mortgage Loan. If any exceptions are noted ; (iv) based on the examinations referred to in Section 2.02(a) above and this Section 2.02(b) and only as to the foregoing documents, the information set forth in the exception report annexed Pooled Mortgage Loan Schedule with respect to such certificationthe items specified in clause (iii)(A) and clause (vi) of the definition of "Pooled Mortgage Loan Schedule" accurately reflects the information set forth in the related Mortgage File; and (v) the Trustee on behalf of the Trust is shown as the owner of each Mortgage recorded in the name of MERS or its designee.
(c) If a Pooled Mortgage Loan Seller substitutes a Replacement Pooled Mortgage Loan for any Defective Pooled Mortgage Loan as contemplated by Section 2.03, the Trustee or a Custodian on its behalf shallshall review the documents delivered to it or such Custodian with respect to such Replacement Pooled Mortgage Loan, and the Trustee shall deliver a certification comparable to that described in the prior paragraph, in respect of such Replacement Pooled Mortgage Loan, on or about the 30th day following the related date of substitution (and, if any exceptions are noted, every 180 90 days after the delivery of such certification thereafter until the earlier of (i) the date on which such exceptions are eliminated and all related recording/filing has been completed, and (ii) the second anniversary date on which such Replacement Pooled Mortgage Loan is removed from the Trust Fund). With respect to the documents described in clause (iii) of the date hereofdefinition of "Mortgage File", and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report absent actual knowledge to the other parties hereto and contrary, the Trustee may assume, for purposes of the certification(s) delivered in this Section 2.02(a) or to be delivered pursuant to Section 2.02(b), that the Mortgage File for each Pooled Mortgage Loan includes a separate Assignment of Leases. With respect to the Rating Agenciesdocuments described in clause (ix) of the definition of "Mortgage File", absent actual knowledge to the contrary or copies of UCC Financing Statements delivered to the Trustee as part of the Mortgage File indicating otherwise, the Trustee may assume, for purposes of the certification(s) to be delivered pursuant to this Section 2.02(b), that the Mortgage File for each Pooled Mortgage Loan should include a copy of one state-level UCC Financing Statement filed in the state of incorporation or organization of the related Borrower for each Mortgaged Property (or with respect to any Pooled Mortgage Loan that has two or more Borrowers, for each related Borrower). To the extent appropriate under applicable law, the UCC Financing Statements to be assigned to the Trust will be delivered on the new national forms and in recordable form and will be filed in the state of incorporation or organization as so indicated on the documents provided.
(bd) None of the Depositor, the Certificate Administrator, the Trustee, the Servicer Master Servicers, the Special Servicers or any Custodian is under any duty or obligation to (i) determine whether any of the documents specified in clauses (iii), (iv)(B), (v), (vi), (vii), (ix) and (xi) through (xviii) of the definition of "Mortgage File" exist or are required to be delivered by the Pooled Mortgage Loan Sellers in respect of any Pooled Mortgage Loan unless such item(s) are specified on the related Mortgage File Checklist, or (ii) inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Pooled Mortgage Loan Loans delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, except as expressly provided in Section 2.01(e), none of the Depositor, the Trustee, the Servicer Master Servicers, the Special Servicers or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(ce) In performing the reviews contemplated by Subsection subsections (a) and (b) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers related Pooled Mortgage Loan Seller as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s 's review of the Mortgage File Files is limited solely to confirming that the documents specified in clauses (ai), (bii), (ciii), (eiv) (except with respect to the Non-Trust-Serviced Pooled Mortgage Loan), (f), viii) (hwithout regard to the verification of the effective date with respect to a title policy or the date of funding with respect to a title commitment) and (jx) (if the Pooled Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a leasehold interest) of the definition of “"Mortgage File” as of the date hereof " have been received by it or a Custodian on its behalf and such additional information as will be necessary for making and/or delivering the certifications required by Subsection subsections (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may be, and the Trustee shall, subject to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (fb) above.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr4)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Original Pooled Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Pooled Mortgage Loan Loans and such other assets, together with any other Pooled Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. To the extent that the Mortgage File relates to a Pooled Mortgage Loan that is part of a Serviced Mortgage Loan Group, the Trustee shall also hold such Mortgage File in trust for the use and benefit of the related Serviced Non-Pooled Mortgage Loan Noteholders. Each Master Servicer acknowledges receipt (by it or a Primary Servicer on its behalf) of all of the original Letters of Credit relating to the Serviced Pooled Mortgage Loans for which it is the applicable Master Servicer (copies of which are part of the Mortgage File) and agrees to hold (or cause a Primary Servicer on its behalf to hold ) such Letters of Credit in trust for the benefit of the Trustee. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto hereto, each Pooled Mortgage Loan Seller and each Underwriter that, as to each Pooled Mortgage Loan, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2Schedule II, (i) the original Mortgage Notes all documents specified in clause (ai) of the definition of “"Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), " are in its possession or the possession of a Custodian on its behalf, and (ii) each such the original Mortgage Note (or, if accompanied by a lost note affidavit, the copy of such Mortgage Note) received by it or copies thereof) any Custodian with respect to such Pooled Mortgage Loan has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears to have been executed (where appropriate) and (C) purports to relate to the such Pooled Mortgage Loan. .
