Exhibit 4.1
Pooling and Servicing Agreement
See attached
CWCapital Commercial Funding Corp.,
as Depositor
and
Wachovia Bank, National Association,
as Master Servicer
and
CWCapital Asset Management LLC,
as Special Servicer
and
Xxxxx Fargo Bank, N.A.,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2007
------------------------------------------
$2,016,804,393
COBALT CMBS Commercial Mortgage Trust 2007-C3,
Commercial Mortgage Pass-Through Certificates,
Series 2007-C3
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
Section 1.01 Defined Terms................................................
Section 1.02 General Interpretive Principles..............................
Section 1.03 Certain Adjustments to the Principal Distributions
on the Certificates.........................................
Section 1.04 Certain Calculations Relating to Mortgage Loans..............
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01 Creation of Trust; Conveyance of Mortgage Loans..............
Section 2.02 Acceptance of Trust Fund by Trustee..........................
Section 2.03 Repurchase of Mortgage Loans for Document Defects
and Breaches of Representations and Warranties..............
Section 2.04 Representations, Warranties and Covenants of the
Depositor...................................................
Section 2.05 Execution of Certificates; Issuance of
Uncertificated Lower-Tier Interests.........................
Section 2.06 Grantor Trust Assets.........................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Mortgage Loans.........................
Section 3.02 Collection of Loan Payments..................................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts........................
Section 3.04 Pool Custodial Account, Defeasance Deposit Account,
Distribution Account, Interest Reserve Account,
Excess Liquidation Proceeds Account and Class Y
Sub-Account.................................................
Section 3.04A Loan Combination Custodial Account...........................
Section 3.05 Permitted Withdrawals From the Pool Custodial
Account, the Distribution Account, the Interest
Reserve Account and the Excess Liquidation
Proceeds Account............................................
Section 3.05A Permitted Withdrawals From the Loan Combination
Custodial Account...........................................
Section 3.06 Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Defeasance Deposit Account,
the Custodial Accounts, the REO Accounts, the
Distribution Account, the Interest Reserve Account
and the Excess Liquidation Proceeds Account.................
Section 3.07 Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage; Environmental
Insurance...................................................
Section 3.08 Enforcement of Due-on-Sale and Due on Encumbrance
Provisions..................................................
Section 3.09 Realization Upon Defaulted Loans; Required
Appraisals; Appraisal Reduction Calculation.................
Section 3.10 Trustee and Custodian to Cooperate; Release of
Mortgage Files..............................................
Section 3.11 Servicing Compensation; Payment of Expenses..................
Section 3.12 Certain Matters Regarding Servicing Advances.................
Section 3.13 Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.....................
Section 3.14 Delivery of Certain Reports to the Companion Loan
Noteholders.................................................
Section 3.15 Statements to the Companion Loan Noteholders.................
Section 3.16 Access to Certain Information................................
Section 3.17 Title to REO Property; REO Accounts..........................
Section 3.18 Management of Serviced REO Property..........................
Section 3.19 Sale of Mortgage Loans and REO Properties....................
Section 3.20 Additional Obligations of the Master Servicer;
Obligations to Notify Ground Lessors; the Special
Servicer's Right to Request the Master Servicer to
Make Servicing Advances.....................................
Section 3.21 Modifications, Waivers, Amendments and Consents;
Defeasance..................................................
Section 3.22 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping............................
Section 3.23 Sub-Servicing Agreements.....................................
Section 3.24 Representations and Warranties of the Master
Servicer....................................................
Section 3.25 Representations and Warranties of the Special
Servicer....................................................
Section 3.26 Certain Matters Regarding the Purchase of the Loan
Combination Trust Mortgage Loans............................
Section 3.27 Application of Default Charges...............................
Section 3.28 Limitations on and Authorizations of the Master
Servicer and Special Servicer with Respect to
Specific Mortgage Loans.....................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions................................................
Section 4.02 Statements to Certificateholders; CMSA Loan
Periodic Update File........................................
Section 4.03 P&I Advances.................................................
Xxxxxxx 0.00X X&X Advances on the Loan Combination Trust Mortgage
Loans.......................................................
Section 4.04 Allocation of Realized Losses and Additional Trust
Fund Expenses...............................................
Section 4.05 Various Reinstatement Amounts................................
Section 4.06 Calculations.................................................
Section 4.07 Use of Agents................................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Registration of Transfer and Exchange of
Certificates................................................
Section 5.03 Book-Entry Certificates......................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons Deemed Owners........................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE
CONTROLLING CLASS REPRESENTATIVE
Section 6.01 Liability of Depositor, Master Servicer and Special
Servicer....................................................
Section 6.02 Continued Qualification and Compliance of Master
Servicer; Merger, Consolidation or Conversion of
Depositor, Master Servicer or Special Servicer..............
Section 6.03 Limitation on Liability of Depositor, Master
Servicer and Special Servicer...............................
Section 6.04 Resignation of Master Servicer and the Special
Servicer....................................................
Section 6.05 Rights of Depositor, Trustee and Companion Loan
Noteholders in Respect of the Master Servicer and
the Special Servicer........................................
Section 6.06 Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee......................................
Section 6.07 Depositor, Special Servicer and Trustee to
Cooperate with Master Servicer..............................
Section 6.08 Depositor, Master Servicer and Trustee to Cooperate
with Special Servicer.......................................
Section 6.09 Termination and Designation of Special Servicer by
the Controlling Class Representative........................
Section 6.10 Master Servicer or Special Servicer as Owner of a
Certificate.................................................
Section 6.11 Certain Powers of the Directing Holder.......................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default............................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Notification to Certificateholders...........................
Section 7.04 Waiver of Events of Default..................................
Section 7.05 Additional Remedies of Trustee Upon Event of Default.........
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee............................................
Section 8.02 Certain Matters Affecting Trustee............................
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans..............................
Section 8.04 Trustee May Own Certificates.................................
Section 8.05 Fees and Expenses of Trustee; Indemnification of
and by Trustee..............................................
Section 8.06 Eligibility Requirements for Trustee.........................
Section 8.07 Resignation and Removal of Trustee...........................
Section 8.08 Successor Trustee............................................
Section 8.09 Merger or Consolidation of Trustee...........................
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Appointment of Custodians....................................
Section 8.12 Appointment of Authenticating Agents.........................
Section 8.13 Appointment of Tax Administrators............................
Section 8.14 Access to Certain Information................................
Section 8.15 [Reserved.]..................................................
Section 8.16 Representations and Warranties of Trustee....................
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans..............................................
Section 9.02 Additional Termination Requirements..........................
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 REMIC Administration.........................................
Section 10.02 Grantor Trust Administration.................................
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness........................
Section 11.02 Succession; Subcontractors...................................
Section 11.03 Filing Obligations...........................................
Section 11.04 Form 10-D Filings............................................
Section 11.05 Form 10-K Filings............................................
Section 11.06 Xxxxxxxx-Xxxxx Certification.................................
Section 11.07 Form 8-K Filings.............................................
Section 11.08 Form 15 Filing...............................................
Section 11.09 Annual Compliance Statements.................................
Section 11.10 Annual Reports on Assessment of Compliance with
Servicing Criteria..........................................
Section 11.11 Annual Independent Public Accountants' Servicing
Report......................................................
Section 11.12 Indemnification..............................................
Section 11.13 Amendments...................................................
Section 11.14 Regulation AB Notices........................................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment....................................................
Section 12.02 Recordation of Agreement; Counterparts.......................
Section 12.03 Limitation on Rights of Certificateholders and
Companion Loan Noteholders..................................
Section 12.04 Governing Law; Consent to Jurisdiction.......................
Section 12.05 Notices......................................................
Section 12.06 Severability of Provisions...................................
Section 12.07 Grant of a Security Interest.................................
Section 12.08 Xxxxxx Act...................................................
Section 12.09 Successors and Assigns; Beneficiaries........................
Section 12.10 Article and Section Headings.................................
Section 12.11 Notices to Rating Agencies...................................
Section 12.12 Global Opinions..............................................
Section 12.13 Complete Agreement...........................................
SCHEDULES AND EXHIBITS
Schedule No. Schedule Description
------------ --------------------
I Mortgage Loan Schedule
II Schedule of Exceptions to Mortgage File Delivery
III Environmentally Insured Mortgage Loans
IV Schedule of Initial Directing Holder for Each Loan Combination
V Supplemental Servicer Schedule
VI Primary Serviced Mortgage Loans
VII Class A-PB Planned Principal Balance
Exhibit No. Exhibit Description
----------- -------------------
A-1 Form of Class X-0, X-0, X-0, X-XX, X-0, A-1A, A-M, A-J, B, C, D,
E, F, G, H, J, K, L, M, N, O and P Certificates
A-2 Form of Class IO Certificates
A-3 Form of Class R-I and R-II Certificates
A-4 Form of Class Y Certificate
B Form of Distribution Date Statement
C Form of Custodial Certification
D-1 Form of Master Servicer Request for Release
D-2 Form of Special Servicer Request for Release
E Form of Mortgage Loan Payoff Notification Report
F-1 Form of Transferor Certificate for Transfers of Definitive
Non-Registered Certificates
F-2A Form I of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2B Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2C Form of Transferee Certificate for Transfers of Interests in
Rule 144A Global Certificates
F-2D Form of Transferee Certificate for Transfers of Interests in
Regulation S Global Certificates
G Form I of Transferee Certificate in Connection with ERISA
(Definitive Non-Registered Certificates)
H-1 Form of Transfer Affidavit and Agreement regarding Residual
Interest Certificates
H-2 Form of Transferor Certificate regarding Residual Interest
Certificates
I-1 Form of Notice and Acknowledgment
I-2 Form of Acknowledgment of Proposed Special Servicer
J Reserved
K Sub-Servicers in respect of which Sub-Servicing Agreements are in
effect or being negotiated as of the Closing Date
L Reserved
M Form of Xxxxxxxx-Xxxxx Certification
N-1 Form of Certification to be Provided to Depositor by the Trustee
N-2 Form of Certification to be Provided to Depositor by the Master
Servicer
N-3 Form of Certification to be Provided to Depositor by the Special
Servicer
O Servicing Criteria to be Addressed in Assessment of Compliance
P Additional Form 10-D Disclosure
Q Additional Form 00-X Xxxxxxxxxx
X Xxxx 0-X Xxxxxxxxxx
X Form of Additional Disclosure Information
T Servicing and Sub-Servicing Agreements
U Reserved
V Tenants-In-Common Transfer Compliance
W Form of Officer's Certificate - Tenants in Common
This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of August 1, 2007, among CWCAPITAL COMMERCIAL FUNDING CORP., as
Depositor, WACHOVIA BANK, NATIONAL ASSOCIATION, as Master Servicer, CWCAPITAL
ASSET MANAGEMENT LLC, as Special Servicer, and Xxxxx Fargo Bank, N.A., as
Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, which are to be
issued hereunder in multiple Classes and which in the aggregate will evidence
the entire beneficial ownership interest in the Trust Fund.
CERTIFICATES
Original Class
Approx. Principal Balance
Initial (or Notional
Class Pass-Through Rate Amount) Original Rating
Designation (per annum) at Initial Issuance Fitch/S&P (1)
----------- ----------------- ------------------- ---------------
Class A-1 5.324% $ 13,910,000 AAA/AAA
Class A-2 5.935% $ 107,675,000 AAA/AAA
Class A-3 6.015% $ 93,863,000 AAA/AAA
Class A-PB 6.015% $ 45,466,000 AAA/AAA
Class A-4 6.015% $ 783,039,000 AAA/AAA
Class A-1A 6.015% $ 367,811,000 AAA/AAA
Class IO 0.037%(2) $ 2,016,804,393 AAA/AAA
Class A-M 6.015% $ 201,680,000 AAA/AAA
Class A-J 6.015% $ 153,781,000 AAA/AAA
Class B 6.015% $ 40,336,000 AA/AA
Class C 6.015% $ 20,168,000 AA-/AA-
Class D 6.015% $ 25,211,000 A/A
Class E 6.015% $ 20,168,000 A-/A-
Class F 6.015% $ 25,210,000 BBB+/BBB+
Class G 6.015% $ 22,689,000 BBB/BBB
Class H 6.015% $ 25,210,000 BBB-/BBB-
Class J 5.202% $ 7,563,000 BB+/BB+
Class K 5.202% $ 5,042,000 BB/BB
Class L 5.202% $ 10,084,000 BB-/BB-
Class M 5.202% $ 5,042,000 B+/B+
Class N 5.202% $ 2,521,000 B/B
Class O 5.202% $ 5,042,000 B-/B-
Class P 5.202% $ 35,293,393 NR/NR
Class Y(5) N/A N/A NR/NR
Class R-I N/A(4) N/A(4) NR/NR
Class R-II N/A(4) N/A(4) NR/NR
----------
(1) "NR" indicates that the Class of Certificates has not been rated by the
applicable Rating Agency.
(2) The Pass-Through Rate for the Class IO Certificates will be a variable
rate per annum as set forth herein.
(3) The Class IO Certificates will not have a Class Principal Balance and will
not entitle their Holders to receive distributions of principal. The Class
IO Certificates will have a Notional Amount as set forth herein.
(4) The Class R-I Certificates and Class R-II Certificates do not have a Class
Principal Balance or Notional Amount, do not bear interest and will not be
entitled to distributions of Net Prepayment Consideration. Any Available
Distribution Amount remaining in the Lower-Tier Distribution Account after
distributing the Lower-Tier Distribution Amount and Net Prepayment
Consideration shall be distributed to the Holders of the Class R-I
Certificates (but only to the extent of the Available Distribution Amount
for such Distribution Date, if any, remaining in the Lower-Tier
Distribution Account). Any Available Distribution Amount remaining in the
Upper-Tier Distribution Account, after all required distributions under
this Agreement have been made to each other Class of Certificates, will be
distributed to the Holders of the Class R-II Certificates.
(5) The Class Y Certificates do not have a Class Principal Balance or Notional
Amount, do not bear interest and will only be entitled to receive Post-ARD
Additional Interest with respect to the ARD Loan as set forth herein.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of all of the Mortgage Loans and certain other related
assets subject to this Agreement as a REMIC for federal income tax purposes, and
such segregated pool of assets will be designated as the "Lower-Tier REMIC." The
Class R-I Certificates will represent the sole class of "residual interests" in
the Lower-Tier REMIC for purposes of the REMIC Provisions under federal income
tax law.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Uncertificated Lower-Tier Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as the "Upper-Tier REMIC." The Class R-II Certificates will evidence
the sole class of "residual interests" in the Upper-Tier REMIC for purposes of
the REMIC Provisions under federal income tax law. For federal income tax
purposes, each Class of the Regular Interest Certificates will be designated as
a separate "regular interest" in the Upper-Tier REMIC for purposes of the REMIC
Provisions under federal income tax law.
The Class Y Certificates shall not be an interest in any REMIC. The
Class Y Certificates shall represent undivided beneficial interests in the
portion of the Grantor Trust representing the Post-ARD Additional Interest and
the Class Y Sub-Account.
The following table sets forth the Class or Component designation,
the corresponding Uncertificated Lower-Tier Interest (the "Corresponding
Uncertificated Lower-Tier Interest"), the corresponding components of the Class
IO Certificates (the "Corresponding Components"), if any, and the Original Class
Principal Balance for each Class of Principal Balance Certificates (the
"Corresponding Certificates").
Corresponding Original Corresponding
Original Class Uncertificated Lower-Tier Components of
Corresponding Principal Lower-Tier Principal Class IO
Certificates Balance Interests(1) Amount Certificates
------------- -------------- -------------- ------------ -------------
Class A-1 $ 13,910,000 LA-1 $ 13,910,000 IO-A-1
Class A-2 $ 107,675,000 LA-2 $107,675,000 IO-A-2
Class A-3 $ 93,863,000 LA-3 $ 93,863,000 IO-A-3
Class A-PB $ 45,466,000 LA-PB $ 45,466,000 IO-A-PB
Class A-4 $ 783,039,000 LA-4 $783,039,000 IO-A-4
Class A-1A $ 367,811,000 LA-1A $367,811,000 IO-A-1A
Class A-M $ 201,680,000 LA-M $201,680,000 IO-A-M
Class A-J $ 153,781,000 LA-J $153,781,000 IO-A-J
Class B $ 40,336,000 LB $ 40,336,000 IO-B
Class C $ 20,168,000 LC $ 20,168,000 IO-C
Class D $ 25,211,000 LD $ 25,211,000 IO-D
Class E $ 20,168,000 LE $ 20,168,000 IO-E
Class F $ 25,210,000 LF $ 25,210,000 IO-F
Class G $ 22,689,000 LG $ 22,689,000 IO-G
Class H $ 25,210,000 LH $ 25,210,000 IO-H
Class J $ 7,563,000 LJ $ 7,563,000 IO-J
Class K $ 5,042,000 LK $ 5,042,000 IO-K
Class L $ 10,084,000 LL $ 10,084,000 IO-L
Class M $ 5,042,000 LM $ 5,042,000 IO-M
Class N $ 2,521,000 LN $ 2,521,000 IO-N
Class O $ 5,042,000 LO $ 5,042,000 IO-O
Class P $ 35,293,393 LP $ 35,293,393 IO-P
----------
(1) The Uncertificated Lower-Tier Interest and the Component of the Class IO
Certificates that correspond to any particular Class of Principal Balance
Certificates also correspond to each other and, accordingly, constitute
the "Corresponding Uncertificated Lower-Tier Interest" and the
"Corresponding Component," respectively, with respect to each other.
The initial aggregate principal balance of the Uncertificated
Lower-Tier Interests will be $2,016,804,393.
The portion of the Trust Fund consisting of the Post-ARD Additional
Interest and related amounts shall be treated as a grantor trust for federal
income tax purposes (the "Grantor Trust"). As provided herein, the Trustee shall
take all actions necessary to ensure that the portion of the Trust Fund
consisting of the Grantor Trust Assets maintains its status as a "grantor trust"
under federal income tax law and not be treated as part of the Lower Tier REMIC
or the Upper Tier REMIC. The Class Y Certificates represent undivided beneficial
interests in the portion of the Grantor Trust representing the Post-ARD
Additional Interest and the Class Y Sub-Account as described herein.
There are six Mortgage Loans included in the Trust Fund (as
identified in the table below) that are each part of a split loan structure, and
are each secured by the same Mortgage that also secures another mortgage loan or
loans in that split loan structure.
Each split loan structure, including all of the related notes that
are secured by the same Mortgage, is referred to herein as a "Loan Combination."
Each Loan Combination consists of (1) one or more "Loan Combination Trust
Mortgage Loans," which is the portion of the Loan Combination that is included
as an asset of the Trust Fund and (2) one or more "Companion Loans," which is
the portion of the Loan Combination that is not included as an asset of the
Trust Fund. Each Companion Loan may be classified as either (1) a "Pari Passu
Companion Loan," which is a Companion Loan that is pari passu in right of
payment with the related Loan Combination Trust Mortgage Loan in the same Loan
Combination or (2) a "Subordinate Companion Loan," which is a Companion Loan
that is subordinate in right of payment to the related Loan Combination Trust
Mortgage Loan in the same Loan Combination. A Loan Combination may contain both
Pari Passu Companion Loans and Subordinate Companion Loans. The term "Mortgage
Loan" as used in this Agreement will include the Loan Combination Trust Mortgage
Loans.
The following table identifies the Loan Combinations and their
related Loan Combination Trust Mortgage Loans and Companion Loans:
Aggregate Pari Passu Controlling
Mortgage Loan Subordinate Companion Pooling & Initial Initial
Loan Combination Companion Loan Servicing Master Special
Mortgage Loan Balance(1) Balance(1) Loan Balance Balance(1) Agreement Servicer Servicer
--------------------- ------------ ------------ ------------ ------------ ----------- -------- --------
Xxxxxxx River Plaza $145,000,000 $310,000,000 $20,000,000 $145,000,000 COBALT CMBS Wachovia CWCAM(2)
North ............ 2007-3
Irvine EOP San Diego $137,000,000 $157,000,000 $20,000,000 N/A COBALT CMBS Wachovia CWCAM(2)
Portfolio ........ 2007-3
0 Xxxxxx Xxxxxx ..... $100,000,000 $110,000,000 $10,000,000 N/A COBALT CMBS Wachovia CWCAM(2)
2007-3
The Encino Courtyard. $27,462,000 $32,962,000 $5,500,000 N/A COBALT CMBS Wachovia CWCAM(2)
2007-3
Cedar Ridge Townhomes $5,140,000 $5,790,000 $650,000(3) N/A COBALT CMBS Wachovia CWCAM(2)
2007-3
The Northcrest $5,000,000 $5,475,500 $475,000 N/A COBALT CMBS Wachovia CWCAM(2)
Apartments ....... 2007-3
------
(1) Based on cut-off date loan balances.
(2) CWCapital Asset Management LLC.
(3) The companion loan with respect to the Cedar Ridge Townhomes property will
initially be subordinate in right of payment to the mortgage loan included
in the trust but may become pari passu in right of payment under certain
circumstances.
Xxxxxxx River Plaza North. The Loan Combination secured by a Mortgage on the
property known as Xxxxxxx River Plaza North (the "Xxxxxxx River Plaza North Loan
Combination"), consists of three Loans:
(a) One Loan Combination Trust Mortgage Loan in the outstanding
principal amount of $145,000,000 as of the date hereof (the "Xxxxxxx River Plaza
North Trust Loan");
(b) One Pari Passu Companion Loan in the outstanding principal
amount of $145,000,000 as of the date hereof (the "Xxxxxxx River Plaza North
Pari Passu Companion Loan" and, together with the Xxxxxxx River Plaza North
Trust Loan, the "Xxxxxxx River Plaza North Senior Loans"); and
(c) One Subordinate Companion Loan in the outstanding principal
amount of $20,000,000 as of the date hereof (the "Xxxxxxx River Plaza North
Subordinate Companion Loan").
Irvine EOP San Diego Portfolio. The Loan Combination secured by a
Mortgage on the property known as Irvine EOP San Diego Portfolio (the "Irvine
EOP San Diego Portfolio Loan Combination"), consists of two Loans:
(a) One Loan Combination Trust Mortgage Loan in the outstanding
principal amount of $137,000,000 as of the date hereof (the "Irvine EOP San
Diego Portfolio Trust Loan"); and
(b) One Subordinate Companion Loan in the aggregate outstanding
principal amount of $20,000,000 as of the date hereof (the "Irvine EOP San Diego
Portfolio Subordinate Companion Loan").
0 Xxxxxx Xxxxxx. The Loan Combination secured by a Mortgage on the
property known as 0 Xxxxxx Xxxxxx (the "2 Xxxxxx Street Loan Combination"),
consists of two Loans:
(a) One Loan Combination Trust Mortgage Loan in the outstanding
principal amount of $100,000,000 as of the date hereof (the "2 Xxxxxx Street
Trust Loan"); and
(b) One Subordinate Companion Loan in the aggregate outstanding
principal amount of $10,000,000 as of the date hereof (the "2 Xxxxxx Street
Subordinate Companion Loan").
The Encino Courtyard. The Loan Combination secured by a Mortgage on
the property known as The Encino Courtyard (the "Encino Courtyard Loan
Combination"), consists of two Loans:
(a) One Loan Combination Trust Mortgage Loan in the outstanding
principal amount of $27,462,000 as of the date hereof (the "Encino Courtyard
Trust Loan"); and
(b) One Subordinate Companion Loan in the aggregate outstanding
principal amount of $5,500,000 as of the date hereof (the "Encino Courtyard
Subordinate Companion Loan").
Cedar Ridge Townhomes. The Loan Combination secured by a Mortgage on
the property known as Cedar Ridge Townhomes (the "Cedar Ridge Townhomes Loan
Combination"), consists of two Loans:
(a) One Loan Combination Trust Mortgage Loan in the outstanding
principal amount of $5,140,000 as of the date hereof (the "Cedar Ridge Townhomes
Trust Loan"); and
(b) One Subordinate Companion Loan in the aggregate outstanding
principal amount of $650,000 as of the date hereof (the "Cedar Ridge Townhomes
Subordinate Companion Loan").
The Northcrest Apartments. The Loan Combination secured by a
Mortgage on the property known as The Northcrest Apartments (the "Northcrest
Apartments Loan Combination"), consists of two Loans:
(a) One Loan Combination Trust Mortgage Loan in the outstanding
principal amount of $500,000 as of the date hereof (the "Northcrest Apartments
Trust Loan"); and
(b) One Subordinate Companion Loan in the aggregate outstanding
principal amount of $475,000 as of the date hereof (the "Northcrest Apartments
Subordinate Companion Loan").
The relative rights of each holder of a Loan Combination Trust
Mortgage Loan and the related Companion Loans are set forth in a co-lender or
other similar agreement (each a "Co-Lender Agreement") among the holders of each
of the Loans in the Loan Combination. Pursuant to each Co-Lender Agreement, the
Xxxxxxx River Plaza North Loan Combination, Irvine EOP San Diego Portfolio Loan
Combination, 2 Xxxxxx Street Loan Combination, Encino Courtyard Loan
Combination, Cedar Ridge Townhomes Loan Combination and Northcrest Apartments
Loan Combination (the "Serviced Loan Combinations") are to be serviced and
administered under this Agreement.
Capitalized terms used but not otherwise defined in this Preliminary
Statement have the respective meanings assigned thereto in Section 1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the Trustee hereby
agree, in each case, as follows:
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, unless the context otherwise requires:
"0 Xxxxxx Xxxxxx Loan Combination" shall have the meaning assigned
thereto in the Preliminary Statement.
"2 Xxxxxx Street Subordinate Companion Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"2 Xxxxxx Street Portfolio Trust Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Acceptable Insurance Default" shall mean, with respect to any
Serviced Loan, any default under the related Loan documents resulting from (a)
the exclusion of acts of terrorism from coverage under the related all risk
casualty insurance policy maintained on the subject Mortgaged Property and (b)
the related Mortgagor's failure to obtain insurance that specifically covers
acts of terrorism, but only if the Special Servicer has determined, in
accordance with the Servicing Standard, that either (i) such insurance is not
available at commercially reasonable rates and the subject hazards are not
commonly insured against by prudent owners of similar real properties in similar
locales (but only by reference to such insurance that has been obtained by such
owners at current market rates), or (ii) such insurance is not available at any
rate. Subject to the Servicing Standard, in making any of the determinations
required in subclause (i) or (ii) of this definition, the Special Servicer shall
be entitled to rely on the opinion of an insurance consultant.
"Accrued Certificate Interest" shall mean the interest accrued from
time to time with respect to any Class of Regular Interest Certificates, the
amount of which interest shall equal: (a) in the case of any Class of Principal
Balance Certificates for any Interest Accrual Period, interest accrued at the
Pass-Through Rate applicable to such Class of Certificates for such Interest
Accrual Period, on the Class Principal Balance of such Class outstanding
immediately prior to the related Distribution Date; and (b) in the case of the
Class IO Certificates for any Interest Accrual Period, the sum of the Accrued
Component Interest for all of the Components of such Class for such Distribution
Date. The Accrued Certificate Interest for each such Class shall be calculated
on the basis of a 360 day year composed of twelve 30 day months.
"Accrued Component Interest" shall mean, with respect to each
Component of the Class IO Certificates for any Distribution Date, one twelfth of
the product of (i) the Class IO Strip Rate applicable to such Component for such
Distribution Date, and (ii) the Component Notional Amount of such Component
outstanding immediately prior to such Distribution Date.
"Acquisition Date" shall mean, with respect to any REO Property, the
first day on which such REO Property is considered to be acquired by the Trust
Fund within the meaning of Treasury Regulations Section 1.856-6(b)(1), which
shall be the first day on which the Trust Fund is treated as the owner of such
REO Property for federal income tax purposes.
"Actual/360 Basis" shall mean the accrual of interest calculated on
the basis of the actual number of days elapsed during any interest accrual
period in a year assumed to consist of 360 days.
"Additional Disclosure Notification" shall mean the form of
notification to be included with any Additional Form 10-D Disclosure, Additional
Form 10-K Disclosure or Form 8-K Disclosure Information which is attached hereto
as Exhibit S.
"Additional Form 10-D Disclosure" has the meaning set forth in
Section 11.04.
"Additional Form 10-K Disclosure" has the meaning set forth in
Section 11.05.
"Additional Information" shall have the meaning assigned thereto in
Section 4.02(a).
"Additional Interest Rate" shall mean, with respect to any ARD Loan
after its Anticipated Repayment Date, the incremental increase in the Mortgage
Rate for such Mortgage Loan resulting from the passage of such Anticipated
Repayment Date.
"Additional Principal Distribution Amount" shall mean, with respect
to any Distribution Date, the aggregate of the Recovered Amounts included in,
and added to the Principal Distribution Amount for such Distribution Date for
purposes of calculating, the Adjusted Principal Distribution Amount for such
Distribution Date, pursuant to Section 1.03(c).
"Additional Servicer" shall mean each Affiliate of the Master
Servicer that Services any of the Mortgage Loans and each Person who is not an
Affiliate of the Master Servicer, other than the Special Servicer or the
Trustee, who Services 10% or more of the Mortgage Loans by unpaid balance
calculated in accordance with the provisions of Regulation AB.
"Additional Trust Fund Expense" shall mean any expense incurred with
respect to the Trust Fund (excluding any Unliquidated Advance) and not otherwise
included in the calculation of a Realized Loss that would result in the Holders
of Regular Interest Certificates receiving less than the full amount of
principal and/or Distributable Certificate Interest to which they are entitled
on any Distribution Date. Amounts paid as Additional Trust Fund Expenses shall
be paid out of funds on deposit in the Custodial Account or the Distribution
Account.
"Adjusted Principal Distribution Amount" shall mean, for any
Distribution Date, an amount equal to the Principal Distribution Amount for such
Distribution Date, plus all amounts added to such Principal Distribution Amount
pursuant to Section 1.03(c) for such Distribution Date, minus all amounts
subtracted from such Principal Distribution Amount pursuant to Section 1.03(b)
for such Distribution Date.
"Administrative Cost Rate" shall mean, with respect to each Mortgage
Loan (or any successor REO Mortgage Loan with respect thereto), the rate per
annum specified as the "Administrative Cost Rate" on the Mortgage Loan Schedule,
which, for each such other Mortgage Loan (or successor REO Mortgage Loan) is
equal to the sum of the related Master Servicing Fee Rate and the Trustee Fee
Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event" shall have the meaning assigned
thereto in Section 10.02(e).
"Adverse Rating Event" shall mean, (i) when used with respect to any
Class of Certificates, as of any date of determination, the qualification,
downgrade or withdrawal of any rating then assigned to such Class of
Certificates by any Rating Agency and (ii) when used with respect to any
Companion Loan Securities, as of any date of determination the qualification,
downgrade or withdrawal of any rating then assigned by any Rating Agency to such
Companion Loan Securities (but only if such Companion Loan Securities were
issued in connection with the inclusion of a Serviced Pari Passu Companion Loan
into a trust as part of a securitization).
"Adverse REMIC Event" shall have the meaning assigned thereto in
Section 10.01(i).
"Affiliate" shall mean, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control," when used with
respect to any specified Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" shall mean this Pooling and Servicing Agreement,
together with all amendments hereof and supplements hereto.
"Anticipated Repayment Date" shall mean, with respect to any ARD
Loan, the date specified in the related Mortgage Note after which the Mortgage
Rate for any ARD Loan will increase as specified in the related Mortgage Note.
"Appraisal" shall mean an appraisal or update thereof prepared by an
Independent Appraiser.
"Appraisal Reduction Amount" shall mean, with respect to any
Required Appraisal Loan, an amount calculated by the Master Servicer and
reviewed by the Special Servicer (calculated initially as of the Determination
Date immediately following the later of the date on which the subject Mortgage
Loan or Loan Combination became a Required Appraisal Loan and the date on which
the applicable Required Appraisal was obtained) equal to the excess, if any, of:
(a) the sum of, without duplication, (i) the Stated Principal Balance of such
Required Appraisal Loan, (ii) to the extent not previously advanced by or on
behalf of the Master Servicer or the Trustee, all unpaid interest on such
Required Appraisal Loan through the most recent Due Date prior to the date of
calculation (exclusive of any portion thereof that represents Default Interest),
(iii) all accrued and unpaid Special Servicing Fees, Liquidation Fees and
Workout Fees in respect of such Required Appraisal Loan, (iv) all related
unreimbursed Advances (which shall include, without duplication, (1) any
Advances as to which the advancing party was reimbursed from a source other than
the related Mortgagor and (2) any Unliquidated Advances) made by or on behalf of
(plus all accrued interest on such Advances payable to) the Master Servicer, the
Special Servicer and/or the Trustee with respect to such Required Appraisal
Loan, (v) any other unpaid Additional Trust Fund Expenses in respect of such
Required Appraisal Loan, and (vi) all currently due and unpaid real estate taxes
and assessments, insurance premiums and, if applicable, ground rents, and any
unfunded improvement or other applicable reserves, in respect of the related
Mortgaged Property or REO Property, as the case may be (in each case, net of any
amounts escrowed with the Master Servicer or the Special Servicer for such
items); over (b) the Required Appraisal Value. Notwithstanding the foregoing, if
(i) any Mortgage Loan or Loan Combination becomes a Required Appraisal Loan,
(ii) either (A) no Required Appraisal or update thereof has been obtained or
conducted, as applicable, in accordance with Section 3.09(a), with respect to
the related Mortgaged Property during the 12-month period prior to the date such
Mortgage Loan or Loan Combination became a Required Appraisal Loan or (B) there
shall have occurred since the date of the most recent Required Appraisal or
update thereof a material change in the circumstances surrounding the related
Mortgaged Property that would, in the Special Servicer's reasonable judgment,
materially affect the value of the related Mortgaged Property, and (iii) no new
Required Appraisal is obtained or conducted, as applicable, in accordance with
Section 3.09(a), within sixty (60) days after such Mortgage Loan or Loan
Combination became a Required Appraisal Loan, then (x) until such new Required
Appraisal is obtained or conducted, as applicable, in accordance with Section
3.09(a), the Appraisal Reduction Amount shall equal 25% of the Stated Principal
Balance of such Required Appraisal Loan, and (y) upon receipt or performance, as
applicable, in accordance with Section 3.09(a), of such Required Appraisal or
update thereof by the Special Servicer, the Appraisal Reduction Amount for such
Required Appraisal Loan shall be recalculated in accordance with the preceding
sentence of this definition. For purposes of this definition, each Required
Appraisal Loan that is part of a Cross-Collateralized Group shall be treated
separately for the purposes of calculating any Appraisal Reduction Amount.
With respect to the Xxxxxxx River Plaza North Loan Combination and
the Encino Courtyard Loan Combination, the related Co-Lender Agreement permits
the related Loan Combination Directing Holder to direct the Special Servicer to
retain an appraiser reasonably satisfactory to such Loan Combination Directing
Holder to prepare a second appraisal of the related Mortgaged Property at the
expense of such Loan Combination Directing Holder. If the appraised value of the
related Mortgaged Property as determined based on such second appraisal differs
from that used in determining the Appraisal Reduction Amount by more than 10%,
the Special Servicer will be required to direct the appraisers to jointly
appoint a third appraiser, at the expense of the related Loan Combination
Directing Holder, to reconcile the differences between the appraised values
determined under each appraisal; provided that, until the determination of such
third appraiser is rendered, the appraised value of the related Mortgaged
Property set forth in the first appraisal will be used to calculate any
Appraisal Reduction Amount with respect to the affected Loan Combination; and
provided further that, the determination of such third appraiser will be the
final and binding determination of the appraised value of the related Mortgaged
Property until the preparation of a new appraisal, if any, is required in
accordance with this Agreement and the applicable Co-Lender Agreement.
In addition, with respect to the Xxxxxxx River Plaza North Trust
Loan and the Encino Courtyard Trust Loan, any Reserve Collateral posted by the
related Subordinate Companion Loan Noteholder shall offset or be taken into
account in the calculation of any Appraisal Reduction Amount with respect to the
related Loan Combination as and to the extent contemplated by the related
Co-Lender Agreement.
"Appraised Value" shall mean, with respect to each Mortgaged
Property or REO Property, the appraised value thereof based upon the most recent
appraisal or update thereof prepared by an Independent Appraiser that is
contained in the related Servicing File or, in the case of any such property
with or that had, as the case may be, an allocated loan amount of, or securing a
Mortgage Loan or relating to an REO Loan, as the case may be, with a Stated
Principal Balance of, less than $2,000,000, either (a) the most recent appraisal
or update thereof that is contained in the related Servicing File or (b) the
most recent "desktop" value estimate performed by the Special Servicer that is
contained in the related Servicing File.
"ARD Loan" shall mean any Mortgage Loan (or any successor REO Loan
with respect thereto) that provides that if the unamortized principal balance
thereof is not repaid on its Anticipated Repayment Date, such Mortgage Loan (or
successor REO Loan) will accrue additional interest at the rate specified in the
related Mortgage Note and the related Mortgagor is required to apply certain
excess monthly cash flow generated by the related Mortgaged Property to the
repayment of the outstanding principal balance of such Mortgage Loan.
"Assignment of Leases" shall mean, with respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar document or
instrument executed by the Mortgagor in connection with the origination of the
related Mortgage Loan.
"Assumed Monthly Payment" shall mean: (a) with respect to any
Balloon Mortgage Loan (or Serviced Companion Loans) delinquent in respect of its
Balloon Payment, for each Due Date coinciding with or following its Stated
Maturity Date as of which such Mortgage Loan remains outstanding and part of the
Trust Fund, or, in the case of the Serviced Companion Loans, the related
Mortgage Loans remain part of the Trust Fund (provided that such Mortgage Loan
was not paid in full, and no other Liquidation Event occurred in respect
thereof, before the end of the Collection Period in which the related Stated
Maturity Date occurs), the scheduled monthly payment of principal and/or
interest deemed to be due in respect of such Mortgage Loan on such Due Date
equal to the amount that would have been due in respect thereof on such Due Date
if such Mortgage Loan had been required to continue to accrue interest (other
than Default Interest) in accordance with its terms, and to pay principal in
accordance with the amortization schedule (if any) in effect immediately prior
to, and without regard to the occurrence of, the related Stated Maturity Date;
(b) with respect to any REO Loan, for any Due Date as of which the related REO
Property remains part of the Trust Fund, or the scheduled monthly payment of
principal and/or interest deemed to be due in respect thereof on such Due Date
equal to the Monthly Payment (or, in the case of a Balloon Loan described in
clause (a) of this definition, the Assumed Monthly Payment) that was due (or
deemed due) in respect of the related Mortgage Loan on the last Due Date prior
to its becoming an REO Loan.
"ASTM" shall mean the American Society for Testing and Materials.
"Authenticating Agent" shall mean any authenticating agent appointed
pursuant to Section 8.12 (or, in the absence of any such appointment, the
Trustee).
"Available Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to (a) the sum, without duplication, of the
following amounts: (i) the aggregate amount of all payments and other
collections on or with respect to the Mortgage Loans and any REO Properties that
(A) were Received as of the end of the related Collection Period and (B) are on
deposit in the Distribution Account as of 11:00 a.m. (New York City time) on
such Distribution Date, (ii) the aggregate amount of any P&I Advances made by
the Master Servicer or the Trustee for distribution on the Certificates on such
Distribution Date pursuant to Section 4.03, (iii) the aggregate amount deposited
by the Master Servicer in the Distribution Account for such Distribution Date
pursuant to Section 3.20(a) in connection with Prepayment Interest Shortfalls,
(iv) to the extent not included in clause (a)(i) of this definition, the
aggregate amount transferred from the Excess Liquidation Proceeds Account to the
Distribution Account pursuant to Section 3.05(d) in respect of such Distribution
Date and (v) to the extent not included in the amount described in clause (a)(i)
of this definition, if such Distribution Date occurs during March of any year
(or February, if the Final Distribution Date occurs in February), the aggregate
of the Interest Reserve Amounts transferred from the Interest Reserve Account to
the Distribution Account in respect of the Interest Reserve Mortgage Loans and
any Interest Reserve REO Mortgage Loans for distribution on such Distribution
Date; net of (b) the portion of the aggregate amount described in clause (a) of
this definition that represents one or more of the following: (i) Monthly
Payments that are due on a Due Date following the end of the related Collection
Period, (ii) any amounts payable or reimbursable to any Person from the
Distribution Account pursuant to clauses (ii) through (vii) of Section 3.05(b),
(iii) Prepayment Premiums and/or Yield Maintenance Charges, (iv) if such
Distribution Date occurs during January of any year that is not a leap year or
during February of any year (unless, in either case, the related Distribution
Date is the Final Distribution Date), the Interest Reserve Amounts with respect
to the Interest Reserve Mortgage Loans and any Interest Reserve REO Mortgage
Loans to be withdrawn from the Distribution Account and deposited into the
Interest Reserve Account in respect of such Distribution Date and held for
future distribution, all pursuant to Section 3.04(c), and (v) amounts deposited
in the Distribution Account in error; provided that clauses (b)(i), (b)(iii) and
(b)(iv) of this definition shall not apply on the Final Distribution Date.
"Balloon Loan" shall mean any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date
provides for an amortization schedule extending beyond its Stated Maturity Date
and as to which, in accordance with such terms, the payment due on its Stated
Maturity Date is significantly larger than the Monthly Payment due on the Due
Date preceding its Stated Maturity Date.
"Balloon Payment" shall mean, with respect to any Balloon Loan as of
any date of determination, the payment, other than any regularly scheduled
monthly payment, due with respect to such Mortgage Loan at maturity.
"Bid Allocation" shall mean, with respect to the Master Servicer or
any Sub-Servicer and the proceeds of any bid pursuant to Section 7.01(c), the
amount of such proceeds (net of any expenses incurred in connection with such
bid and the transfer of servicing), multiplied by a fraction equal to (a) the
Servicer Fee Amount for the Master Servicer or such Sub-Servicer, as the case
may be, as of such date of determination, over (b) the aggregate of the Servicer
Fee Amounts for the Master Servicer and all of the Sub-Servicers as of such date
of determination.
"Book-Entry Certificate" shall mean any Certificate registered in
the name of the Depository or its nominee.
"Book-Entry Non-Registered Certificate" shall mean any
Non-Registered Certificate that constitutes a Book-Entry Certificate.
"Breach" shall have the meaning assigned thereto in Section 2.03(a).
"Business Day" shall mean any day other than a Saturday, a Sunday or
a day on which banking institutions in New York, New York, or in any of the
cities in which the Corporate Trust Office of the Trustee, the Primary Servicing
Office of the Master Servicer, the Primary Servicer or the Special Servicer are
located, are authorized or obligated by law or executive order to remain closed.
"Calculation Agent" shall mean Xxxxx Fargo Bank, N.A.
"Cedar Ridge Townhomes Loan Combination" shall have the meaning
assigned thereto in the Preliminary Statement.
"Cedar Ridge Townhomes Subordinate Companion Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"Cedar Ridge Townhomes Portfolio Trust Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificates" shall mean any of the Class A-1, Class A-2, Class
A-3, Class A-PB, Class A-4, Class A-1A, Class IO, Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class P, Class R-I, Class R-II or Class Y
Certificates, as applicable.
"Certificate Factor" shall mean, with respect to any Class of
Regular Interest Certificates, as of any date of determination, a fraction,
expressed as a decimal carried to at least six places, the numerator of which is
the then current Class Principal Balance or Notional Amount, as the case may be,
of such Class of Regular Interest Certificates, and the denominator of which is
the Original Class Principal Balance or initial Notional Amount, as the case may
be, of such Class of Regular Interest Certificates.
"Certificate Owner" shall mean, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Certificate as
reflected on the books of the Depository or on the books of a Depository
Participant or on the books of an indirect participating brokerage firm for
which a Depository Participant acts as agent.
"Certificate Principal Balance" shall mean, with respect to any
Principal Balance Certificate, as of any date of determination, the then
outstanding principal balance of such Certificate equal to the product of (a)
the then Certificate Factor for the Class of Principal Balance Certificates to
which such Certificate belongs, multiplied by (b) the amount specified on the
face of such Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" shall mean the register maintained pursuant
to Section 5.02.
"Certificate Registrar" shall mean the registrar appointed pursuant
to Section 5.02.
"Certificateholder" shall mean the Person in whose name a
Certificate is registered in the Certificate Register, except that: (i) neither
a Disqualified Organization nor a Disqualified Non-United States Tax Person
shall be Holder of a Residual Interest Certificate for any purpose hereof; and
(ii) solely for the purposes of giving any consent, approval or waiver pursuant
to this Agreement that relates to the rights and/or obligations of any of the
Depositor, the Master Servicer, the Special Servicer or the Trustee in its
respective capacity as such, any Certificate registered in the name of the
Depositor, the Master Servicer, the Special Servicer or the Trustee, as the case
may be, or any Certificate registered in the name of any of its Affiliates,
shall be deemed not to be outstanding, and the Voting Rights to which it is
entitled shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent, approval or
waiver that relates to it has been obtained. The Certificate Registrar shall be
entitled to request and rely upon a certificate of the Depositor, the Master
Servicer or the Special Servicer in determining whether a Certificate is
registered in the name of an Affiliate of such Person. All references herein to
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided, however, that the
parties hereto shall be required to recognize as a "Certificateholder" only the
Person in whose name a Certificate is registered in the Certificate Register.
"Certificateholder Reports" shall mean, collectively, the
Distribution Date Statement, the Mortgage Pool Data Update Report, the Mortgage
Loan Payoff Notification Report and the CMSA Investor Reporting Package.
"Certification Parties" shall have the meaning assigned thereto in
Section 11.06.
"Certifying Person" shall have the meaning assigned thereto in
Section 11.06.
"Certifying Servicer" shall have the meaning assigned thereto in
Section 11.09.
"Xxxxxxx River Plaza North Loan Combination" shall have the meaning
assigned thereto in the Preliminary Statement.
"Xxxxxxx River Plaza North Pari Passu Companion Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"Xxxxxxx River Plaza North Subordinate Companion Loan" shall have
the meaning assigned thereto in the Preliminary Statement.
"Xxxxxxx River Plaza North Trust Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Class" shall mean, (i) collectively, all of the Certificates
bearing the same alphabetical and, if applicable, numerical class designation or
(ii) any Uncertificated Lower-Tier Interest.
"Class A Certificates" shall mean the Class A-1, Class A-2, Class
A-PB, Class A-3, Class A-4 and Class A-1A Certificates.
"Class A-1 Certificate" shall mean any one of the Certificates with
a "Class A-1" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1A Certificate" shall mean any one of the Certificates with
a "Class A-1A" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2 Certificate" shall mean any one of the Certificates with
a "Class A-2" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-3 Certificate" shall mean any one of the Certificates with
a "Class A-3" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-4 Certificate" shall mean any one of the Certificates with
a "Class A-4" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-J Certificate" shall mean any one of the Certificates with
a "Class A-J" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-M Certificate" shall mean any one of the Certificates with
a "Class A-M" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-PB Certificate" shall mean any one of the Certificates with
a "Class A-PB" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-PB Planned Principal Balance" shall mean the planned
principal balance set forth on Schedule VII attached hereto relating to
principal payments for the Class A-PB Certificates.
"Class B Certificate" shall mean any one of the Certificates with a
"Class B" designation on the face thereof, substantially in the form of Exhibit
A-1 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Certificate" shall mean any one of the Certificates with a
"Class C" designation on the face thereof, substantially in the form of Exhibit
A-1 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class D Certificate" shall mean any one of the Certificates with a
"Class D" designation on the face thereof, substantially in the form of Exhibit
A-1 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class E Certificate" shall mean any one of the Certificates with a
"Class E" designation on the face thereof, substantially in the form of Exhibit
A-1 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class F Certificate" shall mean any one of the Certificates with a
"Class F" designation on the face thereof, substantially in the form of Exhibit
A-1 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class G Certificate" shall mean any one of the Certificates with a
"Class G" designation on the face thereof, substantially in the form of Exhibit
A-1 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class H Certificate" shall mean any of the Certificates with a
"Class H" designation on the face thereof, substantially in the form of Exhibit
A-1 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class IO Certificate" shall mean any one of the Certificates with a
"Class IO" designation on the face thereof, substantially in the form of Exhibit
A-2 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class IO Notional Amount" shall mean, as of any date of
determination, the sum of the then Component Notional Amounts of the Class IO
Components.
"Class IO Strip Rate" shall mean, with respect to each of the Class
IO Components for any Distribution Date, a rate per annum equal to (x) the
Weighted Average Net Mortgage Rate for such Distribution Date minus (y) the
Pass-Through Rate for the Corresponding Certificates (provided that in no event
shall any Class IO Strip Rate be less than zero).
"Class J Certificate" shall mean any one of the Certificates with a
"Class J" designation on the face thereof, substantially in the form of Exhibit
A-1 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class K Certificate" shall mean any of the Certificates with a
"Class K" designation on the face thereof, substantially in the form of Exhibit
A-1 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class L Certificate" shall mean any of the Certificates with a
"Class L" designation on the face thereof, substantially in the form of Exhibit
A-1 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class LA-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-1A Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-3 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-4 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-J Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-M Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-PB Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LB Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LC Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LD Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LE Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LF Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LG Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LH Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LJ Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LK Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LL Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LM Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LN Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LO Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LP Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class M Certificate" shall mean any of the Certificates with a
"Class M" designation on the face thereof, substantially in the form of Exhibit
A-1 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class N Certificate" shall mean any of the Certificates with a
"Class N" designation on the face thereof, substantially in the form of Exhibit
A-1 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class O Certificate" shall mean any of the Certificates with a
"Class O" designation on the face thereof, substantially in the form of Exhibit
A-1 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class P Certificate" shall mean any of the Certificates with a
"Class P" designation on the face thereof, substantially in the form of Exhibit
A-1 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class Principal Balance" shall mean the aggregate principal balance
of any Class of Principal Balance Certificates outstanding as of any date of
determination. As of the Closing Date, the Class Principal Balance of each Class
of Principal Balance Certificates shall equal the Original Class Principal
Balance thereof. On each Distribution Date, the Class Principal Balance of each
Class of Principal Balance Certificates shall be permanently reduced by the
amount of any distributions of principal made thereon on such Distribution Date
pursuant to Section 4.01 or 9.01, as applicable, and shall be further
permanently reduced (subject to Section 4.05) by the amount of any Realized
Losses and Additional Trust Fund Expenses deemed allocated thereto on such
Distribution Date pursuant to Section 4.04(a). On each Distribution Date, the
Class Principal Balance of each Class of Principal Balance Certificates shall be
increased by the related Class Principal Reinstatement Amount, if any, for such
Distribution Date.
"Class Principal Reinstatement Amount" shall have the meaning
assigned thereto in Section 4.05(a).
"Class R-I Certificate" shall mean any one of the Certificates with
a "Class R-I" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a portion of the sole class of
"residual interests" in the Lower-Tier REMIC for purposes of the REMIC
Provisions.
"Class R-II Certificate" shall mean any one of the Certificates with
a "Class R-II" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a portion of the sole class of
"residual interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class Y Certificate" shall mean any of the Certificates with a
"Class Y" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing an undivided interest in the Grantor Trust
Assets with respect to the right to receive any Post-ARD Additional Interest.
"Class Y Sub-Account" shall mean a sub-account of the Distribution
Account established pursuant to Section 3.04(b), which sub-account shall
constitute an asset of the Trust Fund and the Grantor Trust, but not an asset of
either REMIC Pool.
"Clearstream" shall mean Clearstream Banking, Societe Anonyme or any
successor.
"Closing Date" shall mean August 17, 2007.
"CMSA" shall mean the Commercial Mortgage Securities Association, or
any association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry, which is the principal such association or organization in the
commercial mortgage loan securitization industry and one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be selected
by the Master Servicer and reasonably acceptable to the Trustee, the Special
Servicer and the Controlling Class Representative.
"CMSA Advance Recovery Report" shall mean a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Advance Recoverability Report" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Bond Level File" shall mean the monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Bond Level File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Collateral Summary File" shall mean the report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Collateral Summary File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Comparative Financial Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Comparative Financial Status Report" available as
of the Closing Date on the CMSA Website, or such other form for the presentation
of such information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "CMSA Comparative Financial Status Report" available as of the
Closing Date on the CMSA Website.
"CMSA Delinquent Loan Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Delinquent Loan Status Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Financial File" shall mean a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally. The initial data for this
report shall be provided by each Mortgage Loan Seller.
"CMSA Historical Liquidation Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Historical Liquidation Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report" shall mean a report substantially in the form of, and containing the
information called for in, the downloadable form of the "Historical Loan
Modification and Corrected Mortgage Loan Report" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following seven electronic files: (i) CMSA Loan Setup File,
(ii) CMSA Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA
Bond Level File, (v) CMSA Financial File, (vi) CMSA Collateral Summary
File and (vii) CMSA Special Servicer Loan File;
(b) the following twelve supplemental reports: (i) CMSA Delinquent
Loan Status Report, (ii) CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, (iii) CMSA Historical Liquidation Report, (iv) CMSA
REO Status Report, (v) CMSA Operating Statement Analysis Report, (vi) CMSA
Comparative Financial Status Report, (vii) CMSA Servicer Watch List,
(viii) CMSA Loan Level Reserve/LOC Report, (ix) CMSA NOI Adjustment
Worksheet, (x) CMSA Advance Recovery Report, (xi) CMSA Total Loan Report
and (xii) CMSA Reconciliation of Funds Report; and
(c) such other reports as may be identified by the CMSA as part of
the CMSA Investor Reporting Package generally from time to time.
"CMSA Loan Level Reserve/LOC Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Level Reserve/LOC Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Loan Periodic Update File" shall mean the monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Periodic Update File" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally. The initial data for this report shall be provided by each Mortgage
Loan Seller. Each CMSA Loan Periodic Update File prepared by the Master Servicer
shall, if applicable, be accompanied by a Monthly Additional Report on
Recoveries and Reimbursements and all references herein to "CMSA Loan Periodic
Update File" shall be construed accordingly.
"CMSA Loan Setup File" shall mean the report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Loan Setup File" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA NOI Adjustment Worksheet" shall mean a report prepared by the
Master Servicer with respect to all the Serviced Loans, and by the Special
Servicer with respect to REO Loans, which report shall be substantially in the
form of, and contain the information called for in, the downloadable form of the
"NOI Adjustment Worksheet" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Operating Statement Analysis Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Operating Statement Analysis Report" available as
of the Closing Date on the CMSA Website or in such other form for the
presentation of such information and containing such additional information as
may from time to time be approved by the CMSA for commercial mortgage-backed
securities transactions generally.
"CMSA Property File" shall mean a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Property File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Reconciliation of Funds Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Reconciliation of Funds Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA REO Status Report" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "REO Status Report" available as of the Closing Date on the CMSA Website, or
in such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Servicer Watch List" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Servicer Watch List" available as of the Closing Date on the CMSA Website,
or in such other form for the presentation of such information and containing
such additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Special Servicer Loan File" shall mean a report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Special Servicer Loan File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Total Loan Report" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "CMSA Total Loan Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Website" shall mean the CMSA's Website located at
"xxx.xxxx.xxx" or such other primary website as the CMSA may establish for
dissemination of its report forms.
"Co-Lender Agreement" shall have the meaning assigned thereto in the
Preliminary Statement.
"Code" shall mean the Internal Revenue Code of 1986 and regulations
promulgated thereunder, including temporary regulations and proposed regulations
to the extent that, by reason of their proposed effective date, could, as of the
date of any determination or opinion as to the tax consequences of any action or
proposed action or transaction, be applied to the Certificates.
"Collection Period" shall mean, with respect to any Distribution
Date or Master Servicer Remittance Date, the period commencing on the day
immediately following the Determination Date in the calendar month preceding the
month in which such Distribution Date or Master Servicer Remittance Date, as the
case may be, occurs (or, in the case of each of the initial Distribution Date
and the initial Master Servicer Remittance Date, commencing immediately
following the Cut-off Date) and ending on and including the Determination Date
in the calendar month in which such Distribution Date or Master Servicer
Remittance Date, as the case may be, occurs.
"Commission" shall mean the United States Securities and Exchange
Commission or any successor agency.
"Companion Loan" shall have the meaning assigned thereto in the
Preliminary Statement.
"Companion Loan Noteholder" shall mean, with respect to any Loan
Combination, the Holder of the Mortgage Note for the related Companion Loan.
"Companion Loan Securities" means the securities issued in
connection with the inclusion of a Pari Passu Companion Loan into a trust as
part of a securitization of one or more mortgage loans.
"Component Notional Amount" shall mean with respect to each
Component and any date of determination, an amount equal to the then current
Uncertificated Principal Balance of its Corresponding Uncertificated Lower-Tier
Interest.
"Components" shall mean each of Component IO-A-1, Component IO-A-2,
Component IO-A-3, Component IO-A-PB, Component IO-A-4, Component IO-A-1A,
Component IO-A-M, Component IO-A-J, Component IO-B, Component IO-C, Component
IO-D, Component IO-E, Component IO-F, Component IO-G, Component IO-H, Component
IO-J, Component IO-K, Component IO-L, Component IO-M, Component IO-N, Component
IO-O and Component IO-P.
"Component IO-A-1" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-1 Interest.
"Component IO-A-1A" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-1A Interest.
"Component IO-A-2" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-2 Interest.
"Component IO-A-3" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-3 Interest.
"Component IO-A-4" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-4 Interest.
"Component IO-A-J" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-J Interest.
"Component IO-A-M" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-M Interest.
"Component IO-A-PB" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-PB Interest.
"Component IO-B" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LB Interest.
"Component IO-C" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LC Interest.
"Component IO-D" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LD Interest.
"Component IO-E" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LE Interest.
"Component IO-F" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LF Interest.
"Component IO-G" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LG Interest.
"Component IO-H" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LH Interest.
"Component IO-J" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LJ Interest.
"Component IO-K" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LK Interest.
"Component IO-L" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LL Interest.
"Component IO-M" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LM Interest.
"Component IO-N" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LN Interest.
"Component IO-O" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LO Interest.
"Component IO-P" shall mean one of the components of the Class IO
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LP Interest.
"Condemnation Proceeds" shall mean all cash amounts Received in
connection with the taking of all or a part of a Mortgaged Property or REO
Property by exercise of the power of eminent domain or condemnation, subject,
however, to the rights of any tenants and ground lessors, as the case may be,
and the terms of the related Mortgage.
"Controlling Class" shall mean the Class of Certificates (other than
the Residual Interest Certificates, Class Y and Class IO Certificates) with the
latest alphabetical Class designation that has a then-aggregate Class Principal
Balance that is not less than 25% of the Original Class Principal Balance of
such Class; provided that if no Class of Principal Balance Certificates has, as
of such date of determination, a Class Principal Balance that meets the
requirements above, then the Controlling Class shall be the then outstanding
Class of Principal Balance Certificates bearing the latest alphabetic Class
designation that has a Class Principal Balance greater than zero; and provided,
further, that, for purposes of determining the Controlling Class, the Class A-1,
Class A-2, Class A-PB, Class A-3, Class A-4 and Class A-1-A Certificates shall
be deemed a single Class of Certificates. As of the Closing Date, the
Controlling Class will be the Class P Certificates. If the Controlling Class
consists of Book-Entry Certificates, then the rights of the Holders of the
Controlling Class set forth in this Agreement may be exercised directly by the
relevant Certificate Owners, provided that the identity of such Certificate
Owners has been confirmed to the Trustee to its reasonable satisfaction.
"Controlling Class Certificateholder" shall mean any Holder of a
Certificate of the Controlling Class.
"Controlling Class Representative" shall mean the Holder or Holders
of greater than 50% of the Voting Rights assigned to the Controlling Class;
provided that no Holder of Voting Rights allocated to the Controlling Class may
exercise any rights of such Class with respect to any Mortgage Loan as to which
such Holder is a Mortgagor Affiliate Holder.
"Corporate Trust Office" shall mean the principal corporate trust
office of the Trustee at which at any particular time its asset-backed
securities trust business with respect to this Agreement shall be administered,
which office at the date of the execution of this Agreement is located at Xxxxx
Xxxxx Xxxxxx, Xxxxx xxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000 with
respect to certificate transfer and payment services and at 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000 with respect to other trustee and securities
administration services, or the principal trust office of any successor trustee
qualified and appointed pursuant to Section 8.08.
"Corrected Mortgage Loan" shall mean any Mortgage Loan that had been
a Specially Serviced Mortgage Loan but has ceased to be such in accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by reason of a
Liquidation Event occurring in respect of such Mortgage Loan or the related
Mortgaged Property's becoming an REO Property).
"Corresponding Certificate" shall have the meaning assigned thereto
in the Preliminary Statement with respect to the Corresponding Component or the
Corresponding Uncertificated Lower-Tier Interest.
"Corresponding Component" shall have the meaning assigned thereto in
the Preliminary Statement with respect to the Corresponding Certificate or the
Corresponding Uncertificated Lower-Tier Interest.
"Corresponding Uncertificated Lower-Tier Interest" shall have the
meaning assigned thereto in the Preliminary Statement with respect to the
Corresponding Certificate or any Corresponding Component.
"Cross-Collateralized Group" shall mean any group of
Cross-Collateralized Mortgage Loans.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan
that is cross-defaulted and cross-collateralized with any other Mortgage Loan.
"Cross-Over Date" shall mean the Distribution Date on which (i) the
Class X-0, Xxxxx X-0, Class A-PB, Class A-3, Class A-4 and Class A-1-A
Certificates, or any two or more of such Classes, remain outstanding and (ii)
the aggregate of the Class Principal Balances of the Class A-M, Class A-J, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class O and Class P Certificates are reduced to zero as a
result of the allocation of Realized Losses and Additional Trust Fund Expenses
pursuant to Section 4.04(a).
"Custodial Account" shall mean either the Pool Custodial Account or
any Loan Combination Custodial Account.
"Custodian" shall mean a Person who is at any time appointed by the
Trustee pursuant to Section 8.11 as a document custodian for the Mortgage Files,
which Person shall not be the Depositor, the Mortgage Loan Sellers or an
Affiliate of the Depositor or the Mortgage Loan Sellers. If no such custodian
has been appointed, or if such custodian has been so appointed but the Trustee
shall have terminated such appointment, then the Trustee shall be the Custodian.
"Cut-off Date" shall mean, with respect to each Mortgage Loan, the
related due date for such Mortgage Loan in August 2007.
"Cut-off Date Balance" shall mean, with respect to any Mortgage
Loan, the outstanding principal balance of such Mortgage Loan as of the Cut-off
Date, net of all unpaid payments of principal due in respect thereof on or
before such date.
"CWCapital" shall mean CWCapital LLC.
"Default Charges" shall mean Default Interest and/or late payment
charges that are paid or payable, as the context may require, to the Trust in
respect of any Mortgage Loan or any successor REO Loan with respect thereto.
"Default Interest" shall mean, with respect to any Serviced Loan or
any successor REO Loan with respect thereto, any amounts Received thereon (other
than late payment charges, Prepayment Premiums or Yield Maintenance Charges)
that represent penalty interest (arising out of a default) in excess of: (i)
interest accrued on the principal balance of such Loan (or successor REO Loan),
at the related Mortgage Rate (net of any applicable Additional Interest Rate);
and (ii) in the case of any ARD Loan after the related Anticipated Repayment
Date, any Post-ARD Additional Interest.
"Defaulting Party" shall have the meaning assigned thereto in
Section 7.01(b).
"Defeasance Collateral" shall mean, with respect to any Defeasance
Loan, the Government Securities required or permitted to be pledged in lieu of
prepayment pursuant to the terms thereof in order to obtain a release of the
related Mortgaged Property.
"Defeasance Deposit Account" shall have the meaning assigned thereto
in Section 3.04(a).
"Defeasance Loan" shall mean any Mortgage Loan that permits the
related Mortgagor to pledge Defeasance Collateral to the holder of such Mortgage
Loan in lieu of prepayment.
"Definitive Certificate" shall have the meaning assigned thereto in
Section 5.03(a).
"Definitive Non-Registered Certificate" shall mean any
Non-Registered Certificate that has been issued as a Definitive Certificate.
"Depositor" shall mean CWCapital Commercial Funding Corp, and any
successor in interest.
"Depository" shall mean The Depository Trust Company or any
successor Depository hereafter named as contemplated by Section 5.03(c). The
nominee of the initial Depository for purposes of registering those Certificates
that are to be Book-Entry Certificates, is Cede & Co. The Depository shall at
all times be a "clearing corporation" as defined in Section 8-102(3) of the
Uniform Commercial Code of the State of New York and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act.
"Depository Participant" shall mean a broker, dealer, bank or other
financial institution or other Person for whom from time to time the Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date" shall mean the eleventh calendar day of each
month (or, if such eleventh day is not a Business Day, the Business Day
immediately following such eleventh day), commencing in September 2007.
"Directing Holder" shall mean with respect to any Serviced Loan
Combination, the person or persons selected by the related Loan Combination
Directing Holder, and with respect to any other Mortgage Loan, the person
selected by the Controlling Class Representative; provided, however, that (i)
absent such selection, or (ii) until a Directing Holder is so selected or (iii)
upon receipt of a notice from the Controlling Class Representative or Loan
Combination Directing Holder, as applicable, that a Directing Holder is no
longer designated, the Directing Holder will be the Loan Combination Directing
Holder or the Controlling Class Representative, as applicable; provided,
further, that, in the case of a Directing Holder selected by the Controlling
Class Representative, in order for the Trustee to certify the status of such
Directing Holder, the Directing Holder must provide notice and certification to
the Trustee as to its status as Directing Holder (including the address and
telecopy number of such Directing Holder), and the Trustee shall provide written
notice to the Controlling Class Certificateholders, the Special Servicer and the
Master Servicer as to the designation of such Directing Holder (including the
address and telecopy number of such Directing Holder). No Mortgagor Affiliate
Holder may be a Directing Holder. The Trustee acknowledges and agrees that with
respect to each Serviced Loan Combination the Person set forth on Schedule V
shall be designated as the initial Directing Holder with respect to such Loan
Combination, and that no further notice of such selection is required. In the
event that a Controlling Class Representative or Loan Combination Directing
Holder appoints a third party (including any affiliate) to act as Directing
Holder, none of the parties to this Agreement shall be obligated to recognize
such appointment unless such Controlling Class Representative or Loan
Combination Directing Holder shall have delivered to each party to this
Agreement a certification regarding such appointment. Any Loan Combination
Directing Holder that is a Directing Holder may, in its capacity as Directing
Holder, only control, direct, prohibit or be consulted with respect to the
enforcement of the related Mortgage or the servicing and administration of the
related Serviced Loan Combination to the extent set forth in this Agreement. The
Directing Holder shall be required to keep all non-public information received
by it in such capacity pursuant to this Agreement confidential and, upon its
designation as such, shall deliver to the Trustee a confirmation to such effect.
Other than as set forth on Schedule V, the initial Directing Holder shall be
Cadim TACH inc.
"Directly Operate" shall mean, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale or lease, the performance of any construction work thereon or any use of
such REO Property in a trade or business conducted by the Lower-Tier REMIC,
other than through an Independent Contractor; provided, however, that the
Trustee (or the Special Servicer or any Sub-Servicer on behalf of the Trustee)
shall not be considered to Directly Operate an REO Property solely because the
Trustee (or the Special Servicer or any Sub-Servicer on behalf of the Trustee)
establishes rental terms, chooses tenants, enters into or renews leases, deals
with taxes and insurance, or makes decisions as to repairs or capital
expenditures with respect to such REO Property.
"Discount Rate" shall mean, with respect to any prepaid Mortgage
Loan or REO Mortgage Loan, for purposes of allocating any Prepayment Premium or
Yield Maintenance Charge Received with respect thereto among the Class A-1,
Class A-2, Class A-3, Class A-PB, Class A-4, Class A-1-A, Class A-M, Class A-J,
Class B, Class C, Class D, Class E, Class F, Class G and Class H Certificates, a
rate equal to the yield (when compounded monthly) on the U.S. Treasury issue
(primary issue) with a maturity date closest to the maturity date or, in the
case of any ARD Loan, the Anticipated Repayment Date for such prepaid Mortgage
Loan or REO Mortgage Loan, as published in Federal Reserve Statistical Release
H.15 (519) published by the Federal Reserve Board; provided that if there are
two such U.S. Treasury issues (a) with the same coupon, the issue with the lower
yield shall apply, and (b) with maturity dates equally close to the maturity
date or, in the case of any ARD Loan, the Anticipated Repayment Date for such
prepaid Mortgage Loan or REO Mortgage Loan, the issue with the earliest maturity
date shall apply.
"Disqualified Non-United States Tax Person" shall mean, with respect
to any Residual Interest Certificate, any Non-United States Tax Person or agent
thereof other than: (1) a Non-United States Tax Person that (a) holds such
Residual Interest Certificate and, for purposes of Treasury Regulations Section
1.860G-3(a)(3), is subject to tax under Section 882 of the Code, (b) certifies
that it understands that, for purposes of Treasury Regulations Section
1.860E-1(c)(4)(ii), as a Holder of such Residual Interest Certificate for United
States federal income tax purposes, it may incur tax liabilities in excess of
any cash flows generated by such Residual Interest Certificate and intends to
pay taxes associated with holding such Residual Interest Certificate, and (c)
has furnished the Transferor and the Trustee with an effective IRS Form W-8ECI
or successor form and has agreed to update such form as required under the
applicable Treasury regulations; or (2) a Non-United States Tax Person that has
delivered to the Transferor, the Trustee and the Certificate Registrar an
opinion of nationally recognized tax counsel to the effect that (x) the Transfer
of such Residual Interest Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and (y) such
Transfer of such Residual Interest Certificate will not be disregarded for
United States federal income tax purposes.
"Disqualified Organization" shall mean any of the following: (i) the
United States, any State or any political subdivision thereof, any foreign
government, international organization, or any agency or instrumentality of any
of the foregoing; (ii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) that is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business income); (iii) rural electric and
telephone cooperatives described in Section 1381 of the Code; or (iv) any other
Person so designated by the Trustee or the Tax Administrator based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Interest Certificate by such Person may cause the Trust Fund or any Person
having an Ownership Interest in any Class of Certificates, other than such
Person, to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the Transfer of an Ownership Interest in
a Residual Interest Certificate to such Person. The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"Disqualified Partnership" shall mean any domestic entity classified
as a partnership under the Code if any of its beneficial owners, directly or
indirectly (other than through a U.S. corporation), are (or are permitted to be
under the related partnership agreement) Disqualified Non-United States Tax
Persons.
"Distributable Certificate Interest" shall mean, with respect to any
Class of Regular Interest Certificates for any Distribution Date, subject to
Section 4.05(b), an amount of interest equal to the amount of Accrued
Certificate Interest in respect of such Class of Certificates for the related
Interest Accrual Period, reduced (to not less than zero) by that portion, if
any, of the Net Aggregate Prepayment Interest Shortfall for such Distribution
Date allocated to such Class of Certificates as provided below. The Net
Aggregate Prepayment Interest Shortfall, if any, for each Distribution Date
shall be allocated among the respective Classes of Regular Interest Certificates
on a pro rata basis in accordance with the respective amounts of Accrued
Certificate Interest for each such Class of Certificates for the related
Interest Accrual Period.
"Distribution Account" shall mean the segregated account or accounts
created and maintained by the Trustee pursuant to Section 3.04(b), which shall
be entitled "Xxxxx Fargo Bank, N.A., as Trustee, in trust for the registered
holders of COBALT CMBS Commercial Mortgage Trust 2007-C3, Commercial Mortgage
Pass-Through Certificates, Series 2007-C3" which account shall be deemed to
consist of, collectively, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Class Y Sub-Account and the Interest Reserve Account.
"Distribution Date" shall mean, with respect to any Determination
Date, the fourth Business Day following such Determination Date, commencing in
September 2007, on which Distribution Date, among other things, the Trustee is
to make distributions on the Certificates.
"Distribution Date Statement" shall have the meaning assigned
thereto in Section 4.02(a).
"Document Defect" shall have the meaning assigned thereto in Section
2.03(a).
"Due Date" shall mean: (i) with respect to any Mortgage Loan on or
prior to its Stated Maturity Date, the day of the month set forth in the related
Mortgage Note on which each Mortgage Monthly Payment on such Mortgage Loan is
scheduled to be first due; (ii) with respect to any Mortgage Loan after its
Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Monthly Payment on such Mortgage Loan had been scheduled to
be first due; and (iii) with respect to any REO Loan, the day of the month set
forth in the related Mortgage Note on which each Monthly Payment on the related
Mortgage Loan had been scheduled to be first due.
"XXXXX" shall mean the Commission's Electronic Data Gathering,
Analysis and Retrieval system.
"Eligible Account" shall mean any of: (i) an account maintained with
a federal or state chartered depository institution or trust company, the
long-term deposit or unsecured debt obligations of which are rated at least "AA"
or "A" (without regard to any plus or minus) by Fitch and "AA-" (or "A" (without
regard to any plus or minus), if the short-term unsecured debt obligations are
rated at least "A-1") by S&P (or, in the case of any Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect to any Class
of Certificates or Companion Loan Securities, as evidenced in writing by such
Rating Agency) at any time such funds are on deposit therein (if such funds are
to be held for more than thirty (30) days), or the short-term deposits of which
are rated at least "A-1" by S&P and at least "F-1" by Fitch (or, in the case of
any Rating Agency, such lower rating as will not result in an Adverse Rating
Event with respect to any Class of Certificates or Companion Loan Securities, as
evidenced in writing by such Rating Agency) at any time such funds are on
deposit therein (if such funds are to be held for thirty (30) days or less); or
(ii) a segregated trust account maintained with the trust department of a
federal or state chartered depository institution or trust company acting in its
fiduciary capacity (which may be the Trustee), has a combined capital and
surplus of at least $50,000,000, is subject to supervision or examination by
federal or state authority and, in the case of a state chartered depository
institution or trust company, is subject to regulations regarding fiduciary
funds on deposit therein substantially similar to 12 CFR ss. 9.10(b); or (iii)
any other account, the use of which would not, in and of itself, cause an
Adverse Rating Event with respect to any Class of Certificates or Companion Loan
Securities, as evidenced in writing by each Rating Agency.
"Encino Courtyard Loan Combination" shall have the meaning assigned
thereto in the Preliminary Statement.
"Encino Courtyard Subordinate Companion Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Encino Courtyard Trust Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"Environmental Assessment" shall mean a "Phase I assessment" as
described in and meeting the criteria of Chapter 5 of the Xxxxxx Xxx Multifamily
Guide and the ASTM Standard for Environmental Site Assessments, each as amended
from time to time.
"Environmental Insurance Policy" shall mean, with respect to any
Mortgaged Property or REO Property, any insurance policy covering pollution
conditions and/or other environmental conditions that is maintained from time to
time in respect of such Mortgaged Property or REO Property, as the case may be,
for the benefit of, among others, the Trustee on behalf of the
Certificateholders.
"Environmentally Insured Mortgage Loans" shall mean the Mortgage
Loans identified on Schedule III hereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Payment" shall mean any payment received by the Master
Servicer or the Special Servicer for the account of any Mortgagor for
application toward the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and other items for which an escrow has
been created in respect of the related Mortgaged Property.
"Euroclear" shall mean Euroclear Bank as operator of the Euroclear
System or any successor.
"Event of Default" shall have the meaning assigned thereto in
Section 7.01(a).
"Excess Liquidation Proceeds" shall mean the excess, if any, of (a)
the Net Liquidation Proceeds from the sale or liquidation of a Specially
Serviced Mortgage Loan or REO Property, net of (i) interest on any related
Advances, (ii) any related Servicing Advances and (iii) any Liquidation Fee
payable from such Net Liquidation Proceeds, over (b) the amount needed to pay
off the Mortgage Loan or related REO Loan in full and reimburse the Trust for
any prior Additional Trust Fund Expenses related to such Mortgage Loan.
"Excess Liquidation Proceeds Account" shall mean the segregated
account created and maintained by the Trustee pursuant to Section 3.04(d) in
trust for the Certificateholders, which shall be entitled "Xxxxx Fargo Bank,
N.A., as Trustee, in trust for the registered Holders of COBALT CMBS Commercial
Mortgage Trust 2007-C3, Commercial Mortgage Pass-Through Certificates, Series
0000-X0."
"Xxxxxxxx Xxx" shall mean the Securities Exchange Act of 1934, as
amended.
"Exemption-Favored Party" shall mean any of (i) Wachovia Capital
Markets, LLC or Citigroup Global Markets Inc., (ii) any Person directly or
indirectly, through one or more intermediaries, controlling, controlled by or
under common control with Wachovia Capital Markets, LLC or Citigroup Global
Markets Inc. and (iii) any member of any underwriting syndicate or selling group
of which any Person described in clauses (i) or (ii) is a manager or co-manager
with respect to a Class of Investment Grade Certificates.
"Xxxxxx Xxx" shall mean the Federal National Mortgage Association or
any successor.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation or any
successor.
"Final Distribution Date" shall mean the Distribution Date on which
the final distribution is to be made with respect to the Certificates in
connection with a termination of the Trust Fund pursuant to Article IX.
"Final Recovery Determination" shall mean a determination by the
Special Servicer (as evidenced by an officer's certificate delivered by the
Special Servicer pursuant to Section 3.09(g)) with respect to any Specially
Serviced Mortgage Loan or REO Property that there has been a recovery of all
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and other
payments or recoveries that the Special Servicer has determined, in accordance
with the Servicing Standard, will be ultimately recoverable; provided that the
term Final Recovery Determination shall not apply to: (i) a Mortgage Loan that
was paid in full; or (ii) a Mortgage Loan or REO Property, as the case may be,
that was purchased by (A) the applicable Mortgage Loan Seller pursuant to
Section 2.03(a) and the applicable Mortgage Loan Purchase Agreement, (B) a
Purchase Option Holder or its assignee pursuant to Section 3.19, (C) the
Depositor, the Mortgage Loan Sellers, the Special Servicer, a Controlling Class
Certificateholder or the Master Servicer pursuant to Section 9.01, or the holder
of a related mezzanine loan in connection with a Mortgage Loan default, as set
forth in the related intercreditor agreement or (D) in the case of the Loan
Combination Trust Mortgage Loans, the related Companion Loan Noteholder or their
designees pursuant to the related Co-Lender Agreement.
"Fitch" shall mean Fitch, Inc. or its successor in interest. If
neither such rating agency nor any successor remains in existence, "Fitch" shall
be deemed to refer to such other nationally recognized statistical rating agency
or other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, the Master Servicer and the Special
Servicer, and specific ratings of Fitch, Inc. herein referenced shall be deemed
to refer to the equivalent ratings of the party so designated.
"Form 8-K Disclosure Information" shall have the meaning assigned
thereto in Section 11.07.
"FV Bid" shall have the meaning assigned thereto in Section 3.19(c).
"FV Price" shall have the meaning assigned thereto in Section
3.19(c).
"GAAP" shall mean generally accepted accounting principles in the
United States of America.
"Global Certificate" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates, either the related Rule 144A Global
Certificate or the Regulation S Global Certificate.
"Global Opinion" shall have the meaning assigned thereto in Section
12.12.
"Government Securities" shall mean "Government Securities" as
defined in Section 2(a)(16) of the Investment Company Act of 1940, excluding any
such securities that are not acceptable to any Rating Agency as Defeasance
Collateral.
"Grantor Trust" shall have the meaning assigned thereto in the
Preliminary Statement hereto.
"Grantor Trust Assets" shall mean the segregated pool of assets
comprising the Grantor Trust as set forth in the Preliminary Statement.
"Grantor Trust Provisions" shall mean subpart E, Part I of
subchapter J of the Code, including Treasury Regulations thereunder and Treasury
Regulations Section 301.7701-4(c)(2).
"Ground Lease" shall mean, with respect to any Mortgage Loan for
which the related Mortgagor has a leasehold interest in the related Mortgaged
Property, the lease agreement(s) (including any lease agreement with respect to
a master space lease) creating such leasehold interest.
"Hazardous Materials" shall mean any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including, without limitation,
those so identified pursuant to CERCLA or any other federal, state or local
environmental related laws and regulations now existing or hereafter enacted,
and specifically including asbestos and asbestos-containing materials,
polychlorinated biphenyls, radon gas, petroleum and petroleum products, urea
formaldehyde and any substance classified as being "in inventory," "usable work
in process" or similar classification which would, if classified as unusable, be
included in the foregoing definition.
"Holder" shall mean, with respect to a Certificate, a
Certificateholder and, with respect to any Uncertificated Lower-Tier Interest,
the Trust.
"HUD-Approved Servicer" shall mean a servicer that is a mortgagee
approved by the Secretary of Housing and Urban Development pursuant to Sections
203 and 211 of the National Housing Act.
"Irvine EOP San Diego Portfolio Loan Combination" shall have the
meaning assigned thereto in the Preliminary Statement.
"Irvine EOP San Diego Portfolio Subordinate Companion Loan" shall
have the meaning assigned thereto in the Preliminary Statement.
"Irvine EOP San Diego Portfolio Trust Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Independent" shall mean, when used with respect to any specified
Person, any such Person who (i) is in fact independent of the Depositor, the
Mortgage Loan Sellers, the Master Servicer, the Special Servicer, any
Controlling Class Certificateholder, and with respect to matters relating to a
particular Loan Combination any Companion Loan Noteholder and any and all
Affiliates thereof, (ii) does not have any direct financial interest in or any
material indirect financial interest in any of the Depositor, the Mortgage Loan
Sellers, the Master Servicer, the Special Servicer, any Controlling Class
Certificateholder, and with respect to matters relating to a particular Loan
Combination any Companion Loan Noteholder, or any Affiliate thereof, and (iii)
is not connected with the Depositor, the Mortgage Loan Sellers, the Master
Servicer, the Special Servicer, any Controlling Class Certificateholder, and
with respect to matters relating to a particular Loan Combination any Companion
Loan Noteholder, or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent of the
Depositor, the Mortgage Loan Sellers, the Master Servicer, the Special Servicer,
any Controlling Class Certificateholder, and with respect to matters relating to
a particular Loan Combination any Companion Loan Noteholder, or any Affiliate
thereof merely because such Person is the beneficial owner of 1% or less of any
class of securities issued by the Depositor, the Mortgage Loan Sellers, the
Master Servicer, the Special Servicer, such Controlling Class Certificateholder,
such Companion Loan Noteholder, or any Affiliate thereof, as the case may be,
provided that such ownership constitutes less than 1% of the total assets owned
by such Person.
"Independent Appraiser" shall mean an Independent professional real
estate appraiser who (i) is a member in good standing of the Appraisal
Institute, (ii) if the state in which the subject Mortgaged Property is located
certifies or licenses appraisers, is certified or licensed in such state, and
(iii) has a minimum of five (5) years' experience in the subject property type
and market.
"Independent Contractor" shall mean: (a) any Person that would be an
"independent contractor" with respect to the Lower-Tier REMIC within the meaning
of Section 856(d)(3) of the Code if the Lower-Tier REMIC was a real estate
investment trust (except that the ownership test set forth in that Section shall
be considered to be met by any Person that owns, directly or indirectly, 35
percent or more of any Class of Certificates, or such other interest in any
Class of Certificates as is set forth in an Opinion of Counsel, which shall be
at no expense to the Master Servicer, the Special Servicer, the Trustee or the
Trust Fund, delivered to the Trustee (and, if any Loan Combinations are
affected, to the Companion Loan Noteholder), provided that (i) such REMIC Pool
does not receive or derive any income from such Person and (ii) the relationship
between such Person and such REMIC Pool is at arm's length, all within the
meaning of Treasury Regulations Section 1.856-4(b)(5); or (b) any other Person
upon receipt by the Trustee (and, if any Loan Combinations are affected, to the
Companion Loan Noteholder) of an Opinion of Counsel, which shall be at no
expense to the Master Servicer, the Special Servicer, the Trustee or the Trust
Fund, to the effect that the taking of any action in respect of any REO Property
by such Person, subject to any conditions therein specified, that is otherwise
herein contemplated to be taken by an Independent Contractor, will not cause
such REO Property to cease to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the
Code, or cause any income realized in respect of such REO Property to fail to
qualify as Rents from Real Property, due to such Person's failure to be treated
as an Independent Contractor.
"Initial Bidder" shall have the meaning assigned thereto in Section
3.19(c).
"Initial Trust Balance" shall be as set forth in the Preliminary
Statement hereto and shall equal the aggregate Cut-off Date Balances of the
Mortgage Loans.
"Institutional Accredited Investor" or "IAI" shall mean an
"accredited investor" as defined in any of paragraphs (1), (2), (3) and (7) of
Rule 501(a) under the Securities Act or any entity in which all of the equity
owners come within such paragraphs.
"Insurance Policy" shall mean, with respect to any Mortgage Loan,
any hazard insurance policy, flood insurance policy, title policy, Environmental
Insurance Policy or other insurance policy that is maintained from time to time
in respect of such Mortgage Loan or the related Mortgaged Property.
"Insurance Proceeds" shall mean the proceeds paid under any
Insurance Policy, to the extent such proceeds are not applied to the restoration
of the related Mortgaged Property, released to the Mortgagor, or any tenants or
ground lessors, as the case may be, pursuant to the terms of the related
Mortgage or lease, in accordance with the Servicing Standard.
"Insured Environmental Event" shall have the meaning assigned
thereto in Section 3.07(d).
"Interest Accrual Basis" shall mean the basis on which interest
accrues in respect of any Mortgage Loan consisting of one of the following: (i)
a 360-day year consisting of twelve 30-day months or (ii) actual number of days
elapsed in a 360-day year.
"Interest Accrual Period" shall mean with respect to any Class of
Regular Interest Certificates or Uncertificated Lower-Tier Interests and any
Distribution Date, the period beginning on the first day of the calendar month
preceding the calendar month in which the related Distribution Date occurs and
ending on the last day of the calendar month preceding the calendar month in
which such Distribution Date occurs, calculated assuming that each month has 30
days and each year has 360 days.
"Interest Reserve Account" shall mean the sub-account of the
Distribution Account, which is created and maintained by the Trustee pursuant to
Section 3.04(c) in trust for Certificateholders, which shall be entitled "Xxxxx
Fargo Bank, N.A., as Trustee, in trust for the registered holders of COBALT CMBS
Commercial Mortgage Trust 2007-C3, Commercial Mortgage Pass-Through
Certificates, Series 2007-C3."
"Interest Reserve Amount" shall mean, with respect to each Interest
Reserve Mortgage Loan and Interest Reserve REO Mortgage Loan, for any
Distribution Date that occurs in February of any year and for any Distribution
Date that occurs in January of any year that is not a leap year (unless, in
either case, such Distribution Date is the Final Distribution Date), an amount
equal to one day's interest accrued at the related Mortgage Rate (net of the
related Additional Interest Rate in the case of any ARD Loan or related REO
Mortgage Loan after the related Anticipated Repayment Date) on the related
Stated Principal Balance as of the Due Date in the month in which such
Distribution Date occurs (but prior to the application of any amounts due on
such Due Date), to the extent that a Monthly Payment is Received in respect
thereof for such Due Date as of the related Determination Date or a P&I Advance
is made under this Agreement in respect thereof for such Due Date by such
Distribution Date.
"Interest Reserve Mortgage Loan" shall mean any Mortgage Loan that
accrues interest on an Actual/360 Basis.
"Interest Reserve REO Mortgage Loan" shall mean any REO Mortgage
Loan that relates to a predecessor Interest Reserve Mortgage Loan.
"Interested Person" shall mean the Depositor, the Master Servicer,
the Special Servicer, the Trustee, any Certificateholder, or any Person known to
a Responsible Officer of the Trustee to be an Affiliate of any such Person.
"Investment Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Investment Grade Certificate" shall mean, as of any date of
determination, a Certificate, other than a Residual Interest Certificate, that
is rated in one of the four highest generic rating categories by at least one
Rating Agency.
"IRS" shall mean the Internal Revenue Service or any successor
agency.
"Late Collections" shall mean: (a) with respect to any Mortgage
Loan, all amounts Received in connection therewith during any Collection Period,
whether as payments, Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds or otherwise, which represent late collections of the principal and/or
interest portions of a Monthly Payment (other than a Balloon Payment) or an
Assumed Monthly Payment in respect of such Mortgage Loan due or deemed due on a
Due Date in a previous Collection Period, or on a Due Date coinciding with or
preceding the Cut-off Date, and not previously recovered; and (b) with respect
to any REO Loan, all amounts Received in connection with the related REO
Property during any Collection Period, whether as Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
represent late collections of the principal and/or interest portions of a
Monthly Payment (other than a Balloon Payment) or an Assumed Monthly Payment in
respect of the predecessor Mortgage Loan, or the principal and/or interest
portions of an Assumed Monthly Payment in respect of such REO Loan, due or
deemed due on a Due Date in a previous Collection Period and not previously
recovered.