(b) On or about the 360th 75th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Pooled Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b2.02(c) and 2.02(c2.02(d), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format writing to each of the other parties hereto (substantially in the form of Exhibit N), the Pooled Mortgage Loan Sellers, the Serviced Non-Pooled Mortgage Loan Noteholders (in each case, provided that the Trustee has received notice of the identity of and notice address information for such Serviced Non-Pooled Mortgage Loan Noteholder) and the Rating Agencies that Controlling Class Representative that, as to each Original Pooled Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (ai) of the definition of “"Mortgage File”" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a lost note affidavit and indemnity certifying that the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “such Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”Note has been lost), the original or copy of the policies of title insurance documents specified in clause clauses (eii), (iii), (iv) (except with respect to a Non-Trust-Serviced Pooled Mortgage Loan), (viii) (without regard to the verification of the effective date with respect to a title policy or the date of funding with respect to a title commitment), (x) (if the Pooled Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a leasehold interest) and (xx) (solely in the case of the Pooled Mortgage Loans secured by the Mortgaged Properties identified on the Pooled Mortgage Loan Schedule as "Soho/Tribeca Grand Portfolio", "Hawthorn Suites - Alexandria", "Courtyard by Marriot - Beachwood", "Hilton Garden Inn Overland Park", "Best Western - Seven Seas", "Springhill Suites - Peoria", "Hawthorn Suites - Louisville", "Holiday Inn Express Fargo", "Holiday Inn Express Minnetonka", "Dayton Doubletree Hotel", "Days Inn - Convention Center" and "The Malibu") of the definition of “"Mortgage File”, and each document specified in clauses (f), (h), and (k) of the definition of “Mortgage File” is in its possession " have been received by it or the possession of a Custodian on its behalf; and (ii) if such report is due more than 180 days after the Closing Date, the recordation/filing contemplated by Section 2.01(e) has been completed (based solely on receipt by the Trustee of the particular recorded/filed documents or an appropriate receipt of recording/filing therefor); (iii) all documents received by it or any Custodian with respect to such Pooled Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appear to have been executed (where appropriate) and (C) purport to relate to the such Pooled Mortgage Loan. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(b) None of the Trustee, the Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loan delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of the Trustee, the Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(c) In performing the reviews contemplated by Subsection (a) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clauses (a), (b), (c), (e), (f), (h) and (j) of the definition of “Mortgage File” as of the date hereof have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may be, and the Trustee shall, subject to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) above.;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2006-Pwr11)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section SECTION 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Original Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Mortgage Loan Loans and such other assets, together with any other Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. The Trustee or such Custodian shall hold any Letter of Credit in a custodial capacity only and shall have no obligation to maintain, extend the term of, enforce or otherwise pursue any rights under such Letter of Credit. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto and the Mortgage Loan Sellers that, as to each Original Mortgage Loan, except as to any LOC Cash Reserve and except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2EXHIBIT B-2, (i) the original Specially Designated Mortgage Notes specified in clause Loan Documents (awithout regard to Assignments of Leases, modification agreements and assumption agreements) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has Loan Documents have been reviewed by it or by such Custodian on its behalf and (A) appears appear regular on its their face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears appear to have been executed and (C) purports purport to relate to the such Mortgage Loan. .
(b) On or about the 360th 45th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by SECTION 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), every 90 days thereafter until the earlier of (i) the date on which such exceptions are eliminated and such recordation/filing has been completed, and (ii) the date on which all the affected Mortgage Loans are removed from the Trust Fund), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)SECTIONS 1.04, 2.02(b2.02(c) and 2.02(c2.02(d), certify in writing (substantially in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format of EXHIBIT B-3) to each of the other parties hereto hereto, the Mortgage Loan Sellers and the Rating Agencies that Controlling Class Representative that, as to each Original Mortgage Loan then subject to this Agreement (except as to any LOC Cash Reserve and except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause CLAUSE (ai) of the definition of “"Mortgage File”" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a lost note affidavit and indemnity certifying that the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “such Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”Note has been lost), the original or copy of the policies of title insurance documents specified in clause CLAUSES (eii) through (v), (vii), (x), (xii) and (xiii) of the definition of “"Mortgage File”" and, and each document in the case of a hospitality property, the documents specified in clauses CLAUSE (f), (h), and (kviii) of the definition of “"Mortgage File” is in its possession " (without regard to the parenthetical) and any other Specially Designated Mortgage Loan Documents (without regard to modification agreements and assumption agreements), have been received by it or the possession of a Custodian on its behalf; and (ii) if such report is due more than 180 days after the Closing Date, the recordation/filing contemplated by SECTION 2.01(e) has been completed (based solely on receipt by the Trustee of the particular recorded/filed documents or an appropriate receipt of recording/filing therefor); (iii) all documents received by it or any Custodian with respect to such Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(b) None of the Trustee, the Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loan delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of the Trustee, the Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(c) In performing the reviews contemplated by Subsection (a) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clauses (a), (b), (c), (e), (f), (h) and (j) of the definition of “Mortgage File” as of the date hereof have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may be, and the Trustee shall, subject to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) above.,
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trustreceipt, directly or through a Custodian on its behalf, of (i) the Original Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files, and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Mortgage Loan Loans and such other assets, together with any other Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. The Trustee or such Custodian shall hold any Letter of Credit in a custodial capacity only and shall have no obligation to maintain, extend the term of, enforce or otherwise pursue any rights under such Letter of Credit. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto hereto, the Mortgage Loan Seller and the Underwriter that, as to each Original Mortgage Loan, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2B-2, (i) the original Mortgage Notes Note specified in clause (ai) of the definition of “"Mortgage File” " and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost)any, are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears to have been executed and (C) purports to relate to the such Mortgage Loan. .
(b) On or about the 360th 45th day following the Closing Date (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), every 90 days thereafter until the earliest of (i) the date on which such exceptions are eliminated, (ii) the date on which all the affected Mortgage Loans are removed from the Trust Fund and (iii) the second anniversary of the Closing Date), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 1.04, 2.01(d), 2.02(b2.02(c) and 2.02(c2.02(d), certify in writing (substantially in the form attached hereto as of Exhibit A-3 in a mutually acceptable electronic format B-3) to each of the other parties hereto hereto, the Mortgage Loan Seller and the Rating Agencies that Underwriter that, as to each Original Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (ai) of the definition of “"Mortgage File”" (or, if such original Mortgage Note has been lost, a copy of such Mortgage Note, together with a "lost note affidavit" certifying that the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “such Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”Note has been lost), the original or copy of each recorded document specified in clauses (ii) through (v) of the policies definition of "Mortgage File", and the original or copy of the policy of title insurance specified in clause (evii) of the definition of “"Mortgage File”, " and each document specified in clauses clause (f), (h), and (kviii) of the definition of “"Mortgage File” " (without regard to the parenthetical), is in its possession or the possession of a Custodian on its behalf; and (ii) if such report is due after _______________, the recordation/filing contemplated by Section 2.01(e) has been completed (based solely on receipt by the Trustee of the particular recorded/filed documents); (iii) all documents received by it or any Custodian with respect to such Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appear to have been executed (where appropriate) and (C) purport to relate to the such Mortgage Loan. If any exceptions are noted ; and (iv) based on the examinations referred to in Section 2.02(a) above and this Section 2.02(b) and only as to the exception report annexed to such certificationforegoing documents, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(b) None of the Trustee, the Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to information set forth in the Mortgage Loan delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of the Trustee, the Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance Schedule with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(c) In performing the reviews contemplated by Subsection (a) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as respect to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents items specified in clauses (a), ii) (b), (c), (e), (f), (hother than the zip code) and (jvi)(B) of the definition of “"Mortgage File” as of Loan Schedule" accurately reflects the date hereof have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) above.
(d) With respect to each UCC Financing Statement included set forth in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereofFile. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to If the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Seller substitutes a Replacement Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except for any Deleted Mortgage Loan as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed contemplated by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower SitesSection 2.03, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the such Replacement Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may beLoan, and the Trustee shallshall deliver a comparable certification in respect of such Replacement Mortgage Loan, subject to 2.02(b) and 2.02(g)on or about the 30th day following the related date of substitution (and, certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shallnoted, every 180 90 days after thereafter for so long as any exceptions remain or until such Replacement Mortgage Loan is removed from the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating AgenciesTrust Fund).
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) above.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Greenwich Capital Commercial Funding Corp)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the The Trustee, by its the execution and delivery of this Agreement, hereby accepts acknowledges receipt by it, subject to the provisions of Sections 2.01 and 2.02(c), to any exceptions noted on behalf the Trustee Exception Report, and to the further review provided for in Section 2.02(b), of the TrustNotes, directly or through a Custodian on its behalf, fully executed original counterparts of (i) the Mortgage Loan Purchase Agreements and all documents delivered to it that constitute portions of the Mortgage File and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received delivered or caused to be delivered by it that constitute portions of the Mortgage FileLoan Sellers constituting the Mortgage Files, and that it holds and will hold the Mortgage Loan and such other assets, together with any other assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders; provided that to the extent that a Mortgage File relates to an A Loan, the Trustee shall also hold such Mortgage File in the trust on behalf of the related B Loan Holders; provided further that the Trustee or any Custodian appointed by the Trustee pursuant to Section 8.12 shall hold any Letter of Credit in a custodial capacity only and shall have no obligation to maintain, extend the term of, enforce or otherwise pursue any rights under such Letter of Credit which obligation the Master Servicer hereby undertakes. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto and the Mortgage Loan Sellers that, as to each Original Mortgage Loan, except as to any LOC Cash Reserve and except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2B-2, (i) the original Specially Designated Mortgage Notes specified in clause (a) of the definition of “Mortgage File” Loan Documents and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), allonges are in its possession or the possession of a Custodian on its behalf, and (ii) each such Specially Designated Mortgage Loan Documents, and all Mortgage Note (or copies thereof) has allonges, have been reviewed by it or by such Custodian on its behalf and (A) appears appear regular on its their face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears appear to have been executed and (C) purports purport to relate to such Mortgage Loan; provided that with respect to any Letters of Credit, the Trustee's certification shall be based upon copies of the Letters of Credit (including related amendment, assignment and transfer documents) delivered to the Trustee or its Custodian. To the extent that the contents of the Mortgage File for any A Loan relate to the corresponding B Loan. , the Trustee will also hold such Mortgage File in trust for the benefit of the holder of the related B Loan.
(b) On or about the 360th 60th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), every 90 days thereafter until the earliest of (i) the date on which such exceptions are eliminated and such recordation/filing has been completed, and (ii) the date on which all the affected Mortgage Loans are removed from the Trust Fund), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b) and 2.02(c), certify in writing (substantially in the form attached hereto as of Exhibit A-3 in a mutually acceptable electronic format B-3) to each of the other parties hereto hereto, the Mortgage Loan Sellers and the Rating Agencies that Controlling Class Representative that, as to each Original Mortgage Loan then subject to this Agreement (except as to any LOC Cash Reserve and except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (ai) of the definition of “"Mortgage File”" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a lost note affidavit certifying that the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “such Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”Note has been lost), the original or copy of the policies of title insurance documents specified in clause clauses (eii) through (v), (vii), (ix), (xi), (xii), (xv), (xvi) and (xviii) of the definition of “"Mortgage File”" and, and each document in the case of a hospitality property, the documents specified in clauses clause (f), (h), and (kviii) of the definition of “"Mortgage File” is in its possession " (without regard to the parenthetical), and any other Specially Designated Mortgage Loan Documents, have been received by it or the possession of a Custodian on its behalf; and (ii) if such report is due more than 180 days after the Closing Date, the recordation/filing contemplated by Section 2.01(d) has been completed (based solely on receipt by the Trustee of the particular recorded/filed documents or an appropriate receipt of recording/filing therefor); (iii) all documents received by it or any Custodian with respect to such Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appear to have been executed (where appropriate) and (C) purport to relate to the such Mortgage Loan. If any exceptions are noted Further, with respect to the documents described in clause (viii) of the definition of the Mortgage File, the Trustee may assume, for purposes of the certification delivered pursuant to this Section 2.02(b), that the related Mortgage File should include one state level UCC Financing Statement filing in the exception report annexed state of incorporation of the related Borrower for each Mortgaged Property, or, with respect to any Mortgage Loan that has two or more Borrowers, one state level UCC Financing Statement filing in the state of incorporation of each such certificationBorrower. The Trustee shall, upon request, provide the Master Servicer with recording and filing information as to recorded Mortgages, Assignments of Lease and UCC Financing Statements to the extent that the Trustee receives them from the related recording offices. If a Mortgage Loan Seller or the Column Performance Guarantor substitutes a Replacement Mortgage Loan for any Defective Mortgage Loan as contemplated by Section 2.03, the Trustee or a Custodian on its behalf shallshall review the documents delivered to it or such Custodian with respect to such Replacement Mortgage Loan, and the Trustee shall deliver a certification comparable to that described in the prior paragraph, in respect of such Replacement Mortgage Loan, on or about the 30th day following the related date of substitution (and, if any exceptions are noted, every 180 90 days after the delivery of such certification thereafter until the earlier earliest of (i) the date on which such exceptions are eliminated and all related recording/filing has been completed, and (ii) the second anniversary of date on which such Replacement Mortgage Loan is removed from the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating AgenciesTrust Fund).
(bc) None of It is herein acknowledged that the Trustee, the Servicer or any Custodian Trustee is not under any duty or obligation (i) to determine whether any of the documents specified in clauses (vi), (x), (xiii), (xiv), (xvii) and (xix) of the definition of "Mortgage File" and all documents specified on the related Mortgage Loan checklist exist or are required to be delivered by the Depositor, the Mortgage Loan Seller or any other Person other than to the extent identified on the related Mortgage Loan Schedule, or (ii) to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loan Loans delivered to it to determine that the same are valid, legal, effective, in recordable form, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of To the Trustee, extent the Servicer Trustee has actual knowledge or any Custodian shall have any responsibility for determining whether the text is notified of any assignment fixture or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(c) In performing the reviews contemplated by Subsection (a) abovereal property UCC Financing Statements, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as shall file an assignment to the purported genuineness of any Trust with respect to such document and any signature thereon. It is understood that UCC Financing Statements in the scope of appropriate jurisdiction under the Trustee’s and any Custodian’s review UCC at the expense of the Mortgage File is limited solely to confirming that the documents specified in clauses (a), (b), (c), (e), (f), (h) and (j) of the definition of “Mortgage File” as of the date hereof have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) aboveLoan Seller.