"Liquidation Event" shall mean: (a) with respect to any Mortgage
Loan, any of the following events--(i) such Mortgage Loan is paid in full, (ii)
a Final Recovery Determination is made with respect to such Mortgage Loan, (iii)
such Mortgage Loan or related Loan Combination Trust Mortgage Loan is
repurchased by the applicable Mortgage Loan Seller pursuant to Section 2.03(a)
and the applicable Mortgage Loan Purchase Agreement, (iv) such Mortgage Loan is
purchased by a Purchase Option Holder or its assignee pursuant to Section 3.19,
(v) such Mortgage Loan is purchased by the Depositor, the Special Servicer, a
Mortgage Loan Seller, a Controlling Class Certificateholder or the Master
Servicer pursuant to Section 9.01, (vi) such Mortgage Loan is purchased by the
holder of a related mezzanine loan on behalf of the related Mortgagor in
connection with a Mortgage Loan default, as set forth in the related
intercreditor agreement, or (vii) in the case of any of the Loan Combination
Trust Mortgage Loans, such Loan Combination Trust Mortgage Loan is purchased by
any related Companion Loan Noteholder or its designee pursuant to the related
Co-Lender Agreement; and (b) with respect to any Serviced REO Property (and the
related REO Loan), any of the following events--(i) a Final Recovery
Determination is made with respect to such REO Property, or (ii) such REO
Property is purchased by the Depositor, the Special Servicer, a Mortgage Loan
Seller, a Controlling Class Certificateholder or the Master Servicer pursuant to
Section 9.01.
"Liquidation Expenses" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses due and owing (but not otherwise
covered by Servicing Advances) in connection with the liquidation of any
Specially Serviced Mortgage Loan or Serviced REO Property pursuant to Sections
3.09 or 3.19 (including legal fees and expenses, committee or referee fees and,
if applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee" shall mean the fee designated as such in, and
payable to the Special Servicer in connection with certain specified events
pursuant to Section 3.11(b).
"Liquidation Fee Rate" shall mean, with respect to each Specially
Serviced Mortgage Loan or Serviced REO Property as to which a Liquidation Fee is
payable, 1.00%.
"Liquidation Proceeds" shall mean cash amounts (other than Insurance
Proceeds and REO Revenues) Received in connection with: (i) the full or partial
liquidation of a Mortgaged Property or other collateral constituting security
for a defaulted Mortgage Loan, through trustee's sale, foreclosure sale, REO
Disposition or otherwise, exclusive of any portion thereof required to be
released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (ii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iii) the
purchase of a Specially Serviced Mortgage Loan by a Purchase Option Holder or
its assignee pursuant to Section 3.19; (iv) the repurchase of a Mortgage Loan by
the applicable Mortgage Loan Seller(s) pursuant to Section 2.03(a) and the
applicable Mortgage Loan Purchase Agreement(s); (v) the purchase of a Mortgage
Loan or REO Property by the Depositor, a Mortgage Loan Seller, the Special
Servicer, a Controlling Class Certificateholder or the Master Servicer pursuant
to Section 9.01; (vi) the purchase of a Mortgage Loan by the holder of a related
mezzanine loan on behalf of the related Mortgagor in connection with a Mortgage
Loan default, as set forth in the related intercreditor agreement; or (vii) in
the case of any of the Loan Combination Trust Mortgage Loans, the purchase of
such Mortgage Loan by any related Companion Loan Noteholder or its designee
pursuant to the Co-Lender Agreement.
"Loan" shall mean any Mortgage Loan or Companion Loan.
"Loan Combination" shall have the meaning assigned thereto in the
Preliminary Statement (and shall include any successor REO Loans).
"Loan Combination Custodial Account" shall mean, with respect to any
Serviced Loan Combination, the segregated account or sub-accounts created and
maintained by the Master Servicer pursuant to Section 3.04A on behalf of the
Holders of such Loan Combination.
"Loan Combination Directing Holder" with respect to any Loan
Combination, will be as follows:
(a) with respect to the Xxxxxxx River Plaza North Loan Combination,
the "Controlling Holder" within the meaning of the related Co-Lender
Agreement;
(b) with respect to the Irvine EOP San Diego Portfolio Loan
Combination, the "Directing Lender" within the meaning of the related
Co-Lender Agreement;
(c) with respect to the 0 Xxxxxx Xxxxxx Loan Combination, the
"Controlling Holder" within the meaning of the related Co-Lender
Agreement;
(d) with respect to the Encino Courtyard Loan Combination, the
"Controlling Holder" within the meaning of the related Co-Lender
Agreement;
(e) with respect to the Cedar Ridge Townhomes Loan Combination, the
"Controlling Holder" within the meaning of the related Co-Lender
Agreement; and
(f) with respect to the Northcrest Apartments Loan Combination, the
"Controlling Holder" within the meaning of the related Co-Lender
Agreement.
"Loan Combination Mortgaged Property" shall mean any of the
properties securing a Loan Combination.
"Loan Combination Noteholders" shall mean, with respect to each Loan
Combination, the Trustee, as holder of the Mortgage Note or Mortgage Notes for
the related Loan Combination Trust Mortgage Loan and the related Companion Loan
Noteholder.
"Loan Combination Remittance Amount" shall mean, with respect to any
Master Servicer Remittance Date and each Serviced Loan Combination, an amount
equal to: (a) the aggregate amount of (i) all payments and other collections on
or with respect to the applicable Loan Combination and the related Mortgaged
Property (if it becomes an REO Property) that (A) were received as of the close
of business on the immediately preceding Determination Date and (B) are on
deposit or are required to be on deposit in the related Loan Combination
Custodial Account as of 12:00 noon (New York City time) on such Master Servicer
Remittance Date, including any such payments and other collections transferred
to the related Loan Combination Custodial Account from the related Loan
Combination REO Account (if established), and (ii) any and all P&I Advances made
with respect to the Loan Combination Trust Mortgage Loan(s); net of (b) the
portion of the aggregate amount described in clause (a) of this definition that
represents one or more of the following--(i) Monthly Payments that are due on a
Due Date following the end of the related Collection Period, (ii) any amount
payable or reimbursable to any Person from the related Loan Combination
Custodial Account pursuant to clauses (ii) through (xv) of Section 3.05A, and
(iii) any amounts deposited in the related Loan Combination Custodial Account in
error.
"Loan Combination Remittance Date" shall mean, (i) with respect to
each Serviced Companion Loan that is not an asset of a securitization, the
Master Servicer Remittance Date, and (ii) in the case of each other Serviced
Companion Loan that is an asset of a securitization, the earlier of (A) the
Master Servicer Remittance Date and (B) the Business Day prior to the date that
is the equivalent to the "Master Servicer Remittance Date" in such
securitization but in no event earlier than the first Business Day following the
Determination Date.
"Loan Combination REO Account" shall mean, with respect to each
Serviced Loan Combination the segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.17 on behalf of the
Certificateholders and the related Companion Noteholders, which shall be
entitled "CWCapital Asset Management LLC, as Special Servicer, in trust for
Xxxxx Fargo Bank, N.A., as Trustee, in trust for the registered holders of
COBALT CMBS Commercial Mortgage Trust 2007-C3, Commercial Mortgage Pass-Through
Certificates, Series 2007-C3," and for [NAMES OF COMPANION LOAN NOTEHOLDERS], as
their interests may appear."
"Loan Combination REO Property" shall mean the Loan Combination
Mortgaged Property, if such Mortgaged Property becomes an REO Property
hereunder.
"Loan Combination Servicing Reports" shall mean, with respect to any
Serviced Loan Combination, each of the CMSA Delinquent Loan Status Report, CMSA
Historical Loan Modification and Corrected Mortgage Loan Report, CMSA REO Status
Report, Loan Payoff Notification Report, CMSA Loan Periodic Update File, CMSA
Property File, CMSA Loan Level Reserve/LOC Report, CMSA Financial File, CMSA
Loan Setup File, CMSA Servicer Watch List, CMSA Operating Statement Analysis
Report, CMSA NOI Adjustment Worksheet and CMSA Comparative Financial Status
Report.
"Loan Combination Trust Mortgage Loan" shall mean, with respect to
any Loan Combination, the portion of such Loan Combination that is a Mortgage
Loan in the Trust.
"Lockout Period" shall mean, with respect to any Mortgage Loan that
prohibits the Mortgagor from prepaying such Mortgage Loan until a date specified
in the related Mortgage Note or other Mortgage Loan document, the period from
the Closing Date until such specified date.
"Loss Reimbursement Amount" shall mean:
(a) with respect to any Class of Principal Balance Certificates, for
any Distribution Date, the total amount of all Unfunded Principal Balance
Reductions, if any, incurred by (but not reimbursed to) the Holders of
such Class of Certificates on all prior Distribution Dates, if any; and
(b) with respect to any Uncertificated Lower-Tier Interest, for any
Distribution Date, the total amount of all Unfunded Principal Balance
Reductions, if any, incurred by (but not reimbursed to) the Lower-Tier
REMIC with respect to such Uncertificated Lower-Tier Interest on all prior
Distribution Dates, if any.
For purposes of this definition: (x) any increase in the Class
Principal Balance of any Class of Principal Balance Certificates pursuant to
Section 4.05(a) shall constitute a reimbursement to the Holders of such Class of
Principal Balance Certificates of any related Unfunded Principal Balance
Reductions; and (y) any increase in the Lower-Tier Interest Principal Balance of
any Uncertificated Lower-Tier Interest pursuant to Section 4.05(c) shall
constitute a reimbursement to the Lower-Tier REMIC with respect to any related
Unfunded Principal Balance Reductions relating to such Uncertificated Lower-Tier
Interest.
"Lower-Tier Distribution Account" shall mean the sub-account deemed
to be a part of the Distribution Account and maintained by the Trustee pursuant
to Section 3.04(b).
"Lower-Tier Distribution Amount" shall mean the aggregate of amounts
distributable to the Uncertificated Lower-Tier Interests pursuant to Section
4.01(i).
"Lower-Tier Interest Principal Reinstatement Amount" shall have the
meaning assigned thereto pursuant to Section 4.05(c).
"Lower-Tier REMIC" shall mean the segregated pool of assets
constituting the primary trust created hereby and to be administered hereunder
with respect to which a separate REMIC election is to be made, and consisting
of: (i) the Mortgage Loans as from time to time are subject to this Agreement
and all payments under and proceeds of such Mortgage Loans received by the Trust
after the Closing Date (other than scheduled payments of interest and principal
due on or before the Cut-off Date, and other than Post-ARD Additional Interest
Received in respect of any ARD Loan after its Anticipated Repayment Date),
together with all documents included in the related Mortgage Files; (ii) any
Serviced REO Properties as from time to time are subject to this Agreement and
all income and proceeds therefrom (to the extent not allocable to a Companion
Loan); and (iii) such funds or assets as from time to time are deposited in the
Pool Custodial Account, each Loan Combination Custodial Account (to the extent
not related to the Companion Loans), the Lower-Tier Distribution Account, the
Interest Reserve Account and, if established, the Pool REO Account and each Loan
Combination REO Account (to the extent not related to the Companion Loans).
"Master Servicer" shall mean Wachovia Bank, National Association, in
its capacity as master servicer hereunder, or any successor master servicer
appointed as herein provided.
"Master Servicer Remittance Amount" shall mean, with respect to any
Master Servicer Remittance Date, an amount equal to: (a) the aggregate amount of
all payments and other collections on or with respect to the Serviced Loans and
any related REO Properties that (A) were Received as of the close of business on
the immediately preceding Determination Date and (B) are on deposit or are
required to be on deposit in the Pool Custodial Account as of 12:00 noon (New
York City time) on such Master Servicer Remittance Date, including any such
payments and other collections transferred to the Pool Custodial Account from
the Pool REO Account (if established); net of (b) the portion of the aggregate
amount described in clause (a) of this definition that represents one or more of
the following--(i) Monthly Payments that are due on a Due Date following the end
of the related Collection Period, (ii) any amount payable or reimbursable to any
Person from the Pool Custodial Account pursuant to clauses (ii) through (xviii)
of Section 3.05(a), (iii) any Excess Liquidation Proceeds and (iv) any amounts
deposited in the Pool Custodial Account in error.
"Master Servicer Remittance Date" shall mean the date each month,
commencing in September 2007, on which, among other things, the Master Servicer
is required to (i) make P&I Advances and (ii) transfer the Master Servicer
Remittance Amount and any Excess Liquidation Proceeds to the Trustee, which date
shall be the Business Day immediately preceding each Distribution Date by 3 p.m.
(New York City time).
"Master Servicing Fee" shall mean, with respect to each Serviced
Loan (and, in each case, any successor REO Loan with respect thereto), the fee
designated as such and payable to the Master Servicer pursuant to Section
3.11(a). The Master Servicing Fee includes any servicing fees payable to any
third-party servicers that sub-service or primary service the loans on behalf of
the Master Servicer.
"Master Servicing Fee Rate" shall mean, with respect to each
Serviced Loan and any successor REO Loan, the rate per annum specified as such
on the Mortgage Loan Schedule. With respect to each Loan Combination, the Master
Servicing Fee Rate for the related Mortgage Loan may be different than the
Master Servicing Fee Rate for the related Companion Loan, as more particularly
set forth on the Mortgage Loan Schedule.
"Material Breach" shall have the meaning assigned thereto in Section
2.03(a).
"Material Document Defect" shall have the meaning assigned thereto
in Section 2.03(a).
"Modified Loan" shall mean any Serviced Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.21 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing Monthly
Payments current with respect to such Mortgage Loan);
(b) except as expressly contemplated by the related Mortgage Loan
documents, results in a release of the lien of the related Mortgage on any
material portion of the related Mortgaged Property without a corresponding
Principal Prepayment in an amount, or the delivery of substitute real
property collateral with a fair market value (as is), that is not less
than the fair market value (as is) of the property to be released, as
determined by an appraisal delivered to the Special Servicer (at the
expense of the related Mortgagor and upon which the Special Servicer may
conclusively rely); or
(c) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impairs the security for such Mortgage Loan or
materially reduces the likelihood of timely payment of amounts due
thereon.
"Monthly Payment" shall mean, with respect to any Mortgage Loan, as
of any Due Date, the scheduled monthly debt service payment (or, in the case of
any ARD Loan after its Anticipated Repayment Date, the monthly debt service
payment required to be paid on a current basis) on such Mortgage Loan that is
actually payable by the related Mortgagor from time to time under the terms of
the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, extension, waiver or amendment granted
or agreed to by the Special Servicer pursuant to Section 3.21), including any
Balloon Payment payable in respect of such Mortgage Loan on such Due Date;
provided that the Monthly Payment due in respect of any Mortgage Loan shall not
include Default Interest; provided, further, that the Monthly Payment due in
respect of any ARD Loan after its Anticipated Repayment Date shall not include
Post-ARD Additional Interest.
"Mortgage" shall mean, with respect to any Mortgage Loan, the
mortgage, deed of trust, deed to secure debt or similar instrument that secures
the related Mortgage Note and creates a lien on the related Mortgaged Property.
"Mortgage File" shall mean:
(a) with respect to any Mortgage Loan and, in the case of any Loan
Combination, any Companion Loan, the following documents collectively
(which, in the case of a Loan Combination, except for the Mortgage Note
referred to in clause (i) and clause (vi) of this definition, relates to
an entire Loan Combination):
(i) (A) the original executed Mortgage Note for such Mortgage
Loan, endorsed (without recourse, representation or warranty,
express or implied) to the order of "Xxxxx Fargo Bank, N.A., as
trustee for the registered holders of COBALT CMBS Commercial
Mortgage Trust 2007-C3, Commercial Mortgage Pass-Through
Certificates, Series 2007-C3" or in blank, and further showing a
complete, unbroken chain of endorsement from the originator (if such
originator is not the Mortgage Loan Seller) (or, alternatively, if
the original executed Mortgage Note has been lost, a lost note
affidavit and indemnity with a copy of such Mortgage Note), and (B)
in the case of a Loan Combination, a copy of the executed Mortgage
Note for the related Companion Loan;
(ii) an original or certified copy of the Mortgage, together
with originals or copies of any and all intervening assignments
thereof, in each case (unless the particular item has not been
returned from the applicable recording office) with evidence of
recording indicated thereon;
(iii) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage), together
with originals or copies of any and all intervening assignments
thereof, in each case (unless the particular item has not been
returned from the applicable recording office) with evidence of
recording indicated thereon;
(iv) an original executed assignment, in recordable form
(except for recording information not yet available if the
instrument being assigned has not been returned from the applicable
recording office), of (A) the Mortgage and (B) any related
Assignment of Leases (if such item is a document separate from the
Mortgage), in favor of "Xxxxx Fargo Bank, N.A., in its capacity as
trustee for the registered holders of COBALT CMBS Commercial
Mortgage Trust 2007-C3, Commercial Mortgage Pass-Through
Certificates, Series 2007-C3" (or, in each case, a copy thereof,
certified to be the copy of such assignment submitted for
recording);
(v) an original or copy of the assignment of all unrecorded
documents relating to the Mortgage Loan, in favor of "Xxxxx Fargo
Bank, N.A., as trustee for the registered holders of COBALT CMBS
Commercial Mortgage Trust 2007-C3, Commercial Mortgage Pass-Through
Certificates, Series 2007-C3";
(vi) originals or copies of final written modification
agreements in those instances where the terms or provisions of the
Mortgage Note for such Mortgage Loan (or, if applicable, a Mortgage
Note of a Loan Combination) or the related Mortgage have been
modified as to a monetary term or other material term thereof, in
each case (unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated
thereon if the instrument being modified is a recordable document;
(vii) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such Mortgage
Loan (or, if such policy has not been issued, a "marked-up" pro
forma title policy marked as binding and countersigned by the title
insurer or its authorized agent, or an irrevocable, binding
commitment to issue such title insurance policy);
(viii) filed copies (with evidence of filing) of any prior
effective UCC Financing Statements in favor of the originator of
such Mortgage Loan or in favor of any assignee prior to the Trustee
(but only to the extent the applicable Mortgage Loan Seller had
possession of such UCC Financing Statements prior to the Closing
Date) and an original UCC-2 or UCC-3 assignment thereof, as
appropriate, in form suitable for filing, in favor of "Xxxxx Fargo
Bank, N.A., in its capacity as trustee for the registered holders of
COBALT CMBS Commercial Mortgage Trust 2007-C3, Commercial Mortgage
Pass-Through Certificates, Series 2007-C3";
(ix) an original or copy of the related Ground Lease relating
to such Mortgage Loan, if any;
(x) an original or copy of the related loan agreement, if any;
(xi) an original of the related guaranty of payment under, or
an original of the letter of credit (which original shall be
delivered by the Trustee to the Master Servicer with a copy
retained) in connection with, such Mortgage Loan, if any;
(xii) an original or copy of the lock-box agreement or cash
management agreement relating to such Mortgage Loan, if any;
(xiii) an original or copy of the environmental indemnity from
the related Mortgagor, if any;
(xiv) an original or copy of the related security agreement
(if such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening assignments
thereof;
(xv) an original assignment of the related security agreement
(if such item is a document separate from the Mortgage and if such
item is not included in the assignment described in clause (v)), in
favor of "Xxxxx Fargo Bank, N.A., in its capacity as trustee for the
registered holders of COBALT CMBS Commercial Mortgage Trust 2007-C3,
Commercial Mortgage Pass-Through Certificates, Series 2007-C3";
(xvi) in the case of a Loan Combination, a copy of the related
Co-Lender Agreement;
(xvii) in the case of any Mortgage Loan as to which there
exists a related mezzanine loan, the original or a copy of the
related intercreditor agreement;
(xviii) an original or copy of any related Environmental
Insurance Policy; and
(xix) with respect to hospitality properties, a signed copy of
the franchise agreement (if any), franchisor comfort letter (if any)
and transfer documents for such comfort letter;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or a Custodian on its behalf for documents
described in clauses (a)(vi) and (a)(ix) through (a)(xix) of this definition,
shall be deemed to include such documents only to the extent the Trustee or a
Custodian on its behalf has actual knowledge of their existence.
"Mortgage Loan" shall mean each of the mortgage loans listed on the
Mortgage Loan Schedule and from time to time held in the Trust Fund. As used
herein, the term "Mortgage Loan" includes the related Mortgage Note(s), Mortgage
and other security documents contained in the related Mortgage File or otherwise
held on behalf of the Trust. The term "Mortgage Loan" includes the "Loan
Combination Trust Mortgage Loan" portion of each Loan Combination, but does not
include any Companion Loans.
"Mortgage Loan Payoff Notification Report" shall mean a report
containing substantially the information described in Exhibit E attached hereto,
and setting forth for each Mortgage Loan as to which written notice of
anticipated payoff has been received by the Master Servicer as of the
Determination Date preceding the delivery of such report, among other things,
the mortgage loan number, the property name, the ending scheduled loan balance
for the Collection Period ending on such Determination Date, the expected date
of payment, the expected related Distribution Date and the estimated amount of
the Yield Maintenance Charge or Prepayment Premium due (if any).
"Mortgage Loan Purchase Agreement" shall mean each of the Mortgage
Loan Purchase Agreements dated as of August 1, 2007 and entered into by and
between the Depositor and the applicable Mortgage Loan Seller.
"Mortgage Loan Schedule" shall mean the list of Mortgage Loans
transferred on the Closing Date to the Trustee as part of the Trust Fund,
attached hereto as Schedule I (and also delivered to the Trustee and the Master
Servicer in a computer readable format). Such list shall set forth the following
information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code)
and name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due
Date following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the Interest Accrual Basis;
(ix) the (A) Administrative Cost Rate, and (B) Master
Servicing Fee Rate (separately identifying any primary servicing fee
rate or sub-servicing fee rate included in the Master Servicing Fee
Rate, and in the case of each Loan Combination, separately
identifying the Master Servicing Fee Rate applicable to each Loan in
such Loan Combination);
(x) whether the Mortgage Loan is secured by a Ground Lease;
(xi) the Mortgage Loan Seller(s);
(xii) the originator;
(xiii) whether the related Mortgage Loan is a Defeasance Loan;
(xiv) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and the Cross-Collateralized Group to which it
belongs; and
(xv) whether there is a letter of credit in place for the
related Mortgage Loan.
(xvi) whether such Mortgage Loan is an ARD Loan and, if so,
the Anticipated Repayment Date and Additional Interest Rate; and
(xvii) whether such Mortgage Loan is part of a Serviced Loan
Combination, in which case the information required by clauses
(iii), (iv), (v), (vi), (vii), (viii) and (ix)(B) shall also be set
forth for the Companion Loan in such Loan Combination.
"Mortgage Loan Sellers" shall mean each of CWCapital LLC, Wachovia
Bank, National Association and Citigroup Global Markets Realty Corp.
"Mortgage Note" shall mean the original executed note or notes
evidencing the indebtedness of a Mortgagor under a Mortgage Loan, together with
any rider, addendum or amendment thereto, or any renewal, substitution or
replacement of such note or notes.
"Mortgage Pool" shall mean all of the Mortgage Loans and any
successor REO Mortgage Loans, collectively. The Mortgage Pool does not include
any Companion Loans or any related REO Loan.
"Mortgage Pool Data Update Report" shall mean, with respect to any
Distribution Date, a report (which may be included as part of the Distribution
Date Statement), prepared by the Trustee, containing information regarding the
Mortgage Loans as of the end of the related Collection Period, which report
shall contain substantially the categories of information regarding the Mortgage
Loans set forth on Annex A-1 to the Prospectus Supplement (calculated, where
applicable, on the basis of the most recent relevant information provided by the
Mortgagors to the Master Servicer or the Special Servicer, as the case may be,
and by the Master Servicer or the Special Servicer, as the case may be, to the
Trustee), and which information shall be presented in tabular format
substantially similar to the format utilized on such annex and shall also
include a loan-by-loan listing (in prospectus number order) showing loan number,
property type, location, ending scheduled balance, Mortgage Rate, paid-through
date, maturity date, gross interest portion of the Monthly Payment, principal
portion of the Monthly Payment, and any Prepayment Premium or Yield Maintenance
Charge received.
"Mortgage Rate" shall mean, with respect to each Mortgage Loan (and
any successor REO Loan with respect thereto), the related annualized rate at
which interest is scheduled (in the absence of a default) to accrue on such
Mortgage Loan from time to time in accordance with the related Mortgage Note and
applicable law, as such rate may be modified in accordance with Section 3.21 or
in connection with a bankruptcy, insolvency or similar proceeding involving the
related Mortgagor. In the case of any ARD Loan, the related Mortgage Rate shall
increase in accordance with the related Mortgage Note if the particular Mortgage
Loan is not paid in full by its Anticipated Repayment Date. Notwithstanding the
foregoing, if any Mortgage Loan does not accrue interest on the basis of a
360-day year consisting of twelve 30-day months, then, solely for purposes of
calculating Pass-Through Rates, the Mortgage Rate of such Mortgage Loan for any
one-month period preceding a related Due Date shall be the annualized rate at
which interest would have to accrue in respect of such Mortgage Loan on the
basis of a 360-day year consisting of twelve 30-day months in order to produce
the aggregate amount of interest actually accrued (exclusive of Default
Interest) in respect of such Mortgage Loan during such one-month period at the
related Mortgage Rate; provided, however, that with respect to any Interest
Reserve Mortgage Loan, the Mortgage Rate for (A) the one-month period preceding
the Due Dates that occur in January and February in any year that is not a leap
year or the one-month period preceding the Due Date that occurs in February in
any year that is a leap year (in either case, unless the related Distribution
Date is the Final Distribution Date) will be determined exclusive of the
Interest Reserve Amount withheld from that month, and (B) the one-month period
preceding the Due Date in March (or February, if the related Distribution Date
is Final Distribution Date) will be determined inclusive of the Interest Reserve
Amount(s), as applicable, withheld from the immediately preceding February and,
if applicable, January.
"Mortgaged Property" shall mean the real property (together with all
improvements and fixtures thereon) subject to the lien of a Mortgage.
"Mortgagor" shall mean, individually and collectively, as the
context may require, the obligor or obligors under a Mortgage Loan, including
any Person that has not signed the related Mortgage Note but owns an interest in
the related Mortgaged Property, which interest has been encumbered to secure
such Mortgage Loan.
"Mortgagor Affiliate Holder" shall mean any Certificateholder or
Companion Loan Noteholder that is a Mortgagor or an Affiliate of the Mortgagor
(including any Certificateholder or its Affiliate or any Companion Loan
Noteholder or its Affiliate, in each case, that was a lender of the Mortgagor
and has foreclosed on the equity interests in the Mortgagor or any
Certificateholder or Companion Loan Noteholder that acquires, directly or
through an Affiliate, a direct equity interest in the Mortgaged Property).
"Net Aggregate Prepayment Interest Shortfall" shall mean, with
respect to any Distribution Date and any Serviced Loan, the amount, if any, by
which (a) the aggregate of all Prepayment Interest Shortfalls incurred in
connection with the receipt of Principal Prepayments and/or, insofar as they
result from the application of Insurance Proceeds and/or Condemnation Proceeds,
other early recoveries of principal Received on such Mortgage Loans (including
Specially Serviced Mortgage Loans) during the related Collection Period, exceeds
(b) the aggregate amount deposited by the Master Servicer in the Distribution
Account for such Distribution Date pursuant to Section 3.20(a) in connection
with such Prepayment Interest Shortfalls.
"Net Default Charges" shall have the meaning assigned thereto in
Section 3.27(a).
"Net Investment Earnings" shall mean, with respect to any Investment
Account for any Collection Period, the amount, if any, by which the aggregate of
all interest and other income realized during such Collection Period on funds
held in such Investment Account (exclusive, in the case of a Servicing Account,
a Reserve Account or the Defeasance Deposit Account, of any portion of such
interest or other income payable to a Mortgagor in accordance with the related
Mortgage Loan documents and applicable law), exceeds the aggregate of all
losses, if any, incurred during such Collection Period in connection with the
investment of such funds in accordance with Section 3.06 (exclusive, in the case
of a Servicing Account, a Reserve Account or the Defeasance Deposit Account, of
any portion of such losses that were incurred in connection with investments
made for the benefit of a Mortgagor).
"Net Investment Loss" shall mean, with respect to any Investment
Account for any Collection Period, the amount by which the aggregate of all
losses, if any, incurred during such Collection Period in connection with the
investment of funds held in such Investment Account in accordance with Section
3.06 (exclusive, in the case of a Servicing Account, a Reserve Account or the
Defeasance Deposit Account, of any portion of such losses that were incurred in
connection with investments made for the benefit of a Mortgagor), exceeds the
aggregate of all interest and other income realized during such Collection
Period on such funds (exclusive, in the case of a Servicing Account, a Reserve
Account or the Defeasance Deposit Account, of any portion of such interest or
other income payable to a Mortgagor in accordance with the related Mortgage Loan
documents and applicable law).
"Net Liquidation Proceeds" shall mean the excess, if any, of all
Liquidation Proceeds received with respect to any Specially Serviced Mortgage
Loan or REO Property, over the amount of all Liquidation Expenses incurred with
respect thereto.
"Net Mortgage Rate" shall mean with respect to any Mortgage Loan or
REO Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate then in effect (excluding, if applicable, the portion thereof
comprised of the Additional Interest Rate following the related Anticipated
Repayment Date), minus the Administrative Cost Rate; provided, however, that for
purposes of calculating Pass-Through Rates, the Net Mortgage Rate for any
Mortgage Loan will be determined without regard to any modification, waiver or
amendment of the terms of such Mortgage Loan, whether agreed to by the Master
Servicer or Special Servicer or resulting from a bankruptcy, insolvency or
similar proceeding involving the Mortgagor.
"Net Prepayment Consideration" shall mean the Prepayment
Consideration Received with respect to any Mortgage Loan or REO Mortgage Loan,
net of any Workout Fee or Liquidation Fee payable therefrom.
"New Lease" shall mean any lease of REO Property entered into at the
direction of the Special Servicer, including any lease renewed, modified or
extended on behalf of the Trustee and, in the case of any Serviced Loan
Combination, the related Companion Loan Noteholder, if the Trust has the right
to renegotiate the terms of such lease.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I Advance
or Nonrecoverable Servicing Advance. Workout-Delayed Reimbursement Amounts shall
constitute a Nonrecoverable Advance only when the Person making such
determination or the Special Servicer in accordance with the procedures
specified in the definition of Nonrecoverable P&I Advance or Nonrecoverable
Servicing Advance, as applicable, and taking into account factors such as all
other outstanding Advances, either (a) has determined that such Workout-Delayed
Reimbursement Amounts, would not ultimately be recoverable from Late Collections
or any other recovery on or in respect of the related Mortgage Loan, Loan
Combination or REO Loan, or (b) has determined that such Workout-Delayed
Reimbursement Amount, along with any other Workout-Delayed Reimbursement Amounts
(that have not been reimbursed to the party that made such Advance) or
unreimbursed Nonrecoverable Advances, would not be ultimately recoverable from
the principal portion of future general collections on the Mortgage Loans and
REO Properties. Any determination as to whether an Advance is or, if made, would
be a Nonrecoverable Advance, if made by the Master Servicer or the Special
Servicer shall be made in accordance with the Servicing Standard and if made by
the Trustee shall be made in such party's reasonable, good faith judgment. The
Master Servicer and the Trustee shall conclusively rely on and be bound by the
Special Servicer's determination that a P&I Advance or Servicing Advance is
nonrecoverable; provided, however, that in the absence of such determination by
the Special Servicer, the Master Servicer and the Trustee will be entitled to
make their own determination that a P&I Advance or Servicing Advance is
nonrecoverable, and in no event shall a determination by the Special Servicer
that a previously made or proposed P&I Advance or Servicing Advance would be
recoverable be binding on the Master Servicer or the Trustee.
"Nonrecoverable P&I Advance" shall mean with respect to any Mortgage
Loan, any P&I Advance previously made or proposed to be made in respect of such
Mortgage Loan or a related REO Loan by the Master Servicer or the Trustee, which
P&I Advance such party or the Special Servicer has determined will not be
ultimately recoverable from late payments, Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds, or any other recovery on or in respect of such
Mortgage Loan, Loan Combination or REO Loan, as the case may be. Any
determination as to whether a P&I Advance is or, if made, would be a
Nonrecoverable P&I Advance, if made by the Master Servicer or the Special
Servicer shall be made in accordance with the Servicing Standard and if made by
the Trustee shall be made in such party's reasonable, good faith judgment.
"Nonrecoverable Servicing Advance" shall mean any Servicing Advance
previously made or proposed to be made in respect of a Serviced Loan or Serviced
REO Property by the Master Servicer, the Special Servicer or the Trustee, which
Servicing Advance such party or the Special Servicer has determined will not be
ultimately recoverable from late payments, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds, or any other recovery on or in respect of such
Mortgage Loan or REO Property, as the case may be. Any Servicing Advance that is
(i) not required to be repaid by the related Mortgagor under the terms of the
related Mortgage Loan documents or (ii) cannot be collected from the Mortgagor
under applicable law shall be deemed to be a Nonrecoverable Advance for purposes
of the Master Servicer's, the Special Servicer's, the Trustee's entitlement to
reimbursement for such Advance. Any determination as to whether a Servicing
Advance is or, if made, would be a Nonrecoverable Servicing Advance, if made by
the Master Servicer or the Special Servicer shall be made in accordance with the
Servicing Standard and if made by the Trustee shall be made in such party's
reasonable, good faith judgment.
"Non-Registered Certificate" shall mean any Certificate that has not
been the subject of registration under the Securities Act. As of the Closing
Date, the Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class O, Class P, Class R-I, Class R-II and Class Y Certificates are
Non-Registered Certificates.
"Non-United States Tax Person" shall mean any Person other than a
United States Tax Person.
"Northcrest Apartments Loan Combination" shall have the meaning
assigned thereto in the Preliminary Statement.
"Northcrest Apartments Subordinate Companion Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"Northcrest Apartments Portfolio Trust Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Notional Amount" means, as of any date of determination: (i) with
respect to all of the Class IO Certificates as a Class, the Class IO Notional
Amount as of such date of determination; and (ii) with respect to any Class IO
Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class IO Notional Amount as of such date of determination.
"Officer's Certificate" shall mean a certificate signed by a
Servicing Officer of the Master Servicer, the Special Servicer or Additional
Servicer, as the case may be, or by a Responsible Officer of the Trustee, and
shall mean with respect to any other Person, a certificate signed by any of the
Chairman of the Board, the Vice Chairman of the Board, the President, any Vice
President or Managing Director, an Assistant Vice President or any other
authorized officer (however denominated) or another officer customarily
performing functions similar to those performed by any of the above designated
officers or, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Opinion of Counsel" shall mean a written opinion of counsel, who
may, without limitation, be salaried counsel for the Depositor, the Master
Servicer or the Special Servicer, acceptable in form and delivered to the
Trustee or any other specified Person, as the case may be, except that any
opinion of counsel relating to (a) the qualification of the Lower-Tier REMIC or
the Upper-Tier REMIC as a REMIC, (b) compliance with the REMIC Provisions, (c)
qualification of the Grantor Trust as a grantor trust, (d) compliance with the
Grantor Trust Provisions, (e) whether any act or event would cause an Adverse
REMIC Event or Adverse Grantor Trust Event or (f) the resignation of the Master
Servicer or the Special Servicer pursuant to this Agreement, must be a written
opinion of Independent counsel acceptable to and delivered to the Trustee or any
other specified Person, as the case may be.
"Original Class Principal Balance" shall mean, with respect to any
Class of Principal Balance Certificates, the initial Class Principal Balance
thereof as of the Closing Date, in each case as specified in the Preliminary
Statement.
"Original Uncertificated Principal Balance" shall mean the amount
set forth under the column bearing such title in the table in the Preliminary
Statement hereto.
"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
"Ownership Interest" shall mean, as to any Certificate, any
ownership or security interest in such Certificate as the Holder thereof and any
other interest therein, whether direct or indirect, legal or beneficial, as
owner or as pledgee.
"P&I Advance" shall mean, as to any Mortgage Loan or a related REO
Loan, any advance made by the Master Servicer or the Trustee pursuant to Section
4.03 or 4.03A.
"Pari Passu Companion Loan" shall have the meaning assigned thereto
in the Preliminary Statement.
"Pass-Through Rate" shall mean:
(a) with respect to the Class A-1 Certificates for any
Interest Accrual Period, 5.324% per annum;
(b) with respect to the Class A-2 Certificates for any
Interest Accrual Period, an annual rate equal to the Weighted
Average Net Mortgage Rate minus 0.08% per annum;
(c) with respect to each of the Class A-3, Class A-PB, Class
A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class D,
Class E, Class F, Class G and Class H Certificates for any Interest
Accrual Period, an annual rate equal to the Weighted Average Net
Mortgage Rate;
(d) with respect to each of the Class J, Class K, Class L,
Class M, Class N, Class O and Class P Certificates for any Interest
Accrual Period, 5.202% per annum; and
(e) with respect to the Class IO Certificates for any Interest
Accrual Period, an annual rate equal to the weighted average of the
Class IO Strip Rates for the Components for such Distribution Date
(weighted on the basis of the respective Component Notional Amounts
of such Components outstanding immediately prior to such
Distribution Date).
"PCAOB" means the Public Company Accounting Oversight Board.
"Percentage Interest" shall mean: (a) with respect to any Regular
Interest Certificate, the portion of the relevant Class evidenced by such
Certificate, expressed as a percentage, the numerator of which is the
Certificate Principal Balance or Notional Amount, as the case may be, of such
Certificate as of the Closing Date, as specified on the face thereof, and the
denominator of which is the Original Class Principal Balance or initial Notional
Amount, as the case may be, of the relevant Class; and (b) with respect to
Residual Interest Certificate, the percentage interest in distributions to be
made with respect to the relevant Class, as stated on the face of such
Certificate.
"Performance Certification" shall have the meaning assigned to such
term in Section 11.06.
"Performing Party" shall have the meaning assigned to such term in
Section 11.06.
"Performing Serviced Loan" shall mean any Serviced Loan as to which
a Servicing Transfer Event has never occurred and any Corrected Mortgage Loan.
"Permitted Encumbrances" shall have the meaning assigned thereto in
Section 2.04(b)(viii).
"Permitted Investments" shall mean any one or more of the following
obligations or securities (including obligations or securities of the Trustee if
otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency or instrumentality thereof (having original maturities of
not more than 365 days), provided that such obligations are backed
by the full faith and credit of the United States. Such obligations
must be limited to those instruments that have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or
change. Interest may either be fixed or variable. If such interest
is variable, interest must be tied to a single interest rate index
plus a single fixed spread (if any), and move proportionately with
that index;
(ii) repurchase obligations with respect to any security
described in clause (i) of this definition (having original
maturities of not more than 365 days), provided that the short-term
deposit or debt obligations of the party agreeing to repurchase such
obligations are rated in the highest rating category of each of S&P
and Fitch (or, in the case of any Rating Agency, such lower rating
as will not result in an Adverse Rating Event with respect to any
Class of Certificates or Companion Loan Securities, as evidenced in
writing by such Rating Agency). In addition, any such item by its
terms must have a predetermined fixed dollar amount of principal due
at maturity that cannot vary or change. Interest may either be fixed
or variable. If such interest is variable, interest must be tied to
a single interest rate index plus a single fixed spread (if any),
and move proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits
and bankers' acceptances of any bank or trust company organized
under the laws of the United States or any state thereof (having
original maturities of not more than 365 days), the short term
obligations of which are rated in the highest rating category of
each of S&P and Fitch (or, in the case of any Rating Agency, such
lower rating as will not result in an Adverse Rating Event with
respect to any Class of Certificates or Companion Loan Securities,
as evidenced in writing by such Rating Agency). In addition, any
such item by its terms must have a predetermined fixed dollar amount
of principal due at maturity that cannot vary or change. Interest
may either be fixed or variable. If such interest is variable,
interest must be tied to a single interest rate index plus a single
fixed spread (if any), and move proportionately with that index;
(iv) commercial paper (having original maturities of not more
than 90 days) of any corporation incorporated under the laws of the
United States or any state thereof (or if not so incorporated, the
commercial paper is United States Dollar denominated and amounts
payable thereunder are not subject to any withholding imposed by any
non-United States jurisdiction) which is rated in the highest rating
category of each of S&P and Fitch (or, in the case of any Rating
Agency, such lower rating as will not result in an Adverse Rating
Event with respect to any Class of Certificates or Companion Loan
Securities, as evidenced in writing by such Rating Agency). In
addition, such commercial paper by its terms must have a
predetermined fixed dollar amount of principal due at maturity that
cannot vary or change. Interest may either be fixed or variable. If
such interest is variable, interest must be tied to a single
interest rate index plus a single fixed spread (if any), and move
proportionately with that index;
(v) units of money market funds (including the Xxxxx Fargo
Prime Investment Money Market Fund or any other money market funds
for which the Trustee or its affiliates acts as an advisor or
manager) rated in the highest applicable rating category of each of
S&P and Fitch, (or, in the case of any Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect to
any Class of Certificates or Companion Loan Securities, as evidenced
in writing by such Rating Agency) and which seeks to maintain a
constant net asset value; and
(vi) any other obligation or security that (A) is acceptable
to each Rating Agency, evidence of which acceptability shall be
provided in writing by each Rating Agency to the Master Servicer,
the Special Servicer and the Trustee, and (B) constitutes a "cash
flow investment" (within the meaning of the REMIC Provisions), as
evidenced by an Opinion of Counsel obtained at the expense of the
Person that wishes to include such obligation or security as a
Permitted Investment;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; (2) no investment described hereunder may be purchased
at a price greater than par if such investment may be prepaid or called at a
price less than its purchase price prior to stated maturity; and (3) no
investment described hereunder may have a "r" highlighter or other comparable
qualifier attached to its rating.
"Permitted Transferee" shall mean any Transferee of a Residual
Interest Certificate other than (a) a Disqualified Organization, (b) any Person
as to whom, as determined by the Trustee (based upon an Opinion of Counsel,
obtained at the request of the Trustee at the expense of such Person or the
Person seeking to Transfer a Residual Interest Certificate, supporting such
determination), the Transfer of a Residual Interest Certificate may cause either
REMIC Pool to fail to qualify as a REMIC at any time that any Certificate is
outstanding, (c) a Disqualified Non-United States Tax Person, (d) a Disqualified
Partnership, or (e) a United States Tax Person with respect to whom interest is
attributable to a foreign permanent establishment or fixed base (within the
meaning of any applicable income tax treaty between the United States and any
foreign jurisdiction) of such Person or any other United States Tax Person.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan" shall have the meaning assigned thereto in Section 5.02(c).
"Plurality Residual Interest Certificateholder" shall mean, as to
any taxable year of each REMIC Pool, the Holder of Certificates entitled to the
largest percentage of the Voting Rights allocated to the related Class of
Residual Interest Certificates.
"Pool Custodial Account" shall mean the segregated account or
accounts created and maintained by the Master Servicer pursuant to Section
3.04(a) on behalf of the Trustee in trust for the Certificateholders, which
shall be entitled "Wachovia Bank, National Association, as Master Servicer, on
behalf of Xxxxx Fargo Bank, N.A., as Trustee, in trust for the registered
holders of COBALT CMBS Commercial Mortgage Trust 2007-C3, Commercial Mortgage
Pass-Through Certificates, Series 2007-C3."
"Pool REO Account" shall mean the segregated account or accounts
created and maintained by the Special Servicer pursuant to Section 3.17 on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "CWCapital Asset Management LLC, as Special Servicer, on behalf of
Xxxxx Fargo Bank, N.A., as Trustee, in trust for the registered holders of
COBALT CMBS Commercial Mortgage Trust 2007-C3, Commercial Mortgage Pass-Through
Certificates, Series 2007-C3."
"Post-ARD Additional Interest" shall mean, with respect to any ARD
Loan after its Anticipated Repayment Date, all interest accrued on the principal
balance of any ARD Loan at the Additional Interest Rate and, if so provided in
the related Loan documents, compounded at the related Mortgage Rate (the payment
of which interest shall, under the terms of any ARD Loan, be deferred until the
entire outstanding principal balance thereof has been paid). For purposes of
this Agreement, Post-ARD Additional Interest on any ARD Loan or any successor
REO Loan with respect thereto shall be deemed not to constitute principal or any
portion thereof and shall not be added to the unpaid principal balance or Stated
Principal Balance of any ARD Loan or any successor REO Loan with respect
thereto, notwithstanding that the terms of the related Loan documents so permit.
To the extent that any Post-ARD Additional Interest is not paid on a current
basis, it shall, for purposes of this Agreement, be deemed to be deferred
interest (regardless of whether it is added to principal outstanding with
respect to any ARD Loan in accordance with the related Loan documents).
"Prepayment Assumption" shall mean, for purposes of determining the
accrual of original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, the assumption that no Mortgage
Loan is prepaid prior to stated maturity, except that it is assumed that any ARD
Loan is repaid on its Anticipated Repayment Date.
"Prepayment Consideration" shall mean any Prepayment
Premium or Yield Maintenance Charge.
"Prepayment Consideration Entitlement" shall mean, with respect to
(i) any Distribution Date on which any Net Prepayment Consideration Received on
any Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) is
distributable and (ii) each of the Class A-1, Class A-2, Class A-3, Class A-PB,
Class A-4, Class A-1A, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J and Class K Certificates entitled to distributions of principal
on such Distribution Date, an amount equal to the product of (a) such Net
Prepayment Consideration, multiplied by (b) a fraction (not greater than 1.0 or
less than 0.0), the numerator of which is equal to the excess, if any, of the
Pass-Through Rate for such Class of Principal Balance Certificates over the
relevant Discount Rate, and the denominator of which is equal to the excess, if
any, of the Mortgage Rate for such Mortgage Loan (or REO Mortgage Loan) over the
relevant Discount Rate.
"Prepayment Interest Excess" shall mean with respect to any Serviced
Loan that was subject to a Principal Prepayment in full or in part made (or, if
resulting from the application of Insurance Proceeds or Condemnation Proceeds,
any other early recovery of principal received) after its Due Date in any
Collection Period, any payment of interest (net of related Master Servicing
Fees) actually collected from the related Mortgagor or otherwise and intended to
cover interest accrued on such Principal Prepayment during the period from and
after such Due Date (exclusive, however, of any related Prepayment Premium or
Yield Maintenance Charge that may have been collected and, in the case of any
ARD Loan after its Anticipated Repayment Date, further exclusive of any Post-ARD
Additional Interest).
"Prepayment Interest Shortfall" shall mean with respect to any
Serviced Loan that was subject to a Principal Prepayment in full or in part made
(or, if resulting from the application of Insurance Proceeds or Condemnation
Proceeds, any other early recovery of principal received) prior to its Due Date
in any Collection Period, the amount of interest, to the extent not collected
from the related Mortgagor or otherwise (without regard to any Prepayment
Premium or Yield Maintenance Charge that may have been collected), that would
have accrued at a rate per annum equal to the related Mortgage Rate (net of the
rate at which the related Master Servicing Fees that are payable on such
Mortgage Loan accrue and, in the case of any ARD Loan after its Anticipated
Repayment Date, the related Additional Interest Rate) on the amount of such
Principal Prepayment during the period from the date to which interest was paid
by the related Mortgagor to, but not including, such Due Date.
"Prepayment Premium" shall mean any premium, penalty or fee (other
than a Yield Maintenance Charge) paid or payable, as the context requires, as a
result of a Principal Prepayment on, or other early collection of principal of,
a Mortgage Loan.
"Primary Servicer" shall mean CWCapital LLC, in its capacity as
primary servicer with respect to those Mortgage Loans set forth on Schedule VI
herein.
"Primary Servicing Agreement" shall mean the written contract
between the Master Servicer and the Primary Servicer relating to the Mortgage
Loans set forth on Schedule VI herein.
"Primary Servicing Office" shall mean the offices of the Master
Servicer or the Special Servicer, as the context may require, that are primarily
responsible for such party's servicing obligations hereunder. As of the Closing
Date, the Primary Servicing Office of the Master Servicer is located at NC 1075,
0000 Xxxxxxxx Xxxxx XXX0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, and the Primary
Servicing Office of the Special Servicer is located at 000 Xxxxxxx Xxxxxx X.X.,
Xxxxx 000, Xxxxxxxxxx X.X. 00000.
"Prime Rate" shall mean the "prime rate" published in the "Money
Rates" section of The Wall Street Journal, as such "prime rate" may change from
time to time. If The Wall Street Journal ceases to publish the "prime rate,"
then the Trustee in consultation with the Depositor shall select an equivalent
publication that publishes such "prime rate"; and if such "prime rate" is no
longer generally published or is limited, regulated or administered by a
governmental or quasi-governmental body, then the Trustee shall select a
comparable interest rate index. In either case, such selection shall be made by
the Trustee in its sole discretion and the Trustee shall notify the Master
Servicer, the Special Servicer, the Companion Loan Noteholders in writing of its
selection.
"Principal Balance Certificate" shall mean any Regular Interest
Certificate (other than the Class IO Certificates).
"Principal Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to the aggregate (without duplication) of the
following:
(a) the aggregate of all payments of principal (other than Principal
Prepayments) Received with respect to the Serviced Loans during the
related Collection Period, in each case exclusive of any portion of the
particular payment that represents a Late Collection of principal for
which a P&I Advance was previously made under this Agreement for a prior
Distribution Date or that represents the principal portion of a Monthly
Payment due on or before the Cut-off Date or on a Due Date subsequent to
the related Collection Period;
(b) the aggregate of the principal portions of all Monthly Payments
due in respect of the Serviced Loans for their respective Due Dates
occurring during the related Collection Period, that were Received prior
to the related Collection Period;
(c) the aggregate of all Principal Prepayments Received on the
Serviced Loans during the related Collection Period;
(d) the aggregate of all Liquidation Proceeds, Condemnation Proceeds
and Insurance Proceeds Received with respect to any Serviced Loans during
the related Collection Period that were identified and applied by the
Master Servicer as recoveries of principal of such Mortgage Loans, in each
case exclusive of any portion of such proceeds that represents a Late
Collection of principal due on or before the Cut-off Date or for which a
P&I Advance was previously made under this Agreement for a prior
Distribution Date;
(e) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds and REO Revenues Received with respect to any
Serviced REO Properties during the related Collection Period that were
identified and applied by the Master Servicer as recoveries of principal
of the related REO Mortgage Loans, in each case exclusive of any portion
of such proceeds and/or revenues that represents a Late Collection of
principal due on or before the Cut-off Date or for which a P&I Advance was
previously made under this Agreement for a prior Distribution Date; and
(f) the aggregate of the principal portions of all P&I Advances made
under this Agreement with respect to the Mortgage Loans and any REO
Mortgage Loans for such Distribution Date;
provided that none of the amounts set forth in clauses (a) to (f) above shall
represent amounts received, due or advanced on or in respect of any Companion
Loan or any successor REO Loan thereto; provided, further, that the Principal
Distribution Amount for the applicable Sub-Pool or Mortgage Pool for any
Distribution Date shall be reduced by the amount of any reimbursements of (i)
Nonrecoverable Advances plus interest on such Nonrecoverable Advances that are
deemed paid or reimbursed from principal collections on the Mortgage Loans in a
period during which such principal collections would have otherwise been
included in the Principal Distribution Amount for the applicable Sub-Pool or
Mortgage Pool for such Distribution Date and (ii) Workout-Delayed Reimbursement
Amounts that were paid or reimbursed from principal collections on the Mortgage
Loans in a period during which such principal collections would have otherwise
been included in the Principal Distribution Amount for such Distribution Date.
"Principal Prepayment" shall mean any voluntary payment of principal
made by the Mortgagor on a Mortgage Loan that is Received in advance of its
scheduled Due Date and that is not accompanied by an amount of interest (without
regard to any Prepayment Premium or Yield Maintenance Charge that may have been
collected) representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
"Prohibited Party": A party that is a proposed Servicing Function
Participant which the Master Servicer, the Special Servicer or Trustee, as
applicable, seeks to retain as a Servicing Function Participant and as to the
which the Master Servicer, the Special Servicer or the Trustee, as applicable,
has actual knowledge that such party at any point failed to comply with its
obligations under the Exchange Act or Regulation AB with respect to the
securitization transaction contemplated by this Agreement or any other
securitization. In addition, a Prohibited Party shall be any Person identified
in writing by the Depositor to the Master Servicer, the Special Servicer or the
Trustee, as applicable, as a Person, who, to the knowledge of the Depositor, at
any point failed to comply with its obligations under the Exchange Act or
Regulation AB obligations with respect to the securitization transaction
contemplated by this Agreement or any other securitization.
"Prohibited Transaction Exemption" shall mean, collectively,
Prohibited Transaction Exemption ("PTE") 96-22 granted to Wachovia Capital
Markets, LLC and PTE 89-89 granted to Citigroup Global Markets Inc. by the
United States Department of Labor, as such Prohibited Transaction Exemption may
be amended from time to time.
"Proposed Plan" shall have the meaning assigned thereto in Section
3.18(a)(iii).
"Prospectus" shall mean the prospectus dated July 20, 2007, as
supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement" shall mean the prospectus supplement dated
July 20, 2007, relating to the Registered Certificates.
"Purchase Option Holders" shall have the meaning assigned thereto in
Section 3.19(b).
"Purchase Price" shall mean, with respect to any Mortgage Loan (or
REO Property), a cash price equal to the aggregate of: (a) the outstanding
principal balance of such Mortgage Loan (or the successor REO Loan) as of the
date of purchase, (b) all accrued and unpaid interest on such Mortgage Loan (or
the successor REO Loan) to, but not including, the Due Date in the Collection
Period of purchase (exclusive, however, of any portion of such accrued but
unpaid interest that represents Default Interest or, in the case of any ARD Loan
after its Anticipated Repayment Date, Post-ARD Additional Interest) (or, in the
case of any Mortgage Loan for which the Due Date occurs on a day other than the
first day of each month, the Due Date occurring in the month in which such
Collection Period ends), (c) all related unreimbursed Servicing Advances
(including Advances that were reimbursed out of general collections of the
Mortgage Pool and not reimbursed by, or on behalf of, the related Mortgagor), if
any, (d) all accrued and unpaid interest, if any, in respect of related Advances
in accordance with, as applicable, Section 3.12(b) and/or Section 4.03(d), and
(e) in the case of a repurchase by the applicable Mortgage Loan Seller pursuant
to Section 2.03(a) and the applicable Mortgage Loan Purchase Agreement, (i) to
the extent not otherwise included in the amount described in clause (d) of this
definition, any unpaid Special Servicing Fees, Workout Fees and other Additional
Trust Fund Expenses with respect to such Mortgage Loan (or REO Property),
including any Liquidation Fee payable because the subject repurchase occurred
outside the applicable cure period set forth in Section 2.03 with respect to the
Material Document Defect or Material Breach that gave rise to the repurchase,
and (ii) to the extent not otherwise included in the amount described in clause
(c) of this definition, any costs and expenses incurred by the Master Servicer,
the Special Servicer or the Trustee (on behalf of the Trust) in enforcing the
obligation of such Person to purchase such Mortgage Loan.
"Qualified Bidder" shall have the meaning assigned thereto in
Section 7.01(c).
"Qualified Institutional Buyer" or "QIB" shall mean a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act.
"Qualified Insurer" shall mean an insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Rated Final Distribution Date" shall mean, for the purposes of this
Agreement, the Distribution Date in May 2046.
"Rating Agency" shall mean each of S&P and Fitch. Notwithstanding
the foregoing, when used with respect to any Companion Loan Securities, Rating
Agency means any rating agencies that rated such Companion Loan Securities.
"Rating Agency Confirmation" shall mean, with respect to any
proposed action, failure to act, or other event specified herein, prior written
confirmation by each Rating Agency that such proposed action, failure to act, or
other event will not in and of itself result in an Adverse Rating Event with
respect to any Certificates or Companion Loan Securities.
"Realized Loss" shall mean: (1) with respect to each Mortgage Loan
as to which a Final Recovery Determination has been made (or any related
successor REO Loan as to which a Final Recovery Determination has been made as
to the related REO Property), an amount (not less than zero) equal to the
excess, if any, of (a) the sum of (i) the unpaid principal balance of such
Mortgage Loan or REO Loan, as the case may be, as of the commencement of the
Collection Period in which the Final Recovery Determination was made or the
final payment was made, as the case may be, plus (ii) without taking into
account the amount described in subclause (1)(b) of this definition, all accrued
but unpaid interest (exclusive, however, of any portion of such accrued but
unpaid interest that represents Default Interest or, in the case of any ARD Loan
after its Anticipated Repayment Date, Post-ARD Additional Interest) on such
Mortgage Loan or such REO Loan, as the case may be, to but not including the Due
Date in the Collection Period in which the Final Recovery Determination was made
or such final payment was made, as the case may be, plus (iii) without
duplication with amounts included under another subclause above, all related
unreimbursed Servicing Advances (together with Unliquidated Advances in respect
of prior Servicing Advances) and unpaid Liquidation Expenses, plus (iv) the
amount of any and all related Special Servicing Fees, Liquidation Fees and/or
Workout Fees with respect to such Mortgage Loan or successor REO Loan, to the
extent not previously reflected as Realized Loss with respect to such Mortgage
Loan or successor REO Loan, over (b) all payments and proceeds, if any, Received
in respect of such Mortgage Loan or, to the extent allocable to such REO Loan,
the related REO Property, as the case may be, during the Collection Period in
which such Final Recovery Determination was made or such final payment was made,
as the case may be; (2) with respect to each Mortgage Loan as to which any
portion of the principal or previously accrued interest payable thereunder was
canceled in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, extension, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.21, the amount of such principal and/or interest (other than Default Interest
or, in the case of any ARD Loan after its Anticipated Repayment Date, Post-ARD
Additional Interest) so canceled; and (3) with respect to each Mortgage Loan as
to which the Mortgage Rate thereon has been permanently reduced and not
recaptured for any period in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, extension, waiver or
amendment of such Mortgage Loan granted or agreed to by the Special Servicer
pursuant to Section 3.21, the amount of the consequent reduction in the interest
portion of each successive Monthly Payment due thereon (each such Realized Loss
shall be deemed to have been incurred on the Due Date for each affected Monthly
Payment); provided, that any Loan Combination shall be deemed to be a single
Loan for purposes of this definition.
"Received" shall mean in the case of any Mortgage Loan or REO
Property, received by the Master Servicer or any of its Sub-Servicers, the
Special Servicer or any of its Sub-Servicers or the Trustee, as the case may be,
in any event on behalf of the Trust.
"Record Date" shall mean: with respect to the initial Distribution
Date, the Closing Date; and, with respect to any other Distribution Date, the
last Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Recording/Filing Agent" shall have the meaning assigned thereto in
Section 2.01(c).
"Recovered Amount" shall have the meaning assigned thereto in
Section 1.03(c).
"Reference Rate" shall mean, with respect to any Interest Accrual
Period, the rate per annum set forth on the Reference Rate Schedule.
"Registered Certificate" shall mean any Certificate that has been
the subject of registration under the Securities Act. As of the Closing Date,
the Class A-1, Class A-2, Class A-3, Class A-PB, Class A-4, Class A-1A, Class
A-M, Class A-J, Class B, Class C and Class D Certificates are Registered
Certificates.
"Regular Interest Certificate" shall mean any Certificate other than
a Class R-I Certificate, Class R-II Certificate or Class Y Certificate.
"Regulation AB" means Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. xx.xx. 229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506 -1,631 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Global Certificates" shall mean, with respect to any
Class of Book-Entry Non-Registered Certificates offered and sold outside of the
United States in reliance on Regulation S, one or more global Certificates,
collectively, in definitive, fully registered form without interest coupons,
each of which Certificates bears a Regulation S Legend.
"Regulation S Legend" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside the United
States in reliance on Regulation S, a legend generally to the effect that such
Certificates may not be offered, sold, pledged or otherwise transferred in the
United States or to a United States Securities Person prior to the date that is
forty (40) days after the later of (a) the commencement of the offering to
Persons other than distributors in reliance on Regulation S, and (b) the date of
closing of the offering, except pursuant to an exemption from the registration
requirements of the Securities Act.
"Regulation S Restricted Certificate": Any Certificate that
is not rated in one of the four highest generic ratings categories by a
Rating Agency.
"Reimbursement Rate" shall mean the rate per annum applicable to the
accrual of interest, compounded annually, on Servicing Advances in accordance
with Section 3.12(b) and on P&I Advances in accordance with, as applicable,
Section 4.03(d), which rate per annum is equal to the Prime Rate.
"Release Date" shall have the meaning assigned thereto in Section
5.02(b).
"Relevant Servicing Criteria" means the Servicing Criteria
applicable to a specific party, as set forth on Exhibit O attached hereto and as
may be amended from time to time by the parties hereto in writing due to any
change in interpretations of the requirements of Item 1122(d) of Regulation AB
(whether due to interpretive guidance provided by the Commission or its staff or
otherwise). For clarification purposes, multiple parties can have responsibility
for the same Relevant Servicing Criteria. With respect to a Servicing Function
Participant engaged by the Master Servicer, the Special Servicer or the Trustee,
the term "Relevant Servicing Criteria" may refer to a portion of the Relevant
Servicing Criteria applicable to the Master Servicer, the Special Servicer or
the Trustee.
"REMIC" shall mean a "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC Pool" shall mean the Lower-Tier REMIC and/or the Upper-Tier
REMIC, as applicable.
"REMIC Provisions" shall mean the provisions of the federal income
tax law relating to REMICs, which appear at Sections 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and proposed,
temporary and final Treasury regulations and any published rulings, notices and
announcements promulgated thereunder, as the foregoing may be in effect from
time to time.
"Rents from Real Property" shall mean, with respect to any REO
Property, gross income of the character described in Section 856(d) of the Code.
"REO Account" shall mean either of the Pool REO Account or the
applicable Loan Combination REO Account.
"REO Acquisition" shall mean the acquisition of any REO Property
pursuant to Section 3.09.
"REO Disposition" shall mean the sale or other disposition of any
REO Property pursuant to Section 3.19.
"REO Extension" shall have the meaning assigned thereto in Section
3.17(a).
"REO Loan" shall mean the mortgage loan (or, if any Loan Combination
is involved, any of the mortgage loans comprising such Loan Combination) deemed
for purposes hereof to be outstanding with respect to each REO Property. Each
REO Loan shall be deemed to provide for monthly payments of principal and/or
interest equal to its Assumed Monthly Payment and otherwise to have the same
terms and conditions as its predecessor Loan (such terms and conditions to be
applied without regard to the default on such predecessor Loan and the
acquisition of the related REO Property as part of the Trust Fund).
"REO Mortgage Loan" shall mean any REO Loan that relates to a
predecessor Mortgage Loan.
"REO Property" shall mean a Mortgaged Property acquired on behalf
and in the name of the Trustee for the benefit of the Certificateholders (or, in
the case of the Loan Combination Mortgaged Properties, for the benefit of the
Certificateholders and the Companion Loan Noteholders, as their interests may
appear), through foreclosure, acceptance of a deed-in-lieu of foreclosure or
otherwise in accordance with applicable law in connection with the default or
imminent default of a Loan.
"REO Revenues" shall mean all income, rents, profits and proceeds
derived from the ownership, operation or leasing of any Serviced REO Property.
"REO Tax" shall have the meaning assigned thereto in Section
3.18(a).
"Reportable Event" shall have the meaning assigned thereto in
Section 11.07.
"Reporting Servicer" shall have the meaning assigned thereto in
Section 11.10.
"Request for Release" shall mean a request signed by a Servicing
Officer of, as applicable, the Master Servicer in the form of Exhibit D-1
attached hereto or the Special Servicer in the form of Exhibit D-2 attached
hereto.
"Required Appraisal" shall mean, with respect to each Required
Appraisal Loan, an appraisal of the related Mortgaged Property from an
Independent Appraiser selected by the party required or authorized to obtain
such appraisal hereunder, which appraisal shall be prepared in accordance with
12 CFR ss. 225.62 and conducted in accordance with the standards of the
Appraisal Institute or, in the case of a Required Appraisal Loan having a Stated
Principal Balance of, or in the case of a Mortgaged Property that has an
allocated loan amount of, less than $2,000,000, if no satisfactory (as
determined by the Special Servicer pursuant to Section 3.09(a)) appraisal
meeting the foregoing criteria was obtained or conducted within the prior twelve
(12) months, a "desktop" value estimate performed by the Special Servicer.
"Required Appraisal Loan" shall mean any Serviced Loan or Serviced
Loan Combination:
(i) that becomes a Modified Loan,
(ii) that is sixty (60) days or more delinquent in respect of
any Monthly Payment, except for a Balloon Payment,
(iii) such Mortgage Loan is delinquent in respect of its
Balloon Payment, if any, for (A) 60 days, or (B) if the related
Mortgagor has delivered to the Master Servicer a refinancing
commitment acceptable to the Special Servicer prior to the 60th day
after the date the subject Balloon Payment was due and is making
Assumed Monthly Payments on each Due Date, 120 days after the
subject Balloon Payment was due (or such shorter period beyond the
date on which such Balloon Payment was due within which the
refinancing is scheduled to occur);
(iv) with respect to which the related Mortgaged Property has
become an REO Property,
(v) with respect to which a receiver or similar official is
appointed and continues for sixty (60) days in such capacity in
respect of the related Mortgaged Property,
(vi) with respect to which the related Mortgagor is subject to
a bankruptcy, insolvency or similar proceedings, which, in the case
of an involuntary bankruptcy, insolvency or similar proceeding, has
not been dismissed within sixty (60) days of the commencement
thereof, or
(vii) that remains outstanding five (5) years following any
extension of its maturity date pursuant to Section 3.21.
Any Required Appraisal Loan (other than a Mortgage Loan that became a Required
Appraisal Loan pursuant to clause (vii) above) shall cease to be such at such
time as it has become a Corrected Mortgage Loan (except if such Required
Appraisal Loan had not become a Specially Serviced Mortgage Loan at the time the
applicable event(s) described in any of clauses (i) through (vii) above ceased
to exist), it has remained current for at least three (3) consecutive Monthly
Payments, and no other event described in clauses (i) through (vii) above has
occurred with respect thereto during the preceding three-month period; provided
that the term "Required Appraisal Loan" shall include any successor REO Loan(s);
provided, further, that any Serviced Loan Combination shall, upon the occurrence
of any of the events described in clauses (i) through (vii) of this definition
in respect of any Loan in such Serviced Loan Combination, be deemed to be a
single "Required Appraisal Loan"; and provided, further, that if the Stated
Principal Balance of the Mortgage Loan is less than $2,000,000, the Special
Servicer may perform an internal valuation of the Mortgaged Property instead of
obtaining a Required Appraisal and, if the portion of the Stated Principal
Balance of the Mortgage Loan that has been allocated to a Mortgaged Property,
assuming there is more than one Mortgaged Property securing the Mortgage Loan,
is less than $2,000,000, the Special Servicer may perform an internal valuation
of the particular Mortgaged Property instead of obtaining an appraisal.
"Required Appraisal Value" shall mean, with respect to any Mortgaged
Property securing (or REO Property relating to) a Required Appraisal Loan, an
amount equal to the sum of: (a) the excess, if any, of (i) 90% of the Appraised
Value of such Mortgaged Property (or REO Property) as determined by the most
recent Required Appraisal or any letter update of such Required Appraisal (as it
may be adjusted downward by the Special Servicer in accordance with the
Servicing Standard (without implying any duty to do so) based upon its review of
the Appraisal or estimate and such other information as it may deem
appropriate), over (ii) the amount of any obligations secured by liens on such
Mortgaged Property (or REO Property) that are prior to the lien of the related
Required Appraisal Loan; plus (b) the amount of Escrow Payments and Reserve
Funds held by the Master Servicer in respect of such Required Appraisal Loan
that (i) are not being held in respect of any real estate taxes and assessments,
insurance premiums or, if applicable, ground rents, (ii) are not otherwise
scheduled to be applied or utilized (except to pay debt service on such Required
Appraisal Loan) within the twelve-month period following the date of
determination and (iii) may be applied towards the reduction of the principal
balance of such Required Appraisal Loan; plus (c) the amount of any letter of
credit constituting additional security for such Required Appraisal Loan and
that may be applied towards the reduction of the principal balance of such
Required Appraisal Loan.
"Reserve Account" shall mean any account established by the Master
Servicer, pursuant to Section 3.03(d), as to which Reserve Funds shall be
deposited.
"Reserve Collateral" shall mean, with respect to the Xxxxxxx River
Plaza North Loan Combination and the Encino Courtyard Loan Combination, the
"Reserve Collateral" within the meaning of the related Co-Lender Agreement.
"Reserve Funds" shall mean, with respect to any Serviced Loan, any
amounts delivered by the related Mortgagor to be held by or on behalf of the
mortgagee representing reserves for repairs, capital improvements and/or
environmental remediation in respect of the related Mortgaged Property or debt
service on such Mortgage Loan.
"Residual Interest Certificate" shall mean a Class R-I or Class R-II
Certificate.
"Responsible Officer" shall mean any officer of the Corporate Trust
Group of the Trustee, the Certificate Registrar or the Paying Agent assigned to
the Corporate Trust Office with direct responsibility for the administration of
this Agreement and also, with respect to a particular matter, any other officer
to whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject, and, in the case of any certification
required to be signed by a Responsible Officer, such an officer whose name and
specimen signature appears on a list of corporate trust officers furnished to
the Master Servicer by the Trustee, the Certificate Registrar or the Paying
Agent, as the case may be, as such list may from time to time be amended.
"Review Package" shall mean a package of documents consisting of a
memorandum outlining the analysis and recommendation (in accordance with the
Servicing Standard) of the Master Servicer or the Special Servicer, as the case
may be, with respect to the matters that are the subject thereof, and copies of
all relevant documentation.
"Rule 144A Global Certificate" shall mean, with respect to any Class
of Book-Entry Non-Registered Certificates, one or collectively more global
certificates representing such Class registered in the name of the Depository or
its nominee, in definitive, fully registered form without interest coupons, none
of which certificates bears a Regulation S Legend, and each of which
certificates has a Rule 144A CUSIP number.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. or its successor in interest. If neither such
rating agency nor any successor remains in existence, "S&P" shall be deemed to
refer to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, the Master Servicer and the Special Servicer, and
specific ratings of Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Xxxxxxxx-Xxxxx Act" means the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
"Xxxxxxxx-Xxxxx Certification" shall have the meaning assigned to
such term in Section 11.06.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Service(s)(ing)" means, in accordance with Regulation AB, the act
of servicing and administering the Mortgage Loans or any other assets of the
Trust by an entity that meets the definition of "servicer" set forth in Item
1101 of Regulation AB and is subject to the disclosure requirements set forth in
Item 1108 of Regulation AB. For clarification purposes, any uncapitalized
occurrence of this term shall have the meaning commonly understood by
participants in the commercial mortgage-backed securities market.
"Serviced Companion Loan" shall mean each of the Xxxxxxx River Plaza
North Pari Passu Companion Loan, the Xxxxxxx River Plaza North Subordinate
Companion Loan, the Irvine EOP San Diego Portfolio Subordinate Companion Loan,
the 0 Xxxxxx Xxxxxx Subordinate Companion Loan, the Encino Courtyard Subordinate
Companion Loan, the Cedar Ridge Townhomes Subordinate Companion Loan and the
Northcrest Apartments Subordinate Companion Loan.
"Serviced Loan" shall mean any Loan (including a Specially Serviced
Mortgage Loan, but excluding an REO Loan) that is, as contemplated by Section
3.01, to be serviced and administered by the Master Servicer and/or the Special
Servicer hereunder, which includes the Mortgage Loans and the Companion Loans.
"Serviced Loan Combination" shall mean each of the Xxxxxxx River
Plaza North Loan Combination, the Irvine EOP San Diego Portfolio Loan
Combination, the 0 Xxxxxx Xxxxxx Loan Combination, the Encino Courtyard Loan
Combination, the Cedar Ridge Townhomes Loan Combination and the Northcrest
Apartments Loan Combination.
"Serviced Subordinate Companion Loan" shall mean each of the Xxxxxxx
River Plaza North Subordinate Companion Loan, the Irvine EOP San Diego Portfolio
Subordinate Companion Loan, the 0 Xxxxxx Xxxxxx Subordinate Companion Loan, the
Encino Courtyard Subordinate Companion Loan, the Cedar Ridge Townhomes
Subordinate Companion Loan and the Northcrest Apartments Subordinate Companion
Loan.
"Serviced REO Property": shall mean any REO Property with
respect to a Serviced Loan.
"Servicer Fee Amount" shall mean: (a) with respect to each
Sub-Servicer, as of any date of determination, the aggregate of the products
obtained by multiplying, for each Serviced Loan primary serviced by such
Sub-Servicer, (i) the principal balance of such Loan as of the end of the
immediately preceding Collection Period and (ii) the sub-servicing fee rate
specified in the related Sub-Servicing Agreement for such Loan; and (b) with
respect to the Master Servicer, as of any date of determination, the aggregate
of the products obtained by multiplying, for each Serviced Loan (i) the
principal balance of such Serviced Loan as of the end of the immediately
preceding Collection Period and (ii) the excess, if any, of the Master Servicing
Fee Rate for such Serviced Loan over the sub-servicing fee rate (if any)
applicable to such Serviced Loan, as specified in any Sub-Servicing Agreement
related to such Loan.
"Servicer Reports" shall mean each of the files and reports
comprising the CMSA Investor Reporting Package (excluding the CMSA Bond Level
File, the CMSA Collateral Summary File and CMSA Reconciliation of Funds).
"Servicing Account" shall have the meaning assigned thereto in
Section 3.03(a).
"Servicing Advances" shall mean all customary, reasonable and
necessary "out of pocket" costs and expenses (including attorneys' fees and fees
and expenses of real estate brokers) incurred by the Master Servicer, the
Special Servicer or the Trustee in connection with the servicing and
administration of a Serviced Loan, if a default is imminent thereunder or a
default, delinquency or other unanticipated event has occurred with respect
thereto, or in connection with the administration of any REO Property,
including, but not limited to, the cost of (a) compliance with the obligations
of the Master Servicer, the Special Servicer or the Trustee, if any, set forth
in Section 3.03(c), (b) the preservation, insurance, restoration, protection and
management of a Mortgaged Property, including the cost of any "forced placed"
insurance policy purchased by the Master Servicer to the extent such cost is
allocable to a particular Mortgaged Property that the Master Servicer or the
Special Servicer is required to cause to be insured pursuant to Section 3.07(a),
(c) obtaining any Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds, (d) any enforcement or judicial proceedings with respect to a
Mortgaged Property, including foreclosures, (e) any Required Appraisal or any
other appraisal or update thereof expressly permitted or required to be obtained
hereunder, (f) the operation, management, maintenance and liquidation of any REO
Property, (g) obtaining any related ratings confirmation and (h) the Master
Servicer, Special Servicer or Trustee fulfilling its obligations under Section
2.03; provided that, notwithstanding anything to the contrary, "Servicing
Advances" shall not include allocable overhead of the Master Servicer, the
Special Servicer or the Trustee, such as costs for office space, office
equipment, supplies and related expenses, employee salaries and related expenses
and similar internal costs and expenses, or costs and expenses incurred by any
such party in connection with its purchase of any Mortgage Loan or REO Property
pursuant to any provision of this Agreement or the applicable Co-Lender
Agreement.
"Servicing Criteria" means the criteria set forth in paragraph (d)
of Item 1122 of Regulation AB, as such may be amended from time to time.
"Servicing Fees" shall mean with respect to each Serviced Loan and
the Non- Serviced Trust Loans (and any successor REO Loan with respect thereto),
the Master Servicing Fee and the Special Servicing Fee.
"Servicing File" shall mean, with respect to each Serviced Loan,
collectively, any and all documents (other than documents required to be part of
the related Mortgage File) in the possession of the Master Servicer or the
Special Servicer and relating to the servicing of any Serviced Loan, including
any original letter of credit (together with any transfer or assignment
documents related thereto), any franchise agreement and any franchise comfort
letter (together with any transfer or assignment documents relating thereto),
appraisals, surveys, engineering reports, environmental reports, opinion letters
of counsel to a related Mortgagor, escrow agreements, property management
agreements and franchise agreements.
"Servicing Function Participant" means any Person, other than the
Master Servicer, the Special Servicer and the Trustee, that is performing
activities that address the Servicing Criteria, unless such Person's activities
relate only to 5% or less of the Mortgage Loans by unpaid principal balance
calculated in accordance with the provisions of Regulation AB.
"Servicing Officer" shall mean any officer or employee of the Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Serviced Loans, whose name and specimen
signature appear on a list of servicing officers furnished by such party to the
Trustee and the Depositor on the Closing Date, as such list may be amended from
time to time.
"Servicing-Released Bid" shall have the meaning assigned thereto in
Section 7.01(c).
"Servicing-Retained Bid" shall have the meaning assigned thereto in
Section 7.01(c).
"Servicing Standard" shall mean with respect to the Master Servicer
or the Special Servicer, to service and administer the Serviced Loans and any
Serviced REO Properties that such party is obligated to service and administer
pursuant to this Agreement: (i) in accordance with the higher of the following
standards of care: (A) the same manner in which, and with the same care, skill,
prudence and diligence with which, the Master Servicer or the Special Servicer,
as the case may be, services and administers comparable mortgage loans with
similar borrowers and comparable REO properties for other third-party portfolios
(giving due consideration to the customary and usual standards of practice of
prudent institutional commercial mortgage lenders servicing their own mortgage
loans and REO properties), and (B) the same manner in which, and with the same
care, skill, prudence and diligence with which, the Master Servicer or the
Special Servicer, as the case may be, services and administers comparable
mortgage loans owned by the Master Servicer or the Special Servicer, as the case
may be, in either case exercising reasonable business judgment and acting in
accordance with applicable law, the terms of this Agreement and the terms of the
respective Serviced Loans; (ii) with a view to: the timely recovery of all
payments of principal and interest, including Balloon Payments, under the
Serviced Loans or, in the case of any such Serviced Loan that is (1) a Specially
Serviced Mortgage Loan or (2) a Serviced Loan as to which the related Mortgaged
Property has become an REO Property, the maximization of recovery on the
Mortgage Loan to the Certificateholders (as a collective whole) (or, if any Loan
Combination is involved, with a view to the maximization of recovery on such
Loan Combination to the Certificateholders and the related Companion Loan
Noteholders (as a collective whole) (it being understood that the interest of
any Subordinate Companion Loan is a subordinate interest, subject to the terms
and conditions of the related Co-Lender Agreement)) of principal and interest,
including Balloon Payments, on a present value basis (the relevant discounting
of anticipated collections that will be distributable to the Certificateholders
(or, in the case of any Loan Combination, to the Certificateholders and the
related Companion Noteholders) to be performed at the related Mortgage Rate (or,
in the case of any Loan Combination, at the weighted average of the Mortgage
Rates for such Loan Combination)) or, in the case of any ARD Loan or related REO
Loan after its Anticipated Repayment Date, net of the related Additional
Interest Rate; and (iii) without regard to (A) any relationship, including as
lender on any other debt, that the Master Servicer or the Special Servicer, as
the case may be, or any Affiliate thereof, may have with any of the related
Mortgagors, or any Affiliate thereof, or any other party to this Agreement; (B)
the ownership of any Certificate (or any Companion Loan or any certificate
backed by a Companion Loan or any mezzanine loan) by the Master Servicer or the
Special Servicer, as the case may be, or any Affiliate thereof; (C) the
obligation of the Master Servicer or the Special Servicer, as the case may be,
to make Advances; (D) the right of the Master Servicer or the Special Servicer,
as the case may be, or any Affiliate of either of them, to receive compensation
or reimbursement of costs hereunder generally or with respect to any particular
transaction; and (E) the ownership, servicing or management for others of any
other mortgage loan or real property not subject to this Agreement by the Master
Servicer or the Special Servicer, as the case may be, or any Affiliate thereof.
"Servicing Transfer Event" shall mean, with respect to any Serviced
Loan, the occurrence of any of the events described in clauses (a) through (h)
of the definition of "Specially Serviced Mortgage Loan," except in the case of a
Serviced Loan Combination, if the related Subordinate Companion Loan Noteholder
is exercising its cure rights under the related Co-Lender Agreement.
"Significant Obligor" shall mean: (a) any obligor (as defined in
Item 1101(i) of Regulation AB) or group of affiliated obligors on any Mortgage
Loan or group of Mortgage Loans that represent, as of the Closing Date, 10% or
more of the Mortgage Pool (by Cut-off Date Balance); or (b) any single Mortgaged
Property or group of Mortgaged Properties securing any Mortgage Loan or group of
cross-collateralized and/or cross-defaulted Mortgage Loans that represent, as of
the Closing Date, 10% or more of the Mortgage Pool (by Cut-off Date Balance).
There is no Significant Obligor with respect to the Mortgage Pool.
"Similar Law" shall have the meaning assigned thereto in Section
5.02(c).
"Single Certificate" shall mean, for purposes of Section 4.02, a
hypothetical Regular Interest Certificate evidencing an initial $1,000
denomination.
"Single Purpose Entity" shall mean an entity, other than an
individual, whose organizational documents and/or the related Mortgage Loan
documents provide substantially to the effect that: (i) it was formed or
organized solely for the purpose of either owning and operating the Mortgaged
Property or Properties securing one or more Mortgage Loans, or owning and
pledging Defeasance Collateral in connection with the defeasance of a Defeasance
Loan, as the case may be, (ii) it may not engage in any business unrelated to
such Mortgaged Property or Properties or such Defeasance Collateral, as the case
may be, (iii) it will not have any assets other than those related to its
interest in and operation of such Mortgaged Property or such Defeasance
Collateral, as the case may be, (iv) it may not incur indebtedness other than
incidental to its ownership and operation of the applicable Mortgaged Property
or Properties or Defeasance Collateral, as the case may be, (v) it will maintain
its own books and records and accounts separate and apart from any other Person,
(vi) it will hold itself out as a legal entity, separate and apart from any
other Person, and (vii) in the case of such an entity whose sole purpose is
owning or operating a Mortgaged Property, it will have an independent director
or, if such entity is a partnership or a limited liability company, at least one
general partner or limited liability company member thereof, as applicable,
which shall itself be a "single purpose entity" (having as its sole asset its
interest in the Single Purpose Entity) with an independent director.
"Special Servicer" shall mean CWCapital Asset Management LLC, in its
capacity as special servicer hereunder, or any successor special servicer
appointed as herein provided.
"Special Servicing Reporting Date" shall have the meaning assigned
thereto in Section 3.13(c).
"Special Servicing Fee" shall mean, with respect to each Specially
Serviced Mortgage Loan and each REO Loan, the fee designated as such in, and
payable to the Special Servicer pursuant to, Section 3.11(b).
"Special Servicing Fee Rate" shall mean, with respect to each
Specially Serviced Mortgage Loan and each REO Loan, 0.25% per annum.
"Specially Serviced Mortgage Loan" shall mean any Serviced Loan as
to which any of the following events has occurred:
(a) the related Mortgagor has failed to make when due any Monthly
Payment (including a Balloon Payment), which failure continues, or the
Master Servicer determines in its reasonable, good faith judgment in
consultation with the Special Servicer, will continue, unremedied (without
regard to any grace period) (i) except in the case of a Balloon Loan
delinquent in respect of its Balloon Payment, for sixty (60) days beyond
the date on which the subject payment was due, or (ii) solely in the case
of a delinquent Balloon Payment on a Balloon Loan, (A) for sixty (60) days
beyond the date on which the subject Balloon Payment was due or (B) in the
case of a Balloon Loan as to which the related Mortgagor shall have
delivered a refinancing commitment acceptable to the Special Servicer
prior to the 60th day after the date the subject Balloon Payment was due
and is making Assumed Monthly Payments on each Due Date for one hundred
twenty (120) days beyond the date on which the subject Balloon Payment was
due (or for such shorter period beyond the date on which the subject
Balloon Payment was due during which the refinancing is scheduled to
occur);
(b) the Master Servicer or Special Servicer (in the case of the
Special Servicer, with the consent of the applicable Controlling Class
Representative, subject to Section 6.11) shall have determined in
accordance with the Servicing Standard, based on communications with the
related Mortgagor, that a default in the making of a Monthly Payment on
such Serviced Loan, including a Balloon Payment, is likely to occur and is
likely to remain unremedied (without regard to any grace period) for at
least the applicable period contemplated by clause (a) of this definition;
or
(c) there shall have occurred a default (other than as described in
clause (a) above and other than an Acceptable Insurance Default) that (i)
in the judgment of the Master Servicer or the Special Servicer (in the
case of the Special Servicer, with the consent of the applicable
Controlling Class Representative, subject to Section 6.11) materially
impairs the value of the related Mortgaged Property as security for such
Serviced Loan or otherwise materially adversely affects the interests of
Certificateholders (or, in the case of any Companion Loan, the related
Companion Loan Noteholders), and (ii) continues unremedied for the
applicable grace period under the terms of such Serviced Loan (or, if no
grace period is specified and the default is capable of being cured, for
thirty (30) days); provided that any default that results in acceleration
of the related Mortgage Loan without the application of any grace period
under the related Mortgage Loan documents shall be deemed not to have a
grace period; and provided, further, that any default requiring a
Servicing Advance shall be deemed to materially and adversely affect the
interests of Certificateholders (or, in the case of any Companion Loan,
the related Companion Loan Noteholders); or
(d) the Master Servicer or the Special Servicer (in the case of the
Special Servicer, with the consent of the applicable Controlling Class
Representative, subject to Section 6.11) has determined that (i) a default
(other than as described in clause (b) of this definition) under the
Mortgage Loan is imminent, (ii) such default will materially impair the
value of the related Mortgaged Property as security for such Serviced Loan
or otherwise materially adversely affects the interests of
Certificateholders (or, in the case of any Companion Loan, the related
Companion Loan Noteholders), and (iii) the default is likely to continue
unremedied for the applicable grace period under the terms of such
Serviced Loan (or, if no grace period is specified and the default is
capable of being cured, for thirty (30) days); provided that with respect
to the Xxxxxxx River Plaza North Loan Combination, the related Directing
Holder shall have the right to consent to such determination, subject to
the limitations contained in the related Co-Lender Agreement; provided,
further, that any default that results in acceleration of the related
Mortgage Loan without the application of any grace period under the
related Mortgage Loan documents shall be deemed not to have a grace
period; and provided, further, that any determination that a Servicing
Transfer Event has occurred under this clause (d) with respect to any
Mortgage Loan solely by reason of the failure of the related Mortgagor to
maintain or cause to be maintained insurance coverage against damages or
losses arising from acts of terrorism will be subject to Section 6.11, and
the second paragraph of Section 3.07(a); or
(e) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency
or similar law or the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up
or liquidation of its affairs, shall have been entered against the
related Mortgagor and such decree or order shall have remained in
force and not dismissed for a period of sixty (60) days; or
(f) the related Mortgagor shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property; or
(g) the related Mortgagor shall admit in writing its inability
to pay its debts generally as they become due, file a petition to
take advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations; or
(h) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to
the related Mortgaged Property;
provided, however, that a Serviced Loan will cease to be a Specially Serviced
Mortgage Loan, when a Liquidation Event has occurred with respect to such
Serviced Loan, when the related Mortgaged Property has become an REO Property
or, so long as at such time no circumstance identified in clauses (a) through
(h) above exists that would cause the Serviced Loan to continue to be
characterized as a Specially Serviced Mortgage Loan, when:
(w) with respect to the circumstances described in clause (a) of
this definition, the related Mortgagor has made three consecutive full and
timely Monthly Payments under the terms of such Serviced Loan (as such terms may
be changed or modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a modification, extension,
waiver or amendment granted or agreed to by the Master Servicer or the Special
Servicer pursuant to Section 3.21);
(x) with respect to the circumstances described in clauses (b), (d),
(e), (f) and (g) of this definition, such circumstances cease to exist in the
good faith, reasonable judgment of the Special Servicer, but, with respect to
any bankruptcy or insolvency proceedings described in clauses (e), (f) and (g),
no later than the entry of an order or decree dismissing such proceeding;
(y) with respect to the circumstances described in clause (c) of
this definition, such default is cured as determined by the Special Servicer in
its reasonable, good faith judgment; and
(z) with respect to the circumstances described in clause (h) of
this definition, such proceedings are terminated.
The Special Servicer may conclusively rely on the Master Servicer's
determination and the Master Servicer may conclusively rely on the Special
Servicer's determination as to whether a Servicing Transfer Event has occurred
giving rise to a Serviced Loan's becoming a Specially Serviced Mortgage Loan. If
any Serviced Loan that is part of any Loan Combination becomes a Specially
Serviced Mortgage Loan, then each other Serviced Loan in the Loan Combination
shall also become a Specially Serviced Mortgage Loan.
"Startup Day" shall mean, with respect to each REMIC Pool, the day
designated as such in Section 10.01(c).
"Stated Maturity Date" shall mean, with respect to any Mortgage
Loan, the Due Date specified in the related Mortgage Note (as in effect on the
Closing Date) on which the last payment of principal is due and payable under
the terms of such Mortgage Note (as in effect on the Closing Date), without
regard to any change in or modification of such terms in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, extension, waiver or amendment of such Mortgage Loan granted or
agreed to by the Special Servicer pursuant to Section 3.21 and, in the case of
any ARD Loan, without regard to its Anticipated Repayment Date.