(d) With respect to each UCC Financing Statement included If, in the process of reviewing the Mortgage File (including after the addition of Files or at any Additional Sites or Additional Borrower Sites)time thereafter, the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, Trustee finds that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, Defect exists with respect to any Mortgage Loan IncreaseFile, any documents to be included in the Trustee shall promptly so notify the Depositor, the Master Servicer, the Special Servicer and the Mortgage File relating Loan Seller (and, solely with respect to any A/B Loan Pair, the related B Loan Holder(s), as applicable), by providing a written report (the "Trustee Exception Report") setting forth for each affected Mortgage Loan, with particularity, the nature of such Mortgage Loan Increase and any review Defect. The Trustee shall not be required to verify the conformity of any document with the Mortgage Loan Schedule, except that such documents have been properly executed or received, have been recorded or filed (if recordation is specified for such document in the definition of "Mortgage File"), appear to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating related to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian Loans identified on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Mortgage Loan Increase on the Additional Closing Date or with respect Schedule, appear to such addition, as the case may be what they purport to be, and the Trustee shallor have not been torn, subject to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites mutilated or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agenciesotherwise defaced.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) above.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Credit Suisse Commercial Mortgage Trust Series 2006-C3)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Original Pooled Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Pooled Mortgage Loan Loans and such other assets, together with any other Pooled Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. Each Master Servicer acknowledges receipt of all of the original Letters of Credit, copies of which are part of the Mortgage File and agrees to hold such Letters of Credit in trust for the benefit of the Trustee. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto hereto, each Pooled Mortgage Loan Seller and each Underwriter that, as to each Loan, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2Schedule II, (i) the original Mortgage Notes all documents specified in clause (ai) of the definition of “"Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), " are in its possession or the possession of a Custodian on its behalf, and (ii) each such the original Mortgage Note (or, if accompanied by a lost note affidavit, the copy of such Mortgage Note) received by it or copies thereof) any Custodian with respect to such Pooled Mortgage Loan has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears to have been executed (where appropriate) and (C) purports to relate to the such Pooled Mortgage Loan. .
(b) On or about the 360th 45th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), every 90 days thereafter until the earlier of (i) the date on which such exceptions are eliminated and such recordation/filing has been completed, and (ii) the date on which all the affected Pooled Mortgage Loans are removed from the Trust Fund), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Pooled Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b2.02(c) and 2.02(c2.02(d), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format writing to each of the other parties hereto (substantially in the form of Exhibit M), the Pooled Mortgage Loan Sellers and the Rating Agencies that Controlling Class Representative that, as to each Original Pooled Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (ai) of the definition of “"Mortgage File”" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a lost note affidavit and indemnity certifying that the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “such Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”Note has been lost), the original or copy of the policies of title insurance documents specified in clause clauses (eii), (iii), (iv) and (viii) (without regard to the verification of the effective date with respect to a title policy or the date of funding with respect to a title commitment) and (x) (if the Pooled Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a leasehold interest) of the definition of “"Mortgage File”, and each document specified in clauses (f), (h), and (k) of the definition of “Mortgage File” is in its possession " have been received by it or the possession of a Custodian on its behalf; and (ii) if such report is due more than 180 days after the Closing Date, the recordation/filing contemplated by Section 2.01(e) has been completed (based solely on receipt by the Trustee of the particular recorded/filed documents or an appropriate receipt of recording/filing therefor); (iii) all documents received by it or any Custodian with respect to such Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(b) None of the Trustee, the Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loan delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of the Trustee, the Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(c) In performing the reviews contemplated by Subsection (a) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clauses (a), (b), (c), (e), (f), (h) and (j) of the definition of “Mortgage File” as of the date hereof have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may be, and the Trustee shall, subject to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) above.such
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Sec Tr 2002-Pbw1)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Original Pooled Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Pooled Mortgage Loan Loans and such other assets, together with any other Pooled Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. To the extent that the Mortgage File relates to a Pooled Mortgage Loan that is part of a Serviced Mortgage Loan Group, the Trustee shall also hold such Mortgage File in trust for the use and benefit of the related Serviced Non-Pooled Mortgage Loan Noteholders. Each Master Servicer acknowledges receipt (by it or a Primary Servicer on its behalf) of all of the original Letters of Credit relating to the Serviced Pooled Mortgage Loans for which it is the applicable Master Servicer (copies of which are part of the Mortgage File) and agrees to hold (or cause a Primary Servicer on its behalf to hold ) such Letters of Credit in trust for the benefit of the Trustee; provided, however, that the applicable Master Servicer for the PMCF Pooled Mortgage Loans, for which the applicable Pooled Mortgage Loan Seller is required to deliver the originals of any Letters of Credit to the Trustee, the applicable Master Servicer acknowledges receipt of copies of such Letters of Credit. In the case of the PMCF Pooled Mortgage Loans, the Trustee shall deliver to the applicable Master Servicer upon request any original Letters of Credit relating to the Serviced Pooled Mortgage Loans for which it is the applicable Master Servicer in connection with the performance by such Master Servicer of its duties hereunder. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto hereto, each Pooled Mortgage Loan Seller and each Underwriter that, as to each Pooled Mortgage Loan, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2Schedule II, (i) the original Mortgage Notes all documents specified in clause (ai) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such the original Mortgage Note (or, if accompanied by a lost note affidavit, the copy of such Mortgage Note) received by it or copies thereof) any Custodian with respect to such Pooled Mortgage Loan has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears to have been executed (where appropriate) and (C) purports to relate to the such Pooled Mortgage Loan. .
(b) On or about the 360th 75th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Pooled Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b2.02(c) and 2.02(c2.02(d), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format writing to each of the other parties hereto (substantially in the form of Exhibit N), the Pooled Mortgage Loan Sellers, the Serviced Non-Pooled Mortgage Loan Noteholders (in each case, provided that the Trustee has received notice of the identity of and notice address information for such Serviced Non-Pooled Mortgage Loan Noteholder) and the Rating Agencies that Controlling Class Representative that, as to each Original Pooled Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (a) of the definition of “Mortgage File”, the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (e) of the definition of “Mortgage File”, and each document specified in clauses (f), (h), and (ki) of the definition of “Mortgage File” is and all allonges thereto, if any (or a copy of such Mortgage Note, together with a lost note affidavit and indemnity certifying that the original of such Mortgage Note has been lost), the original or copy of documents specified in its possession clauses (ii), (iii), (iv) (except with respect to a Non-Trust-Serviced Pooled Mortgage Loan), (viii) (without regard to the verification of the effective date with respect to a title policy or the possession date of funding with respect to a title commitment), (x) (if the Pooled Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a leasehold interest) and (xx) (solely in the case of the Pooled Mortgage Loans secured by the Mortgaged Properties identified on the Pooled Mortgage Loan Schedule as “Kalahari Waterpark Resort”, “Annapolis Marriott Waterfront”, “Renaissance Columbus”, “Courtyard by Marriott–Silver Spring”, “Hilton Garden Inn–Corvallis”, “Holiday Inn–Rochester Airport”, “Hilton Houston Southwest”, “Hampton Inn & Suites–Cape Coral”, “Comfort Inn & Suites University Square”, “Homewood Suites–Longview, TX” and “Residence Inn San Antonio”) of the definition of “Mortgage File” have been received by it or a Custodian on its behalf; and (ii) if such report is due more than 180 days after the Closing Date, the recordation/filing contemplated by Section 2.01(e) has been completed (based solely on receipt by the Trustee of the particular recorded/filed documents or an appropriate receipt of recording/filing therefor); (iii) all documents received by it or any Custodian with respect to such Pooled Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appear to have been executed (where appropriate) and (C) purport to relate to the such Pooled Mortgage Loan. If any exceptions are noted ; (iv) based on the examinations referred to in Section 2.02(a) above and this Section 2.02(b) and only as to the foregoing documents, the information set forth in the exception report annexed Pooled Mortgage Loan Schedule with respect to such certification, the items specified in clause (iii)(A) and clause (vi) of the definition of “Pooled Mortgage Loan Schedule” accurately reflects the information set forth in the related Mortgage File; and (v) the Trustee on behalf of the Trust is shown as the owner of each Mortgage recorded in the name of MERS or a Custodian on its behalf shall, every 180 designee. Every 90 days after such 45th day following the delivery of such certification Closing Date, until the earlier of (i) the date on which such exceptions are eliminated and such recordation/filing has been completed, and (ii) the second anniversary date on which all the affected Pooled Mortgage Loans are removed from the Trust Fund, the Trustee or a Custodian on its behalf shall deliver electronically to the Pooled Mortgage Loan Sellers, the Serviced Non-Pooled Mortgage Loan Noteholders and the Controlling Class Representative an update to the exception report annexed to the certification described above substantially in the form of Exhibit N, which update shall report any remaining outstanding exceptions with respect to each Original Pooled Mortgage Loan. Such delivery shall be deemed to constitute a certification of the date hereofsubstance of the matters set forth in the form of such Exhibit N (except as set forth in such exception report). The applicable Master Servicer shall provide the contact name, mailing address and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report e-mail address of each Serviced Non-Pooled Mortgage Loan Noteholder to the other parties hereto and Trustee to the Rating Agenciesextent not previously provided thereto, provided that the applicable Master Servicer has such information.
(bc) If a Pooled Mortgage Loan Seller substitutes a Replacement Pooled Mortgage Loan for any Defective Pooled Mortgage Loan as contemplated by Section 2.03, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to such Replacement Pooled Mortgage Loan, and the Trustee shall deliver a certification comparable to that described in the prior paragraph, in respect of such Replacement Pooled Mortgage Loan, on or about the 30th day following the related date of substitution (and, if any exceptions are noted, every 90 days thereafter until the earlier of (i) the date on which such exceptions are eliminated and all related recording/filing has been completed, and (ii) the date on which such Replacement Pooled Mortgage Loan is removed from the Trust Fund). With respect to the documents described in clause (iii) of the definition of “Mortgage File”, absent actual knowledge to the contrary, the Trustee may assume, for purposes of the certification(s) delivered in this Section 2.02(a) or to be delivered pursuant to Section 2.02(b), that the Mortgage File for each Pooled Mortgage Loan includes a separate Assignment of Leases. With respect to the documents described in clause (ix) of the definition of “Mortgage File”, absent actual knowledge to the contrary or copies of UCC Financing Statements delivered to the Trustee as part of the Mortgage File indicating otherwise, the Trustee may assume, for purposes of the certification(s) to be delivered pursuant to this Section 2.02(b), that the Mortgage File for each Pooled Mortgage Loan should include a copy of one state-level UCC Financing Statement filed in the state of incorporation or organization of the related Borrower for each Mortgaged Property (or with respect to any Pooled Mortgage Loan that has two or more Borrowers, for each related Borrower). To the extent appropriate under applicable law, the UCC Financing Statements to be assigned to the Trust will be delivered on the new national forms and in recordable form and will be filed in the state of incorporation or organization as so indicated on the documents provided.