"Stated Principal Balance" shall mean: (a) with respect to any
Mortgage Loan (and any successor REO Mortgage Loan with respect thereto), the
Cut-off Date Balance of such Mortgage Loan, as permanently reduced on each
Distribution Date (to not less than zero) by (i) any principal payments (whether
received or advanced) or other collections in respect of such Mortgage Loan that
were identified and applied as a recovery of principal for such Mortgage Loan
(or any such successor REO Mortgage Loan with respect thereto) during the
related Collection Period and (ii) the principal portion of any Realized Loss
incurred in respect of such Mortgage Loan (or, if such Mortgage Loan is part of
a Loan Combination, any Realized Loss incurred in respect of such Loan
Combination and allocated to such Mortgage Loan) (or any such successor REO
Mortgage Loan with respect thereto) during the related Collection Period; and
(b) with respect to any Serviced Companion Loan (and any successor REO Loan with
respect thereto), the Cut-off Date Balance of such Loan, as permanently reduced
on each Loan Combination Remittance Date (to not less than zero) by (i) any
principal payments (whether received or advanced) or other collections in
respect of such Loan that were identified and applied as a recovery of principal
for such Loan (or any such successor REO Loan with respect thereto) during the
related Collection Period, and (ii) the principal portion of any Realized Loss
incurred in respect of the related Loan Combination and allocated to such Loan
(or any such successor REO Loan with respect thereto) during the related
Collection Period.
Other than for purposes of determining the Weighted Average Net
Mortgage Rate, the Stated Principal Balance of the Mortgage Pool will not be
reduced by the amount of any principal collections from the Mortgage Pool that
were used to reimburse a Workout-Delayed Reimbursement Amount pursuant to
Section 3.05(a)(vii), unless the corresponding Advance was determined to be a
Nonrecoverable Advance.
Notwithstanding the foregoing, if a Liquidation Event or Final
Recovery Determination occurs in respect of any Mortgage Loan or REO Property,
then the "Stated Principal Balance" of such Mortgage Loan or of the related REO
Loan, as the case may be, shall be zero commencing as of the Distribution Date
in the Collection Period next following the Collection Period in which such
Liquidation Event occurred.
"Sub-Pool" shall mean either of Sub-Pool 1 or Sub-Pool 2.
"Sub-Pool 1" shall mean collectively, all of the Mortgage Loans that
are identified on the Mortgage Loan Schedule as belonging to Sub-Pool 1 and any
successor REO Loans with respect thereto.
"Sub-Pool 1 Available Distribution Amount" shall mean with respect
to any Distribution Date, that portion, if any, of the Available Distribution
Amount attributable to collections Received on the Mortgage Loans in Sub-Pool 1.
"Sub-Pool 1 Principal Distribution Amount" shall mean with respect
to any Distribution Date, that portion, if any, of the Adjusted Principal
Distribution Amount attributable to collections Received on the Mortgage Loans
in Sub-Pool 1.
"Sub-Pool 2" shall mean collectively, all of the Mortgage Loans that
are identified on the Mortgage Loan Schedule as belonging to Sub-Pool 2 and any
successor REO Loans with respect thereto.
"Sub-Pool 2 Available Distribution Amount" shall mean with respect
to any Distribution Date, that portion, if any, of the Available Distribution
Amount attributable to collections Received on the Mortgage Loans in Sub-Pool 2.
"Sub-Pool 2 Principal Distribution Amount" shall mean with respect
to any Distribution Date, that portion, if any, of the Adjusted Principal
Distribution Amount attributable to collections Received on the Mortgage Loans
in Sub-Pool 2.
"Sub-Servicer" means any Person that Services one or more Mortgage
Loan(s) on behalf of the Master Servicer, the Special Servicer or an Additional
Servicer and is responsible for the performance (whether directly or through
Sub-Servicers or Subcontractors) of a substantial portion of the material
servicing functions required to be performed by the Master Servicer, the Special
Servicer or an Additional Servicer under this Agreement, with respect to some or
all of the Mortgage Loans, that are identified in the Servicing Criteria.
"Sub-Servicing Agreement" shall mean the written contract between
the Master Servicer or the Special Servicer, on the one hand, and the Primary
Servicer or any Sub-Servicer, on the other hand, relating to servicing and
administration of Serviced Loans as provided in Section 3.23.
"Subcontractor" means any vendor, subcontractor or other Person that
is not responsible for the overall servicing (as "servicing" is commonly
understood by participants in the mortgaged-backed securities market) of
Mortgage Loans but performs one or more discrete functions of the Servicing
Criteria with respect to Mortgage Loans under the direction or authority of the
Master Servicer, the Special Servicer, the Trustee, an Additional Servicer, or a
Sub-Servicer.
"Subordinate Companion Loan" shall have the meaning assigned thereto
in the Preliminary Statement.
"Subordinate Companion Loan Noteholder" shall mean, with respect to
any Loan Combination with a Subordinate Companion Loan, the Holder of the
Mortgage Note for such Subordinate Companion Loan.
"Subsequent Master Servicer" shall mean the master servicer under
any Subsequent PSA.
"Subsequent PSA" shall mean any "pooling and servicing agreement"
entered into in connection with a securitization of any Pari Passu Companion
Loan where the servicing of such Companion Loan is performed under this
Agreement.
"Subsequent Trustee" shall mean the trustee under any Subsequent
PSA.
"Successful Bidder" shall have the meaning assigned thereto in
Section 7.01(c).
"Supplemental Servicer Schedule" With respect to the Loans to be
serviced by the Master Servicer, a list attached hereto as Schedule VI, which
list sets forth the following information with respect to each Loan:
(i) the Mortgagor's name;
(ii) property type;
(iii) the revised rate with respect to any ARD Loan;
(iv) the original balance;
(v) the original and remaining amortization term;
(vi) whether such Mortgage Loan is secured by a letter of
credit;
(vii) the current balance and monthly amount of any reserve or
escrowed funds;
(viii) the grace period with respect to both default interest
and late payment charges;
(ix) whether such Mortgage Loan is insured by environmental
policies;
(x) whether a cash management agreement or lock-box agreement
is in place; and
(xi) the number of units, pads, rooms or square feet of the
Mortgaged Property.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Tax Administrator" shall mean any tax administrator appointed
pursuant to Section 8.13 (or, in the absence of any such appointment, the
Trustee).
"Tax Matters Person" shall mean, with respect to each REMIC Pool,
the Person designated as the "tax matters person" of such REMIC Pool in the
manner provided under Treasury Regulations Section 1.860F-4(d) and Treasury
Regulations Section 301.6231(a)(7)-1, which Person shall be the Plurality
Residual Interest Certificateholder in respect of the related Class of Residual
Interest Certificates.
"Tax Returns" shall mean the federal income tax return on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC)
Income Tax Return, including Schedule Q thereto, Quarterly Notice to Residual
Interest Holders of REMIC Taxable Income or Net Loss Allocation, or any
successor forms, to be filed on behalf of each REMIC Pool due to its
classification as a REMIC under the REMIC Provisions and all federal income tax
or information returns to be filed on behalf of the Grantor Trust due to its
classification as a grantor trust under the Grantor Trust Provisions, together
with any and all other information, reports or returns that may be required to
be furnished to the Certificateholders or filed with the IRS under any
applicable provisions of federal tax law or any other governmental taxing
authority under applicable state and local tax law.
"Tenants-in-Common Loan" shall mean those certain Mortgage Loans
that are identified on Exhibit V hereto for which the related Mortgagors own the
related Mortgaged Property as tenants-in-common and the related Mortgagor is
subject to further syndication.
"Total Principal Reinstatement Amount" shall mean, with respect to
any Distribution Date, an amount (to be calculated by the Trustee immediately
following, and after taking into account, all distributions to be made with
respect to the Certificates on such Distribution Date) equal to the least of:
(1) the Additional Principal Distribution Amount for the subject Distribution
Date; (2) the amount, if any, by which (a) the aggregate Stated Principal
Balance of the Mortgage Pool that will be outstanding immediately following the
subject Distribution Date, exceeds (b) the aggregate of the Class Principal
Balances of all the Classes of Principal Balance Certificates (after taking into
account the distributions made with respect to the Certificates on such
Distribution Date, but prior to any adjustments to any of those Classes of
Principal Balance Certificates pursuant to Section 4.04 or Section 4.05); and
(3) the aggregate Loss Reimbursement Amount in respect of the Principal Balance
Certificates for the subject Distribution Date (reduced by all distributions
made with respect to the Principal Balance Certificates in reimbursement of such
aggregate Loss Reimbursement Amount on the subject Distribution Date).
"Transfer" shall mean any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement" shall have the meaning assigned
thereto in Section 5.02(d)(i)(B).
"Transfer Date" shall have the meaning assigned thereto in Section
5.02(b).
"Transferee" shall mean any Person who is acquiring, by Transfer,
any Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing of, by Transfer,
any Ownership Interest in a Certificate.
"Trust" shall mean the common law trust created hereunder.
"Trust Fund" shall mean, collectively, (i) all of the assets of the
Lower-Tier REMIC and the Upper-Tier REMIC and (ii) the Grantor Trust Assets.
"Trustee" shall mean Xxxxx Fargo Bank, N.A., in its capacity as
trustee hereunder, or any successor trustee appointed as herein provided.
"Trustee Fee" shall mean, with respect to each Distribution Date, an
amount equal to one-twelfth of the product of (i) the Trustee Fee Rate,
multiplied by (ii) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately prior to such Distribution Date.
"Trustee Fee Rate" shall mean 0.001% per annum.
"Trustee Liability" shall have the meaning assigned thereto in
Section 8.05(b).
"UCC" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction.
"UCC Financing Statement" shall mean a financing statement executed
(if required by the UCC) and filed pursuant to the UCC.
"Uncertificated Lower-Tier Interest" shall mean each separate
non-certificated beneficial ownership interest in the Lower-Tier REMIC issued
hereunder and designated as a "regular interest" in the Lower-Tier REMIC. Each
Uncertificated Lower-Tier Interest shall accrue interest at the Weighted Average
Net Mortgage Rate and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto. The designations for the respective Uncertificated Lower-Tier Interests
are set forth in the Preliminary Statement hereto.
"Uncertificated Principal Balance" shall mean the principal balance
of any Uncertificated Lower-Tier Interest outstanding as of any date of
determination. As of the Closing Date, the Uncertificated Principal Balance of
each Uncertificated Lower-Tier Interest shall equal the amount set forth in the
Preliminary Statement hereto. On each Distribution Date, the Uncertificated
Principal Balance of each Uncertificated Lower-Tier Interest shall be
permanently reduced by all distributions of principal deemed to have been made
thereon on such Distribution Date pursuant to Section 4.01(i), and shall be
further permanently reduced on such Distribution Date by all Realized Losses and
Additional Trust Fund Expenses deemed to have been allocated thereto on such
Distribution Date pursuant to Section 4.04(b).
"Underwriters" shall mean Wachovia Capital Markets, LLC and
Citigroup Global Markets Inc., and their respective successors in interest.
"Unfunded Principal Balance Reduction" shall mean any reduction made
in the Class Principal Balance of any Class of Principal Balance Certificates
pursuant to Section 4.04(a) or the Uncertificated Principal Balance of any Class
of Uncertificated Lower-Tier Interests pursuant to Section 4.04(b).
"United States Securities Person" shall mean any "U.S. person" as
defined in Rule 902(k) of Regulation S.
"United States Tax Person" shall mean a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any State thereof or the District
of Columbia, or an estate whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more such United States Tax Persons have the authority to control all
substantial decisions of the trust (or to the extent provided in the Treasury
regulations, if the trust was in existence on August 20, 1996 and elected to be
treated as a United States person), all within the meaning of Section
7701(a)(30) of the Code.
"Unliquidated Advance" shall mean any Advance previously made by a
party hereto that has been previously reimbursed, as between the Person that
made the Advance hereunder, on the one hand, and the Trust Fund, on the other,
as part of a Workout-Delayed Reimbursement Amount pursuant to subsections (ii)
and (vi) of Section 3.05(a) but that has not been recovered from the Mortgagor
or otherwise from collections on or the proceeds of the Mortgage Loan or REO
Property in respect of which the Advance was made.
"Upper-Tier Distribution Account" shall mean the subaccount deemed
to be a part of the Distribution Account and maintained by the Trustee pursuant
to Section 3.04(b).
"Upper-Tier REMIC" One of the two separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"Voting Rights" shall mean the portion of the voting rights of all
of the Certificates that is allocated to any Certificate. At all times during
the term of this Agreement, 99% of the Voting Rights shall be allocated among
the Holders of the various Classes of the Principal Balance Certificates in
proportion to the respective Class Principal Balances of their Certificates, and
1% of the Voting Rights shall be allocated to the Holders of the Class IO
Certificates. Voting Rights allocated to a Class of Certificateholders shall be
allocated among such Certificateholders in proportion to the Percentage
Interests evidenced by their respective Certificates. No Voting Rights shall be
allocated to the Class R-I, Class R-II or Class Y Certificates.
"Weighted Average Net Mortgage Rate" shall mean, with respect to any
Distribution Date, the weighted average of the Net Mortgage Rates of the
Mortgage Loans as of the first day of the related Collection Period, weighted on
the basis of their respective Stated Principal Balances as of the first day of
such Collection Period (after giving effect to any payments received during any
applicable grace period).
"WHFIT" shall mean a "Widely Held Fixed Investment Trust" as that
term is defined in Treasury Regulations section 1.671-5(b)(22) or successor
provisions.
"WHFIT Regulations" Treasury Regulations Section 1.671-5, as
amended.
"WHMT" shall mean a "Widely Held Mortgage Trust" as that term is
defined in Treasury Regulations Section 1.671-5(b)(23) or successor provisions.
"Workout-Delayed Reimbursement Amounts" shall mean with respect to
any Mortgage Loan, the amount of any Advance made with respect to such Mortgage
Loan on or before the date such Mortgage Loan becomes (or, but for the making of
three Monthly Payments under its modified terms, would then constitute) a
Corrected Mortgage Loan, together with (to the extent accrued and unpaid)
interest on such Advances, to the extent that (i) such Advance is not reimbursed
to the Person who made such Advance on or before the date, if any, on which such
Mortgage Loan becomes a Corrected Mortgage Loan and (ii) the amount of such
Advance becomes an obligation of the Mortgagor to pay such amount under the
terms of the modified Mortgage Loan documents.
"Workout Fee" shall mean the fee designated as such in, and payable
to the Special Servicer with respect to certain collections on each Corrected
Mortgage Loan pursuant to, Section 3.11(b).
"Workout Fee Rate" shall mean, with respect to each Corrected
Mortgage Loan as to which a Workout Fee is payable, 1.00%.
"Yield Maintenance Charge" shall mean the payments paid or payable,
as the context requires, as the result of a Principal Prepayment on, or other
early collection of principal of, a Mortgage Loan, which payments are not
otherwise due thereon in respect of principal or interest and have been
calculated (based on scheduled payments of interest and/or principal on such
Mortgage Loan) to compensate the Holder for reinvestment losses based on the
value of an interest rate index at or near the time of prepayment. Any other
prepayment premiums, penalties and fees not so calculated will not be considered
"Yield Maintenance Charges." In the event that a Yield Maintenance Charge shall
become due for any particular Mortgage Loan, the Master Servicer shall be
required to follow the terms and provisions contained in the applicable Mortgage
Note, provided, however, in the event the particular Mortgage Note shall not
specify the U.S. Treasuries which shall be used in determining the discount rate
or the reinvestment yield to be applied in such calculation, the Master Servicer
shall be required to use those U.S. Treasuries which shall generate the lowest
discount rate or reinvestment yield for the purposes thereof. Accordingly, if
either no U.S. Treasury issue, or more than one U.S. Treasury issue, shall
coincide with the term over which the Yield Maintenance Charge shall be
calculated (which depending on the applicable Mortgage Note is based on the
remaining average life of the Mortgage Loan or the actual term remaining through
the related Stated Maturity Date), the Master Servicer shall use the applicable
U.S. Treasury whose reinvestment yield is the lowest, with such yield being
based on the bid price for such issue as published in The Wall Street Journal on
the date that is fourteen (14) days prior to the date that the Yield Maintenance
Charge shall become due and payable (or, if such bid price is not published on
that date, the next preceding date on which such bid price is so published) and
converted to a monthly compounded nominal yield. The monthly compounded nominal
yield ("MEY") is derived from the reinvestment yield or discount rate and shall
be defined as MEY = (12 X [{(1+ "BEY"/2) ^1/6}-1]) X 100, where BEY is defined
as the U.S. Treasury Reinvestment Yield which is in decimal form and not in
percentage, and 1/6 is the exponential power to which a portion of the equation
is raised. For example, using a BEY of 5.50%, the MEY = (12 X [{(1+ .055/2) ^
0.16667}- 1]) X 100 where .055 is the decimal version of the percentage 5.5% and
0.16667 is the decimal version of the exponential power. The MEY in the above
calculation is 5.44%.
Section 1.02 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as well
as the singular, and the use of any gender herein shall be deemed to
include the other gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
(iii) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein," "hereof," "hereunder," "hereto," "hereby"
and other words of similar import refer to this Agreement as a whole and
not to any particular provision; and
(vi) the terms "include" or "including" shall mean without
limitation by reason of enumeration.
Section 1.03 Certain Adjustments to the Principal Distributions on
the Certificates.
(a) If any party hereto is reimbursed out of general collections on
the Mortgage Pool on deposit in the Pool Custodial Account for any unreimbursed
Advances that have been or are determined to be Nonrecoverable Advances
(together with interest accrued and payable thereon pursuant to Section 3.12(b)
or Section 4.03(d), as applicable, to the extent such interest was paid
hereunder from a source other than Default Charges Received by the Trust on the
Mortgage Pool), then (for purposes of calculating distributions on the
Certificates) each such reimbursement and payment of interest shall be deemed to
have been made:
(i) first, out of any amounts then on deposit in the Pool Custodial
Account that represent payments or other collections of principal Received
by the Trust with respect to the Sub-Pool to which such Mortgage Loan
generating the Nonrecoverable Advance belongs that, but for their
application to reimburse a Nonrecoverable Advance and/or to pay interest
thereon, would be included in the Available Distribution Amount for the
related Distribution Date;
(ii) second, out of any amounts representing payments or other
collections of principal Received by the Trust with respect to the other
Sub-Pool that, but for their application to reimburse a Nonrecoverable
Advance and/or to pay interest thereon, would be included in the Available
Distribution Amount for any subsequent Distribution Date;
(iii) third, out of any amounts representing any other payments or
collections Received by the Trust with respect to the Sub-Pool to which
such Mortgage Loan generating the Nonrecoverable Advance belongs that, but
for their application to reimburse a Nonrecoverable Advance and/or to pay
interest thereon, would be included in the Available Distribution Amount
for the related Distribution Date;
(iv) fourth, out of any amounts representing any other payments or
other collections Received by the Trust with respect to the other Sub-Pool
that, but for their application to reimburse a Nonrecoverable Advance
and/or to pay interest thereon, would be included in the Available
Distribution Amount for any subsequent Distribution Date; and
(v) fifth, out of any other amounts then on deposit in the Pool
Custodial Account that may be available to reimburse the subject
Nonrecoverable Advance and/or to pay interest thereon.
(b) If and to the extent that any payment or other collection of
principal of any Mortgage Loan or REO Mortgage Loan is deemed to be applied in
accordance with Section 1.03(a)(i) to reimburse a Nonrecoverable Advance or to
pay interest thereon or is applied to reimburse a Workout-Delayed Reimbursement
Amount, and further if and to the extent that such payment or other collection
of principal constitutes part of the Principal Distribution Amount for any
Distribution Date, then for purposes of calculating the Adjusted Principal
Distribution Amount, the Sub-Pool 1 Principal Distribution Amount and the
Sub-Pool 2 Principal Distribution Amount for such Distribution Date and for such
Sub-Pool, as applicable, the amount of such payment or other collection of
principal shall be subtracted from the Principal Distribution Amount for such
Distribution Date and the applicable Sub-Pool.
(c) If and to the extent that any Advance is determined to be a
Nonrecoverable Advance, such Advance or interest thereon is reimbursed out of
general principal collections on the Mortgage Pool as contemplated by Section
1.03(a) above or if any Workout-Delayed Reimbursement Amount is paid from
principal collections on the Mortgage Pool, and the particular item for which
such Advance was originally made is subsequently collected (in whole or in part)
out of payments or other collections in respect of the related Mortgage Loan or
REO Mortgage Loan (such item, and interest thereon, to the extent such interest
was paid out of general collections on the Mortgage Pool, if and to the extent
so collected, a "Recovered Amount"), then for purposes of calculating the
Adjusted Principal Distribution Amount for the Distribution Date that
corresponds to the Collection Period in which such item was recovered, such
Recovered Amount (to the extent not already included therein) shall be added to
the Principal Distribution Amount for such Distribution Date.
(d) Nothing contained in this Section 1.03 is intended to limit the
ability of any party hereto that is entitled to reimbursement hereunder for any
unreimbursed Advances that have been or are determined to be Nonrecoverable
Advances (together with interest accrued and payable thereon pursuant to Section
3.12(b) or Section 4.03(d)) to collections of principal Received by the Trust
with respect to the Mortgage Pool; instead the order of priority set forth in
Section 1.03(a) is a deemed allocation only for purposes of calculating
distributions on the Certificates.
Section 1.04 Certain Calculations Relating to Mortgage Loans.
All amounts collected in respect of any group of related
Cross-Collateralized Mortgage Loans (other than REO Mortgage Loans) in the form
of payments from Mortgagors, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds, shall be applied by the Master Servicer among such
Mortgage Loans in accordance with the express provisions of the related loan
documents and, in the absence of such express provisions, on a pro rata basis in
accordance with the respective amounts then due and owing as to each such
Mortgage Loans.
All amounts collected in respect of any Serviced Loan (whether or
not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) other than an
REO Mortgage Loan, in the form of payment from Mortgagors, Condemnation
Proceeds, Insurance Proceeds, Liquidations Proceeds, repurchase proceeds or
payments of substitution shortfall amounts shall be applied to amounts due and
owing under the related Mortgage Note and Mortgage (including, without
limitation, for principal and accrued and unpaid interest) in accordance with
the express provisions of the related Mortgage Note and Mortgage and, in the
absence of, or to the extent not covered by, such express provisions, shall be
applied for purposes of this Agreement: first, as a recovery of any related
unreimbursed Servicing Advances and P&I Advances and, if applicable, unpaid
Liquidation Expenses; second, as a recovery of any amounts withdrawn from
general principal collections on the Mortgage Pool in order to reimburse any
Workout Delayed Reimbursement Amounts but only to the extent of principal
collections used to pay Workout Delayed Reimbursement Amounts and Nonrecoverable
Advance with respect to such Loan and interest on an such Advance; third, as a
recovery of accrued and unpaid interest at the related Mortgage Rate on such
Mortgage Loan to but not including, as appropriate, the date of receipt
(exclusive, however, in the case of an REO Loan that relates to any ARD Loan
after its Anticipated Repayment Date, of any such accrued and unpaid interest
that constitutes Post-ARD Additional Interest) or, in the case of a full Monthly
Payment from any Mortgagor, the related Due Date; fourth, as a recovery of
principal of such Mortgage Loan then due and owing, including, without
limitation, by reason of acceleration of the Mortgage Loan following a default
thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage
Loan, as a recovery of principal to the extent of its entire remaining unpaid
principal balance); fifth, as a recovery of amounts to be currently applied to
payment of, or escrowed for the future payment of, real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items;
sixth, as a recovery of Reserve Funds to the extent then required to be held in
escrow; seventh, as a recovery of any Yield Maintenance Charge or Prepayment
Premium then due and owing under such Mortgage Loan; eighth, as a recovery of
any penalty charges then due and owing under such Mortgage Loan; ninth, as a
recovery of any assumption fees and modification fees then due and owing under
such Mortgage Loan; tenth, as a recovery of any other amounts then due and owing
under such Mortgage Loan; and eleventh, as a recovery of any remaining principal
of such Mortgage Loan to the extent of its entire remaining unpaid principal
balance.
Collections in respect of each Serviced REO Property (exclusive of
amounts to be applied to the payment of the costs of operating, managing,
maintaining and disposing of such REO Property) shall be treated: first, as a
recovery of any related unreimbursed Servicing Advances and P&I Advances;
second, as a recovery of any amounts withdrawn from general principal
collections on the Mortgage Pool in order to reimburse any Workout Delayed
Reimbursement Amounts but only to the extent of principal collections used to
pay Workout Delayed Reimbursement Amounts and Nonrecoverable Advance with
respect to such Loan and interest on any such Advance; third, as a recovery of
accrued and unpaid interest on the related REO Mortgage Loan at the related
Mortgage Rate to but not including the Due Date in the Collection Period of
receipt; fourth, as a recovery of principal of the related REO Mortgage Loan to
the extent of its entire unpaid principal balance; fifth, as a recovery of
penalty charges; sixth, as a recovery of any other amounts deemed to be due and
owing in respect of the related REO Mortgage Loan (exclusive, however, in the
case of an REO Loan that relates to any ARD Loan after its Anticipated Repayment
Date, of any such accrued and unpaid interest that constitutes Post-ARD
Additional Interest); and seventh, in the case of an REO Loan that relates to
any ARD Loan after its Anticipated Repayment Date, as a recovery of accrued and
unpaid Post-ARD Additional Interest on such REO Loan; provided that if the Loans
comprising a Serviced Loan Combination become REO Loans, amounts Received with
respect to such REO Loans shall be applied to amounts due and owing in respect
of such REO Loans as provided in the related Co-Lender Agreement.
Notwithstanding the foregoing, all amounts payable or reimbursable to the Master
Servicer, the Special Servicer, the Trustee or the Trust in respect of the
predecessor Mortgage Loan as of the date of the related REO Acquisition,
including any unpaid Servicing Fees and any unreimbursed Servicing Advances and
P&I Advances, together with any interest accrued and payable to the Master
Servicer, the Special Servicer or the Trustee in respect of such Servicing
Advances and P&I Advances (including any Unliquidated Advance) in accordance
with Sections 3.12(b) and 4.03(d), respectively, shall continue to be payable or
reimbursable to the Master Servicer, the Special Servicer, the Trustee or the
Trust, as the case may be, in respect of an REO Loan.
Each REO Loan shall be deemed to have an initial unpaid principal
balance and Stated Principal Balance equal to the unpaid principal balance and
Stated Principal Balance, respectively, of its predecessor Serviced Loan as of
the date of the related REO Acquisition. All Monthly Payments (other than a
Balloon Payment), Assumed Monthly Payments (in the case of a Balloon Loan
delinquent in respect of its Balloon Payment) and other amounts due and owing,
or deemed to be due and owing, in respect of the predecessor Serviced Loan as of
the date of the related REO Acquisition, shall be deemed to continue to be due
and owing in respect of an REO Loan.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01 Creation of Trust; Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement and that such trust be
designated as "COBALT CMBS Commercial Mortgage Trust 2007-C3, Commercial
Mortgage Pass-Through Certificates, Series 2007-C3." Xxxxx Fargo Bank, N.A. is
hereby appointed, and does hereby agree, to act as Trustee hereunder and, in
such capacity, to hold the Trust Fund in trust for the exclusive use and benefit
of all present and future Certificateholders. The Depositor, concurrently with
the execution and delivery hereof, does hereby assign, sell, transfer, set over
and otherwise convey to the Trustee in trust, without recourse, for the benefit
of the Certificateholders, all the right, title and interest of the Depositor
in, to and under (i) the Mortgage Loans, (ii) the Mortgage Loan Purchase
Agreements and (iii) all other assets included or to be included in the Trust
Fund. Such assignment includes all interest and principal received or receivable
on or with respect to the Mortgage Loans and due after the Cut-off Date.
The parties hereto acknowledge and agree that, notwithstanding
Section 12.07, the transfer of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by them to constitute a
sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall direct each Mortgage Loan Seller
(pursuant to the applicable Mortgage Loan Purchase Agreement) to deliver to and
deposit with the Trustee or a Custodian appointed thereby (with a copy to the
Master Servicer), on or before the Closing Date, the Mortgage File for each
Mortgage Loan, with copies of the related reserve and cash management agreements
for such Mortgage Loan to be delivered to the Master Servicer and the Special
Servicer. None of the Trustee, any Custodian, the Master Servicer or the Special
Servicer shall be liable for any failure by a Mortgage Loan Seller or the
Depositor to comply with the document delivery requirements of the applicable
Mortgage Loan Purchase Agreement and this Section 2.01(b).
After the Depositor's transfer of the Mortgage Loans to the Trustee
pursuant to this Section 2.01(b), the Depositor shall not take any action
inconsistent with the Trust's ownership of the Mortgage Loans.
(c) The Depositor hereby represents and warrants that each Mortgage
Loan Seller has covenanted in the applicable Mortgage Loan Purchase Agreement
that it shall bear the costs related to recording or filing, as the case may be,
in the appropriate public office for real property records or UCC Financing
Statements, as appropriate, each related assignment of Mortgage and assignment
of Assignment of Leases, in favor of the Trustee referred to in clause (a)(iv)
of the definition of "Mortgage File" and each related UCC-2 and UCC-3 assignment
referred to in clause (a)(viii) of the definition of "Mortgage File" and the
Trustee (or the Custodian on its behalf) shall promptly undertake to record or
file any such document upon its receipt thereof.
The Depositor hereby represents and warrants that each Mortgage Loan
Seller has covenanted in the applicable Mortgage Loan Purchase Agreement as to
each Serviced Loan, that if it cannot deliver or cause to be delivered the
documents and/or instruments referred to in clauses (a)(ii), (a)(iii), (a)(vi)
(if recorded) and (a)(viii) of the definition of "Mortgage File" solely because
of a delay caused by the public recording office where such document or
instrument has been delivered for recordation, a copy of the original certified
by the applicable Mortgage Loan Seller to be a true and complete copy of the
original thereof submitted for recording, shall be forwarded to the Trustee.
Each assignment referred to in the second preceding paragraph that
is recorded by the Trustee shall reflect that it should be returned by the
public recording office to the Trustee or its agent following recording, and
each UCC-2 and UCC-3 assignment referred to in the second preceding paragraph
that is filed by the Trustee shall reflect that the file copy thereof should be
returned to the Trustee or its agent following filing; provided that, in those
instances where the public recording office retains the original assignment of
Mortgage or assignment of Assignment of Leases, the Trustee shall obtain
therefrom a certified copy of the recorded original. On a monthly basis, at the
expense of the applicable Mortgage Loan Seller, the Trustee shall forward to the
Master Servicer a copy of each of the aforementioned assignments following the
Trustee's receipt thereof.
If any of the aforementioned assignments is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, then the
Trustee shall direct the applicable Mortgage Loan Seller (pursuant to the
applicable Mortgage Loan Purchase Agreement) promptly to prepare or cause the
preparation of a substitute therefor or to cure such defect, as the case may be,
and to deliver to the Trustee the substitute or corrected document. The Trustee
shall upon receipt from the applicable Mortgage Loan Seller cause the same to be
duly recorded or filed, as appropriate.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall direct each Mortgage Loan Seller
(pursuant to the applicable Mortgage Loan Purchase Agreement) to deliver to and
deposit (or cause to be delivered and deposited) with the Master Servicer within
ten (10) Business Days after the Closing Date, documents and records that (A)
relate to the servicing and administration of the Serviced Loans, (B) are
reasonably necessary for the ongoing administration and/or servicing of the
Serviced Loans under this Agreement (including any asset summaries related to
the Serviced Loans that were delivered to the Rating Agencies in connection with
the rating of the Certificates) and (C) are in possession or under control of
the applicable Mortgage Loan Seller, together with (i) all unapplied Escrow
Payments and Reserve Funds in the possession of the applicable Mortgage Loan
Seller that relate to such Serviced Loans and (ii) a statement indicating which
Escrow Payments and Reserve Funds are allocable to such Serviced Loans, provided
that the applicable Mortgage Loan Seller shall not be required to deliver any
draft documents, privileged or other internal communications, credit
underwriting, due diligence analyses or data, or internal worksheets, memoranda,
communications or evaluations. The Master Servicer shall hold all such
documents, records and funds on behalf of the Trustee in trust for the benefit
of the Certificateholders (and, insofar as they also relate to the Companion
Loans, on behalf of and for the benefit of the applicable Companion Loan
Noteholder).
(e) It is not intended that this Agreement create a partnership or a
joint-stock association.
Section 2.02 Acceptance of Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
hereby accepts receipt, directly or through a Custodian on its behalf, of (i)
the Mortgage Loans and all documents delivered to it that constitute portions of
the related Mortgage Files and (ii) all other assets delivered to it and
included in the Trust Fund, in good faith and without notice of any adverse
claim, and declares that it or a Custodian on its behalf holds and will hold
such documents and any other documents subsequently received by it that
constitute portions of the Mortgage Files, and that it holds and will hold the
Mortgage Loans and such other assets, together with any other assets
subsequently delivered to it that are to be included in the Trust Fund, in trust
for the exclusive use and benefit of all present and future Certificateholders.
The Trustee (i) with respect to each Serviced Loan Combination,
shall also hold the portion of such Mortgage File that relates to the Companion
Loan in such Loan Combination in trust for the use and benefit of the related
Companion Loan Noteholder and (ii) with respect to each Loan Combination, hereby
assumes the obligations and rights of the holder of the related Loan Combination
Trust Mortgage Loan under the applicable Co-Lender Agreement.
In connection with the foregoing, the Trustee hereby certifies to
each of the other parties hereto, each Mortgage Loan Seller and each Underwriter
that, as to each Mortgage Loan, except as specifically identified in the
Schedule of Exceptions to Mortgage File Delivery attached hereto as Schedule II,
(i) all documents specified in clauses (a)(i), (ii), (vii), (ix), (xi) and (xix)
of the definition of "Mortgage File" (but in the case of documents specified in
clauses (ix) and (xix) only to the extent the Trustee or a Custodian on its
behalf has actual knowledge of their existence) of the definition of "Mortgage
File" are in its possession or the possession of a Custodian on its behalf, and
(ii) the original Mortgage Note (or, if accompanied by a lost note affidavit,
the copy of such Mortgage Note) received by it or any Custodian with respect to
such Mortgage Loan has been reviewed by it or by such Custodian on its behalf
and (A) appears regular on its face (handwritten additions, changes or
corrections shall not constitute irregularities if initialed by the Mortgagor),
(B) appears to have been executed (where appropriate) and (C) purports to relate
to such Mortgage Loan.
(b) On or about the 45th day following the Closing Date (and, if any
exceptions are noted, again on or about the 90th day following the Closing Date
and every 90 days thereafter until the earliest of (i) the second anniversary of
the Closing Date, (ii) the day on which all material exceptions have been
removed and (iii) the day on which the Depositor has repurchased the last
affected Mortgage Loan), the Trustee or a Custodian on its behalf shall review
the documents delivered to it or such Custodian with respect to each Mortgage
Loan, and the Trustee shall, subject to Sections 2.01, 2.02(c) and 2.02(d),
certify in writing (substantially in the form of Exhibit C hereto) to each of
the other parties hereto, each Mortgage Loan Seller and each Underwriter (and,
in the case of a Serviced Loan Combination, to the related Companion Loan
Noteholder, upon request) that, as to each Mortgage Loan then subject to this
Agreement (except as specifically identified in any exception report annexed to
such certification): (i) all documents specified in clauses (a)(i) through
(a)(v), (a)(vii) and, if applicable, (a)(viii) (without regard to the second
parenthetical in such clause (a)(viii)) of the definition of "Mortgage File")
that are required to be delivered hereunder have been delivered; (ii) the
recordation/filing contemplated by Section 2.01(c) has been completed (based
solely on receipt by the Trustee of the particular recorded/filed documents);
(iii) all documents received by it or any Custodian with respect to such
Mortgage Loan have been reviewed by it or by such Custodian on its behalf and
(A) appear regular on their face (handwritten additions, changes or corrections
shall not constitute irregularities if initialed by the Mortgagor), (B) appear
to have been executed (where appropriate) and (C) purport to relate to such
Mortgage Loan; and (iv) based on the examinations referred to in Section 2.02(a)
above and this Section 2.02(b) and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (v) and (vi)(B) of the definition of "Mortgage Loan
Schedule" accurately reflects the information set forth in the Mortgage File.
With respect to the items listed in clauses (ii), (iii), (iv) and, if
applicable, (vi) of the definition of Mortgage File if the original of such
document is not in the Trustee's possession because it has not been returned
from the applicable recording office, then the Trustee's or Custodian's
certification prepared pursuant to this Section 2.02(b) should indicate the
absence of such original. If the Trustee's obligation to deliver the
certifications contemplated in this subsection terminates because two (2) years
have elapsed since the Closing Date, the Trustee shall deliver a comparable
certification to any party hereto, the applicable Companion Loan Noteholder and
any Underwriter on request.
(c) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation to inspect, review or examine
any of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, binding, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. Furthermore, none of the Trustee, the Master Servicer, the Special
Servicer or any Custodian shall have any responsibility for determining whether
the text of any assignment or endorsement is in proper or recordable form,
whether the requisite recording of any document is in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction.
(d) It is understood that the scope of the Trustee's review of the
Mortgage Files is limited solely to confirming that the documents specified in
clauses (a)(i) through (a)(v), (a)(vii) and (a)(viii) of the definition of
"Mortgage File" have been received and such additional information as will be
necessary for delivering the certifications required by Sections 2.02(a) and (b)
above.
(e) If, after the Closing Date, the Depositor comes into possession
of any documents or records that constitute part of the Mortgage File or
Servicing File for any Mortgage Loan, the Depositor shall promptly deliver such
document to the Trustee (with a copy to the Master Servicer) (if it constitutes
part of the Mortgage File) or the Master Servicer (if it constitutes part of the
Servicing File), as applicable.
Section 2.03 Repurchase of Mortgage Loans for Document Defects and
Breaches of Representations and Warranties.
(a) If any party hereto discovers that any document constituting a
part of a Mortgage File has not been properly executed, is missing, contains
information that does not conform in any material respect with the corresponding
information set forth in the Mortgage Loan Schedule, or does not appear to be
regular on its face (each, a "Document Defect"), or discovers or receives notice
of a breach of any representation or warranty of a Mortgage Loan Seller made
pursuant to Section 3(b) of the applicable Mortgage Loan Purchase Agreement with
respect to any Mortgage Loan (a "Breach"), such party shall give prompt written
notice thereof to each of the Rating Agencies, the applicable Mortgage Loan
Seller and the other parties hereto. If any such Document Defect or Breach with
respect to any Mortgage Loan materially and adversely affects the interests of
the Certificateholders in, or the value of, such Mortgage Loan then such
Document Defect shall constitute a "Material Document Defect" or such Breach
shall constitute a "Material Breach," as the case may be. Promptly upon becoming
aware of any such Material Document Defect or Material Breach (including through
a written notice given by any party hereto, as provided above), the Trustee
shall require the applicable Mortgage Loan Seller, not later than ninety (90)
days from the earlier of the Mortgage Loan Seller's discovery or receipt of
notice of such Material Document Defect or Material Breach, as the case may be
(or, in the case of a Material Document Defect or Material Breach relating to a
Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC
Provisions, not later than ninety (90) days of any party discovering such
Material Document Defect or Material Breach), to cure the same in all material
respects (which cure shall include payment of losses and any Additional Trust
Fund Expenses associated therewith) or repurchase the affected Mortgage Loan at
the applicable Purchase Price by wire transfer of immediately available funds to
the Pool Custodial Account; provided, however, that if (i) such Material
Document Defect or Material Breach is capable of being cured but not within the
applicable 90-day period, (ii) such Material Document Defect or Material Breach
is not related to any Mortgage Loan's not being a "qualified mortgage" within
the meaning of the REMIC Provisions and (iii) the applicable Mortgage Loan
Seller has commenced and is diligently proceeding with the cure of such Material
Document Defect or Material Breach within such 90-day period, then the
applicable Mortgage Loan Seller shall have an additional ninety (90) days to
complete such cure or, in the event of a failure to so cure, to complete such
repurchase (it being understood and agreed that, in connection with the
applicable Mortgage Loan Seller's receiving such additional 90-day period, the
applicable Mortgage Loan Seller shall deliver an Officer's Certificate to the
Trustee setting forth the reasons such Material Document Defect or Material
Breach is not capable of being cured within the initial 90-day period and what
actions the applicable Mortgage Loan Seller is pursuing in connection with the
cure thereof and stating that the applicable Mortgage Loan Seller anticipates
that such Material Document Defect or Material Breach will be cured within such
additional 90-day period); and provided, further, that, if any such Material
Document Defect is still not cured after the initial 90-day period and any such
additional 90-day period solely due to the failure of the applicable Mortgage
Loan Seller to have received the recorded document, then the applicable Mortgage
Loan Seller shall be entitled to continue to defer its cure and repurchase
obligations in respect of such Document Defect so long as the applicable
Mortgage Loan Seller certifies to the Trustee every thirty (30) days thereafter
that the Document Defect is still in effect solely because of its failure to
have received the recorded document and that the applicable Mortgage Loan Seller
is diligently pursuing the cure of such defect (specifying the actions being
taken), except that no such deferral of cure or repurchase may continue beyond
the second anniversary of the Closing Date. Provided that the Master Servicer
has notice of such Material Document Defect or Material Breach, the Master
Servicer shall notify the Mortgage Loan Seller if the related Mortgage Loan
becomes a Specially Serviced Mortgage Loan during any applicable cure periods.
Any of the following document defects shall be conclusively presumed to be a
Material Document Defect: (a) the absence from the Mortgage File of the original
signed Mortgage Note, together with the endorsements referred to in clause
(a)(i) of the definition of "Mortgage File," unless the Mortgage File contains a
signed lost note affidavit and indemnity with respect to the missing Mortgage
Note and any missing endorsements that appears to be regular on its face, (b)
the absence from the Mortgage File of the original executed Mortgage or a copy
of such Mortgage certified by the local authority with which the Mortgage was
recorded, in each case with evidence of recording thereon, that appears to be
regular on its face, unless there is included in the Mortgage File a copy of the
executed Mortgage and a certificate stating that the original signed Mortgage
was sent for recordation, (c) the absence from the Mortgage File of the original
or a copy of the lender's title insurance policy, together with all endorsements
or riders (or copies thereof) that were issued with or subsequent to the
issuance of such policy, or marked up insurance binder or title commitment which
is marked as a binding commitment and countersigned by title company, insuring
the priority of the Mortgage as a first lien on the Mortgaged Property, (d) the
absence from the Mortgage File of any intervening assignments required to create
a complete chain of assignment to the Trustee on behalf of the Trust and a
certificate stating that the original intervening assignments were sent for
recordation, unless there is included in the Mortgage File a certified copy of
the intervening assignment or (e) the absence from the Servicing File of any
original letter of credit.
If (x) any Mortgage Loan is subject to a Material Breach or Material
Document Defect and would otherwise be required to be repurchased as
contemplated in this Section 2.03, (y) such Mortgage Loan is a
Cross-Collateralized Mortgage Loan or is secured by a portfolio of Mortgaged
Properties, and (z) the applicable Material Breach or Material Document Defect
does not constitute a Material Breach or Material Document Defect, as the case
may be, as to any related Cross-Collateralized Mortgage Loan or applies to only
specific Mortgaged Properties included in such portfolio, the applicable
Mortgage Loan Seller or its designee shall use its reasonable efforts, subject
to the terms of the related Mortgage Loan(s), to prepare and, to the extent
necessary and appropriate, have executed by the related Mortgagor and record,
such documentation as may be necessary to (i) in the case of a
Cross-Collateralized Group, terminate the cross-collateralization between the
Mortgage Loan(s) in such Cross-Collateralized Group that are to be repurchased,
on the one hand, and the remaining Mortgage Loan(s) therein, on the other hand,
such that those two groups of Mortgage Loans are each secured only by the
Mortgaged Properties identified in the Mortgage Loan Schedule as directly
corresponding thereto or (ii) in the case of Mortgage Loan secured by a
portfolio of Mortgaged Properties, release the affected Mortgaged Properties
from the cross-collateralization of the Mortgage Loan; provided that no such
termination or release shall be effected unless and until (i) the Controlling
Class Representative has consented (which consent shall not be unreasonably
withheld and shall be deemed to have been given if no written objection is
received by the applicable Mortgage Loan Seller within ten (10) Business Days of
such Controlling Class Representative's receipt of a written request for such
consent), (ii) the Trustee has received from the applicable Mortgage Loan Seller
(A) an Opinion of Counsel to the effect that such termination or release would
not cause an Adverse REMIC Event to occur with respect to any REMIC Pool or
Adverse Grantor Trust Event to occur with respect to Grantor Trust and (B)
written confirmation from each Rating Agency that such termination or release
would not cause an Adverse Rating Event to occur with respect to any Class of
Certificates, (iii) the debt service coverage ratio for the four preceding
calendar quarters for all of the Mortgage Loans relating to such
Cross-Collateralized Group or Mortgaged Properties relating to such Mortgage
Loan secured by a portfolio of Mortgaged Properties remaining is not less than
0.05x below the debt service coverage ratio for all Mortgage Loans of such
Cross-Collateralized Group (including the affected Mortgage Loan) or Mortgage
Loan (including the affected Mortgaged Property) set forth in the Prospectus
Supplement, (iv) the loan-to-value ratio for all of the Mortgage Loans of such
Cross-Collateralized Group or Mortgaged Properties relating to such Mortgage
Loan secured by a portfolio of Mortgaged Properties remaining is not greater
than 5% more than the loan-to-value ratio for all Mortgage Loans of such
Cross-Collateralized Group (including the affected Mortgage Loan) or Mortgage
Loan (including the affected Mortgaged Property) set forth in the Prospectus
Supplement. All costs and expenses incurred by the Trustee or any Person on its
behalf pursuant to this paragraph shall be included in the calculation of the
Purchase Price for the Mortgage Loan(s) to be repurchased. If the
cross-collateralization of any Cross-Collateralized Group is not or cannot be
terminated as contemplated by this paragraph, then, for purposes of (i)
determining whether any Breach or Document Defect, as the case may be, is a
Material Breach or Material Document Defect, and (ii) the application of
remedies, such Cross-Collateralized Group shall be treated as a single Mortgage
Loan.
(b) In connection with any repurchase of a Mortgage Loan pursuant to
this Section 2.03, and subject to Section 3.26, the Trustee, the Custodian, the
Master Servicer and the Special Servicer shall each tender to the repurchasing
entity, upon delivery to each of them of a receipt executed by the repurchasing
entity, all portions (including, without limitation, the Servicing File) of the
Mortgage File and other non-privileged documents pertaining to such Mortgage
Loan possessed by it, and each document that constitutes a part of the Mortgage
File shall be endorsed or assigned to the extent necessary or appropriate to the
repurchasing entity or its designee in the same manner, but only if the
respective documents have been previously assigned or endorsed to the Trustee,
and pursuant to appropriate forms of assignment, substantially similar to the
manner and forms pursuant to which such documents were previously assigned to
the Trustee; provided that such tender by the Trustee shall be conditioned upon
its receipt from the Master Servicer of a Request for Release and an Officer's
Certificate to the effect that the requirements for repurchase have been
satisfied. The Master Servicer shall, and is hereby authorized and empowered by
the Trustee to, prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.03(b), and such other instruments as
may be necessary or appropriate to transfer title to an REO Property in
connection with the repurchase of an REO Loan and the Trustee shall execute and
deliver any powers of attorney necessary to permit the Master Servicer to do so;
provided, however, that the Trustee shall not be held liable for any misuse of
any such power of attorney by the Master Servicer.
(c) Notwithstanding the foregoing, if there exists a Breach of that
portion of the representation or warranty on the part of a Mortgage Loan Seller
set forth in, or made pursuant to, paragraph 38 of Exhibit B to the applicable
Mortgage Loan Purchase Agreement, specifically relating to whether or not the
Mortgage Loan documents or any particular Mortgage Loan document for any
Mortgage Loan requires the related Mortgagor to bear the cost of reasonable
costs and expenses associated with a defeasance, as set forth in paragraph 38 of
Exhibit B to the Mortgage Loan Purchase Agreement (any such fees, costs or
expenses, referred to in this subsection (c) as "Covered Costs"), then the
Master Servicer shall direct the applicable Mortgage Loan Seller in writing to
wire transfer to the Pool Custodial Account, within ninety (90) days of receipt
of such direction, the amount of any such reasonable costs and expenses incurred
by the Trust that (i) otherwise would have been required to be paid by the
Mortgagor if such representation or warranty with respect to such costs and
expenses had in fact been true, as set forth in the related representation or
warranty, (ii) have not been paid by the Mortgagor, (iii) are the basis of such
Breach and (iv) constitute "Covered Costs." Upon payment of such costs, the
applicable Mortgage Loan Seller shall be deemed to have cured such Breach in all
respects. Provided that such payment is made, this paragraph describes the sole
remedy available to the Certificateholders and the Trustee on their behalf
regarding any such Breach, regardless of whether it constitutes a Material
Breach, and neither the Depositor nor the applicable Mortgage Loan Seller shall
be obligated to otherwise cure such Breach or repurchase the affected Mortgage
Loan under any circumstances. Amounts deposited in the Pool Custodial Account
pursuant to this paragraph shall constitute "Liquidation Proceeds" for all
purposes of this Agreement (other than Section 3.11(b)).
(d) Each Mortgage Loan Purchase Agreement and Section 2.03(a)
provide the sole remedies available to the Certificateholders, or the Trustee on
behalf of the Certificateholders, respecting any Document Defect or Breach with
respect to any Mortgage Loan.
Section 2.04 Representations, Warranties and Covenants of the
Depositor.
(a) The Depositor hereby represents, warrants and covenants to the
Trustee, for its own benefit and the benefit of the Certificateholders and to
the Master Servicer, the Special Servicer and the Companion Loan Noteholders, as
of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and the
Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or by
which it is bound, or any order or decree applicable to the Depositor, or
result in the creation or imposition of any lien on any of the Depositor's
assets or property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor of
this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and
clear of all liens, claims, encumbrances and other interests with the full
right to transfer the Mortgage Loans to the Trust and the Mortgage Loans
have been validly transferred to the Trust.
The representations, warranties and covenants of the Depositor set
forth in this Section 2.04 shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of such representations, warranties and
covenants, the party discovering such breach shall give prompt written notice
thereof to the other parties.
Section 2.05 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests.
The Trustee hereby acknowledges the assignment to it of the Mortgage
Loans, and, subject to Sections 2.01 and 2.02, the delivery to it or a Custodian
on its behalf of the Mortgage Files and a fully executed original counterpart of
the Mortgage Loan Purchase Agreement, together with the assignment to it of all
other assets included in the Trust Fund. Concurrently with such assignment and
delivery and in exchange therefor (other than any Post-ARD Additional Interest
received on any ARD Loan), the Trustee (i) acknowledges the issuance of the
Uncertificated Lower-Tier Interests in exchange for the assets of the Lower-Tier
REMIC, (ii) acknowledges the execution by the Certificate Registrar and the
authentication and delivery by the Authenticating Agent of the Class R-I
Certificates to or upon the order of the Depositor, (iii) acknowledges the
transfer to it and hereby declares that it holds the Uncertificated Lower-Tier
Interests on behalf of the Upper-Tier REMIC and Holders of the Certificates
(other than the Class Y Certificates and the Class R-I Certificates) and
immediately thereafter, the Trustee acknowledges that it has caused the
Certificate Registrar to execute and caused the Authenticating Agent to
authenticate and to deliver to or upon the order of the Depositor, in exchange
for the Uncertificated Lower-Tier Interests, the Regular Interest Certificates
and the Class R-II Certificates, and the Depositor hereby acknowledges the
receipt by it or its designees, of such Certificates in authorized denominations
evidencing the entire beneficial ownership of the Upper-Tier REMIC and (iv)
acknowledges that it has caused the Certificate Registrar to execute and caused
the Authenticating Agent to authenticate and deliver to or upon the order of the
Depositor, in exchange for the Post-ARD Additional Interest, the Class Y
Certificates, and the Depositor hereby acknowledges the receipt by it or its
designees of such Certificates.
Section 2.06 Grantor Trust Assets.
The parties intend that the portion of the Trust Fund consisting of
any collections of Post-ARD Additional Interest Received on any ARD Loan and any
successor REO Mortgage Loan constitute a grantor trust under subpart E, Part I
of subchapter J of the Code, beneficially owned by the Certificate Owners of the
Class Y Certificates. The Trustee, by its execution and delivery hereof,
acknowledges the assignment to it of such Grantor Trust Assets and declares that
it holds and will hold the portion of such assets consisting of any collections
of Post-ARD Additional Interest received on any ARD Loan and any successor REO
Mortgage Loan and the Class Y Sub-Account for the exclusive use and benefit of
all present and future Holders of the Class Y Certificates. The rights of
Holders of the Class Y Certificates, to receive distributions from the proceeds
of such Grantor Trust Assets, and all ownership interests of such Holders in and
to such distributions, shall be as set forth in this Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Mortgage Loans.
(a) All of the Serviced Loans and Serviced REO Properties are to be
serviced and administered by the Master Servicer and/or the Special Servicer
hereunder. Each of the Master Servicer and the Special Servicer shall service
and administer the Serviced Loans and Serviced REO Properties that it is
obligated to service and administer pursuant to this Agreement on behalf of the
Trustee, for the benefit of the Certificateholders (or, in the case of the
Companion Loans, on behalf of the related Companion Loan Noteholders), as
determined in the good faith and reasonable judgment of the Master Servicer or
the Special Servicer, as the case may be, in accordance with: (i) any and all
applicable laws; (ii) the express terms of this Agreement (and, with respect to
a Loan Combination, the related Co-Lender Agreement) and the respective Serviced
Loans; and (iii) to the extent consistent with the foregoing, the Servicing
Standard. The Master Servicer or the Special Servicer, as applicable in
accordance with this Agreement, shall service and administer each
Cross-Collateralized Group, if any, as a single Mortgage Loan as and when
necessary and appropriate consistent with the Servicing Standard. Without
limiting the foregoing, and subject to Section 3.22, (i) the Master Servicer
shall service and administer all of the Performing Serviced Loans and shall
render such services with respect to the Specially Serviced Mortgage Loans as
are specifically provided for herein, and (ii) the Special Servicer shall
service and administer each Specially Serviced Mortgage Loan and Serviced REO
Property and shall render such services with respect to the Performing Serviced
Loans as are specifically provided for herein. All references herein to the
respective duties of the Master Servicer and the Special Servicer, and to the
areas in which they may exercise discretion, shall be subject to Section 3.22.
(b) Subject to Section 3.01(a) and Section 6.11 (taking account of
Section 6.11(b)), the Master Servicer and the Special Servicer shall each have
full power and authority, acting alone or through sub-servicers, to do or cause
to be done any and all things in connection with the servicing and
administration contemplated by Section 3.01(a) that it may deem necessary or
desirable. Without limiting the generality of the foregoing, each of the Master
Servicer and the Special Servicer, in its own name, with respect to each of the
Serviced Loans it is obligated to service hereunder, is hereby authorized and
empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders and the Trustee and the Companion Loan Noteholders or any of
them, (i) any and all financing statements, continuation statements and other
documents or instruments necessary to maintain the lien created by any Mortgage
or other security document in the related Mortgage File on the related Mortgaged
Property and related collateral; (ii) in accordance with the Servicing Standard
and subject to Section 3.21 and Section 6.11 (taking account of Section
6.11(b)), any and all modifications, extensions, waivers, amendments or consents
to or with respect to any documents contained in the related Mortgage File;
(iii) any and all instruments of satisfaction or cancellation, or of partial or
full release or discharge or of assignment, and all other comparable
instruments; and (iv) any and all instruments that such party may be required to
execute on behalf of the Trustee in connection with the defeasance of a Serviced
Loan as contemplated in this Agreement. Subject to Section 3.10, the Trustee
shall, at the written request of the Master Servicer or the Special Servicer,
promptly execute any limited powers of attorney and other documents furnished by
the Master Servicer or the Special Servicer that are necessary or appropriate to
enable them to carry out their servicing and administrative duties hereunder;
provided, however, that the Trustee shall not be held liable for any misuse of
any such power of attorney by the Master Servicer or the Special Servicer.
Notwithstanding anything contained herein to the contrary, neither the Master
Servicer nor the Special Servicer shall, without the Trustee's written consent:
(i) initiate any action, suit or proceeding solely under the Trustee's name or
the Trustee's name on behalf of the Certificateholders, without indicating the
Master Servicer's or Special Servicer's, as applicable, representative capacity;
or (ii) take any action with the intent to cause, and that actually causes, the
Trustee to be registered to do business in any state.
(c) The parties hereto acknowledge that the Loan Combinations are
subject to the terms and conditions of the applicable Co-Lender Agreement. The
parties hereto further recognize the respective rights and obligations of the
Loan Combination Trust Mortgage Loan holder, the Pari Passu Companion Loan
holder or the Subordinate Companion Loan Noteholder under the applicable
Co-Lender Agreement, including with respect to (i) the allocation of collections
on or in respect of the Loan Combinations in accordance with the applicable
Co-Lender Agreement, (ii) the making of payments to the Loan Combination Trust
Mortgage Loan holder, the Pari Passu Companion Loan holder and/or Subordinate
Companion Loan Noteholder in accordance with the applicable Co-Lender Agreement,
(iii) the purchase of the Loan Combination Trust Mortgage Loans by the related
Subordinate Companion Loan Noteholders or (iv) in the case where a Companion
Loan Noteholder is the Directing Holder, the right of such Directing Holder to
cure a default of the related Mortgagor in accordance with the applicable
Co-Lender Agreement.
With respect to the Xxxxxxx River Plaza North Loan Combination and
the Encino Courtyard Loan Combination, the related Co-Lender Agreement permits
the related Subordinate Companion Loan Noteholder to deliver Reserve Collateral
in order to continue to be the Loan Combination Directing Holder in the
circumstances specified in accordance with the applicable Co-Lender Agreement.
The Special Servicer shall hold all such Reserve Collateral (in an Eligible
Account, in the case of cash) in a manner that clearly identifies that it is
being held for the benefit of the Certificateholders but, for federal income tax
purposes, is beneficially owned by the related Subordinate Companion Loan
Noteholder under the applicable Loan Combination. The Special Servicer shall
take all actions reasonably necessary to maintain any perfected security
interest on the part of the Trust in and to the related Reserve Collateral. In
connection with the foregoing, if any letters of credit are furnished as Reserve
Collateral with respect to the Xxxxxxx River Plaza North Loan Combination or the
Encino Courtyard Loan Combination, and if (i) the applicable Subordinate
Companion Loan Noteholder has not provided a replacement letter of credit at
least 30 days before the expiration of the delivered letter of credit or (ii)
the long-term unsecured debt rating by any Rating Agency of the issuer of such
letter of credit shall fall below "AA" or the short-term unsecured debt rating
by each such Rating Agency shall fall below "A-1", then the Special Servicer
shall provide written notice of such event to the applicable Subordinate
Companion Loan Noteholder, and unless such Subordinate Companion Loan Noteholder
shall have replaced such letter of credit within five (5) Business Days of such
written notice from the Special Servicer with a letter of credit in form and
substance satisfactory to the Special Servicer and the Rating Agencies, the
Special Servicer shall draw upon such letter of credit and hold the proceeds
thereof as related Reserve Collateral. Upon a Final Recovery Determination with
respect to the Xxxxxxx River Plaza North Loan Combination or the Encino
Courtyard Loan Combination, any related Reserve Collateral held by the Special
Servicer shall be available to reimburse the Trust for any realized loss of
principal and/or interest incurred with respect to the related Mortgage Loan (or
any successor REO Mortgage Loan with respect thereto), up to the maximum amount
permitted under the applicable Co-Lender Agreement, together with all other
amounts (including, without limitation, Additional Trust Fund Expenses related
to the applicable Loan Combination or any related REO Property) reimbursable
under the applicable Co-Lender Agreement and this Agreement. To the extent
necessary to effect such reimbursement, the Special Servicer shall draw down
upon or otherwise liquidate all applicable Reserve Collateral and shall forward
the reimbursement payment to the Master Servicer for deposit in the Collection
Account. Such reimbursement of payment shall, except for purposes of Section
3.11(b) hereof, constitute "Liquidation Proceeds". The Special Servicer may not
release any Reserve Collateral to either the Xxxxxxx River Plaza North
Subordinate Companion Loan holder or the Encino Courtyard Subordinate Companion
Loan holder, except as expressly required under the applicable Co-Lender
Agreement (including, in connection with a Final Recovery Determination with
respect to the related Loan Combination, following the reimbursement of the
Trust as contemplated above in this Section 3.01(c)). The arrangement by which
any Reserve Collateral is held shall constitute an "outside reserve fund" within
the meaning of Treasury regulations section 1.860G-2(h) and such property (and
the right to reimbursement of any amounts with respect thereto) shall be
beneficially owned by the applicable Subordinate Companion Loan Noteholder, who
shall be taxed on all income with respect thereto. As compensation for
maintaining any Reserve Collateral, the Special Servicer will be entitled to any
interest or other income earned, and will be responsible for any losses on
investments, with respect to such Reserve Collateral in the same manner as it is
entitled to investment income, and is responsible for losses incurred, with
respect to investments of funds in an REO Account.
Notwithstanding the foregoing, if, at such time as any Serviced Loan
Combination Trust Mortgage Loan shall no longer be part of the Trust Fund and a
separate servicing agreement with respect to the related Loan Combination has
not been entered into in accordance with the terms of the related Co-Lender
Agreement, then, until such time as a separate servicing agreement is entered
into and any required Rating Agency Confirmation is obtained, and
notwithstanding that such Serviced Loan Combination Trust Mortgage Loan is no
longer part of the Trust Fund, the Master Servicer and, if applicable, the
Special Servicer shall continue to service such Loan Combination or any related
Loan Combination REO Properties, as the case may be, under this Agreement as if
it were a separate servicing agreement (without, subject to the applicable
Co-Lender Agreement, any obligation of the Master Servicer, Special Servicer or
Trustee to make any Advance on such Serviced Loan Combination Trust Mortgage
Loan that is no longer part of the Trust Fund), for the benefit of each holder
of a Loan in such Loan Combination, and under any related Co-Lender Agreement,
with: (i) such Loan Combination and the related Loan Combination Mortgaged
Properties constituting the sole assets thereunder; and (ii) references to the
"Trustee," "Trust," "Certificateholders" (or any sub group thereof) and the
"Controlling Class Directing Holder" being construed to refer to the new holder
of the Serviced Loan Combination Trust Mortgage Loan that is no longer included
in the Trust Fund under the applicable Co-Lender Agreement.
(d) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and the Companion Loan Noteholders under this Agreement
is intended by the parties to be that of an independent contractor and not that
of a joint venturer, partner or agent.
Section 3.02 Collection of Loan Payments.
(a) Each of the Master Servicer (with respect to Performing Serviced
Loans) and the Special Servicer (with respect to Specially Serviced Mortgage
Loans) shall undertake reasonable efforts to collect all payments required under
the terms and provisions of the Serviced Loans it is obligated to service
hereunder and shall follow such collection procedures as are consistent with the
Servicing Standard; provided, however, that neither the Master Servicer nor the
Special Servicer shall, with respect to any ARD Loan after its Anticipated
Repayment Date, take any enforcement action with respect to the payment of
Post-ARD Additional Interest (other than the making of requests for its
collection), unless (i) the taking of an enforcement action with respect to the
payment of other amounts due under any ARD Loan is, in the good faith and
reasonable judgment of the Special Servicer, necessary, appropriate and
consistent with the Servicing Standard or (ii) all other amounts due under any
ARD Loan have been paid, the payment of such Post-ARD Additional Interest has
not been forgiven in accordance with Section 3.21 and, in the good faith and
reasonable judgment of the Special Servicer, the Liquidation Proceeds expected
to be recovered in connection with such enforcement action will cover the
anticipated costs of such enforcement action and, if applicable, any associated
interest accrued on Advances. The Special Servicer shall ensure that, with
respect to Specially Serviced Mortgage Loans, the Mortgagors make payments
directly to the Master Servicer; provided that, in the event the Special
Servicer receives a payment that should have been made directly to the Master
Servicer, the Special Servicer shall promptly forward such payment to the Master
Servicer. Upon receipt of any such payment with respect to a Specially Serviced
Mortgage Loan, the Master Servicer shall promptly notify the Special Servicer,
and the Special Servicer shall direct the Master Servicer as to the proper
posting of such payment. Consistent with the foregoing, the Special Servicer,
with regard to a Specially Serviced Mortgage Loan, or the Master Servicer, with
regard to a Performing Serviced Loan, may waive or defer any Default Charges in
connection with collecting any late payment on a Serviced Loan; provided that
without the consent of the Special Servicer in the case of a proposed waiver by
the Master Servicer, no such waiver or deferral may be made by the Master
Servicer pursuant to this Section 3.02 if any Advance has been made as to such
delinquent payment.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Serviced Loans, establish
and maintain one or more accounts, in which all related Escrow Payments shall be
deposited and retained (each a "Servicing Account"). Subject to the terms of the
related Mortgage Loan documents, each Servicing Account shall be an Eligible
Account. Withdrawals of amounts so collected from a Servicing Account may be
made (to the extent of amounts on deposit therein in respect of the related
Mortgage Loan or, in the case of clauses (iv) and (v) below, to the extent of
interest or other income earned on such amounts) only for the following
purposes: (i) consistent with the related Mortgage Loan documents, to effect the
payment of real estate taxes, assessments, insurance premiums (including
premiums on any Environmental Insurance Policy), ground rents (if applicable)
and comparable items in respect of the respective Mortgaged Properties; (ii)
insofar as the particular Escrow Payment represents a late payment that was
intended to cover an item described in the immediately preceding clause (i) for
which a Servicing Advance was made, to reimburse the Master Servicer, the
Special Servicer or the Trustee, as applicable, for such Servicing Advance;
(iii) to refund to Mortgagors any sums as may be determined to be overages; (iv)
to pay interest, if required and as described below, to Mortgagors on balances
in such Servicing Account; (v) to pay the Master Servicer interest and
investment income on balances in such Servicing Account as described in Section
3.06(b), if and to the extent not required by law or the terms of the related
Loan documents to be paid to the Mortgagor; or (vi) to clear and terminate such
Servicing Account at the termination of this Agreement in accordance with
Section 9.01. To the extent permitted by law or the applicable Mortgage Loan
documents, funds in the Servicing Accounts may be invested only in Permitted
Investments in accordance with the provisions of Section 3.06. The Master
Servicer shall pay or cause to be paid to the Mortgagors interest, if any,
earned on the investment of funds in the related Servicing Accounts, if required
by law or the terms of the related Mortgage Loan. If the Master Servicer shall
deposit in a Servicing Account any amount not required to be deposited therein,
it may at any time withdraw such amount from such Servicing Account, any
provision herein to the contrary notwithstanding.
(b) The Master Servicer shall, as to each and every Serviced Loan,
(i) maintain accurate records with respect to the related Mortgaged Property
reflecting the status of real estate taxes, assessments and other similar items
that are or may become a lien thereon and the status of insurance premiums and
any ground rents payable in respect thereof and (ii) use reasonable efforts to
obtain, from time to time, all bills for (or otherwise confirm) the payment of
such items (including renewal premiums) and, if the subject Serviced Loan
requires the related Mortgagor to escrow for such items, shall effect payment
thereof prior to the applicable penalty or termination date. For purposes of
effecting any such payment for which it is responsible, the Master Servicer
shall apply Escrow Payments as allowed under the terms of the related Serviced
Loan (or, if such Serviced Loan does not require the related Mortgagor to escrow
for the payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and similar items, the Master Servicer shall use
reasonable efforts consistent with the Servicing Standard to cause the related
Mortgagor to comply with the requirement of the related Mortgage that the
Mortgagor make payments in respect of such items at the time they first become
due and, in any event, prior to the institution of foreclosure or similar
proceedings with respect to the related Mortgaged Property for nonpayment of
such items). Subject to Section 3.12(d), the Master Servicer shall timely make a
Servicing Advance to cover any such item which is not so paid, including any
penalties or other charges arising from the Mortgagor's failure to timely pay
such items.
(c) The Master Servicer shall, as to each and every Serviced Loan,
make a Servicing Advance with respect to the related Mortgaged Property in an
amount equal to all such funds as are necessary for the purpose of effecting the
payment of (i) real estate taxes, assessments and other similar items, (ii)
ground rents (if applicable), and (iii) premiums on Insurance Policies
(including Environmental Insurance Policies), in each instance if and to the
extent Escrow Payments (if any) collected from the related Mortgagor are
insufficient to pay such item when due and the related Mortgagor has failed to
pay such item on a timely basis. All such Servicing Advances shall be
reimbursable in the first instance from related collections from the Mortgagors,
and further as provided in Section 3.05(a) or 3.05A. No costs incurred by the
Master Servicer in effecting the payment of real estate taxes, assessments and,
if applicable, ground rents on or in respect of the Mortgaged Properties shall,
for purposes of this Agreement, including the Trustee's calculation of monthly
distributions to Certificateholders, be added to the unpaid Stated Principal
Balances of the related Serviced Loans, notwithstanding that the terms of such
Mortgage Loans so permit. The foregoing shall in no way limit the Master
Servicer's ability to charge and collect from the Mortgagor such costs together
with interest thereon.
(d) The Master Servicer shall, as to all Serviced Loans, establish
and maintain, as applicable, one or more accounts ("Reserve Accounts"), into
which all Reserve Funds, if any, shall be deposited and retained. Withdrawals of
amounts so deposited may be made (i) for the specific purposes for which the
particular Reserve Funds were delivered, in accordance with the Servicing
Standard and the terms of the related Mortgage Note, Mortgage and any other
agreement with the related Mortgagor governing such Reserve Funds, and (ii) to
pay the Master Servicer interest and investment income earned on amounts in the
Reserve Accounts as described below. To the extent permitted in the applicable
Mortgage Loan documents, funds in the Reserve Accounts may be invested in
Permitted Investments in accordance with the provisions of Section 3.06. Subject
to the related Mortgage Loan documents, all Reserve Accounts shall be Eligible
Accounts. Consistent with the Servicing Standard, the Master Servicer may waive
or extend the date set forth in any agreement governing Reserve Funds by which
any required repairs, capital improvements and/or environmental remediation at
the related Mortgaged Property must be completed; provided that any waiver, any
extension for more than one hundred twenty (120) days and any subsequent
extension may only be granted with the consent of the Special Servicer.
Section 3.04 Pool Custodial Account, Defeasance Deposit Account,
Distribution Account, Interest Reserve Account, Excess Liquidation Proceeds
Account and Class Y Sub-Account.
(a) The Master Servicer shall establish and maintain one or more
separate accounts (collectively, the "Pool Custodial Account"), in which the
amounts described in clauses (i) through (ix) below (which shall not include any
amounts allocable to the Companion Loans) shall be deposited and held on behalf
of the Trustee in trust for the benefit of the Certificateholders and the
Trustee as the Holder of the Uncertificated Lower-Tier Interests. The Pool
Custodial Account shall be an Eligible Account. The Master Servicer shall
deposit or cause to be deposited in the Pool Custodial Account, within one
Business Day of receipt (in the case of payments by Mortgagors or other
collections on the Mortgage Loans) or as otherwise required hereunder, the
following payments and collections received or made by the Master Servicer or on
its behalf subsequent to the Cut-off Date (other than in respect of principal
and interest on the Mortgage Loans due and payable on or before the Cut-off
Date, which amounts shall be delivered promptly to the Depositor or its
designee, with negotiable instruments endorsed as necessary and appropriate
without recourse, and other than amounts required to be deposited in the
Defeasance Deposit Account), or payments (other than Principal Prepayments)
received by it on or prior to the Cut-off Date but allocable to a period
subsequent thereto:
(i) all payments on account of principal of the Serviced Loans,
including Principal Prepayments, and regardless of whether those payments
are made by the related Mortgagor or any related guarantor, out of any
related Reserve Funds maintained for such purpose, out of collections on
any related Defeasance Collateral or from any other source;
(ii) all payments on account of interest on the Serviced Loans,
including Default Interest, and regardless of whether those payments are
made by the related Mortgagor or any related guarantor, out of any related
Reserve Funds maintained for such purpose, out of collections on any
related Defeasance Collateral or from any other source;
(iii) all Prepayment Premiums, Yield Maintenance Charges and late
payment charges received in respect of any Serviced Loan;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of any Serviced Loan (including any amounts
paid by a Mortgagor or received as Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds that represent recoveries for an Advance
(or interest thereon) that was previously reimbursed to the party that
made such Advance as either a Nonrecoverable Advance or as a
Workout-Delayed Reimbursement Amount);
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Pool Custodial Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard policy;
(vii) any amounts required to be transferred from an REO Account
pursuant to Section 3.17(c); and
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by a Mortgagor specifically to cover items for which a
Servicing Advance has been made.
provided that any amounts described in clauses (i) through (iv) and (vi) through
(viii) above that relate to any Serviced Loan Combination or any related REO
Property (other than Liquidation Proceeds derived from the sale of the Mortgage
Loans to or through the Companion Loan Noteholders pursuant to the Co-Lender
Agreement or as a Specially Serviced Mortgage Loan pursuant to Section 3.19 or
the repurchase of a Mortgage Loan by a Mortgage Loan Seller) shall be deposited
in the applicable Loan Combination Custodial Account, and, in any such case,
shall thereafter be transferred to the Pool Custodial Account.
The foregoing requirements for deposit in the Pool Custodial Account
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, Reserve Funds, assumption fees,
assumption application fees, funds representing a Mortgagor's payment of costs
and expenses associated with assumptions and defeasance, modification fees,
extension fees, charges for beneficiary statements or demands, amounts collected
for checks returned for insufficient funds and any similar fees not expressly
referred to in the prior paragraph need not be deposited by the Master Servicer
in the Pool Custodial Account. If the Master Servicer shall deposit in the Pool
Custodial Account any amount not required to be deposited therein, it may at any
time withdraw such amount from the Pool Custodial Account, any provision herein
to the contrary notwithstanding. The Master Servicer shall promptly deliver to
the Special Servicer, as additional special servicing compensation in accordance
with Section 3.11(c), all assumption fees and assumption application fees (or
the applicable portions thereof) and other transaction fees received by the
Master Servicer to which the Special Servicer is entitled pursuant to such
Section upon receipt of a written statement (on which the Master Servicer is
entitled to rely) of a Servicing Officer of the Special Servicer describing the
item and amount (unless pursuant to this Agreement it is otherwise clear that
the Special Servicer is entitled to such amounts, in which case a written
statement is not required). The Pool Custodial Account shall be maintained as a
segregated account, separate and apart from trust funds created for
mortgage-backed securities of other series and the other accounts of the Master
Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (vi) through (viii) above with respect to any Mortgage Loan (other than
any Mortgage Loan that is part of a Serviced Loan Combination), the Special
Servicer shall promptly, but in no event later than two (2) Business Days after
receipt, remit such amounts to the Master Servicer for deposit into the Pool
Custodial Account in accordance with the second preceding paragraph, unless the
Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement or
other appropriate reason. With respect to any such amounts paid by check to the
order of the Special Servicer, the Special Servicer shall endorse such check to
the order of the Master Servicer, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item cannot be so
endorsed and delivered because of a restrictive endorsement or other appropriate
reason. Any such amounts received by the Special Servicer with respect to a
Serviced REO Property (other than an REO Property that relates to a Serviced
Loan Combination) shall be deposited by the Special Servicer into the Pool REO
Account and thereafter remitted to the Master Servicer for deposit into the Pool
Custodial Account as and to the extent provided in Section 3.17(c).
If and when any Mortgagor under a Defeasance Loan that is a Serviced
Loan elects to defease all or any part of its Mortgage Loan and, pursuant to the
provisions of the related Mortgage Loan documents, delivers cash to the Master
Servicer to purchase the required Defeasance Collateral, the Master Servicer
shall establish and maintain one or more separate segregated accounts
(collectively, the "Defeasance Deposit Account"), in which the Master Servicer
shall deposit such cash within one Business Day of receipt by the Master
Servicer. The Master Servicer shall retain such cash in the Defeasance Deposit
Account pending its prompt application to purchase Defeasance Collateral. The
Master Servicer shall hold such cash and maintain the Defeasance Deposit Account
on behalf of the Mortgagor, as beneficial owner of the Defeasance Collateral,
and the Trustee and, in the case of the Loan Combinations, the Companion Loan
Noteholders, to secure payment on the related Defeasance Loan. The Defeasance
Deposit Account shall be an Eligible Account. To the extent permitted by law or
the applicable Defeasance Loan, prior to the purchase of Defeasance Collateral,
funds in the Defeasance Deposit Account may be invested only in Permitted
Investments in accordance with the provisions of Section 3.06. The Master
Servicer shall pay or cause to be paid to the related Mortgagor(s) interest, if
any, earned on the investment of funds in the Defeasance Deposit Account, if
required by law or the terms of the related Mortgage Loan(s).
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the
Distribution Account shall be an Eligible Account. The Distribution Account
shall be deemed to consist of four separate sub-accounts, which shall be
established and maintained on a book-entry basis: the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the Interest Reserve Account and
the Class Y Sub-Account. The Master Servicer shall deliver from the Custodial
Account to the Trustee each month on or before the Master Servicer Remittance
Date, for deposit in the Lower-Tier Distribution Account or, in the case of the
Post-ARD Additional Interest, in the Class Y Sub-Account, an aggregate amount of
immediately available funds equal to the Master Servicer Remittance Amount for
such Master Servicer Remittance Date, together with, in the case of the final
Distribution Date, any additional amounts contemplated by the second paragraph
of Section 9.01.
Notwithstanding anything herein to the contrary, the Lower-Tier
Distribution Account, the Upper-Tier Distribution Account, the Class Y
Sub-Account, and the Interest Reserve Account may be maintained as part of a
single Distribution Account. Amounts actually deposited into or distributed from
the Distribution Account will be deemed to be deposited or distributed from the
Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the Class
Y Sub-Account, or the Interest Reserve Account, as applicable.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee (without duplication) for deposit in the
Lower-Tier Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a); and
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.20(a) in connection with Prepayment Interest
Shortfalls.
The Trustee shall, upon receipt, deposit in the Lower-Tier
Distribution Account or the Class Y Sub-Account, as applicable, any and all
amounts received by the Trustee that are required by the terms of this Agreement
to be deposited therein.
In the event that the Master Servicer fails, on any Master Servicer
Remittance Date, to remit to the Trustee any amount(s) required to be so
remitted to the Trustee hereunder by such date, the Master Servicer shall pay
the Trustee, for the account of the Trustee, interest, calculated at the Prime
Rate, on such amount(s) not timely remitted, from and including that Master
Servicer Remittance Date, to but not including the date such payment was made.
On the Master Servicer Remittance Date in March of each year
(commencing in March 2008), or February, if the related Distribution Date is the
final Distribution Date, the Trustee shall transfer from the Interest Reserve
Account to the Lower-Tier Distribution Account, all Interest Reserve Amounts
then on deposit in the Interest Reserve Account with respect to the Interest
Reserve Mortgage Loans and any Interest Reserve REO Mortgage Loans.
As and when required pursuant to Section 3.04(d), the Trustee shall
transfer monies from the Excess Liquidation Proceeds Account to the Lower-Tier
Distribution Account.
(c) The Trustee shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account"), which may be a sub-account of
the Distribution Account, to be held in trust for the benefit of the
Certificateholders and the Trust as Holder of the Uncertificated Lower-Tier
Interests. Each account that constitutes the Interest Reserve Account shall be
an Eligible Account. On each Distribution Date in February and, during a year
that is not a leap year, in January (unless, in either case, such Distribution
Date is the final Distribution Date), prior to any distributions being made in
respect of the Certificates on such Distribution Date, the Trustee shall
withdraw from the Lower-Tier Distribution Account and deposit in the Interest
Reserve Account with respect to each applicable Interest Reserve Mortgage Loan
and Interest Reserve REO Mortgage Loan, an amount equal to the Interest Reserve
Amount, if any, in respect of such Mortgage Loan or REO Mortgage Loan, as the
case may be, for such Distribution Date.
Notwithstanding that the Interest Reserve Account, the Class Y
Sub-Account, the Lower-Tier Distribution Account and the Upper-Tier Distribution
Account may be sub-accounts of the Distribution Account for reasons of
administrative convenience, the Interest Reserve Account, the Class Y
Sub-Account, the Lower-Tier Distribution Account and the Upper-Tier Distribution
Account shall, for all purposes of this Agreement (including the obligations and
responsibilities of the Trustee hereunder), be considered to be and shall be
required to be treated as, separate and distinct accounts. The provisions of
this paragraph shall survive any resignation or removal of the Trustee and
appointment of a successor trustee.
(d) If any Excess Liquidation Proceeds are received on the Mortgage
Pool, the Trustee shall establish and maintain one or more accounts
(collectively, the "Excess Liquidation Proceeds Account") to be held in trust
for the benefit of the Certificateholders. Each account that constitutes the
Excess Liquidation Proceeds Account shall be an Eligible Account. On each Master
Servicer Remittance Date, the Master Servicer shall withdraw from the Pool
Custodial Account and remit to the Trustee for deposit in the Excess Liquidation
Proceeds Account all Excess Liquidation Proceeds (to the extent not allocable to
a Companion Loan) received during the Collection Period ending on the
Determination Date immediately prior to such Master Servicer Remittance Date. On
any Distribution Date, amounts held in the Excess Liquidation Proceeds Account
that exceed amounts reasonably required to offset future Realized Losses as
determined by the Special Servicer with the consent of the Controlling Class
Representative shall be distributed to the Holders of the Class R-I
Certificates.
(e) Funds in the Pool Custodial Account may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall give written notice to the Trustee, the Special Servicer
and the Rating Agencies of the location of the Pool Custodial Account as of the
Closing Date and of the new location of the Pool Custodial Account within two
(2) Business Days of any change thereof. As of the Closing Date, the
Distribution Account (and all subaccounts thereof) and, when established, the
Excess Liquidation Proceeds Account shall be located at the Trustee's offices in
Minneapolis, Minnesota. The Trustee shall give notice to the Master Servicer,
the Special Servicer and the Rating Agencies of any change in the location of
the Distribution Account (and all subaccounts thereof), the Interest Reserve
Account or the Excess Liquidation Proceeds Account prior to any change thereof.
(f) The Trustee shall establish, prior to the Master Servicer
Remittance Date relating to any Due Period in which the Post-ARD Additional
Interest is received, and maintain the Class Y Sub-Account in the name of the
Trustee for the benefit of the Holders of the Class Y Certificates. The Class Y
Sub-Account shall be established and maintained as an Eligible Account or,
subject to Section 3.04(b), a subaccount of the Distribution Account. On or
before each Master Servicer Remittance Date, the Master Servicer shall remit to
the Trustee for deposit in the Class Y Sub-Account an amount equal to the
Post-ARD Additional Interest received by the Master Servicer during the related
Due Period. On each Distribution Date, the Trustee shall withdraw the Post-ARD
Additional Interest from the Class Y Sub-Account for distribution pursuant to
Section 4.01(k). Following the distribution of Post-ARD Additional Interest in
full to Holders of the Class Y Certificates, the Trustee shall terminate the
Class Y Sub-Account.
Section 3.04A Loan Combination Custodial Account.
(a) The Master Servicer shall establish and maintain, with respect
to each Serviced Loan Combination, one or more sub-accounts of a single account
(with respect to each Loan Combination, the "Loan Combination Custodial
Account") in which the amounts described in clauses (i) through (ix) below shall
be deposited and held in trust for the benefit of the related Loan Combination
Noteholders, as their interests may appear; provided that a Loan Combination
Custodial Account may be a sub-account of another Custodial Account. Each of the
Loan Combination Custodial Accounts shall be an Eligible Account or a subaccount
of an Eligible Account. The Master Servicer shall deposit or cause to be
deposited in the applicable Loan Combination Custodial Account, within one
Business Day of receipt (in the case of payments or other collections on such
Loan Combination) or as otherwise required hereunder, the following payments and
collections received or made by the Master Servicer or on its behalf with
respect to the related Loan Combination subsequent to the Cut-off Date (other
than in respect of principal and interest on such Loan Combination due and
payable on or before the Cut-off Date, which payments shall be held pursuant to
the terms of the related Co-Lender Agreement, and other than amounts required to
be deposited in the Defeasance Deposit Account):
(i) all payments on account of principal of the applicable Loan
Combination, including Principal Prepayments, and regardless of whether
those payments are made by the related Mortgagor or any related guarantor,
out of any related Reserve Funds maintained for such purpose, out of
collections on any related Defeasance Collateral or from any other source;
(ii) all payments on account of interest on the applicable Loan
Combination, including Default Interest, and regardless of whether those
payments are made by the related Mortgagor or any related guarantor, out
of any related Reserve Funds maintained for such purpose, out of
collections on any related Defeasance Collateral or from any other source;
(iii) all Prepayment Premiums, Yield Maintenance Charges and/or late
payment charges received in respect of the applicable Loan Combination;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of the applicable Loan Combination (other
than Liquidation Proceeds derived from the sale of any Mortgage Loans to
or through the related Subordinate Companion Loan Noteholder or the
repurchase of a Mortgage Loan by a Mortgage Loan Seller, which shall be
deposited directly into the Pool Custodial Account) (including any amounts
paid by a Mortgagor or received as Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds that represent recoveries for an Advance
(or interest thereon) that was previously reimbursed to the party that
made such Advance as either a Nonrecoverable Advance or as a
Workout-Delayed Reimbursement Amount);
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the applicable Loan Combination
Custodial Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
with respect to the applicable Loan Combination resulting from a
deductible clause in a blanket hazard policy;
(vii) any amounts required to be transferred from the related Loan
Combination REO Account pursuant to Section 3.17(c);
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by the related Mortgagor with respect to the applicable Loan
Combination specifically to cover items for which a Servicing Advance has
been made; and
(ix) any P&I Advances required to be made by the Master Servicer
with respect to a Loan Combination Trust Mortgage Loan in accordance with
Section 4.03A.
The foregoing requirements for deposit in the applicable Loan
Combination Custodial Account shall be exclusive. Notwithstanding the foregoing,
actual payments from the related Mortgagor in respect of all Loan Combinations
in the nature of Escrow Payments, Reserve Funds, assumption fees, assumption
application fees, funds representing such Mortgagor's payment of costs and
expenses associated with assumptions and defeasance, modification fees,
extension fees, charges for beneficiary statements or demands, amounts collected
for checks returned for insufficient funds and any similar fees not expressly
referred to in the prior paragraph need not be deposited by the Master Servicer
in the applicable Loan Combination Custodial Account. If the Master Servicer
shall deposit into a Loan Combination Custodial Account any amount not required
to be deposited therein, it may at any time withdraw such amount from such Loan
Combination Custodial Account, any provision herein to the contrary
notwithstanding. The Master Servicer shall promptly deliver to the Special
Servicer, as additional special servicing compensation in accordance with
Section 3.11(c), all assumption fees and assumption application fees (or the
applicable portions thereof) and other transaction fees received by the Master
Servicer with respect to all Loan Combinations, to which the Special Servicer is
entitled pursuant to such section, upon receipt of a written statement of a
Servicing Officer of the Special Servicer describing the item and amount (unless
pursuant to this Agreement it is otherwise clear that the Special Servicer is
entitled to such amounts, in which case a written statement is not required).
Each Loan Combination Custodial Account shall be maintained as a segregated
account, or a subaccount of another Custodial Account separate and apart from
trust funds created for mortgage-backed securities of other series and the other
accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) above with respect to a Loan Combination, the Special Servicer
shall promptly, but in no event later than one Business Day after receipt, remit
such amounts to the Master Servicer for deposit into the related Loan
Combination Custodial Account in accordance with the second preceding paragraph,
unless the Special Servicer determines, consistent with the Servicing Standard,
that a particular item should not be deposited because of a restrictive
endorsement or other appropriate reason. With respect to any such amounts paid
by check to the order of the Special Servicer, the Special Servicer shall
endorse such check to the order of the Master Servicer, unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item cannot be so endorsed and delivered because of a restrictive endorsement or
other appropriate reason. Any such amounts received by the Special Servicer with
respect to an REO Property that relates to any Loan Combination shall initially
be deposited by the Special Servicer into the related REO Account and thereafter
remitted to the Master Servicer for deposit into the related Loan Combination
Custodial Account, all in accordance with Section 3.17(c).
(b) If and when the related Mortgagor elects to defease a Serviced
Loan Combination, the provisions of the last paragraph of Section 3.04(a)
relating to the Defeasance Deposit Account shall apply.
(c) The Master Servicer shall give written notice to the Trustee,
the related Companion Loan Noteholders and the Special Servicer of the location
of the related Loan Combination Custodial Account when first established and of
the new location of such Custodial Account prior to any change thereof.
Section 3.05 Permitted Withdrawals From the Pool Custodial Account,
the Distribution Account, the Interest Reserve Account and the Excess
Liquidation Proceeds Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Pool Custodial Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Distribution Account
the amounts required to be so deposited pursuant to the first paragraph of
Section 3.04(b), and any amounts that may be applied to make P&I Advances
pursuant to Section 4.03(a);
(ii) to reimburse the Trustee and itself, in that order, for
xxxxxxxxxxxx X&X Advances made thereby with respect to the Mortgage Pool,
as applicable (excluding any P&I Advances made with respect to any
Mortgage Loan that is part of a Serviced Loan Combination), the Trustee's
and Master Servicer's, as the case may be, respective rights to
reimbursement pursuant to this clause (ii) with respect to any such P&I
Advance being limited to amounts on deposit in the Pool Custodial Account
that represent Late Collections of interest and principal (net of the
related Master Servicing Fees and any related Workout Fees or Liquidation
Fees) received in respect of the particular Mortgage Loan or REO Mortgage
Loan as to which such P&I Advance was made; provided, however, that if any
P&I Advance that was made with respect to the Mortgage Pool (including any
Mortgage Loans that are part of a Serviced Loan Combination and any
related REO Loans) becomes a Workout-Delayed Reimbursement Amount, then
such P&I Advance shall thereafter be reimbursed from the portion of
general collections and recoveries on or in respect of all of the Mortgage
Loans and REO Properties on deposit in the Pool Custodial Account from
time to time that represent collections or recoveries of principal to the
extent provided in clause (vii) below until such Advance becomes a
Nonrecoverable Advance;
(iii) to pay (A) to itself earned and unpaid Master Servicing Fees
with respect to the Mortgage Pool (exclusive of the Serviced Loan
Combination Trust Mortgage Loans and any related REO Mortgage Loans), the
Master Servicer's right to payment pursuant to this clause (iii)(A) with
respect to any such Master Servicing Fees being limited to amounts on
deposit in the Pool Custodial Account or REO Mortgage Loan as to which
such Master Servicing Fees were earned, and (B) to itself, out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account,
any Master Servicing Fee earned in respect of any Mortgage Loan or REO
Mortgage Loan (including any Serviced Combination Trust Mortgage Loans
and/or any related REO Mortgage Loans, to the extent not paid from the
related Loan Combination Custodial Account pursuant to Section 3.05A that
remains unpaid after the application of clause (A) above following a Final
Recovery Determination made with respect to such Mortgage Loan or the
related REO Property and the deposit into the Pool Custodial Account of
all amounts received in connection with such Final Recovery Determination;
(iv) to pay to the Special Servicer, out of general collections on
the Mortgage Pool on deposit in the Pool Custodial Account, earned and
unpaid Special Servicing Fees in respect of each Specially Serviced
Mortgage Loan and REO Mortgage Loan (including the Loan Combination Trust
Mortgage Loans and/or any related REO Mortgage Loans, to the extent not
paid from the related Loan Combination Custodial Account pursuant to
Section 3.05A);
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) any earned and unpaid Workout Fees and Liquidation Fees
in respect of each Specially Serviced Mortgage Loan, Corrected Mortgage
Loan and/or REO Mortgage Loan (including the Loan Combination Trust
Mortgage Loans and/or any related REO Mortgage Loans, to the extent not
paid from the related Loan Combination Custodial Account pursuant to
Section 3.05A), as applicable, in the amounts and from the sources
specified in Section 3.11(b);
(vi) to reimburse the Trustee, itself and the Special Servicer, in
that order, for any unreimbursed Servicing Advances made thereby with
respect to any Serviced Loan or Serviced REO Property, as applicable
(other than the Loan Combination Trust Mortgage Loans and/or any related
REO Properties), the Trustee's, the Master Servicer's and the Special
Servicer's respective rights to reimbursement pursuant to this clause (vi)
with respect to any Servicing Advance being limited to amounts on deposit
in the Pool Custodial Account that represent payments made by the related
Mortgagor to cover the item for which such Servicing Advance was made, and
to amounts on deposit in the Pool Custodial Account that represent
Liquidation Proceeds (net of Liquidation Fees or Workout Fees payable
therefrom), Condemnation Proceeds, Insurance Proceeds and, if applicable,
REO Revenues received in respect of the particular Mortgage Loan or REO
Property as to which such Servicing Advance was made; provided, however,
that if such Servicing Advance becomes a Workout-Delayed Reimbursement
Amount, then such Servicing Advance shall thereafter be reimbursed from
the portion of general collections and recoveries on or in respect of all
of the Mortgage Loans and REO Properties on deposit in the Pool Custodial
Account from time to time that represent collections or recoveries of
principal to the extent provided in clause (vii) below until such Advance
becomes a Nonrecoverable Advance;
(vii) to reimburse the Trustee, itself and the Special Servicer, in
that order, out of general collections on the Mortgage Pool on deposit in
the Pool Custodial Account, first from such amounts that are allocated to
the Sub-Pool to which the subject Loan belongs and second from any other
amounts on deposit in the Pool Custodial Account for (1) any unreimbursed
Advances that have been or are determined to be Nonrecoverable Advances
and (2) for any Workout-Delayed Reimbursement Amounts, such reimbursement
to be made out of the principal portion of the general collections on the
Mortgage Loans and REO Properties, net of such amounts being reimbursed
pursuant to clause (1) above, until such Workout-Delayed Reimbursement
Amount becomes a Nonrecoverable Advance, in which event it shall be
reimbursable pursuant to clause (1) above; provided that the amounts
referred to in clause (1) above may be withdrawn over time in accordance
with Section 3.05(e);
(viii) to pay the Trustee, itself and the Special Servicer, in that
order, any interest accrued and payable in accordance with Section
3.12(b), 4.03(d) or 4.03A(d), as applicable, on any Advance made thereby
with respect to the Mortgage Pool (exclusive of the Serviced Loan
Combination Trust Mortgage Loans and any related REO Mortgage Loans) the
Trustee's, the Master Servicer's and the Special Servicer's respective
rights to payment pursuant to this clause (viii) with respect to interest
on any such Advance being limited to amounts on deposit in the Pool
Custodial Account that represent Default Charges collected on or in
respect of the related Mortgage Loan during the Collection Period in which
such Advance is reimbursed, as and to the extent contemplated by Sections
3.27(a) and (b);
(ix) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, the Trustee, itself and the Special
Servicer, if applicable, in that order, any interest accrued and payable
in accordance with Section 3.12(b), 4.03(d) or 4.03A, as applicable, on
any Advance (including any Advance that constitutes a Workout-Delayed
Reimbursement Amount) made thereby with respect to the Mortgage Pool, but
only to the extent that such Advance has been reimbursed and the interest
thereon is not otherwise payable as contemplated by the immediately
preceding clause (viii) or Section 3.05A, as applicable;
(x) to pay, out of amounts on deposit in the Pool Custodial Account
that represent Default Charges collected on or in respect of the related
Mortgage Loan and not otherwise applied as contemplated by clause (viii)
above, any unpaid expense (other than interest accrued on Advances, which
is payable pursuant to clause (viii) above, and other than Special
Servicing Fees, Liquidation Fees and Workout Fees) incurred with respect
to any Mortgage Loan or REO Mortgage Loan that, if paid from a source
other than Default Charges, would constitute an Additional Trust Fund
Expense, as and to the extent contemplated by Sections 3.27(a) and (b);
(xi) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, (A) costs and expenses incurred by
the Trust Fund pursuant to Section 3.09(b) (other than the costs of
environmental testing, which are to be covered by, and reimbursable as, a
Servicing Advance), (B) the cost of an independent appraiser or other
expert in real estate matters retained pursuant to Sections 3.12(d),
3.19(g), or 4.03(c), and (C) the fees of any Independent Contractor
retained with respect to any related REO Property pursuant to Section
3.18(d) (to the extent that it has not paid itself such fees prior to
remitting collections on such REO Property to the Special Servicer);
provided that, in the case of a Mortgaged Property with respect to a
Serviced Loan Combination, any payment pursuant to this clause (xi) is to
be made only to the extent that it would not ultimately be payable out of
collections on or in respect of the related Serviced Loan Combination;
(xii) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (A) interest and investment income earned
in respect of amounts held in the Pool Custodial Account as provided in
Section 3.06(b), but only to the extent of the Net Investment Earnings
with respect to the Pool Custodial Account for any Collection Period, (B)
Prepayment Interest Excesses collected on the Mortgage Pool (exclusive of
the Serviced Loan Combination Trust Mortgage Loans) and (C) Net Default
Charges (after application pursuant to Sections 3.27(a) and (b)) actually
collected that accrued in respect of Mortgage Loans (other than the
Serviced Loan Combination Trust Mortgage Loans) that are not Specially
Serviced Mortgage Loans, and to pay the Special Servicer, as additional
special servicing compensation in accordance with Section 3.11(c), Net
Default Charges (after application pursuant to Sections 3.27(a) and (b))
actually collected that accrued in respect of Specially Serviced Mortgage
Loans and REO Mortgage Loans (other than the Serviced Loan Combination
Trust Mortgage Loans and/or any related REO Mortgage Loans);
(xiii) to pay itself, the Special Servicer, the Depositor, or any of
their respective members, managers, directors, officers, employees and
agents, as the case may be, out of general collections on the Mortgage
Pool on deposit in the Pool Custodial Account, any amounts payable to any
such Person pursuant to Section 6.03; provided that such payment does not
related solely to the Companion Loans;
(xiv) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, for (A) the cost of the Opinion of
Counsel contemplated by Section 12.02(a), (B) the cost of an Opinion of
Counsel contemplated by Section 12.01(a) or 12.01(c) in connection with
any amendment to this Agreement requested by the Master Servicer or the
Special Servicer that protects or is in furtherance of the rights and
interests of Certificateholders, and (C) the cost of recording this
Agreement in accordance with Section 12.02(a);
(xv) to pay itself, the Special Servicer, any Controlling Class
Certificateholder or any other Person, as the case may be, with respect to
each Mortgage Loan, if any, previously purchased by such Person pursuant
to this Agreement, all amounts received thereon subsequent to the date of
purchase that have been deposited in the Pool Custodial Account;
(xvi) to pay, in accordance with Section 3.12(e), out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account,
any servicing expenses, that would, if advanced, constitute Nonrecoverable
Servicing Advances (including servicing expenses that relate to, and are
allocable to, any related REO Loan, but excluding servicing expenses that
relate solely to the Companion Loans or any related REO Loans), to the
extent no funds are available therefor in the related Loan Combination
Custodial Account;
(xvii) on each Master Servicer Remittance Date, to transfer Excess
Liquidation Proceeds in respect of the Mortgage Pool to the Trustee, for
deposit in the Excess Liquidation Proceeds Account, in accordance with
Section 3.04(d);
(xviii) [reserved];
(xix) to remit the Post-ARD Additional Interest to the Trustee for
deposit in the Class Y Sub-Account pursuant to Section 3.04(f); and
(xx) to clear and terminate the Pool Custodial Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from the Pool Custodial Account pursuant to clauses (ii) through
(xviii) above and any related expenses shall be allocable to the Lower-Tier
REMIC.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer) or the Trustee from
the Pool Custodial Account, amounts permitted to be paid to the Special Servicer
(or to any such third party contractor) or the Trustee therefrom promptly upon
receipt of a written statement of a Servicing Officer of the Special Servicer or
of a Responsible Officer of the Trustee describing the item and amount to which
the Special Servicer (or such third party contractor) or the Trustee, as
applicable, is entitled (unless such payment to the Special Servicer or the
Trustee (for example, the Trustee Fee), as the case may be, is clearly required
pursuant to this Agreement, in which case a written statement is not required).
The Master Servicer may rely conclusively on any such written statement and
shall have no duty to re-calculate the amounts stated therein.
The Special Servicer shall keep and maintain separate accounting for
each Specially Serviced Mortgage Loan and REO Property, on a loan-by-loan basis,
for the purpose of justifying any request for withdrawal from the Pool Custodial
Account, and such expenses shall be allocable to the Lower-Tier REMIC. With
respect to each Mortgage Loan for which it makes an Advance, the Trustee shall
keep and maintain separate accounting, on a loan-by-loan basis, for the purpose
of justifying any request for withdrawal from the Pool Custodial Account for
reimbursements of Advances or interest thereon.
(b) Promptly on each Distribution Date, the Trustee shall be deemed
to withdraw from the Lower-Tier Distribution Account and deposit in the
Upper-Tier Distribution Account an aggregate amount of immediately available
funds equal to the Lower-Tier Distribution Amount, and the amount of any Net
Prepayment Consideration for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Section 4.01(j). The Trustee
may, from time to time, make withdrawals from the Distribution Account (which in
the case of clauses (ii) through (vii) shall be deemed to have been withdrawn
from the Lower-Tier Distribution Account for any of the following purposes (in
no particular order of priority):
(i) [reserved]
(ii) to pay (A) the Trustee or any of its respective directors,
officers, employees and agents, as the case may be, out of general
collections on the Mortgage Loans on deposit in the Distribution Account,
any amounts payable or reimbursable to any such Person pursuant to Section
7.01(b) and/or Section 8.05, as applicable, and (B) as and when
contemplated by Section 8.08, the cost of the Trustee's transferring
Mortgage Files and other documents to a successor after being terminated
by Certificateholders pursuant to Section 8.07(c) without cause to pay, as
additional compensation, interest and investment income, if any, earned in
respect of amounts held in the Distribution Account as provided in Section
3.06, but only to the extent of the Net Investment Earnings with respect
to such account for the related Distribution Date;
(iii) to pay, out of general collections on the Mortgage Loans on
deposit in the Distribution Account, for the cost of the Opinions of
Counsel sought by the Trustee or the Tax Administrator (A) as provided in
clause (iv) of the definition of "Disqualified Organization," (B) as
contemplated by Section 10.01(i), or (C) as contemplated by Section
12.01(a) or 12.01(c) in connection with any amendment to this Agreement
requested by the Trustee which amendment is in furtherance of the rights
and interests of Certificateholders;
(iv) to pay, out of general collections on the Mortgage Loans on
deposit in the Distribution Account, any and all federal, state and local
taxes imposed on the REMIC Pools or on the assets or transactions of the
REMIC Pools, together with all incidental costs and expenses, to the
extent none of the Trustee, the Tax Administrator, the Master Servicer or
the Special Servicer is liable therefor pursuant to Section 10.01(j);
(v) to pay the Tax Administrator, out of general collections on the
Mortgage Loans on deposit in the Distribution Account, any amounts
reimbursable to it pursuant to Section 10.01(f);
(vi) to pay the Master Servicer any amounts deposited by the Master
Servicer in the Distribution Account in error;
(vii) to transfer Interest Reserve Amounts in respect of the
Interest Reserve Mortgage Loans and any Interest Reserve REO Mortgage
Loans from the Distribution Account to the Interest Reserve Account as and
when required by Section 3.04(c); and
(viii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
On or prior to a Distribution Date, the Trustee shall be entitled to
withdraw amounts that are payable or reimbursable as set forth in clauses (ii)
through (vii) above from the Distribution Account (which will be deemed to be
withdrawn from the Lower-Tier Distribution Account, or in the case of clauses
(iv), (vi) or (vii), from the related Loan REMIC Distribution Account, if
applicable) prior to making distributions to Certificateholders on such
Distribution Date.
(c) On each Master Servicer Remittance Date in March (commencing in
March 2008 (or February, if the related Distribution Date is the Final
Distribution Date)), the Trustee shall withdraw from the Interest Reserve
Account and deposit in the Lower-Tier Distribution Account, as applicable, all
Interest Reserve Amounts that have been deposited in the Interest Reserve
Account in respect of the Interest Reserve Mortgage Loans and any Interest
Reserve REO Mortgage Loans during February and/or January, as applicable, of the
same year in accordance with Section 3.04(c).
(d) On each Master Servicer Remittance Date, the Trustee shall
withdraw from the Excess Liquidation Proceeds Account and deposit in the
Lower-Tier Distribution Account, for distribution on the following Distribution
Date, an amount equal to the lesser of (i) the entire amount, if any, then on
deposit in the Excess Liquidation Proceeds Account and (ii) the excess, if any,
of the aggregate amount distributable with respect to the Regular Interest
Certificates on such Distribution Date pursuant to Sections 4.01(a) and 4.01(b),
over the Available Distribution Amount for such Distribution Date (calculated
without regard to such transfer from the Excess Liquidation Proceeds Account to
the Distribution Account); provided that on the Master Servicer Remittance Date
immediately prior to the Final Distribution Date, the Trustee shall withdraw
from the Excess Liquidation Proceeds Account and deposit in the Lower-Tier
Distribution Account, for distribution on such Distribution Date, any and all
amounts then on deposit in the Excess Liquidation Proceeds Account.
(e) Notwithstanding anything to the contrary contained herein, upon
a determination that a previously made Advance is a Nonrecoverable Advance,
instead of obtaining reimbursement out of general collections on the Mortgage
Pool on deposit in the Pool Custodial Account immediately as contemplated by
Section 3.05(a)(vii), the Master Servicer, the Special Servicer or the Trustee,
as applicable, may, in its sole discretion, elect to obtain reimbursement for
such Nonrecoverable Advance over time and the unreimbursed portion of such
Advance will accrue interest at the Prime Rate. At any time after such a
determination to obtain reimbursement over time (not to exceed a period longer
than twelve (12) months), the Master Servicer, the Special Servicer or the
Trustee, as applicable, may, in its sole discretion, decide to obtain
reimbursement immediately. The fact that a decision to recover such
Nonrecoverable Advances over time, or not to do so, benefits some Classes of
Certificateholders to the detriment of other Classes shall not constitute a
violation of the Servicing Standard by the Master Servicer or the Special
Servicer or be deemed a breach of any fiduciary duty of the Trustee to
Certificateholders by the Trustee, or a breach of a contractual obligation by
the Master Servicer, the Special Servicer or the Trustee. The Master Servicer's,
the Special Servicer's or the Trustee's agreement to defer reimbursements of
Nonrecoverable Advances as set forth in this Section 3.05(e) is an accommodation
to the Certificateholders and is not to be construed as on obligation on the
part of the Master Servicer, the Special Servicer or the Trustee or a right of
the Certificateholders.
To the extent a Nonrecoverable Advance with respect to a Mortgage
Loan is required to be reimbursed from general collections on the Mortgage Loans
pursuant to clauses (vi) or (vii) of Section 3.05(a), such reimbursement shall
be allocated first, to the principal portion of the general collections
available on the Mortgage Loans. To the extent a Workout-Delayed Reimbursement
Amount is reimbursed pursuant to clause (vii) of Section 3.05(a), such
reimbursement shall be limited to an amount equal to, and be allocable solely
to, principal collections available on the Mortgage Loans, net of amounts paid
pursuant to the previous sentence until it becomes a Nonrecoverable Advance.
The Master Servicer shall give each Rating Agency at least fifteen
(15) days' notice prior to any reimbursement to it of Nonrecoverable Advances
from amounts in the Pool Custodial Account allocable to interest on the Mortgage
Loans unless (1) the Master Servicer determines in its sole discretion that
waiting fifteen (15) days after such a notice could jeopardize the Master
Servicer's ability to recover Nonrecoverable Advances, (2) changed circumstances
or new or different information becomes known to the Master Servicer that could
affect or cause a determination of whether any Advance is a Nonrecoverable
Advance, whether to defer reimbursement of a Nonrecoverable Advance or the
determination in clause (1) above, or (3) the Master Servicer has not timely
received from the Trustee information requested by the Master Servicer to
consider in determining whether to defer reimbursement of a Nonrecoverable
Advance; provided that, if clause (1), (2) or (3) apply, the Master Servicer
shall give each Rating Agency notice of an anticipated reimbursement to it of
Nonrecoverable Advances from amounts in any Custodial Account allocable to
interest on the Mortgage Loans as soon as reasonably practicable in such
circumstances. The Master Servicer shall have no liability for any loss,
liability or expense resulting from any notice provided to each Rating Agency
contemplated by the immediately preceding sentence.
Section 3.05A. Permitted Withdrawals From the Loan Combination
Custodial Account.
The Master Servicer may, from time to time, make withdrawals from
the applicable Loan Combination Custodial Account, for any of the following
purposes (the order set forth below not constituting an order of priority for
such withdrawals), such amounts being allocated among the Loans in the Loan
Combination as provided in the related Co-Lender Agreement:
(i) to make remittances each month on or before the Master Servicer
Remittance Date therein, in an aggregate amount of immediately available
funds equal to the applicable Loan Combination Remittance Amount, to the
Trust (as holder of the Loan Combination Trust Mortgage Loans or any
related REO Mortgage Loans) and the related Companion Loan Noteholder, in
accordance with the applicable provisions of the related Co-Lender
Agreement, as applicable, such remittances to the Trust to be made into
the Pool Custodial Account;
(ii) to reimburse, first, the Trustee, and then, itself, in that
order, for xxxxxxxxxxxx X&X Advances made by such party (with its own
funds) with respect to the related Loan Combination Trust Mortgage Loan,
any such party's rights to reimbursement pursuant to this clause (ii) with
respect to any such P&I Advance being limited to amounts on deposit in the
applicable Loan Combination Custodial Account that represent late
collections of interest and principal (net of the related Master Servicing
Fees and any related Workout Fees or Liquidation Fees) received in respect
of the particular Loan Combination Trust Mortgage Loan (as allocable
thereto pursuant to the related Loan documents and the related Co-Lender
Agreement);
(iii) to pay to itself earned and unpaid Master Servicing Fees with
respect to the related Loan Combination (or any successor REO Loans), the
Master Servicer's respective rights to payment pursuant to this clause
(iii) with respect to any Loan (or any successor REO Loan) in such Loan
Combination being limited to amounts on deposit in the related Loan
Combination Custodial Account that were received on or in respect of such
Loan (or successor REO Loan) and are allocable as a recovery of interest
thereon;
(iv) to reimburse, first, the Trustee, and then, itself, in that
order, for any xxxxxxxxxxxx X&X Advances made by such party (with its own
funds) with respect to the related Loan Combination Trust Mortgage Loan
that such party has determined are Nonrecoverable Advances, such party's
rights to reimbursement pursuant to this clause (iv) with respect to any
such P&I Advance being limited to amounts on deposit in the applicable
Loan Combination Custodial Account that were received in respect of the
particular Loan Combination Trust Mortgage Loan (as allocable thereto
pursuant to the related Loan documents and the related Co-Lender
Agreement), in the Loan Combination as to which such P&I Advance was made;
(v) to pay to the Special Servicer earned and unpaid Special
Servicing Fees in respect of the related Loan Combination while any Loan
in such Loan Combination constitutes a Specially Serviced Mortgage Loan
and after the Loan Combination Mortgaged Properties become REO Properties;
(vi) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Workout Fees and Liquidation Fees in
respect of the related Loan Combination, in the amounts and from the
sources specified in Section 3.11(b);
(vii) to reimburse first, the Trustee, second, itself and last, the
Special Servicer, in that order, for any unreimbursed Servicing Advances
made thereby with respect to the related Loan Combination or any related
REO Properties, any such party's respective rights to reimbursement
pursuant to this clause (vii) with respect to any Servicing Advance being
limited to amounts on deposit in the applicable Loan Combination Custodial
Account that represent payments made by the related Mortgagor to cover the
item for which such Servicing Advance was made, and to amounts on deposit
in the related Loan Combination Custodial Account that represent
Liquidation Proceeds (net of Liquidation Fees payable therefrom),
Condemnation Proceeds, Insurance Proceeds and, if applicable, REO Revenues
received in respect of the related Loan Combination or related Loan
Combination REO Properties as to which such Servicing Advance was made;
(viii) to reimburse, first, the Trustee, second, itself and last,
the Special Servicer, in that order, out of general collections in the
Loan Combination Custodial Account, for any unreimbursed Servicing
Advances made thereby with respect to the related Loan Combination or any
related REO Properties that such party has determined are Nonrecoverable
Advances, such amounts being allocated among the Loans in the Loan
Combination as provided in the related Co-Lender Agreement; provided that
such amounts may be withdrawn over time in accordance with Section
3.05A(b);
(ix) to pay first, the Trustee, second, itself and last, the Special
Servicer, in that order, any interest accrued on any Advance made thereby
with respect to the Loans in the related Loan Combination or with respect
to the related Loan Combination Mortgaged Properties, any such party's
respective right to payment pursuant to this clause (ix) with respect to
interest on any Advance being permitted to be satisfied (A) first, out of
any amounts on deposit in the applicable Loan Combination Custodial
Account that represent Default Charges collected during the same
Collection Period in which such Advance is reimbursed, as and to the
extent contemplated by Section 3.27(c), and (B) second, to the extent that
the Default Charges described in the immediately preceding clause (A) are
insufficient, but only if such Advance is being reimbursed at the same
time or if such Advance has been previously reimbursed, out of any amounts
on deposit in the applicable Loan Combination Custodial Account that
represent any other collections on or in respect of the related Loan
Combination;
(x) to pay for (A) costs and expenses incurred with respect to the
Loan Combination Mortgaged Properties pursuant to Section 3.09(c) (other
than the costs of environmental testing, which are to be covered by, and
reimbursable as, a Servicing Advance), (B) the costs and expenses of
obtaining appraisals of the Loan Combination Mortgaged Properties pursuant
to Section 3.12(d) or 4.03A(c), as applicable, and (C) the fees of any
Independent Contractor retained with respect to any related Loan
Combination REO Property pursuant to Section 3.18(d) (to the extent that
it has not paid itself such fees prior to remitting collections on such
REO Property to the Special Servicer);
(xi) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (A) interest and investment income earned
in respect of amounts held in the applicable Loan Combination Custodial
Account as provided in Section 3.06(b), but only to the extent of the Net
Investment Earnings with respect to the applicable Loan Combination
Custodial Account for any Collection Period and (B) Net Default Charges
(after application pursuant to Section 3.27(c)) actually collected that
accrued in respect of the Companion Loans during a period that they were
not Specially Serviced Mortgage Loans and the Loan Combination Mortgaged
Properties were not REO Properties, and to pay the Special Servicer, as
additional special servicing compensation in accordance with Section
3.11(c), Net Default Charges (after application pursuant to Section
3.27(c)) actually collected that accrued in respect of the Companion Loans
during a period that they were Specially Serviced Mortgage Loans or the
Loan Combination Mortgaged Properties were REO Properties;
(xii) to pay itself, the Special Servicer or any of their respective
members, managers, directors, officers, employees and agents, as the case
may be, any amounts payable to any such Person pursuant to Section 6.03,
to the extent such amounts relate to the related Loan Combination;
(xiii) to pay for the cost of recording the Co-Lender Agreement and
any required opinion of counsel related thereto and, to the extent
applicable pursuant to Section 12.02, the allocable portion of the cost of
the Opinion of Counsel contemplated by Section 12.01 or 12.02, in
connection with any amendment to this Agreement requested by the Master
Servicer or the Special Servicer that protects or is in furtherance of the
rights and interests of the Certificateholders;
(xiv) to pay, in accordance with Section 3.12(e), out of collections
on the related Loan Combination on deposit in the related Loan Combination
Custodial Account, any servicing expenses with respect to the related
Loans, that would, if advanced, constitute Nonrecoverable Servicing
Advances (provided that servicing expenses that relate solely to a
Serviced Companion Loan or any related REO Loans will be paid solely from
funds allocable thereto);
(xv) to transfer to the Pool Custodial Account all amounts
representing Default Charges actually collected that accrued in respect of
the Loan Combination Trust Mortgage Loans or any successor REO Mortgage
Loans in respect of the Loan Combination Trust Mortgage Loans, to the
extent such Default Charges were not applied to offset interest on
Advances pursuant to clause (ix)(B) above (to be applied in accordance
with Sections 3.27(a) and (b)); and
(xvi) to clear and terminate the applicable Loan Combination
Custodial Account at the termination of this Agreement pursuant to Section
9.01.
The Master Servicer shall keep and maintain separate accounting
records in connection with each Loan Combination Custodial Account, including
but not limited to, any withdrawal from each Loan Combination Custodial Account,
pursuant to clauses (ii) through (xvi) above.
The Master Servicer shall pay to each of the Special Servicer (or to
third party contractors at the direction of the Special Servicer) and the
Trustee, as applicable, from the applicable Loan Combination Custodial Account,
amounts permitted to be paid thereto from such account promptly upon receipt of
a written statement of a Servicing Officer of the Special Servicer or a
Responsible Officer of the Trustee, as the case may be, describing the item and
amount to which the Special Servicer (or such third party contractor) or the
Trustee, as the case may be, is entitled (unless such payment to the Special
Servicer or the Trustee, as the case may be, is clearly required pursuant to
this Agreement, in which case a written statement is not required). The Master
Servicer may rely conclusively on any such written statement and shall have no
duty to re-calculate the amounts stated therein. The parties seeking payment
pursuant to this Section shall each keep and maintain separate accounting for
the purpose of justifying any request for withdrawal from each Loan Combination
Custodial Account, on a loan-by-loan basis.
In the event that the Master Servicer fails, on any Loan Combination
Remittance Date, to remit to the Companion Loan Noteholders any amount(s)
required to be so remitted to such Companion Loan Noteholders hereunder by such
date, the Master Servicer shall pay such Companion Loan Noteholders, for the
account of such Companion Loan Noteholders, interest, calculated at the Prime
Rate, on such amount(s) not timely remitted, from and including that Master
Servicer Remittance Date, to but not including the date of remittance.
Section 3.06 Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Defeasance Deposit Account, the Custodial Accounts, the
REO Accounts, the Distribution Account, the Interest Reserve Account and the
Excess Liquidation Proceeds Account.
(a) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Defeasance
Deposit Account or a Custodial Account (each, for purposes of this Section 3.06,
an "Investment Account"), the Special Servicer may direct in writing any
depository institution maintaining an REO Account and the Trustee may direct in
writing any depository institution maintaining the Distribution Account, the
Interest Reserve Account and the Excess Liquidation Proceeds Account and all
applicable sub-accounts (also, for purposes of this Section 3.06, an "Investment
Account"), to invest, or if it is such depository institution, may itself
invest, the funds held therein in one or more Permitted Investments bearing
interest or sold at a discount, and maturing, unless payable on demand, no later
than the Business Day immediately preceding the next succeeding date on which
such funds are required to be withdrawn from such account pursuant to this
Agreement; provided that in the case of any Servicing Account, any Reserve
Account or the Defeasance Deposit Account, such investment direction shall, in
addition, be subject to the related Mortgage Loan documents and applicable law.
All such Permitted Investments shall be held to maturity, unless payable on
demand. Any investment of funds in an Investment Account shall be made in the
name of the Trustee (in its capacity as such) and , in the case of a Permitted
Investment in any Investment Account solely related to a Loan Combination, the
related Companion Loan Noteholders. The Master Servicer (with respect to
Permitted Investments of amounts in the Servicing Accounts, the Reserve
Accounts, the Defeasance Deposit Account and the Custodial Accounts) or the
Special Servicer (with respect to Permitted Investments of amounts in the REO
Accounts), on behalf of the Trustee or the Trustee (with respect to the
Distribution Account, the Interest Reserve Account and the Excess Liquidation
Proceeds Account) and, in the case of any Investment Account solely related to a
Loan Combination, the related Companion Loan Noteholders, shall (i) be the
"entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is a
"certificated security," "uncertificated security" or "deposit account." For
purposes of this Section 3.06(a), (i) the terms "entitlement holder," "security
entitlement," "control" (except with respect to deposit accounts), "certificated
security" and "uncertificated security" shall have the meanings given such terms
in Revised Article 8 (1994 Revision) of the UCC, and the terms "control" (with
respect to deposit accounts) and "deposit account" shall have the meanings given
such terms in Revised Article 9 (1998 Revision) of the UCC, and (ii) "control"
of any Permitted Investment in any Investment Account by the Master Servicer,
the Special Servicer or the Trustee shall constitute "control" by a Person
designated by, and acting on behalf of, the Trustee and, in the case of any
Investment Account solely related to a Loan Combination, the related Companion
Loan Noteholders, for purposes of Revised Article 8 (1994 Revision) of the UCC
or Revised Article 9 (1998 Revision) of the UCC, as applicable. If amounts on
deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Master Servicer (in the case of the Custodial
Accounts, the Servicing Accounts, the Reserve Accounts and the Defeasance
Deposit Account), the Special Servicer (in the case of the REO Accounts) or the
Trustee (in the case of the Distribution Account, the Interest Reserve Account
and the Excess Liquidation Proceeds Account) shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to at least
the lesser of (1) all amounts then payable thereunder and (2) the amount
required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Special Servicer or the Trustee,
as the case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Whether or not the Master Servicer directs (subject to Section
3.06(a)) the investment of funds in any of the Servicing Accounts, the Reserve
Accounts, the Defeasance Deposit Account or the Custodial Accounts, interest and
investment income realized on funds deposited therein, to the extent of the Net
Investment Earnings, if any, for each such Investment Account for each
Collection Period (and, in the case of Servicing Accounts, Reserve Accounts and
the Defeasance Deposit Account, to the extent not otherwise payable to
Mortgagors under applicable law or the related Mortgage Loan documents), shall
be for the sole and exclusive benefit of the Master Servicer and shall be
subject to its withdrawal in accordance with Section 3.03(a), 3.03(d), 3.04(a),
3.05(a) or 3.05A, as applicable. Whether or not the Special Servicer directs the
investment of funds in either of the REO Accounts, interest and investment
income realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for such Investment Account for each Collection Period, shall
be for the sole and exclusive benefit of the Special Servicer and shall be
subject to its withdrawal in accordance with Section 3.17(b). Whether or not the
Trustee directs the investment of funds in any of the Distribution Account, the
Interest Reserve Account and the Excess Liquidation Proceeds Account, or any
applicable sub-accounts, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
each such Investment Account for each Collection Period, shall be for the sole
and exclusive benefit of the Trustee and shall be subject to its withdrawal in
accordance with Section 3.05. If any loss shall be incurred in respect of any
Permitted Investment on deposit in any Investment Account, the Master Servicer
(in the case of (i) the Servicing Accounts, the Reserve Accounts and the
Defeasance Deposit Account (except to the extent that any investment of funds
with respect thereto is at the direction of a Mortgagor or for the benefit of
the Mortgagor in accordance with the related Mortgage Loan documents or
applicable law) and (ii) the Custodial Accounts), the Special Servicer (in the
case of the REO Accounts) and the Trustee (in the case of the Distribution
Account, the Interest Reserve Account and the Excess Liquidation Proceeds
Account and any applicable sub-accounts) shall promptly deposit therein from its
own funds, without right of reimbursement, no later than the end of the
Collection Period during which such loss was incurred, the amount of the Net
Investment Loss, if any, for such Investment Account for such Collection Period.
Notwithstanding any of the foregoing provisions of this Section 3.06, no party
shall be required under this Agreement to deposit any loss on a deposit of funds
in an Investment Account if such loss is incurred solely as a result of the
insolvency of the federal or state chartered depository institution or trust
company with which such deposit was maintained so long as such depository
institution or trust company satisfied the conditions set forth in the
definition of "Eligible Account" at the time such deposit was made and also as
of a date no earlier than thirty (30) days prior to the insolvency.
(c) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may, and subject to Section 8.02, upon the request of
Certificateholders entitled to a majority of the Voting Rights allocated to a
Class, shall, take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including the calculation
of the Available Distribution Amount, the Master Servicer Remittance Amount and
the Loan Combination Remittance Amount, the amounts so invested shall be deemed
to remain on deposit in such Investment Account.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage; Environmental Insurance.
(a) The Master Servicer shall, consistent with the Servicing
Standard, cause to be maintained for each Mortgaged Property that is not an REO
Property, all insurance coverage as is required under the related Mortgage
(except to the extent that the failure to maintain such insurance coverage is an
Acceptable Insurance Default); provided that, if and to the extent that any such
Mortgage permits the holder thereof any discretion (by way of consent, approval
or otherwise) as to the insurance coverage that the related Mortgagor is
required to maintain, the Master Servicer or Special Servicer, as the case may
be, shall exercise such discretion in a manner consistent with the Servicing
Standard; and provided, further, that, if and to the extent that a Mortgage so
permits, the Master Servicer or Special Servicer, as the case may be, shall use
reasonable efforts consistent with the Servicing Standard to require the related
Mortgagor to obtain the required insurance coverage from Qualified Insurers that
have a "claims paying ability" or "financial strength" rating, as applicable, of
at least "A" from S&P and "A" from Fitch (or, in the case of any such Rating
Agency, such lower rating as will not result in an Adverse Rating Event with
respect to the Certificates or any Companion Loan Securities, as evidenced in
writing by such Rating Agency); and provided, further, that the Master Servicer
shall cause to be maintained for any such Mortgaged Property from Qualified
Insurers that have a "claims paying ability" or "financial strength rating," as
applicable, of at least "A" from S&P and "A" from Fitch, any such insurance that
the related Mortgagor is required but fails to maintain, only to the extent that
the Trustee (as mortgagee of record on behalf of the Certificateholders and, in
the case of a Loan Combination Mortgaged Property, the related Companion Loan
Noteholders) has an insurable interest, and such insurance is available at a
commercially reasonable rate and the subject hazards are at the time commonly
insured against by prudent owners of properties similar to the Mortgaged
Property located in or around the region in which such Mortgaged Property is
located (or, in the case of all-risk insurance or other insurance that covers
acts of terrorism, the Master Servicer shall not be required to cause to be
maintained for any such Mortgaged Property any such insurance that the related
Mortgagor is required but fails to maintain if the Trustee (as mortgagee of
record on behalf of the Certificateholders and, in the case of a Loan
Combination Mortgaged Property, the related Companion Loan Noteholders) does not
have an insurable interest or the Special Servicer has determined (in its
reasonable judgment and in accordance with the Servicing Standard) that either
(i) such insurance is not available at a commercially reasonable rate and the
subject hazards are at the time commonly insured against by prudent owners of
properties similar to the Mortgaged Property located in or around the region in
which such Mortgaged Property is located or (ii) such insurance is not available
at any rate).
Any Controlling Class Certificateholder or, in the case of a Loan
Combination, the holder of the related Subordinate Companion Loan, may request
that earthquake insurance be secured for one or more Mortgaged Properties by the
related Mortgagor, to the extent such insurance may reasonably be obtained and
provided the related loan documents and applicable law give the mortgagee the
right to request such insurance coverage and such Mortgage Loan documents
require the Mortgagor to obtain earthquake insurance at the request of the
mortgagee.
Subject to Section 3.18(a), the Special Servicer, in accordance with
the Servicing Standard, shall also cause to be maintained for each Serviced REO
Property no less insurance coverage than was previously required of the
Mortgagor under the related Mortgage (including insurance that covers losses
arising from acts of terrorism); provided that such insurance is available at
commercially reasonable rates and the subject hazards are at the time commonly
insured against by prudent owners of properties similar to the REO Property
located in or around the region in which such REO Property is located (or, in
the case of all-risk insurance or other insurance that covers acts of terrorism,
such insurance is available at a commercially reasonable rate or the subject
hazards are at the time commonly insured against by prudent owners of properties
similar to the REO Property located in or around the region in which such REO
Property is located); and provided, further, that all such insurance shall be
obtained from Qualified Insurers that, if they are providing casualty insurance,
shall have a "claims paying ability" or "financial strength" rating, as
applicable, of at least "A" from S&P and "A" from Fitch (or, in the case of
either Rating Agency, such lower rating as will not result in an Adverse Rating
Event with respect to the Certificates or any Companion Loan Securities, as
evidenced in writing by such Rating Agency). All such insurance policies shall
contain (if they insure against loss to property and do not relate to an REO
Property) a "standard" mortgagee clause, with loss payable to the Master
Servicer (in the case of insurance maintained in respect of Mortgage Loans,
including Specially Serviced Mortgage Loans), or the Special Servicer (in the
case of insurance maintained in respect of REO Properties), on behalf of the
Trustee; and, in each case, such insurance shall be issued by a Qualified
Insurer. Any amounts collected by the Master Servicer or the Special Servicer
under any such policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property or REO Property or amounts to be
released to the related Mortgagor, in each case subject to the rights of any
tenants and ground lessors, as the case may be, and in each case in accordance
with the terms of the related Mortgage and the Servicing Standard) shall be
deposited in the applicable Custodial Account in accordance with Section 3.04(a)
or 3.04A, as the case may be, in the case of amounts received in respect of a
Mortgage Loan, or in the applicable REO Account in accordance with Section
3.17(b), in the case of amounts received in respect of an REO Property. Any cost
incurred by the Master Servicer or the Special Servicer in maintaining any such
insurance (including any earthquake insurance maintained at the request of a
Controlling Class Certificateholder or the related Companion Loan Noteholders
shall not, for purposes hereof, including calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Mortgage Loan or REO Loan, notwithstanding that the terms
of such loan so permit, but shall be recoverable by the Master Servicer and the
Special Servicer as a Servicing Advance.
(b) If either the Master Servicer or the Special Servicer shall
obtain and maintain, or cause to be obtained and maintained, a blanket policy or
forced placed policy insuring against hazard losses on all of the Serviced Loans
and/or Serviced REO Properties that it is required to service and administer,
then, to the extent such policy (i) is obtained from a Qualified Insurer having
(or whose obligations are guaranteed or backed, in writing, by an entity having)
a "claims paying ability" or "financial strength" rating, as applicable, of at
least "A" from S&P and "A" from Fitch (or, in the case of each Rating Agency,
such lower rating as will not result in an Adverse Rating Event with respect to
the Certificates or any Companion Loan Securities, as evidenced in writing by
such Rating Agency), and (ii) provides protection equivalent to the individual
policies otherwise required, the Master Servicer or the Special Servicer, as the
case may be, shall conclusively be deemed to have satisfied its obligation to
cause hazard insurance to be maintained on the related Mortgaged Properties
and/or REO Properties. Such blanket policy or forced placed policy may contain a
deductible clause (not in excess of a customary amount), in which case the
Master Servicer or the Special Servicer, as appropriate, shall, if there shall
not have been maintained on the related Mortgaged Property or REO Property an
individual hazard insurance policy complying with the requirements of Section
3.07(a), and there shall have been one or more losses that would have been
covered by such individual policy, promptly deposit into the applicable
Custodial Account from its own funds the amount not otherwise payable under the
blanket policy or forced placed policy because of the deductible clause therein,
to the extent that any such deductible exceeds the deductible limitation that
pertained to the related Mortgage Loan (or in the absence of any such deductible
limitation, the deductible limitation for an individual policy which is
consistent with the Servicing Standard). The Master Servicer or the Special
Servicer, as appropriate, shall prepare and present, on behalf of itself, the
Trustee and the Certificateholders and, in the case of a Loan Combination
Mortgaged Property, the related Companion Loan Noteholders, claims under any
such blanket policy or forced placed policy in a timely fashion in accordance
with the terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans and/or Serviced REO Properties are part of the Trust
Fund) keep in force with Qualified Insurers having (or whose obligations are
guaranteed or backed, in writing, by entities having) a "claims paying ability"
or "financial strength" rating, as applicable, of at least "A" from S&P and "A"
from Fitch (or, in the case of either Rating Agency, such lower rating as will
not result in an Adverse Rating Event with respect to the Certificates or any
Companion Loan Securities, as evidenced in writing by such Rating Agency), a
fidelity bond, which fidelity bond shall be in such form and amount as would
permit it to be a qualified Xxxxxx Xxx seller-servicer of multifamily mortgage
loans, or in such other form and amount as would not cause an Adverse Rating
Event with respect to the Certificates or any Companion Loan Securities (as
evidenced in writing from each Rating Agency). Each of the Master Servicer and
the Special Servicer shall be deemed to have complied with the foregoing
provision if an Affiliate thereof has such fidelity bond coverage and, by the
terms of such fidelity bond, the coverage afforded thereunder extends to the
Master Servicer or the Special Servicer, as the case may be.
Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans and/or Serviced REO Properties are part of the Trust
Fund) also keep in force with Qualified Insurers having (or whose obligations
are guaranteed or backed, in writing, by entities having) a "claims paying
ability" or "financial strength" rating, as applicable, of at least "A" from S&P
and "A" from Fitch (or, in the case of either Rating Agency, such lower rating
as will not result in an Adverse Rating Event with respect to the Certificates
or any Companion Loan Securities, as evidenced in writing by such Rating
Agency), a policy or policies of insurance covering loss occasioned by the
errors and omissions of its officers, employees and agents in connection with
its servicing obligations hereunder, which policy or policies shall be in such
form and amount as would permit it to be a qualified Xxxxxx Xxx seller-servicer
of multifamily mortgage loans, or in such other form and amount as would not
cause an Adverse Rating Event with respect to the Certificates or any Companion
Loan Securities (as evidenced in writing from each Rating Agency). Each of the
Master Servicer and the Special Servicer shall be deemed to have complied with
the foregoing provisions if an Affiliate thereof has such insurance and, by the
terms of such policy or policies, the coverage afforded thereunder extends to
the Master Servicer or the Special Servicer, as the case may be.
The Master Servicer shall cause each of its Sub-Servicers to
maintain or cause to be maintained a fidelity bond and an errors and omissions
insurance policy which satisfy the requirements for the fidelity bond and the
errors and omissions policy to be maintained by the Master Servicer to comply
with the foregoing.
(d) Within ninety (90) days of the Closing Date, with respect to
each Environmentally Insured Mortgage Loan, the Master Servicer shall notify the
insurer under the Environmental Insurance Policy and take all other action
necessary for the Trustee, on behalf of the Certificateholders, to be an insured
(and for the Master Servicer, on behalf of the Trust Fund, to make claims) under
the Environmental Insurance Policy. In the event that either of the Master
Servicer or the Special Servicer has actual knowledge of any event (an "Insured
Environmental Event") giving rise to a claim under any Environmental Insurance
Policy in respect of any Environmentally Insured Mortgage Loan, the Master
Servicer shall notify the Special Servicer if such Loan is a Specially Serviced
Mortgage Loan and the Special Servicer shall notify the Master Servicer in all
cases. Upon becoming aware of such Insured Environmental Event, the Master
Servicer, in the case of a Performing Serviced Loan, and the Special Servicer,
in the case of a Specially Serviced Mortgage Loan or an REO Property shall, in
accordance with the terms of such Environmental Insurance Policy and the
Servicing Standard, timely make a claim thereunder with the appropriate insurer
and shall take such other actions in accordance with the Servicing Standard
which are necessary under such Environmental Insurance Policy in order to
realize the full value thereof for the benefit of the Certificateholders. Any
legal fees, premiums or other out of pocket costs incurred in accordance with
the Servicing Standard in connection with any such claim under an Environmental
Insurance Policy shall be paid by the Master Servicer or the Special Servicer,
as applicable, and shall be reimbursable to it as a Servicing Advance. With
respect to each Environmental Insurance Policy in respect of an Environmentally
Insured Mortgage Loan, the Master Servicer (in the case of any such Loan that is
a Performing Serviced Loan) and the Special Servicer (in the case of any such
Loan that is a Specially Serviced Mortgage Loan or in the case of an REO
Property) shall each review and familiarize itself with the terms and conditions
relating to enforcement of claims and shall monitor the dates by which any claim
must be made or any action must be taken under such policy to realize the full
value thereof for the benefit of the Certificateholders in the event the Master
Servicer or Special Servicer, as applicable, has actual knowledge of an Insured
Environmental Event giving rise to a claim under such Environmental Insurance
Policy.
The Master Servicer (in the case of Performing Serviced Loans) and
the Special Servicer (in the case of Specially Serviced Mortgage Loans and REO
Properties) shall each abide by the terms and conditions precedent to payment of
claims under the Environmental Insurance Policies with respect to the
Environmentally Insured Mortgage Loans and take all such actions as may be
required to comply with the terms and provisions of such policies in order to
maintain such policies in full force and effect and to make claims thereunder.
In the event that either the Master Servicer or the Special Servicer
receives notice of a termination of any Environmental Insurance Policy with
respect to an Environmentally Insured Mortgage Loan, then the party receiving
such notice shall, within five (5) Business Days after receipt thereof, provide
written notice of such termination to the other such party and the Trustee. Upon
receipt of such notice, the Master Servicer, with respect to a Performing
Serviced Loan, or the Special Servicer, with respect to a Specially Serviced
Mortgage Loan or a Serviced REO Property, shall address such termination in
accordance with Section 3.07(a) in the same manner as it would the termination
of any other Insurance Policy required under the related Environmentally Insured
Mortgage Loan documents. Any legal fees, premiums or other out-of-pocket costs
incurred in accordance with the Servicing Standard in connection with a
resolution of such termination of an Environmental Insurance Policy shall be
paid by the Master Servicer and shall be reimbursable to it as a Servicing
Advance.
The Master Servicer (with respect to Performing Serviced Loans) and
the Special Servicer (with respect to Specially Serviced Mortgage Loans) shall
monitor the actions, and enforce the obligations, of the related Mortgagor under
each Environmentally Insured Mortgage Loan insofar as such actions/obligations
relate to (i) to the extent consistent with Section 3.07(a), the maintenance
(including, without limitation, any required renewal) of an Environmental
Insurance Policy with respect to the related Mortgaged Property or (ii)
environmental testing or remediation at the related Mortgaged Property.
Section 3.08 Enforcement of Due-on-Sale and Due on Encumbrance
Provisions.
(a) (i) Subject to Section 3.08(a)(ii) below, upon receipt of any
request of a waiver, consent or confirmation in respect of a due-on-sale or
due-on-encumbrance provision (including but not limited to transfers or
encumbrances subject to specified conditions), the Master Servicer, with respect
to Serviced Loans that are not Specially Serviced Mortgage Loans, and the
Special Servicer, with respect to Specially Serviced Mortgage Loans, shall
promptly analyze such request, including the preparation of written materials in
connection with such analysis, and will close the related transaction, subject
to the consent rights (if any) of each Companion Holder pursuant to the related
Co-Lender Agreement as provided in this Section 3.08. With respect to all
Serviced Loans (other than Specially Serviced Mortgage Loans), the Master
Servicer or, in the case of Specially Serviced Mortgage Loans, the Special
Servicer, on behalf of the Trustee as the mortgagee of record, shall, to the
extent permitted by applicable law, enforce the restrictions contained in the
related Mortgage on transfers or further encumbrances of the related Mortgaged
Property and on transfers of interests in the related Mortgagor, unless
following its receipt of a request in respect of a due-on-sale or
due-on-encumbrance provision the Master Servicer (with the written consent of
the Special Servicer, which consent shall be deemed given if not denied within
the later of (A) fifteen (15) Business Days after the Special Servicer's receipt
of the written recommendation of the Master Servicer for such action and any
additional information the Special Servicer may reasonably request (such
recommendation and information may be delivered in an electronic format
reasonably acceptable to the Master Servicer and the Special Servicer) and (B)
five (5) Business Days after the Controlling Class Representative's receipt of
the written recommendation of the Special Servicer for such action and any
additional information the Controlling Class Representative may reasonably
request for the analysis of such request or the Special Servicer (with the
written consent of the Controlling Class Representative, which consent shall be
deemed given if not denied within ten (10) Business Days after the Controlling
Class Representative's receipt of the written recommendation of the Special
Servicer for such action and any additional information the Controlling Class
Representative may reasonably request, of which date the Special Servicer shall
notify the Master Servicer), as applicable, has determined, consistent with the
Servicing Standard, that the waiver of such restrictions would be in accordance
with the Servicing Standard. Promptly after the Master Servicer (with the
written consent of the Special Servicer to the extent required in the preceding
sentence) or the Special Servicer (with the written consent of the Controlling
Class Representative to the extent required in the preceding sentence), as
applicable, has made any such determination, the Master Servicer or the Special
Servicer shall deliver to the Trustee, the Rating Agencies and each other party
hereto an Officer's Certificate setting forth the basis for such determination.
(ii) With respect to all Serviced Loans, neither the Master Servicer
nor the Special Servicer shall exercise (and the Special Servicer shall
not consent to) any waiver in respect of a due-on-encumbrance provision of
any Mortgage Loan (i) with respect to which the aggregate of the Stated
Principal Balance of such Mortgage Loan and the Stated Principal Balance
of all other Mortgage Loans that are cross-collateralized, cross-defaulted
or have been made to Mortgagors affiliated with the Mortgagor on such
Mortgage Loan, are one of the ten largest Mortgage Loans or concentrations
of Mortgage Loans, as of the date of such waiver request, without
receiving prior written confirmation from S&P and Fitch that such action
would not result in a downgrading, qualification or withdrawal of the
ratings then assigned to the Certificates or (ii) with respect to which
(a) the aggregate of the Stated Principal Balance of such Mortgage Loan
and the Stated Principal Balance of all other Mortgage Loans that are
cross-collateralized, cross-defaulted or have been made to Mortgagors
affiliated with the Mortgagor on such Mortgage Loan, is equal to or in
excess of $20,000,000, (b) the aggregate of the Stated Principal Balance
of such Mortgage Loan and the Stated Principal Balance of all other
Mortgage Loans that are cross-collateralized, cross-defaulted or have been
made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan,
are equal to or greater than 2% of the aggregate Stated Principal Balance
of all Mortgage Loans, (c) such Mortgage Loan is one of the ten largest
Mortgage Loans as of the date of the waiver (by Stated Principal Balance),
or (d) such Mortgage Loan has a loan-to-value ratio (calculated to include
the additional indebtedness secured by any encumbrance) that is equal to
or greater than 85% or a debt service coverage ratio (calculated to
include the additional debt from any encumbrance) of 1.20x or less,
without receiving a prior written confirmation from S&P and Fitch that
such action would not result in a downgrading, qualification or withdrawal
of the ratings then assigned to the Certificates. With respect to a waiver
of a due-on-sale provision, neither the Master Servicer nor the Special
Servicer shall waive any such provision without receiving prior written
confirmation from S&P and Fitch that such action would not result in a
downgrading, qualification or withdrawal of the ratings then assigned to
the Certificates; provided that, if the Mortgage Loan (a) does not have an
aggregate Stated Principal Balance (including the Stated Principal Balance
of all other Mortgage Loans that are cross-collateralized, cross-defaulted
or have been made to Mortgagors affiliated with the Mortgagor on such
Mortgage Loan) equal to or in excess of $35,000,000, (b) does not have an
aggregate Stated Principal Balance (including the Stated Principal Balance
of all other Mortgage Loans that are cross-collateralized, cross-defaulted
or have been made to Mortgagors affiliated with the Mortgagor on such
Mortgage Loan) equal to or greater than 5% of the aggregate Stated
Principal Balance of all Mortgage Loans and (c) is not one of the ten
largest Mortgage Loans as of the date of the waiver (by Stated Principal
Balance), the Master Servicer or the Special Servicer, as applicable, may
in accordance with the Servicing Standard waive such requirement without
confirmation by S&P; provided, further, that, if the Mortgage Loan is not
one of the ten largest Mortgage Loans (by Stated Principal Balance,
including all other Mortgage Loans that are cross-collateralized and
cross-defaulted with such Mortgage Loan) as of the date of the waiver, the
Master Servicer or Special Servicer, as applicable, may in accordance with
the Servicing Standard waive such requirement without approval by Fitch.
(iii) With respect to any Tenants-in-Common Loan, the Master
Servicer, on behalf of the Trustee as the mortgagee of record, shall
review (A) each request for a sale, transfer or syndication of any
Mortgagor's equity interests in the related Mortgagor and shall promptly
analyze such request, including, with regard to each proposed Mortgagor
transferee, the financial statements, credit information, organizational
documents and other written materials set forth on the applicable schedule
on Exhibit V hereto, to determine, in accordance with the Servicing
Standard, whether the requested sale, transfer or syndication meets the
applicable requirements and to obtain any consents required under any
related intercreditor agreement, and (B) the corresponding waiver of any
applicable due-on-sale or due-on-encumbrance provision and determine
whether approval of such waiver is consistent with the Servicing Standard.
Promptly after the Master Servicer has made any such affirmative
determination that such sale, transfer or syndication meets the applicable
requirements on Exhibit V, the Master Servicer shall deliver to the
Special Servicer, the Controlling Class Representative, the Trustee, the
Rating Agencies and each other party hereto, no later than 5 Business Days
prior to such sale, transfer or syndication, an Officer's Certificate in
the form of Exhibit W hereto setting forth notice of the approval or
disapproval and the basis for such determination, including evidence of
compliance with each of the requirements for such Mortgage Loan described
on Exhibit V; provided, further, it is understood and agreed that the
Master Servicer shall make reasonable efforts to deliver a complete
package 5 Business Days prior to such sale, transfer or syndication
(provided, however, any documents not delivered with the Officer's
Certificate will be delivered by the Master Servicer as soon as reasonably
possible, and the Special Servicer shall rely on the initial documents
sent in such package and the Officer's Certificate delivered by the Master
Servicer for its review), provided, further, that notwithstanding Section
3.11(b), with respect to any transfer approved pursuant to this Section
3.08(a)(iii), the Master Servicer and the Special Servicer shall be
entitled to certain of the fees as set forth on Exhibit V paid by the
Mortgagor, and the Master Servicer shall not waive any such fees without
the consent of the Special Servicer.
(b) Notwithstanding any other provisions of this Section 3.08, the
Master Servicer (with respect to Serviced Loans other than Specially Serviced
Mortgage Loans) (without the Special Servicer's consent) or the Special Servicer
(with respect to Specially Serviced Mortgage Loans) may grant, without any
Rating Agency confirmation, a Mortgagor's request for consent to subject the
related Mortgaged Property to an easement or right of way for utilities, access,
parking, public improvements or another purpose, and may consent to
subordination of the related Mortgage Loan to such easement or right of way
provided the Master Servicer or the Special Servicer, as applicable, shall have
determined in accordance with the Servicing Standard that such easement or right
of way shall not materially interfere with the then current use of the related
Mortgaged Property, or the security intended to be provided by such Mortgage,
the related Mortgagor's ability to repay the Mortgage Loan, or materially or
adversely affect the value of such Mortgaged Property or cause the Mortgage Loan
to cease to be a "qualified mortgage" for REMIC purposes.
Section 3.09 Realization Upon Defaulted Loans; Required Appraisals;
Appraisal Reduction Calculation.
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), 3.09(d) and 6.11, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Specially Serviced Mortgage Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, including
pursuant to Section 3.21; provided, however, that neither the Master Servicer
nor the Special Servicer shall, with respect to any ARD Loan after its
Anticipated Repayment Date, take any enforcement action with respect to the
payment of Post-ARD Additional Interest (other than the making of requests for
its collection), unless (i) the taking of an enforcement action with respect to
the payment of other amounts due under the ARD Loan is, in the good faith and
reasonable judgment of the Special Servicer, necessary, appropriate and
consistent with the Servicing Standard or (ii) all other amounts due under the
ARD Loan have been paid, the payment of such Post-ARD Additional Interest has
not been forgiven in accordance with Section 3.21 and, in the good faith and
reasonable judgment of the Special Servicer, the Liquidation Proceeds expected
to be recovered in connection with such enforcement action will cover the
anticipated costs of such enforcement action and, if applicable, any associated
interest accrued on Advances. Subject to Section 3.12(d) and Section 3.20(d),
the Special Servicer may, at its option, advance all costs and expenses incurred
by it in any such proceedings, and shall be entitled to reimbursement therefor
as provided in Section 3.05(a), Section 3.05A or Section 3.12(g) as applicable.
The Special Servicer shall be responsible, consistent with the Servicing
Standard, for determining whether to exercise any rights it may have under the
cross-collateralization and/or cross-default provisions of a
Cross-Collateralized Mortgage Loan. Nothing contained in this Section 3.09 shall
be construed so as to require the Special Servicer, on behalf of the
Certificateholders and, in the case of a Loan Combination Mortgaged Property, on
behalf of the related Companion Loan Noteholders, to make a bid on any Mortgaged
Property at a foreclosure sale or similar proceeding that is in excess of the
fair market value of such property, as determined by the Special Servicer in its
reasonable and good faith judgment taking into account the factors described in
Section 3.19 and the results of any appraisal obtained as provided below in this
Section 3.09, all such bids to be made in a manner consistent with the Servicing
Standard.
If and when the Master Servicer or the Special Servicer deems it
necessary and prudent for purposes of establishing the fair market value of any
Mortgaged Property securing a Specially Serviced Mortgage Loan, whether for
purposes of bidding at foreclosure or otherwise, it may have an appraisal
performed with respect to such property by an Independent Appraiser or other
expert in real estate matters, which appraisal shall take into account the
factors specified in Section 3.19, and the cost of which appraisal shall be
covered by, and be reimbursable as, a Servicing Advance; provided that if the
Master Servicer intends to obtain an appraisal in connection with the foregoing,
the Master Servicer shall so notify the Special Servicer and consult with the
Special Servicer regarding such appraisal.
If any Serviced Loan becomes a Required Appraisal Loan, then the
Special Servicer shall (i) obtain or conduct, as applicable, a Required
Appraisal within sixty (60) days of such Serviced Loan's becoming a Required
Appraisal Loan (unless a Required Appraisal was obtained or conducted, as
applicable, with respect to such Required Appraisal Loan within the prior twelve
(12) months and the Special Servicer reasonably believes, in accordance with the
Servicing Standard, that no material change has subsequently occurred with
respect to the related Mortgaged Property that would draw into question the
applicability of such Required Appraisal) and (ii) obtain or conduct, as
applicable, an update of the most recent Required Appraisal approximately twelve
(12) months following the most recent Required Appraisal or subsequent update
thereof for so long as such Serviced Loan or any successor REO Loan, as the case
may be, remains a Required Appraisal Loan. The Special Servicer shall deliver
copies of all such Required Appraisals and updated Required Appraisals to the
Trustee and the Master Servicer, in the case of a Loan Combination Mortgaged
Property, the related Companion Loan Noteholder, in each such case, promptly
following the Special Servicer's receipt of the subject appraisal, and to the
Controlling Class Representative upon request, and based thereon, the Special
Servicer shall calculate and notify (in writing) the Trustee, the Master
Servicer, the Controlling Class Representative and, with respect to a Loan
Combination, the related Companion Loan Noteholders, of any resulting Appraisal
Reduction Amount. Such calculations by the Special Servicer shall be subject to
review and confirmation by the Master Servicer, provided that the Master
Servicer may rely on any information provided by the Special Servicer.
The Special Servicer shall advance the cost of each such Required
Appraisal and updated Required Appraisal; provided, however, that such expense
will be subject to reimbursement to the Special Servicer as a Servicing Advance
out of the related Custodial Account pursuant to Section 3.05(a) or Section
3.05A.
Notwithstanding any other provision of this Agreement, no Mortgaged
Property shall be acquired by the Special Servicer on behalf of the
Certificateholders (and, in the case of a Loan Combination Mortgaged Property,
the related Companion Loan Noteholders) under such circumstances, in such manner
or pursuant to such terms as would, in the reasonable, good faith judgment of
the Special Servicer (exercised in accordance with the Servicing Standard), (i)
cause such Mortgaged Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code (unless the portion of such
Mortgaged Property that is not treated as "foreclosure property" and that is
held by the Lower-Tier REMIC at any given time constitutes not more than a de
minimis amount of the assets of the Lower-Tier REMIC within the meaning of
Treasury Regulations Section 1.860D-1(b)(3)(i) and (ii)), or (ii) except as
permitted by Section 3.18(a), subject the Trust Fund to the imposition of any
federal income taxes under the Code. Subject to the foregoing, however, a
Mortgaged Property may be acquired through a single member limited liability
company if the Special Servicer determines that such an action is appropriate to
protect the Trust and/or any related Companion Loan Noteholder from potential
liability.
In addition, the Special Servicer shall not acquire any personal
property pursuant to this Section 3.09 unless either:
(i) such personal property is, in the reasonable, good faith
judgment of the Special Servicer (exercised in accordance with the
Servicing Standard), incident to real property (within the meaning of
Section 856(e)(1) of the Code) so acquired by the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be covered by, and be reimbursable as, a
Servicing Advance) to the effect that the holding of such personal
property as part of the Trust Fund will not cause the imposition of a tax
on either REMIC Pool under the REMIC Provisions or cause either REMIC Pool
to fail to qualify as a REMIC at any time that any Certificate is
outstanding.
(b) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trustee (and, in the case of a Loan Combination Mortgaged Property, on behalf of
the related Companion Loan Noteholders), obtain title to a Mortgaged Property by
foreclosure, deed in lieu of foreclosure or otherwise, or take any other action
with respect to any Mortgaged Property, if, as a result of any such action, the
Trustee, on behalf of the Certificateholders (and, in the case of a Loan
Combination Mortgaged Property, on behalf of the related Companion Loan
Noteholders), could, in the reasonable, good faith judgment of the Special
Servicer, exercised in accordance with the Servicing Standard, be considered to
hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law (a "potentially responsible party"), unless such action is
consistent with Section 6.11 and the Special Servicer has previously determined
(as evidenced by an Officer's Certificate to such effect delivered to the
Trustee (and, in the case of a Loan Combination Mortgaged Property, on behalf of
the related Companion Loan Noteholders) that shall specify all of the bases for
such determination), in accordance with the Servicing Standard and based on an
Environmental Assessment of such Mortgaged Property performed by an Independent
Person, who regularly conducts Environmental Assessments, within six (6) months
prior to any such acquisition of title or other action (a copy of which
Environmental Assessment shall be delivered to the Trustee, the Master Servicer
and, in the case of a Loan Combination Mortgaged Property, the related Companion
Loan Noteholders), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would (taking into
account the coverage provided under any related Environmental Insurance
Policy) maximize the recovery on the related Serviced Loan to the
Certificateholders (as a collective whole) (or, if a Loan Combination is
involved, would maximize the recovery on such Loan Combination to the
Certificateholders and the related Companion Loan Noteholders (as a
collective whole)), on a present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders
(or, in the case of a Loan Combination, to Certificateholders and the
related Companion Loan Noteholders) to be performed at a rate (A) taking
into account the related Mortgage Rate (or, in the case of any Loan
Combination, at the weighted average of the Mortgage Rates for such Loan
Combination), in each case, and in the case of any ARD Loan or related REO
Loan after its Anticipated Repayment Date, net of the Additional Interest
Rate and (B) taking into account the risk of collection) to acquire title
to or possession of the Mortgaged Property and to take such actions as are
necessary to bring the Mortgaged Property into compliance therewith in all
material respects; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could reasonably be
expected to be required, that it would (taking into account the coverage
provided under any related Environmental Insurance Policy) maximize the
recovery on the related Serviced Loan to the Certificateholders (as a
collective whole) (or, if a Loan Combination is involved, would maximize
the recovery of such Loan Combination to the Certificateholders and the
related Companion Loan Noteholders (as a collective whole)), on a present
value basis (the relevant discounting of anticipated collections that will
be distributable to Certificateholders (or, in the case of a Loan
Combination, to Certificateholders and the related Companion Loan
Noteholders) to be performed at a rate (A) taking into account the related
Mortgage Rate (or, in the case of any Loan Combination, at the weighted
average of the Mortgage Rates for such Loan Combination), in each case,
and in the case of any ARD Loan or related REO Loan after its Anticipated
Repayment Date, net of the related Additional Interest Rate, and (B)
taking into account the risk of collection) to acquire title to or
possession of the Mortgaged Property and to take such actions with respect
to the affected Mortgaged Property.
The Special Servicer shall, in good faith, undertake reasonable
efforts to make the determination referred to in the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment shall be
covered by, and reimbursable as, a Servicing Advance; and if any such
Environmental Assessment so warrants, the Special Servicer shall perform or
cause to be performed such additional environmental testing as it deems
necessary and prudent to determine whether the conditions described in clauses
(i) and (ii) of the preceding paragraph have been satisfied (the cost of any
such additional testing also to be covered by, and reimbursable as, a Servicing
Advance). The cost of any remedial, corrective or other further action
contemplated by clause (i) and/or clause (ii) of the preceding paragraph, shall
be payable out of the related Custodial Account pursuant to Section 3.05 or
Section 3.05A, as applicable (or, in the case of a Serviced Loan Combination, to
the extent the funds in the applicable Loan Combination Custodial Account are
insufficient, shall be advanced by the Master Servicer.
(c) If the environmental testing contemplated by Section 3.09(c)
above establishes that any of the conditions set forth in clauses (i) and (ii)
of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a defaulted Serviced Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property). At such time as it deems
appropriate, the Special Servicer may, on behalf of the Trust (and, if a
Companion Loan is affected, the related Companion Loan Noteholders), subject to
Section 6.11, release all or a portion of such Mortgaged Property from the lien
of the related Mortgage.
(d) The Special Servicer shall report to the Master Servicer, the
Underwriters and the Trustee and, if a Loan Combination is affected, the related
Companion Loan Noteholders monthly in writing as to any actions taken by the
Special Servicer with respect to any Mortgaged Property that represents security
for a defaulted Serviced Loan as to which the environmental testing contemplated
in Section 3.09(c) above has revealed that any of the conditions set forth in
clauses (i) and (ii) of the first sentence thereof has not been satisfied, in
each case until the earlier to occur of satisfaction of all such conditions and
release of the lien of the related Mortgage on such Mortgaged Property.
(e) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the affected Serviced Loan permit such an action, and shall, in
accordance with the Servicing Standard, seek such deficiency judgment if it
deems advisable (the cost of which undertaking shall be covered by, and be
reimbursable as, a Servicing Advance).
(f) The Master Servicer shall, with the reasonable cooperation of
the Special Servicer, prepare and file information returns with respect to the
receipt of mortgage interest received with respect to any Serviced Loan required
by Section 6050H of the Code and, as to any Serviced Loan, the reports of
foreclosures and abandonments of any Mortgaged Property and the information
returns relating to cancellation of indebtedness income with respect to any
Mortgaged Property required by Sections 6050J and 6050P of the Code. Such
reports shall be in form and substance sufficient to meet the reporting
requirements imposed by Sections 6050H, 6050J and 6050P of the Code.
(g) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Serviced Loan or REO Property, it shall
promptly notify (in writing) the Trustee, the Master Servicer and, if a Loan
Combination is affected, the related Companion Loan Noteholders. The Special
Servicer shall maintain accurate records, prepared by a Servicing Officer, of
each such Final Recovery Determination (if any) and the basis thereof. Each such
Final Recovery Determination (if any) shall be evidenced by an Officer's
Certificate delivered to the Trustee, the Master Servicer and, if a Loan
Combination is affected, the related Companion Loan Noteholders no later than
the Special Servicer Reporting Date following such Final Recovery Determination.
Section 3.10 Trustee and Custodian to Cooperate; Release of Mortgage
Files.
(a) Upon the payment in full of any Serviced Loan, or the receipt by
the Master Servicer or the Special Servicer of a notification that payment in
full shall be escrowed in a manner customary for such purposes, the Master
Servicer or the Special Servicer shall promptly notify the Trustee (and, in the
case of a Companion Loan, the related Companion Loan Noteholders) by a
certification (which certification shall be in the form of a Request for Release
in the form of Exhibit D-1 attached hereto and shall be accompanied by the form
of a release or discharge and shall include a statement to the effect that all
amounts received or to be received in connection with such payment which are
required to be deposited in the appropriate Custodial Account pursuant to
Section 3.04(a) or 3.04A, as applicable, have been or will be so deposited) of a
Servicing Officer (a copy of which certification shall be delivered to the
Special Servicer) and shall request delivery to it of the related Mortgage File
and, in the case of a Companion Loan, the original of the Mortgage Note for such
Companion Loan. Upon receipt of such certification and request, the Trustee
shall release, or cause any related Custodian to release, the related Mortgage
File (and, in the case of a Companion Loan, the Master Servicer shall cause the
related Companion Loan Noteholders to release the Mortgage Note for such
Companion Loan) to the Master Servicer or Special Servicer and shall deliver to
the Master Servicer or Special Servicer, as applicable, such release or
discharge, duly executed. No expenses incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Distribution
Account or any Custodial Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof) (or the
original of the Mortgage Note for the Companion Loans), the Trustee, upon
request of the Master Servicer and receipt from the Master Servicer of a Request
for Release in the form of Exhibit D-1 attached hereto signed by a Servicing
Officer thereof, or upon request of the Special Servicer and receipt from the
Special Servicer of a Request for Release in the form of Exhibit D-2 attached
hereto, shall release, or cause any related Custodian to release, such Mortgage
File (or such portion thereof) (and, in the case of the Companion Loans, the
Master Servicer shall cause the related Companion Loan Noteholders to release
the original of the Mortgage Note for such Companion Loan) to the Master
Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File (or such portion thereof) (or such original Mortgage Note for the
related Companion Loans) to the Trustee or related Custodian (or to the related
Companion Loan Noteholders), or the delivery to the Trustee (or to the related
Companion Loan Noteholders) of a certificate of a Servicing Officer of the
Special Servicer stating that such Serviced Loan was liquidated and that all
amounts received or to be received in connection with such liquidation that are
required to be deposited into the related Custodial Account pursuant to Section
3.04(a) or 3.04A, as applicable, have been or will be so deposited, or that the
related Mortgaged Property has become an REO Property, the Request for Release
shall be released by the Trustee or related Custodian to the Master Servicer or
the Special Servicer, as applicable.
(c) Within seven (7) Business Days (or within such shorter period
(but no less than three (3) Business Days) as execution and delivery can
reasonably be accomplished if the Special Servicer notifies the Trustee in
writing (and, in the case of a Loan Combination Mortgaged Property, the related
Companion Loan Noteholders) of an exigency) of the Special Servicer's request
therefor, the Trustee shall execute and deliver to the Special Servicer (or the
Special Servicer may execute and deliver in the name of the Trustee (on behalf
of the Certificateholders and, in the case of a Loan Combination Mortgaged
Property, also on behalf of the related Companion Loan Noteholders) based on a
limited power of attorney issued in favor of the Special Servicer pursuant to
Section 3.01(b)), in the form supplied to the Trustee, any court pleadings,
requests for trustee's sale or other documents stated by the Special Servicer to
be reasonably necessary to the foreclosure or trustee's sale in respect of a
Mortgaged Property or to any legal action brought to obtain judgment against any
Mortgagor on the Mortgage Note or Mortgage or to obtain a deficiency judgment,
or to enforce any other remedies or rights provided by the Mortgage Note or
Mortgage or otherwise available at law or in equity or to defend any legal
action or counterclaim filed against the Trust Fund, the Master Servicer, the
Special Servicer or the Companion Loan Noteholders. Together with such documents
or pleadings, the Special Servicer shall deliver to the Trustee (and, in the
case of a Loan Combination Mortgaged Property, the related Companion Loan
Noteholders) a certificate of a Servicing Officer requesting that such pleadings
or documents be executed by the Trustee and certifying as to the reason such
documents or pleadings are required and that the execution and delivery thereof
by the Trustee (on behalf of the Certificateholders and, in the case of a Loan
Combination Mortgaged Property, also on behalf of the related Companion Loan
Noteholders) will not invalidate or otherwise affect the lien of the Mortgage,
except for the termination of such a lien upon completion of the foreclosure or
trustee's sale. Notwithstanding anything contained herein to the contrary,
neither the Master Servicer nor the Special Servicer shall, without the
Trustee's written consent: (i) initiate any action, suit or proceeding solely
under the Trustee's name without indicating the Master Servicer's or Special
Servicer's, as applicable, representative capacity, or (ii) take any action with
the intent to cause, and that actually causes, the Trustee to be registered to
do business in any state.
Section 3.11 Servicing Compensation; Payment of Expenses.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan, including each Specially Serviced Mortgage Loan, and each
REO Loan. As to each Mortgage Loan and REO Loan, the Master Servicing Fee shall:
(i) accrue from time to time at the related Master Servicing Fee Rate on the
same principal amount as interest accrues from time to time on such Mortgage
Loan or is deemed to accrue from time to time on such REO Loan; and (ii) be
calculated on a 30/360 Basis (or, in the case of the Companion Loans and any
related REO Loans, on an Actual/360 Basis) (or, in the event that a Principal
Prepayment in full or other Liquidation Event shall occur with respect to any
such Mortgage Loan or REO Loan on a date that is not a Due Date, on the basis of
the actual number of days to elapse from and including the most recently
preceding related Due Date to but excluding the date of such Principal
Prepayment or Liquidation Event in a month consisting of 30 days). The Master
Servicing Fee with respect to any such Mortgage Loan or REO Loan shall cease to
accrue if a Liquidation Event occurs in respect thereof. Earned but unpaid
Master Servicing Fees shall be payable monthly, on a loan-by-loan basis, from
payments of interest on each such Mortgage Loan and REO Revenues allocable as
interest on each such REO Loan. The Master Servicer shall be entitled to recover
unpaid Master Servicing Fees in respect of any such Mortgage Loan or REO Loan
out of that portion of related Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds allocable as recoveries of interest, to the extent
permitted by Section 3.05(a) or 3.05A, as applicable. The right to receive the
Master Servicing Fee may not be transferred in whole or in part except in
connection with the transfer of all of the Master Servicer's responsibilities
and obligations under this Agreement.
Additional servicing compensation in the form of (i) Net Default
Charges, charges for beneficiary statements or demands, amounts collected for
checks returned for insufficient funds, and any similar fees (excluding
Prepayment Premiums and Yield Maintenance Charges), in each case to the extent
actually paid by a Mortgagor with respect to any Serviced Loan and accrued
during the time that such Serviced Loan was not a Specially Serviced Mortgage
Loan, (ii) 100% of each modification fee or extension fee actually paid by a
Mortgagor with respect to a modification, consent, extension, waiver or
amendment agreed to by the Master Servicer pursuant to Section 3.21(c) (except
that the Master Servicer shall be entitled to only 50% of each modification fee
or extension fee actually paid by the Mortgagor with respect to a modification,
consent, waiver or amendment agreed to by the Master Servicer pursuant to this
Agreement if the approval or consent of the Special Servicer (or the Controlling
Class Representative with respect to an extension of maturity granted pursuant
to Section 3.21(c)) was required in connection therewith) and 100% of any fee
actually paid by a Mortgagor in connection with a defeasance of a Serviced Loan
as contemplated under Section 3.21(k), and (iii) 50% of any and all assumption
fees and 100% of any and all assumption application fees up to $5,000 in
connection with each assumption, transfer or substitution and 50% of the excess,
if any, of the assumption application fees received with respect to each
assumption, transfer or substitution over $5,000, in each case, actually paid by
a Mortgagor in accordance with the related Mortgage Loan documents, with respect
to any transfer of a Mortgaged Property or any assumption or substitution
agreement entered into by the Master Servicer on behalf of the Trust (or, in the
case of a Loan Combination, on behalf of the Trust and the related Companion
Loan Noteholders) pursuant to Section 3.08(a) or paid by a Mortgagor with
respect to any transfer of an interest in a Mortgagor pursuant to Section
3.08(a), shall be retained by the Master Servicer or promptly paid to the Master
Servicer by the Special Servicer and such additional servicing compensation is
not required to be deposited in any Custodial Account. The Master Servicer shall
also be entitled to additional servicing compensation in the form of (i)
Prepayment Interest Excesses (except in the case of the Companion Loans); (ii)
interest or other income earned on deposits in the Custodial Accounts in
accordance with Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to each such account for each Collection Period);
and (iii) to the extent not required to be paid to any Mortgagor under
applicable law, any interest or other income earned on deposits in the Servicing
Accounts, the Reserve Accounts and the Defeasance Deposit Account maintained
thereby (but only to the extent of the Net Investment Earnings, if any, with
respect to each such account for each Collection Period).
(b) Except as provided in the last sentence of this paragraph, as
compensation for its activities hereunder, the Special Servicer shall be
entitled to receive the Special Servicing Fee with respect to each Specially
Serviced Mortgage Loan and each REO Loan that was previously a Serviced Loan.
With respect to each such Specially Serviced Mortgage Loan and REO Loan, for any
calendar month (or portion thereof), the Special Servicing Fee shall: (i) accrue
from time to time at the Special Servicing Fee Rate on the same principal amount
as interest accrues from time to time on such Mortgage Loan or is deemed to
accrue from time to time on such REO Loan; and (ii) be calculated on a 30/360
Basis (or, in the case of the Companion Loans, and in each case any related REO
Loans, on an Actual/360 Basis) (or, in the event that a Principal Prepayment in
full or other Liquidation Event shall occur with respect to any such Specially
Serviced Mortgage Loan or REO Loan on a date that is not a Due Date, on the
basis of the actual number of days to elapse from and including the most
recently preceding related Due Date to but excluding the date of such Principal
Prepayment or Liquidation Event, in a month consisting of 30 days and, in the
case of any other partial period that does not run from one Due Date through and
including the day immediately preceding the next Due Date, on the basis of the
actual number of days in such period in a month consisting of 30 days). The
Special Servicing Fee with respect to any such Specially Serviced Mortgage Loan
or REO Loan shall cease to accrue as of the date a Liquidation Event occurs in
respect thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid
Special Servicing Fees shall be payable monthly out of general collections on
the Mortgage Loans and any REO Properties (or, in the case of Special Servicing
Fees in respect of a Serviced Loan Combination, first out of collections
relating to such Loan Combination or any related REO Property and, if
insufficient therefor, out of general collections on the Mortgage Loans and REO
Properties) on deposit in the appropriate Custodial Account pursuant to Section
3.05(a) or Section 3.05A(a), as applicable.
As further compensation for its services hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan. As to each such Corrected Mortgage Loan, the Workout
Fee shall be payable from, and shall be calculated by application of the Workout
Fee Rate to, all collections of principal, interest (other than Default
Interest), Prepayment Premiums and/or Yield Maintenance Charges received on such
Mortgage Loan for so long as it remains a Corrected Mortgage Loan; provided that
no Workout Fee shall be payable from, or based upon the receipt of, Liquidation
Proceeds collected in connection with the purchase of any such Specially
Serviced Mortgage Loan or Serviced REO Property by a Purchase Option Holder
pursuant to Section 3.19, by the Depositor, each Mortgage Loan Seller, the
Special Servicer, a Controlling Class Certificateholder or the Master Servicer
pursuant to Section 9.01, a Companion Loan Noteholder or its designee pursuant
to the Co-Lender Agreement, and within the time period provided in such
Co-Lender Agreement, by the Mortgage Loan Seller pursuant to Section 2.03(a)
within the time period provided for therein, or by the holder of a related
mezzanine loan pursuant to a purchase right in connection with a Mortgage Loan
default as set forth in the related intercreditor agreement, or out of any
Condemnation Proceeds, or the repurchase of a Companion Loan by the related
mortgage loan seller pursuant to the mortgage loan purchase agreement entered
into in connection with the issuance of any Companion Loan Securities within the
time period provided for therein. The Workout Fee with respect to any Corrected
Mortgage Loan will cease to be payable if such Corrected Mortgage Loan again
becomes a Specially Serviced Mortgage Loan or if the related Mortgaged Property
becomes a Serviced REO Property; provided that a new Workout Fee will become
payable if and when the particular Mortgage Loan again becomes a Corrected
Mortgage Loan.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive the Liquidation Fee with respect to
(i) each Specially Serviced Mortgage Loan as to which it receives a full,
partial or discounted payoff, (ii) each Specially Serviced Mortgage Loan that
was repurchased by a Mortgage Loan Seller, and (iii) each Specially Serviced
Mortgage Loan and Serviced REO Property as to which it receives Liquidation
Proceeds, in each case, subject to the provisos to the next sentence and Section
3.19. As to each such Specially Serviced Mortgage Loan or Serviced REO Property,
the Liquidation Fee shall be payable from, and shall be calculated by
application of the Liquidation Fee Rate to, such full, partial or discounted
payoff and/or Liquidation Proceeds (exclusive of any portion of such payoff or
proceeds that represents Default Interest); provided that no Liquidation Fee
shall be payable (i) with respect to any such Specially Serviced Mortgage Loan
that becomes a Corrected Mortgage Loan (unless it is subsequently liquidated in
connection with a subsequent event that causes it to become a Specially Serviced
Mortgage Loan and a Liquidation Fee would be payable in connection with such
liquidation), or (ii) from, or based upon the receipt of, Liquidation Proceeds
collected in connection with the purchase of any such Specially Serviced
Mortgage Loan or Serviced REO Property by a Purchase Option Holder pursuant to
Section 3.19, by the Depositor, a Mortgage Loan Seller, the Special Servicer, a
Controlling Class Certificateholder or the Master Servicer pursuant to Section
9.01, by a Companion Loan Noteholder or its designee pursuant to the related
Co-Lender Agreement and within the period specified in such Co-Lender Agreement,
by a Mortgage Loan Seller pursuant to Section 2.03(a) in connection with a
Material Document Defect or a Material Breach (within the applicable cure period
contained in Section 2.03 with respect to the Material Document Defect or
Material Breach, as applicable, that gave rise to the particular repurchase
obligation), or by the holder of a related mezzanine loan pursuant to a purchase
right in connection with a Mortgage Loan default as set forth in the related
intercreditor agreement within sixty (60) days after the purchase right is first
exercisable.
If the Special Servicer is terminated or removed other than for
cause (and other than as a result of an Event of Default under Sections
7.01(a)(x), 7.01(a)(xi) or 7.01(a)(xii)) or resigns in accordance with Section
6.09 or Section 6.04, respectively, it shall retain the right to receive any and
all Workout Fees payable in respect of (i) any Mortgage Loan or Serviced
Companion Loan that became a Corrected Mortgage Loan during the period that it
acted as Special Servicer and was still a Corrected Mortgage Loan at the time of
such termination or resignation and (ii) any Specially Serviced Mortgage Loan
for which the Special Servicer has resolved the circumstances and/or conditions
causing any such Mortgage Loan or Serviced Companion Loan to be a Specially
Serviced Mortgage Loan except that the requirement of three consecutive full and
timely Monthly Payments with respect to such Mortgage Loan or Serviced Companion
Loan has not yet been satisfied as of the date of such termination or
resignation and such Mortgage Loan or Serviced Companion Loan otherwise meets
the requirements of a Corrected Mortgage Loan, with the Workout Fee with respect
to such Mortgage Loan payable only after such requirements have been met
(including the requirement that three payments be made) (and any successor
Special Servicer shall not be entitled to any portion of such Workout Fees), in
each case until the Workout Fee for any such Loan ceases to be payable in
accordance with this Agreement.
Notwithstanding anything to the contrary herein, a Liquidation Fee
and a Workout Fee relating to the same Mortgage Loan shall not be paid from the
same proceeds with respect to such Mortgage Loan.
The Special Servicer's right to receive the Special Servicing Fee,
the Workout Fee and the Liquidation Fee may not be transferred in whole or in
part except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
(c) Additional special servicing compensation in the form of (i) Net
Default Charges actually collected on the Mortgage Pool that accrued with
respect to a Specially Serviced Mortgage Loan or an REO Loan, (ii) with respect
to any Specially Serviced Mortgage Loan, 100% of any and all assumption fees,
assumption application fees and other applicable fees, actually paid by a
Mortgagor in accordance with the related Mortgage Loan documents, with respect
to any transfer of the Mortgaged Property or any assumption or substitution
agreement entered into by the Special Servicer on behalf of the Trust (or, in
the case of a Serviced Loan Combination, on behalf of the Trust and the related
Companion Loan Noteholders) pursuant to Section 3.08(b) or paid by a Mortgagor
with respect to any transfer of an interest in a Mortgagor pursuant to Section
3.08(b), (iii) with respect to any Performing Serviced Loan, 50% of the excess,
if any, of any assumption application fees over $5,000 received by the Master
Servicer with respect to each assumption, transfer or substitution, and 50% of
any and all assumption fees, in each case actually paid by the Mortgagor in
accordance with the related Mortgage Loan documents with respect to any transfer
of a Mortgaged Property or any assumption or substitution agreement entered into
by the Master Servicer on behalf of the Trust pursuant to Section 3.08(a) or
paid by the Mortgagor with respect to any transfer of an interest in a Mortgagor
pursuant to Section 3.08(a), (iv) any and all assumption fees, modification
fees, consent fees, extension fees and similar fees actually collected on the
Serviced Loans that are not otherwise payable to the Master Servicer as
additional servicing compensation pursuant to Section 3.11(a) and (v) 50% of
each modification fee or extension fee actually paid by the Mortgagor with
respect to a modification, consent, waiver or amendment agreed to by the Master
Servicer pursuant to this Agreement if the approval or consent of the Special
Servicer (or the Controlling Class Representative with respect to an extension
of maturity granted pursuant to Section 3.21(c)) was required in connection
therewith and 100% of any modification fee or extension fee and any other
applicable fee that is actually paid by the Mortgagor in connection with an
extension of the maturity date of a Performing Serviced Loan approved by the
Special Servicer in accordance with Section 3.21(d), shall be retained by the
Special Servicer or promptly paid to the Special Servicer by the Master
Servicer, as the case may be, and shall not be required to be deposited in any
Custodial Account pursuant to Section 3.04(a) or Section__3.04A. The Special
Servicer shall also be entitled to additional special servicing compensation in
the form of interest or other income earned on deposits in any of the REO
Accounts, if established, in accordance with Section 3.06(b) (but only to the
extent of the Net Investment Earnings, if any, with respect to such account for
each Collection Period).