(d) None of the Depositor, the Certificate Administrator, the Trustee, the Servicer Master Servicers, the Primary Servicer, any Subservicer, the Special Servicers or any Custodian is under any duty or obligation to (i) determine whether any of the documents specified in clauses (iii), (iv)(B), (v), (vi), (vii), (ix) and (xi) through (xviii) of the definition of “Mortgage File” exist or are required to be delivered by the Pooled Mortgage Loan Sellers in respect of any Pooled Mortgage Loan unless such item(s) are specified on the related Mortgage File Checklist, or (ii) inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Pooled Mortgage Loan Loans delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, except as expressly provided in Section 2.01(e), none of the Depositor, the Trustee, the Servicer Master Servicers, the Primary Servicer, any Subservicer, the Special Servicers or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(ce) In performing the reviews contemplated by Subsection subsections (a) and (b) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers related Pooled Mortgage Loan Seller as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File Files is limited solely to confirming that the documents specified in clauses (ai), (bii), (ciii), (eiv) (except with respect to a Non-Trust-Serviced Pooled Mortgage Loan), (fviii) (without regard to the verification of the effective date with respect to a title policy or the date of funding with respect to a title commitment), (hx) (if the Pooled Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a leasehold interest) and (jxx) (solely in the case of the Pooled Mortgage Loans secured by the Mortgaged Properties identified on the Pooled Mortgage Loan Schedule as “Kalahari Waterpark Resort”, “Annapolis Marriott Waterfront”, “Renaissance Columbus”, “Courtyard by Marriott–Silver Spring”, “Hilton Garden Inn–Corvallis”, “Holiday Inn–Rochester Airport”, “Hilton Houston Southwest”, “Hampton Inn & Suites–Cape Coral”, “Comfort Inn & Suites University Square”, “Homewood Suites–Longview, TX” and “Residence Inn San Antonio”) of the definition of “Mortgage File” as of the date hereof have been received by it or a Custodian on its behalf and such additional information as will be necessary for making and/or delivering the certifications required by Subsection subsections (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may be, and the Trustee shall, subject to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (fb) above.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2007-Pwr16)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Original Pooled Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Pooled Mortgage Loan Loans and such other assets, together with any other Pooled Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. To the extent that the Mortgage File relates to a Pooled Mortgage Loan that is part of a Serviced Mortgage Loan Group, the Trustee shall also hold such Mortgage File in trust for the use and benefit of the related Serviced Non-Pooled Mortgage Loan Noteholders. Each Master Servicer acknowledges receipt (by it or a Primary Servicer on its behalf) of all of the original Letters of Credit relating to the Serviced Pooled Mortgage Loans for which it is the applicable Master Servicer (copies of which are part of the Mortgage File) and agrees to hold (or cause a Primary Servicer on its behalf to hold ) such Letters of Credit in trust for the benefit of the Trustee; provided, however, that the applicable Master Servicer for the PMCF Pooled Mortgage Loans, for which the applicable Pooled Mortgage Loan Seller is required to deliver the originals of any Letters of Credit to the Trustee, the applicable Master Servicer acknowledges receipt of copies of such Letters of Credit. In the case of the PMCF Pooled Mortgage Loans, the Trustee shall deliver to the applicable Master Servicer upon request any original Letters of Credit relating to the Serviced Pooled Mortgage Loans for which it is the applicable Master Servicer in connection with the performance by such Master Servicer of its duties hereunder. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto hereto, each Pooled Mortgage Loan Seller and each Underwriter that, as to each Pooled Mortgage Loan, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2Schedule II, (i) the original Mortgage Notes all documents specified in clause (ai) of the definition of “"Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), " are in its possession or the possession of a Custodian on its behalf, and (ii) each such the original Mortgage Note (or, if accompanied by a lost note affidavit, the copy of such Mortgage Note) received by it or copies thereof) any Custodian with respect to such Pooled Mortgage Loan has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears to have been executed (where appropriate) and (C) purports to relate to the such Pooled Mortgage Loan. .
(b) On or about the 360th 75th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Pooled Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b2.02(c) and 2.02(c2.02(d), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format writing to each of the other parties hereto (substantially in the form of Exhibit N), the Pooled Mortgage Loan Sellers, the Serviced Non-Pooled Mortgage Loan Noteholders (in each case, provided that the Trustee has received notice of the identity of and notice address information for such Serviced Non-Pooled Mortgage Loan Noteholder) and the Rating Agencies that Controlling Class Representative that, as to each Original Pooled Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (ai) of the definition of “"Mortgage File”, the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (e) of the definition of “Mortgage File”, and each document specified in clauses (f), (h), and (k) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(b) None of the Trustee, the Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loan delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of the Trustee, the Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(c) In performing the reviews contemplated by Subsection (a) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clauses (a), (b), (c), (e), (f), (h) and (j) of the definition of “Mortgage File” as of the date hereof have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” " and all allonges thereto, if any (or, or a copy of the such Mortgage NotesNote, together with a “lost note affidavit” affidavit and indemnity certifying that the relevant original of such Mortgage Note has been lost), are the original or copy of documents specified in its possession clauses (ii), (iii), (iv) (except with respect to a Non-Trust-Serviced Pooled Mortgage Loan), (viii) (without regard to the verification of the effective date with respect to a title policy or the possession date of funding with respect to a title commitment), (x) (if the Pooled Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a Custodian on its behalf, leasehold interest) and (iixx) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (solely in the case of the Pooled Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed Loans secured by the Borrowers), (B) appears to have been executed and (C) purports to relate to Mortgaged Properties identified on the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Pooled Mortgage Loan Increase on the Additional Closing Date or with respect to such additionSchedule as "Grand Bohemian Hotel", as the case may be"Dxxxx Inn Portfolio", and the Trustee shall"Ramada Plaza--LaGuardia", subject to 2.02(b) and 2.02(g)"Marriott Detroit Livonia", certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase"Double Tree Club--Austin", the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”"Holiday Inn Express--Elk Grove", and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) above."Dxxxx Inn
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2006-Pwr14)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Original Pooled Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Pooled Mortgage Loan Loans and such other assets, together with any other Pooled Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. To the extent that the Mortgage File relates to a Pooled Mortgage Loan that is part of a Serviced Mortgage Loan Group, the Trustee shall also hold such Mortgage File in trust for the use and benefit of the related Serviced Non-Pooled Mortgage Loan Noteholders. Each Master Servicer acknowledges receipt (by it or a Primary Servicer on its behalf) of all of the original Letters of Credit relating to the Serviced Pooled Mortgage Loans for which it is the applicable Master Servicer (copies of which are part of the Mortgage File) and agrees to hold (or cause a Primary Servicer on its behalf to hold ) such Letters of Credit in trust for the benefit of the Trustee; provided, however, that the applicable Master Servicer for the PMCF Pooled Mortgage Loans, for which the applicable Pooled Mortgage Loan Seller is required to deliver the originals of any Letters of Credit to the Trustee, the applicable Master Servicer acknowledges receipt of copies of such Letters of Credit. In the case of the PMCF Pooled Mortgage Loans, the Trustee shall deliver to the applicable Master Servicer upon request any original Letters of Credit relating to the Serviced Pooled Mortgage Loans for which it is the applicable Master Servicer in connection with the performance by such Master Servicer of its duties hereunder. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto hereto, each Pooled Mortgage Loan Seller and each Underwriter that, as to each Pooled Mortgage Loan, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2Schedule II, (i) the original Mortgage Notes all documents specified in clause (ai) of the definition of “"Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), " are in its possession or the possession of a Custodian on its behalf, and (ii) each such the original Mortgage Note (or, if accompanied by a lost note affidavit, the copy of such Mortgage Note) received by it or copies thereof) any Custodian with respect to such Pooled Mortgage Loan has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears to have been executed (where appropriate) and (C) purports to relate to the such Pooled Mortgage Loan. .