(d) The Master Servicer and the Special Servicer shall each be
required to pay out of its own funds all expenses incurred by it in connection
with its servicing activities hereunder (including payment of any amounts due
and owing to the Primary Servicer or any of its Sub-Servicers and the premiums
for any blanket policy obtained by it insuring against hazard losses pursuant to
Section 3.07(b)), if and to the extent such expenses are not payable directly
out of any of the Custodial Accounts or, in the case of the Special Servicer,
any of the REO Accounts, and neither the Master Servicer nor the Special
Servicer shall be entitled to reimbursement for such expenses except as
expressly provided in this Agreement.
Section 3.12 Certain Matters Regarding Servicing Advances.
(a) If the Master Servicer or Special Servicer is required under any
provision of this Agreement to make a Servicing Advance, but neither does so
within fifteen (15) days after such Advance is required to be made, the Trustee
shall, if it has actual knowledge of such failure on the part of the Master
Servicer or Special Servicer, as the case may be, give written notice of such
failure, as applicable, to the Master Servicer or the Special Servicer. If such
Servicing Advance is not made by the Master Servicer or the Special Servicer, as
applicable, within three (3) Business Days after such notice is given to the
Master Servicer or the Special Servicer, as applicable, then (subject to Section
3.12(d)) the Trustee shall make such Servicing Advance; provided, that the
Trustee will not be obligated to make any Advance it determines would be a
Nonrecoverable Advance.
(b) The Master Servicer, the Special Servicer and the Trustee shall
each be entitled to receive interest at the Reimbursement Rate in effect from
time to time, compounded annually, accrued on the amount of each Servicing
Advance made thereby (with its own funds) for so long as such Servicing Advance
is outstanding, such interest to be payable: (i) out of any Default Charges on
deposit in the Pool Custodial Account that were collected on or in respect of
the related Mortgage Loan during the same Collection Period in which such
Servicing Advance is reimbursed; and (ii) to the extent that such Default
Charges are insufficient, but not before the related Advance has been reimbursed
pursuant to this Agreement, out of general collections on the Mortgage Loans and
REO Properties on deposit in the Pool Custodial Account; provided that, if such
Servicing Advance was made with respect to a Serviced Loan Combination or a Loan
Combination Mortgaged Property, then such interest shall first be payable out of
amounts on deposit in the related Loan Combination Custodial Account in
accordance with clause (viii) of Section 3.05A.
(c) The Master Servicer shall reimburse itself, the Special Servicer
or the Trustee, as appropriate and in accordance with Section 3.03, Section
3.05(a), Section 3.05(e) or 3.05A, as applicable, for any Servicing Advance as
soon as practicable after funds available for such purpose are deposited in the
related Custodial Account.
(d) Notwithstanding anything herein to the contrary, none of the
Master Servicer, the Special Servicer or the Trustee shall be required to make
out of its own funds any Servicing Advance that would, if made, constitute a
Nonrecoverable Servicing Advance. The determination by either the Master
Servicer or the Special Servicer that it has made (or a determination by the
Special Servicer that the Master Servicer has made) a Nonrecoverable Servicing
Advance or that any proposed Servicing Advance, if made, would constitute a
Nonrecoverable Servicing Advance, shall be made in accordance with the Servicing
Standard and shall be evidenced by an Officer's Certificate delivered promptly
to the Trustee and the Depositor (and, if affected thereby, the related
Companion Loan Noteholder), setting forth the basis for such determination,
together with a copy of any appraisal of the related Mortgaged Property or REO
Property, as the case may be (which appraisal shall be an expense of the Trust,
shall take into account the factors specified in Section 3.19 and shall have
been conducted by an Independent Appraiser in accordance with the standards of
the Appraisal Institute within the twelve (12) months preceding such
determination of nonrecoverability), and further accompanied by related
Mortgagor operating statements and financial statements, budgets and rent rolls
of the related Mortgaged Property (to the extent available and/or in the Master
Servicer's or the Special Servicer's possession) and any engineers' reports,
environmental surveys or similar reports that the Master Servicer or the Special
Servicer may have obtained and that support such determination. If the Master
Servicer intends to obtain an appraisal in connection with the foregoing, the
Master Servicer shall so notify the Special Servicer and consult with the
Special Servicer regarding such appraisal. The Trustee shall be entitled to
rely, conclusively, on any determination by the Master Servicer or the Special
Servicer that a Servicing Advance, if made, would be a Nonrecoverable Advance,
and the Master Servicer shall be entitled to conclusively rely on any
determination by the Special Servicer that a Servicing Advance, if made, would
constitute a Nonrecoverable Servicing Advance; provided, however, that if the
Master Servicer or the Special Servicer has failed to make a Servicing Advance
for reasons other than a determination by the Master Servicer or the Special
Servicer, as applicable, that such Servicing Advance would be a Nonrecoverable
Advance or the Trustee, as applicable, shall make such Servicing Advance within
the time periods required by Section 3.12(a) unless the Trustee, in good faith,
makes a determination that such Servicing Advance would be a Nonrecoverable
Advance, if made; provided, further, that the Trustee and the Master Servicer
shall not make any Servicing Advance which the Special Servicer has determined
in accordance with the Servicing Standard would constitute a Nonrecoverable
Servicing Advance, if made. In addition, the Master Servicer and Special
Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of
prior Servicing Advances on the applicable Mortgage Loan that have not been
repaid by the related Mortgagor for the purposes of nonrecoverability
determinations as if such amounts were unreimbursed Servicing Advances.
(e) Notwithstanding anything set forth herein to the contrary, the
Master Servicer shall (at the direction of the Special Servicer if a Specially
Serviced Mortgage Loan or an REO Property is involved) pay directly out of the
Pool Custodial Account or the related Loan Combination Custodial Account, as
applicable, any servicing expense that, if advanced by the Master Servicer or
the Special Servicer, would constitute a Nonrecoverable Servicing Advance;
provided that the Master Servicer (or the Special Servicer, if a Specially
Serviced Mortgage Loan or an REO Property is involved) has determined in
accordance with the Servicing Standard that making such payment, in the case of
withdrawals from the Pool Custodial Account, is in the best interests of the
Certificateholders (as a collective whole) or, in the case of a Loan Combination
Custodial Account, is in the best interests of the Certificateholders and, in
the case of a Serviced Loan Combination, the related Companion Loan Noteholders
(as a collective whole), as evidenced in each case by an Officer's Certificate
delivered promptly to the Trustee, the Depositor and the Controlling Class
Representative and, if affected thereby, the applicable Companion Loan
Noteholder, setting forth the basis for such determination and accompanied by
any information that such Person may have obtained that supports such
determination. A copy of any such Officer's Certificate (and accompanying
information) of the Master Servicer shall also be promptly delivered to the
Special Servicer, and a copy of any such Officer's Certificate (and accompanying
information) of the Special Servicer shall also be promptly delivered to the
Master Servicer. The Master Servicer may conclusively rely on any information in
this regard provided by the Special Servicer (if other than the Master Servicer
or an Affiliate thereof).
(f) Notwithstanding anything to the contrary in this Agreement, the
Master Servicer shall not waive any fees that would be due or partially due to
the Special Servicer without the Special Servicer's consent and the Special
Servicer shall not waive any fees that would be due or partially due to the
Master Servicer without the Master Servicer's consent.
(g) No more frequently than once per calendar month, the Special
Servicer may require the Master Servicer, and the Master Servicer shall be
obligated, subject to the second following paragraph, to reimburse the Special
Servicer for any Servicing Advances made by the Special Servicer, but not
previously reimbursed (whether pursuant to Section 3.05(a), this Section 3.12(g)
or otherwise) to the Special Servicer, and to pay the Special Servicer interest
thereon at the Reimbursement Rate from the date made to, but not including, the
date of reimbursement. Such reimbursement and any accompanying payment of
interest shall be made within ten (10) days of the request therefor by wire
transfer of immediately available funds to an account designated by the Special
Servicer. Upon the Master Servicer's reimbursement to the Special Servicer of
any Servicing Advance and payment to the Special Servicer of interest thereon,
all in accordance with this Section 3.12(g), the Master Servicer shall for all
purposes of this Agreement be deemed to have made such Servicing Advance at the
same time as the Special Servicer originally made such Advance and shall be
entitled to reimbursement of such Advance, together with Advance Interest
thereon, at the same time, in the same manner and to the same extent as the
Master Servicer would otherwise have been entitled if it had actually made such
Servicing Advance.
Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer (i) is required under any other provision of
this Agreement to direct the Master Servicer to make a Servicing Advance or (ii)
is otherwise aware a reasonable period in advance that it is reasonably likely
that the Special Servicer will incur a cost or expense that will, when incurred,
constitute a Servicing Advance, the Special Servicer shall (in the case of
clause (i) preceding), and shall use reasonable efforts to (in the case of
clause (ii) preceding), request that the Master Servicer make such Servicing
Advance, such request to be made in writing and in a timely manner that does not
materially and adversely affect the interests of any Certificateholder and at
least five (5) Business Days prior to the date on which such Servicing Advance
is first required to be made; provided, however, that the Special Servicer shall
have an obligation to make any emergency Advance or any other Servicing Advance
with respect to which it would, under the circumstances, be inconsistent with
the Servicing Standard for the Special Servicer to request that the Master
Servicer make such Servicing Advance (in lieu of making such Servicing Advance
itself and seeking reimbursement therefor as provided herein); and provided,
further, that the Special Servicer shall, with respect to Specially Serviced
Mortgage Loans and Serviced REO Properties, make any Servicing Advance that it
fails to timely request the Master Servicer to make. The Master Servicer shall
(subject to the following paragraph) have the obligation to make any such
Servicing Advance that it is requested by the Special Servicer to make within
five (5) Business Days of the Master Servicer's receipt of such request. Subject
to the foregoing, the Special Servicer shall be relieved of any obligations with
respect to a Servicing Advance that it timely requests the Master Servicer to
make (regardless of whether or not the Master Servicer shall make such Servicing
Advance), other than an emergency Advance or any other Servicing Advance with
respect to which it would, under the circumstances, be inconsistent with the
Servicing Standard for the Special Servicer to request that the Master Servicer
make such Servicing Advance (in lieu of making such Servicing Advance itself and
seeking reimbursement therefor as provided herein). The Master Servicer shall be
entitled to reimbursement for any Servicing Advance made by it at the direction
of the Special Servicer, together with Advance Interest thereon, at the same
time, in the same manner and to the same extent as the Master Servicer is
entitled with respect to any other Servicing Advance made thereby.
Notwithstanding the foregoing provisions of this Section 3.12(g) or
any other provision of this Agreement to the contrary, the Master Servicer shall
not be required to reimburse the Special Servicer for, or make at the Special
Servicer's direction, any Servicing Advance if the Master Servicer determines in
its reasonable, good faith judgment that the Servicing Advance which the Special
Servicer is directing the Master Servicer to reimburse it for or make hereunder,
although not characterized by the Special Servicer as a Nonrecoverable Servicing
Advance, is or would be, if made, a Nonrecoverable Servicing Advance. The Master
Servicer shall notify the Special Servicer and the Trustee in writing of such
determination. Such notice shall not obligate the Special Servicer to make such
Servicing Advance.
Section 3.13 Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable after the
related Serviced Loan becomes a Specially Serviced Mortgage Loan and annually
thereafter for so long as the related Mortgage Loan remains a Specially Serviced
Mortgage Loan, the cost of which shall be paid by the Special Servicer and shall
be reimbursable to the Special Servicer as a Servicing Advance or, if such
Servicing Advance would be a Nonrecoverable Advance, shall be paid out of the
Custodial Account as an Additional Trust Fund Expense. In addition, the Special
Servicer shall perform or cause to be performed a physical inspection of each of
the Serviced REO Properties at least once per calendar year, the cost of which
shall be paid by the Special Servicer and shall be reimbursable to the Special
Servicer as a Servicing Advance or, if such Servicing Advance would be a
Nonrecoverable Advance, shall be paid out of the Custodial Account as an
Additional Trust Fund Expense. Beginning in 2008, the Master Servicer shall at
its expense perform or cause to be performed a physical inspection of each
Mortgaged Property securing a Performing Serviced Loan: (i) at least once every
two (2) calendar years in the case of Mortgaged Properties securing Mortgage
Loans that have outstanding principal balances of (or Mortgaged Properties
having allocated loan amounts of) $2,000,000 or less; and (ii) at least once
every calendar year in the case of all other such Mortgaged Properties;
provided, that the Master Servicer will not be required to perform or cause to
be performed an inspection on a Mortgaged Property if such Mortgaged Property
has been inspected by the Master Servicer or the Special Servicer in the
preceding six (6) months. The Master Servicer and the Special Servicer shall
each promptly prepare or cause to be prepared and deliver to the Trustee and
each other a written report of each such inspection performed by it that sets
forth in detail the condition of the Mortgaged Property and that specifies the
existence of: (i) any sale, transfer or abandonment of the Mortgaged Property of
which the Master Servicer or the Special Servicer, as applicable, is aware, (ii)
any change in the condition or value of the Mortgaged Property that the Master
Servicer or the Special Servicer, as applicable, in its reasonable, good faith
judgment, considers material, or (iii) any waste committed on the Mortgaged
Property. The Master Servicer and Special Servicer shall each forward copies of
any such inspection reports prepared by it to the Underwriters and the
Controlling Class Representative upon request, subject to payment of a
reasonable fee.
(b) The Special Servicer, in the case of each Specially Serviced
Mortgage Loan and each REO Loan that was previously a Serviced Loan, and the
Master Servicer, in the case of each Performing Serviced Loan, shall each,
consistent with the Servicing Standard and to the extent permitted under the
Mortgage Loan Documents, use reasonable efforts to obtain quarterly, annual and
other periodic operating statements and rent rolls with respect to each of the
related Mortgaged Properties and REO Properties. The Special Servicer shall,
promptly following receipt, deliver copies of the operating statements and rent
rolls received or obtained by it to the Master Servicer, and the Master Servicer
shall promptly deliver copies of the operating statements and rent rolls
received or obtained by it to the Trustee, the Special Servicer or any
Controlling Class Certificateholder; provided that, with respect to the Loan
Combinations, the Master Servicer shall forward any of the foregoing financial
statements received with respect to the Loan Combination Mortgaged Properties to
the Trustee promptly upon receipt thereof without the Trustee having to make a
request, but only insofar as such financial statements are to be included in an
Annual Report on Form 10-K.
Within thirty (30) days after receipt by the Master Servicer of any
annual operating statements with respect to any Mortgaged Property or REO
Property, the Master Servicer with respect to Serviced Loans and the Special
Servicer with respect to REO Loans shall prepare or update a CMSA NOI Adjustment
Worksheet for such Mortgaged Property or REO Property (with, upon request, the
annual operating statements attached thereto as an exhibit) and the Master
Servicer shall provide any such CMSA NOI Adjustment Worksheet to the Trustee.
With respect to Specially Serviced Mortgage Loans that are not REO Loans, the
Special Servicer shall prepare and forward copies of financial information to
the Master Servicer so that the Master Servicer can prepare and send such
information to the Trustee as required pursuant to the preceding sentence.
The Master Servicer with respect to Serviced Loans and the Special
Servicer with respect to REO Properties shall prepare and maintain one CMSA
Operating Statement Analysis Report for each Mortgaged Property and REO
Property. The CMSA Operating Statement Analysis Report for each such Mortgaged
Property and REO Property is to be updated by the Master Servicer or Special
Servicer, as applicable, within thirty (30) days after its receipt of updated
operating statements for a Mortgaged Property or REO Property, as the case may
be. The Master Servicer or Special Servicer, as applicable, shall use the
"Normalized" column from the CMSA NOI Adjustment Worksheet for any such
Mortgaged Property or REO Property, as the case may be, to update and normalize
the corresponding annual year end information in the CMSA Operating Statement
Analysis Report and shall use any annual operating statements and related data
fields received with respect to any such Mortgaged Property or REO Property, as
the case may be, to prepare the CMSA NOI Adjustment Worksheet for such property.
Copies of CMSA Operating Statement Analysis Reports and CMSA NOI Adjustment
Worksheets are to be forwarded to the Trustee by the Master Servicer until such
time as a Form 15 is filed with respect to the Trust pursuant to Section 11.06,
and are otherwise to be made available by the Master Servicer to the Trustee,
the Special Servicer or any Controlling Class Certificateholder, in each case
upon request. With respect to REO Loans, the Special Servicer shall forward any
such CMSA Operating Statement Analysis Reports with respect to REO Loans to the
Master Servicer so that the Master Servicer can send such information to the
Trustee as required pursuant to the preceding sentence. With respect to
Specially Serviced Mortgage Loans, any such CMSA Operating Statement Analysis
Report will include the following statement: "This loan was transferred to the
Special Servicer on [Date]. Any questions related to the operating results
reported on this statement should be directed to the Special Servicer while the
loan is a Specially Serviced Mortgage Loan."
(c) Not later than 2:00 p.m. (New York City time) on the first
Business Day after each Determination Date (each a "Special Servicer Reporting
Date"), the Special Servicer shall deliver or cause to be delivered to the
Master Servicer the CMSA Special Servicer Loan File with respect to the
Specially Serviced Mortgage Loans and any REO Properties.
(d) Not later than 2:00 p.m. (New York City time) on the first
Business Day prior to each Distribution Date, the Master Servicer shall deliver
or cause to be delivered to the Trustee, and the Trustee shall on such
Distribution Date make copies available to the Rating Agencies, the Special
Servicer and, upon request, any Controlling Class Certificateholder: (i) the
most recent CMSA Historical Loan Modification and Corrected Mortgage Loan
Report, CMSA Historical Liquidation Report, CMSA REO Status Report and CMSA
Mortgage Loan Level Reserve/LOC Report received from the Special Servicer
pursuant to Section 3.13(c); (ii) the most recent CMSA Property File, CMSA
Financial File, CMSA Mortgage Loan Set-up File (if modified), CMSA Delinquent
Loan Status Report, CMSA Comparative Financial Status Report and Loan Payoff
Notification Report (in each case combining the reports prepared by the Special
Servicer and the Master Servicer); and (iii) a CMSA Servicer Watch List with
information that is current as of the related Determination Date with respect to
the Mortgage Loans.
If the Master Servicer determines, in its reasonable judgment, that
information regarding the Mortgage Loans and REO Properties (in addition to the
information otherwise required to be contained in the CMSA Investor Reporting
Package) should be disclosed to Certificateholders and Certificate Owners, then
it shall forward such information in the form of a Supplemental Report to the
Trustee in accordance with Section 4.02(a).
(e) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.13(c) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer, and the Master
Servicer shall deliver to the Trustee (and the Trustee shall make available,
upon request, to the Special Servicer and any Controlling Class
Certificateholder) the reports set forth in Section 3.13(d) in an electronic
format reasonably acceptable to the Master Servicer and the Trustee. The Master
Servicer may, absent manifest error, conclusively rely on the reports to be
provided by the Special Servicer pursuant to Section 3.13(c). The Trustee may,
absent manifest error, conclusively rely on the reports to be provided by the
Master Servicer pursuant to Section 3.13(d). In the case of information or
reports to be furnished by the Master Servicer to the Trustee pursuant to
Section 3.13(d), to the extent that such information is based on reports to be
provided by the Special Servicer pursuant to Section 3.13(c) and/or that such
reports are to be prepared and delivered by the Special Servicer pursuant to
Section 3.13(c), so long as the Master Servicer and the Special Servicer are not
the same Person or Affiliates, the Master Servicer shall have no obligation to
provide such information or reports until it has received such information or
reports from the Special Servicer, and the Master Servicer shall not be in
default hereunder due to a delay in providing the reports required by Section
3.13(d) caused by the Special Servicer's failure to timely provide any report
required under Section 3.13(c) of this Agreement.
(f) The preparation and maintenance by the Master Servicer and the
Special Servicer of all the reports specified in this Section 3.13, including
the calculations made therein, shall be done in accordance with CMSA standards
to the extent applicable thereto.
Section 3.14 Delivery of Certain Reports to the Companion Loan
Noteholders.
(a) The Master Servicer and the Special Servicer shall each promptly
prepare or cause to be prepared and deliver to each Companion Loan Noteholder a
written report (in physical or electronic form), prepared in the manner set
forth in Section 3.13, of each inspection performed by it with respect to the
related Loan Combination Mortgaged Properties.
The Master Servicer shall promptly deliver to each Companion Loan
Noteholder (in either physical or electronic form): (i) copies of operating
statements and rent rolls; (ii) upon request, annual CMSA NOI Adjustment
Worksheets (with annual operating statements as exhibits); and (iii) annual CMSA
Operating Statement Analysis Reports, in each case prepared, received or
obtained by it pursuant to Section 3.13 with respect to the related Loan
Combination Mortgaged Properties.
(c) If the Loans forming the Loan Combinations constitute Specially
Serviced Mortgage Loans, or if the Loan Combination Mortgaged Properties have
become REO Properties, then each calendar month, not later than 2:00 p.m. (New
York City time) on the second Business Day prior to each Determination Date, the
Special Servicer shall deliver or cause to be delivered to the Master Servicer
the following reports with respect to the Loan Combinations and/or the Loan
Combination Mortgaged Properties, providing the required information as of the
end of the preceding calendar month: (i) a CMSA Property File (or similar report
satisfactory to the Master Servicer); and (ii) a CMSA Comparative Financial
Status Report (or similar report satisfactory to the Master Servicer). If the
Loans forming the Loan Combinations constitute Specially Serviced Mortgage
Loans, or if the Loan Combination Mortgaged Properties have become REO
Properties, then each calendar month, not later than 2:00 p.m. (New York City
time) on the second Business Day prior to the Master Servicer Remittance Date in
such month, the Special Servicer shall deliver or cause to be delivered to the
Master Servicer such of the following reports as may be relevant with respect to
the Loan Combinations and/or the Loan Combination Mortgaged Properties: (i) a
CMSA Delinquent Loan Status Report; (ii) a Loan Payoff Notification Report,
(iii) a CMSA Historical Loan Modification and Corrected Mortgage Loan Report;
and (iv) a CMSA REO Status Report.
(d) Not later than 2:00 p.m. (New York City time) on the Loan
Combination Remittance Date, the Master Servicer shall, with respect to the
Serviced Loan Combinations, prepare all Loan Combination Servicing Reports as
may be relevant and that are not otherwise required to be prepared by the
Special Servicer pursuant to Section 3.14(b). The Master Servicer shall include
on one of such reports updated information as of the applicable Determination
Date regarding the amount of accrued and unpaid interest on Advances in
accordance with Section 3.12(b), 4.03(d) and/or 4.03A(d), such information to be
presented on a loan-by-loan basis.
The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.14(b) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer. The Master Servicer
may, absent manifest error, conclusively rely on the reports to be provided by
the Special Servicer pursuant to Section 3.14(b). In the case of information or
reports to be furnished by the Master Servicer to the applicable Companion Loan
Noteholder pursuant to Section 3.15(a), to the extent that such information is
based on reports to be provided by the Special Servicer pursuant to Section
3.14(b) and/or that such reports are to be prepared and delivered by the Special
Servicer pursuant to Section 3.14(b), so long as the Master Servicer and the
Special Servicer are not the same Person or Affiliates, the Master Servicer
shall have no obligation to provide such information or reports until it has
received such information or reports from the Special Servicer, and the Master
Servicer shall not be in default hereunder due to a delay in providing the
reports required by Section 3.15(a) caused by the Special Servicer's failure to
timely provide any report required under Section 3.14(b) of this Agreement.
Section 3.15 Statements to the Companion Loan Noteholders.
(a) On each Loan Combination Remittance Date, the Master Servicer
shall forward to each Companion Loan Noteholder all Loan Combination Servicing
Reports prepared with respect to the related Loan Combination, pursuant to
Section 3.14, during the calendar month in which such applicable Master Servicer
Remittance Date occurs.
(b) The Master Servicer shall only be obligated to deliver the
statements, reports and information contemplated by Section 3.15(a) to the
extent it receives the necessary underlying information from the Special
Servicer and shall not be liable for its failure to deliver such statements,
reports and information on the prescribed due dates, to the extent caused by the
failure of the Special Servicer to deliver timely such underlying information.
Nothing herein shall obligate the Master Servicer or the Special Servicer to
violate any applicable law prohibiting disclosure of information with respect to
the related Mortgagor, and the failure of the Master Servicer or the Special
Servicer to disseminate information for such reason shall not be a breach
hereunder.
Absent manifest error of which it has actual knowledge, neither the
Master Servicer nor the Special Servicer shall be responsible for the accuracy
or completeness of any information supplied to it by a Mortgagor, the Depositor,
a Mortgage Loan Seller or third party that is included in any reports,
statements, materials or information prepared or provided by the Master Servicer
or the Special Servicer, as applicable, pursuant to this Agreement. Neither the
Master Servicer nor the Special Servicer shall have any obligation to verify the
accuracy or completeness of any information provided by a Mortgagor, the
Depositor, a Mortgage Loan Seller, a third party or each other.
Section 3.16 Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Underwriters, the Rating Agencies, the Depositor, any
Certificateholder, the Companion Loan Noteholders and any Certificate Owner
(identified as such to the reasonable satisfaction of the Master Servicer or the
Special Servicer, as the case may be), and to the OTS, the FDIC and any other
banking or insurance regulatory authority that may exercise authority over any
Certificateholder, Certificate Owner or Companion Loan Noteholder (identified as
such to the reasonable satisfaction of the Master Servicer or the Special
Servicer, as the case may be), access to any non-privileged records regarding
the Serviced Loans and the servicing thereof within its control (which access
shall be limited, in the case of the Companion Loan Noteholders or any
regulatory authority seeking such access in respect of the Companion Loan
Noteholders, to records relating to the Companion Loans), except to the extent
it is prohibited from doing so by applicable law or contract or to the extent
such information is subject to a privilege under applicable law to be asserted
on behalf of the Certificateholders or the Companion Loan Noteholders. Such
access shall be afforded only upon reasonable prior written request and during
normal business hours at the offices of the Master Servicer or the Special
Servicer, as the case may be, designated by it.
In connection with providing or granting any information or access
pursuant to the prior paragraph to a Certificateholder, a Certificate Owner, the
Companion Loan Noteholders or any regulatory authority that may exercise
authority over a Certificateholder, a Certificate Owner or Companion Loan
Noteholder, the Master Servicer and the Special Servicer may each require
payment from such Certificateholder, Certificate Owner or Companion Loan
Noteholder of a sum sufficient to cover the reasonable costs and expenses of
providing such information or access, including copy charges and reasonable fees
for employee time and for space; provided that no charge may be made if such
information or access was required to be given or made available under
applicable law. In connection with providing Certificateholders and Certificate
Owners access to the information described in the preceding paragraph, the
Master Servicer and the Special Servicer shall require (prior to affording such
access) a written confirmation executed by the requesting Person substantially
in such form as may be reasonably acceptable to the Master Servicer or the
Special Servicer, as the case may be, generally to the effect that such Person
is a Holder of Certificates or a beneficial holder of Book-Entry Certificates
and will keep such information confidential.
Upon the reasonable request of any Certificateholder, or any
Certificate Owner identified to the Master Servicer to the Master Servicer's
reasonable satisfaction, the Master Servicer may provide (or forward
electronically) (at the expense of such Certificateholder or Certificate Owner)
copies of any operating statements, rent rolls and financial statements obtained
by the Master Servicer or the Special Servicer; provided that, in connection
therewith, the Master Servicer shall require a written confirmation executed by
the requesting Person substantially in such form as may be reasonably acceptable
to the Master Servicer, generally to the effect that such Person is a Holder of
Certificates or a beneficial holder of Book-Entry Certificates and will keep
such information confidential.
Upon the request of the Controlling Class Representative made not
more frequently than once a month (which request may be a standing, continuing
request), or at such mutually acceptable time each month as the Controlling
Class Representative shall reasonably designate, each of the Master Servicer and
the Special Servicer shall, without charge, make a knowledgeable Servicing
Officer available, at the option of the Controlling Class Representative either
by telephone or at the office of such Servicing Officer, to answer questions
from the Controlling Class Representative regarding the performance and
servicing of the Mortgage Loans and/or REO Properties for which such Master
Servicer or Special Servicer, as the case may be, is responsible. The Master
Servicer and the Special Servicer each shall condition such disclosure upon the
Controlling Class Representative entering into a reasonable and customary
confidentiality agreement reasonably acceptable to such servicer and the
Controlling Class Representative regarding such disclosure to it. Neither the
Master Servicer nor the Special Servicer shall be required to provide any
information or disclosures in violation of any applicable law, rule or
regulation.
Section 3.17 Title to REO Property; REO Accounts.
(a) If title to any Mortgaged Property with respect to a Serviced
Loan is acquired, the deed or certificate of sale shall be issued to the Trustee
or its nominee on behalf of the Certificateholders and, in the case of a Loan
Combination Mortgaged Property, on behalf of the related Companion Loan
Noteholders. If, pursuant to Section 3.09(a), the Special Servicer formed or
caused to be formed, at the expense of the Trust, a single member limited
liability company (of which the Trust is the sole member) for the purpose of
taking title to one or more Serviced REO Properties pursuant to this Agreement,
then (subject to the interests of any affected Companion Loan Noteholder) the
deed or certificate of sale with respect to any such REO Property shall be
issued to such single member limited liability company. The limited liability
company shall be a manager-managed limited liability company, with the Special
Servicer to serve as the initial manager to manage the property of the limited
liability company, including any applicable REO Property, in accordance with the
terms of this Agreement as if such property was held directly in the name of the
Trust or Trustee under this Agreement.
The Special Servicer, on behalf of the Trust Fund and any affected
Companion Loan, shall sell any REO Property by the end of the third calendar
year following the calendar year in which the Lower-Tier REMIC acquires
ownership of its proportionate interest in such REO Property for purposes of
Section 860G(a)(8) of the Code, unless the Special Servicer either (i) applies,
more than sixty (60) days prior to the end of such third succeeding year, for
and is granted an extension of time (an "REO Extension") by the IRS to sell such
REO Property or (ii) obtains for the Trustee an Opinion of Counsel, addressed to
the Trustee, the Special Servicer and the Master Servicer, to the effect that
the holding by the Lower-Tier REMIC of its proportionate interest in such REO
Property subsequent to the end of such third succeeding year will not result in
the imposition of taxes on "prohibited transactions" (as defined in Section 860F
of the Code) of either REMIC Pool or cause either REMIC Pool to fail to qualify
as a REMIC at any time that any Certificates are outstanding. If the Special
Servicer is granted the REO Extension contemplated by clause (i) of the
immediately preceding sentence or obtains the Opinion of Counsel contemplated by
clause (ii) of the immediately preceding sentence, the Special Servicer shall
sell the subject REO Property within such extended period as is permitted by
such REO Extension or such Opinion of Counsel, as the case may be. Any expense
incurred by the Special Servicer in connection with its obtaining the REO
Extension contemplated by clause (i) of the second preceding sentence or its
obtaining the Opinion of Counsel contemplated by clause (ii) of the second
preceding sentence, or for the creation of and the operating of a single member
limited liability company, shall be covered by, and reimbursable as, a Servicing
Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any Serviced REO Property separate and
apart from its own funds and general assets. If an REO Acquisition shall occur
in respect of any Mortgaged Property (other than any Loan Combination Mortgaged
Property), the Special Servicer shall establish and maintain one or more
accounts (collectively, the "Pool REO Account"), held on behalf of the Trustee
in trust for the benefit of the Certificateholders, for the retention of
revenues and other proceeds derived from each Serviced REO Property (other than
any Loan Combination REO Properties). If such REO Acquisition occurs with
respect to the Loan Combination Mortgaged Properties, the Special Servicer shall
establish an REO Account solely with respect to each such property (each, a
"Loan Combination REO Account"), to be held for the benefit of the
Certificateholders and the applicable Companion Loan Noteholder. The Pool REO
Account and each Loan Combination REO Account shall each be an Eligible Account.
The Special Servicer shall deposit, or cause to be deposited, in the related REO
Account, upon receipt, all REO Revenues, Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds received in respect of any Serviced REO
Property. Funds in an REO Account may be invested in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall be entitled to make
withdrawals from an REO Account to pay itself, as additional special servicing
compensation in accordance with Section 3.11(c), interest and investment income
earned in respect of amounts held in such REO Account as provided in Section
3.06(b) (but only to the extent of the Net Investment Earnings with respect to
such REO Account for any Collection Period). The Special Servicer shall give
notice to the Trustee and the Master Servicer of the location of each REO
Account, and shall give notice to the related Companion Loan Noteholders of the
location of any related Loan Combination REO Account, in each case when first
established and of the new location of any such REO Account prior to any change
thereof.
(c) The Special Servicer shall withdraw from the related REO Account
funds necessary for the proper operation, management, leasing, maintenance and
disposition of any Serviced REO Property, but only to the extent of amounts on
deposit in the REO Account relating to such REO Property. On the Business Day
following each Determination Date, the Special Servicer shall withdraw from each
REO Account and deposit into the corresponding Custodial Account (or deliver to
the Master Servicer or such other Person as may be designated by the Master
Servicer for deposit into the corresponding Custodial Account) the aggregate of
all amounts received in respect of each Serviced REO Property during the
Collection Period ending on such Determination Date, net of any withdrawals made
out of such amounts pursuant to the preceding sentence; provided that the
Special Servicer may retain in an REO Account such portion of proceeds and
collections in respect of any related REO Property as may be necessary to
maintain a reserve of sufficient funds for the proper operation, management,
leasing, maintenance and disposition of such REO Property (including the
creation of a reasonable reserve for repairs, replacements, necessary capital
replacements and other related expenses), such reserve not to exceed an amount
sufficient to cover such items to be incurred during the following twelve-month
period. For purposes of the foregoing, the Pool REO Account and applicable Loan
Combination REO Account correspond to the Pool Custodial Account and the
applicable Loan Combination Custodial Account, respectively.
(d) The Special Servicer shall keep and maintain separate records,
on a loan-by-loan basis, for the purpose of accounting for all deposits to, and
withdrawals from, each REO Account pursuant to Section 3.17(b) or (c). The
Special Servicer shall provide the Master Servicer any information with respect
to each REO Account as is reasonably requested by the Master Servicer.
Section 3.18 Management of Serviced REO Property.
(a) Prior to the acquisition by it of title to a Mortgaged Property
with respect to a Serviced Loan, the Special Servicer shall review the operation
of such Mortgaged Property and determine the nature of the income that would be
derived from such property if it were acquired by the Trust Fund. If the Special
Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged
Property as Serviced REO Property would be subject to tax as "net income
from foreclosure property" within the meaning of the REMIC Provisions
(such tax referred to herein as an "REO Tax"), then such Mortgaged
Property may be Directly Operated by the Special Servicer (other than the
holding of such Mortgaged Property for sale to customers in the ordinary
course of trade or business or the performance of any construction work
thereon) as REO Property;
(ii) Directly Operating such Mortgaged Property as Serviced REO
Property could result in income from such property that would be subject
to an REO Tax, but that a lease of such property to another party to
operate such property, or the performance of some services by an
Independent Contractor with respect to such property, or another method of
operating such property would not result in income subject to an REO Tax,
then the Special Servicer may (provided, that in the good faith and
reasonable judgment of the Special Servicer, it is commercially
reasonable) acquire such Mortgaged Property as REO Property and so lease
or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such
Mortgaged Property as Serviced REO Property could result in income subject
to an REO Tax and that no commercially reasonable means exists to operate
such property as REO Property without the Trust Fund incurring or possibly
incurring an REO Tax on income from such property, the Special Servicer
shall deliver to the Tax Administrator, in writing, a proposed plan (the
"Proposed Plan") to manage such property as REO Property. Such plan shall
include potential sources of income, and, to the extent reasonably
possible, estimates of the amount of income from each such source. Upon
request of the Special Servicer, the Tax Administrator shall advise the
Special Servicer of the Tax Administrator's federal income tax reporting
position with respect to the various sources of income that the Trust Fund
would derive under the Proposed Plan. After receiving the information
described in the preceding sentence from the Tax Administrator, the
Special Servicer shall either (A) implement the Proposed Plan (after
acquiring the respective Mortgaged Property as REO Property), with any
amendments required to be made thereto as a result of the Tax
Administrator's tax reporting position or (B) manage and operate such
property in a manner that would not result in the imposition of an REO Tax
on income derived from such property.
The Special Servicer's decision as to how each Serviced REO Property
shall be managed and operated shall be based on the Servicing Standard and,
further, based on the good faith and reasonable judgment of the Special Servicer
as to which means would be in the best interest of the Certificateholders (or in
the case of a Loan Combination REO Property, in the best interest of the
Certificateholders and the applicable Companion Loan Noteholders (as a
collective whole)) by maximizing (to the extent commercially reasonable and
consistent with Section 3.18(b)) the net after-tax REO Revenues received by the
Trust Fund with respect to such property without materially and adversely
affecting the Special Servicer's ability to promptly sell the Serviced REO
Property in accordance with this Agreement and, to the extent consistent with
the foregoing, in accordance with the Servicing Standard. Neither the Special
Servicer nor the Tax Administrator shall be liable to the Certificateholders,
the Trust Fund, the other parties hereto or each other for errors in judgment
made in good faith in the reasonable exercise of their discretion while
performing their duties under this Section 3.18 except as provided in Section
6.03. In connection with performing their respective duties under this Section
3.18(a), both the Special Servicer and the Tax Administrator may consult with
counsel and tax accountants, the reasonable cost of which consultation shall be
covered by, and be reimbursable as, a Servicing Advance to be made by the
Special Servicer.
(b) If title to any Serviced REO Property, is acquired, the Special
Servicer shall manage, conserve, protect and operate such REO Property for the
benefit of the Certificateholders (or in the case of a Loan Combination REO
Property, in the best interest of the Certificateholders and the applicable
Companion Loan Noteholders (as a collective whole)) solely for the purpose of
its prompt disposition and sale in a manner that does not and will not: (i)
cause such REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the
Code; or (ii) except as contemplated by Section 3.18(a), either result in the
receipt by either REMIC Pool of any "income from non-permitted assets" within
the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC
Event or Adverse Grantor Trust Event. Subject to the foregoing, however, the
Special Servicer shall have full power and authority to do any and all things in
connection therewith as are consistent with the Servicing Standard and,
consistent therewith, shall withdraw from the applicable REO Account, to the
extent of amounts on deposit therein with respect to such REO Property, funds
necessary for the proper operation, management, maintenance and disposition of
such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the applicable REO Account
in respect of any Serviced REO Property are insufficient for the purposes set
forth in the preceding sentence with respect to such REO Property, the Special
Servicer, shall make Servicing Advances in such amounts as are necessary for
such purposes unless the Special Servicer determines, in accordance with the
Servicing Standard, that such payment would be a Nonrecoverable Advance;
provided, however, that the Special Servicer may make any such Servicing Advance
without regard to recoverability if it is a necessary fee or expense incurred in
connection with the defense or prosecution of legal proceedings. The Special
Servicer shall notify the Master Servicer if it shall have made any such
Servicing Advance within the previous 30-day period.
(c) Without limiting the generality of the foregoing, the Special
Servicer shall not, with respect to any Serviced REO Property:
(i) enter into, renew or extend any New Lease with respect to such
REO Property, if the New Lease, by its terms would give rise to any income
that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Except as provided in Section 3.18(a)(i), Directly Operate, or
allow any other Person, other than an Independent Contractor, to Directly
Operate any Mortgaged Property as REO Property on any date more than
ninety (90) days after the related REO Acquisition;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Special Servicer, as a Servicing
Advance, or, if such Servicing Advance would be a Nonrecoverable Advance, shall
be paid out of the Custodial Account as an Additional Trust Fund Expense) to the
effect that such action would not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code for
purposes of Section 860D(a) of the Code at any time that it is held by the
Lower-Tier REMIC, in which case the Special Servicer may take such actions as
are specified in such Opinion of Counsel.
(d) The Special Servicer may, and if so required to prevent the REO
Property from failing to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code, shall contract with any Independent Contractor
for the operation and management of any Serviced REO Property (including the
requirements for establishing REO Accounts), provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust Fund or with respect to any Serviced Loan
Combination REO Property such fees shall be netted out of collections on
such Serviced Loan Combination Group REO Property prior to their being
remitted to the Special Servicer) shall be reasonable and customary in
consideration of the nature and locality of such REO Property;
(iii) except as permitted under Section 3.18(a), any such contract
shall require, or shall be administered to require, that the Independent
Contractor, in a timely manner, (A) pay out of related REO Revenues all
costs and expenses incurred in connection with the operation and
management of such REO Property, including those listed in Section 3.18(b)
above, and (B) except to the extent that such revenues are derived from
any services rendered by the Independent Contractor to tenants of such REO
Property that are not customarily furnished or rendered in connection with
the rental of real property (within the meaning of Treasury Regulations
Section 1.856-4(b)(5)), remit all related revenues collected (net of its
fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.18(d) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of such
REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations under Section 3.17 and this Section 3.18 for indemnification of
the Special Servicer by any such Independent Contractor, and nothing in this
Agreement shall be deemed to limit or modify such indemnification. No agreement
entered into pursuant to this Section 3.18(d) shall be deemed a Sub-Servicing
Agreement for purposes of Section 3.23.
Section 3.19 Sale of Mortgage Loans and REO Properties.
(a) The Master Servicer, the Special Servicer or the Trustee shall
sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO
Property only (i) on the terms and subject to the conditions set forth in this
Section 3.19, (ii) as otherwise expressly provided in or contemplated by
Sections 2.03(a) and 9.01 of this Agreement, (iii) in the case of the Loan
Combinations, subject to the requirements of, and Companion Loan Noteholder
rights set forth in, the related Co-Lender Agreement, and (iv) in the case of a
Mortgage Loan with a related mezzanine loan, in connection with a Mortgage Loan
default as set forth in the related intercreditor agreement.
(b) The Special Servicer, any single Holder or any group of
Certificateholders evidencing a majority of the Voting Rights allocated to the
Controlling Class and any assignees (other than an assignee whose purchase of
such Specially Serviced Mortgage Loan would violate the terms of any related
mezzanine loan intercreditor agreement or Co-Lender Agreement) of the foregoing
parties (collectively, the "Purchase Option Holders") shall each have the option
to purchase a Specially Serviced Mortgage Loan at a cash price that is at least
equal to the Purchase Price. In addition, if such Specially Serviced Mortgage
Loan is part of a Loan Combination as to which there is a Pari Passu Companion
Loan that has been securitized, the Special Servicer shall also send a copy of
the notice described above to the trustee under the related pooling and
servicing agreement.
(c) If none of the Purchase Option Holders exercises its option to
purchase any Specially Serviced Mortgage Loan as described in subsection (b)
above, then each Purchase Option Holder (other than an assignee whose purchase
of such Specially Serviced Mortgage Loan would violate the terms of any related
mezzanine loan intercreditor agreement or co-lender agreement) will also have
the option to purchase that Specially Serviced Mortgage Loan at a price equal to
the fair value of such Specially Serviced Mortgage Loan (the "FV Price"). Any
single Certificateholder or group of Certificateholders evidencing a majority of
the Voting Rights allocated to the Controlling Class shall have the exclusive
right to purchase the related Specially Serviced Mortgage Loan for sixty (60)
days after receipt of the Special Servicer's report of such FV Price.
Upon receipt of a request from any Purchase Option Holder to
determine the FV Price in contemplation of its intention to exercise its option
to purchase a Specially Serviced Mortgage Loan at a price that is below the
Purchase Price, the Special Servicer shall promptly obtain an MAI appraisal of
the related Mortgaged Property by an Independent Appraiser (unless such an
appraisal was obtained within one year of such date and the Special Servicer has
no knowledge of any circumstances that would materially affect the validity of
such appraisal). Promptly after obtaining such appraisal, the Special Servicer
shall determine the FV Price in accordance with the Servicing Standard and the
provisions of subsection (i) below. Promptly after determining the FV Price, the
Special Servicer shall report such FV Price to the Trustee and each Purchase
Option Holder.
With respect to any Serviced Loan Combination, the Purchase Option
Holders will only have the right to purchase the related Loan Combination Trust
Mortgage Loan. With respect to each such Specially Serviced Mortgage Loan that
is part of a Loan Combination as to which there is a Pari Passu Companion Loan
that has been securitized, the Special Servicer shall also send a copy of the
notice containing the FV Price described above to the parties under the related
pooling and servicing agreement that have the equivalent rights as the Purchase
Option Holders under this Agreement.
(d) In the event that the Special Servicer determines that it is
willing, or another Purchase Option Holder notifies the Special Servicer that it
is willing, to purchase any Specially Serviced Mortgage Loan (the party
submitting such bid, the "Initial Bidder") at a price equal to or above the FV
Price (a "FV Bid"), the Special Servicer shall notify all other Purchase Option
Holders that it has made or received, as the case may be, such FV Bid (without
disclosing the amount of such FV Bid). All other Purchase Option Holders may
submit competing bids within the ten Business Day period following such notice.
At the conclusion of the above-described ten Business Day period, the Special
Servicer shall accept the highest bid received from any Purchase Option Holder
that is at least equal to the FV Price.
(e) If the Special Servicer accepts the bid of any Purchase Option
Holder, such Purchase Option Holder shall be required to purchase the subject
Specially Serviced Mortgage Loan within ten (10) Business Days of receipt of
notice of such acceptance.
(f) If the Special Servicer has not accepted a FV Bid prior to the
expiration of one hundred twenty (120) days from the Special Servicer's most
recent determination of the FV Price and thereafter receives a FV Bid or a
request from a Purchase Option Holder for an updated FV Price, the Special
Servicer shall within forty-five (45) days recalculate the FV Price (with no
presumption that such FV Price should be reduced on account of the lack of an FV
Bid) and repeat the notice and bidding procedure provided in subsection (d)
above until the purchase option terminates under subsection (j) below. In
connection with such recalculation, the Special Servicer may obtain an updated
Appraisal if it determines that market conditions or conditions at the mortgaged
property warrant an updated Appraisal. In addition, the Special Servicer shall
recalculate the FV Price of any Mortgage Loan if there has been a material
change in circumstances of which the Special Servicer is aware or the Special
Servicer has received new information, either of which has a material effect on
the fair value.
(g) If the party exercising the purchase option at the FV Price for
any Specially Serviced Mortgage Loan is the Special Servicer or an Affiliate
thereof, the Trustee shall verify that the FV Price is at least equal to the
fair value of such Mortgage Loan. In determining whether the FV Price is at
least equal to the fair value of such Mortgage Loan the Trustee will be
permitted to conclusively rely on an appraisal obtained by the Trustee from an
Independent Appraiser at the time it is required to verify the FV Price and/or
the opinion of an Independent expert in real estate matters (including the
Master Servicer) with at least five (5) years' experience in valuing or
investing in loans, similar to such Mortgage Loan, that has been selected by the
Trustee with reasonable care at the expense of the Trust Fund.
(h) Any Purchase Option Holder may, once such option is exercisable,
assign its purchase option with respect to any Specially Serviced Mortgage Loan
to a third party other than another Purchase Option Holder or any Person whose
purchase of such Specially Serviced Mortgage Loan would violate any restrictions
contained in any mezzanine intercreditor agreement or any Co-Lender Agreement
and upon such assignment such third party shall have all of the rights that had
been granted to the Purchase Option Holder hereunder in respect of the purchase
option. Such assignment shall only be effective upon written notice (together
with a copy of the executed assignment and assumption agreement) being delivered
to the Trustee, the Master Servicer and the Special Servicer.
(i) Subject to Section 3.09 and the other provisions of this Section
3.19, in determining the FV Price for any Specially Serviced Mortgage Loan, the
Special Servicer may take into account, among other factors, the results of any
appraisal or updated appraisal that it or the Master Servicer may have obtained
in accordance with this Agreement within the prior twelve (12) months; the
opinions on fair value expressed by Independent investors in mortgage loans
comparable to the subject Specially Serviced Mortgage Loan; the period and
amount of any delinquency on the subject Specially Serviced Mortgage Loan; the
physical condition of the related Mortgaged Property; the state of the local
economy; and the expected recoveries from the subject Specially Serviced
Mortgage Loan if the Special Servicer were to pursue a workout or foreclosure
strategy instead of selling such Mortgage Loan to a Purchase Option Holder.
(j) The purchase option for any Specially Serviced Mortgage Loan
pursuant to this Section 3.19 shall terminate, and shall not be exercisable as
set forth in subsections (b) and (c) above (or if exercised, but the purchase of
the subject Mortgage Loan has not yet occurred, shall terminate and be of no
further force or effect) if and when (i) such Specially Serviced Mortgage Loan
has become a Corrected Mortgage Loan, (ii) the related Mortgaged Property has
become an REO Property or (iii) a Final Recovery Determination has been made
with respect to such Specially Serviced Mortgage Loan.
(k) Until such time as an FV Bid is accepted and the related
Specially Serviced Mortgage Loan is sold in connection therewith, the Special
Servicer shall continue to pursue all of the other resolution options available
to it with respect to the Specially Serviced Mortgage Loan in accordance with
the Servicing Standard.
(l) Notwithstanding anything to the contrary herein, the holders of
the related Companion Loan shall be entitled to purchase the related Loan
Combination Trust Mortgage Loans in accordance with the terms and conditions set
forth in the related Co-Lender Agreement, even after it has been purchased out
of the Trust Fund pursuant to this Section 3.19. The Special Servicer shall
determine the price to be paid in accordance with the terms of the related
Co-Lender Agreement in connection with any such purchase and shall provide such
notices to the appropriate Companion Loan Noteholders, as are required by the
related Co-Lender Agreement in connection with each such holders' purchase
rights.
(m) Any purchase of a Specially Serviced Mortgage Loan that is
purchased pursuant to this Section 3.19 will remain subject to the cure and
purchase rights of, in each case if applicable, the related Companion Loan
Noteholders as set forth in the related Co-Lender Agreement and any holder of a
related mezzanine loan in connection with a Loan default as set forth in the
related intercreditor agreement.
(n) The Special Servicer shall use its best efforts to solicit bids
for each REO Property in such manner that is in accordance with the Servicing
Standard and that is within the time period provided for by Section 3.17(a).
Subject to Section 6.11, the Special Servicer shall accept the first (and, if
multiple bids are received contemporaneously or subsequently, the highest) cash
bid received from any Person that constitutes a fair price for such REO
Property, as determined pursuant to Section 3.19(q). If the Special Servicer
reasonably believes that it will be unable to realize a fair price for any REO
Property within the time constraints imposed by Section 3.17(a), then (subject
to Section 6.11) the Special Servicer shall dispose of such REO Property upon
such terms and conditions as the Special Servicer shall deem necessary and
desirable to maximize the recovery thereon under the circumstances and, in
connection therewith, shall accept the highest outstanding cash bid, regardless
of from whom received.
(o) The Special Servicer shall give the Trustee and the Depositor
written notice of its intention to sell any REO Property pursuant to this
Section 3.19 at least five Business Days prior thereto.
(p) No Interested Person shall be obligated to submit a bid to
purchase any REO Property, and notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates may
bid for or purchase any REO Property pursuant hereto.
(q) Whether any cash bid constitutes a fair price for any REO
Property for purposes of this Section 3.19, shall be determined by the Special
Servicer or, if such cash bid is from an Interested Person, by the Trustee. In
determining whether any bid received from an Interested Person represents a fair
price for any REO Property, the Trustee shall be supplied with and shall be
entitled to rely on the most recent appraisal in the related Servicing File
conducted in accordance with this Agreement within the preceding 12-month period
(or, in the absence of any such appraisal or if there has been a material change
at the subject property since any such appraisal, on a new appraisal to be
obtained by the Special Servicer (the cost of which shall be covered by, and be
reimbursable as, a Servicing Advance)). The appraiser conducting any such new
appraisal shall be an Independent Appraiser selected by the Special Servicer if
neither the Special Servicer nor any Affiliate thereof is bidding with respect
to an REO Property and selected by the Trustee if either the Special Servicer or
any Affiliate thereof is so bidding. Where any Interested Person is among those
bidding with respect to an REO Property, the Special Servicer shall require that
all bids be submitted to it (and, if the Special Servicer or any Affiliate
thereof is bidding, to the Trustee) in writing and be accompanied by a
refundable deposit of cash in an amount equal to 5% of the bid amount. In
determining whether any bid from a Person other than an Interested Person
constitutes a fair price for any REO Property, the Special Servicer shall take
into account the results of any appraisal or updated appraisal that it or the
Master Servicer may have obtained in accordance with this Agreement within the
prior twelve (12) months, and any Independent Appraiser shall be instructed to
take into account, as applicable, among other factors, the occupancy level and
physical condition of the subject REO Property, the state of the local economy
and the obligation to dispose of the subject REO Property within the time period
specified in Section 3.17(a). The Purchase Price for any REO Property shall in
all cases be deemed a fair price. Notwithstanding the other provisions of this
Section 3.19, no cash bid from the Special Servicer or any Affiliate thereof
shall constitute a fair price for any REO Property unless such bid is the
highest cash bid received and at least two independent bids (not including the
bid of the Special Servicer or any Affiliate) have been received. In the event
the bid of the Special Servicer or any Affiliate thereof is the only bid
received or is the higher of only two bids received, then additional bids shall
be solicited. If an additional bid or bids, as the case may be, are received and
the original bid of the Special Servicer or any Affiliate thereof is the highest
of all cash bids received, then the bid of the Special Servicer or such
Affiliate shall be accepted, provided that the Trustee has otherwise determined,
as provided above in this Section 3.19(q), that such bid constitutes a fair
price for any REO Property. Any bid by the Special Servicer shall be
unconditional; and, if accepted, the subject REO Property shall be transferred
to the Special Servicer without recourse, representation or warranty other than
customary representations as to title given in connection with the sale of a
real property.
(r) Subject to Sections 3.19(a) through 3.19(g) above, and further
subject to Section 6.11, the Special Servicer shall act on behalf of the Trustee
in negotiating with independent third parties seeking to purchase an REO
Property and taking any other action necessary or appropriate in connection with
the sale of any Specially Serviced Mortgage Loan or REO Property pursuant to
this Section 3.19, and the collection of all amounts payable in connection
therewith. In connection therewith, the Special Servicer may charge prospective
bidders for any REO Property, and may retain, fees that approximate the Special
Servicer's actual costs in the preparation and delivery of information
pertaining to, or evaluating bids for, such REO Property without obligation to
deposit such amounts into the Pool Custodial Account. Any sale of a Specially
Serviced Mortgage Loan or an REO Property pursuant to this Section 3.19 shall be
final and without recourse to the Trustee or the Trust, and if such sale is
consummated in accordance with the terms of this Agreement, neither the Special
Servicer nor the Trustee shall have any liability to any Certificateholder with
respect to the purchase price therefor accepted by the Special Servicer or the
Trustee.
(s) Any sale of a Specially Serviced Mortgage Loan or an REO
Property pursuant to this Section 3.19 shall be for cash only and shall be on a
servicing released basis.
Section 3.20 Additional Obligations of the Master Servicer;
Obligations to Notify Ground Lessors; the Special Servicer's Right to Request
the Master Servicer to Make Servicing Advances.
(a) The Master Servicer shall deliver to the Trustee for deposit in
the Distribution Account on each Master Servicer Remittance Date, without any
right of reimbursement therefor, an amount equal to the lesser of (i) the
aggregate amount of all Prepayment Interest Shortfalls, if any, incurred in
connection with Principal Prepayments received during the most recently ended
Collection Period with respect to Performing Serviced Loans in the Mortgage Pool
and (ii) the aggregate of all Master Servicing Fees received by the Master
Servicer during such Collection Period with respect to the entire Mortgage Pool
(but only to the extent of that portion thereof calculated at a rate of 0.01%
per annum with respect to each and every Serviced Loan and each and every REO
Mortgage Loan that was previously a Serviced Loan); provided, however, that if
any such Prepayment Interest Shortfall occurs as a result of the Master
Servicer's allowing the Mortgagor to deviate from the terms of the related
Mortgage Loan documents regarding Principal Prepayments, the Master Servicer
shall be obligated to pay an amount equal to the entire Prepayment Interest
Shortfall with respect to the subject Serviced Loan without any limitation of
the kind set forth in clause (ii) of this sentence.
(b) The Master Servicer shall, as to each Serviced Loan which is
secured by the interest of the related Mortgagor under a Ground Lease, even if
the corresponding fee interest is encumbered, promptly (and in any event within
sixty (60) days) following the Closing Date, notify the related ground lessor of
the transfer of such Serviced Loan to the Trust Fund pursuant to this Agreement
and inform such ground lessor that any notices of default under the related
Ground Lease should thereafter be forwarded to the Master Servicer.
(c) Within sixty (60) days after the later of (i) the Closing Date
and (ii) the Master Servicer's receipt of the applicable letter of credit, the
Master Servicer shall notify each provider of a letter of credit for each
Serviced Loan identified as having a letter of credit on the Mortgage Loan
Schedule, that the Master Servicer or the Special Servicer on behalf of the
Trustee for the benefit of the Certificateholders shall be the beneficiary under
each such letter of credit. If a draw upon a letter of credit is needed before
its transfer to the Trust Fund can be completed, the applicable Mortgage Loan
Seller shall draw upon such letter of credit for the benefit of the Trust
pursuant to written instructions from the Master Servicer.
(d) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor in a hospitality property, not
later than the later of (i) thirty (30) days following the Master Servicer's
receipt of the subject franchise agreement and (ii) the expiration of the period
that may be required for such notice pursuant to the terms of the applicable
franchise documents, if any, notify the related hospitality franchisor of the
transfer of such Mortgage Loan to the Trust Fund pursuant to this Agreement and
inform such hospitality franchisor that any notices of default under the related
franchise agreement should thereafter be forwarded to the Master Servicer (and
also to the Special Servicer if such Mortgage Loan becomes a Specially Serviced
Mortgage Loan).
Section 3.21 Modifications, Waivers, Amendments and Consents;
Defeasance.
(a) Subject to Sections 3.21(b) through 3.21(f) below, and further
subject to Section 6.11, the Special Servicer (or, under the limited
circumstances set forth in Section 3.21(c), the Master Servicer) may, on behalf
of the Trustee and, in the case of the Companion Loans, any Companion Loan
Noteholder, agree to any modification, extension, waiver or amendment of any
term of any Serviced Loan and respond to various Mortgagor requests for consent
on the part of the mortgagee (including the lease reviews and lease consents
related thereto), without the consent of the Trustee, any Certificateholder, any
Companion Loan Noteholder, the Master Servicer (in the case of any such action
taken by the Special Servicer) or, except as expressly set forth below, the
Special Servicer (in the case of any such action taken by the Master Servicer).
(b) All modifications, extensions, waivers or amendments of any
Serviced Loan, including the lease reviews and lease consents related thereto,
shall be in writing and shall be considered and effected in a manner consistent
with the Servicing Standard.
(c) In the case of any Performing Serviced Loan, and subject to the
rights of the Special Servicer set forth below, the Master Servicer shall be
responsible for responding to any request by a Mortgagor for the consent or
approval of the mortgagee with respect to a modification, extension, waiver or
amendment of any term thereof of the type described in clauses (i) through (xi)
below, provided that such consent or approval or such modification, extension,
waiver or amendment would not (except as permitted by Sections 3.02(a), 3.03(d),
3.07, and 3.08(a) hereof) affect the amount or timing of any of the payment
terms of such Mortgage Loan (including payment terms related to late payment
charges, but excluding Default Interest and other amounts constituting servicing
compensation), result in the release of the related Mortgagor from any material
term thereunder, waive any rights thereunder with respect to any guarantor
thereof, relate to the release, addition or substitution of any material
collateral for such Mortgage Loan or relate to any waiver of or granting of
consent under a "due-on-sale" or "due-on-encumbrance" clause. With respect to
any action proposed to be taken by the Master Servicer under this Section
3.21(c) where the thresholds in clauses (i) through (xi) of the next sentence
are exceeded, or which involves the situations set forth in the proviso to the
previous sentence, the Special Servicer only may take such action. To the extent
consistent with the foregoing, but subject to Section 3.21(f), the Master
Servicer shall also be responsible for the following with respect to the
Performing Serviced Loans:
(i) consent to subordination of the related Mortgage Loan to an
easement or right of way for utilities, access, parking, public
improvements or another similar purpose;
(ii) grant waivers of minor covenant defaults (other than financial
covenants) including late financial statements and approving any waiver
affecting the timing of receipt of financial statements from any
Mortgagor; provided that such financial statements are delivered no less
than quarterly and within sixty (60) days of the end of the calendar
quarter to which such financial statements relate;
(iii) grant releases of non-material parcels of a Mortgaged Property
(provided that releases as to which the related Mortgage Loan documents
expressly require the mortgagee thereunder to make releases upon the
satisfaction of certain conditions (which do not provide for lender
consent or lender discretion) shall be made as required by the related
Mortgage Loan documents);
(iv) approve or consent to grants of easements and rights of way
that do not materially affect the use or value of a Mortgaged Property or
the Mortgagor's ability to make any payments with respect to the related
Mortgage Loan;
(v) grant other non-material waivers, consents, modifications or
amendments;
(vi) approve routine leasing activity with respect to leases for
less than the lesser of (A) 50,000 square feet and (B) 30% of the related
Mortgaged Property;
(vii) approve annual budgets for the related Mortgaged Property,
provided that no such budget (A) provides for the payment of operating
expenses in an amount equal to more than 110% of the amounts budgeted
therefor for the prior year or (B) provides for the payment of any
material expenses to any affiliate of the Mortgagor (other than with
respect to the payment of the management fee to any property manager if
such management fee is no more than the management fee in effect on the
Cut-off Date);
(viii) approve a change of the property manager at the request of
the related Mortgagor, provided that (A) the successor property manager is
not affiliated with the Mortgagor and is a nationally or regionally
recognized manager of similar properties, and (B) the related Serviced
Loan does not have a principal balance of more than $5,000,000;
(ix) subject to other restrictions herein regarding Principal
Prepayments, waiving any provision of a Mortgage Loan requiring a
specified number of days notice prior to a Principal Prepayment;
(x) approving modifications, consents or waivers in connection with
a defeasance permitted by the terms of the related Mortgage Loan or Loan
Combination if the Master Servicer receives an opinion of counsel (which
opinion of counsel will be an expense of the Mortgagor) to the effect that
such modification, waiver or consent would not cause either REMIC Pool to
fail to qualify as a REMIC under the Code or result in a "prohibited
transaction" under the REMIC Provisions, provided that such modification
does not permit Defeasance Collateral other than U.S. Treasuries, REFCOs,
Fannies or Freddies; and
(xi) with respect to the Mortgage Loan secured by the Mortgaged
Property known as Continental Towers, consent to the foreclosure of the
subordinated mortgage encumbering the related Mortgaged Property pursuant
to the terms of the related Mortgagor's organizational documents and in
accordance with the related Loan Documents, provided that it has received
Rating Agency Confirmation.
Except as permitted by Section 3.02(a), Section 3.03(d), Section
3.07, Section 3.08(a), this Section 3.21(c), and Section 3.21(l), the Master
Servicer may not agree to waive, modify or amend any term of any Mortgage Loan
or respond to any Mortgagor requests for mortgagee consent. Furthermore, the
Master Servicer may not agree to any modification, extension, waiver or
amendment of any term of any Mortgage Loan that would cause an Adverse REMIC
Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with
respect to the Grantor Trust.
(d) Except as provided in Section 3.02(a), Section 3.07, Section
3.08 or Section 3.21(e), the Special Servicer, on behalf of the Trustee and, in
the case of a Companion Loan, the related Companion Loan Noteholders, shall not
agree or consent to any modification, extension, waiver or amendment of any term
of any Serviced Loan that would:
(i) affect the amount or timing of any scheduled payment of
principal, interest or other amount (including Prepayment Premiums or
Yield Maintenance Charges, but excluding Default Interest and other
amounts payable as additional servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or effect the waiver of any
prepayment restriction thereunder or permit a Principal Prepayment during
any period in which the related Mortgage Note prohibits Principal
Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(d), result in a release of the lien of the
Mortgage on any material portion of the related Mortgaged Property without
a corresponding Principal Prepayment in an amount not less than the fair
market value (as determined by an appraisal by an Independent Appraiser
delivered to the Special Servicer at the expense of the related Mortgagor
and upon which the Special Servicer may conclusively rely) of the property
to be released; or
(iv) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impair the security for such Mortgage Loan or reduce
the likelihood of timely payment of amounts due thereon.
Notwithstanding the prior provisions of this Section 3.21(d), and
subject to the Servicing Standard, and further subject to clause (C) of the
first paragraph of, and the entire second paragraph of, Section 3.21(e) and
Section 6.11, following any extensions of the maturity date of a Performing
Serviced Loan that the Master Servicer is permitted to approve pursuant to
Section 3.21(c), the Special Servicer may extend the maturity date of a
Performing Serviced Loan for up to one year (subject to a limit of a total of
four such one-year extensions); provided that the related Mortgagor has failed
to make any Balloon Payment on such Performing Serviced Loan. In connection with
an extension of the maturity date of a Performing Serviced Loan approved by the
Special Servicer in accordance with this subsection (d), the Special Servicer
shall process all requests and related documentation and shall be entitled to
retain 100% of any modification fee or extension fee that is actually paid by
the related Mortgagor. The Special Servicer shall promptly notify the Master
Servicer of any extension granted by the Special Servicer in accordance with
this paragraph.
(e) Notwithstanding Section 3.21(d), but subject to Section 6.11 and
the second paragraph of this Section 3.21(e), the Special Servicer may (i)
reduce the amounts owing under any Specially Serviced Mortgage Loan by forgiving
principal, accrued interest or any Prepayment Premium or Yield Maintenance
Charge, (ii) reduce the amount of the Monthly Payment on any Specially Serviced
Mortgage Loan, including by way of a reduction in the related Mortgage Rate,
(iii) forbear in the enforcement of any right granted under any Mortgage Note,
Mortgage or other Mortgage Loan document relating to a Specially Serviced
Mortgage Loan, (iv) accept a Principal Prepayment on any Specially Serviced
Mortgage Loan during any Lockout Period or (v) extend the maturity of any
Specially Serviced Mortgage Loan; provided that (A) the related Mortgagor is in
monetary default or material non-monetary default with respect to such Specially
Serviced Mortgage Loan or, in the reasonable, good faith judgment of the Special
Servicer, such default is reasonably foreseeable, (B) in the reasonable, good
faith judgment of the Special Servicer, such modification, extension, waiver or
amendment would increase the recovery on such Specially Serviced Mortgage Loan
to Certificateholders (as a collective whole) or, if a Loan Combination is
involved, would increase the recovery on such Loan Combination to
Certificateholders and related Companion Loan Noteholders (as a collective
whole), on a present value basis (the relevant discounting of anticipated
collections that will be distributable to the Certificateholders (or, in the
case of the Loan Combinations, to Certificateholders and related Companion Loan
Noteholders), to be performed at a rate (a) taking into account the related
Mortgage Rate (or, in the case of a Loan Combination, at the weighted average of
the Mortgage Rates for such Loan Combination) in each case), in each case and in
the case of any ARD Loan or related REO Loan after its Anticipated Repayment
Date, net of the related Additional Interest Rate and (b) taking into account
the risk of collection, and (C) such modification, extension, waiver or
amendment would not cause an Adverse REMIC Event in respect of either REMIC Pool
or an Adverse Grantor Trust Event with respect to the Grantor Trust; and
provided, further, that (i) any modification, extension, waiver or amendment of
the payment terms of a Loan Combination shall be structured so as to be
consistent with the allocation and payment priorities set forth in the related
Loan documents and the related Co-Lender Agreement, such that neither the Trust
as holder of the related Mortgage Loan nor the related Companion Loan
Noteholders shall gain a priority over the other such Holder with respect to any
payment, which priority is not, as of the date of the related Co-Lender
Agreement, reflected in the related Loan documents and such Co-Lender Agreement
and (ii) any waiver, reduction or deferral of any particular amount due on any
Loan in a Loan Combination or reduction of any Mortgage Rate on any Loan in a
Loan Combination shall be allocated in the manner set forth in the related
Co-Lender Agreement.
In no event shall the Special Servicer: (i) extend the maturity date
of a Serviced Loan beyond the date that is two (2) years prior to the Rated
Final Distribution Date; (ii) extend the maturity date of any Serviced Loan for
more than five (5) years beyond its Stated Maturity Date; or (iii) if the
Serviced Loan is secured solely or primarily by a Mortgage on the leasehold
interest under a Ground Lease (but not the related fee interest), extend the
maturity date of such Serviced Loan beyond the date which is twenty (20) years
(or, to the extent consistent with the Servicing Standard, giving due
consideration to the remaining term of the Ground Lease, ten (10) years) prior
to the expiration of the term of such Ground Lease.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 3.21(e) shall be evidenced
by an Officer's Certificate to such effect delivered to the Trustee and the
Master Servicer (and, in the case of a Loan Combination, the affected Companion
Loan Noteholders) and describing in reasonable detail the basis for the Special
Servicer's determination. The Special Servicer shall attach to such Officer's
Certificate any information including but not limited to income and expense
statements, rent rolls, property inspection reports and appraisals that support
such determination.
(f) Notwithstanding anything to the contrary in this Agreement,
neither the Master Servicer nor the Special Servicer, as applicable, shall give
any consent, approval or direction regarding the termination of the related
property manager or the designation of any replacement property manager or, if
such Mortgaged Property is hospitality property, give any consent, approval or
direction regarding the termination of the franchise or the designation of a new
franchise, with respect to any Mortgaged Property that secures (A) the Companion
Loans or (B) a Serviced Loan that (I) has an unpaid principal balance that is at
least equal to the lesser of $35,000,000 and 5% of the then aggregate principal
balance of the Mortgage Pool or (II) is one of the ten largest Mortgage Loans
(by Stated Principal Balance, including all other Mortgage Loans that are
crossed-collateralized and cross-defaulted with such Mortgage Loan), unless: (1)
the mortgagee is not given discretion under the terms of the related Loan; or
(2) it has Rating Agency Confirmation from each Rating Agency with respect to
such action.
Any party hereto seeking Rating Agency Confirmation with respect to
the matters described above shall deliver a Review Package to such Rating
Agency.
(g) Any payment of interest that is deferred pursuant to any
modification, extension, waiver or amendment permitted hereunder, shall not, for
purposes hereof, including calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Mortgage Loan, notwithstanding that the terms of such
modification, extension, waiver or amendment so permit. The foregoing shall in
no way limit the Special Servicer's ability to charge and collect from the
Mortgagor costs otherwise collectible under the terms of the related Mortgage
Note.
(h) The Special Servicer or Master Servicer may, as a condition to
granting any request by a Mortgagor for consent, modification, extension, waiver
or indulgence or any other matter or thing, the granting of which is within its
discretion pursuant to the terms of the instruments evidencing or securing the
related Mortgage Loan and, further, by the terms of this Agreement and
applicable law, require that such Mortgagor pay to it (i) as additional
servicing compensation, a reasonable or customary fee for the additional
services performed in connection with such request, provided such fee does not
cause a "significant modification" of the Mortgage Loan pursuant to Treasury
Regulations Sections 1.1001-3(e)(2) or 1.860G-2(b), and (ii) any related costs
and expenses incurred by it. Any such fee that is to be shared by the Master
Servicer and the Special Servicer may not be waived or reduced by either such
party without the consent of the other party. In no event shall the Special
Servicer or Master Servicer be entitled to payment for such fees or expenses
unless such payment is collected from the related Mortgagor.
(i) The Special Servicer, with respect to Specially Serviced
Mortgage Loans, and the Master Servicer, with respect to Performing Serviced
Loans, shall each notify the other, any related Sub-Servicers, the Trustee and,
where a Companion Loan is affected, the related Companion Loan Noteholder, in
writing, of any modification, extension, waiver or amendment of any term of any
Mortgage Loan (including fees charged the Mortgagor) agreed to by the Special
Servicer or the Master Servicer, as applicable, and the date thereof, and shall
deliver to the Trustee or any related Custodian for deposit in the related
Mortgage File (with a copy to be delivered to or retained by, as applicable, the
Master Servicer), an executed counterpart of the agreement relating to such
modification, extension, waiver or amendment promptly following execution and
delivery thereof, to be followed by an original recorded counterpart promptly
following the recordation (and receipt).
(j) To the extent that either the Master Servicer or Special
Servicer waives any Default Charge in respect of any Serviced Loan, whether
pursuant to Section 3.02(a) or this Section 3.21, the respective amounts of
additional servicing compensation payable to the Master Servicer and the Special
Servicer as Net Default Charges out of such Default Charges shall be reduced
proportionately based upon the respective amounts that would have been payable
thereto as Net Default Charges out of such Default Charges if such waiver had
not been granted.
(k) With respect to any Serviced Loan that permits the release of
Mortgaged Properties through defeasance, to the extent permitted under the
related Mortgage Loan documents, the Master Servicer shall, subject to the next
paragraph and the related Mortgage Loan documents, (1) notify each Rating
Agency, the Trustee, the Underwriters and the Special Servicer upon receipt of a
Mortgagor's notice of defeasance of such Mortgage Loan, (2) obtain the written
confirmation from each Rating Agency that the acceptance of a pledge of the
Defeasance Collateral will not result in an Adverse Rating Event with respect to
the Certificates or any Companion Loan Securities, and (3) take such further
action as provided in such Mortgage Note to effectuate such defeasance,
including the purchase and perfection of the Defeasance Collateral on behalf of
the Trustee (as mortgagee of record on behalf of the Certificateholders and, in
the case of the Companion Loans, the related Companion Loan Noteholders). The
confirmation described in clause (2) above shall not be required:
(i) from S&P in the case of a Serviced Loan with an unpaid principal
balance less than or equal to $35,000,000 and constitutes less than 5% of
the aggregate unpaid principal balance of the Mortgage Pool, and is not
then one of the ten largest (measured by unpaid principal balance)
Mortgage Loans in the Mortgage Pool; or
(ii) from Fitch in the case of any Serviced Loan that is not then
one of the ten largest (measured by unpaid principal balance) Mortgage
Loans in the Mortgage Pool and that is not then one of the ten largest
groups (measured by aggregate unpaid principal balance) of Mortgage Loans
with related Mortgagors;
provided that, in the case of (i) or (ii) above, such written confirmation shall
not be required from S&P and Fitch, as applicable, in the event the subject
Mortgage Loan complies with the then current applicable guidelines set forth by
such Rating Agency, or the unpaid principal balance of such Mortgage Loan, the
percentage such Mortgage Loan constitutes of the Mortgage Pool or the relative
size of such Mortgage Loan with respect to the Mortgage Pool, as applicable,
does not exceed the current applicable threshold for review as set forth by such
Rating Agency).
Notwithstanding the foregoing, but subject to the related Mortgage
Loan documents, the Master Servicer shall not permit a pledge of Defeasance
Collateral under a Defeasance Loan if (i) such defeasance would occur within two
(2) years of the Startup Day, (ii) if the Defeasance Collateral shall not be
Government Securities; (iii) such Defeasance Loan (or any applicable agreement
executed in connection with the related defeasance) provides that the Mortgagor
shall be liable for any shortfalls from such Defeasance Collateral or otherwise
be subject to recourse liability with respect to the Defeasance Loan (except for
any liability that, pursuant to the terms of the related Mortgage Loan
documents, survives such defeasance), (iv) all costs to be incurred in
connection with such defeasance (including Rating Agency fees, accountants' fees
and costs incurred in connection with any required opinions of counsel) would
not be paid by the related Mortgagor; provided, however, that if the related
Mortgage Loan documents do not require the Mortgagor to pay such costs, such
costs shall be paid as an Additional Trust Fund Expense out of the Custodial
Account and the Master Servicer shall provide notice to, and demand payment for
such costs from, the related Mortgage Loan Seller pursuant to Section 5(f) of
the related Mortgage Loan Purchase Agreement, or (v) unless such confirmation is
not required pursuant to the first paragraph of this Section 3.21(k), either
Rating Agency does not confirm in writing to the Master Servicer that the
acceptance of a pledge of the Defeasance Collateral in lieu of a prepayment will
not result in an Adverse Rating Event with respect to the Certificates or any
Companion Loan Securities.
All expenses related to the defeasance of a Defeasance Loan shall be
charged to the related Mortgagor or other responsible party.
In addition, notwithstanding the foregoing, with respect to the
Mortgage Loans originated or acquired by CWCapital and subject to defeasance,
the Primary Servicer has the right to establish and control the successor
borrower and to purchase the related defeasance collateral ("CWCapital
Defeasance Rights and Obligations"). In the event the Master Servicer receives
notice of a defeasance request with respect to a Mortgage Loan originated or
acquired by CWCapital and subject to defeasance, the Master Servicer shall
provide, upon receipt of such notice, written notice of such defeasance request
to CWCapital pursuant to the notice provisions of this Agreement.
(l) With respect to any ARD Loan after its Anticipated Repayment
Date, the Master Servicer shall be permitted, subject to obtaining the Special
Servicer's consent, to waive (such waiver to be in writing addressed to the
related Mortgagor, with a copy to the Trustee) all or any portion of the accrued
Post-ARD Additional Interest on any ARD Loan if (i) any ARD Loan is not a
Specially Serviced Mortgage Loan (on which the Special Servicer may waive
accrued Post-ARD Additional Interest pursuant to Section 3.21(e)), (ii) prior to
the related maturity date, the related Mortgagor has requested the right to
prepay the ARD Loan in full together with all payments required under the ARD
Loan in connection with such prepayment (except for all or a portion of such
accrued Post-ARD Additional Interest), and (iii) the Master Servicer has
determined, in its reasonable, good faith judgment, that the waiver of the
Trust's right to receive such accrued Post-ARD Additional Interest is reasonably
likely to produce a greater payment to Certificateholders (as a collective
whole) (or, if a Loan Combination is involved, to produce a greater payment to
the Certificateholders and the related Companion Loan Noteholders (as a
collective whole)) on a present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders (or, in
the case of a Loan Combination, to Certificateholders and the related Companion
Loan Noteholders) to be performed at the related Mortgage Rate (or, in the case
of a Loan Combination at the weighted average of the Mortgage Rates of such Loan
Combination) in each case, net of the applicable Additional Interest Rate) than
a refusal to waive the right to such Post-ARD Additional Interest; provided that
any such waiver of Post-ARD Additional Interest accrued on the Loan Combinations
shall be structured so as to be consistent with the allocation and payment
priorities set forth in the related Loan documents and the Co-Lender Agreement,
such that the Companion Loan Noteholders shall not gain any priority over the
Trust as holder of the Loan Combination Trust Mortgage Loans with respect to the
payment of such Post-ARD Additional Interest. The Master Servicer shall have no
liability to the Trust, the Certificateholders or any other Person so long as
such determination is exercised in accordance with the Servicing Standard.
Section 3.22 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.
(a) Within five Business Days after determining that a Servicing
Transfer Event has occurred with respect to any Loan that had otherwise been a
Performing Serviced Loan, and if the Master Servicer is not also the Special
Servicer, the Master Servicer shall promptly give notice thereof to the Special
Servicer and, with respect to any Loan Combination, to the related Companion
Loan Noteholder, and shall deliver a copy of the related Servicing File, to the
Special Servicer and shall use reasonable efforts to provide the Special
Servicer with all information, documents (or copies thereof) and records
(including records stored electronically on computer tapes, magnetic discs and
the like) relating to such Mortgage Loan, either in the Master Servicer's or any
of its directors', officers', employees', affiliates' or agents' possession or
control or otherwise available to the Master Servicer without undue burden or
expense, and reasonably requested by the Special Servicer to enable it to assume
its functions hereunder with respect thereto without acting through a
Sub-Servicer. The Master Servicer shall use reasonable efforts to comply with
the preceding sentence within five (5) Business Days of the occurrence of each
related Servicing Transfer Event; provided, however, that if the information,
documents and records requested by the Special Servicer are not contained in the
Servicing File, the Master Servicer shall have such period of time as reasonably
necessary to make such delivery. The Special Servicer may conclusively rely on
the Master Servicer's determination that a Servicing Transfer Event has occurred
giving rise to a Serviced Loan's becoming a Specially Serviced Mortgage Loan.
Neither the Master Servicer nor the Special Servicer shall be liable or in
default hereunder for any reasonable act or failure to act because of or arising
out of the other party's failure to deliver information, documents or records
with respect to any Specially Serviced Mortgage Loan in accordance with the
requirements hereof.
Upon determining that a Specially Serviced Mortgage Loan has become
a Corrected Mortgage Loan, and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof, and shall
within five (5) Business Days of such occurrence return the related Servicing
File, together with any and all new information, documents and records relating
to the subject Mortgage Loan that were not part of the Servicing File when it
was delivered to the Special Servicer, to the Master Servicer (or such other
Person as may be directed by the Master Servicer) and upon giving such notice,
and returning such Servicing File, to the Master Servicer (or such other Person
as may be directed by the Master Servicer), the Special Servicer's obligation to
service such Mortgage Loan, and the Special Servicer's right to receive the
Special Servicing Fee with respect to such Mortgage Loan shall terminate, and
the obligations of the Master Servicer to service and administer such Mortgage
Loan shall resume.
Notwithstanding anything herein to the contrary, in connection with
the transfer to the Special Servicer of the servicing of a Cross-Collateralized
Mortgage Loan as a result of a Servicing Transfer Event or the re-assumption of
servicing responsibilities by the Master Servicer with respect to any such
Mortgage Loan upon its becoming a Corrected Mortgage Loan, the Master Servicer
and the Special Servicer shall each transfer to the other, as and when
applicable, the servicing of all other Cross-Collateralized Mortgage Loans
constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Mortgage Loan at
anytime that a continuing Servicing Transfer Event exists with respect to
another Cross-Collateralized Mortgage Loan in the same Cross-Collateralized
Group.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Custodian originals of newly executed documents
included within the definition of "Mortgage File" for inclusion in the related
Mortgage File (with a copy of each such original to the Master Servicer), and
shall provide to the Master Servicer copies of any additional related Mortgage
Loan information, including correspondence with the related Mortgagor.
(c) Upon request (and to the extent not otherwise already provided
by the Special Servicer pursuant to its reporting obligations hereunder), the
Special Servicer shall deliver to the Master Servicer, the Trustee and each
Rating Agency (or such other Person as may be directed by the Master Servicer) a
statement in writing and in computer readable format (the form of such statement
to be agreed upon by the Master Servicer and the Special Servicer) describing,
on a loan-by-loan and property-by-property basis, (1) insofar as it relates to
Specially Serviced Mortgage Loans and REO Properties, the information described
in clauses (vi) through (xvii) of Section 4.02(a) (with respect to information
set forth in such clauses related to prior Distribution Dates and/or periods,
the Special Servicer may conclusively rely on information furnished to it by the
Master Servicer or the Trustee) and, insofar as it relates to the Special
Servicer, the information described in clauses (xxvi) and (xxxii) of Section
4.02(a), (2) the amount of all payments, Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds received, and the amount of any Realized Loss
incurred, with respect to each Specially Serviced Mortgage Loan during the
related Collection Period, and the amount of Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds received, and the amount of any Realized Loss
incurred, with respect to each REO Property during the related Collection
Period, (3) the amount, purpose and date of all Servicing Advances made by the
Special Servicer with respect to each Specially Serviced Mortgage Loan and REO
Property during the related Collection Period, (4) in writing, a brief narrative
summary of the status of each Specially Serviced Mortgage Loan, (5) the CMSA
Special Servicer Loan File and (6) such additional information relating to the
Specially Serviced Mortgage Loans and REO Properties as the Master Servicer
reasonably requests to enable it to perform its responsibilities under this
Agreement. Notwithstanding the foregoing provisions of this subsection (c), the
Master Servicer shall maintain ongoing payment records with respect to each of
the Specially Serviced Mortgage Loans and REO Properties and shall provide the
Special Servicer with any information reasonably available to the Master
Servicer required by the Special Servicer to perform its duties under this
Agreement.
Section 3.23 Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer may enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of their respective obligations hereunder; provided, however, that
following the Closing Date, for so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Master Servicer and the Primary Servicer
may not appoint any Person as a Sub-Servicer that is a Prohibited Party;
provided, further, that in each case, the Sub-Servicing Agreement:
(i) is consistent with this Agreement in all material respects,
requires the Sub-Servicer to comply with all of the applicable conditions
of this Agreement (including, to the extent applicable, the requirements
of Article XI) and, with the exception of Sections 7.01(a)(x), (xi) and
(xiii), provides for events of default with respect to the Sub-Servicer
substantially the same as those set forth in Section 7.01 (modified as
necessary to apply to the Sub-Servicer's obligations under the
Sub-Servicing Agreement);
(ii) provides that if the Master Servicer or the Special Servicer,
as the case may be, shall for any reason no longer act in such capacity
hereunder (including by reason of an Event of Default), the Trustee or its
designee may thereupon assume all of the rights and, except to the extent
they arose prior to the date of assumption, obligations of the Master
Servicer or the Special Servicer, as the case may be, under such agreement
or may terminate such Sub-Servicing Agreement without cause and without
payment of any penalty or termination fee (provided, however, that those
Sub-Servicing Agreements in effect as of the Closing Date (or, if being
negotiated as of the Closing Date, in effect within ninety (90) days
thereafter) may only be terminated by the Trustee or its designee as
contemplated by Section 3.23(d) hereof and in such additional manner as is
provided in such Sub-Servicing Agreement);
(iii) provides that the Depositor and the Trustee, for the benefit
of the Certificateholders and, in the case of a Sub-Servicing Agreement
relating to a Loan Combination, the related Companion Loan Noteholders,
shall each be a third party beneficiary under such agreement, but that
(except to the extent the Trustee or its designee assumes the obligations
of the Master Servicer or the Special Servicer, as the case may be,
thereunder as contemplated by the immediately preceding clause (ii)) none
of the Depositor, the Trustee, the Trust, any successor Master Servicer or
the Special Servicer or any Companion Loan Noteholder, as the case may be,
or any Certificateholder shall have any duties under such agreement or any
liabilities arising therefrom;
(iv) permits any purchaser of a Serviced Loan pursuant to this
Agreement to terminate such agreement with respect to such purchased
Mortgage Loan at its option and without penalty;
(v) except with respect to a Primary Servicer, does not permit the
Sub-Servicer to enter into or consent to any modification, extension,
waiver or amendment or otherwise take any action on behalf of the Master
Servicer or the Special Servicer contemplated by Section 3.08, Section
3.09 and Section 3.21 hereof or to foreclose on any Mortgage without the
consent of the Master Servicer or Special Servicer, as the case may be;
(vi) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund;
(vii) each Sub-Servicing Agreement entered into by the Master
Servicer (including any with an effective date on or before the Closing
Date) provides either (i) that such agreement shall, with respect to any
Serviced Loan serviced thereunder, terminate at the time such Mortgage
Loan becomes a Specially Serviced Mortgage Loan or, alternatively, (ii) be
subject to the Special Servicer's rights to service such Mortgage Loan for
so long as such Mortgage Loan continues to be a Specially Serviced
Mortgage Loan); and
(viii) each Sub-Servicing Agreement entered into by the Special
Servicer provides that it relates only to Specially Serviced Mortgage
Loans and shall terminate with respect to any such Mortgage Loan which
ceases to be a Specially Serviced Mortgage Loan.
The Master Servicer and the Special Servicer each shall deliver to
the Trustee and each other copies of all Sub-Servicing Agreements (and, to each
of the Companion Loan Noteholders, copies of any Sub-Servicing Agreement in
respect of the Companion Loans), as well as any amendments thereto and
modifications thereof, entered into by it promptly upon its execution and
delivery of such documents. References in this Agreement to actions taken or to
be taken by the Master Servicer or the Special Servicer include actions taken or
to be taken by a Sub-Servicer on behalf of the Master Servicer or the Special
Servicer, as the case may be; and, in connection therewith, all amounts advanced
by any Sub-Servicer, to the extent required under such Sub-Servicing Agreement,
to satisfy the obligations of the Master Servicer or the Special Servicer
hereunder to make P&I Advances or Servicing Advances shall be deemed to have
been advanced by the Master Servicer or the Special Servicer, as the case may
be, out of its own funds and, accordingly, such P&I Advances or Servicing
Advances shall be recoverable by such Sub-Servicer in the same manner and out of
the same funds as if such Sub-Servicer were the Master Servicer or the Special
Servicer, as the case may be. For so long as they are outstanding, Advances
shall accrue interest in accordance with Sections 3.12(b), 4.03(d) and 4.03A,
such interest to be allocable between the Master Servicer or the Special
Servicer, as the case may be, and such Sub-Servicer as they may agree. For
purposes of this Agreement, the Master Servicer and the Special Servicer each
shall be deemed to have received any payment when a Sub-Servicer retained by it
receives such payment. The Master Servicer and the Special Servicer each shall
notify the other, the Trustee, the Depositor, the Controlling Class
Certificateholders and, if a Loan Combination is affected, the related Companion
Loan Noteholders, in writing promptly of the appointment by it of any
Sub-Servicer.
(b) Each Sub-Servicer (i) shall be authorized to transact business
in the state or states in which the related Mortgaged Properties it is to
service are situated, if and to the extent required by applicable law, and (ii)
except for any Sub-Servicer that is servicing any of the Mortgage Loans on the
Closing Date, shall be an approved conventional seller/servicer of mortgage
loans for FHLMC or Xxxxxx Xxx or a HUD-Approved Servicer.
(c) The Special Servicer shall not enter into any Sub-Servicing
Agreement unless the Special Servicer has received consent of the Directing
Holder and written confirmation from each Rating Agency to the effect that
entering into such Sub-Servicing Agreement will not cause an Adverse Rating
Event.
(d) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders and, in the case of the Companion Loans,
also for the benefit of the related Companion Loan Noteholders, shall (at no
expense to the Trustee, the Certificateholders, the Companion Loan Noteholders
or the Trust Fund) monitor the performance and enforce the obligations of their
respective Sub-Servicers under the related Sub-Servicing Agreements. Subject to
Section 11.01, such enforcement, including the legal prosecution of claims,
termination of Sub-Servicing Agreements in accordance with their respective
terms and the pursuit of other appropriate remedies, shall be in such form and
carried out to such an extent and at such time as the Master Servicer or the
Special Servicer, as applicable, in its good faith business judgment, would
require were it the owner of the subject Serviced Loans.
(e) In the event of the resignation, removal or other termination of
the Master Servicer or any successor Master Servicer hereunder for any reason,
the Trustee or other Person succeeding such resigning, removed or terminated
party as Master Servicer, shall elect, with respect to any Sub-Servicing
Agreement in effect as of the Closing Date (or, if being negotiated as of the
Closing Date, in effect within ninety (90) days thereafter) that still exists at
the time of such termination: (i) to assume the rights and obligations of the
Master Servicer under such Sub-Servicing Agreement and continue the
sub-servicing arrangements thereunder on the same terms (including the
obligation to pay the same sub-servicing fee); (ii) to enter into a new
Sub-Servicing Agreement with such Sub-Servicer on such terms as the Trustee or
other successor Master Servicer and such Sub-Servicer shall mutually agree (it
being understood that such Sub-Servicer is under no obligation to accept any
such new Sub-Servicing Agreement or to enter into or continue negotiations with
the Trustee or other successor Master Servicer); or (iii) to terminate the
Sub-Servicing Agreement if (but only if) an Event of Default (as defined in such
Sub-Servicing Agreement) has occurred and is continuing, without paying any
sub-servicer termination fee, and in any additional manner provided for in such
Sub-Servicing Agreement.
Notwithstanding any other provisions set forth in this Agreement to
the contrary, (i) the Primary Servicer's rights and obligations under the
Primary Servicing Agreement shall expressly survive a termination of the Master
Servicer's servicing rights under this Agreement; provided that the Primary
Servicing Agreement has not been terminated in accordance with its provisions,
(ii) any successor Master Servicer, including, without limitations, the Trustee
(if it assumes the servicing obligations of the terminated Master Servicer)
shall be deemed to automatically assume and agree to each of the then current
Primary Servicing Agreements without further action upon becoming the successor
Master Servicer and (iii) this Agreement may not be modified in any manner which
would increase the obligations or limit the rights of the Primary Servicer under
the Primary Servicing Agreement, without the prior written consent of the
Primary Servicer (which consent shall not be unreasonably withheld).
The Sub-Servicers as to which Sub-Servicing Agreements are in effect
or being negotiated as of the Closing Date are listed on Exhibit K hereto.
(f) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall remain obligated and liable to the Trustee, the
Certificateholders and the Companion Loan Noteholders for the performance of
their respective obligations and duties under this Agreement in accordance with
the provisions hereof to the same extent and under the same terms and conditions
as if each alone were servicing and administering the Serviced Loans and/or REO
Properties for which it is responsible and the representations and warranties of
the Master Servicer and the Special Servicer will remain in full force and
effect pursuant to their terms.
Section 3.24 Representations and Warranties of the Master Servicer.
(a) The Master Servicer, in such capacity, hereby represents,
warrants and covenants to the other parties hereto and for the benefit of the
Certificateholders and the Companion Loan Noteholders, as of the Closing Date,
that:
(i) The Master Servicer is a national banking association validly
existing and in good standing under the laws of the United State of
America, and the Master Servicer is in compliance with the laws of each
state in which any Mortgaged Property is located to the extent necessary
to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or which is applicable to it or any of
its assets.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, receivership, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
(including bank creditors') rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Master Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer, the outcome
of which, in the Master Servicer's good faith and reasonable judgment,
could reasonably be expected to prohibit the Master Servicer from entering
into this Agreement or materially and adversely affect the ability of the
Master Servicer to perform its obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required under federal or state law for the
execution, delivery and performance by the Master Servicer of or
compliance by the Master Servicer with this Agreement or the consummation
of the transactions contemplated by this Agreement has been obtained and
is effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Master Servicer under this Agreement.
(viii) The Master Servicer possesses all insurance required pursuant
to Section 3.07(c) of this Agreement.
(ix) The Master Servicer has reviewed all Sub-Servicing Agreements
in effect as of the Closing Date and will review all Sub-Servicing
Agreements entered into by it after the Closing Date.
(b) The representations and warranties of the Master Servicer set
forth in Section 3.24(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Master Servicer shall be deemed to have made, as
of the date of its succession, each of the representations and warranties set
forth in Section 3.24(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.24(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
Section 3.25 Representations and Warranties of the Special Servicer.
(a) The Special Servicer, in such capacity, hereby represents,
warrants and covenants to the other parties hereto and for the benefit of the
Certificateholders and the Companion Loan Noteholders, as of the Closing Date,
that:
(i) The Special Servicer is a limited liability company validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts, and the Special Servicer is in compliance with the laws of
each state in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, will not violate the Special Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or which is applicable to it or any of
its assets.
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special Servicer, the
outcome of which, in the Special Servicer's good faith and reasonable
judgment, could reasonably be expected to prohibit the Special Servicer
from entering into this Agreement or materially and adversely affect the
ability of the Special Servicer to perform its obligations under this
Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required under federal or state law for the
execution, delivery and performance by the Special Servicer of or
compliance by the Special Servicer with this Agreement or the consummation
of the transactions contemplated by this Agreement has been obtained and
is effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Special Servicer under this Agreement.
(viii) The Special Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
(b) The representations and warranties of the Special Servicer set
forth in Section 3.25(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Special Servicer shall be deemed to have made, as
of the date of its succession, each of the representations and warranties set
forth in Section 3.25(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.25(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
Section 3.26 Certain Matters Regarding the Purchase of the Loan
Combination Trust Mortgage Loans.
If, pursuant to Section 2.03, Section 3.19 and Section 9.01, any
Loan Combination Trust Mortgage Loan is purchased or repurchased from the Trust
Fund, the purchaser thereof shall be bound by the terms of the related Co-Lender
Agreement and shall assume the rights and obligations of the holder of the
Mortgage Note that was formerly part of the Trust Fund under the related
Co-Lender Agreement. All applicable portions of the related Mortgage File and
other documents pertaining to such Mortgage Loan shall be endorsed or assigned
to the extent necessary or appropriate to the purchaser of such Mortgage Loan.
Thereafter such Mortgage File shall be held by the holder of such purchased
Mortgage Loan, as applicable, or a custodian appointed thereby for the benefit
of the "Note A Lender" and the "Note B Lender" as their interests appear under
the related Co-Lender Agreement. If the related Servicing File is not already in
the possession of such party, it shall be delivered to the master servicer or
special servicer, as the case may be, under the separate servicing agreement for
the Loan Combinations.
Section 3.27 Application of Default Charges.
(a) Any and all Default Charges that are actually collected with
respect to any Mortgage Loan or REO Mortgage Loan in the Mortgage Pool
(excluding any Mortgage Loan that is part of a Serviced Loan Combination) during
any Collection Period, shall be applied for the following purposes and in the
following order, in each case to the extent of the remaining portion of such
Default Charges:
First, to pay to the Trustee, the Master Servicer or the Special
Servicer, in that order, any interest due and owing to such party on any
outstanding Advances made thereby with respect to the subject Mortgage Loan or
REO Mortgage Loan and reimbursed in the related Collection Period;
Second, to pay any other outstanding expenses (exclusive of Special
Servicing Fees, Liquidation Fees and Workout Fees) incurred with respect to the
subject Mortgage Loan or REO Mortgage Loan and that, if paid from a source other
than Default Charges collected with respect to the subject Mortgage Loan, would
constitute Additional Trust Fund Expenses;
Third, to reimburse the Trust for any interest on Advances paid to
the Trustee, the Master Servicer or the Special Servicer in the preceding twelve
(12) months with respect to the subject Mortgage Loan or REO Mortgage Loan,
which payment was made from a source other than Default Charges and not
previously reimbursed under this clause Third;
Fourth, to reimburse the Trust for any other Additional Trust Fund
Expenses (exclusive of Special Servicing Fees, Liquidation Fees and Workout
Fees) paid in the preceding twelve (12) months with respect to the subject
Mortgage Loan or REO Mortgage Loan, which payment was made from a source other
than Default Charges and not previously reimbursed under this clause Fourth; and
Fifth, to pay any remaining portion of such Default Charges (such
remaining portion, "Net Default Charges") as additional master servicing
compensation to the Master Servicer, to the extent received, if they were
accrued in respect of a Performing Serviced Loan, or as additional special
servicing compensation to the Special Servicer, to the extent received, if they
were accrued in respect of a Specially Serviced Mortgage Loan or an REO Mortgage
Loan, in each case pursuant to Section 3.11.
(b) Default Charges applied to reimburse the Trust pursuant to
clauses Third and Fourth, of Section 3.27(a), are intended to be part of the
amounts to be delivered by the Master Servicer to the Trustee pursuant to the
first paragraph of Section 3.04(b) on or before the Master Servicer Remittance
Date next following the Collection Period during which they were received, for
deposit in the Distribution Account, subject to application pursuant to Section
3.05(a) for any items payable out of general collections on the Mortgage Loans
and any Serviced REO Properties. Default Charges applied to pay outstanding
interest on Advances to any particular party pursuant to clause First of Section
3.27(a) shall be applied to pay such party such interest on Advances in such
manner that the interest that accrued first and has been outstanding the longest
shall be paid first. Default Charges applied to pay outstanding expenses
pursuant to clause Second of Section 3.27(a) shall be applied to pay such
expenses in the chronological order in which they were incurred. Default Charges
applied to reimburse the Trust pursuant to clauses Third and Fourth, of Section
3.27(a) shall be deemed to offset either interest paid on Advances or other
Additional Trust Fund Expenses, depending on which clause is applicable, in the
chronological order in which they were made or incurred, as applicable
(whereupon such interest paid on Advances or such other Additional Trust Fund
Expenses, depending on which clause is applicable, shall thereafter be deemed to
have been paid out of Default Charges).
(c) Any and all Default Charges that are actually collected with
respect to any Serviced Loan Combination or any successor REO Loan with respect
thereto during any Collection Period (as allocable thereto pursuant to the
related loan agreement), shall be applied for the following purposes and in the
following order, in each case to the extent of the remaining portion of such
Default Charges:
First, to pay to the Trustee, the Master Servicer or the Special
Servicer, in that order, any interest due and owing to such party on any
outstanding Servicing Advances made thereby with respect to such Loan
Combination or REO Loan or the related Loan Combination Mortgaged Property and
reimbursed in the related Collection Period (to be applied with respect to any
particular party in such manner that the interest that accrued first and has
been outstanding the longest shall be paid first);
Second, to pay to the Trustee or the Master Servicer, in that order,
any interest due and owing to such party on any outstanding P&I Advances made
thereby with respect to such Loan Combination or REO Loan or the related Loan
Combination Mortgaged Property and reimbursed in the related Collection Period
(to be applied with respect to any particular party in such manner that the
interest that accrued first and has been outstanding the longest shall be paid
first);
Third, to pay any other outstanding expenses (exclusive of Special
Servicing Fees, Liquidation Fees and Workout Fees) incurred with respect to such
Loan Combination or REO Loan and that, if paid from a source other than such
Default Charges collected with respect to such Loan Combination, would
constitute Additional Trust Fund Expenses;
Fourth, to reimburse the Trust or any Companion Loan Noteholder for
any interest on Advances paid to the Trustee, the Master Servicer or the Special
Servicer in the preceding twelve months with respect to such Loan Combination or
REO Loan, which payment was made from a source other than Default Charges and
not previously reimbursed under this clause Fourth or clause Third under Section
3.27(a);
Fifth, to reimburse the Trust or any Companion Loan Noteholder for
any other Additional Trust Fund Expenses (exclusive of Special Servicing Fees,
Liquidation Fees and Workout Fees) paid in the preceding twelve months with
respect to such Loan Combination or REO Loan, which payment was made from a
source other than Default Charges and not previously reimbursed under this
clause Fifth or clause Fourth under Section 3.27(a); and
Sixth, to pay any remaining portion of such Default Charges (such
remaining portion, "Net Default Charges") as additional master servicing
compensation to the Master Servicer, to the extent received, if they were
accrued with respect to such Companion Loan during a period that it was a
Performing Serviced Loan, or as additional special servicing compensation to the
Special Servicer, to the extent received, if they were accrued with respect to
such Companion Loan during a period that it was a Specially Serviced Mortgage
Loan or an REO Loan, in each case pursuant to Section 3.11.
Section 3.28 Limitations on and Authorizations of the Master
Servicer and Special Servicer with Respect to Specific Mortgage Loans.
The Master Servicer shall, to the extent consistent with the
Servicing Standard and permitted by the related Loan Documents, not apply any
funds with respect to a Mortgage Loan or Serviced Loan Combination (whether
arising in the form of a holdback, earnout reserve, cash trap or other similar
feature) to the prepayment of the related Mortgage Loan or Serviced Loan
Combination prior to an event of default or reasonably foreseeable event of
default with respect to such Mortgage Loan or Serviced Loan Combination. Prior
to an event of default or reasonably foreseeable event of default any such
amounts described in the immediately preceding sentence shall be held by the
Master Servicer as additional collateral for the related Mortgage Loan or
Serviced Loan Combination.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.
(a) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Trustee shall be deemed to
transfer the Lower-Tier Distribution Amount from the Lower-Tier Distribution
Account to the Upper-Tier Distribution Account in the amounts and priorities set
forth in Section 4.01(j) with respect to each class of Uncertificated Lower-Tier
Interests, and immediately thereafter, shall make distributions of the Available
Distribution Amount from the Upper-Tier Distribution Account in the following
order of priority, satisfying in full, to the extent required and possible, each
priority before making any distribution with respect to any succeeding priority:
(i) concurrently, (A) from that portion of the Sub-Pool 1 Available
Distribution Amount, to the Class A-1, Class A-2, Class A-3, Class A-PB,
and Class A-4 Certificates, pro rata (based upon their respective
entitlements to interest for such Distribution Date) up to an amount equal
to all Distributable Certificate Interest for each such Class for such
Distribution Date, and to the extent not previously paid, for all prior
Distribution Dates and (B) from that portion of the Sub-Pool 2 Available
Distribution Amount, to the Class A-1A Certificates, up to an amount equal
to all Distributable Certificate Interest for such Class for such
Distribution Date, and to the extent not previously paid, for all prior
Distribution Dates and (C) from the entire Available Distribution Amount,
to the Class IO Certificates, up to an amount equal to all Distributable
Certificate Interest for each such Class for such Distribution Date, and
to the extent not previously paid, for all prior Distribution Dates;
provided, however, that if the Available Distribution Amount for any
Distribution Date (or the portion thereof attributable to any Sub-Pool) is
insufficient to pay in full an amount equal to all Distributable
Certificate Interest for each such Class, as provided above, on such
Distribution Date, then the entire Available Distribution Amount shall be
applied to make distributions of interest to the Class A-1, Class A-2,
Class A-3, Class A-PB, Class A-4 and Class A-1A Certificates of, up to,
and pro rata as among such Classes in accordance with, the respective
Distributable Certificate Interest in respect of such Classes of
Certificates for such Distribution Date;
(ii) (A) prior to the Cross-Over Date,
(1) to distributions of principal to the Holders of the Class A-PB
Certificates, in an amount (not to exceed the amount necessary
to reduce the Class Principal Balance of the Class A-PB
Certificates to the Class A-PB Planned Principal Balance for
such Distribution Date) equal to the entire Sub-Pool 1
Principal Distribution Amount for such Distribution Date and,
after the Class Principal Balance of the Class A-1A
Certificates has been reduced to zero, the entire Sub-Pool 2
Principal Distribution Amount remaining after making any
distributions required pursuant to clause (7) below on such
Distribution Date;
(2) after the Class Principal Balance of the Class A-PB
Certificates has been reduced to the Class A-PB Planned
Principal Balance, to distributions of principal to the
Holders of the Class A-1 Certificates, in an amount (not to
exceed the Class Principal Balance of the Class A-1
Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Sub-Pool 1 Principal
Distribution Amount and, after the Class Principal Balance of
the Class A-1A Certificates has been reduced to zero, the
entire Sub-Pool 2 Principal Distribution Amount for such
Distribution Date remaining after making any distributions
required pursuant to clause (7) below on such Distribution
Date, less any portion thereof distributed on such
Distribution Date to the Holders of the Class A-PB
Certificates pursuant to clause (1) above;
(3) after the Class Principal Balance of the Class A-PB
Certificates has been reduced to the Class A-PB Planned
Principal Balance for such Distribution Date and after the
Class Principal Balance of the Class A-1 Certificates has been
reduced to zero, to distributions of principal to the Holders
of the Class A-2 Certificates, in an amount (not to exceed the
Class Principal Balance of the Class A-2 Certificates
outstanding immediately prior to such Distribution Date) equal
to the entire Sub-Pool 1 Principal Distribution Amount and,
after the Class Principal Balance of the Class A-1A
Certificates has been reduced to zero, the entire Sub-Pool 2
Principal Distribution Amount for such Distribution Date
remaining after making any distributions required pursuant to
clause (7) below on such Distribution Date (in each case, net
of any portion thereof distributed on such Distribution Date
to the Holders of the Class A-PB Certificates and the Class
A-1 Certificates pursuant to clauses (1) and (2) above);
(4) after the Class Principal Balance of the Class A-PB
Certificates has been reduced to the Class A-PB Planned
Principal Balance for such Distribution Date and after the
Class Principal Balances of each the Class A-1 and Class A-2
Certificates has been reduced to zero, to distributions of
principal to the Holders of the Class A-3 Certificates, in an
amount (not to exceed the Class Principal Balance of the Class
A-3 Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Sub-Pool 1 Principal
Distribution Amount and, after the Class Principal Balance of
the Class A-1A Certificates has been reduced to zero, the
entire Sub-Pool 2 Principal Distribution Amount for such
Distribution Date remaining after making any distributions
required pursuant to clause (7) below on such Distribution
Date (in each case, net of any portion thereof distributed on
such Distribution Date to the Holders of the Class A-PB, Class
A-1 and the Class A-2 Certificates pursuant to clauses (1),
(2) and (3) above);
(5) after the Class Principal Balance of the Class A-PB
Certificates has been reduced to the Class A-PB Planned
Principal Balance for such Distribution Date and after the
Class Principal Balances of each of the Class A-1, Class A-2
and Class A-3 Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class A-PB
Certificates, in an amount (not to exceed the Class Principal
Balance of the Class A-PB Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Sub-Pool
1 Principal Distribution Amount and, after the Class Principal
Balance of the Class A-1A Certificates has been reduced to
zero, the entire Sub-Pool 2 Principal Distribution Amount for
such Distribution Date remaining after making any
distributions required pursuant to clause (7) below on such
Distribution Date (in each case, net of any portion thereof
distributed on such Distribution Date to the Holders of the
Class A-PB, Class A-1, Class A-2 and Class A-3 Certificates
pursuant to clauses (1), (2), (3) and (4) above);
(6) after the Class Principal Balances of the Class A-1, Class
A-2, Class A-3 and Class A-PB Certificates have been reduced
to zero, to distributions of principal to the Holders of the
Class A-4 Certificates in an amount (not to exceed the Class
Principal Balance of the Class A-4 Certificates outstanding
immediately prior to such Distribution Date) equal to the
entire Sub-Pool 1 Principal Distribution Amount and, after the
Class Principal Balance of the Class A-1A Certificates has
been reduced to zero, the entire Sub-Pool 2 Principal
Distribution Amount for such Distribution Date remaining after
making any distributions required pursuant to clause (7) below
on such Distribution Date (in each case, net of any portion
thereof distributed on such Distribution Date to the Holders
of the Class A-PB, Class A-1, Class A-2 and Class A-3
Certificates pursuant to clauses (1), (2), (3), (4) and (5)
above); and
(7) to distributions of principal to the Holders of the Class A-1A
Certificates, in an amount (not to exceed the Class Principal
Balance of the Class A-1A Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Sub-Pool
2 Principal Distribution Amount and, after the Class Principal
Balances of the Class A-1, Class A-2, Class A-3, Class A-PB
and Class A-4 Certificates have been reduced to zero, the
entire Sub-Pool 1 Principal Distribution Amount for such
Distribution Date remaining after making any distributions
required pursuant to clauses (1), (2), (3), (4), (5) and (6)
above on such Distribution Date;
(B) on or after the Cross-Over Date, to distributions of
principal to the Holders of the Class A-1, Class A-2, Class A-3,
Class A-PB, Class A-4 and Class A-1-A Certificates, pro rata, (based
upon their respective outstanding Class Principal Balances) in an
amount (not to exceed the aggregate Class Principal Balances of the
Class A-1, Class A-2, Class A-3, Class A-PB, Class A-4 and Class
A-1-A Certificates outstanding immediately prior to such
Distribution Date) equal to the Adjusted Principal Distribution
Amount for such Distribution Date until their respective outstanding
Class Principal Balances have been reduced to zero;
(iii) to distributions to the Holders of the Class A-1 Certificates,
the Class A-2 Certificates, the Class A-3 Certificates, the Class A-PB
Certificates, the Class A-4 Certificates and the Class A-1A Certificates,
pro rata, as among such Classes, in accordance with, in an amount equal
to, and in reimbursement of, all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to each such Class of Certificates
and not previously reimbursed;
(iv) to distributions of interest to the Holders of the Class A-M
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(v) after the Class Principal Balances of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the
Class A-PB Certificates, the Class A-4 Certificates and the Class A-1A
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class A-M Certificates in an amount (not to exceed the
aggregate Class Principal Balance of the Class A-M Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire Adjusted Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of
this Section 4.01(a));
(vi) to distributions to the Holders of the Class A-M Certificates
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
A-M Certificates and not previously reimbursed;
(vii) to distributions of interest to the Holders of the Class A-J
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(viii) after the Class Principal Balance of the Class A-M
Certificates has been reduced to zero, to distributions of principal to
the Holders of the Class A-J Certificates in an amount (not to exceed the
aggregate Class Principal Balance of the Class A-J Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire Principal Distribution Amount for such Distribution Date (net of
any portion thereof distributed on such Distribution Date to the Holder of
any Class of Certificates pursuant to any prior clause of this Section
4.01(a));
(ix) to make distributions to the Holders of the Class A-J
Certificates up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(x) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xi) after the aggregate Class Principal Balance of the Class A-J
Certificates has been reduced to zero, to distributions of principal to
the Holders of the Class B Certificates, in an amount (not to exceed the
Class Principal Balance of the Class B Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to any prior clause of this Section 4.01(a));
(xii) to make distributions to the Holders of the Class B
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xiii) to make distributions of interest to the Holders of the Class
C Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xiv) after the Class Principal Balance of the Class B Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class C Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xv) to make distributions to the Holders of the Class C
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xvi) to make distributions of interest to the Holders of the Class
D Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xvii) after the Class Principal Balance of the Class C Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class D Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xviii) to make distributions to the Holders of the Class D
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xix) to make distributions of interest to the Holders of the Class
E Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xx) after the Class Principal Balance of the Class D Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class E Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxi) to make distributions to the Holders of the Class E
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxii) to make distributions of interest to the Holders of the Class
F Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxiii) after the Class Principal Balance of the Class E
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class F Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxiv) to make distributions to the Holders of the Class F
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxv) to make distributions of interest to the Holders of the Class
G Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxvi) after the Class Principal Balance of the Class F Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class G Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(b));
(xxvii) to make distributions to the Holders of the Class G
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxviii) to make distributions of interest to the Holders of the
Class H Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxix) after the Class Principal Balance of the Class G Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class H Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxx) to make distributions to the Holders of the Class H
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxxi) to make distributions of interest to the Holders of the Class
J Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxxii) after the Class Principal Balance of the Class H
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class J Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxxiii) to make distributions to the Holders of the Class J
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxxiv) to make distributions of interest to the Holders of the
Class K Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxxv) after the Class Principal Balance of the Class J Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class K Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxxvi) to make distributions to the Holders of the Class K
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxxvii) to make distributions of interest to the Holders of the
Class L Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxxviii) after the Class Principal Balance of the Class K
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class L Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxxix) to make distributions to the Holders of the Class L
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xl) to make distributions of interest to the Holders of the Class M
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xli) after the Class Principal Balance of the Class L Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class M Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(b));
(xlii) to make distributions to the Holders of the Class M
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xliii) to make distributions of interest to the Holders of the
Class N Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xliv) after the Class Principal Balance of the Class M Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class N Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xlv) to make distributions to the Holders of the Class N
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xlvi) to make distributions of interest to the Holders of the Class
O Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xlvii) after the Class Principal Balance of the Class N
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class O Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xlviii) to make distributions to the Holders of the Class O
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xlix) to make distributions of interest to the Holders of the Class
P Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(l) after the Class Principal Balance of the Class O Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class P Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(li) to make distributions to the Holders of the Class P
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(lii) to the Holders of the Class R-II Certificates, the amount, if
any, of the Available Distribution Amount remaining in the Upper-Tier
Distribution Account with respect to such Distribution Date.
All distributions of interest made in respect of the Class IO
Certificates on any Distribution Date pursuant to clause (i) above, shall be
deemed to have been made in respect of all the Components of such Class, pro
rata in accordance with the respective amounts of interest that would be payable
on such Components on such Distribution Date based on the Class IO Strip Rate of
such Component multiplied by its Component Notional Amount, less an allocable
portion of any Net Aggregate Prepayment Interest Shortfall, together with any
amounts thereof remaining unpaid from previous Distribution Dates.
(b) [Reserved]
(c) On each Distribution Date, the Trustee shall withdraw any
amounts on deposit in the Upper-Tier Distribution Account that represent Net
Prepayment Consideration actually collected on Mortgage Loans or REO Mortgage
Loans during the related Collection Period and remitted in respect of the
Uncertificated Lower-Tier Interests pursuant to Section 4.01(j), and shall
distribute such amounts to the Holders of each of the Class A-1, Class A-2,
Class A-3, Class A-PB, Class A-4, Class A-1A, Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class K
Certificates entitled to distributions of principal pursuant to Section 4.01(a)
on such Distribution Date, up to an amount equal to, and pro rata based on, the
respective Prepayment Consideration Entitlements for such Classes of
Certificates for such Distribution Date.
Any Net Prepayment Consideration not otherwise distributed in
respect of the Principal Balance Certificates pursuant to the foregoing
paragraph of this Section 4.01(c) shall be distributed to the Holders of the
Class IO Certificates.
(d) [Reserved]
(e) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise provided below, all such distributions with
respect to each Class on each Distribution Date shall be made to the
Certificateholders of the respective Class of record at the close of business on
the related Record Date and shall be made by wire transfer of immediately
available funds to the account of any such Certificateholder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five (5)
Business Days prior to (or, in the case of the initial Distribution Date, on)
the related Record Date (which wiring instructions may be in the form of a
standing order applicable to all subsequent Distribution Dates), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. The final distribution on each Certificate (determined, in
the case of a Principal Balance Certificate, without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to such Certificate pursuant to Section 4.04(a)) will be
made in a like manner, but only upon presentation and surrender of such
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution. Prior
to any termination of the Trust Fund pursuant to Section 9.01, any distribution
that is to be made with respect to a Certificate in reimbursement of a Realized
Loss or Additional Trust Fund Expense previously allocated thereto, which
reimbursement is to occur after the date on which such Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Certificateholder that surrendered such Certificate
as such address last appeared in the Certificate Register or to any other
address of which the Trustee was subsequently notified in writing. If such check
is returned to the Trustee, then the Trustee, directly or through an agent,
shall take such reasonable steps to contact the related Holder and deliver such
check as it shall deem appropriate. Any funds in respect of a check returned to
the Trustee shall be set aside by the Trustee and held uninvested in trust and
credited to the account of the appropriate Holder. The costs and expenses of
locating the appropriate Holder and holding such funds shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If the Trustee has not, after having taken such
reasonable steps, located the related Holder by the second anniversary of the
initial sending of a check, the Trustee shall, subject to applicable law,
distribute the unclaimed funds to the Class R-II Certificateholders.
(f) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm for which it acts as agent. Each indirect
participating brokerage firm shall be responsible for disbursing funds to the
related Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor or the Master Servicer shall have any
responsibility therefor except as otherwise provided by this Agreement or
applicable law. The Trustee and the Depositor shall perform their respective
obligations under each Letter of Representations among the Depositor, the
Trustee and the initial Depository dated as of the Closing Date and pertaining
to the Book-Entry Certificates.
(g) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund with respect to the Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates with respect to amounts properly
previously distributed on the Certificates.
(h) Except as otherwise provided in Section 9.01, whenever the
Trustee receives written notification of or expects that the final distribution
with respect to any Class of Certificates (determined, in the case of a Class of
Principal Balance Certificates, without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to such Class of Certificates pursuant to Section 4.04(a)) will be
made on the next Distribution Date, the Trustee shall, no later than the second
Business Day prior to such Distribution Date, mail to each Holder of record of
such Class of Certificates on such date a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the office of the
Certificate Registrar or at such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
the end of the Interest Accrual Period for such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six (6) months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, then the Trustee, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such non-tendering
Certificateholders following the first anniversary of the delivery of such
second notice thereto shall be paid out of such funds. No interest shall accrue
or be payable to any former Holder on any amount held in trust pursuant to this
paragraph. If all of the Certificates as to which notice has been given pursuant
to this Section 4.01(g) shall not have been surrendered for cancellation by the
second anniversary of the delivery of the second notice, the Trustee shall,
subject to applicable law, distribute to the Class R-II Certificateholders all
unclaimed funds and other assets which remain subject thereto.
(i) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from interest or original issue discount payments or
advances thereof the Trustee shall indicate the amount withheld to such
Certificateholders.
(j) During each Interest Accrual Period, each Uncertificated
Lower-Tier Interest shall accrue interest in an amount equal to the product of
the Uncertificated Principal Balance of each such Uncertificated Lower-Tier
Interest and the Weighted Average Net Mortgage Rate. On each Distribution Date,
each Uncertificated Lower-Tier Interest shall be deemed to receive distributions
in respect of interest in an amount equal to the Distributable Certificate
Interest for such Distribution Date (and, to the extent not previously paid, for
all prior Distribution Dates, if any) in respect of its Corresponding
Certificates, and the portion of the Distributable Certificate Interest for such
Distribution Date (and, to the extent not previously paid, for all prior
Distribution Dates, if any) of the Class IO Certificates that is attributable to
such Uncertificated Lower-Tier Interest, in each case to the extent actually
distributable thereon as provided in Section 4.01(a). All distributions made in
respect of the Class IO Certificates on each Distribution Date pursuant to
Section 4.01(a) or Section 9.01 shall be deemed to have first been distributed
from the Lower-Tier REMIC to the Upper-Tier REMIC in respect of the
Uncertificated Lower-Tier Interests, pro rata, based on the interest accrued on
such Uncertificated Lower-Tier Interest at the excess of the Weighted Average
Net Mortgage Rate over the Pass-Through Rate for the Corresponding Certificates.
All distributions of principal made in respect of any Class of
Principal Balance Certificates on each Distribution Date pursuant to Section
4.01(a) or Section 9.01 shall be deemed to have first been distributed from the
Lower-Tier REMIC to the Upper-Tier REMIC in respect of its Corresponding
Uncertificated Lower-Tier Interest. All distributions of reimbursements of
Realized Losses and Additional Trust Fund Expenses made in respect of any Class
of Principal Balance Certificates on each Distribution Date pursuant to Section
4.01(a) shall be deemed to have first been distributed from the Lower-Tier REMIC
to the Upper-Tier REMIC in respect of its Corresponding Uncertificated
Lower-Tier Interest; provided, however, that distributions of reimbursements of
Realized Losses and Additional Trust Fund Expenses shall be made in reverse
sequential order of the priority set forth in this Section 4.01(j) for principal
distributions, up to the amount of Realized Losses and Additional Trust Fund
Expenses previously allocated to a particular Class of Uncertificated Lower-Tier
Interests.
On each Distribution Date, the Trustee shall withdraw from the
Lower-Tier Distribution Account an aggregate amount equal to all Net Prepayment
Consideration actually collected on the Mortgage Loans or any REO Mortgage Loans
during the related Collection Period and shall distribute such amount in respect
of the Class LA-1 Interest by depositing such amount in the Upper-Tier
Distribution Account (notwithstanding that all principal and interest
distributable with respect to the Class LA-1 Interest has been paid in full).
Any amount that remains in the Lower-Tier Distribution Account on
each Distribution Date after distribution of the Lower-Tier Distribution Amount
and any Net Prepayment Consideration, shall be distributed to the Holders of the
Class R-I Certificates (but only to the extent of the Available Distribution
Amount for such Distribution Date remaining in the Lower-Tier Distribution
Account).
(k) [Reserved.]
(l) On each Distribution Date, the Trustee shall withdraw from the
Class Y Sub-Account any amounts that represent Post-ARD Additional Interest
Received with respect to any ARD Loan and any successor REO Mortgage Loan with
respect to any ARD Loan during the related Collection Period and shall
distribute such amounts to the Holders of the Class Y Certificates.
Section 4.02 Statements to Certificateholders; CMSA Loan Periodic
Update File.
(a) On each Distribution Date, the Trustee shall provide or make
available electronically to the Depositor, the Underwriters, the Master
Servicer, the Special Servicer, the Controlling Class Representative, each
Rating Agency, the Holders of each Class of Certificates and, upon their written
request to the Trustee, any Certificate Owners of the Book-Entry Certificates as
may be identified to the reasonable satisfaction of the Trustee, a statement,
substantially in the form attached hereto as Exhibit B (a "Distribution Date
Statement"), which shall also include the CMSA Bond Level File and the CMSA
Collateral Summary File, based on information provided to it by the Master
Servicer and/or the Special Servicer, setting forth, without limitation:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Principal Balance Certificates in reduction of
the Class Principal Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Interest Certificates allocable to
Distributable Certificate Interest;
(iii) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular Interest Certificates allocable to
Prepayment Premiums and Yield Maintenance Charges, respectively;
(iv) the amount of the distribution on such Distribution Date to the
Holders of each Class of Principal Balance Certificates in reimbursement
of previously allocated Realized Losses and Additional Trust Fund
Expenses;
(v) the total payments and other collections Received by the Trust
during the related Collection Period, the fees and expenses paid therefrom
(with an identification of the party receiving such fees and expenses) and
if known, the general purpose of such fees and expenses and the Available
Distribution Amount, Sub-Pool 1 Available Distribution Amount and Sub-Pool
2 Available Distribution Amount for such Distribution Date;
(vi) the aggregate amount of P&I Advances made in respect of the
Mortgage Pool for the prior Distribution Date pursuant to Section 4.03(a)
and/or Section 4.03A;
(vii) (A) the aggregate amount of xxxxxxxxxxxx X&X Advances that had
been outstanding with respect to the Mortgage Pool at the close of
business on the related Determination Date and the aggregate amount of any
interest accrued and payable to the Master Servicer or the Trustee in
respect of such xxxxxxxxxxxx X&X Advances in accordance with Section
4.03(d) or 4.03A as of the close of business on such Determination Date
and (B) the aggregate amount of unreimbursed Servicing Advances that had
been outstanding with respect to the Mortgage Pool as of the close of
business on the related Determination Date and the aggregate amount of
interest accrued and payable to the Master Servicer, the Special Servicer
or the Trustee in respect of such unreimbursed Servicing Advances in
accordance with Section 3.12(b) as of the close of business on such
related Determination Date;
(viii) the aggregate unpaid principal balance of the Mortgage Pool
outstanding as of the close of business on the related Determination Date
and the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(ix) the number, aggregate unpaid principal balance, weighted
average remaining term to maturity and weighted average Mortgage Rate
(excluding, if applicable, the portion thereof comprised of the Additional
Interest Rate following the related Anticipated Repayment Date) of the
Mortgage Loans (other than REO Loans) as of the close of business on the
related Determination Date;
(x) the number, aggregate unpaid principal balance (as of the close
of business on the related Determination Date and aggregate Stated
Principal Balance (immediately after such Distribution Date) of Mortgage
Loans (A) delinquent 30 to 59 days, (B) delinquent 60 to 89 days, (C)
delinquent 90 or more days, (D) as to which foreclosure proceedings have
been commenced, and (E) as to which, to the knowledge of the Master
Servicer or the Special Servicer, as applicable, bankruptcy proceedings
have commenced in respect of the related Mortgagor;
(xi) as to each Mortgage Loan referred to in the preceding clause
(x) above, (A) the Mortgage Loan number thereof, (B) the Stated Principal
Balance thereof immediately following such Distribution Date and (C)
whether the delinquency is in respect of its Balloon Payment;
(xii) with respect to any Mortgage Loan as to which a Liquidation
Event occurred during the related Collection Period (other than a payment
in full), (A) the Mortgage Loan number thereof, (B) the nature of the
Liquidation Event and, in the case of a Final Recovery Determination, a
brief description of the basis for such Final Recovery Determination, (C)
the aggregate of all Liquidation Proceeds and other amounts received in
connection with such Liquidation Event (separately identifying the portion
thereof allocable to distributions on the Certificates), and (D) the
amount of any Realized Loss in connection with such Liquidation Event;
(xiii) with respect to any Mortgage Loan that was the subject of any
material modification, extension or waiver during the related Collection
Period, (A) the Mortgage Loan number thereof, (B) the unpaid principal
balance thereof and (C) a brief description of such modification,
extension or waiver, as the case may be;
(xiv) with respect to any Mortgage Loan as to which an uncured and
unresolved Material Breach or Material Document Defect is alleged to
exist, (A) the Mortgage Loan number thereof, (B) the unpaid principal
balance thereof, (C) a brief description of such Material Breach or
Material Document Defect, as the case may be, and (D) the status of such
Material Breach or Material Document Defect, as the case may be, including
any actions actually known to the Trustee that are being taken by or on
behalf of the related Mortgage Loan Seller with respect thereto;
(xv) with respect to any Serviced REO Property that was included in
the Trust Fund as of the close of business on the related Determination
Date, the Mortgage Loan number of the related Mortgage Loan, the book
value of such REO Property and the amount of REO Revenues and other
amounts, if any, received with respect to such REO Property during the
related Collection Period (separately identifying the portion thereof
allocable to distributions on the Certificates) and, if available, the
Appraised Value of such REO Property as expressed in the most recent
appraisal thereof and the date of such appraisal;
(xvi) with respect to any Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the related Collection
Period, the Mortgage Loan number of such Mortgage Loan and the Stated
Principal Balance of such Mortgage Loan as of the related Acquisition
Date;
(xvii) with respect to any Serviced REO Property included in the
Trust Fund as to which a Final Recovery Determination was made during the
related Collection Period, (A) the Mortgage Loan number of the related
Mortgage Loan, (B) a brief description of the basis for the Final Recovery
Determination, (C) the aggregate of all Liquidation Proceeds and other
amounts received with respect to such REO Property during the related
Collection Period (separately identifying the portion thereof allocable to
distributions on the Certificates), (D) the amount of any Realized Loss in
respect of the related REO Loan in connection with such Final Recovery
Determination and (E), if available, the Appraised Value of such REO
Property as expressed in the most recent appraisal thereof and the date of
such appraisal;
(xviii) the Distributable Certificate Interest and Accrued
Certificate Interest in respect of each Class of Regular Interest
Certificates for such Distribution Date or the related Interest Accrual
Period, as applicable;
(xix) any unpaid Distributable Certificate Interest in respect of
each Class of Regular Interest Certificates after giving effect to the
distributions made on such Distribution Date, and if the full amount of
the Principal Distribution Amount was not distributed on such Distribution
Date, the portion of the shortfall affecting each Class of Principal
Balance Certificates;
(xx) the Pass-Through Rate for each Class of Regular Interest
Certificates for such Distribution Date;
(xxi) the Principal Distribution Amount for such Distribution Date
(and, in the case of any Principal Prepayment or other unscheduled
collection of principal received during the related Collection Period, the
Mortgage Loan number for the related Mortgage Loan and the amount of such
prepayment or other collection of principal);
(xxii) the aggregate of all Realized Losses incurred during the
related Collection Period and from the Closing Date and all Additional
Trust Fund Expenses (with a description thereof) incurred during the
related Collection Period and from the Closing Date;
(xxiii) the aggregate of all Realized Losses and Additional Trust
Fund Expenses that remain unallocated immediately following such
Distribution Date;
(xxiv) the Class Principal Balance of each Class of Principal
Balance Certificates outstanding immediately before and immediately after
such Distribution Date, separately identifying any reduction therein due
to the allocation of Realized Losses and Additional Trust Fund Expenses on
such Distribution Date;
(xxv) the Certificate Factor for each Class of Regular Interest
Certificates immediately following such Distribution Date;
(xxvi) the aggregate amount of any interest on Advances in respect
of the Mortgage Pool paid to the Master Servicer, the Special Servicer and
the Trustee during the related Collection Period in accordance with
Section 3.12(b), Section 4.03(d) and/or Section 4.03A;
(xxvii) (A) the Mortgage Loan number for each Required Appraisal
Loan and any related Appraisal Reduction Amount (including an itemized
calculation thereof) as of the related Determination Date and (B) the
aggregate Appraisal Reduction Amount for all Required Appraisal Loans as
of the related Determination Date;
(xxviii) on a cumulative basis from the Cut-off Date, the number,
aggregate Stated Principal Balance immediately after such Distribution
Date (in the case of subclauses (A), (B) and (E)), aggregate Cut-off Date
Balance (in the case of subclauses (C) and (D)), weighted average
extension period (except in the case of subclause (B) and which shall be
zero in the case of subclause (C)), and weighted average anticipated
extension period (in the case of subclause (B)) of Mortgage Loans (A) as
to which the maturity dates have been extended, (B) as to which the
maturity dates are in the process of being extended, (C) that have paid
off and were never extended, (D) as to which the maturity dates had
previously been extended and have paid off and (E) as to which the
maturity dates had been previously extended and are in the process of
being further extended;
(xxix) the original and then current credit support levels for each
Class of Regular Interest Certificates;
(xxx) the original and then current ratings, if any, for each Class
of Regular Interest Certificates;
(xxxi) the aggregate amount of Prepayment Premiums and Yield
Maintenance Charges collected (A) during the related Collection Period and
(B) since the Closing Date;
(xxxii) (A) the aggregate amount of servicing compensation in
respect of the Mortgage Pool (separately identifying the amount of each
category of compensation) paid to the Master Servicer, the Special
Servicer and, if payable directly out of the Trust Fund without a
reduction in the servicing compensation otherwise payable to the Master
Servicer or the Special Servicer, to each Sub-Servicer, during the related
Collection Period, and (B) such other information as the Trustee is
required by the Code or other applicable law to furnish to enable
Certificateholders to prepare their tax returns;
(xxxiii) the amounts, if any, actually distributed with respect to
the Class R-I and Class R-II Certificates on such Distribution Date; and
(xxxiv) as determined and/or approved by the Depositor, any other
information necessary to satisfy the requirements of Item 1121(a) of
Regulation AB that can, in the Trustee's reasonable judgment, be included
on the Distribution Date Statement without undue difficulty.
In the case of information to be furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a basis for
information to be furnished pursuant to clauses (vi) through (xvii), (xi),
(xxii), (xxvi), (xxvii), (xxviii), (xxxi) and (xxxii) above, insofar as the
underlying information is solely within the control of the Special Servicer or
the Master Servicer, the Trustee may, absent manifest error, conclusively rely
on the reports to be provided by the Special Servicer or the Master Servicer.
The Trustee shall forward electronically a copy of each Distribution
Date Statement to the Depositor. The Trustee shall make available each month, to
Certificateholders, Certificate Owners, the Underwriters, the Rating Agencies,
the Controlling Class Representative, any party hereto or any Person identified
by any Certificateholder or Certificate Owner as a prospective transferee, via
the Trustee's internet website, all Certificateholder Reports and any additional
files containing substantially similar information in an alternative format and,
with the consent or at the direction of the Depositor, such other information
regarding the Certificates and/or the Mortgage Loans as the Trustee may have in
its possession. The Trustee will make no representations or warranties as to the
accuracy or completeness of such documents and will assume no responsibility
therefor.
The Trustee's internet website shall initially be located at
"xxxxx://xxx.xxxxxxx.xxx" or at such other address as shall be specified by the
Trustee from time to time in the Distribution Date Statement and in one or more
written notices delivered to the Depositor, the Master Servicer, the Special
Servicer, the Controlling Class Representative (if any), the Certificateholders
and the Rating Agencies. In connection with providing access to the Trustee's
internet website, the Trustee may require the acceptance of a disclaimer. The
Trustee shall not be liable for the dissemination of information in accordance
with this Agreement.
The Master Servicer may, but is not required to, make available each
month, to Certificateholders, Certificate Owners (that have been confirmed as
such by the Trustee), the Controlling Class Representative, the Underwriters,
the Rating Agencies or any party hereto, the Certificateholder Reports in its
possession, on its internet website. The Master Servicer will make no
representations or warranties as to the accuracy or completeness of any report
not prepared by it and will assume no responsibility for any information for
which it is not the original source.
The Master Servicer's internet website shall initially be located at
"xxx.xxxxxxxx.xxx" or at such other address as shall be specified by the Master
Servicer from time to time in one or more written notices delivered to the other
parties hereto, the Controlling Class Representative (if any), the
Certificateholders and the Rating Agencies. In connection with providing access
to the Master Servicer's internet website, the Master Servicer may require,
without limitation, the acceptance of a disclaimer, registration and a
confidentiality agreement. The Master Servicer shall not be liable for the
dissemination of information to Certificateholders and Certificate Owners in
accordance with this Agreement.
Absent manifest error of which it has actual knowledge, none of the
Master Servicer, the Special Servicer or the Trustee shall be responsible for
the accuracy or completeness of any information supplied to it by a Mortgagor,
the Depositor (including information in the Prospectus Supplement), any Mortgage
Loan Seller or third party that is included in any reports, statements,
materials or information prepared or provided by the Master Servicer, the
Special Servicer or the Trustee, as applicable, pursuant to this Agreement. None
of the Trustee, the Master Servicer or the Special Servicer shall have any
obligation to verify the accuracy or completeness of any information provided by
a Mortgagor, any Mortgage Loan Seller, a third party or each other.
Within a reasonable period of time after the end of each calendar
year the Trustee shall send to each Person who at any time during the calendar
year was a Certificateholder of record, a report summarizing on an annual basis
(if appropriate) the items relating to distributions of interest (including
Prepayment Premiums and Yield Maintenance Charges) and principal to
Certificateholders during such calendar year set forth in the Distribution Date
Statements and such other information as may be required to enable such
Certificateholders to prepare their federal income tax returns. Such information
shall include the amount of original issue discount accrued on each Class of
Certificates and information regarding the expenses of the Trust Fund. Such
requirement shall be deemed to be satisfied to the extent such information is
provided pursuant to applicable requirements of the Code from time to time in
force.
Upon receipt of notice from the Depositor that the Underwriters have
sold the Non-Registered Certificates to unaffiliated third parties, the Trustee
shall make available electronically or, if so requested, forward by hard copy,
on each Distribution Date, to (i) the Trepp Group (at 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other address as the Trepp Group may
designate), (ii) Intex Solutions, Inc. (at 00 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000, or such other address as Intex Solutions, Inc. may
hereafter designate), (iii) Charter Research Corporation (at 000 Xxxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or such other address as Charter Research
Corporation may hereafter designate), and (iv) any other similar third party
information provider, a copy of the reports made available to the Holders of the
Certificates on such Distribution Date as described above.
Upon written request of the Depositor, the Master Servicer, the
Special Servicer, the Controlling Class Representative or any Underwriter,
without payment of any fee, and upon written request of any Certificateholders
or any other Person, together with payment of a reasonable fee specified by the
Trustee, the Trustee shall provide any statements, reports and/or information
contemplated by this Section 4.02(a) electronically to such party (such
electronic distribution and such statements, reports, and/or information thereon
to bear such appropriate disclaimers and qualifications as the Depositor and the
Trustee shall determine in their reasonable discretion).
If any Certificate Owner does not receive through the Depository or
any of its Depository Participants any of the statements, reports and/or other
written information described above in this Section 4.02(a) that it would
otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book-Entry
Certificates, then the Trustee shall forward such statements, reports and/or
other written information to such Certificate Owner as provided above, upon the
request of such Certificate Owner made in writing to the Corporate Trust Office
(accompanied by current verification of such Certificate Owner's ownership
interest). Such portion of such information as may be agreed upon by the
Depositor and the Trustee shall be furnished to any such Person via overnight
courier delivery or telecopy from the Trustee; provided that the cost of such
overnight courier delivery or telecopy shall be an expense of the party
requesting such information.
The Trustee shall only be obligated to deliver the statements,
reports and information contemplated by this Section 4.02(a) to the extent it
receives, in the format required by this Agreement, the necessary underlying
information from the Master Servicer or the Special Servicer, as applicable, and
shall not be liable for any failure to deliver any thereof on the prescribed due
dates, to the extent caused by failure to receive timely such underlying
information. Nothing herein shall obligate the Trustee, the Master Servicer or
the Special Servicer to violate any applicable law prohibiting disclosure of
information with respect to any Mortgagor and the failure of the Trustee, Master
Servicer or the Special Servicer to disseminate information for such reason
shall not be a breach hereof.
The information to be furnished by the Trustee to the
Certificateholders pursuant to Sections 4.02(a) and (b) shall not limit the
Trustee in furnishing any such information to other Persons to whom it
determines such disclosure to be appropriate and shall not limit the Trustee in
furnishing to Certificateholders or to any Person any other information with
respect to the Mortgage Loans, the Mortgaged Properties or the Trust Fund as may
be provided to it by the Depositor, the Master Servicer or the Special Servicer
or gathered by it in any investigation or other manner from time to time (such
information, other than as described in Sections 4.02(a) and (b), is referred to
herein as "Additional Information") as it may reasonably deem necessary or
appropriate from time to time, provided that (A) the Trustee shall give the
Depositor three (3) Business Days' advance notice before doing so, (B) any such
Additional Information shall only be furnished with the consent or at the
request of the Depositor (except pursuant to clause (E) below), (C) the Trustee
shall be entitled to indicate the source of all information furnished by it, and
the Trustee may affix thereto any disclaimer it deems appropriate in its
reasonable discretion, (D) the Trustee shall notify Certificateholders of the
availability of any such information in any manner as it, in its sole
discretion, may determine, and (E) this provision shall not prevent the Trustee,
whether with or without the consent of the Depositor, from furnishing
information with respect to the Trust Fund and its administration thereof to any
Person, if it reasonably determines that the furnishing of such information is
required by applicable law. The Trustee shall forward to the Depositor any
requests for Additional Information which, for their fulfillment, require the
consent of the Depositor. Nothing herein shall be construed to impose upon the
Trustee any obligation or duty to furnish or distribute any Additional
Information to any Person in any instance.
(b) Not later than 3:00 p.m. (New York City time) on the second
Business Day prior to each Distribution Date, the Master Servicer shall furnish
to the Trustee, and upon request, the Trustee shall make available on such
Distribution Date to the Depositor, the Underwriters and the Special Servicer,
by electronic transmission (or in such other form to which the Trustee or the
Depositor, as the case may be, and the Master Servicer may agree), an accurate
and complete CMSA Loan Periodic Update File providing the required information
for the Mortgage Loans and any successor REO Mortgage Loans (including, without
limitation, the Available Distribution Amount, Sub-Pool 1 Available Distribution
Amount and Sub-Pool 2 Available Distribution Amount) as of the related
Determination Date.
In the performance of its obligations set forth in Section 4.06 and
its other duties hereunder, the Trustee may conclusively rely on the CMSA Loan
Periodic Update File provided to it by the Master Servicer, and the Trustee
shall not be responsible to recompute, recalculate or verify the information
provided to it by the Master Servicer. In the case of information to be
furnished by the Master Servicer to the Trustee pursuant to this Section
4.02(b), insofar as such information is solely within the control of the Special
Servicer, the Master Servicer shall have no obligation to provide such
information until it has received such information from the Special Servicer,
shall not be in default hereunder due to a delay in providing the CMSA Loan
Periodic Update File caused by the Special Servicer's failure to timely provide
any report required under this Agreement and may, absent actual knowledge of an
error therein, conclusively rely on the reports to be provided by the Special
Servicer. The Master Servicer may conclusively rely on any information provided
by the Depositor or any Mortgagor with respect to the CMSA Loan Periodic Update
File, CMSA Loan Setup File, CMSA Property File and CMSA Financial File.
Section 4.03 P&I Advances.
(a) On or before 3:00 p.m., New York City time, on each Master
Servicer Remittance Date, the Master Servicer shall, subject to Section 4.03(c)
below, satisfy its obligations to make any required P&I Advances with respect to
the related Distribution Date in respect of the Mortgage Pool (other than the
Serviced Loan Combination Trust Mortgage Loans or any successor REO Mortgage
Loans with respect thereto), first, by transferring to the Trustee for deposit
in the Lower-Tier Distribution Account amounts then held in the Pool Custodial
Account for future distribution to Certificateholders in subsequent months in
discharge of such obligations, and second, by remitting its own funds to the
Trustee for deposit in the Lower-Tier Distribution Account in an amount equal to
the remaining portion of such required P&I Advances. Any amounts held in the
Pool Custodial Account for future distribution and so used to make P&I Advances
shall be appropriately reflected in the Master Servicer's records and replaced
by the Master Servicer by deposit in the Pool Custodial Account on or before the
next succeeding Determination Date (to the extent not previously replaced
through the deposit of Late Collections of the delinquent principal and interest
in respect of which such P&I Advances were made). If, as of 4:00 p.m., New York
City time, on any Master Servicer Remittance Date, the Master Servicer shall not
have made any P&I Advance required to be made on such date pursuant to this
Section 4.03(a) (and shall not have delivered to the Trustee the requisite
Officer's Certificate and documentation related to a determination of
nonrecoverability of a P&I Advance), then the Trustee shall provide notice of
such failure to a Servicing Officer of the Master Servicer by facsimile
transmission sent to telecopy number (000) 000-0000 (or such alternative number
provided by the Master Servicer to the Trustee in writing) and by telephone at
telephone number (000) 000-0000 or (000) 000-0000 (or such alternative number
provided by the Master Servicer to the Trustee in writing) as soon as possible,
but in any event before 5:00 p.m., New York City time, on such Master Servicer
Remittance Date. If after such notice by facsimile, the Trustee does not receive
the full amount of such P&I Advances by 11:00 a.m., New York City time, on the
related Distribution Date, then the Trustee shall make the portion of such P&I
Advances that was required to be, but was not, made by the Master Servicer on
such Master Servicer Remittance Date.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer or the Trustee as successor master servicer, as the case may be,
pursuant to the first paragraph of Section 4.03(a) in respect of any
Distribution Date shall, subject to Section 4.03(c) below, equal the aggregate
of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly
Payments (except with respect to any Serviced Companion Loan), in each case net
of related Master Servicing Fees and any related Workout Fees, due or deemed
due, as the case may be, in respect of the Mortgage Loans (including Balloon
Mortgage Loans delinquent as to their respective Balloon Payments) and any REO
Mortgage Loans in the Mortgage Pool (exclusive of the Loan Combination Trust
Mortgage Loans or any successor REO Mortgage Loans with respect thereto) on
their respective Due Dates during the related Collection Period, in each case to
the extent such amount was not paid by or on behalf of the related Mortgagor or
otherwise collected (including as net income from REO Properties) as of the
close of business on the related Determination Date; provided that if it is
determined that an Appraisal Reduction Amount exists with respect to any such
Mortgage Loan or REO Mortgage Loan, then, in the event of subsequent
delinquencies thereon, the amount of each P&I Advance, if any, required to be
made in respect of such Mortgage Loan or REO Mortgage Loan, as the case may be,
during the period that such Appraisal Reduction Amount continues to exist, shall
be reduced to equal the product of (x) the amount of the subject P&I Advance
that would otherwise be required without regard to this proviso, multiplied by
(y) a fraction, the numerator of which is equal to the Stated Principal Balance
of such Mortgage Loan or REO Mortgage Loan, as the case may be, net of such
Appraisal Reduction Amount, and the denominator of which is equal to the Stated
Principal Balance of such Mortgage Loan or REO Mortgage Loan, as the case may
be.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made under this Section 4.03 if such P&I Advance would,
if made, constitute a Nonrecoverable Advance, as determined by the Master
Servicer, the Special Servicer or the Trustee. The determination by the Master
Servicer or the Special Servicer that a P&I Advance has become a Nonrecoverable
P&I Advance or that any proposed P&I Advance, if made pursuant to this Section
4.03, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an
Officer's Certificate delivered to the Trustee, the Special Servicer and the
Depositor on or before the related Master Servicer Remittance Date, setting
forth the basis for such determination, together with any other information that
supports such determination, including any appraisal (which appraisal shall have
been conducted by an Independent Appraiser within the 12-month period preceding
such determination in accordance with the standards of the Appraisal Institute
taking into account the factors specified in Section 3.19), related Mortgagor
operating statements and financial statements, budgets and rent rolls of the
related Mortgaged Properties (to the extent available and/or in the Master
Servicer's or Special Servicer's possession, as applicable), engineers' reports,
environmental surveys and any similar reports that the Master Servicer or
Special Servicer may have obtained consistent with the Servicing Standard and at
the expense of the Trust Fund, that support such determination by the Master
Servicer or Special Servicer. If, in connection with the foregoing, it is
necessary for the Master Servicer to obtain an appraisal, the Master Servicer
shall so notify the Special Servicer and consult with the Special Servicer
regarding such appraisal. The cost of an appraisal shall be paid by the Trust as
an Additional Trust Fund Expense. The Trustee shall be entitled to rely,
conclusively, on any determination by the Master Servicer or the Special
Servicer that a P&I Advance, if made, would be a Nonrecoverable P&I Advance, and
the Master Servicer and the Trustee shall conclusively rely on any
non-recoverability determination made by the Special Servicer (but this
statement shall not be construed to entitle the Special Servicer to reverse any
other authorized Person's determination, or to prohibit any such other
authorized Person from making a determination that a P&I Advance constitutes or
would constitute a Nonrecoverable P&I Advance); provided, however, that if the
Master Servicer has failed to make a P&I Advance for reasons other than a
determination by the Master Servicer that such P&I Advance would be
Nonrecoverable P&I Advance, the Trustee shall make such Advance within the time
periods required by Section 4.03(a) unless the Trustee, in its good faith,
reasonable discretion, makes a determination prior to the times specified in
Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. In
addition, the Master Servicer shall consider Workout-Delayed Reimbursement
Amounts in respect of prior P&I Advances on the applicable Mortgage Loan that
have not been repaid by the related Mortgagor for the purposes of
nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X
Advances. Upon determining that any P&I Advance previously made with respect to
a Specially Serviced Mortgage Loan or REO Loan is a Nonrecoverable P&I Advance,
the Special Servicer shall report to the Master Servicer the Special Servicer's
determination. The Master Servicer shall be entitled to conclusively rely on
such determination.
(d) The Master Servicer and the Trustee shall each be entitled to
receive interest at the Reimbursement Rate in effect from time to time,
compounded annually, accrued on the amount of each P&I Advance made thereby
under this Section 4.03 (with its own funds) for so long as such P&I Advance is
outstanding; provided that, if the grace period for the delinquent Monthly
Payment as to which a P&I Advance was made under this Section has not elapsed as
of the time such P&I Advance was made, then the total interest so accrued on
such P&I Advance prior to the expiration of such grace period, shall not exceed
the amount of Default Charges, if any, collected in connection with the late
payment of such delinquent Monthly Payment; and provided, further that, in no
event shall interest so accrue on any P&I Advance as to which the corresponding
Late Collection was received by the Master Servicer or a Sub-Servicer on its
behalf as of the related Master Servicer Remittance Date. Interest so accrued on
any P&I Advance made under this Section shall be payable in accordance with the
terms of Section 3.05.
Xxxxxxx 0.00X X&X Advances on the Loan Combination Trust Mortgage
Loans.
With respect to the P&I Advances and the Loan Combinations, the
Master Servicer shall make P&I Advances with respect to the related Loan
Combination Trust Mortgage Loans, but will not make P&I Advances with respect to
the related Companion Loans.
The Master Servicer shall, subject to Section 4.03A(c) below,
satisfy its obligations to make any required P&I Advance on each Master Servicer
Remittance Date in respect of the Loan Combination Trust Mortgage Loans, by
depositing into the related Loan Combination Custodial Account (or in the case
of any Loan Combination Trust Mortgage Loan that is not a Serviced Loan, by
depositing in the Pool Custodial Account), out of amounts held in such Custodial
Account for future distribution (subject to replacement of such amounts by the
following Master Servicer Remittance Date) and, if such amounts are
insufficient, then out of its own funds, the amount of such P&I Advance required
to be made. P&I Advances with respect to any Loan Combination Trust Mortgage
Loan shall be made no later than 3:00 p.m., New York City time, on each Master
Servicer Remittance Date. If, as of 4:00 p.m., New York City time, on any Master
Servicer Remittance Date, the Master Servicer shall not have made any P&I
Advance required to be made on such date pursuant to this Section 4.03A(a) in
respect of the Loan Combination Trust Mortgage Loans (and the Master Servicer
shall not have delivered to the Trustee the requisite Officer's Certificate and
documentation related to a determination of nonrecoverability of a P&I Advance),
then the Trustee shall provide notice of such failure to a Servicing Officer of
the Master Servicer by facsimile transmission sent to telecopy number (704)
593-7740 (or such alternative number provided by the Master Servicer to the
Trustee in writing) and by telephone at telephone number (000) 000-0000 or (704)
593-7867 (or such alternative number provided by the Master Servicer to the
Trustee in writing) as soon as possible, but in any event before 5:00 p.m., New
York City time, on such Master Servicer Remittance Date. The Trustee shall also
provide a copy of such notice to the master servicer of the securitization
holding the related Pari Passu Companion Loan, such obligation being contingent
upon such master servicer having previously provided notice to the Trustee;
provided, however that the Trustee has actual knowledge that the related Pari
Passu Companion Loan is included in such securitization based upon a notice
received from such master servicer. If after such notice, the Trustee does not
receive the full amount of such P&I Advance(s) by 11:00 a.m., New York City
time, on the related Distribution Date, then the Trustee as successor master
servicer shall make the portion of such P&I Advances that was required to be,
but was not, made by the Master Servicer in respect of the Loan Combination
Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto on
the preceding Master Servicer Remittance Date.
The aggregate amount of P&I Advances to be made by the Master
Servicer or the Trustee, as the case may be, pursuant to the first paragraph of
Section 4.03A(a) in respect of any Distribution Date shall, subject to Section
4.03A(c) below, equal the aggregate of all Monthly Payments (other than Balloon
Payments) and any Assumed Monthly Payments, in each case net of related Master
Servicing Fees and any related Workout Fees, due or deemed due, as the case may
be, in respect of the Loan Combination Trust Mortgage Loans (including Balloon
Loans delinquent as to their respective Balloon Payments) and any successor REO
Loans to such Loans on their respective Due Dates during the related Collection
Period, in each case, to the extent such amount was not paid by or on behalf of
the related Mortgagor or otherwise collected (including as net income from REO
Properties) as of the close of business on the related Determination Date;
provided that if it is determined that an Appraisal Reduction Amount exists with
respect to any such Loan Combination or REO Loan, then, in the event of
subsequent delinquencies thereon, the amount of each P&I Advance, if any,
required to be made in respect of such Loan Combination or REO Loan, as the case
may be, during the period that such Appraisal Reduction Amount continues to
exist, shall be reduced to equal the product of (x) the amount of the subject
P&I Advance that would otherwise be required without regard to this proviso,
multiplied by (y) a fraction, the numerator of which is equal to the Stated
Principal Balance of the Loan Combination Trust Mortgage Loan(s) net of the
portion of the applicable Appraisal Reduction Amount allocated to such Loan
Combination Trust Mortgage Loan(s), and the denominator of which is equal to the
Stated Principal Balance of such Loan Combination Trust Mortgage Loan(s) (or
related Mortgage Loan or REO Mortgage Loan). For purposes of the preceding
sentence Appraisal Reduction Amounts with respect to a Loan Combination shall be
applied first to the related Subordinate Companion Loan, if any until its
balance is reduced to zero and then, to the related Loan Combination Trust
Mortgage Loan and with respect to any other Loan Combination including Pari
Passu Companion Loans, if applicable, the related Pari Passu Companion Loan(s),
based on their respective outstanding principal balances.
Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made under this Section 4.03A with respect to Loan
Combination Trust Mortgage Loans, or related REO Loans if such P&I Advance would
if made, constitute a Nonrecoverable P&I Advance, as determined by the Master
Servicer, the Special Servicer or the Trustee. The determination by the Master
Servicer or the Special Servicer that a P&I Advance has become a Nonrecoverable
P&I Advance or that any proposed P&I Advance, if made pursuant to this Section
4.03A with respect to any Loan Combination Trust Mortgage Loan, would constitute
a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate
delivered to the Trustee and the Special Servicer on or prior to the next Master
Servicer Remittance Date and to the Companion Loan Noteholders (and the related
Subsequent Master Servicer, if applicable) for such Serviced Pari Passu
Companion Loan within two Business Days after such determination was made,
setting forth the basis for such determination, together with any other
information that supports such determination, any appraisal (which appraisal
shall be an expense payable out of the related Loan Combination Custodial
Account or, if funds therein are insufficient therefor, from the Pool Custodial
Account) and shall have been conducted by an Independent Appraiser in accordance
with the standards of the Appraisal Institute, within the twelve months
preceding such determination of nonrecoverability), Mortgagor operating
statements and financial statements, budgets and rent rolls of the Mortgaged
Property (to the extent available and/or in the Master Servicer's or the Special
Servicer's possession, as applicable), engineers' reports, environmental surveys
and any similar reports that the Master Servicer or the Special Servicer may
have obtained consistent with the Servicing Standard and that support such
determination by the Master Servicer or the Special Servicer. If, in connection
with the foregoing, it is necessary for the Master Servicer to obtain an
appraisal, the Master Servicer shall so notify the Special Servicer and consult
with the Special Servicer regarding such appraisal. The Trustee shall be
entitled to rely, conclusively, on any determination by the Master Servicer or
Special Servicer that a P&I Advance to be made in respect of the Loan
Combination Trust Mortgage Loans or any successor REO Mortgage Loans with
respect thereto, if made, would be a Nonrecoverable Advance, and the Master
Servicer and the Trustee shall conclusively rely on any non-recoverability
determination made by the Special Servicer (but this statement shall not be
construed to entitle the Special Servicer to reverse any other authorized
Person's determination, or to prohibit any such other authorized Person from
making a determination, that a P&I Advance constitutes or would constitute a
Nonrecoverable Advance); provided, however, that if the Master Servicer has
failed to make such a P&I Advance with respect to the Loan Combination Trust
Mortgage Loans or any successor REO Mortgage Loan for reasons other than a
determination by the Master Servicer that such P&I Advance would be
Nonrecoverable Advance or the Trustee shall make such Advance within the time
periods required by Section 4.03A(a) unless the Trustee, in its good faith,
reasonable discretion, makes a determination prior to the times specified in
Section 4.03A(a) that such P&I Advance would be a Nonrecoverable P&I Advance. In
addition, the Master Servicer shall consider Workout-Delayed Reimbursement
Amounts in respect of prior P&I Advances on the applicable Loan that have not
been repaid by the related Mortgagor for the purposes of nonrecoverability
determinations as if such amounts were xxxxxxxxxxxx X&X Advances.
The Master Servicer and the Trustee shall be entitled to receive
interest at the Reimbursement Rate in effect from time to time, compounded
annually, accrued on the amount of each P&I Advance made thereby in respect of a
Loan Combination Trust Mortgage Loan or related REO Loans under this Section
4.03A (with its own funds) for so long as such P&I Advance is outstanding;
provided that, if the grace period for the delinquent Monthly Payment as to
which a P&I Advance was made under this Section 4.03A has not elapsed as of the
time such P&I Advance was made, then the total interest so accrued on such P&I
Advance prior to the expiration of such grace period, shall not exceed the
amount of Default Charges, if any, collected in connection with the late payment
of such delinquent Monthly Payment; and provided, further, that in no event
shall interest so accrue on any P&I Advance in respect of a Loan Combination
Trust Mortgage Loan or related REO Loan as to which the corresponding Late
Collection was received by the Master Servicer or a Sub-Servicer on its behalf
as of the Master Servicer Remittance Date on which such P&I Advance was made.
Interest so accrued on any P&I Advance made under this Section shall be payable
in accordance with the terms of Section 3.05 and 3.05A.
If the Trustee or the Master Servicer has received notice from S&P
or Fitch that the Master Servicer no longer has Rating Agency Approval, then
such party shall promptly notify the other, the Special Servicer or Subsequent
Master Servicer of the same.
If the Master Servicer has received notice that a Subsequent Master
Servicer no longer has Rating Agency Approval, then the Master Servicer shall
not be required to abide by any determination of nonrecoverability by such
Subsequent Master Servicer.
For the purpose of this Section 4.03A(f), "Rating Agency Approval"
means, (1) with respect to S&P, that a master servicer is listed on S&P's Select
Servicer List as a U.S. Commercial Mortgage Master Servicer, or (2) with respect
to Fitch, that a master servicer is approved by Fitch.
Section 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01, the Trustee
shall determine the amount, if any, by which (i) the then aggregate of the Class
Principal Balances of all the Classes of Principal Balance Certificates exceeds
(ii) the aggregate Stated Principal Balance of the Mortgage Pool that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the Class Principal Balances of the Class P, Class O, Class N, Class
M, Class L, Class K, Class J, Class H, Class G, Class F, Class E, Class D, Class
C, Class B Certificates shall be reduced sequentially, in that order, in each
case, until such excess or the related Class Principal Balance is reduced to
zero (whichever occurs first), and then to the Class A-J Certificates until such
excess or the related Class Principal Balance is reduced to zero (whichever
occurs first), and then to the Class A-M Certificates until such excess or the
related Class Principal Balance is reduced to zero (whichever occurs first). If,
after the foregoing reductions, the amount described in clause (i) of the second
preceding sentence still exceeds the amount described in clause (ii) of such
sentence, then the respective Class Principal Balances of all the outstanding
Classes of the Class A-1, Class A-2, Class A-3, Class A-PB, Class A-4 and Class
A-1A Certificates shall be reduced on a pro rata basis in accordance with the
relative sizes of such Class Principal Balances, until any such remaining excess
is reduced to zero. All such reductions in the Class Principal Balances of the
respective Classes of the Principal Balance Certificates shall constitute
allocations of Realized Losses and Additional Trust Fund Expenses.
(b) On each Distribution Date, following the deemed distributions of
principal or in reimbursement of previously allocated Realized Losses and
Additional Trust Fund Expenses made in respect of the Uncertificated Lower-Tier
Interests pursuant to Section 4.01(i), the Uncertificated Principal Balance of
the Corresponding Uncertificated Lower-Tier Interests (after taking account of
such deemed distributions) shall be reduced as a result of Realized Losses and
Additional Trust Fund Expenses to equal the Class Principal Balance of the Class
of Corresponding Certificates that will be outstanding immediately following
such Distribution Date.
Section 4.05 Various Reinstatement Amounts.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01 or 9.01, as
applicable, the Trustee shall determine the amount, if any, by which (i) the
aggregate Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date, exceeds (ii) the then aggregate of
the Class Principal Balances of all the Classes of Principal Balance
Certificates. If such an excess does exist, then the Trustee shall allocate the
Total Principal Reinstatement Amount, if any, for the subject Distribution Date
as follows until it is allocated in full: first, to all of the Classes of Class
A Certificates up to, and on a pro rata basis in accordance with, the respective
Loss Reimbursement Amounts, if any, for such Classes of Class A Certificates
with respect to the next succeeding Distribution Date; and then to the Class A-M
Certificates, and then to the Class A-J Certificates, and then to the remaining
Classes of Principal Balance Certificates, sequentially in alphabetical order
based on the respective Class designations thereof, in each case up to any Loss
Reimbursement Amount for such Class of Principal Balance Certificates
immediately prior to such Distribution Date. Any portion of the Total Principal
Reinstatement Amount for any Distribution Date that is allocated to a particular
Class of Principal Balance Certificates shall be: (i) referred to herein as the
"Class Principal Reinstatement Amount" in respect of such Class of Principal
Balance Certificates for such Distribution Date; and (ii) added to the Class
Principal Balance of such Class of Principal Balance Certificates on such
Distribution Date. Notwithstanding anything to the contrary contained herein,
the parties hereby acknowledge that the reinstatement of all or any portion of
the Class Principal Balance of any Class of Principal Balance Certificates on
any Distribution Date shall be a result of the collection of Recovered Amounts
during the related Collection Period and the upward adjustment of the Adjusted
Principal Distribution Amount for such Distribution Date as a result of such
Recovered Amounts.
(b) In addition, in connection with its reinstatement of all or any
portion of the Class Principal Balance of any one or more Classes of Principal
Balance Certificates on any Distribution Date pursuant to Section 4.05(a), the
Trustee shall calculate the amount of lost Distributable Certificate Interest
that would have accrued on the respective Classes of Regular Interest
Certificates through and including the end of the Interest Accrual Period for
such Distribution Date if no Unfunded Principal Balance Reductions had resulted
from the reimbursement out of general collections of principal on the Mortgage
Pool of the particular Advances relating to the Recovered Amounts associated
with such reinstatement of outstanding principal. Once determined, such lost
Distributable Certificate Interest in respect of any particular Class of Regular
Interest Certificates shall be reinstated and become due and payable on future
Distribution Dates as part of the unpaid Distributable Certificate Interest for
such Class of Principal Balance Certificates from prior Distribution Dates. All
such reinstated Distributable Certificate Interest in respect of any particular
Class of Principal Balance Certificates shall be treated the same as any other
unpaid Distributable Certificate Interest in respect of such Class of Principal
Balance Certificates.
(c) If the Class Principal Balance of any Class of Principal Balance
Certificates is increased on any Distribution Date pursuant to Section 4.05(a),
then the Uncertificated Principal Balance of such Class' Corresponding
Uncertificated Lower-Tier Interest shall be deemed to have first been increased
by the same amount. The amount of each such increase in the Uncertificated
Principal Balance of a Uncertificated Lower-Tier Interest on any Distribution
Date shall be referred to herein as the "Lower-Tier Interest Principal
Reinstatement Amount" in respect of such Uncertificated Lower-Tier Interest for
such Distribution Date.
Section 4.06 Calculations.
The Trustee shall, provided it receives the necessary information
from the Master Servicer and the Special Servicer, be responsible for performing
all calculations necessary in connection with the actual and deemed
distributions and allocations to be made pursuant to Section 4.01 and Article IX
and the actual and deemed allocations of Realized Losses and Additional Trust
Fund Expenses to be made pursuant to Section 4.04. The Trustee shall calculate
the Available Distribution Amount for each Distribution Date and shall allocate
such amounts among Certificateholders in accordance with this Agreement, and the
Trustee shall have no obligation to recompute, recalculate or verify any
information provided to it by the Special Servicer or Master Servicer. The
calculations by the Trustee of such amounts shall, in the absence of manifest
error, be presumptively deemed to be correct for all purposes hereunder.
Section 4.07 Use of Agents.
The Master Servicer, the Special Servicer or the Trustee may at its
own expense utilize agents or attorneys-in-fact in performing any of its
obligations under this Article IV (except the obligation to make P&I Advances),
but no such utilization shall relieve the Master Servicer, the Special Servicer
or the Trustee, as applicable, from any of such obligations, and the Master
Servicer, the Special Servicer or the Trustee, as applicable, shall remain
responsible for all acts and omissions of any such agent or attorney-in-fact
(other than with respect to limited powers of attorney delivered by the Trustee
to the Master Servicer or Special Servicer pursuant to Section 2.03(b) and
3.01(b), as applicable, in which case the Trustee shall have no such
responsibility).
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibits X-0, X-0, X-0X, X-0, X-0, X-0, X-0 and A-7; provided
that any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
The Certificates will be issuable in registered form only; provided, however,
that in accordance with Section 5.03, beneficial ownership interests in the
Certificates (other than the Class R-I or Class R-II Certificates) shall
initially be held and transferred through the book-entry facilities of the
Depository. The Regular Interest Certificates will be issuable only in
denominations corresponding to initial Certificate Principal Balances or initial
Notional Amount, as the case may be, as of the Closing Date of $25,000 in the
case of the Class A-1, Class A-2, Class A-4, Class A-PB, Class A-4, Class A-1A,
Class A-M, Class A-J, Class B, Class C and Class D Certificates, $1,000,000 in
the case of the Class IO Certificates, $100,000 in the case of the remaining
Regular Interest Certificates and $10,000,000, in the case of any Definitive
Certificate, and in each such case in integral multiples of $1 in excess
thereof. The Class R-I, Class R-II and Class Y Certificates will be issuable in
denominations representing Percentage Interests in the related Class of not less
than 5%.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers or signatories of the
Certificate Registrar shall be entitled to all benefits under this Agreement,
subject to the following sentence, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, however, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee is hereby initially appointed (and hereby agrees to act in
accordance with the terms hereof) as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided. The offices of the Trustee responsible for its duties as initial
Certificate Register shall be located, as of the Closing Date, at Sixth and
Marquette, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Transfer Agent--COBALT
CMBS Commercial Mortgage Trust 2007-C3. The Certificate Registrar may appoint,
by a written instrument delivered to the Depositor, the Master Servicer, the
Special Servicer and (if the Trustee is not the Certificate Registrar) the
Trustee, any other bank or trust company to act as Certificate Registrar under
such conditions as the predecessor Certificate Registrar may prescribe, provided
that the predecessor Certificate Registrar shall not be relieved of any of its
duties or responsibilities hereunder by reason of such appointment. If the
Trustee resigns or is removed in accordance with the terms hereof, the successor
trustee shall immediately succeed to its duties as Certificate Registrar. The
Depositor, the Trustee (if it is no longer the Certificate Registrar), the
Master Servicer and the Special Servicer shall have the right to inspect the
Certificate Register or to obtain a copy thereof at all reasonable times, and to
rely conclusively upon a certificate of the Certificate Registrar as to the
information set forth in the Certificate Register.
If three or more Holders make written request to the Trustee, and
such request states that such Holders desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such Holders propose to
transmit, then the Trustee shall, within thirty (30) days after the receipt of
such request, afford (or cause any other Certificate Registrar to afford) the
requesting Holders access during normal business hours to the most recent list
of Certificateholders held by the Certificate Registrar.
(b) No Transfer of any Non-Registered Certificate or interest
therein shall be made unless that Transfer is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of any Definitive Non-Registered Certificate is to be
made without registration under the Securities Act (other than in connection
with a Transfer of a Global Certificate for any Class of Book-Entry
Non-Registered Certificates to a successor Depository or to the applicable
Certificate Owner(s) in accordance with Section 5.03), then the Certificate
Registrar shall refuse to register such Transfer unless it receives (and, upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such Transfer substantially in the form
attached hereto as Exhibit F-1 and a certificate from such Certificateholder's
prospective Transferee substantially in the form attached hereto either as
Exhibit F-2A or, with respect to each Definitive Non-Registered Certificate
other than the Class R-I and Class R-II Certificates, as Exhibit F-2B; or (ii)
an Opinion of Counsel satisfactory to the Trustee to the effect that the
prospective Transferee is an Institutional Accredited Investor or a Qualified
Institutional Buyer (except in the case of the Class Y, Class R-I and Class R-II
Certificates, where the prospective Transferee must be a Qualified Institutional
Buyer) and such Transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of
the Depositor, the Master Servicer, the Special Servicer, the Tax Administrator,
the Trustee or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such Transfer from the Certificateholder desiring to effect such Transfer and/or
such Certificateholder's prospective Transferee on which such Opinion of Counsel
is based.
Except as provided in the following two paragraphs, no interest in
the Rule 144A Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of an interest in such Rule 144A Global Certificate. A Transferee of an
interest in the Rule 144A Global Certificate that takes delivery for a Class of
Book-Entry Non-Registered Certificates shall be deemed to have represented and
warranted that all the certifications set forth in Exhibit F-2C hereto are, with
respect to the subject Transfer, true and correct.
Any interest in the Rule 144A Global Certificate for a Class of
Book-Entry Non-Registered Certificates may be transferred by the Depositor or
any Affiliate of the Depositor to any Person who takes delivery in the form of a
beneficial interest in the Regulation S Global Certificate for such Class of
Certificates upon delivery to the Certificate Registrar of (x) a certificate to
the effect that the Certificate Owner desiring to effect such Transfer is the
Depositor or an Affiliate of the Depositor and (y) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the Trustee to debit the account of a
Depository Participant by a denomination of interests in such Rule 144A Global
Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, that is equal
to the denomination of beneficial interests in the Certificates to be
transferred (such date of transfer, the "Transfer Date"). Upon delivery to the
Certificate Registrar of such certification and orders and instructions, the
Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the Rule 144A Global Certificate in
respect of the applicable Class of Certificates and increase the denomination of
the Regulation S Global Certificate for the applicable Class, by the
denomination of the beneficial interest in such Class specified in such orders
and instructions, provided that no Regulation S Restricted Certificate may be
transferred to a Person acquiring such Certificate in reliance on Regulation S.
Also notwithstanding the foregoing, any interest in a Rule 144A
Global Certificate with respect to any Class of Book-Entry Non-Registered
Certificates may be transferred by any Certificate Owner holding such interest
to any Institutional Accredited Investor (other than a Qualified Institutional
Buyer) that takes delivery in the form of a Definitive Certificate of the same
Class as such Rule 144A Global Certificate upon delivery to the Certificate
Registrar and the Trustee of (i) such certifications and/or opinions as are
contemplated by the second paragraph of this Section 5.02(b) and (ii) such
written orders and instructions as are required under the applicable procedures
of the Depository to direct the Trustee to debit the account of a Depository
Participant by the denomination of the transferred interests in such Rule 144A
Global Certificate. Upon delivery to the Certificate Registrar of the
certifications and/or opinions contemplated by the second paragraph of this
Section 5.02(b), the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the subject Rule
144A Global Certificate by the denomination of the transferred interests in such
Rule 144A Global Certificate, and shall cause a Definitive Certificate of the
same Class as such Rule 144A Global Certificate, and in a denomination equal to
the reduction in the denomination of such Rule 144A Global Certificate, to be
executed, authenticated and delivered in accordance with this Agreement to the
applicable Transferee. Notwithstanding the foregoing, any affiliate of the
Depositor may take delivery of Book-Entry Non-Registered Certificates in
book-entry form, and shall not be required to take delivery of such Certificates
as Definitive Certificates.
Except as provided in the next paragraph, no beneficial interest in
the Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of a beneficial interest in such Regulation S Global Certificate. On
and prior to the date (the "Release Date") which is forty (40) days after the
Transfer Date, the Certificate Owner desiring to effect any such Transfer shall
be required to obtain from such Certificate Owner's prospective Transferee a
written certification substantially in the form set forth in Exhibit F-2D hereto
certifying that such Transferee is not a United States Securities Person. On or
prior to the Release Date, beneficial interests in the Regulation S Global
Certificate for each Class of Book-Entry Non-Registered Certificates may be held
only through Euroclear or Clearstream. The Regulation S Global Certificate for
each Class of Book-Entry Non-Registered Certificates shall be deposited with the
Trustee as custodian for the Depository and registered in the name of Cede & Co.
as nominee of the Depository, provided that no Regulation S Restricted
Certificate may be transferred to a Person acquiring such Certificate in
reliance on Regulation S.
Notwithstanding the preceding paragraph, after the Release Date, any
interest in the Regulation S Global Certificate for a Class of Book-Entry
Non-Registered Certificates may be transferred by the Depositor or any Affiliate
of the Depositor to any Person who takes delivery in the form of a beneficial
interest in the Rule 144A Global Certificate for such Class of Certificates upon
delivery to the Certificate Registrar of (x) a certificate to the effect that
the Certificate Owner desiring to effect such Transfer is the Depositor or an
Affiliate of the Depositor and (y) such written orders and instructions as are
required under the applicable procedures of the Depository, Clearstream and
Euroclear to direct the Trustee to debit the account of a Depository Participant
by a denomination of interests in such Regulation S Global Certificate, and
credit the account of a Depository Participant by a denomination of interests in
such Rule 144A Global Certificate, that is equal to the denomination of
beneficial interests in the Certificates to be transferred. Upon delivery to the
Certificate Registrar of such certification and orders and instructions, the
Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the Regulation S Global Certificate
in respect of the applicable Class being transferred and increase the
denomination of the Rule 144A Global Certificate for such Class, by the
denomination of the beneficial interest in such Class specified in such orders
and instructions.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Non-Registered Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the Transfer of any
Non-Registered Certificate or interest therein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of any Non-Registered Certificate or interest therein shall, and does
hereby agree to, indemnify the Depositor, the Underwriters, the Trustee, the
Master Servicer, the Special Servicer, the Tax Administrator and the Certificate
Registrar against any liability that may result if such Transfer is not exempt
from the registration and/or qualification requirements of the Securities Act
and any applicable state securities laws or is not made in accordance with such
federal and state laws.
(c) No Transfer of a Certificate or any interest therein shall be
made (i) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to Title I of ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (each, a
"Plan"), or (ii) to any Person who is directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan, if the purchase and holding of such Certificate or
interest therein by the prospective Transferee would result in a violation of
Section 406 or 407 of ERISA or Section 4975 of the Code or would result in the
imposition of an excise tax under Section 4975 of the Code or any similar
violation of Similar Law. Except in connection with Transfer thereof to a
successor Depository or to the applicable Certificate Owner(s) in accordance
with Section 5.03, the Certificate Registrar shall refuse to register the
Transfer of a Definitive Non-Registered Certificate unless it has received from
the prospective Transferee, either (i) a certification to the effect that such
prospective Transferee is not a Plan and is not directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or (ii) alternatively, but only in
the case of a Certificate other than a Class Y, Class R-I or Class R-II
Certificate, a certification to the effect that the purchase and holding of such
Certificate or interest therein by such prospective Transferee is exempt from
the prohibited transaction provisions of Sections 406(a) and (b) and 407 of
ERISA and the excise taxes imposed on such prohibited transactions by Sections
4975(a) and (b) of the Code, by reason of Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (iii) alternatively, but only in the case
of a Certificate other than a Class Y, Class R-I or Class R-II Certificate, a
certification of facts and an Opinion of Counsel which otherwise establish to
the reasonable satisfaction of the Trustee or such Certificate Owner, as the
case may be, that such Transfer will not result in a violation of Section 406 or
407 of ERISA or Section 4975 of the Code or result in the imposition of an
excise tax under Section 4975 of the Code. It is hereby acknowledged that the
form of certification attached hereto as Exhibit G (with respect to Definitive
Non-Registered Certificates) is acceptable for purposes of the preceding
sentence. If any Transferee of a Certificate (including a Registered
Certificate) or any interest therein does not, in connection with the subject
Transfer, deliver to the Certificate Registrar (in the case of a Definitive
Certificate) any certification and/or Opinion of Counsel contemplated by the
second preceding sentence, then such Transferee (and in any event any owner of a
Book-Entry Certificate that is not an Investment Grade Certificate) shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) the purchase and holding of such Certificate or interest therein
by such Transferee is exempt from the prohibited transaction provisions of
Sections 406(a) and (b) and 407 of ERISA and the excise taxes imposed on such
prohibited transactions by Sections 4975(a) and (b) of the Code (or similar
violation of Similar Law). Any Transferee of a Book-Entry Certificate that is an
Investment Grade Certificate that is being acquired by or on behalf of a Plan in
reliance on the Prohibited Transaction Exemption shall be deemed to have
represented and warranted that such Plan (X) is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act, and (Y) is not
sponsored (within the meaning of Section 3(16)(B) of ERISA) by the Trustee, the
Depositor, any Mortgage Loan Seller, the Master Servicer, the Special Servicer,
any Sub-Servicer, any Exemption-Favored Party or any Mortgagor with respect to
Mortgage Loans constituting more than 5% of the aggregate unamortized principal
balance of all the Mortgage Loans determined as of the Closing Date, or by any
Affiliate of such Person.
(d) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Interest Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trustee under clause
(ii)(A) below to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) below to negotiate the
terms of any mandatory disposition and to execute all instruments of Transfer
and to do all other things necessary in connection with any such disposition.