(b) On or about the 360th 75th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Pooled Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b2.02(c) and 2.02(c2.02(d), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format writing to each of the other parties hereto (substantially in the form of Exhibit N), the Pooled Mortgage Loan Sellers, the Serviced Non-Pooled Mortgage Loan Noteholders (in each case, provided that the Trustee has received notice of the identity of and notice address information for such Serviced Non-Pooled Mortgage Loan Noteholder) and the Rating Agencies that Controlling Class Representative that, as to each Original Pooled Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (ai) of the definition of “"Mortgage File”, the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (e) of the definition of “Mortgage File”, and each document specified in clauses (f), (h), and (k) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(b) None of the Trustee, the Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loan delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of the Trustee, the Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(c) In performing the reviews contemplated by Subsection (a) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clauses (a), (b), (c), (e), (f), (h) and (j) of the definition of “Mortgage File” as of the date hereof have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan Increase, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” " and all allonges thereto, if any (or, or a copy of the such Mortgage NotesNote, together with a “lost note affidavit” affidavit and indemnity certifying that the relevant original of such Mortgage Note has been lost), are the original or copy of documents specified in its possession clauses (ii), (iii), (iv) (except with respect to a Non-Trust-Serviced Pooled Mortgage Loan), (viii) (without regard to the verification of the effective date with respect to a title policy or the possession date of funding with respect to a title commitment), (x) (if the Pooled Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a Custodian on its behalf, leasehold interest) and (iixx) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (solely in the case of the Pooled Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed Loans secured by the Borrowers), (B) appears to have been executed and (C) purports to relate to Mortgaged Properties identified on the Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower Sites, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Pooled Mortgage Loan Increase on the Additional Closing Date or with respect to such additionSchedule as "In Town Suites Portfolio", as the case may be"Marriott Courtyard Solana Beach", and the Trustee shall"Hilton Garden Inn Glastonbury", subject to 2.02(b) and 2.02(g)"Hampton Inn Suites", certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase"Hampton Inn & Suites Bemidji", the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to such certification, the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) above."Hawthorn Suites Franklin",
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc)
Acceptance of Mortgage Assets by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, directly or through a Custodian on its behalf, of (i) the Original Pooled Mortgage Loan Loans and all documents delivered to it that constitute portions of the related Mortgage File Files and (ii) all other assets delivered to it and included in the Trust Fund, in good faith and without notice of any adverse claim, and declares that it or a Custodian on its behalf holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage FileFiles, and that it holds and will hold the Original Pooled Mortgage Loan Loans and such other assets, together with any other Pooled Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future SecurityholdersCertificateholders. To the extent that the Mortgage File relates to a Pooled Mortgage Loan that is part of a Serviced Mortgage Loan Group, the Trustee shall also hold such Mortgage File in trust for the use and benefit of the related Serviced Non-Pooled Mortgage Loan Noteholders. Each Master Servicer acknowledges receipt (by it or a Primary Servicer on its behalf) of all of the original Letters of Credit relating to the Serviced Pooled Mortgage Loans for which it is the applicable Master Servicer (copies of which are part of the Mortgage File) and agrees to hold (or cause a Primary Servicer on its behalf to hold ) such Letters of Credit in trust for the benefit of the Trustee. In connection with the foregoing, the Trustee hereby certifies to each of the other parties hereto hereto, each Pooled Mortgage Loan Seller and each Underwriter that, as to each Pooled Mortgage Loan, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit A-2Schedule II, (i) the original Mortgage Notes all documents specified in clause (ai) of the definition of “"Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), " are in its possession or the possession of a Custodian on its behalf, and (ii) each such the original Mortgage Note (or, if accompanied by a lost note affidavit, the copy of such Mortgage Note) received by it or copies thereof) any Custodian with respect to such Pooled Mortgage Loan has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Note, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appears to have been executed (where appropriate) and (C) purports to relate to the such Pooled Mortgage Loan. .
(b) On or about the 360th 45th day following the Closing DateDate (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Trustee of the particular documents showing evidence of the recordation/filing), the Trustee or a Custodian on its behalf shall have completed its review of the documents delivered to it or such Custodian with respect to the each Original Pooled Mortgage Loan on the Initial Closing Date and/or the Closing DateLoan, and the Trustee shall, subject to Sections 2.01(d)1.04, 2.02(b2.02(c) and 2.02(c2.02(d), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format writing to each of the other parties hereto (substantially in the form of Exhibit N), the Pooled Mortgage Loan Sellers, the Serviced Non-Pooled Mortgage Loan Noteholders (in each case, provided that the Trustee has received notice of the identity of and notice address information for such Serviced Non-Pooled Mortgage Loan Noteholder) and the Rating Agencies that Controlling Class Representative that, as to each Original Pooled Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (ai) of the definition of “"Mortgage File”" and all allonges thereto, if any (or a copy of such Mortgage Note, together with a lost note affidavit and indemnity certifying that the original or copies of the Mortgages and deeds of trust specified in clause (b) of the definition of “such Mortgage File”, the original assignments of Mortgages specified in clause (c) of the definition of “Mortgage File”Note has been lost), the original or copy of the policies of title insurance documents specified in clause clauses (eii), (iii), (iv) (except with respect to a Non-Trust-Serviced Pooled Mortgage Loan), (viii) (without regard to the verification of the effective date with respect to a title policy or the date of funding with respect to a title commitment), (x) (if the Pooled Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a leasehold interest) and (xx) (solely in the case of the Pooled Mortgage Loans secured by the Mortgaged Properties identified on the Pooled Mortgage Loan Schedule as "Marriott Tysons Corner", "Rochester Xxxxxx Grand", "Holiday Inn - Xxxxxx", "Holiday Inn - McAlester", "Holiday Inn Express - Durant", "Xxxxxxx Inn - Xxxxxxx", "Comfort Suites", "Best Western - Atoka", "Ontario Airport Marriott", "Marriott Park City", "Comfort Inn Tysons Corner", "Hampton Inn & Suites - Leesburg", "Hampton Inn - VA Beach" and "Courtyard by Marriott") of the definition of “"Mortgage File”, and each document specified in clauses (f), (h), and (k) of the definition of “Mortgage File” is in its possession " have been received by it or the possession of a Custodian on its behalf; and (ii) if such report is due more than 180 days after the Closing Date, the recordation/filing contemplated by Section 2.01(e) has been completed (based solely on receipt by the Trustee of the particular recorded/filed documents or an appropriate receipt of recording/filing therefor); (iii) all documents received by it or any Custodian with respect to such Pooled Mortgage Loan have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the BorrowersBorrower), (B) appear to have been executed (where appropriate) and (C) purport to relate to the such Pooled Mortgage Loan. If any exceptions are noted ; (iv) based on the examinations referred to in Section 2.02(a) above and this Section 2.02(b) and only as to the foregoing documents, the information set forth in the exception report annexed Pooled Mortgage Loan Schedule with respect to such certification, the items specified in clause (iii)(A) and clause (vi) of the definition of "Pooled Mortgage Loan Schedule" accurately reflects the information set forth in the related Mortgage File; and (v) the Trustee on behalf of the Trust is shown as the owner of each Mortgage recorded in the name of MERS or a Custodian on its behalf shall, every 180 designee. Every 90 days after such 45th day following the delivery of such certification Closing Date, until the earlier of (i) the date on which such exceptions are eliminated and such recordation/filing has been completed, and (ii) the second anniversary of date on which all the date hereof, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(b) None of the Trustee, the Servicer or any Custodian is under any duty or obligation to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the affected Pooled Mortgage Loan delivered to it to determine that the same Loans are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, none of the Trustee, the Servicer or any Custodian shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(c) In performing the reviews contemplated by Subsection (a) above, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clauses (a), (b), (c), (e), (f), (h) and (j) of the definition of “Mortgage File” as of the date hereof have been received and such additional information as will be necessary for making and/or delivering the certifications required by Subsection (a) above.