The rights of each Person acquiring any Ownership Interest in a Residual
Interest Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a Residual Interest Certificate shall be a Permitted Transferee and
shall promptly notify the Tax Administrator and the Trustee of any
change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Interest Certificate, except in the case of
an initial transfer to an Underwriter or the Initial Purchaser or an
affiliate thereof, the Certificate Registrar shall require delivery
to it, and shall not register the Transfer of any Residual Interest
Certificate until its receipt, of an affidavit and agreement
substantially in the form attached hereto as Exhibit H-1 (a
"Transfer Affidavit and Agreement"), from the proposed Transferee,
representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in the Residual Interest Certificate that is the
subject of the proposed Transfer as a nominee, trustee or agent for
any Person that is not a Permitted Transferee, that for so long as
it retains its Ownership Interest in a Residual Interest Certificate
it will endeavor to remain a Permitted Transferee, and that it has
reviewed the provisions of this Section 5.02(d) and agrees to be
bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of either the Trustee or the Certificate
Registrar has actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership Interest in a
Residual Interest Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Interest Certificate shall agree (1) to require a
Transfer Affidavit and Agreement from any prospective Transferee to
whom such Person attempts to Transfer its Ownership Interest in such
Residual Interest Certificate and (2) not to Transfer its Ownership
Interest in such Residual Interest Certificate unless it provides to
the Certificate Registrar a certificate substantially in the form
attached hereto as Exhibit H-2 stating that, among other things, it
has no actual knowledge that such prospective Transferee is not a
Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in
a Residual Interest Certificate, by purchasing such Ownership
Interest, agrees to give the Tax Administrator and the Trustee
written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury Regulations Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest
in a Residual Interest Certificate, if it is, or is holding an
Ownership Interest in a Residual Interest Certificate on behalf of,
a "pass-through interest holder."
(ii) (A) If any purported Transferee shall become a Holder of a
Residual Interest Certificate in violation of the provisions of this
Section 5.02(d), then the last preceding Holder of such Residual Interest
Certificate that was in compliance with the provisions of this Section
5.02(d) shall be restored, to the extent permitted by law, to all rights
as Holder thereof retroactive to the date of registration of such Transfer
of such Residual Interest Certificate. None of the Depositor, the Trustee
or the Certificate Registrar shall be under any liability to any Person
for any registration of Transfer of a Residual Interest Certificate that
is in fact not permitted by this Section 5.02(d) or for making any
payments due on such Certificate to the Holder thereof or for taking any
other action with respect to such Holder under the provisions of this
Agreement.
(B) If any purported Transferee shall become a Holder of a
Residual Interest Certificate in violation of the restrictions in
this Section 5.02(d), then, to the extent that retroactive
restoration of the rights of the preceding Holder of such Residual
Interest Certificate as described in clause (ii)(A) above shall be
invalid, illegal or unenforceable, the Trustee shall have the right
but not the obligation, to cause the Transfer of such Residual
Interest Certificate to a Permitted Transferee selected by the
Trustee on such terms as the Trustee may choose, and the Trustee
shall not be liable to any Person having an Ownership Interest in
such Residual Interest Certificate as a result of the Trustee's
exercise of such discretion. Such purported Transferee shall
promptly endorse and deliver such Residual Interest Certificate in
accordance with the instructions of the Trustee. Such Permitted
Transferee may be the Trustee itself or any Affiliate of the
Trustee.
(iii) The Tax Administrator shall make available to the IRS and to
those Persons specified by the REMIC Provisions all information furnished
to it by the other parties hereto necessary to compute any tax imposed (A)
as a result of the Transfer of an Ownership Interest in a Residual
Interest Certificate to any Person who is a Disqualified Organization,
including the information described in Treasury Regulations Sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions"
of such Residual Interest Certificate and (B) as a result of any regulated
investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of
the Code that holds an Ownership Interest in a Residual Interest
Certificate having as among its record Holders at any time any Person
which is a Disqualified Organization, and each of the other parties hereto
shall furnish to the Tax Administrator all information in its possession
necessary for the Tax Administrator to discharge such obligation. The
Person holding such Ownership Interest shall be responsible for the
reasonable compensation of the Tax Administrator for providing information
thereto pursuant to this subsection (d)(iii) and Section 10.01(h)(i).
(iv) The provisions of this Section 5.02(d) set forth prior to this
clause (iv) may be modified, added to or eliminated, provided that there
shall have been delivered to the Trustee and the Tax Administrator the
following:
(A) written confirmation from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause an Adverse Rating Event; and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Trustee and the Tax Administrator, obtained at the expense of
the party seeking such modification of, addition to or elimination
of such provisions (but in no event at the expense of the Trustee,
the Tax Administrator or the Trust), to the effect that doing so
will not (1) cause any REMIC Pool to cease to qualify as a REMIC or
be subject to an entity-level tax caused by the Transfer of any
Residual Interest Certificate to a Person which is not a Permitted
Transferee or (2) cause a Person other than the prospective
Transferee to be subject to a REMIC-related tax caused by the
Transfer of a Residual Interest Certificate to a Person that is not
a Permitted Transferee.
(e) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of an
interest in a Book-Entry Non-Registered Certificate, to the Certificate Owner
that is transferring such interest) a certification to the effect that, and such
other evidence as may be reasonably required by the Trustee (or such Certificate
Owner) to confirm that, it has (i) sole investment discretion with respect to
each such account and (ii) full power to make the applicable foregoing
acknowledgments, representations, warranties, certifications and agreements with
respect to each such account as set forth in Subsections (b), (c) and/or (d), as
appropriate, of this Section 5.02.
(f) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class evidencing a like aggregate Percentage Interest
in such Class.
(g) At the option of any Holder, its Certificates may be exchanged
for other Certificates of authorized denominations of the same Class evidencing
a like aggregate Percentage Interest in such Class upon surrender of the
Certificates to be exchanged at the offices of the Certificate Registrar
maintained for such purpose. Whenever any Certificates are so surrendered for
exchange, the Certificate Registrar shall execute and the Authenticating Agent
shall authenticate and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(h) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(i) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Trustee or Certificate Registrar may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(j) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
Section 5.03 Book-Entry Certificates.
(a) The Certificates (other than the Class R-I and Class R-II)
shall, in the case of each such Class, initially be issued as one or more
Certificates registered in the name of the Depository or its nominee and, except
as provided in Section 5.03(c) and in the fifth paragraph of Section 5.02(b), a
Transfer of such Certificates may not be registered by the Certificate Registrar
unless such Transfer is to a successor Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and Transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in Section 5.03(c) and in
the fifth paragraph of Section 5.02(b), shall not be entitled to definitive,
fully registered Certificates ("Definitive Certificates") in respect of such
Ownership Interests. The Certificates (other than the Class R-I and Class R-II)
initially sold to Qualified Institutional Buyers in reliance on Rule 144A or in
reliance on another exemption from the registration requirements of the
Securities Act shall, in the case of each such Class, be represented by the Rule
144A Global Certificate for such Class, which shall be deposited with the
Trustee as custodian for the Depository and registered in the name of Cede & Co.
as nominee of the Depository. The Certificates (other than the Class R-I and
Class R-II) initially sold in offshore transactions in reliance on Regulation S
shall, in the case of each such Class, be represented by the Regulation S Global
Certificate for such Class, which shall be deposited with the Trustee as
custodian for the Depository and registered in the name of Cede & Co. as nominee
of the Depository, provided that only Investment Grade Certificates shall be
sold in offshore transactions in reliance on Regulation S. All Transfers by
Certificate Owners of their respective Ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing each such Certificate
Owner. Each Depository Participant shall only transfer the Ownership Interests
in the Book-Entry Certificates of Certificate Owners it represents or of
brokerage firms for which it acts as agent in accordance with the Depository's
normal procedures.
(b) The Trustee, the Master Servicer, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to a Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to a Class of Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same.
Upon surrender to the Certificate Registrar of the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, the Definitive Certificates in respect of such Class to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar shall
be liable for any delay in delivery of such instructions, and each of them may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates for purposes of evidencing
ownership of any Class of Registered Certificates, the registered Holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) Notwithstanding any other provisions contained herein, neither
the Trustee nor the Certificate Registrar shall have any responsibility
whatsoever to monitor or restrict the Transfer of ownership interests in any
Certificate which interests are transferable through the book-entry facilities
of the Depository.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be reasonably required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate under this section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and the Certificate Registrar and their attorney fees and expenses)
connected therewith. Any replacement Certificate issued pursuant to this Section
shall constitute complete and indefeasible evidence of ownership in the
applicable REMIC created hereunder, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 5.05 Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agent of any of them may treat the Person in whose
name any Certificate is registered as the owner of such Certificate for the
purpose of receiving distributions pursuant to Section 4.01 and for all other
purposes whatsoever and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Registrar or any agent of any of them
shall be affected by notice to the contrary.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE
CONTROLLING CLASS REPRESENTATIVE
Section 6.01 Liability of Depositor, Master Servicer and Special
Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
Section 6.02 Continued Qualification and Compliance of Master
Servicer; Merger, Consolidation or Conversion of Depositor, Master Servicer or
Special Servicer.
Subject to the following paragraph, the Depositor, the Master
Servicer and the Special Servicer shall each keep in full effect its existence,
rights and franchises as a legal entity under the laws of the jurisdiction of
its organization, and each will obtain and preserve its qualification to do
business as a foreign entity in, and will otherwise remain in compliance with
the laws of, each jurisdiction in which such qualification and compliance is or
shall be necessary to protect the validity and enforceability of this Agreement,
the Certificates or any of the Mortgage Loans and to perform its respective
duties under this Agreement.
Each of the Depositor, the Master Servicer and the Special Servicer
may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets (which, in the case of the Master Servicer or
the Special Servicer, may be limited to all or substantially all of its assets
related to commercial mortgage loan servicing) to any Person, in which case any
Person resulting from any merger or consolidation to which the Depositor, the
Master Servicer or the Special Servicer shall be a party, or any Person
succeeding to the business (which, in the case of the Master Servicer or the
Special Servicer, may be limited to the commercial mortgage loan servicing
business) of the Depositor, the Master Servicer or the Special Servicer, shall
be the successor of the Depositor, the Master Servicer or the Special Servicer,
as the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of the Master Servicer or the Special
Servicer unless (i) as confirmed in writing by each of the Rating Agencies, such
succession will not result in an Adverse Rating Event, and (ii) such successor
or surviving Person makes the applicable representations and warranties set
forth in Section 3.24 (in the case of a successor or surviving Person to the
Master Servicer) or Section 3.25 (in the case of a successor or surviving Person
to the Special Servicer), as applicable; and (iii) if such merger,
consolidation, transfer or succession occurs while the Trust is subject to the
reporting requirements of the Exchange Act, the Depositor shall have consented
thereto (which consent shall not be unreasonably withheld).
Section 6.03 Limitation on Liability of Depositor, Master Servicer
and Special Servicer.
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any liability to the Trust Fund, the Certificateholders or the
Companion Loan Noteholders for any action taken, or not taken, in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Depositor, the Master Servicer or the
Special Servicer against any liability to the Trust Fund, the Certificateholders
or the Companion Loan Noteholders for the breach of a representation or warranty
made herein by such party, or against any expense or liability specifically
required to be borne by such party without right of reimbursement pursuant to
the terms hereof, or against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the performance of its
obligations or duties hereunder or negligent disregard of such obligations or
duties. The Depositor, the Master Servicer, the Special Servicer and any
director, manager, member, officer, employee or agent of the Depositor, the
Master Servicer or the Special Servicer may rely in good faith on any document
of any kind which, prima facie, is properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Master Servicer,
the Special Servicer and any director, manager, member, officer, employee or
agent of the Depositor, the Master Servicer or the Special Servicer shall be
indemnified and held harmless by the Trust Fund out of the Pool Custodial
Account against any loss, liability or reasonable expense (including reasonable
legal fees and expenses) incurred in connection with any legal action or claim
relating to this Agreement or the Certificates (including in connection with the
dissemination of information and reports as contemplated by this Agreement),
other than any such loss, liability or expense: (i) specifically required to be
borne by the party seeking indemnification, without right of reimbursement
pursuant to the terms hereof; (ii) which constitutes a Servicing Advance that is
otherwise reimbursable hereunder; (iii) incurred in connection with any legal
action or claim against the party seeking indemnification, resulting from any
breach on the part of that party of a representation or warranty made herein; or
(iv) incurred in connection with any legal action or claim against the party
seeking indemnification, resulting from any willful misfeasance, bad faith or
negligence on the part of that party in the performance of its obligations or
duties hereunder or negligent disregard of such obligations or duties; provided
that if a Serviced Loan Combination is involved, such indemnity shall be payable
out of the related Loan Combination Custodial Account pursuant to Section 3.05A
and, to the extent not solely attributable to the Companion Loan in such
Serviced Loan Combination, shall also be payable out of the Pool Custodial
Account if amounts on deposit in the related Loan Combination Custodial Account
are insufficient therefor and such indemnity shall be deemed to not be "solely
attributable" to a Companion Loan merely by virtue of an action being brought by
or against the related Companion Loan Noteholder.
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any obligation to appear in, prosecute or defend any
administrative or legal action, proceeding, hearing or examination unless such
action is related to its respective duties under this Agreement and either (i)
it is specifically required hereunder to bear the costs of such action or (ii)
such action will not, in its reasonable and good faith judgment, involve it in
any ultimate expense or liability for which it would not be reimbursed
hereunder. Notwithstanding the foregoing, the Depositor, the Master Servicer or
the Special Servicer may in its discretion undertake any such action which it
may deem necessary or desirable with respect to the enforcement and/or
protection of the rights and duties of the parties hereto and the interests of
the Certificateholders (or, if a Loan Combination is affected, the rights of the
Certificateholders and the related Companion Loan Noteholders (as a collective
whole)). In such event, the legal expenses and costs of such action, and any
liability resulting therefrom, shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Master Servicer and the Special Servicer
shall be entitled to be reimbursed therefor from the Pool Custodial Account as
provided in Section 3.05; provided, however, that if a Loan Combination and/or
the related Companion Loan Noteholders are involved, such expenses, costs and
liabilities shall be payable out of the related Loan Combination Custodial
Account pursuant to Section 3.05A and, to the extent attributable to the
Mortgage Loan in such Loan Combination, shall also be payable out of the Pool
Custodial Account if amounts on deposit in the related Loan Combination
Custodial Account are insufficient therefor. In no event shall the Master
Servicer or the Special Servicer be liable or responsible for any action taken
or omitted to be taken by the other of them (unless they are the same Person or
Affiliates) or for any action taken or omitted to be taken by the Depositor, the
Trustee, any Certificateholder or the Companion Loan Noteholders, subject to the
provisions of Section 8.05(c).
In the event that the terms of a Subsequent PSA (provided the Master
Servicer and Special Servicer have been provided with a copy of such Subsequent
PSA) provide for the indemnification of the Master Servicer and/or the Special
Servicer, the Master Servicer and Special Servicer shall diligently pursue their
rights under such Subsequent PSA for the related trust's proportionate share of
any indemnification sought by the Master Servicer or Special Servicer in
connection with a Loan Combination.
Section 6.04 Resignation of Master Servicer and the Special
Servicer.
(a) The Master Servicer and, subject to Section 6.09, the Special
Servicer may each resign from the obligations and duties hereby imposed on it,
upon a determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the Master
Servicer's or Special Servicer's resignation to be effective immediately, and
the Opinion of Counsel delivered pursuant to the prior sentence so states, no
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
in accordance with Section 6.09 or Section 7.02 hereof. The Master Servicer and,
subject to the rights of the Controlling Class under Section 6.09 to appoint a
successor special servicer, the Special Servicer shall each have the right to
resign at any other time, provided that (i) a willing successor thereto
reasonably acceptable to the Depositor has been found (provided that if the
Depositor has not responded to a request for consent to a successor within
fifteen (15) days, such successor shall be deemed approved thereby), (ii) each
of the Rating Agencies confirms in writing that the successor's appointment will
not result in an Adverse Rating Event, (iii) the resigning party pays all costs
and expenses in connection with such resignation and the resulting transfer of
servicing, and (iv) the successor accepts appointment prior to the effectiveness
of such resignation and agrees in writing to be bound by the terms and
conditions of this Agreement. Neither the Master Servicer nor the Special
Servicer shall be permitted to resign except as contemplated above in this
Section 6.04(a).
(b) Consistent with Section 6.04(a), neither the Master Servicer nor
the Special Servicer shall, except as expressly provided herein, assign or
transfer any of its rights, benefits or privileges hereunder to any other Person
or, except as provided in Sections 3.22, 4.07, 7.01(c) and 7.01(d), delegate to
or subcontract with, or authorize or appoint any other Person to perform any of
the duties, covenants or obligations to be performed by it hereunder. If,
pursuant to any provision hereof, the duties of the Master Servicer or the
Special Servicer are transferred to a successor thereto, the Master Servicing
Fee, the Special Servicing Fee, any Workout Fee and/or any Liquidation Fee
(except as expressly contemplated by Section 3.11(b)), as applicable, that
accrues or otherwise becomes payable pursuant hereto from and after the date of
such transfer shall be payable to such successor. Notwithstanding anything to
the contrary herein, the outgoing Special Servicer shall be entitled to 100% of
any Liquidation Fee with respect to any Mortgage Loan as to which a Liquidation
Event has occurred prior to the effective date of transfer to the successor
Special Servicer.
Section 6.05 Rights of Depositor, Trustee and Companion Loan
Noteholders in Respect of the Master Servicer and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor, each Underwriter, the Trustee and the Companion Loan Noteholders
(including any servicer on their behalf), upon reasonable notice, during normal
business hours access to all records maintained thereby in respect of its rights
and obligations hereunder. Upon reasonable request, the Master Servicer and the
Special Servicer shall each furnish the Depositor, each Underwriter, the Trustee
and the Companion Loan Noteholders with its most recent publicly available
financial statements and such other non-proprietary information as the Master
Servicer or the Special Servicer, as the case may be, shall determine in its
sole and absolute discretion as it possesses, which is relevant to the
performance of its duties hereunder and which it is not prohibited by applicable
law or contract from disclosing. The Depositor may, but is not obligated to,
enforce the obligations of the Master Servicer and the Special Servicer
hereunder and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of the Master Servicer or Special Servicer
hereunder or exercise the rights of the Master Servicer and the Special Servicer
hereunder; provided, however, that neither the Master Servicer nor the Special
Servicer shall be relieved of any of its obligations hereunder by virtue of such
performance by the Depositor or its designee and, provided, further, that the
Depositor may not exercise any right pursuant to Section 7.01 to terminate the
Master Servicer or the Special Servicer as a party to this Agreement. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Master Servicer or the Special Servicer and is not
obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
Section 6.06 Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer shall
each furnish such reports, certifications and information as are reasonably
requested by the Trustee in order to enable it to perform its duties hereunder.
Section 6.07 Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Master Servicer in order to enable it to perform its duties hereunder.
Section 6.08 Depositor, Master Servicer and Trustee to Cooperate
with Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Special Servicer in order to enable it to perform its duties hereunder.
Section 6.09 Termination and Designation of Special Servicer by the
Controlling Class Representative.
The Directing Holder may at any time and from time to time, without
cause, terminate the existing Special Servicer and designate a replacement
Special Servicer hereunder. In addition, with respect to each Mortgage Loan, the
Directing Holder may appoint a replacement Special Servicer for any existing
Special Servicer that has resigned or otherwise ceased to serve (including in
connection with termination pursuant to Section 7.01) as Special Servicer. With
respect to each Serviced Loan Combination, the rights of the Directing Holder or
Controlling Class Representative to terminate and/or appoint a replacement
Special Servicer shall be limited to that Loan Combination.
The Directing Holder or the Controlling Class Representative, as
applicable, shall so designate a Person to serve as replacement Special Servicer
by the delivery to the Trustee, the Master Servicer and, if applicable, the
Companion Loan Noteholders, and the existing Special Servicer of a written
notice stating such designation. The Trustee shall, promptly after receiving any
such notice, deliver to the Rating Agencies an executed Notice and
Acknowledgment in the form attached hereto as Exhibit I-1. If the Controlling
Class Representative has not replaced the Special Servicer within thirty (30)
days of such Special Servicer's resignation or the date such Special Servicer
has ceased to serve in such capacity, the Trustee shall designate a successor
Special Servicer, subject to removal by the Controlling Class Representative and
appointment of a successor thereto pursuant to the terms of this Section 6.09.
Any designated Person (whether designated by the Controlling Class
Representative or the Trustee) shall become the Special Servicer on the date as
of which the Trustee shall have received all of the following: (1) written
confirmation from all of the Rating Agencies that the appointment of such Person
will not result in an Adverse Rating Event; (2) an Acknowledgment of Proposed
Special Servicer in the form attached hereto as Exhibit I-2, executed by the
designated Person, (3) confirmation that all out-of-pocket costs and expenses
incurred in connection with the removal and replacement of a Special Servicer
have been paid either by the removing party or the replacement Special Servicer
and (4) an Opinion of Counsel (at the expense of the Person designated to become
the Special Servicer) to the effect that, upon the execution and delivery of the
Acknowledgment of Proposed Special Servicer, the designated Person shall be
bound by the terms of this Agreement and, subject to customary limitations, that
this Agreement shall be enforceable against the designated Person in accordance
with its terms. Any existing Special Servicer shall be deemed to have resigned
simultaneously with such designated Person's becoming the Special Servicer
hereunder; provided, however, that (i) the resigning Special Servicer shall
continue to be entitled to receive all amounts accrued or owing to it under this
Agreement on or prior to the effective date of such resignation, whether in
respect of Servicing Advances or otherwise, (ii) if the resigning Special
Servicer was terminated without cause, it shall be entitled to a portion of
certain Workout Fees thereafter payable with respect to the Corrected Mortgage
Loans (but only if and to the extent permitted by Section 3.11(b)) and (iii) the
resigning Special Servicer shall continue to be entitled to the benefits of
Section 6.03 notwithstanding any such resignation. Such resigning Special
Servicer shall cooperate with the Trustee and the replacement Special Servicer
in effecting the termination of the resigning Special Servicer's
responsibilities and rights hereunder, including the transfer within two (2)
Business Days to the replacement Special Servicer for administration by it of
all cash amounts that shall at the time be or should have been credited by the
Special Servicer to a Custodial Account, a Servicing Account, a Reserve Account
or an REO Account or should have been delivered to the Master Servicer or that
are thereafter received with respect to Specially Serviced Mortgage Loans and
REO Properties. The Trustee shall notify the other parties hereto, the
Certificateholders and the Companion Loan Noteholders of any termination of the
Special Servicer and appointment of a new Special Servicer in accordance with
this Section 6.09.
Any out-of-pocket costs and expenses incurred in connection with the
removal of a Special Servicer and its replacement by a Person designated by the
Directing Holder that are not paid by the replacement Special Servicer (or, if
the replacement is for cause, the terminated Special Servicer) shall be paid by
the Directing Holder. Notwithstanding anything herein to the contrary, the
Directing Holder with respect to any Serviced Loan Combination shall be
permitted to replace the Special Servicer in accordance with this Agreement only
with respect to such related Loan Combination.
Section 6.10 Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer, the Special Servicer or any Affiliate of either
of them may become the Holder of (or, in the case of a Book-Entry Certificate,
Certificate Owner with respect to) any Certificate with (except as otherwise set
forth in the definition of "Certificateholder") the same rights it would have if
it were not the Master Servicer or the Special Servicer or an Affiliate thereof.
If, at any time during which the Master Servicer or the Special Servicer or an
Affiliate of the Master Servicer or the Special Servicer is the Holder of (or,
in the case of a Book-Entry Certificate, Certificate Owner with respect to) any
Certificate, the Master Servicer or the Special Servicer proposes to take action
(including for this purpose, omitting to take action) that is not expressly
prohibited by the terms hereof and would not, in the Master Servicer's or the
Special Servicer's reasonable, good faith judgment, violate the Servicing
Standard, but that, if taken, might nonetheless, in the Master Servicer's or the
Special Servicer's good faith judgment, be considered by other Persons to
violate the Servicing Standard, then the Master Servicer or the Special Servicer
may (but need not) seek the approval of the Certificateholders to such action by
delivering to the Trustee a written notice that (a) states that it is delivered
pursuant to this Section 6.10, (b) identifies the Percentage Interest in each
Class of Certificates beneficially owned by the Master Servicer or an Affiliate
thereof or the Special Servicer or an Affiliate thereof, as appropriate, and (c)
describes in reasonable detail the action that the Master Servicer or the
Special Servicer proposes to take. The Trustee, upon receipt of such notice,
shall forward it to the Certificateholders (other than the Master Servicer and
its Affiliates or the Special Servicer and its Affiliates, as appropriate),
together with such instructions for response as the Trustee shall reasonably
determine. If at any time Certificateholders holding 51% or greater of the
Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Master Servicer or its Affiliates or the
Special Servicer or its Affiliates, as appropriate) shall have failed to object
in writing (with a copy to the Companion Loan Noteholders, if the Loan
Combinations are involved) to the proposal described in the written notice, and
if the Master Servicer or the Special Servicer shall act as proposed in the
written notice within thirty (30) days, such action shall be deemed to comply
with, but not modify, the Servicing Standard. The Trustee shall be entitled to
reimbursement from the Master Servicer or the Special Servicer, as applicable,
for the reasonable expenses of the Trustee incurred pursuant to this paragraph.
It is not the intent of the foregoing provision that the Master Servicer or the
Special Servicer be permitted to invoke the procedure set forth herein with
respect to routine servicing matters arising hereunder, but rather only in the
case of unusual circumstances.
Section 6.11 Certain Powers of the Directing Holder.
(a) The Directing Holder will be entitled to advise the Special
Servicer with respect to the following actions of the Special Servicer in
connection with any Serviced Loan, and in the case of a Serviced Loan
Combination, any other actions enumerated in the related Co-Lender Agreement as
being subject to the approval of the Directing Holder. The Special Servicer will
not be permitted to take any such actions, or consent to the Master Servicer
taking any such actions, unless and until it has notified the Directing Holder
in writing in capitalized, bold faced 14 point type containing the following
statement at the top of the first page: "THIS IS A REQUEST FOR DIRECTING HOLDER
ACTION APPROVAL. IF THE DIRECTING HOLDER FAILS TO APPROVE OR DISAPPROVE THE
ENCLOSED APPROVAL ACTION WITHIN FIVE (5) BUSINESS DAYS, THE SPECIAL SERVICER,
MAY DELIVER A DEEMED APPROVAL NOTICE," and (b) if the Directing Holder fails to
either approve or reject said approval action within such five Business Day
period after receipt of the first notice, and having been provided with all
reasonably requested information with respect thereto, and the Special Servicer,
delivers the approval action request to the Directing Holder accompanied by a
second notice in capitalized, bold faced 14 point type containing the following
statement at the top of the first page: "THIS IS A SECOND REQUEST FOR APPROVAL
ACTION. IF THE DIRECTING HOLDER FAILS TO APPROVE OR DISAPPROVE THE ENCLOSED
APPROVAL ACTION WITHIN FIVE (5) BUSINESS DAYS, SUCH APPROVAL ACTION WILL BE
DEEMED APPROVED BY THE DIRECTING HOLDER," then, if the Directing Holder fails to
approve or reject such approval action within such second five Business Day
period (approval or rejection by notice by facsimile on the same day being
acceptable), then the Directing Holder's approval will be deemed to have been
given:
(i) any proposed or actual foreclosure upon or comparable conversion
(which may include acquisition as an REO Property) of the ownership of
properties securing such of the Specially Serviced Mortgage Loans as come
into and continue in default or other enforcement action under the
Mortgage Loan documents;
(ii) any modification, extension, amendment or waiver of a monetary
term (including the timing of payments) or any material non-monetary term
of a Mortgage Loan (including any material term relating to insurance or
any prohibition on additional debt);
(iii) any proposed or actual sale of an REO Property (other than in
connection with the termination of the Trust Fund) for less than the
Purchase Price;
(iv) any acceptance of a discounted payoff of a Mortgage Loan;
(v) any determination to bring a Mortgaged Property or an REO
Property into compliance with applicable environmental laws or to
otherwise address Hazardous Materials located at a Mortgaged Property or
an REO Property;
(vi) any release of collateral for a Mortgage Loan or any release of
a Mortgagor or any guarantor under a Mortgage Loan (other than in
accordance with the terms of such Loan (with no material discretion by the
mortgagee), or upon satisfaction of, such Mortgage Loan);
(vii) any acceptance of substitute or additional collateral for a
Mortgage Loan (other than in accordance with the terms of such Mortgage
Loan (with no material discretion by the mortgagee));
(viii) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to any Mortgage Loan or consent to a transfer of the
Mortgaged Property or interest in the Mortgagor (to the extent the
mortgagee has the right to consent to such transfer);
(ix) any acceptance of an assumption agreement releasing a Mortgagor
or a guarantor from liability under a Mortgage Loan;
(x) any acceptance of a change in the property management company
(provided that the unpaid principal balance of the related Mortgage Loan
is greater than $5,000,000) or, if applicable, the hotel franchise for any
Mortgaged Property;
(xi) any extension of the maturity date of a Mortgage Loan, which
results in the remaining term of any related ground lease (together with
extensions at the sole option of the lender) being less than ten (10)
years beyond the amortization term of such Mortgage Loan;
(xii) any determination by the Special Servicer pursuant to clause
(b), (c) or (d) of the definition of "Specially Serviced Mortgage Loan"
that a Mortgage Loan has become a Specially Serviced Mortgage Loan;
(xiii) any extension by the Special Servicer of the maturity date of
a Performing Serviced Loan pursuant to Section 3.21(d); and
(xiv) taking any action to enforce rights with respect to a
mezzanine lender under the related intercreditor or co-lender Agreement;
provided that, in the event that the Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders (as a
collective whole) (or, in the case of a Serviced Loan Combination, to protect
the interests of the Certificateholders and the related Companion Loan
Noteholder (as a collective whole)), the Special Servicer may take any such
action without waiting for the applicable Directing Holder's response. As used
in clauses (vi) and (vii) above, the term "material discretion" shall mean that
the relevant decision regarding the release of collateral or the acceptance of
substitute or additional collateral, as applicable, is in the discretion of the
mortgagee, and such decision need not be based upon the satisfaction of
specified objective conditions, the satisfactory delivery of certain factual
evidence or opinions or the satisfaction of any other specified objective
criteria that is set forth in the related Mortgage Loan documents.
In addition, the Directing Holder may direct the Special Servicer to
take, or to refrain from taking, any actions with respect to the servicing
and/or administration of a Specially Serviced Mortgage Loan as the Directing
Holder may deem advisable or as to which provision is otherwise made herein
subject to Section 6.11(b). Upon reasonable request, the Special Servicer shall
provide the Directing Holder with any information in the Special Servicer's
possession with respect to such matters, including its reasons for determining
to take a proposed action; provided that such information shall also be
provided, in a written format, to the Trustee, who shall make it available for
review pursuant to Section 8.14(b) and, insofar as a Loan Combination is
involved, for review by the related Companion Loan Noteholders.
The Special Servicer shall notify the applicable Directing Holder of
any release or substitution of collateral for a Specially Serviced Mortgage Loan
even if such release or substitution is in accordance with such Mortgage Loan.
Notwithstanding anything herein to the contrary, if a Companion Loan
Noteholder is a Directing Holder it shall be permitted to exercise the powers of
a Directing Holder under this Agreement only with respect to its related Loan
Combination.
(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection from or by the Directing Holder, as contemplated by
Section 6.11(a) or any other provision of this Agreement, or any party having
consultation rights under Section 6.11(e), may (and the Special Servicer shall
ignore and act without regard to any such advice, direction or objection that
the Special Servicer has determined, in its reasonable, good faith judgment,
would) require or cause the Special Servicer or Master Servicer to violate any
provision of this Agreement (exclusive of Section 6.11(a)) (including the
Special Servicer's obligation to act in accordance with the Servicing Standard),
the related Loan documents or the REMIC Provisions. Furthermore, the Special
Servicer shall not be obligated to seek approval from the Directing Holder for
any actions to be taken by the Special Servicer with respect to any particular
Specially Serviced Mortgage Loan if:
(i) the Special Servicer has, as provided in Section 6.11(a),
notified the applicable Directing Holder in writing of various actions
that the Special Servicer proposes to take with respect to the workout or
liquidation of that Specially Serviced Mortgage Loan; and
(ii) for 60 days following the first such notice, such Directing
Holder has objected to all of those proposed actions and has failed to
suggest any alternative actions that the Special Servicer considers to be
consistent with the Servicing Standard.
(c) [Reserved]
(d) Each of the Directing Holder will have no liability to the
Certificateholders or the Companion Loan Noteholders for any action taken, or
for refraining from the taking of any action, or for errors in judgment;
provided, however, that the Directing Holder will not be protected against any
liability to the Controlling Class, which would otherwise be imposed by reason
of willful misfeasance, bad faith or negligence in the performance of duties or
by reason of negligent disregard of obligations or duties. Each
Certificateholder acknowledges and agrees, by its acceptance of its
Certificates, that: (i) the Directing Holder may, and is permitted hereunder to,
have special relationships and interests that conflict with those of Holders of
one or more Classes of Certificates; (ii) the Directing Holder may, and is
permitted hereunder to, act solely in the interests of the Holders of the
Controlling Class; (iii) the Directing Holder and its respective representatives
do not have any duties to the Holders of any Class of Certificates other than
the Controlling Class; (iv) the Directing Holder may, and is permitted hereunder
to, take actions that favor interests of the Holders of the Controlling Class
over the interests of the Holders of one or more other Classes of Certificates;
(v) the Directing Holder shall have no liability whatsoever for having acted
solely in the interests of the Holders of the Controlling Class, or the related
Companion Loan Noteholder; and (vi) the Directing Holder shall have no liability
whatsoever for having so acted, and no Certificateholder may take any action
whatsoever against the Directing Holder, any Holder of the Controlling Class or
any director, officer, employee, agent or principal thereof for having so acted.
(e) The applicable Companion Loan Noteholders shall be entitled to
receive, upon request made to any party hereto, a copy of any notice or report
required to be delivered (upon request or otherwise) by such party to the
related Loan Combination Directing Holder or the Trustee with respect to the
related Loan Combination. Any such party shall be permitted to require payment
of a sum sufficient to cover the reasonable costs and expenses of providing such
copies.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into a Custodial
Account, any amount, including any P&I Advance, required to be so
deposited or remitted by it under this Agreement, which failure continues
unremedied for one Business Day following the date on which a deposit or
remittance was first required to be made; or
(ii) any failure by the Special Servicer to deposit into an REO
Account or to deposit into, or to remit to the Master Servicer for deposit
into, a Custodial Account, any amount required to be so deposited or
remitted under this Agreement, which failure continues unremedied for one
Business Day following the date on which a deposit or remittance was first
required to be made; or
(iii) any failure by the Master Servicer to deposit into, or remit
to the Trustee for deposit into, the Distribution Account, any amount
(including any P&I Advances and any amounts to cover Prepayment Interest
Shortfalls) required to be so deposited or remitted by it under this
Agreement, which failure continues unremedied until 11:00 a.m. (New York
City time) on the applicable Distribution Date or any failure by the
Master Servicer to make, on a timely basis, the required payments to the
applicable Companion Loan Noteholder on any Master Servicer Remittance
Date, which failure continues unremedied until 11:00 a.m. (New York City
time) on the first Business Day after such remittance date; or
(iv) any failure by the Master Servicer or the Special Servicer to
timely make any Servicing Advance required to be made by it hereunder,
which Servicing Advance remains unmade for a period of three (3) Business
Days following the date on which notice of such failure shall have been
given to the Master Servicer or the Special Servicer, as the case may be,
by the Trustee or any other parties hereunder; or
(v) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other
covenants or agreements on the part of the Master Servicer or the Special
Servicer, as the case may be, contained in this Agreement, which continues
unremedied for a period of thirty (30) days (in the case of payment of
insurance premiums, fifteen (15) days or the date on which any required
insurance coverage terminates, if such premiums are not paid, whichever
date is earlier) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master
Servicer or the Special Servicer, as the case may be, by any other party
hereto or to the Master Servicer or the Special Servicer, as the case may
be (with a copy to each other party hereto), by any Companion Loan
Noteholder (if affected thereby) or the Holders of Certificates entitled
to at least 25% of the Voting Rights, provided, however, that with respect
to any such failure which is not curable within such 30-day period, the
Master Servicer or the Special Servicer, as the case may be, shall have an
additional cure period of thirty (30) days to effect such cure so long as
the Master Servicer or the Special Servicer, as the case may be, has
commenced to cure such failure within the initial 30-day period and has
provided the Trustee and, if affected thereby, any Companion Loan
Noteholder with an Officer's Certificate certifying that it has diligently
pursued, and is diligently continuing to pursue, a full cure; or
(vi) any breach on the part of the Master Servicer or the Special
Servicer of any of its representations or warranties contained in this
Agreement that materially and adversely affects the interests of any Class
of Certificateholders or the Companion Loan Noteholders and which breach
continues unremedied for a period of thirty (30) days after the date on
which written notice of such breach, requiring the same to be remedied,
shall have been given to the Master Servicer or the Special Servicer, as
the case may be, by any other party hereto or to the Master Servicer or
the Special Servicer, as the case may be (with a copy to each other party
hereto), by the Companion Loan Noteholders (if affected thereby) or the
Holders of Certificates entitled to at least 25% of the Voting Rights,
provided, however, that with respect to any such breach which is not
curable within such 30-day period, the Master Servicer or the Special
Servicer, as the case may be, shall have an additional cure period of
thirty (30) days so long as the Master Servicer or the Special Servicer,
as the case may be, has commenced to cure such breach within the initial
30-day period and provided the Trustee and, if affected thereby, any
Companion Loan Noteholder with an Officer's Certificate certifying that it
has diligently pursued, and is diligently continuing to pursue, a full
cure; or
(vii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer or the Special Servicer and such decree or order shall
have remained in force undischarged, undismissed or unstayed for a period
of sixty (60) days; or
(viii) the Master Servicer or the Special Servicer shall consent to
the appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to it or
of or relating to all or substantially all of its property; or
(ix) the Master Servicer or the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due, file
a petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or take any
corporate action in furtherance of the foregoing; or
(x) one or more ratings assigned by Fitch to the Certificates has
been qualified, downgraded or withdrawn, or otherwise made the subject of
a "negative" credit watch (and such "watch status" placement shall not
have been withdrawn within sixty (60) days of the date such servicing
officer obtained actual knowledge), which Fitch has determined and given
notice in writing (including through a publication or newsletter) or
electronically (including through an internet website), is solely or in
material part a result of the Master Servicer or Special Servicer, as the
case may be, acting in such capacity;
(xi) the Master Servicer or the Special Servicer is removed from
S&P's Select Servicer List as a U.S. Commercial Mortgage Master Servicer
or Special Servicer, as the case may be, and is not restored to such
status on such list within sixty (60) days;
(xii) the Master Servicer, or any Sub-Servicer appointed by the
Master Servicer after the Closing Date (but excluding any Sub-Servicer set
forth on Exhibit K or appointed pursuant to this Article VII), shall fail
to deliver during any period in which the Trust is subject to the
reporting requirements of the Exchange Act the items required to be
delivered by this Agreement to enable the Trustee or Depositor to comply
with the Trust's reporting obligations under the Exchange Act in
accordance with the applicable deadlines (including grace periods) set
forth in Article XI; or
(xiii) the Master Servicer is no longer rated CMS3, its equivalent
or higher by Fitch or the Special Servicer is no longer rated CSS3 or its
equivalent or higher by Fitch, and, in each case, that rating is not
restored within 60 days after the subject downgrade or withdrawal.
When a single entity acts as the Master Servicer and the Special
Servicer, an Event of Default in one capacity shall constitute an Event of
Default in the other capacity.
(b) If any Event of Default described in clauses (i)-(ix), (xi),
(xii) and (xiii) of subsection (a) above shall occur with respect to the Master
Servicer or the Special Servicer (in either case, for purposes of this Section
7.01(b), the "Defaulting Party") and shall be continuing, then, and in each and
every such case, so long as such Event of Default shall not have been remedied,
the Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 25% of the Voting Rights, the Trustee shall, by notice in
writing to the Defaulting Party (with a copy of such notice to each other party
hereto and the Rating Agencies) terminate, subject to Section 7.01(d), all of
the rights and obligations (but not the liabilities for actions and omissions
occurring prior thereto) of the Defaulting Party under this Agreement and in and
to the Trust Fund and the Companion Loans, other than its rights, if any, as a
Certificateholder hereunder or as the holder of the Companion Loans or any
interest therein.
If any Event of Default described in clause (x) of subsection (a)
above shall occur with respect to the Master Servicer or the Special Servicer
(in either case, under such circumstances, for purposes of this Section 7.01(b),
the "Defaulting Party"), the Trustee shall, by notice in writing (to be sent
immediately by facsimile transmission) to the Defaulting Party (with a copy of
such notice to each other party hereto and the Rating Agencies), terminate,
subject to Section 7.01(d), all of the rights and obligations (but not the
liabilities for actions and omissions occurring prior thereto) of the Defaulting
Party under this Agreement and in and to the Trust Fund and the Companion Loans,
other than its rights, if any, as a Certificateholder hereunder or as the holder
of the Companion Loans or any interest therein, within thirty (30) days
following the occurrence of such Event of Default.
From and after the receipt by the Defaulting Party of such written
notice of termination, all authority and power of the Defaulting Party under
this Agreement, whether with respect to the Certificates (other than as a Holder
of any Certificate), the Mortgage Loans (other than as a holder thereof or any
interest therein) or otherwise, shall pass to and be vested in the Trustee
pursuant to and under this section, and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of and at the
expense of the Defaulting Party, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise.
The Master Servicer and the Special Servicer each agree that, if it
is terminated pursuant to this Section 7.01(b), it shall promptly (and in any
event no later than ten (10) Business Days subsequent to its receipt of the
notice of termination) provide the Trustee with all documents and records,
including those in electronic form, requested thereby to enable the Trustee to
assume the Master Servicer's or Special Servicer's, as the case may be,
functions hereunder, and shall cooperate with the Trustee in effecting the
termination of the Master Servicer's or Special Servicer's, as the case may be,
responsibilities and rights hereunder, including (i) if the Master Servicer is
the Defaulting Party, the immediate transfer to the Trustee or a successor
Master Servicer for administration by it of all cash amounts that shall at the
time be or should have been credited by the Master Servicer to a Custodial
Account, the Distribution Account, the Defeasance Deposit Account, a Servicing
Account or a Reserve Account or that are thereafter received by or on behalf of
it with respect to any Mortgage Loan or (ii) if the Special Servicer is the
Defaulting Party, the transfer within two (2) Business Days to the Trustee or a
successor Special Servicer for administration by it of all cash amounts that
shall at the time be or should have been credited by the Special Servicer to an
REO Account, a Custodial Account, a Servicing Account or a Reserve Account or
should have been delivered to the Master Servicer or that are thereafter
received by or on behalf of it with respect to any Mortgage Loan or REO
Property; provided, however, that the Master Servicer and the Special Servicer
each shall, if terminated pursuant to this Section 7.01(b), continue to be
entitled to receive all amounts accrued or owing to it under this Agreement on
or prior to the date of such termination, whether in respect of Advances or
otherwise, and it shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such termination.
Any cost or expenses in connection with any actions to be taken by
any party hereto pursuant to the prior paragraph shall be borne by the
Defaulting Party and if not paid by the Defaulting Party within ninety (90) days
after the presentation of reasonable documentation of such costs and expenses,
such expense shall be reimbursed by the Trust Fund; provided, however, that the
Defaulting Party shall not thereby be relieved of its liability for such
expenses. For purposes of this Section 7.01 and also for purposes of Section
7.03(b), the Trustee shall not be deemed to have knowledge of an event which
constitutes, or which with the passage of time or notice, or both, would
constitute an Event of Default unless a Responsible Officer of the Trustee
assigned to and working in the Trustee's Corporate Trust Office has actual
knowledge thereof or unless notice of any event which is in fact such an Event
of Default is received by the Trustee and such notice references the
Certificates, the Trust Fund or this Agreement.
(c) In the case of an Event of Default under Section 7.01(a) of
which the Trustee has notice, the Trustee shall provide written notice thereof
to the Master Servicer promptly upon receipt of such notice. Notwithstanding
Section 7.01(b), if the Master Servicer receives a notice of termination under
Section 7.01(b) solely due to an Event of Default under Section 7.01(a)(x), (xi)
or (xiii) and if the terminated Master Servicer provides the Trustee with the
appropriate "request for proposal" materials within five (5) Business Days
following such termination, then the Master Servicer shall continue to serve in
such capacity hereunder until a successor thereto is selected in accordance with
this Section 7.01(c) or the expiration of forty-five (45) days from the Master
Servicer's receipt of the notice of termination, whichever occurs first.
Upon receipt of such "request for proposal" materials from the
terminated Master Servicer, the Trustee shall promptly thereafter (using such
"request for proposal" materials) solicit good faith bids for the rights to
master service the Mortgage Loans under this Agreement from at least three (3)
Persons qualified to act as a successor Master Servicer hereunder in accordance
with Section 6.02 and Section 7.02 (any such Person so qualified, a "Qualified
Bidder") or, if three (3) Qualified Bidders cannot be located, then from as many
Persons as the Trustee can determine are Qualified Bidders; provided that at the
Trustee's request, the terminated Master Servicer shall supply the Trustee with
the names of Persons from whom to solicit such bids; and provided, further, that
the Trustee shall not be responsible if less than three (3) or no Qualified
Bidders submit bids for the right to master service the Mortgage Loans under
this Agreement. The bid proposal shall require any Successful Bidder (as defined
below), as a condition of such bid, to enter into this Agreement as successor
Master Servicer, and to agree to be bound by the terms hereof, within forty-five
(45) days after the receipt of notice of termination by the terminated Master
Servicer. The Trustee shall solicit bids: (i) on the basis of such successor
Master Servicer retaining all Sub-Servicers to continue the primary servicing of
the Mortgage Loans pursuant to the terms of the respective Sub-Servicing
Agreements and to enter into a Sub-Servicing Agreement with the terminated
Master Servicer to sub-service each of the Mortgage Loans not subject to a
Sub-Servicing Agreement at a sub-servicing fee rate per annum equal to the
Master Servicing Fee Rate minus one (1) basis point per Mortgage Loan serviced
(each, a "Servicing-Retained Bid"); and (ii) on the basis of terminating each
Sub-Servicing Agreement and Sub-Servicer that it is permitted to terminate in
accordance with Section 3.23 (each, a "Servicing-Released Bid"). The Trustee
shall select the Qualified Bidder with the highest cash Servicing-Retained Bid
(or, if none, the highest cash Servicing Released Bid) (the "Successful Bidder")
to act as successor Master Servicer hereunder. The Trustee shall direct the
Successful Bidder to enter into this Agreement as successor Master Servicer
pursuant to the terms hereof (and, if the successful bid was a Servicing
Retained Bid, to enter into a Sub-Servicing Agreement with the terminated Master
Servicer as contemplated above) no later than forty-five (45) days after the
receipt of notice of termination by the terminated Master Servicer.
Upon the assignment and acceptance of the master servicing rights
hereunder to and by the Successful Bidder, the Trustee shall remit or cause to
be remitted (i) if the successful bid was a Servicing-Retained Bid, to the
terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
The terminated Master Servicer shall be responsible for all
out-of-pocket expenses incurred in connection with the attempt to sell its
rights to service the Mortgage Loans, which expenses are not reimbursed to the
party that incurred such expenses pursuant to the preceding paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within forty-five (45) days after the terminated
Master Servicer received written notice of termination or no Successful Bidder
was identified within such 45-day period, the terminated Master Servicer shall
reimburse the Trustee for all reasonable "out-of-pocket" expenses incurred by
the Trustee in connection with such bid process and the Trustee shall have no
further obligations under this Section 7.01(c). The Trustee thereafter may act
or may select a successor to act as Master Servicer hereunder in accordance with
Section 7.02.
(d) Other than with respect to any Loan which is serviced by the
Primary Servicer (unless the Primary Servicer is in default under the related
Primary Servicing Agreement and such default results in the ability to terminate
the Primary Servicer under the provisions of the Primary Servicing Agreement)
and notwithstanding Section 7.01(b), if any Event of Default on the part of the
Master Servicer occurs that affects a Companion Loan Noteholder and the Master
Servicer is not otherwise terminated in accordance with Section 7.01(b), or an
Event of Default on the part of the Master Servicer occurs that affects only one
or more of the Companion Loans, the Master Servicer may not be terminated in
accordance with Section 7.01(b), but, at the direction of the related Companion
Loan Noteholder, the Trustee shall require the Master Servicer to appoint,
within 30 days of the Trustee's request, a Sub-Servicer (or, if the Loan
Combinations are currently being sub-serviced, to replace, within 30 days of the
Trustee's request, the then-current Sub-Servicer with a new Sub-Servicer) with
respect to the related Loan Combination. In connection with the Master
Servicer's appointment of a Sub-Servicer at the request of the Trustee in
accordance with this Section 7.01(d), the Master Servicer shall obtain written
confirmation from each Rating Agency that such appointment will not result in an
Adverse Rating Event with respect to the Certificates or any Companion Loan
Securities. The related Sub-Servicing Agreement shall satisfy all of the
requirements set forth in Section 3.23(a). Further, such Sub-Servicing Agreement
shall provide that any Sub-Servicer appointed by the Master Servicer at the
request of the Trustee in accordance with this Section 7.01(d) shall be
responsible for all duties, and shall be entitled to all compensation, of the
Master Servicer under this Agreement with respect to the related Loan
Combination, except that the Master Servicer shall be entitled to retain a
portion of the Master Servicing Fee for the Mortgage Loan in the related Loan
Combination calculated at 0.01% per annum. Such Sub-Servicing Agreement shall
also provide that (i) such Sub-Servicing Agreement may be terminated without
cause and without the payment of any fee and (ii) such Sub-Servicer shall agree
to become the master servicer under a separate servicing agreement for the
applicable Loan Combination in the event that the applicable Loan Combination is
no longer to be serviced and administered hereunder, which separate servicing
agreement shall contain servicing and administration, limitation of liability,
indemnification and servicing compensation provisions substantially similar to
the corresponding provisions of this Agreement, except for the fact that the
applicable Loan Combination and the related Loan Combination Mortgaged
Properties shall be the sole assets serviced and administered thereunder and the
sole source of funds thereunder. If any Sub-Servicer appointed by the Master
Servicer at the request of the Trustee in accordance with this Section 7.01(d)
shall at any time resign or be terminated, the Master Servicer shall be required
to promptly appoint a substitute Sub-Servicer, which appointment shall not
result in an Adverse Rating Event with respect to the Certificates or any
Companion Loan Securities (as evidenced in writing by each Rating Agency). In
the event that a successor Master Servicer is acting hereunder and that
successor Master Servicer desires to terminate the Sub-Servicer appointed under
this Section 7.01(d), the terminated Master Servicer that was responsible for
the Event of Default that led to the appointment of such Sub-Servicer shall be
responsible for all costs incurred in connection with such termination,
including the payment of any termination fee.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04 or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, unless and until a successor is appointed
pursuant to Section 6.04, Section 6.09 or Section 7.01(c), be the successor in
all respects to the Master Servicer or the Special Servicer, as the case may be,
in its capacity as such under this Agreement and the transactions set forth or
provided for herein and shall have all (and the former Master Servicer or the
Special Servicer, as the case may be, shall cease to have any) of the
responsibilities, duties and liabilities of the Master Servicer or the Special
Servicer, as the case may be, arising thereafter, including, if the Master
Servicer is the resigning or terminated party, the Master Servicer's obligation
to make P&I Advances, including in connection with any termination of the Master
Servicer for an Event of Default described in clause 7.01(a)(iii), the unmade
P&I Advances that gave rise to such Event of Default; provided that any failure
to perform such duties or responsibilities caused by the Master Servicer's or
the Special Servicer's, as the case may be, failure to provide information or
monies required by Section 7.01 shall not be considered a default by the Trustee
hereunder. The Trustee shall not be liable for any of the representations and
warranties of the resigning or terminated party or for any losses incurred by
the resigning or terminated party pursuant to Section 3.06 hereunder nor shall
the Trustee be required to purchase any Mortgage Loan hereunder. As compensation
therefor, the Trustee shall be entitled to all fees and other compensation which
the resigning or terminated party would have been entitled to if the resigning
or terminated party had continued to act hereunder (except as set forth in
Section 3.11(a) and Section 3.11(b)). Notwithstanding the above, the Trustee
may, if it shall be unwilling to so act as either Master Servicer or Special
Servicer, as the case may be, or shall, if it is unable to so act as either
Master Servicer or Special Servicer, as the case may be, or if the Trustee is
not approved as a master servicer or a special servicer, as the case may be, by
any of the Rating Agencies, or if the Holders of Certificates entitled to a
majority of the Voting Rights so request in writing to the Trustee, promptly
appoint, or petition a court of competent jurisdiction to appoint, any
established mortgage loan servicing institution as the successor to the
resigning or terminated Master Servicer or the Special Servicer, as the case may
be, hereunder in the assumption of all or any part of the responsibilities,
duties or liabilities of the resigning or terminated Master Servicer or the
Special Servicer, as the case may be, hereunder; provided, however, that no such
appointee shall succeed to the rights and obligations of the Master Servicer or
Special Servicer hereunder unless (i) as confirmed in writing by each of the
Rating Agencies, such succession will not result in an Adverse Rating Event, and
(ii) such appointee makes the applicable representations and warranties set
forth in Section 3.24; and provided, further, that in the case of a resigning or
terminated Special Servicer, such appointment shall be subject to the rights of
the Holders of Certificates evidencing a majority of the Voting Rights allocated
to the Controlling Class to designate a successor pursuant to Section 6.09. No
appointment of a successor to the Master Servicer or the Special Servicer
hereunder shall be effective until the assumption by the successor to such party
of all its responsibilities, duties and liabilities under this Agreement.
Pending appointment of a successor to the Master Servicer or the Special
Servicer hereunder, the Trustee shall act in such capacity as hereinabove
provided. In connection with any such appointment and assumption described
herein, the Trustee may make such arrangements for the compensation of such
successor out of payments on the Mortgage Loans as it and such successor shall
agree, subject to the terms of this Agreement limiting the use of funds Received
in respect of a Serviced Loan Combination with respect to matters related to
such Loan Combination; provided, however, that no such compensation shall be in
excess of that permitted the resigning or terminated party hereunder. Such
successor and the other parties hereto shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession.
Section 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register and the
Master Servicer shall give prompt written notice thereof to the Companion Loan
Noteholders.
(b) Not later than ten (10) days after a Responsible Officer of the
Trustee has notice of the occurrence of any event which constitutes or, with
notice or lapse of time or both, would constitute an Event of Default, the
Trustee shall transmit by mail to the Depositor, all the Certificateholders, the
Companion Loan Noteholders (to the extent the Trustee has received their
respective contact information from the Master Servicer, who shall provide such
information to the Trustee upon request) and the Rating Agencies notice of such
occurrence, unless such default shall have been cured.
Section 7.04 Waiver of Events of Default.
The Holders representing at least 66-2/3% of the Voting Rights
allocated to each Class of Certificates affected by any Event of Default
hereunder, together with the Companion Loan Noteholders (if adversely affected
by such Event of Default), may waive such Event of Default; provided, however,
that an Event of Default under any of clauses (i), (ii), (iii), (x) and (xi) of
Section 7.01(a) may be waived only by all of the Certificateholders of the
affected Classes, together with the Companion Loan Noteholders, if any, that is
affected by such Event of Default. Upon any such waiver of an Event of Default,
such Event of Default shall cease to exist and shall be deemed to have been
remedied for every purpose hereunder. No such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereon
except to the extent expressly so waived.
The foregoing paragraph notwithstanding, if the Holders representing
at least the requisite percentage of the Voting Rights allocated to each
affected Class of Certificates desire to waive an Event of Default by the Master
Servicer, but either a Companion Loan Noteholder or, (in each case if adversely
affected thereby) does not wish to waive that Event of Default, then those
Holders may still waive that default, and the applicable Companion Loan
Noteholder will be entitled to request that the Master Servicer appoint, within
sixty (60) days of the Companion Loan Noteholder's request, as applicable, a
Sub-Servicer (or, if the applicable Loan Combination is currently being
subserviced, to replace, within sixty (60) days of the Companion Loan
Noteholder's request, the then-current Sub-Servicer (other than with respect to
any Loan which is serviced by the Primary Servicer (unless the Primary Servicer
is in default under the related Primary Servicing Agreement and such default
results in the ability to terminate the Primary Servicer under the provisions of
the Primary Servicing Agreement)) with a new Sub-Servicer) with respect to the
applicable Loan Combination. In connection with the Master Servicer's
appointment of a Sub-Servicer at the request of a Companion Loan Noteholder in
accordance with this Section 7.04, the Master Servicer shall obtain written
confirmation from each Rating Agency that such appointment will not result in an
Adverse Rating Event with respect to the Certificates or any Companion Loan
Securities. The related Sub-Servicing Agreement shall provide that any
Sub-Servicer appointed by the Master Servicer at the request of a Companion Loan
Noteholder in accordance with this Section 7.04 shall be responsible for all
duties, and shall be entitled to all compensation, of the Master Servicer under
this Agreement with respect to the applicable Loan Combination, except that the
Master Servicer shall be entitled to retain a portion of the Master Servicing
Fee for the Mortgage Loan in the Loan Combination calculated at 0.01% per annum.
Such Sub-Servicing Agreement shall also provide that (i) such Sub-Servicing
Agreement may be terminated without cause and without the payment of any fee and
(ii) such Sub-Servicer shall become the master servicer under a separate
servicing agreement for the applicable Loan Combination in the event that the
Loan Combination is no longer to be serviced and administered hereunder, which
separate servicing agreement shall contain servicing and administration,
limitation of liability, indemnification and servicing compensation provisions
substantially similar to the corresponding provisions of this Agreement, except
for the fact that the applicable Loan Combination and the Loan Combination
Mortgaged Properties shall be the sole assets serviced and administered
thereunder and the sole source of funds thereunder. Such Sub-Servicer (i) may be
terminated without cause and without the payment of any fee and (ii) shall meet
the requirements of Section 3.23. If any Sub-Servicer appointed by the Master
Servicer at the request of the Companion Loan Noteholder in accordance with this
Section 7.04 shall at any time resign or be terminated, the Master Servicer
shall be required to promptly appoint a substitute Sub-Servicer, which
appointment shall not result in an Adverse Rating Event (as evidenced in writing
by each Rating Agency). In the event a successor Master Servicer is acting
hereunder and that successor Master Servicer desires to terminate the
Sub-Servicer appointed under this Section 7.04, the terminated Master Servicer
that was responsible for the Event of Default that led to the appointment of
such Sub-Servicer shall be responsible for all costs incurred in connection with
such termination, including the payment of any termination fee.
Section 7.05 Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust and on behalf of the Companion Loan Noteholders, to
take all actions now or hereafter existing at law, in equity or by statute to
enforce its rights and remedies and to protect the interests, and enforce the
rights and remedies, of the Certificateholders and the Companion Loan
Noteholders (including the institution and prosecution of all judicial,
administrative and other proceedings and the filings of proofs of claim and debt
in connection therewith). Except as otherwise expressly provided in this
Agreement, no remedy provided for by this Agreement shall be exclusive of any
other remedy, and each and every remedy shall be cumulative and in addition to
any other remedy, and no delay or omission to exercise any right or remedy shall
impair any such right or remedy or shall be deemed to be a waiver of any Event
of Default.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs; provided that if the Trustee is acting as Master Servicer or
Special Servicer, it shall act in accordance with the Servicing Standard. Any
permissive right of the Trustee contained in this Agreement shall not be
construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall take such action as it deems appropriate to
have the instrument corrected. The Trustee shall not be responsible for the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Depositor, the Master
Servicer or the Special Servicer, and accepted by the Trustee in good faith,
pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the terms of this Agreement and the direction of any
Controlling Class Representative, Controlling Class or Holders of
Certificates entitled to at least 25% of the Voting Rights, relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Agreement; and
(iv) The protections, immunities and indemnities afforded to the
Trustee hereunder shall also be available to it in its capacity as
Authenticating Agent, Certificate Registrar, Tax Administrator and
Custodian.
Section 8.02 Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01 and Article X:
(i) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or, except as provided in
Section 10.01, to institute, conduct or defend any litigation hereunder or
in relation hereto, at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby; the Trustee shall not be required to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an
Event of Default which has not been cured, to exercise such of the rights
and powers vested in it by this Agreement, and to use the same degree of
care and skill in their exercise as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs;
(iv) the Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(v) prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, and
except as may be provided in Section 10.01, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates entitled to at
least 25% of the Voting Rights; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such expense or
liability as a condition to taking any such action;
(vi) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys; provided, however, that the Trustee shall remain responsible
for all acts and omissions of such agents or attorneys within the scope of
their employment to the same extent as it is responsible for its own
actions and omissions hereunder;
(vii) the Trustee shall not be responsible for any act or omission
of the Master Servicer or the Special Servicer (unless the Trustee is
acting as Master Servicer or the Special Servicer) or the Depositor; and
(viii) neither the Trustee nor the Certificate Registrar shall have
any obligation or duty to monitor, determine or inquire as to compliance
with any restriction on transfer imposed under Article V under this
Agreement or under applicable law with respect to any transfer of any
Certificate or any interest therein, other than to require delivery of the
certification(s) and/or Opinions of Counsel described in said Article
applicable with respect to changes in registration of record ownership of
Certificates in the Certificate Register and to examine the same to
determine substantial compliance with the express requirements of this
Agreement. The Trustee and Certificate Registrar shall have no liability
for transfers, including transfers made through the book entry facilities
of the Depository or between or among Depository Participants or
beneficial owners of the Certificates, made in violation of applicable
restrictions except for its failure to perform its express duties in
connection with changes in registration of record ownership in the
Certificate Register.
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than
the statements attributed to the Trustee in Article II and Section 8.16 and the
signature of the Certificate Registrar and the Authenticating Agent set forth on
each outstanding Certificate, shall not be taken as the statements of the
Trustee, and the Trustee shall not assume any responsibility for their
correctness. Except as expressly set forth in Section 8.16 and the Trustee make
no representations as to the validity or sufficiency of this Agreement or of any
Certificate (other than as to the signature of the Trustee set forth thereon) or
of any Mortgage Loan or related document. The Trustee shall not be accountable
for the use or application by the Depositor of any of the Certificates issued to
it or of the proceeds of such Certificates, or for the use or application of any
funds paid to the Depositor in respect of the assignment of the Mortgage Loans
to the Trust Fund, or any funds deposited in or withdrawn from a Custodial
Account or any other account by or on behalf of the Depositor, the Master
Servicer or the Special Servicer. The Trustee shall not be responsible for the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Depositor, the Master
Servicer or the Special Servicer, and accepted by the Trustee in good faith,
pursuant to this Agreement.
Section 8.04 Trustee May Own Certificates.
The Trustee or any agent of the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Certificates with (except as
otherwise provided in the definition of "Certificateholder") the same rights it
would have if it were not the Trustee or such agent.
Section 8.05 Fees and Expenses of Trustee; Indemnification of and by
Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from the
general funds on deposit in the Distribution Account, prior to any distributions
to be made therefrom on such date, and pay to itself the Trustee Fee for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, as compensation for all services rendered by the Trustee in
the execution of the trusts hereby created and in the exercise and performance
of any of the powers and duties of the Trustee hereunder. The Trustee Fees plus
any applicable interest accrued on the Distribution Account (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) shall constitute the Trustee's sole compensation for such
services to be rendered by it.
(b) The Trustee and any director, officer, employee or agent of the
Trustee shall be entitled to be indemnified for and held harmless by the Trust
Fund against any loss, liability or reasonable "out-of-pocket" expense
(including costs and expenses incurred in connection with removal of the Special
Servicer and Master Servicer pursuant to Sections 7.01 and 7.02, costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement) arising out of, or incurred in connection with,
this Agreement or the Certificates ("Trustee Liability"); provided that such
loss, liability or expense constitutes an "unanticipated expense" within the
meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii); and provided,
further, that neither the Trustee nor any of the other above specified Persons
shall be entitled to indemnification pursuant to this Section 8.05(b) for (1)
any liability specifically required to be borne thereby pursuant to the terms of
this Agreement, or (2) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of, or the
negligent disregard of, the Trustee's obligations and duties hereunder, or as
may arise from a breach of any representation, warranty or covenant of the
Trustee made herein, or (3) any loss, liability or expense that constitutes
allocable overhead. The provisions of this Section 8.05(b) and of Section
8.05(c) shall survive any resignation or removal of the Trustee and appointment
of a successor trustee.
(c) If the Trustee Liability arises from the issuance or sale of the
Certificates and the indemnification provided for in Section 8.05(b) is invalid
or unenforceable, then the Trust Fund shall contribute to the amount paid or
payable by the Trustee as a result of such Trustee Liability in such proportion
as is appropriate to reflect the relative fault of any of the other parties on
the one hand and the Trustee on the other in connection with the actions or
omissions which resulted in such Trustee Liability, as well as any other
relevant equitable considerations.
Section 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a bank, a trust company,
an association or a corporation organized and doing business under the laws of
the United States of America or any state thereof or the District of Columbia,
authorized under such laws to exercise trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination by
federal or state banking authority. If such bank, trust company, association or
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such bank,
trust company, association or corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. The Trustee shall at all times maintain a long-term unsecured debt
rating of at least "AA-" by S&P (or "A+" by S&P if the short-term unsecured debt
rating of the Trustee is rated at least "A-1" by S&P), a long-term unsecured
debt rating of at least "AA-" by Fitch and a short-term unsecured debt rating of
at least "F-1" by Fitch (or, in the case of either Rating Agency, such other
rating as shall not result in an Adverse Rating Event with respect to the
Certificates or any Companion Loan Securities, as confirmed in writing by such
Rating Agency). The Trustee's acting in such capacity shall not adversely affect
the application of the Prohibited Transaction Exemption to the Investment Grade
Certificates. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07;
provided that if the Trustee shall cease to be so eligible because its combined
capital and surplus is no longer at least $50,000,000 or its long-term unsecured
debt rating no longer conforms to the requirements of the immediately preceding
sentence, and if the Trustee proposes to the other parties hereto to enter into
an agreement with (and reasonably acceptable to) each of them, and if in light
of such agreement the Trustee's continuing to act in such capacity would not (as
evidenced in writing by each Rating Agency) cause an Adverse Rating Event, then
upon the execution and delivery of such agreement the Trustee shall not be
required to resign, and may continue in such capacity, for so long as none of
the ratings assigned by the Rating Agencies to the Certificates is adversely
affected thereby. The bank, trust company, corporation or association serving as
Trustee may have normal banking and trust relationships with the Depositor, the
Master Servicer, the Special Servicer and their respective Affiliates.
Section 8.07 Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer and all Certificateholders and the
Companion Loan Noteholders. Upon receiving such notice of resignation, the
Depositor shall promptly appoint a successor trustee acceptable to the Depositor
by written instrument, in duplicate, which instrument shall be delivered to the
resigning Trustee and to the successor trustee. A copy of such instrument shall
be delivered to the Master Servicer, the Special Servicer, the
Certificateholders and the Companion Loan Noteholders by the Depositor. If no
successor trustee shall have been so appointed and have accepted appointment
within thirty (30) days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or if
the Trustee shall fail (other than by reason of the failure of either the Master
Servicer or the Special Servicer to timely perform its obligations hereunder or
as a result of other circumstances beyond the Trustee's reasonable control), to
timely deliver or otherwise make available in accordance with this Agreement any
current or revised Distribution Date Statement, CMSA Loan Periodic Update File,
CMSA Property File, CMSA Financial File or other report or statement required by
Section 4.02 and such failure shall continue unremedied for a period of five (5)
days after receipt of written notice by the Trustee of such failure, or if a tax
is imposed or threatened with respect to the Trust Fund by any state in which
the Trustee is located or in which it holds any portion of the Trust Fund, then
the Depositor may remove the Trustee and appoint a successor trustee acceptable
to the Depositor and the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer, the Certificateholders and the Companion Loan
Noteholders by the successor trustee so appointed.
(c) The Holders of Certificates entitled to 51% of the Voting Rights
(without regard to Certificates held by the Depositor, any of the Depositor's
Affiliates and/or agents, any Mortgage Loan Seller, any Affiliate of a Mortgage
Loan Seller and/or agents thereof) may at any time remove the Trustee and
appoint a successor trustee by written instrument or instruments, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Master Servicer, one complete set to the
Trustee so removed and one complete set to the successor trustee so appointed. A
copy of such instrument shall be delivered to the Depositor, the Special
Servicer, the remaining Certificateholders and the Companion Loan Noteholders by
the successor trustee so appointed.
(d) In the event that the Trustee is terminated or removed pursuant
to this Section 8.07, all of its rights and obligations under this Agreement and
in and to the Mortgage Loans shall be terminated, other than any rights or
obligations that accrued prior to the date of such termination or removal
(including the right to receive all fees, expenses and other amounts (including
P&I Advances and any accrued interest thereon) accrued or owing to it under this
Agreement, with respect to periods prior to the date of such termination or
removal, and no termination without cause shall be effective until the payment
of such amounts to the Trustee).
(e) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
(f) Following the Closing Date, for so long as the Trust is subject
to the reporting requirements of the Exchange Act, the Trustee may not appoint
any sub-servicer that is or could become a Reporting Servicer without the prior
written consent of the Depositor, which consent shall not be unreasonably
withheld.
Section 8.08 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
the Special Servicer and to the predecessor trustee an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee (at the expense of the Certificateholders
that effected the removal, if the Trustee has been removed in accordance with
Section 8.07(c) without cause or if such expenses are not paid by such
Certificateholders within ninety (90) days after they are incurred, at the
expense of the Trust, provided that such Certificateholders shall remain liable
to the Trust for such expenses) all Mortgage Files and related documents and
statements held by it hereunder (other than any Mortgage Files at the time held
on its behalf by a third-party Custodian, which Custodian shall become the agent
of the successor trustee), and the Depositor, the Master Servicer, the Special
Servicer and the predecessor trustee shall execute and deliver such instruments
and do such other things as may reasonably be required to more fully and
certainly vest and confirm in the successor trustee all such rights, powers,
duties and obligations, and to enable the successor trustee to perform its
obligations hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08, unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor, the Master Servicer, the
Special Servicer and the Certificateholders and the Companion Loan Noteholders.
(d) Any and all costs and expenses associated with transferring the
duties of a Trustee that has resigned or been removed or terminated, as
contemplated by Section 8.07, to a successor Trustee, including those associated
with transfer of the Mortgage Files and other documents and statements held by
the predecessor Trustee to the successor Trustee, as contemplated by Section
8.07(a), shall be paid by: (i) the predecessor Trustee, if such predecessor
Trustee has resigned in accordance with Section 8.07(a) or has been removed in
accordance with Sections 8.07(b); (ii) the Certificateholders that effected the
removal, if the predecessor Trustee has been removed without cause in accordance
with Section 8.07(c); and (iii) the Trust, if such costs and expenses are not
paid by the predecessor Trustee or the subject Certificateholders, as
contemplated by the immediately preceding clauses (i) and (ii), within ninety
(90) days after they are incurred (provided that such predecessor Trustee or
such subject Certificateholders, as applicable, shall remain liable to the Trust
for such costs and expenses).
Section 8.09 Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted, or
with which the Trustee may be consolidated, or any entity resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any entity succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided (i) such entity shall be
eligible under the provisions of Section 8.06 or Section 8.17, as applicable,
and (ii) for so long as the Trust is subject to the reporting requirements of
the Exchange Act, shall have been consented to by the Depositor (which consent
shall not be unreasonably withheld) without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Trustee shall have the power and shall execute and deliver all instruments
to appoint one or more Persons approved by the Trustee to act as co-trustee or
co-trustees, jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of the Trust Fund, and to vest in such Person or Persons, in
such capacity, such title to the Trust Fund, or any part thereof, and, subject
to the other provisions of this Section 8.10, such powers, duties, obligations,
rights and trusts as the Master Servicer and the Trustee may consider necessary
or desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06
hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 8.08
hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts vested therein pursuant to
the applicable instrument of appointment and this Section 8.10, shall vest in
and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 8.11 Appointment of Custodians.
The Trustee may appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor,
a Mortgage Loan Seller or any Affiliate of any of them. Neither the Master
Servicer nor the Special Servicer shall have any duty to verify that any such
Custodian is qualified to act as such in accordance with the preceding sentence.
The Trustee may enter into agreements to appoint a Custodian which is not the
Trustee, provided that such agreement: (i) is consistent with this Agreement in
all material respects and requires the Custodian to comply with all of the
applicable conditions of this Agreement; (ii) provides that if the Trustee shall
for any reason no longer act in the capacity of Trustee hereunder, the successor
Trustee or its designee may thereupon assume all of the rights and, except to
the extent they arose prior to the date of assumption, obligations of the
Custodian under such agreement or, alternatively, may terminate such agreement
without cause and without payment of any penalty or termination fee; and (iii)
does not permit the Custodian any rights of indemnification that may be
satisfied out of assets of the Trust Fund. The appointment of one or more
Custodians shall not relieve the Trustee from any of its obligations hereunder,
and the Trustee shall remain responsible for all acts and omissions of any
Custodian. In the absence of any other Person appointed in accordance herewith
acting as Custodian, the Trustee agrees to act in such capacity in accordance
with the terms hereof. Notwithstanding anything herein to the contrary, if the
Trustee is no longer the Custodian, any provision or requirement herein
requiring notice or any information or documentation to be provided to the
Custodian shall be construed to require that such notice, information or
documents also be provided to the Trustee. Any Custodian hereunder shall at all
times maintain a fidelity bond and errors and omissions policy in amounts
customary for custodians performing duties similar to those set forth in this
Agreement and, in any event, satisfying the same requirements (including as to
the insurer) as are applicable to any such bond or policy required to be
maintained by the Master Servicer pursuant to Section 3.07.
Section 8.12 Appointment of Authenticating Agents.
(a) The Trustee may appoint at the Trustee's expense an
Authenticating Agent, which shall be authorized to act on behalf of the Trustee
in authenticating Certificates. The Trustee shall cause any such Authenticating
Agent to execute and deliver to the Trustee an instrument in which such
Authenticating Agent shall agree to act in such capacity, with the obligations
and responsibilities herein. Each Authenticating Agent must be organized and
doing business under the laws of the United States of America or of any State,
authorized under such laws to carry on a trust business, have a combined capital
and surplus of at least $15,000,000, and be subject to supervision or
examination by federal or state authorities. Each Authenticating Agent shall be
subject to the same obligations, standard of care, protection and indemnities as
would be imposed on, or would protect, the Trustee hereunder. The appointment of
an Authenticating Agent shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible for all acts and
omissions of the Authenticating Agent. In the absence of any other Person
appointed in accordance herewith acting as Authenticating Agent, the Trustee
hereby agrees to act in such capacity in accordance with the terms hereof.
Notwithstanding anything herein to the contrary, if the Trustee is no longer the
Authenticating Agent, any provision or requirement herein requiring notice or
any information or documentation to be provided to the Authenticating Agent
shall be construed to require that such notice, information or documentation
also be provided to the Trustee.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent appointed in accordance with this
Section 8.12 may at any time resign by giving at least thirty (30) days' advance
written notice of resignation to the Trustee, the Master Servicer, the Special
Servicer and the Depositor. The Trustee may at any time terminate the agency of
any Authenticating Agent appointed in accordance with this Section 8.12 by
giving written notice of termination to such Authenticating Agent, the Master
Servicer and the Depositor. Upon receiving a notice of such a resignation or
upon such a termination, or in case at any time any Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section 8.12, the
Trustee may appoint a successor Authenticating Agent, in which case the Trustee
shall give written notice of such appointment to the Master Servicer, the
Certificate Registrar and the Depositor and shall mail notice of such
appointment to all Holders of Certificates; provided, however, that no successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section 8.12. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent.
Section 8.13 Appointment of Tax Administrators.
(a) The Trustee may appoint at the Trustee's expense any Person with
appropriate tax-related experience to act as Tax Administrator hereunder;
provided that, in the absence of any other Person appointed in accordance
herewith acting as Tax Administrator, the Trustee agrees to act in such capacity
in accordance with the terms hereof. The appointment of a Tax Administrator
shall not relieve the Trustee from any of its obligations hereunder, and the
Trustee shall remain responsible for all acts and omissions of the Tax
Administrator. The Trustee shall cause any such Tax Administrator appointed by
it to execute and deliver to the Trustee an instrument in which such Tax
Administrator shall agree to act in such capacity, with the obligations and
responsibilities herein.
(b) Any Person into which any Tax Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Tax Administrator shall be a
party, or any Person succeeding to the corporate agency business of any Tax
Administrator, shall continue to be the Tax Administrator without the execution
or filing of any paper or any further act on the part of the Trustee or the Tax
Administrator.
(c) Any Tax Administrator appointed in accordance with this Section
8.13 may at any time resign by giving at least thirty (30) days' advance written
notice of resignation to the Trustee, the Master Servicer, the Special Servicer
and the Depositor. The Trustee may at any time terminate the agency of any Tax
Administrator appointed in accordance with this Section 8.13 by giving written
notice of termination to such Tax Administrator, the Master Servicer, and the
Depositor. Upon receiving a notice of such a resignation or upon such a
termination, or in case at any time any Tax Administrator shall cease to be
eligible in accordance with the provisions of this Section 8.13, the Trustee may
appoint a successor Tax Administrator, in which case the Trustee shall give
written notice of such appointment to the Master Servicer, the Special Servicer
and the Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, that no successor Tax Administrator shall be
appointed unless eligible under the provisions of this Section 8.13. Any
successor Tax Administrator upon acceptance of its appointment hereunder shall
become vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Tax
Administrator.
Section 8.14 Access to Certain Information.
(a) The Trustee shall afford to the Master Servicer, the Special
Servicer and the Depositor, and to the OTS, the FDIC and any other banking or
insurance regulatory authority that may exercise authority over any
Certificateholder, access to any documentation regarding the Mortgage Loans
within its control that may be required to be provided by this Agreement or by
applicable law. Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of the Trustee designated by it.
(b) The Trustee shall maintain in its possession and, upon
reasonable prior written request and during normal business hours, shall make
available at its offices for review by the Depositor, the Rating Agencies, the
Companion Loan Noteholders and their designees, the Controlling Class
Representative and, subject to the succeeding paragraph, any Certificateholder,
Certificate Owner or Person identified to the Trustee as a prospective
Transferee of a Certificate or an interest therein, originals and/or copies of
the following items: (i) the Prospectus, any private placement memorandum and
any other disclosure document relating to the Certificates, in the form most
recently provided to the Trustee by the Depositor or by any Person designated by
the Depositor; (ii) this Agreement, each Sub-Servicing Agreement delivered to
the Trustee since the Closing Date; (iii) all Certificateholder Reports made
available to Certificateholders pursuant to Section 4.02(a) since the Closing
Date; (iv) all annual statements delivered to the Trustee since the Closing Date
pursuant to Section 11.09 and Section 11.10; (v) annual independent public
accountants' servicing reports caused to be delivered by or on behalf of the
Master Servicer and the Special Servicer, respectively, to the Trustee since the
Closing Date pursuant to Section 11.11; (vi) any and all notices and reports
delivered to the Trustee with respect to any Mortgaged Property as to which the
environmental testing contemplated by Section 3.09(c) revealed that either of
the conditions set forth in clauses (i) and (ii) of the first sentence thereof
was not satisfied; (vii) each of the Mortgage Files, including any and all
modifications, extensions, waivers and amendments of the terms of a Mortgage
Loan entered into or consented to by the Special Servicer and delivered to the
Trustee pursuant to Section 3.21; (viii) the most recent appraisal for each
Mortgaged Property and REO Property that has been delivered to the Trustee (each
appraisal obtained hereunder with respect to any Mortgaged Property or REO
Property to be delivered to the Trustee by the Master Servicer or Special
Servicer, as applicable, promptly following its having been obtained); (ix) any
and all Officer's Certificates and other evidence delivered to or by the Trustee
to support its, the Master Servicer's or the Special Servicer's, as the case may
be, determination that any Advance was (or, if made, would be) a Nonrecoverable
Advance; (x) any and all information provided to the Trustee pursuant to Section
6.11(a); (xi) the Schedule of Exceptions to Mortgage File Delivery prepared by
the Trustee pursuant to Section 2.02(a) and any exception report prepared by the
Trustee pursuant to Section 2.02(b); (xii) all notices of a breach of
representation and warranty given by or received by the Trustee with respect to
any party hereto; (xiii) any Officer's Certificate delivered to the Trustee by
the Special Servicer in connection with a Final Recovery Determination pursuant
to Section 3.09(h). The Trustee shall provide copies of any and all of the
foregoing items upon written request of any of the parties set forth in the
previous sentence; however, except in the case of the Rating Agencies, the
Trustee shall be permitted to require payment of a sum sufficient to cover the
reasonable costs and expenses of providing such copies. Upon the reasonable
request of any Certificateholder, or any Certificate Owner identified to the
Trustee to the Trustee's reasonable satisfaction, the Trustee shall request from
the Master Servicer copies (at the expense of such Certificateholder or
Certificate Owner if the Master Servicer or Special Servicer charges a fee to
cover the reasonable cost of making such copies available) of any inspection
reports prepared by the Master Servicer or the Special Servicer, copies of any
operating statements, rent rolls and financial statements obtained by the Master
Servicer or the Special Servicer; and, upon receipt, the Trustee shall make such
items available to the requesting Certificateholder or Certificate Owner.
(c) The Trustee shall not be liable for providing or disseminating
information in accordance with Section 8.14(a) or (b).
Section 8.15 [Reserved.]
Section 8.16 Representations and Warranties of Trustee.
(a) The Trustee hereby represents and warrants to the Master
Servicer, the Special Servicer and the Depositor and for the benefit of the
Certificateholders and the Companion Loan Noteholders, as of the Closing Date,
that:
(i) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
of America.
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) Except to the extent that the laws of certain jurisdictions in
which any part of the Trust Fund may be located require that a co-trustee
or separate trustee be appointed to act with respect to such property as
contemplated by Section 8.10, the Trustee has the full power and authority
to enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement, including, but not limited to, its responsibility
to make P&I Advances if the Master Servicer fails to make a P&I Advance,
will not constitute a violation of, any law, any order or decree of any
court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the
Trustee's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Trustee to perform its
obligations under this Agreement or the financial condition of the
Trustee.
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to
the Trustee, would prohibit the Trustee from entering into this Agreement
or, in the Trustee's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Trustee to
perform its obligations under this Agreement or the financial condition of
the Trustee.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Trustee of or compliance by the Trustee with this
Agreement, or the consummation of the transactions contemplated by this
Agreement, has been obtained and is effective, except where the lack of
consent, approval, authorization or order would not have a material
adverse effect on the performance by the Trustee under this Agreement.
(viii) The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
(b) The representations and warranties of the Trustee set forth in
Section 8.16(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations, warranties and
covenants, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Trustee shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 8.16(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 8.16(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer and the Trustee (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment): (i) to the Certificateholders of all amounts held by or
on behalf of the Trustee and required hereunder to be so paid on the
Distribution Date following the earlier to occur of (A) the purchase by the
Depositor, any Mortgage Loan Seller, the Special Servicer, any Controlling Class
Certificateholder or the Master Servicer of all Mortgage Loans and each REO
Property remaining in the Lower-Tier REMIC at a price equal to (1) the sum (x)
of the aggregate Purchase Price of all the Mortgage Loans and (y) the aggregate
Appraised Values of any REO Properties then included in the Lower-Tier REMIC,
minus (2) if the purchaser is the Master Servicer or the Special Servicer, the
aggregate amount of unreimbursed Advances made by such Person, together with any
interest accrued and payable to such Person in respect of unreimbursed Advances
in accordance with Section 3.12(b) and, in the case of the Master Servicer,
Section 4.03(d) or Section 4.03A, and any unpaid servicing compensation
remaining outstanding (which items shall be deemed to have been paid or
reimbursed to the Master Servicer or the Special Servicer, as the case may be,
in connection with such purchase), and (B) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan or
REO Property remaining in the Lower-Tier REMIC; and (ii) to the Trustee, the
Master Servicer, the Special Servicer and the members, managers, officers,
directors, employees and/or agents of each of them of all amounts which may have
become due and owing to any of them hereunder; provided, however, that in no
event shall the trust created hereby continue beyond the expiration of
twenty-one (21) years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late ambassador of the United States to the Court of St.
Xxxxx, living on the date hereof.
Each of any Controlling Class Certificateholder (with priority among
such Holders being given to the Holder of Certificates representing the greatest
Percentage Interest in the Controlling Class), the Special Servicer, or the
Master Servicer, in that order of priority, may at its option elect to purchase
all of the Mortgage Loans and each REO Property remaining in the Lower-Tier
REMIC as contemplated by clause (i) of the preceding paragraph by giving written
notice to the other parties hereto no later than sixty (60) days prior to the
anticipated date of purchase; provided, however, that (i) the aggregate Stated
Principal Balance of the Mortgage Loans at the time of such election is less
than 1% of the Initial Trust Balance set forth in the Preliminary Statement, and
(ii) no such Person shall have the right to effect such a purchase if, within
thirty (30) days following its delivery of a notice of election pursuant to this
paragraph, any other such Person with a higher priority shall give notice of its
election to purchase all of the Mortgage Loans and each REO Property remaining
in the Lower-Tier REMIC and shall thereafter effect such purchase in accordance
with the terms hereof. If the Trust Fund is to be terminated in connection with
the Master Servicer's, the Special Servicer's or a Controlling Class
Certificateholder's purchase of all of the Mortgage Loans and each REO Property
remaining in the Lower-Tier REMIC, the Master Servicer, the Special Servicer or
such Controlling Class Certificateholder, as applicable, shall deliver to the
Trustee not later than the fifth Business Day preceding the Distribution Date on
which the final distribution on the Certificates is to occur: (x) for deposit in
the Pool Custodial Account, an amount in immediately available funds equal to
the above-described purchase price (provided, however, that if the Loan
Combination REO Properties are being purchased pursuant to the foregoing, the
portion of the above-described purchase price allocable to such REO Property
shall initially be deposited into the related Loan Combination Custodial
Account; and (y) an Opinion of Counsel, at the expense of the party effecting
the purchase, stating that the termination of the Trust satisfies the
requirements of a qualified liquidation under Section 860F of the Code and any
regulations thereunder. In addition, the Master Servicer shall transfer to the
Distribution Account, all amounts required to be transferred thereto on such
Loan Combination Remittance Date from the Pool Custodial Account or from the
applicable Loan Combination Custodial Account pursuant to the first paragraph of
Section 3.04(b), together with any other amounts on deposit in the Pool
Custodial Account or the applicable Loan Combination Custodial Account that
would otherwise be held for future distribution. Upon confirmation that such
final deposits have been made, subject to Section 3.26, the Trustee shall
release or cause to be released to the Master Servicer, the Special Servicer or
the purchasing Controlling Class Certificateholder, as applicable, the Mortgage
Files and the Servicing Files for the remaining Mortgage Loans and shall execute
all assignments, endorsements and other instruments furnished to it by the
Master Servicer, the Special Servicer or the purchasing Controlling Class
Certificateholder, as applicable, as shall be necessary to effectuate transfer
of the Mortgage Loans and REO Properties to the Master Servicer, the Special
Servicer or the purchasing Controlling Class Certificateholder (or their
respective designees), as applicable. Any transfer of Mortgage Loans, except in
the case of the Serviced Loan Combination Trust Mortgage Loans, pursuant to this
paragraph shall be on a servicing-released basis; and, if any Mortgage Loan
purchased pursuant to this Section 9.01 is a Serviced Loan Combination Trust
Mortgage Loan, the release, endorsement or assignment of the documents
constituting the related Mortgage File and Servicing File shall be in the manner
contemplated by Section 3.26 hereof.
Following the date on which the aggregate Certificate Principal
Balance of the Registered Certificates is reduced to zero and the then
outstanding Certificates (excluding the Residual Interest Certificates) are held
by a single Certificateholder, such sole remaining Certificateholder (the "Sole
Certificateholder") shall have the right to exchange all of its Certificates for
all of the Mortgage Loans and each REO Property) remaining in the Trust Fund as
contemplated by the first paragraph of this Section 9.01, by giving written
notice to all the parties hereto and the Companion Loan Noteholders no later
than sixty (60) days prior to the anticipated date of exchange; provided that no
such exchange may occur if any of the remaining REO Properties relates to a
Serviced Loan Combination. Such Sole Certificateholder, not later than the fifth
Business Day preceding the Distribution Date on which the final distribution on
the Certificates is to occur, shall (i) deposit in the applicable Custodial
Account an amount in immediately available funds equal to all amounts then due
and owing to the Depositor, the Master Servicer, the Special Servicer and the
Trustee pursuant to Section 3.05(a) or Section 3.05A, as applicable, or that may
be withdrawn from the Distribution Account pursuant to Section 3.05(b), but only
to the extent that such amounts are not already on deposit in such Custodial
Account and (ii) pay to the Trustee for its benefit an amount, in immediately
available funds, equal to $5,000 (five thousand dollars). In addition, the
Master Servicer shall transfer to the Distribution Account all amounts required
to be transferred thereto on the related Master Servicer Remittance Date from
the Pool Custodial Account pursuant to the first paragraph of Section 3.04(b).