(d) With respect to each UCC Financing Statement included in the Mortgage File (including after the addition of any Additional Sites or Additional Borrower Sites), the Servicer shall prepare, execute and file, or cause such preparation, execution, and filing at the applicable filing office where such UCC Financing Statement was filed, continuation statements with respect hereto, in each case within six months prior to the fifth anniversary of the immediately preceding filing at the Borrowers’ expense; provided, that the Servicer shall only be required to file continuation statements made in the State of Georgia.
(e) With respect to all Mortgage Loan Documents executed and delivered after the date hereof (including those executed and delivered pursuant to a Mortgage Loan Increase as provided by Section 3.2 of the Loan Agreement or in connection with the addition of any Additional Sites or Additional Borrower Sites) relating to a Mortgaged Site located in the State of Georgia, the Servicer shall receive those documents on behalf of removed from the Trust and the Servicer shall deliver to the Trustee originals of all such Mortgage Loan Documents received by the Servicer promptly following its receipt thereof. The Trustee shall hold and review such Mortgage Loan Documents in accordance with the provisions set forth in this Section 2.02(e), including, without limitation, with respect to any Mortgage Loan Increase, any documents to be included in the Mortgage File relating to such Mortgage Loan Increase and any review of any document to be performed in relation to the Closing Date or periodically thereafter are also to be performed on any Additional Closing Date and periodically thereafter with respect to the documents relating to the Mortgage Loan Increase as provided in clause (f) of this Section 2.02.
(f) In connection with any Mortgage Loan IncreaseFund, the Trustee or a Custodian on its behalf shall certify in the applicable Trust Agreement Supplement to each of the other parties thereto that, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached thereto as Exhibit A-2, (i) the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File” and all allonges thereto, if any (or, a copy of the Mortgage Notes, together with a “lost note affidavit” certifying that the relevant Mortgage Note has been lost), are in its possession or the possession of a Custodian on its behalf, and (ii) each such Mortgage Note (or copies thereof) has been reviewed by it or by such Custodian on its behalf and (A) appears regular on its face (in the case of the Mortgage Notes, handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appears to have been executed and (C) purports to relate deliver electronically to the Pooled Mortgage Loan. On or about the 180th day following any Additional Closing Date or the date of the addition of any Additional Sites or Additional Borrower SitesLoan Sellers, the Trustee or a Custodian on its behalf shall review the documents delivered to it or such Custodian with respect to the Serviced Non-Pooled Mortgage Loan Increase on the Additional Closing Date or with respect to such addition, as the case may be, Noteholders and the Trustee shall, subject Controlling Class Representative an update to 2.02(b) and 2.02(g), certify in the form attached hereto as Exhibit A-3 in a mutually acceptable electronic format to each of the other parties hereto and the Rating Agencies that (except as specifically identified in any exception report annexed to such certification): (i) in the case of a Mortgage Loan Increase, the original Mortgage Notes specified in clause (l)(i) of the definition of “Mortgage File”, and/or, in the case of the addition of Additional Sites or Additional Borrower Sites, the original or copies of the Mortgages and deeds of trust specified in clause (l)(ii)(A) of the definition of “Mortgage File”, the original assignments of Mortgages specified in clause (l)(ii)(B) of the definition of “Mortgage File”, the original or copy of the policies of title insurance specified in clause (l)(iii) of the definition of “Mortgage File”, and each document specified in clauses (l)(iv), and (l)(iv) of the definition of “Mortgage File” is in its possession or the possession of a Custodian on its behalf; and (ii) all documents received by it or any Custodian with respect to such Mortgage Loan Increase or addition have been reviewed by it or by such Custodian on its behalf and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrowers), (B) appear to have been executed (where appropriate) and (C) purport to relate to the Mortgage Loan Increase or addition. If any exceptions are noted in the exception report annexed to the certification described above substantially in the form of Exhibit N, which update shall report any remaining outstanding exceptions with respect to each Original Pooled Mortgage Loan. Such delivery shall be deemed to constitute a certification of the substance of the matters set forth in the form of such certificationExhibit N (except as set forth in such exception report). The applicable Master Servicer shall provide the contact name, mailing address and e-mail address of each Serviced Non-Pooled Mortgage Loan Noteholder to the Trustee or a Custodian on its behalf shall, every 180 days after the delivery of such certification until the earlier of (i) the date on which such exceptions are eliminated and (ii) the second anniversary of the Additional Closing Date or the date of such addition, as the case may be, and thereafter upon request by any party hereto or any Rating Agency, distribute an updated exception report to the other parties hereto and to the Rating Agencies.
(g) In performing the reviews contemplated by Subsection (f) aboveextent not previously provided thereto, the Trustee or a Custodian on its behalf may conclusively rely on the Borrowers as to the purported genuineness of any such document and any signature thereon. It is understood provided that the scope of the Trustee’s and any Custodian’s review of the Mortgage File is limited solely to confirming that the documents specified in clause (l) of the definition of “Mortgage File” as of the Additional Closing Date or the date of any addition, as the case may be, have been received and applicable Master Servicer has such additional information as will be necessary for making and/or delivering the certifications required by Subsection (f) aboveinformation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr9)