Upon confirmation that such final deposits have been made and following the
surrender of all the Certificates on the final Distribution Date, the Trustee
shall release or cause to be released to such Sole Certificateholder or any
designee thereof, the Mortgage Files for the remaining Mortgage Loans and REO
Properties and shall execute all assignments, endorsements and other instruments
furnished to it by such Certificateholder as shall be necessary to effectuate
transfer of the Mortgage Loans and REO Properties remaining in the Trust Fund.
Thereafter, the Trust Fund and the respective obligations and responsibilities
under this Agreement of the Depositor, the Master Servicer, the Special Servicer
and the Trustee (other than maintenance of books and records and the preparation
and filing of final tax returns) shall terminate. Any transfer of the Mortgage
Loans, except in the case of Serviced Loan Combination Trust Mortgage Loans,
pursuant to this paragraph shall be on a servicing released basis; and the
release, endorsement or assignment of the documents constituting the related
Mortgage File and Servicing File shall be in the manner contemplated by Section
3.26. For federal income tax purposes, the Sole Certificateholder shall be
deemed to have purchased the assets of the Trust Fund for an amount equal to the
unpaid principal balance, plus accrued unpaid interest of the Mortgage Loans and
the fair market value of any defaulted Mortgage Loans or REO Property, without
duplication of amounts deposited pursuant to the fourth preceding sentence of
this paragraph, and such amounts shall be deemed to have been paid or
distributed in accordance with Section 4.01.
For purposes of this Section 9.01 and Section 9.02 and any Loan
Combination, (i) references to purchase of an REO Property or Properties shall
mean purchase of the Trust Fund's interest in such REO Property or Properties
and (ii) the Appraised Value of any REO Property refers to the Appraised Value
of the Trust Fund's interest in such REO Property, which (1) in the case of a
Loan Combination that does not have any Pari Passu Companion Loans shall mean
the lesser of (x) the Purchase Price of the related REO Mortgage Loan and (y)
the Appraised Value of such REO Property and (2) with respect to a Loan
Combination comprised of one or more Pari Passu Companion Loans shall mean the
lesser of (x) the Purchase Price of the related REO Mortgage Loan and (y) the
Trust Fund's proportionate share of the Appraised Value of such REO Property
without taking into account the interest of any related Subordinate Companion
Loan.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders and the Companion Loan Noteholders mailed (a) if
such notice is given in connection with the Depositor's, the Master Servicer's,
the Special Servicer's or a Controlling Class Certificateholder's purchase of
the Mortgage Loans and each REO Property remaining in the Lower-Tier REMIC, not
earlier than the 15th day and not later than the 25th day of the month next
preceding the month of the final distribution on the Certificates or (b)
otherwise during the month of such final distribution on or before the eighth
day of such month, in each case specifying (i) the Distribution Date upon which
the Trust Fund will terminate and final payment of the Certificates will be
made, (ii) the amount of any such final payment and (iii) that the Record Date
otherwise applicable to such Distribution Date is not applicable, payments being
made only upon presentation and surrender of the Certificates at the offices of
the Certificate Registrar or such other location therein designated. The Trustee
shall give such notice to the Master Servicer, the Special Servicer and the
Depositor at the time such notice is given to Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Distribution Account that are allocable to payments on the Class
of Certificates so presented and surrendered. Amounts on deposit in the
Distribution Account as of the final Distribution Date, exclusive of any portion
thereof that would be payable to any Person in accordance with clauses (ii)
through (viii) of Section 3.05(b), and further exclusive of any portion thereof
that represents Prepayment Premiums and/or Yield Maintenance Charges, shall be
allocated in the order of priority set forth in Section 4.01(a), in each case to
the extent of remaining available funds.
Any Prepayment Premiums and Yield Maintenance Charges on deposit in
the Distribution Account as of the final Distribution Date (net of any Workout
Fees and/or Liquidation Fees payable therefrom) shall be distributed among the
Holders of the Class A-1, Class A-2, Class A-3, Class A-PB, Class A-4, Class
A-1A, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G
and Class H Certificates in accordance with Section 4.01(b).
Any amounts representing Additional Interest on deposit in the
Distribution Account as of the Final Distribution Date shall be distributed to
the Holders of the Class Y Certificates in accordance with Section 4.01(k).
Any funds not distributed to any Holder or Holders of Certificates
of such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 9.01 shall not have been surrendered for
cancellation within six (6) months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate. The
costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If by the second anniversary of the delivery of such
second notice, all of the Certificates shall not have been surrendered for
cancellation, then, subject to applicable law, the Trustee shall distribute to
the Class R-II Certificateholders all unclaimed funds and other assets which
remain subject hereto.
All actual distributions on the respective Classes of Certificates
on the final Distribution Date in accordance with foregoing provisions of this
Section 9.01 shall be deemed to have been distributed first from the Lower-Tier
REMIC to the Upper-Tier REMIC in accordance with Section 4.01(j) and Section
4.01(b).
Section 9.02 Additional Termination Requirements.
(a) If the Depositor, any Controlling Class Certificateholder, the
Special Servicer or the Master Servicer purchases all of the Mortgage Loans and
each REO Property remaining in the Lower-Tier REMIC as provided in Section 9.01,
the Trust Fund (and, accordingly, each REMIC Pool) shall be terminated in
accordance with the following additional requirements, unless the Person
effecting such purchase obtains at its own expense and delivers to the Trustee
and the Tax Administrator, an Opinion of Counsel, addressed to the Trustee and
the Tax Administrator, to the effect that the failure of the Trust Fund to
comply with the requirements of this Section 9.02 will not result in an Adverse
REMIC Event or an Adverse Grantor Trust Event:
(i) the Tax Administrator shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return for
each REMIC Pool (unless previously terminated) pursuant to Treasury
Regulations Section 1.860F-1 and shall satisfy all requirements of a
qualified liquidation under Section 860F of the Code and any regulations
thereunder as set forth in the Opinion of Counsel obtained pursuant to
Section 9.01 from the party effecting the purchase of all the Mortgage
Loans and REO Property remaining in the Lower-Tier REMIC;
(ii) during such 90-day liquidation period and at or prior to the
time of making of the final payment on the Certificates, the Trustee shall
sell all of the assets of the Lower-Tier REMIC to the Master Servicer, the
purchasing Controlling Class Certificateholder, the Special Servicer or
the Depositor, as applicable, for cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Certificateholders in accordance with
Section 9.01 all cash on hand (other than cash retained to meet claims),
and each REMIC Pool shall terminate at that time.
(b) [Reserved.]
(c) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the Tax Administrator to specify the 90-day liquidation
period for each REMIC Pool, which authorization shall be binding upon all
successor Certificateholders.
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 REMIC Administration.
(a) The Tax Administrator shall elect to treat each REMIC Pool as a
REMIC under the Code and, if necessary, under applicable state law. Such
election will be made on Form 1066 or other appropriate federal or state Tax
Returns for the taxable year ending on the last day of the calendar year in
which the Certificates are issued.
(b) The Uncertificated Lower-Tier Interests are hereby designated as
"regular interests" (within the meaning of Section 860G(a)(1) of the Code) in
the Lower-Tier REMIC. The Regular Interest Certificates are hereby designated as
"regular interests" (within the meaning of Section 860G(a)(1) of the Code) in
the Upper-Tier REMIC. The (i) Class R-I Certificates and the (ii) Class R-II
Certificates are hereby designated as the single class of "residual interests"
(within the meaning of Section 860G(a)(2) of the Code) in (i) the Lower-Tier
REMIC and (ii) the Upper-Tier REMIC, respectively. None of the Master Servicer,
the Special Servicer or the Trustee shall (to the extent within its control)
permit the creation of any other "interests" in the Lower-Tier REMIC or the
Upper-Tier REMIC (within the meaning of Treasury Regulations Section
1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of
each REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(d) The related Plurality Residual Interest Certificateholder as to
the applicable taxable year is hereby designated as the Tax Matters Person of
each REMIC Pool, and shall act on behalf of the related REMIC in relation to any
tax matter or controversy and shall represent the related REMIC in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority; provided that the Tax Administrator is hereby
irrevocably appointed to act and shall act (in consultation with the Tax Matters
Person for each REMIC Pool) as agent and attorney-in-fact for the Tax Matters
Person for each REMIC Pool in the performance of its duties as such.
(e) For purposes of Treasury Regulations Section
1.860G-1(a)(4)(iii), the Rated Final Distribution Date is hereby designated the
"latest possible maturity date" of each Class of Regular Interest Certificates
and the Uncertificated Lower-Tier Interests.
(f) Except as otherwise provided in Section 3.18(a) and subsections
(i) and (j) below, the Tax Administrator shall pay out of its own funds any and
all routine tax administration expenses of the Trust Fund incurred with respect
to each REMIC Pool (but not including any professional fees or expenses related
to audits or any administrative or judicial proceedings with respect to the
Trust Fund that involve the IRS or state tax authorities which extraordinary
expenses shall be payable or reimbursable to the Tax Administrator from the
Trust Fund (exclusive of the Grantor Trust Assets), unless otherwise provided in
Section 10.01(i) or 10.01(j)).
(g) Within thirty (30) days after the Closing Date, the Tax
Administrator shall obtain a taxpayer identification number on Form SS-4 for
each REMIC Pool and prepare and file with the IRS Form 8811, "Information Return
for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for the Trust Fund. In addition, the Tax
Administrator shall prepare or cause to be prepared, shall cause the Trustee to
sign and shall file or cause to be filed all of the other Tax Returns in respect
of each REMIC Pool. The expenses of preparing and filing such returns shall be
borne by the Tax Administrator without any right of reimbursement therefor. The
other parties hereto shall provide on a timely basis to the Tax Administrator or
its designee such information with respect to each REMIC Pool as is in its
possession and reasonably requested by the Tax Administrator to enable it to
perform its obligations under this Section 10.01. Without limiting the
generality of the foregoing, the Depositor, within ten (10) days following the
Tax Administrator's request therefor, shall provide in writing to the Tax
Administrator such information as is reasonably requested by the Tax
Administrator for tax purposes, as to the valuations and issue prices of the
Certificates, and the Tax Administrator's duty to perform its reporting and
other tax compliance obligations under this Section 10.01 shall be subject to
the condition that it receives from the Depositor such information possessed by
the Depositor that is necessary to permit the Tax Administrator to perform such
obligations.
(h) The Tax Administrator shall perform on behalf of each REMIC Pool
all reporting and other tax compliance duties that are the responsibility of
each such REMIC Pool under the Code, the REMIC Provisions or other compliance
guidance issued by the IRS or any state or local taxing authority. Included
among such duties, the Tax Administrator shall provide to: (i) any Transferor of
a Residual Interest Certificate, such information as is necessary for the
application of any tax relating to the transfer of a Residual Interest
Certificate to any Person who is not a Permitted Transferee; (ii) the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption as
required hereunder); and (iii) the IRS, the name, title, address and telephone
number of the Person who will serve as the representative of each REMIC Pool.
(i) The Tax Administrator shall perform its duties hereunder so as
to maintain the status of each REMIC Pool as a REMIC under the REMIC Provisions
(and the Trustee, the Master Servicer and the Special Servicer shall assist the
Tax Administrator to the extent reasonably requested by the Tax Administrator
and to the extent of information within the Trustee's, the Master Servicer's or
the Special Servicer's possession or control). None of the Tax Administrator,
the Master Servicer, the Special Servicer, or the Trustee shall knowingly take
(or cause either REMIC Pool to take) any action or fail to take (or fail to
cause to be taken) any action that, under the REMIC Provisions, if taken or not
taken, as the case may be, could (i) endanger the status of either REMIC Pool as
a REMIC, or (ii) except as provided in Section 3.18(a), result in the imposition
of a tax upon either REMIC Pool (including, but not limited to, the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax
on contributions to a REMIC set forth in Section 860G(d) of the Code) or result
in the imposition of a tax on "net income from foreclosure property" as defined
in Section 860G(c) of the Code (any such endangerment of REMIC status or, except
as provided in Section 3.18(a), imposition of a tax, an "Adverse REMIC Event"),
unless the Tax Administrator has obtained or received an Opinion of Counsel (at
the expense of the party requesting such action or at the expense of the Trust
Fund if the Tax Administrator seeks to take such action or to refrain from
acting for the benefit of the Certificateholders) to the effect that the
contemplated action will not result in an Adverse REMIC Event or an Adverse
Grantor Trust Event. None of the other parties hereto shall take any action or
fail to take any action (whether or not authorized hereunder) as to which the
Tax Administrator has advised it in writing that the Tax Administrator has
received or obtained an Opinion of Counsel to the effect that an Adverse REMIC
Event or an Adverse Grantor Trust Event could result from such action or failure
to act. In addition, prior to taking any action with respect to either REMIC
Pool or the Grantor Trust, or causing either REMIC Pool or the Grantor Trust to
take any action, that is not expressly permitted under the terms of this
Agreement, the Master Servicer and the Special Servicer shall consult with the
Tax Administrator or its designee, in writing, with respect to whether such
action could cause an Adverse REMIC Event or an Adverse Grantor Trust Event. The
Tax Administrator may consult with counsel to make such written advice, and the
cost of same shall be borne by the party seeking to take the action not
permitted by this Agreement, but in no event at the cost or expense of the Trust
Fund or the Trustee. At all times as may be required by the Code, the Tax
Administrator shall make reasonable efforts to ensure that substantially all of
the assets of each REMIC Pool will consist of "qualified mortgages" as defined
in Section 860G(a)(3) of the Code and "permitted investments" as defined in
Section 860G(a)(5) of the Code.
(j) If any tax is imposed on either REMIC Pool, including
"prohibited transactions" taxes as defined in Section 860F(a)(2) of the Code,
any tax on "net income from foreclosure property" as defined in Section 860G(c)
of the Code, any taxes on contributions to either REMIC Pool after the Startup
Day pursuant to Section 860G(d) of the Code, and any other tax imposed by the
Code or any applicable provisions of state or local tax laws (other than any tax
permitted to be incurred by the Special Servicer pursuant to Section 3.18(a)),
such tax, together with all incidental costs and expenses (including penalties
and reasonable attorneys' fees), shall be charged to and paid by: (i) the Tax
Administrator, if such tax arises out of or results from a breach by the Tax
Administrator of any of its obligations under this Section 10.01; (ii) the
Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article III or this Section
10.01; (iii) the Master Servicer, if such tax arises out of or results from a
breach by the Master Servicer of any of its obligations under Article III or
this Section 10.01; (iv) the Trustee, if such tax arises out of or results from
a breach by the Trustee of any of its obligations under Article IV, Article VIII
or this Section 10.01; or (v) the Trust Fund, excluding the portion thereof
constituting the Grantor Trust in all other instances. Any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.18(a) shall be charged to
and paid by the Trust Fund (exclusive of the Grantor Trust Assets). Any such
amounts payable by the Trust Fund shall be paid by the Trustee upon the written
direction of the Tax Administrator out of amounts on deposit in the Distribution
Account in reduction of the Available Distribution Amount pursuant to Section
3.05(b).
(k) The Tax Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC Pool on a calendar year
and on an accrual basis.
(l) Following the Startup Day, none of the Trustee, the Master
Servicer and the Special Servicer shall accept any contributions of assets to
either REMIC Pool unless it shall have received an Opinion of Counsel (at the
expense of the party seeking to cause such contribution and in no event at the
expense of the Trust Fund or the Trustee) to the effect that the inclusion of
such assets in such REMIC Pool will not cause: (i) such REMIC Pool to fail to
qualify as a REMIC at any time that any Certificates are outstanding; or (ii)
the imposition of any tax on such REMIC Pool under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(m) None of the Trustee, the Master Servicer and the Special
Servicer shall consent to or, to the extent it is within the control of such
Person, permit: (i) the sale or disposition of any of the Mortgage Loans (except
in connection with (A) the default or reasonably foreseeable material default of
a Mortgage Loan, including, but not limited to, the sale or other disposition of
a Mortgaged Property acquired by deed in lieu of foreclosure, (B) the bankruptcy
of either REMIC Pool, (C) the termination of either REMIC Pool pursuant to
Article IX of this Agreement, or (D) a purchase of Mortgage Loans pursuant to or
as contemplated by Article II or III of this Agreement); (ii) the sale or
disposition of any investments in the Pool Custodial Account or the Pool REO
Account for gain; or (iii) the acquisition of any assets for either REMIC Pool
(other than a Mortgaged Property acquired through foreclosure, deed in lieu of
foreclosure or otherwise in respect of a defaulted Mortgage Loan and other than
Permitted Investments acquired in connection with the investment of funds in the
Pool Custodial Account or the Pool REO Account); in any event unless it has
received an Opinion of Counsel (at the expense of the party seeking to cause
such sale, disposition, or acquisition but in no event at the expense of the
Trust Fund or the Trustee) to the effect that such sale, disposition, or
acquisition will not cause: (x) either REMIC Pool to fail to qualify as a REMIC
at any time that any Certificates are outstanding; or (y) the imposition of any
tax on either REMIC Pool under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(n) Except as permitted by Section 3.18(a), none of the Trustee, the
Master Servicer and the Special Servicer shall enter into any arrangement by
which either REMIC Pool will receive a fee or other compensation for services
nor permit either REMIC Pool to receive any income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code.
Section 10.02 Grantor Trust Administration.
(a) The Tax Administrator shall treat the Grantor Trust, for tax
return preparation purposes, as a grantor trust under the Code and, if
necessary, under applicable state law and will file appropriate federal or state
Tax Returns for each taxable year ending on or after the last day of the
calendar year in which the Class Y Certificates are issued.
(b) The Tax Administrator shall pay out of its own funds any and all
routine tax administration expenses of the Trust Fund incurred with respect to
the Grantor Trust (but not including any professional fees or expenses related
to audits or any administrative or judicial proceedings with respect to the
Trust Fund that involve the IRS or state tax authorities which extraordinary
expenses shall be payable or reimbursable to the Tax Administrator from the
Trust Fund unless otherwise provided in Section 10.02(e) or 10.02(f)).
(c) The Tax Administrator shall prepare, sign and file all of the
Tax Returns in respect of the Grantor Trust. The expenses of preparing and
filing such returns shall be borne by the Tax Administrator without any right of
reimbursement therefor. The Tax Administrator shall comply with such requirement
by filing Form 1041 or such other form as may be applicable under the Grantor
Trust Provisions, indicating the name and address of the Trust and signed by the
Tax Administrator but otherwise left blank. There shall be appended to each such
form a schedule for each Certificateholder indicating such Certificateholder's
share of income and expenses of the Trust for the portion of the preceding
calendar year in which such Certificateholder possessed an Ownership Interest in
a Class Y Certificates. Such form shall be prepared in sufficient detail to
enable reporting on the cash or accrual method of accounting, as applicable, and
to report on such Certificateholder's fiscal year if other than the calendar
year. The other parties hereto shall provide on a timely basis to the Tax
Administrator or its designee such information with respect to the Grantor Trust
as is in its possession and reasonably requested by the Tax Administrator to
enable it to perform its obligations under this Section 10.02. Without limiting
the generality of the foregoing, the Depositor, within ten days following the
Tax Administrator's request therefor, shall provide in writing to the Tax
Administrator such information as is reasonably requested by the Tax
Administrator for tax purposes and compliance with the administration and
reporting duties under the Grantor Trust Provisions, and the Tax Administrator's
duty to perform its reporting and other tax compliance obligations under this
Section 10.02 shall be subject to the condition that it receives from the
Depositor such information possessed by the Depositor that is necessary to
permit the Tax Administrator to perform such obligations.
(d) The Tax Administrator shall perform on behalf of the Grantor
Trust all reporting and other tax compliance duties that are required in respect
thereof under the Code, the Grantor Trust Provisions or other compliance
guidance issued by the IRS or any state or local taxing authority, including the
furnishing to Certificateholders of the schedules described in Section 10.02(c).
(e) The Tax Administrator shall perform its duties hereunder so as
to maintain the status of the Grantor Trust as a grantor trust under the Grantor
Trust Provisions (and the Depositor, the Trustee, the Master Servicer and the
Special Servicer shall assist the Tax Administrator to the extent reasonably
requested by the Tax Administrator and to the extent of information within the
Trustee's, the Master Servicer's or the Special Servicer's possession or
control). None of the Tax Administrator, Master Servicer, the Special Servicer
or the Trustee shall vary the investment of the beneficial owners in the assets
of the Grantor Trust with a view to taking advantage of fluctuations in market
rates of interest to improve their rates of return or knowingly take (or cause
the Grantor Trust to take) any action or fail to take (or fail to cause to be
taken) any action that, under the Grantor Trust Provisions, if taken or not
taken, as the case may be, could endanger the status of the Grantor Trust as a
grantor trust under the Grantor Trust Provisions or result in the imposition of
a tax upon the Grantor Trust or its assets or transactions (any such
endangerment or imposition, an "Adverse Grantor Trust Event"), unless the Tax
Administrator has obtained or received an Opinion of Counsel (at the expense of
the party requesting such action or at the expense of the Trust Fund if the Tax
Administrator seeks to take such action or to refrain from taking any action for
the benefit of the Certificateholders) to the effect that the contemplated
action will not result in an Adverse Grantor Trust Event. None of the other
parties hereto shall take any action or fail to take any action (whether or not
authorized hereunder) as to which the Tax Administrator has advised it in
writing that the Tax Administrator has received or obtained an Opinion of
Counsel to the effect that an Adverse Grantor Trust Event could result from such
action or failure to act. In addition, prior to taking any action with respect
to the Grantor Trust, or causing the Trust Fund to take any action, that is not
expressly permitted under the terms of this Agreement, the Master Servicer and
the Special Servicer shall consult with the Tax Administrator or its designee,
in writing, with respect to whether such action could cause an Adverse Grantor
Trust Event to occur. The Tax Administrator may consult with counsel to make
such written advice, and the cost of same shall be borne by the party seeking to
take the action not permitted by this Agreement, but in no event at the cost or
expense of the Trust Fund, the Tax Administrator or the Trustee.
(f) If any tax is imposed on the Grantor Trust, such tax, together
with all incidental costs and expenses (including penalties and reasonable
attorneys' fees), shall be charged to and paid by: (i) the Tax Administrator, if
such tax arises out of or results from a breach by the Tax Administrator of any
of its obligations under this Section 10.02; (ii) the Special Servicer, if such
tax arises out of or results from a breach by the Special Servicer of any of its
obligations under Article III or this Section 10.02; (iii) the Master Servicer,
if such tax arises out of or results from a breach by the Master Servicer of any
of its obligations under Article III or this Section 10.02; (iv) the Trustee, if
such tax arises out of or results from a breach by the Trustee of any of its
obligations under Article IV, Article VIII or this Section 10.02; (v) the
Depositor, if such tax arises out of or results from a breach by the Depositor
of any of its obligations under Section 10.02; or (vi) the portion of the Trust
Fund constituting the Grantor Trust in all other instances.
(g) The Grantor Trust is a WHFIT that is a WHMT. The Trustee will
report as required under the WHFIT Regulations to the extent such information as
is reasonably necessary to enable the Trustee to do so is provided to the
Trustee on a timely basis. The Trustee will not be liable for any tax reporting
penalties that may arise under the WHFIT Regulations as a result of the
Depositor incorrectly determining the status of the grantor trust as a WHFIT.
(h) The Trustee, in its discretion, will report required WHFIT
information using either the cash or accrual method, except to the extent the
WHFIT Regulations specifically require a different method. The Trustee will be
under no obligation to determine whether any Certificateholder uses the cash or
accrual method. The Trustee will make available WHFIT information to
Certificateholders annually. In addition, the Trustee will not be responsible or
liable for providing subsequently amended, revised or updated information to any
Certificateholder, unless requested by the certificate holder.
(i) The Trustee shall not be liable for failure to meet the
reporting requirements of the WHFIT Regulations nor for any penalties thereunder
if such failure is due to: (i) the lack of reasonably necessary information
being provided to the Trustee, or (ii) incomplete, inaccurate or untimely
information being provided to the Trustee. Each owner of a class of securities
representing, in whole or in part, beneficial ownership of an interest in a
WHFIT, by acceptance of its interest in such class of securities, will be deemed
to have agreed to provide the Trustee with information regarding any sale of
such securities, including the price, amount of proceeds and date of sale.
Absent receipt of such information and unless informed otherwise by the
Depositor, the Trustee will assume there is no secondary market trading of WHFIT
interests.
(j) To the extent required by the WHFIT Regulations, the Trustee
will use reasonable efforts to publish on an appropriate website the CUSIPs for
the certificates that represent ownership of a WHFIT. The CUSIPs so published
will represent the Rule 144A CUSIPs. The Trustee will not publish any associated
Reg S CUSIPs. The Trustee will make reasonable good faith efforts to keep the
website accurate and updated to the extent CUSIPs have been received. Absent the
receipt of a CUSIP, the Trustee will use a reasonable identifier number in lieu
of a CUSIP. The Trustee will not be liable for investor reporting delays that
result from the receipt of inaccurate or untimely CUSIP information.
(k) The Trustee shall be entitled to additional reasonable
compensation for changes in reporting required in respect of the WHFIT
Regulations that arise as a result of a change in the WHFIT Regulations or a
change in interpretation of the WHFIT Regulations by the IRS or the Depositor or
its counsel, if such change requires, in the Trustee's reasonable discretion, a
material increase in the Trustee's reporting obligations in respect of the
related Grantor Trust.
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness.
The parties hereto acknowledge and agree that the purpose of Article
XI of this Agreement is to facilitate compliance by the Depositor with the
provisions of Regulation AB and the related rules and regulations of the
Commission; provided, however, that the reports (or substantially similar
reports) required to be delivered pursuant to Section 11.09, Section 11.10 and
Section 11.11 will continue to be required regardless of whether any other
reports are required to be delivered hereunder. The Depositor shall not exercise
its rights to request delivery of information or other performance under these
provisions other than reasonably and in good faith, or for purposes other than
compliance with the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act.
The parties hereto acknowledge that interpretations of the requirements of
Regulation AB may change over time due to interpretive guidance provided by the
Commission or its staff, and agree to comply with requests made by the Depositor
in good faith for delivery of information under these provisions on the basis of
such evolving interpretations of Regulation AB. In connection with COBALT CMBS
Commercial Mortgage Trust 2007-C3, Commercial Mortgage Pass-Through
Certificates, Series 2007-C3, each of the Master Servicer, the Special Servicer
and the Trustee shall cooperate fully with the Depositor and the Trustee, as
applicable, to deliver to the Depositor (including any of its assignees or
designees who assumes its obligations hereunder), any and all statements,
reports, certifications, records and any other information in its possession or
reasonably available to it and necessary in the reasonable good faith
determination of the Depositor or the Trustee, as applicable, to permit the
Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Master Servicer, the Special Servicer and the
Trustee, as applicable, and any Sub-Servicer, or the servicing of the Mortgage
Loans, reasonably believed by the Depositor to be necessary in order to effect
such compliance. Each party to this Agreement shall have a reasonable period of
time to comply with any written request made under this Section 11.01, but in
any event, shall, upon reasonable advance written request, provide information
in sufficient time to allow the Depositor or the Trustee, as applicable, to
satisfy any related filing requirements. For purposes of this Article XI, to the
extent any party has an obligation to exercise commercially reasonable efforts
to cause a third party to perform, such party hereunder may but shall not be
required to bring any legal action against such third party in connection with
such obligation.
Section 11.02 Succession; Subcontractors.(a) (a) For so long as the
Trust is subject to the reporting requirements of the Exchange Act (in addition
to any requirements contained in Section 11.07) in connection with the
succession to the Master Servicer, the Special Servicer or any Sub-Servicer, or
Additional Servicer or Primary Servicer as servicer or sub-servicer (to the
extent such servicer or sub-servicer is a "servicer" as contemplated by Item
1108(a)(2) of Regulation AB) under this Agreement by any Person (i) into which
the Master Servicer, the Special Servicer or such Sub-Servicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Master
Servicer and Special Servicer or any such Sub-Servicer, Additional Servicer or
Primary Servicer, the Master Servicer (other than if pursuant to an appointment
under Section 7.01 or 7.02) and Special Servicer shall provide (or in the case
of a Sub-Servicer listed on Exhibit K, shall use commercially reasonable efforts
to cause such Sub-Servicer to provide) to the Depositor, at least five (5)
calendar days prior to the effective date of such succession or appointment as
long as such disclosure prior to such effective date would not be violative of
any applicable law or confidentiality agreement, otherwise no later than one (1)
Business Day after such effective date of succession, (x) written notice to the
Depositor of such succession or appointment and (y) in writing and in form and
substance reasonably satisfactory to the Depositor, all information relating to
such successor servicer reasonably requested by the Depositor in order to comply
with its reporting obligation under Item 6.02 of Form 8-K pursuant to the
Exchange Act (if such reports under the Exchange Act are required to be filed
under the Exchange Act).
(b) Each of the Master Servicer, the Special Servicer, the
Additional Servicer, the Primary Servicer, the Sub-Servicer and the Trustee
(each of the Master Servicer, the Special Servicer, the Primary Servicer, each
Additional Servicer, the Trustee and each Sub-Servicer, for purposes of this
paragraph and the following paragraph, a "Servicer") is permitted to utilize one
or more Subcontractors to perform certain of its obligations hereunder. Such
Servicer shall promptly upon request provide to the Depositor a written
description (in form and substance satisfactory to the Depositor) of the role
and function of each Subcontractor that is a Servicing Function Participant
(pursuant to Item 1108(a)(2) of Regulation AB) utilized by such Servicer,
specifying (i) the identity of each Subcontractor and (ii) which elements of the
Servicing Criteria will be addressed in assessments of compliance provided by
each Subcontractor. Each Servicer shall cause (or, in the case of a
Subcontractor determined to be a Servicing Function Participant used by any
Sub-Servicer listed on Exhibit K or any Sub-Servicer appointed pursuant to
Article VII, and to the extent that the Master Servicer, the Special Servicer or
the Trustee is required to enforce this sentence, use commercial reasonable
efforts to cause) any Subcontractor determined to be a Servicing Function
Participant used by such Servicer for the benefit of the Depositor to comply
with the provisions of Section 11.10 and Section 11.11 of this Agreement to the
same extent as if such Subcontractor were such Servicer. Such Servicer shall be
responsible for obtaining (but as to Sub-Servicers on Exhibit K or any other
Sub-Servicers appointed pursuant to Article VII that the Master Servicer must
retain, the Master Servicer shall only be responsible for using commercially
reasonable efforts to obtain) from each such Subcontractor and delivering to the
applicable Persons any assessment of compliance report and related accountant's
attestation required to be delivered by such Subcontractor under Section 11.10
and Section 11.11, in each case, as and when required to be delivered.
(c) For so long as the Trust is subject to the reporting
requirements of the Exchange Act, notwithstanding the foregoing, if a Servicer
engages a Subcontractor in connection with the performance of any of its duties
under this Agreement, such Servicer shall be responsible for determining whether
such Subcontractor is a "servicer" within the meaning of Item 1101 of Regulation
AB and whether such Subcontractor meets the criteria in Item 1108(a)(2)(i), (ii)
or (iii) of Regulation AB. If a Servicer determines, pursuant to the preceding
sentence, that such Subcontractor is a "servicer" within the meaning of Item
1101 of Regulation AB and meets the criteria in Item 1108(a)(2)(i), (ii) or
(iii) of Regulation AB, then such Subcontractor shall be deemed to be a
Sub-Servicer for purposes of this Agreement, and the engagement of such
Sub-Servicer shall not be effective unless and until notice is given to the
Depositor and the Trustee of any such Sub-Servicer and Sub-Servicing Agreement.
No Sub-Servicing Agreement (other than such agreements set forth on Exhibit T
hereto) shall be effective until ten (10) Business Days after such written
notice is received by the Depositor and the Trustee. Such notice shall contain
all information reasonably necessary to enable the Trustee to accurately and
timely report the event under Item 6.02 of Form 8-K pursuant to Section 11.07
(if such reports under the Exchange Act are required to be filed under the
Exchange Act).
(d) For so long as the Trust is subject to the reporting
requirements of the Exchange Act, (in addition to any requirements contained in
Section 11.04) in connection with the succession to the Trustee as Trustee or
co-Trustee under this Agreement by any Person (i) into which the Trustee may be
merged or consolidated, (ii) which may be appointed as a co-Trustee or separate
Trustee pursuant to Section 8.10, or (iii) that is appointed as a successor
Trustee pursuant Section 8.08, the Trustee (with respect to the foregoing
clauses (i) and (ii)) or the successor Trustee (with respect to the foregoing
clause (iii)) shall provide to the Depositor, at least ten (10) Business Days
prior to the effective date of such succession or appointment (as long as such
disclosure prior to such effective date would not be violative of any applicable
law or confidentiality agreement, otherwise immediately following such effective
date, but in no event later than the time required pursuant to Section 11.07,
(x) written notice to the Depositor of such succession or appointment and (y) in
writing and in form and substance reasonably satisfactory to the Depositor, all
information requested by the Depositor so that it may comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to any Class of
Certificates.
Section 11.03 Filing Obligations. (a) The Master Servicer, the
Special Servicer and the Trustee shall reasonably cooperate with the Depositor
in connection with the satisfaction of the Trust's reporting requirements under
the Exchange Act. Pursuant to Sections 11.04, 11.05 and 11.07, the Trustee shall
prepare for execution by the Depositor any Forms 10-D, 10-K and 8-K required by
the Exchange Act, in order to permit the timely filing thereof, and the Trustee
shall file (via the Commission's Electronic Data Gathering and Retrieval System)
such Forms executed by the Depositor.
(b) In the event that the Trustee is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K required to
be filed by this Agreement because required disclosure information was either
not delivered to it or delivered to it after the delivery deadlines set forth in
this Agreement, the Trustee will promptly as soon as practicable, but in no
event later than twenty-four (24) hours after determination notify the
Depositor. In the case of Forms 10-D and 10-K, the Depositor and the Trustee
will thereupon cooperate to prepare and file a Form 12b-25 and a Form 10-D/A or
Form 10-K/A, as applicable, pursuant to Rule 12b-25 of the Exchange Act. In the
case of Form 8-K, the Trustee will, upon receipt of all required Form 8-K
Disclosure Information, include such disclosure information on the next
succeeding Form 10-D to be filed for the Trust. In the event that any previously
filed Form 8-K or Form 10-K needs to be amended, the Trustee will notify the
Depositor, and such other parties as needed and the parties hereto will
cooperate with the Trustee to prepare any necessary Form 8-K/A or Form 10-K/A.
In the event that any previously filed Form 10-D needs to be amended, the
Trustee shall notify the Depositor, and such other parties as needed, and the
parties hereto shall cooperate to prepare any necessary Form 10-D/A. Any Form
15, Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K shall be
signed by an officer of the Depositor. The parties to this Agreement acknowledge
that the performance by the Trustee of its duties under this Section 11.03
related to the timely preparation and filing of Form 15, a Form 12b-25 or any
amendment to Form 8-K, Form 10-D or Form 10-K is contingent upon such parties
observing all applicable deadlines in the performance of their duties under
Sections 11.03, 11.04, 11.05, 11.06, 11.07, 11.08, 11.09, 11.10 and 11.11.
Neither the Depositor nor the Trustee shall have any responsibility to notify
the Master Servicer, the Special Servicer or any other applicable party of such
party's failure to observe the applicable deadlines in the performance of its
duties under Sections 11.03, 11.04, 11.05, 11.06, 11.07, 11.08, 11.09, 11.10 and
11.11 (or the beginning of any grace period under such Sections, as applicable),
prior to such failure becoming an Event of Default pursuant to Section
7.01(a)(xii). Further, the Trustee shall have no liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare, arrange for execution and/or timely file any such Form 15, Form 12b-25
or any amendments to Form 8-K, Form 10-D or Form 10-K, where such failure
results from the Trustee's inability or failure to receive, on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or file such Form 15, Form 12b-25 or any amendments to Forms 8-K, Form
10-D or Form 10-K, not resulting from its own negligence, bad faith or willful
misconduct.
Section 11.04 Form 10-D Filings. (a) Within fifteen (15) days after
each Distribution Date (subject to permitted extensions under the Exchange Act),
the Trustee shall prepare and file on behalf of the Trust any Form 10-D required
by the Exchange Act, in form and substance as required by the Exchange Act. A
duly authorized representative of the Depositor shall sign each Form 10-D filed
on behalf of the Trust. The Trustee shall file each Form 10-D with a copy of the
related Statement to Certificateholders attached thereto. Any disclosure in
addition to the Statement to Certificateholders that is required to be included
on Form 10-D ("Additional Form 10-D Disclosure") shall, pursuant to the
following paragraph, be reported by the parties set forth on Exhibit P to the
Depositor and the Trustee and approved by the Depositor, and the Trustee will
have no duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-D Disclosure absent such reporting, direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, within five (5) calendar days after the related Distribution
Date, (i) certain parties to this Agreement, as set forth on Exhibit P hereto,
shall be required to provide to the Trustee and the Depositor, to the extent a
Servicing Officer or Responsible Officer thereof has knowledge thereof (other
than Item 1117 of Regulation AB as to such party which shall be reported if
actually known by any Servicing Officer or Responsible Officer, as the case may
be or any lawyer in the in-house legal department of such party) in
XXXXX-compatible format (to the extent available to such party in such format),
or in such other format as otherwise agreed upon by the Trustee and the
Depositor and such parties, the form and substance of any Additional Form 10-D
Disclosure described on Exhibit P applicable to such party, (ii) the parties
listed on Exhibit P hereto shall include with such Additional Form 10-D
Disclosure applicable to such party and shall use its commercially reasonable
efforts to cause each Sub-Servicer or Subcontractor of such party to the extent
required under Regulation AB and if such Sub-Servicer or Subcontractor is an
Additional Servicer or Servicing Function Participant to provide (and, if
received, include), an Additional Disclosure Notification in the form attached
hereto as Exhibit S and (iii) the Depositor shall approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-D Disclosure on Form 10-D. The Trustee has no duty under this Agreement
to monitor or enforce the performance by the parties listed on Exhibit P of
their duties under this paragraph or proactively solicit or procure from such
parties any Additional Form 10-D Disclosure information. The Depositor will be
responsible for any reasonable fees assessed or expenses incurred by the Trustee
in connection with including any Additional Form 10-D Disclosure on Form 10-D
pursuant to this paragraph.
(b) After preparing the Form 10-D, the Trustee shall forward
electronically a copy of the Form 10-D to the Depositor for review. Within two
(2) calendar days after receipt of such copy, but no later than the 12th
calendar day after the related Distribution Date or, if the 12th calendar day
after the related Distribution Date is not a Business Day, the immediately
preceding Business Day, the Depositor shall notify the Trustee in writing (which
may be furnished electronically) of any changes to or approval of such Form
10-D. Within two (2) calendar days after receipt of such copy, but no later than
two (2) calendar days prior to the 15th calendar day after the related
Distribution Date, an officer of the Depositor shall sign the Form 10-D and
return an electronic or fax copy of such signed Form 10-D (with an original
executed hard copy to follow by overnight mail) to the Trustee. If a Form 10-D
cannot be filed on time or if a previously filed Form 10-D needs to be amended,
the Trustee will follow the procedures set forth in Section 11.03(b). Promptly
after filing with the Commission, the Trustee will make available on its
internet website a final executed copy of each Form 10-D prepared and filed by
the Trustee. The signing party at the Depositor can be contacted at Attention:
Xxxxx Xxxxxx or Xxxxxx Xxxxxxxx, CWCapital LLC, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, telecopy number: 000-000-0000. The parties to this
Agreement acknowledge that the performance by the Trustee of its duties under
this Section 11.04 related to the timely preparation and filing of Form 10-D is
contingent upon such parties observing all applicable deadlines in the
performance of their duties under this Section 11.04. The Trustee shall have no
liability for any loss, expense, damage, or claim arising out of or with respect
to any failure to properly prepare, arrange for execution and/or timely file
such Form 10-D, where such failure results from the Trustee's inability or
failure to receive, on a timely basis, any information from any party to this
Agreement needed to prepare, arrange for execution or file such Form 10-D, not
resulting from its own negligence, bad faith or willful misconduct.
Form 10-D requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
instructs the Trustee, with respect to each Form 10-D, to check "yes" for each
item unless the Trustee has received prior written notice (which may be
furnished electronically) from the Depositor that the answer should be "no" for
an item which notice shall be delivered to the Trustee no later than the 5th
calendar day after the related Distribution Date. The Trustee shall be entitled
to rely on such representations in preparing, executing and/or filing any Form
10-D.
Section 11.05 Form 10-K Filings. (a) Within ninety (90) days after
the end of each fiscal year of the Trust or such earlier date as may be required
by the Exchange Act (the "10-K Filing Deadline") (it being understood that the
fiscal year for the Trust ends on December 31st of each year), commencing in
March 2008, the Trustee shall prepare and file on behalf of the Trust a Form
10-K, in form and substance as required by the Exchange Act. Each such Form 10-K
shall include the following items, in each case to the extent they have been
delivered to the Trustee within the applicable time frames set forth in this
Agreement:
(i) an annual compliance statement for each Certifying Servicer and
each Additional Servicer engaged by each Certifying Servicer, as described
under Section 11.09,
(ii) (A) the annual reports on assessment of compliance with
Servicing Criteria for each Reporting Servicer, as described under Section
11.10, and
(B) if any such report on assessment of compliance with
Servicing Criteria described under Section 11.10 identifies any
material instance of noncompliance, disclosure identifying such
instance of noncompliance, or if such report on assessment of
compliance with Servicing Criteria described under Section 11.10 is
not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not
included,
(iii) (A) the registered public accounting firm attestation report
for each Reporting Servicer, as described under Section 11.11, and
(B) if any registered public accounting firm attestation
report described under Section 11.11 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm
attestation report is not included as an exhibit to such Form 10-K,
disclosure that such report is not included and an explanation why
such report is not included, and
(iv) a certification in the form attached hereto as Exhibit M, with
such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission (the "Xxxxxxxx-Xxxxx Certification"), which
shall, except as described below, be signed by the senior officer of the
Depositor in charge of securitization.
Any disclosure or information in addition to (i) through (iv) above
that is required to be included on Form 10-K ("Additional Form 10-K Disclosure")
shall, pursuant to the following paragraph, be reported by the parties set forth
on Exhibit Q to the Depositor and the Trustee and approved by the Depositor, and
the Trustee will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-K Disclosure, absent such reporting,
direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, no later than March 1, commencing in March 2008, (i) the
parties listed on Exhibit Q hereto shall be required to provide to the Trustee
and the Depositor, to the extent a Servicing Officer or a Responsible Officer,
as the case may be, thereof has actual knowledge (other than Item 1117 of
Regulation AB as to such party which shall be reported if actually known by any
Servicing Officer or Responsible Officer, as the case may be or any lawyer in
the in-house legal department of such party), in XXXXX-compatible format (to the
extent available to such party in such format) or in such other format as
otherwise agreed upon by the Trustee and the Depositor and such providing
parties, the form and substance of any Additional Form 10-K Disclosure described
on Exhibit Q applicable to such party, (ii) the parties listed on Exhibit Q
hereto shall include with such Additional Form 10-K Disclosure applicable to
such party and shall cause (or, in the case of a Sub-Servicer listed on Exhibit
K or a Sub-Servicer appointed pursuant to Article VII, use commercially
reasonable efforts to cause) each Sub-Servicer or Subcontractor of such party to
the extent required under Regulation AB and if such Sub-Servicer or
Subcontractor is an Additional Servicer or Servicing Function Participant to
provide (and if received, include), an Additional Disclosure Notification in the
form attached hereto as Exhibit S, and (iii) the Depositor will approve, as to
form and substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-K Disclosure on Form 10-K. The Trustee has no duty under this
Agreement to monitor or enforce the performance by the parties listed on Exhibit
Q of their duties under this paragraph or proactively solicit or procure from
such parties any Additional Form 10-K Disclosure information. The Depositor will
be responsible for any reasonable fees assessed and expenses incurred by the
Trustee in connection with including any Additional Form 10-K Disclosure on Form
10-K pursuant to this paragraph.
After preparing the Form 10-K, the Trustee shall forward
electronically a copy of the Form 10-K to the Depositor for review no later than
six (6) Business Days prior to the 10-K Filing Deadline. Within three (3)
Business Days after receipt of such copy, but no later than March 25th, the
Depositor shall notify the Trustee in writing (which may be furnished
electronically) of any changes or approval to such Form 10-K. No later than 5:00
p.m. (New York time) on the fourth Business Day prior to the 10-K Filing
Deadline, a senior officer of the Depositor in charge of securitization shall
sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K
(with an original executed hard copy to follow by overnight mail) to the
Trustee. If a Form 10-K cannot be filed on time or if a previously filed Form
10-K needs to be amended, the Trustee will follow the procedures set forth in
Section 11.03(b). Promptly after filing with the Commission, the Trustee will
make available on its internet website a final executed copy of each Form 10-K
prepared and filed by the Trustee. The signing party at the Depositor can be
contacted at Attention: Xxxxx Xxxxxx or Xxxxxx Xxxxxxxx, CWCapital LLC, 0000
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: 000-000-0000.
The parties to this Agreement acknowledge that the performance by the Trustee of
its duties under this Section 11.05 related to the timely preparation and filing
of Form 10-K is contingent upon the parties to this Agreement (and any
Additional Servicer or Servicing Function Participant engaged or utilized, as
applicable, by any such parties) observing all applicable deadlines in the
performance of their duties under this Section 11.05. The Trustee shall have no
liability for any loss, expense, damage, claim arising out of or with respect to
any failure to properly prepare, arrange for execution and/or timely file such
Form 10-K, where such failure results from the Trustee's inability or failure or
receive, on a timely basis, any information from the parties to this Agreement
(or any Sub-Servicer or Servicing Function Participant engaged by any such
parties) needed to prepare, arrange for execution or file such Form 10-K, not
resulting from its own negligence, bad faith or willful misconduct.
Form 10-K requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
instructs the Trustee, with respect to each Form 10-K, to check "yes" for each
item unless the Trustee has received prior written notice (which may be
furnished electronically) from the Depositor that the answer should be "no" for
an item which notice shall be delivered to the Trustee no later than 5:00 p.m.
(New York City time) on the 15th calendar day prior to the 10-K Filing Deadline.
The Trustee shall be entitled to rely on such representations in preparing,
executing and/or filing any Form 10-K.
Section 11.06 Xxxxxxxx-Xxxxx Certification. Each Form 10-K shall
include a Xxxxxxxx-Xxxxx Certification in the form attached as Exhibit M
required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act. The
Trustee, the Master Servicer and the Special Servicer shall, and each such party
shall cause (or, in the case of a Servicing Function Participant or Additional
Servicer that is a Sub-Servicer listed on Exhibit K or a Sub-Servicer appointed
pursuant to Article VII, use commercially reasonable efforts to cause) each
Servicing Function Participant and Additional Servicer, in each case, with which
it has entered into a servicing relationship with respect to the Mortgage Loans,
by March 1 (subject to a grace period through March 15) of each year commencing
in March 2008 to provide to the Person who signs the Xxxxxxxx-Xxxxx
Certification (the "Certifying Person") a certification in the form attached
hereto as Exhibit N-1, N-2 or N-3, as applicable (the "Performance
Certification"), on which the Certifying Person, the entity for which the
Certifying Person acts as an officer, and such entity's officers, directors and
Affiliates (collectively with the Certifying Person, "Certification Parties")
can reasonably rely. In addition, in the event that any Serviced Companion Loan
is deposited into a commercial mortgage securitization (an "Other
Securitization"), each Reporting Servicer shall provide to the Person who signs
the Sarbanes Oxley back-up certification with respect to an Other Securitization
a certification (which shall address the matters contained in the Xxxxxxxx-Xxxxx
Certification, but solely with respect to the related Serviced Companion Loan)
on which such Person, the entity for which the Person acts as an officer (if the
Person is an individual), and such entity's officers, directors and Affiliates
can reasonably rely. The senior officer in charge of securitization for the
Depositor shall serve as the Certifying Person on behalf of the Trust and may be
contacted at Attention: Xxxxx Xxxxxx or Xxxxxx Xxxxxxxx, CWCapital LLC, 0000
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: 000-000-0000.
In the event any Reporting Servicer is terminated or resigns pursuant to the
terms of this Agreement or any applicable sub-servicing agreement or primary
servicing agreement, as the case may be, such Reporting Servicer shall provide a
certification to the Certifying Person pursuant to this Section 11.06 with
respect to the period of time it was subject to this Agreement or the applicable
sub-servicing or primary servicing agreement, as the case may be.
Each Performance Certification shall include a reasonable reliance
provision enabling the Certification Parties to rely upon each (i) annual
compliance statement provided pursuant to Section 11.09, (ii) annual report on
assessment of compliance with servicing criteria provided pursuant to Section
11.10 and (iii) registered public accounting firm attestation report provided
pursuant to Section 11.11.
Notwithstanding the foregoing, without limiting the requirements of
the Exchange Act, nothing in this Section shall require any Reporting Servicer
(i) to certify or verify the accurateness or completeness of any information
provided to such Reporting Servicer by third parties (other than a Sub-Servicer,
Additional Servicer or any other third party retained by it that is not a
Sub-Servicer listed on Exhibit K or a Sub-Servicer appointed pursuant to Article
VII), (ii) to certify information other than to such Reporting Servicer's
knowledge and in accordance with such Reporting Servicer's responsibilities
hereunder or (iii) with respect to completeness of information and reports, to
certify anything other than that all fields of information called for in written
reports prepared by such Reporting Servicer have been completed except as they
have been left blank on their face.
Section 11.07 Form 8-K Filings. Within four (4) Business Days after
the occurrence of an event requiring disclosure on Form 8-K (each such event, a
"Reportable Event"), and if requested by the Depositor and to the extent it
receives the Form 8-K Disclosure Information described below, the Trustee shall
prepare and file on behalf of the Trust any Form 8-K, as required by the
Exchange Act, provided that the Depositor shall file the initial Form 8-K in
connection with the issuance of the Certificates. Any disclosure or information
related to a Reportable Event or that is otherwise required to be included on
Form 8-K (other than the initial Form 8-K) ("Form 8-K Disclosure Information")
shall, pursuant to the following paragraph be reported by the parties set forth
on Exhibit R to the Depositor and the Trustee and approved by the Depositor, and
the Trustee will have no duty or liability for any failure hereunder to
determine or prepare any Form 8-K Disclosure Information or any Form 8-K, absent
such reporting, direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act reporting requirements, to the extent a Servicing Officer or
Responsible Officer thereof has actual knowledge of such event, (other than Item
1117 of Regulation AB as to such party which shall be reported if actually known
by any Servicing Officer or Responsible Officer, as the case may be or any
lawyer in the in-house legal department of such party), no later than noon (New
York City time) on the 2nd Business Day after the occurrence of a Reportable
Event (i) the parties set forth on Exhibit R hereto shall be required to provide
to the Depositor and the Trustee, to the extent known by such applicable
parties, in XXXXX-compatible format (to the extent available to such party in
such format) or in such other format as otherwise agreed upon by the Depositor,
the Trustee and such providing parties, any Form 8-K Disclosure Information
described on Exhibit R applicable to such party, (ii) the parties listed on
Exhibit R hereto shall include with such Additional Form 8-K Disclosure
applicable to such party and shall use its commercially reasonable efforts to
cause each Sub-Servicer or Subcontractor of such party to the extent required
under Regulation AB and if such Sub-Servicer or Subcontractor is an Additional
Servicer or Servicing Function Participant to provide (and if received,
include), an Additional Disclosure Notification in the form attached hereto as
Exhibit S, and (iii) the Depositor will approve, as to form and substance, or
disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information on Form 8-K. The Trustee has no duty under this Agreement to monitor
or enforce the performance by the parties listed on Exhibit R of their duties
under this paragraph or proactively solicit or procure from such parties any
Form 8-K Disclosure Information. The Depositor will be responsible for any
reasonable fees assessed or expenses incurred by the Trustee in connection with
including any Form 8-K Disclosure Information on Form 8-K pursuant to this
paragraph.
After preparing the Form 8-K, the Trustee shall forward
electronically a copy of the Form 8-K to the Depositor for review no later than
noon (New York City time) on the 3rd Business Day after the Reportable Event
(but in no event earlier than 24 hours after having received approved Form 8-K
Disclosure Information pursuant to the immediately preceding paragraph).
Promptly, but no later than the close of business on the third Business Day
after the Reportable Event, the Depositor shall notify the Trustee in writing
(which may be furnished electronically) of any changes to or approval of such
Form 8-K. No later than noon on the 4th Business Day after the Reportable Event,
a duly authorized representative of the Depositor shall sign the Form 8-K and
return an electronic or fax copy of such signed Form 8-K (with an original
executed hard copy to follow by overnight mail) to the Trustee. If a Form 8-K
cannot be filed on time or if a previously filed Form 8-K needs to be amended,
the Trustee will follow the procedures set forth in Section 11.03(b). Promptly
after filing with the Commission, the Trustee will, make available on its
internet website a final executed copy of each Form 8-K, to the extent such Form
8-K has been prepared and filed by the Trustee. The signing party at the
Depositor can be contacted at Attention: Xxxxx Xxxxxx or Xxxxxx Xxxxxxxx,
CWCapital LLC, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy
number: 000-000-0000. The parties to this Agreement acknowledge that the
performance by the Trustee of its duties under this Section 11.07 related to the
timely preparation and filing of Form 8-K is contingent upon such parties
observing all applicable deadlines in the performance of their duties under this
Section 11.07. The Trustee shall have no liability for any loss, expense,
damage, claim arising out of or with respect to any failure to properly prepare
and/or timely file such Form 8-K, where such failure results from the Trustee's
inability or failure or receive, on a timely basis, any information from the
parties to this Agreement needed to prepare, arrange for execution or file such
Form 8-K, not resulting from its own negligence, bad faith or willful
misconduct.
Section 11.08 Form 15 Filing. On or before January 30 of the first
year in which the Trustee is able to do so under applicable law, the Trustee
shall prepare and file a Form 15 Suspension and Notification relating to the
automatic suspension of reporting in respect of the Trust under the Exchange
Act. If at the beginning of any fiscal year for the Trust occurring after the
filing of a Form 15 Suspension Notification, if the number of Certificateholders
of record exceeds the number set forth in Section 15(d) of the Exchange Act or
the regulations promulgated pursuant thereto which would cause the Trust to
again become subject to the reporting requirements of the Exchange Act, the
Trustee shall recommence preparing and filing reports on Forms 10-K, 10-D and
8-K as required pursuant to Section 11.04, Section 11.05 and Section 11.07;
provided that if the Trustee recommences the preparing and filing of Exchange
Act reports, it may, as soon as permitted by the Exchange Act, file another Form
15 Suspension Notification.
Section 11.09 Annual Compliance Statements. The Master Servicer, the
Special Servicer and the Trustee shall, and each such party shall cause (or, in
the case of a Primary Servicer, an Additional Servicer or Servicing Function
Participant that is a Sub-Servicer listed on Exhibit K or a Sub-Servicer
appointed pursuant to Article VII, use commercially reasonable efforts to cause)
the Primary Servicer and each Additional Servicer and Servicing Function
Participant, in each case, with which it has entered into a servicing
relationship with respect to the Mortgage Loans (each of the Master Servicer,
the Special Servicer, the Primary Servicer and any Additional Servicer or
Servicing Function Participant, a "Certifying Servicer"), to deliver to the
Depositor and the Trustee on or before March 1 (subject to a grace period no
later than March 15) of each year commencing March 2008, an Officer's
Certificate stating, as to the signer thereof, that (A) a review of such
Certifying Servicer's activities during the preceding calendar year or portion
thereof and of such Certifying Servicer's performance under this Agreement, or
the applicable sub-servicing agreement or primary servicing agreement in the
case of an Additional Servicer, or a Servicing Function Participant or the
Primary Servicer, has been made under such officer's supervision and (B) to the
best of such officer's knowledge, based on such review, such Certifying Servicer
has fulfilled all its obligations under this Agreement in all material respects,
or the applicable sub-servicing agreement or primary servicing agreement in the
case of an Additional Servicer, and a Servicing Participant and the Primary
Servicer, in all material respects throughout such year or portion thereof, or,
if there has been a failure to fulfill any such obligation in any material
respect, specifying each such failure known to such officer and the nature and
status thereof. The Master Servicer and the Special Servicer shall, and each
such party shall cause (or, in the case of a Primary Servicer, an Additional
Servicer or Servicing Function Participant that is a Sub-Servicer listed on
Exhibit K or a Sub-Servicer appointed pursuant to Article VII, use commercially
reasonable efforts to cause) the Primary Servicer and each Additional Servicer
and Servicing Function Participant, in each case, with which it has entered into
a servicing relationship with respect to the Mortgage Loans to, forward a copy
of each such statement to the Rating Agencies. Promptly after receipt of each
such Officer's Certificate, the Depositor may review each such Officer's
Certificate and, if applicable, consult with the Master Servicer or the Special
Servicer, as applicable, as to the nature of any failures by such Certifying
Servicer, with which the Master Servicer, the Special Servicer or the Trustee,
as applicable, has entered into a servicing relationship with respect to the
Mortgage Loans in the fulfillment of any Certifying Servicer's obligations
hereunder or under the applicable sub-servicing or primary servicing agreement.
The obligations of each Certifying Servicer under this Section apply to each
Certifying Servicer that serviced a Mortgage Loan during the applicable period,
whether or not the Certifying Servicer is acting in such capacity at the time
such Officer's Certificate is required to be delivered. None of the Certifying
Servicers shall be required to deliver, or to endeavor to cause the delivery of,
any such Officer's Certificate until April 15, in any given year so long as it
has received written confirmation from the Depositor that a Form 10-K is not
required to be filed in respect of the Trust from the preceding calendar year.
No Reporting Servicer shall be required to cause the delivery of any such
assessments until April 15 in any given year so long as it has received written
confirmation from the Depositor that a report on Form 10-K is not required to be
filed in respect of the Trust for the preceding calendar year.
In the event the Master Servicer, the Special Servicer or the
Trustee is terminated or resigns pursuant to the terms of this Agreement, such
party shall provide, and the Master Servicer shall use its commercially
reasonable efforts to cause any Additional Servicer that resigns or is
terminated under any applicable servicing agreement to provide, an annual
statement of compliance pursuant to this Section 11.09 with respect to the
period of time that the Master Servicer, the Special Servicer or the Trustee was
subject to this Agreement or the period of time that the Additional Servicer was
subject to such other servicing agreement.
Section 11.10 Annual Reports on Assessment of Compliance with
Servicing Criteria. (a) On or before March 1 (subject to a grace period no later
than March 15) of each year commencing March 2008, the Master Servicer, the
Special Servicer and the Trustee, each at its own expense, shall furnish, and
each such party shall cause (or, in the case of a Primary Servicer, a Servicing
Function Participant or Additional Servicer that is a Sub-Servicer listed on
Exhibit K or a Sub-Servicer appointed pursuant to Article VII, use commercially
reasonable efforts to cause) the Primary Servicer and each Servicing Function
Participant and Additional Servicer, in each case, with which it has entered
into a servicing relationship with respect to the Mortgage Loans (each Master
Servicer, the Special Servicer, the Trustee, the Primary Servicer and any
Servicing Function Participant and Additional Servicer, as the case may be, a
"Reporting Servicer"), to furnish to the Trustee and the Depositor, a report on
an assessment of compliance with the Relevant Servicing Criteria that contains
(A) a statement by such Reporting Servicer of its responsibility for assessing
compliance with the Relevant Servicing Criteria, (B) a statement that such
Reporting Servicer used the Servicing Criteria to assess compliance with the
Relevant Servicing Criteria, (C) such Reporting Servicer's assessment of
compliance with the Relevant Servicing Criteria as of and for the period ending
the end of the fiscal year covered by the Form 10-K required to be filed
pursuant to Section 11.05, including, if there has been any material instance of
noncompliance with the Relevant Servicing Criteria, a discussion of each such
failure and the nature and status thereof, and (D) a statement that a registered
public accounting firm has issued an attestation report on such Reporting
Servicer's assessment of compliance with the Relevant Servicing Criteria as of
and for such period.
(b) On the Closing Date, the Master Servicer, the Special Servicer
and the Trustee each acknowledge and agree that Exhibit O sets forth the
Relevant Servicing Criteria for such party.
(c) No later than the end of each fiscal year for the Trust, the
Master Servicer and the Special Servicer shall notify the Trustee and the
Depositor as to the name of each Servicing Function Participant (pursuant to
Item 1108(a)(2) of Regulation AB) utilized by it, and the Trustee shall notify
the Depositor as to the name of each Servicing Function Participant utilized by
it, and each such notice will specify what specific Servicing Criteria will be
addressed in the report on assessment of compliance prepared by such Servicing
Function Participant. When the Master Servicer, the Special Servicer and the
Trustee submit their assessments pursuant to Section 11.10(a), the Master
Servicer, the Special Servicer and the Trustee, as applicable, shall also at
such time include (or, in the case of a Servicing Function Participant that is a
Sub-Servicer listed on Exhibit K or a Sub-Servicer appointed pursuant to Article
VII, shall also at such time use commercially reasonable efforts to include) the
assessment (and related attestation pursuant to Section 11.11) of each Servicing
Function Participant engaged by it.
(d) Promptly after receipt of each such report on assessment of
compliance, (i) the Depositor shall have the right to review each such report
and, if applicable, consult with the Master Servicer, the Special Servicer, the
Trustee and any Servicing Function Participant as to the nature of any material
instance of noncompliance with the Relevant Servicing Criteria by the applicable
Master Servicer, the Special Servicer, the Trustee or any Servicing Function
Participant, and (ii) the Trustee shall confirm that the assessments, taken
individually address the Relevant Servicing Criteria for each party as set forth
on Exhibit O and notify the Depositor of any exceptions. None of the Master
Servicer, the Special Servicer, the Trustee or any Servicing Function
Participant shall be required to deliver, or to endeavor to cause the delivery
of, any such reports until April 15 in any given year so long as it has received
written confirmation from the Depositor that a Form 10-K is not required to be
filed in respect of the Trust for the preceding calendar year.
(e) In the event the Master Servicer, the Special Servicer or the
Trustee is terminated or resigns pursuant to the terms of this Agreement, such
party shall provide, and each such party shall cause (or, in the case of a
Servicing Function Participant that is a Sub-Servicer listed on Exhibit K or a
Sub-Servicer appointed pursuant to Article VII, use commercially reasonable
efforts to cause) any Servicing Function Participant engaged by it to provide,
and the Master Servicer shall use its reasonable efforts to cause any Additional
Servicer that resigns or is terminated under any applicable servicing agreement
to provide, an annual assessment of compliance pursuant to this Section 11.10,
coupled with an attestation as required in Section 11.11 with respect to the
period of time that the Master Servicer, the Special Servicer or the Trustee was
subject to this Agreement or the period of time that the Additional Servicer was
subject to such other servicing agreement.
Section 11.11 Annual Independent Public Accountants' Servicing
Report. On or before March 1 (subject to a grace period through March 15) of
each year commencing in March 2008, the Master Servicer, the Special Servicer
and the Trustee, each at its own expense, shall, and each such party shall cause
(or, in the case of a Primary Servicer, a Servicing Function Participant or
Additional Servicer that is a Sub-Servicer listed on Exhibit K or a Sub-Servicer
appointed pursuant to Article VII, use commercially reasonable efforts to cause)
the Primary Servicer and each Servicing Function Participant and Additional
Servicer, in each case, with which it has entered into a servicing relationship
with respect to the Mortgage Loans to cause, a registered public accounting firm
(which may also render other services to the Master Servicer, the Special
Servicer, the Trustee, the Primary Servicer or the applicable Servicing Function
Participant or Additional Servicer, as the case may be) and that is a member of
the American Institute of Certified Public Accountants to furnish a report to
the Trustee and the Depositor, with a copy to the Rating Agencies (in the case
of the Master Servicer and the Special Servicer), to the effect that (i) it has
obtained a representation regarding certain matters from the management of such
Reporting Servicer, which includes an assertion that such Reporting Servicer has
complied with the Relevant Servicing Criteria and (ii) on the basis of an
examination conducted by such firm in accordance with standards for attestation
engagements issued or adopted by the PCAOB, it is expressing an opinion as to
whether such Reporting Servicer's compliance with the Relevant Servicing
Criteria was fairly stated in all material respects, or it is not expressing an
overall opinion regarding such Reporting Servicer's assessment of compliance
with the Relevant Servicing Criteria. In the event that an overall opinion
cannot be expressed, such registered public accounting firm shall state in such
report why it was unable to express such an opinion. Each such related
accountant's attestation report shall be made in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act. Such report must be available for general use and not contain
restricted use language.
Promptly after receipt of such report from the Master Servicer, the
Special Servicer, the Trustee, the Primary Servicer or any Servicing Function
Participant or Additional Servicer, (i) the Depositor may review the report and,
if applicable, consult with the Master Servicer, the Special Servicer or the
Trustee as to the nature of any defaults by the Master Servicer, the Special
Servicer, the Trustee, the Primary Servicer or any Servicing Function
Participant or Additional Servicer with which such party has entered into a
servicing relationship with respect to the Mortgage Loans, as the case may be,
in the fulfillment of any of the Master Servicer's, the Special Servicer's, the
Trustee's, the Primary Servicer's or the applicable Servicing Function
Participants' or Additional Servicer's obligations hereunder or under the
applicable sub-servicing or primary servicing agreement, and (ii) the Trustee
shall confirm that each accountants' attestation report submitted pursuant to
this Section relates to an assessment of compliance meeting the requirements of
Section 11.10 and notify the Depositor, the Master Servicer and the Special
Servicer of any exceptions.
Section 11.12 Indemnification. Each of the Master Servicer, the
Special Servicer and the Trustee shall indemnify and hold harmless each
Certification Party from and against any claims, losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments and
other costs and expenses incurred by such Certification Party arising out of an
actual breach by the Master Servicer, the Special Servicer or the Trustee, as
the case may be, of its obligations under this Article XI to deliver any reports
or other information required hereunder to the Trustee and/or the Depositor
after expiration of any applicable cure or grace periods; provided that this
indemnity shall not cover any claims, losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments and other
costs and expenses incurred by such Certification Party arising out of an actual
breach by CWCapital LLC, as Primary Servicer of its obligations under this
Article XI or the applicable Sub-Servicing Agreement to deliver any reports or
other information required hereunder to the Trustee and/or the Depositor after
expiration of any applicable cure or grace periods.
Each of the Master Servicer and the Special Servicer shall cause
(or, in the case of a Primary Servicer, an Additional Servicer or Servicing
Function Participant that is a Sub-Servicer listed on Exhibit K or a
Sub-Servicer appointed pursuant to Article VII, use commercially reasonable
efforts to cause) the Primary Servicer, each Additional Servicer and each
Servicing Function Participant, in each case, with which it has entered into a
servicing relationship with respect to the Mortgage Loans to indemnify and hold
harmless each Certification Party from and against any and all claims, losses,
damages, penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments and any other costs, fees and expenses incurred by such
Certification Party arising out of (i) a breach of its obligations to provide to
the Depositor and Trustee any of the annual compliance statements or annual
servicing criteria compliance reports or attestation reports pursuant to the
applicable sub-servicing or primary servicing agreement or (ii) any failure by a
Servicer (as defined in Section 11.02(b)) to identify a "servicer" pursuant to
Section 11.02(c).
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party, then the Master Servicer,
the Special Servicer, the Trustee, the Primary Servicer, the Additional Servicer
or other Servicing Function Participant (the "Performing Party") shall
contribute to the amount paid or payable to the Certification Party as a result
of the losses, claims, damages or liabilities of the Certification Party in such
proportion as is appropriate to reflect the relative fault of the Certification
Party on the one hand and the Performing Party on the other in connection with a
breach of the Performing Party's obligations pursuant to Sections 11.06, 11.09,
11.10 or 11.11 (or breach of its obligations under the applicable sub-servicing
or primary servicing agreement to provide any of the annual compliance
statements or annual servicing criteria compliance reports or attestation
reports) or the Performing party's negligence, bad faith or willful misconduct
in connection therewith. Each of the Master Servicer and Special Servicer shall
use commercially reasonable efforts to cause the Primary Servicer and each
Additional Servicer or Servicing Function Participant, in each case, with which
it has entered into a servicing relationship with respect to the Mortgage Loans
to agree to the foregoing indemnification and contribution obligations. This
Section 11.12 shall survive the termination of this Agreement or the earlier
resignation or removal of the Master Servicer or the Special Servicer.
Section 11.13 Amendments. This Article XI may be amended by the
parties hereto pursuant to Section 12.07 for purposes of complying with
Regulation AB and/or to conform to standards developed within the commercial
mortgage-backed securities market and the Xxxxxxxx-Xxxxx Act or for purposes of
designating the Certifying Person without any Opinions of Counsel, Officer's
Certificates, Rating Agency Confirmations or the consent of any
Certificateholder, notwithstanding anything to the contrary contained in this
Agreement; provided, however, that the reports (or substantially similar
reports) required to be delivered pursuant to Section 11.09, Section 11.10 and
Section 11.11 will continue to be required regardless of any amendment to this
Agreement.
Section 11.14 Regulation AB Notices. With respect to any notice
required to be delivered by the Trustee to the Depositor pursuant to this
Article XI, the Trustee may deliver such notice, notwithstanding any contrary
provision in Section 11.04, via facsimile to 000-000-0000, via email to
xxxxxxx@xxxxxxxxx.xxx and xxxxxxxxx@xxxxxxxxx.xxx and/or telephonically by
calling Xxxxx Xxxxxx or Xxxxxx Xxxxxxxx at 646-253-8800.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders or the Companion Loan Noteholders, (i) to cure any ambiguity,
(ii) to correct, modify or supplement any provision herein which may be
inconsistent with any other provision herein or with the description thereof in
the Prospectus or the Prospectus Supplement, (iii) to add any other provisions
with respect to matters or questions arising hereunder which shall not be
inconsistent with the existing provisions hereof, (iv) to relax or eliminate any
requirement hereunder imposed by the Grantor Trust Provisions or by the REMIC
Provisions if the Grantor Trust Provisions or the REMIC Provisions are amended
or clarified such that any such requirement may be relaxed or eliminated, (v) to
relax or eliminate any requirement imposed by the Securities Act or the rules
thereunder if the Securities Act or those rules are amended or clarified so as
to allow for the relaxation or elimination of that requirement; (vi) as
evidenced by an Opinion of Counsel delivered to the Master Servicer, the Special
Servicer and the Trustee, either (A) to comply with any requirements imposed by
the Code or any successor or amendatory statute or any temporary or final
regulation, revenue ruling, revenue procedure or other written official
announcement or interpretation relating to federal income tax laws or any such
proposed action which, if made effective, would apply retroactively to either
REMIC Pool or the Grantor Trust at least from the effective date of such
amendment, or (B) to avoid the occurrence of a prohibited transaction or to
reduce the incidence of any tax that would arise from any actions taken with
respect to the operation of either REMIC Pool or the Grantor Trust or to
facilitate administration of and reporting duties with respect to the Grantor
Trust in accordance with the Grantor Trust Provisions; or (vii) as provided in
Section 5.02(d)(iv) to modify, add to or eliminate any of the provisions of
Section 5.02(d)(i), (ii) or (iii); (viii), to otherwise modify or delete
existing provisions of this Agreement; provided that such amendment (other than
any amendment for any of the specific purposes described in clauses (i), (ii),
(iv), (v), (vi) and (vii) above) shall not adversely affect in any material
respect the interests of any Certificateholder or the Companion Loan
Noteholders, as evidenced by either an Opinion of Counsel delivered to the
Trustee and each other party hereto to such effect or, in the case of a Class of
Certificates or a Class of Companion Loan Securities to which a rating has been
assigned by one or more Rating Agencies, written confirmation from each
applicable Rating Agency to the effect that such amendment shall not result in
an Adverse Rating Event with respect to such Class of Certificates or Companion
Loan Securities; and provided, further, that such amendment shall not
significantly change the activities of the Trust; and provided, further, that no
amendment may be made that changes in any manner the obligations or rights of
any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement without the
consent of the affected Mortgage Loan Seller.
(b) This Agreement may also be amended from time to time by the
agreement of the parties hereto with the consent of the Holders of Certificates
entitled to at least 66-2/3% of the Voting Rights allocated to the affected
Classes for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on Mortgage Loans which are required to be
distributed on any Certificate, without the consent of the Holder of such
Certificate or which are required to be distributed to the Companion Loan
Noteholders, without the consent of the affected Companion Loan Noteholders,
(ii) adversely affect in any material respect the interests of the Holders of
any Class of Certificates or the interests of the Companion Loan Noteholders in
a manner other than as described in the immediately preceding clause (i) without
the consent of the Holders of all Certificates of such Class or the consent of
the affected Companion Loan Noteholders, as the case may be, (iii) significantly
change the activities of the Trust without the consent of the Holders of
Certificates entitled to 51% of all the Voting Rights (without regard to
Certificates held by the Depositor, any of the Depositor's Affiliates and/or
agents, any Mortgage Loan Seller, any Affiliate of a Mortgage Loan Seller and/or
agents thereof), (iv) modify the provisions of this Section 12.01, without the
consent of the Holders of all Certificates then outstanding and the consent of
the affected Companion Loan Noteholders, (v) modify the provisions of Section
3.21 or the Servicing Standard, without the consent of the Holders of all
Regular Interest Certificates then outstanding and the consent of the Companion
Loan Noteholders or (vi) modify the specified percentage of Voting Rights which
are required to be held by Certificateholders to consent or not to object to any
particular action pursuant to any provision of this Agreement without the
consent of the Holders of all Certificates then outstanding or modify the rights
of the Companion Loan Noteholders to consent or not object to any particular
action pursuant to any provision of this Agreement without the consent of all
affected Companion Loan Noteholders. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 12.01(b), Certificates registered in the name of any party hereto
or any Affiliate thereof shall be entitled to the same Voting Rights with
respect to matters described above as they would if any other Person held such
Certificates, so long as the subject amendment does not relate to increasing its
rights or reducing or limiting its obligations hereunder as a party to this
Agreement.
(c) Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
first have obtained or been furnished with an Opinion of Counsel (at the expense
of the party seeking such amendment) addressed to the Trustee and each other
party hereto, to the effect that (i) such amendment or the exercise of any power
granted to the Trustee, the Master Servicer or the Special Servicer in
accordance with such amendment will not result in the imposition of a tax on
either REMIC Pool pursuant to the REMIC Provisions, cause either REMIC Pool to
fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust within the meaning of the Grantor Trust Provisions at any time
that any Certificates are outstanding and (ii) such amendment complies in all
material respects with the provisions of this Section 12.01.
(d) Promptly after the execution of any such amendment, the Trustee
shall send electronically (and make available on its website) a copy thereof to
each Certificateholder and the Companion Loan Noteholders.
(e) It shall not be necessary for the consent of the
Certificateholders or the affected Companion Loan Noteholders under this Section
12.01 to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of the execution
thereof by the Certificateholders or the affected Companion Loan Noteholders
shall be subject to such reasonable regulations as the Trustee may prescribe.
(f) Each of the Master Servicer, the Special Servicer and the
Trustee may but shall not be obligated to enter into any amendment pursuant to
this Section that affects its rights, duties and immunities under this Agreement
or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 12.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer, the Special Servicer or the
Trustee requests any amendment of this Agreement that protects or is in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel required in connection therewith pursuant to Section 12.01(a)
or (c) shall be payable out of the Pool Custodial Account, in the case of the
Master Servicer and the Special Servicer, pursuant to Section 3.05(a), or out of
the Distribution Account, in the case of the Trustee, pursuant to Section
3.05(b).
Section 12.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund, but only upon
direction accompanied by an Opinion of Counsel (the cost of which may be paid
out of the Pool Custodial Account pursuant to Section 3.05(a) or, to the extent
that it benefits the Companion Loan Noteholders, out of the related Loan
Combination Custodial Account pursuant to Section 3.05(A)(a)) to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders and/or the Companion Loan Noteholders; provided, however,
that the Trustee shall have no obligation or responsibility to determine whether
any such recordation of this Agreement is required.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 12.03 Limitation on Rights of Certificateholders and
Companion Loan Noteholders.
(a) The death or incapacity of any Certificateholder or any
Companion Loan Noteholder shall not operate to terminate this Agreement or the
Trust Fund, nor entitle such Certificateholder's or such Companion Loan
Noteholder's legal representatives or heirs to claim an accounting or to take
any action or proceeding in any court for a partition or winding up of the Trust
Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) The Certificateholders and the Companion Loan Noteholders
(except as expressly provided for herein) shall not have any right to vote or in
any manner otherwise control the operation and management of the Trust Fund, or
the obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to constitute the
Certificateholders and/or the Companion Loan Noteholders from time to time as
partners or members of an association; nor shall any Certificateholder or
Companion Loan Noteholders be under any liability to any third party by reason
of any action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) Neither the Certificateholders nor the Companion Loan
Noteholders shall have any right by virtue of any provision of this Agreement to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Agreement or any Mortgage Loan, unless, with respect to any
suit, action or proceeding upon or under or with respect to this Agreement, such
Person previously shall have given to the Trustee a written notice of default
hereunder, and of the continuance thereof, as hereinbefore provided, and unless
also (except in the case of a default by the Trustee) the Holders of
Certificates entitled to at least 25% of the Voting Rights shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for sixty (60)
days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding. It
is understood and intended, and expressly covenanted by each Certificateholder
with every other Certificateholder and the Trustee, that no one or more Holders
of Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this section, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 12.04 Governing Law; Consent to Jurisdiction.
This Agreement will be governed by and construed in accordance with
the laws of the State of New York, applicable to agreements negotiated, made and
to be performed entirely in said state. To the fullest extent permitted under
applicable law, the Depositor, the Master Servicer, the Special Servicer and the
Trustee each hereby irrevocably (i) submits to the jurisdiction of any New York
State and federal courts sitting in New York City with respect to matters
arising out of or relating to this Agreement; (ii) agrees that all claims with
respect to such action or proceeding may be heard and determined in such New
York State or federal courts; (iii) waives the defense of an inconvenient forum;
and (iv) agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
Section 12.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given when delivered to: (i) in the case of the Depositor, CWCapital
Commercial Funding Corp., One Xxxxxxx River Place, 00 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Xxxxx Xxxxxxxxx, facsimile number: 000-000-0000,
with a copy to Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx, Esq.; (ii) in the case of the
Master Servicer, Wachovia Bank, National Association, NC 1075, 0000 Xxxxxxxx
Xxxxx, XXX 0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: CWCapital
Commercial Funding Corp., Commercial Mortgage Trust Series 2007-C3; facsimile
number: (000) 000-0000; (iii) in the case of the Special Servicer, CWCapital
Asset Management LLC, 000 00xx Xxxxxx XX, Xxxxx 0000, Xxxxxxxxxx, XX 00000,
Attention: Xxxxx Xxxxxxxxx (COBALT 2007-C3), facsimile number: (000) 000-0000,
with a copy to CWCapital Asset Management LLC, One Xxxxxxx River Place, 00
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxx Xxxx (COBALT
2007-C3), facsimile number: (000) 000-0000; (iv) in the case of the Trustee,
Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Services--CWCapital Commercial Funding Corp.,
Commercial Mortgage Trust Series 2007-C3, facsimile number: 000-000-0000; (v) in
the case of the Underwriters, (A) Wachovia Securities, to Wachovia Capital
Markets, LLC, 000 Xxxxx Xxxxxxx Xxxxxx, XX-0, One Wachovia Center NC0166,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 and (B) Citigroup Global Markets Inc., 000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; (vi) in the case of the
Rating Agencies, (A) Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, XX 00000,
facsimile number: (000) 000-0000, Attention: Commercial Mortgage Surveillance;
and (B) Standard & Poor's Ratings Services, a division of The McGraw Hill
Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, facsimile number: (212)
438-2662, Attention: Commercial Mortgage Surveillance Manager; (vii) in the case
of the Companion Loan Noteholders, to their addresses as set forth in or
notified to the parties hereto pursuant to, the related Co-Lender Agreement;
(viii) in the case of the initial Controlling Class Representative, Cadim TACH,
Inc., c/o CDP Capital Real Estate Advisors, CDP Capital Center, 0000
Xxxx-Xxxx-Xxxxxxxx Xxxxx, Xxxxx X-000, Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx,
Attention: Corporate Secretary (COBALT 2007-C3), Facsimile No.: (000) 000-0000,
with a copy to CWCapital Investments LLC, 0000 Xxxxx Xxxxxx, Xxxx Xxxx, Xxxxx
000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, Attention: Xxx Xxxxx (COBALT 2007-C3),
Facsimile No.: (000) 000-0000 and a copy to CWCapital Investments LLC, 000 00xx
Xxxxxx XX, Xxxxx 0000, Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxxxx Xxxxxxxxx
(COBALT 2007-C3), Facsimile No.: (000) 000-0000; (ix) in the case of the
Mortgage Loan Sellers, (A) CWCapital LLC, One Xxxxxxx River Place, 00 Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxx Xxxxxxxxx, facsimile
number: 000-000-0000; (B) Citigroup Global Markets Realty Corp., 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx, facsimile number:
(000) 000-0000; and (C) Wachovia Bank, National Association, 0000 Xxxxxxxx
Xxxxx, XXX0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: COBALT CMBS
Commercial Mortgage Trust 2007-C3, Commercial Mortgage Pass-Through
Certificates, Series 2007-C3; or, as to each such Person, such other address as
may hereafter be furnished by such Person to the parties hereto in writing. Any
communication required or permitted to be delivered to a Certificateholder shall
be deemed to have been duly given when mailed first class, postage prepaid, to
the address of such Holder as shown in the Certificate Register.
Section 12.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 12.07 Grant of a Security Interest.
The Depositor and the Trustee agree that it is their intent that the
conveyance of the Depositor's right, title and interest in and to the Mortgage
Loans pursuant to this Agreement shall constitute a sale and not a pledge of
security for a loan. If such conveyance is deemed to be a pledge of security for
a loan, however, the Depositor and the Trustee agree that it is their intent
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor and the Trustee also
intend and agree that, in such event, (i) in order to secure performance of the
Depositor's obligations hereunder and payment of the Certificates, the Depositor
shall be deemed to have granted, and does hereby grant, to the Trustee (in such
capacity) a first priority security interest in the Depositor's entire right,
title and interest in and to the assets constituting the Trust Fund, including
the Mortgage Loans, all principal and interest received or receivable with
respect to the Mortgage Loans (other than principal and interest payments due
and payable prior to the Cut-off Date and any Principal Prepayments received on
or prior to the Cut-off Date), all amounts held from time to time in the Pool
Custodial Account, the Loan Combination Custodial Account, the Distribution
Account, the Interest Reserve Account and the Excess Liquidation Proceeds
Account and, if established, the Pool REO Account or the Loan Combination REO
Account and any and all reinvestment earnings on such amounts, and all of the
Depositor's right, title and interest in and to the proceeds of any title,
hazard or other Insurance Policies related to such Mortgage Loans, and (ii) this
Agreement shall constitute a security agreement under applicable law.
Section 12.08 Xxxxxx Act.
Any provisions required to be contained in this Agreement by Section
126 of Article 4-A of the New York Real Property Law are hereby incorporated
herein, and such provisions shall be in addition to those conferred or imposed
by this Agreement; provided, however, that to the extent that such Section 126
shall not have any effect, and if said Section 126 should at any time be
repealed or cease to apply to this Agreement or be construed by judicial
decision to be inapplicable, said Section 126 shall cease to have any further
effect upon the provisions of this Agreement. In case of a conflict between the
provisions of this Agreement and any mandatory provisions of Article 4-A of the
New York Real Property Law, such mandatory provisions of said Article 4-A shall
prevail, provided that if said Article 4-A shall not apply to this Agreement,
should at any time be repealed, or cease to apply to this Agreement or be
construed by judicial decision to be inapplicable, such mandatory provisions of
such Article 4-A shall cease to have any further effect upon the provisions of
this Agreement.
Section 12.09 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders.
Each Underwriter shall be a third party beneficiary to this
Agreement solely with respect to its right to receive the reports, statements
and other information to which it is entitled hereunder, to preserve such
Underwriter's rights under Sub-Servicing Agreements as contemplated by Section
3.23(d) and, in the case of a Mortgage Loan Seller, to terminate the Trust Fund
pursuant to Section 9.01.
Each of the Sub-Servicers that is a party to a Sub-Servicing
Agreement in effect on the Closing Date (or being negotiated as of the Closing
Date and in effect within ninety (90) days thereafter) shall be a third party
beneficiary to obligations of a successor Master Servicer under Section 3.23,
provided that the sole remedy for any claim by a Sub-Servicer as a third party
beneficiary pursuant to this Section 12.09 shall be against a successor Master
Servicer solely in its corporate capacity and no Sub-Servicer shall have any
rights or claims against the Trust Fund or any party hereto (other than a
successor Master Servicer in its corporate capacity as set forth in this Section
12.09) as a result of any rights conferred on such Sub-Servicer as a third party
beneficiary pursuant to this Section 12.09.
The Companion Loan Noteholders and any designees thereof acting on
behalf of or exercising the rights of the Companion Loan Noteholders shall be
third-party beneficiaries to this Agreement with respect to their rights as
specifically provided for herein.
Any Subsequent Master Servicer and Subsequent Trustee shall be a
third party beneficiary to this Agreement solely with respect to the
recoverability of any back-up P&I Advances pursuant to Section 3.05A, and to the
extent required under the related Co-Lender Agreement.
Each of the Master Servicer and the Special Servicer acknowledges
that upon the securitization of a Serviced Pari Passu Companion Loan, the
Subsequent Trustee will be the owner of such Mortgage Note and that, pursuant to
the Subsequent PSA, the Subsequent Master Servicer will be entitled to enforce
the rights of the Subsequent Trustee with respect to such Loan under the related
Co-Lender Agreement and this Agreement.
This Agreement may not be amended in any manner that would adversely
affect the rights of any such third party beneficiary without its consent. No
other Person, including any Mortgagor, shall be entitled to any benefit or
equitable right, remedy or claim under this Agreement.
Section 12.10 Article and Section Headings.
The Article and Section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 12.11 Notices to Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Master Servicer or the
Special Servicer;
(iv) the repurchase of Mortgage Loans by the applicable Mortgage
Loan Seller pursuant to Section 2.03;
(v) any change in the location of the Distribution Account, the
Interest Reserve Account or the Excess Liquidation Proceeds Account;
(vi) the final payment to any Class of Certificateholders; and
(vii) any sale or disposition of any Mortgage Loan or REO Property.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee; and
(ii) any change in the location of any Custodial Account.
(c) The Special Servicer shall furnish each Rating Agency with
respect to a Specially Serviced Mortgage Loan such information as the Rating
Agency shall reasonably request and which the Special Servicer can reasonably
provide in accordance with applicable law, with copies to the Trustee.
(d) To the extent applicable, each of the Master Servicer and the
Special Servicer shall promptly furnish to each Rating Agency copies of:
(i) each of its annual statements as to compliance described in
Section 11.09 and Section 11.10;
(ii) each of its annual independent public accountants' servicing
reports described in Section 11.11; and
(iii) any Officer's Certificate delivered by it to the Trustee
pursuant to Section 3.12(d) or 4.03(c).
(e) The Trustee shall (i) make available to each Rating Agency, upon
reasonable notice, the items described in Section 8.14(b) and (ii) promptly
deliver to each Rating Agency a copy of any notices given pursuant to Section
7.03(a) or Section 7.03(b).
(f) The Trustee shall promptly deliver to each Rating Agency a copy
of each of the statements and reports described in Section 4.02(a) that is
prepared by it.
(g) Each of the Trustee, the Master Servicer and the Special
Servicer shall provide to each Rating Agency such other information with respect
to the Mortgage Loans and the Certificates, to the extent such party possesses
such information, as such Rating Agency shall reasonably request.
Section 12.12 Global Opinions.
Notwithstanding anything herein to the contrary, where any party
hereto is required or permitted to rely upon an Opinion of Counsel with respect
to any particular matter, such Opinion of Counsel need not specifically
reference such particular matter, but rather such Opinion of Counsel may address
general matters of law in respect of nonspecific circumstances which clearly
encompass the facts of such particular matter (any such Opinion of Counsel, a
"Global Opinion"); provided that no Global Opinion may be relied upon if it is
more than twelve (12) months old or if the subject party has reason to believe
that such Global Opinion no longer expresses a correct legal opinion.
Section 12.13 Complete Agreement.
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 12.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
CWCAPITAL COMMERCIAL FUNDING
CORP.,
Depositor
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Managing Director
WACHOVIA BANK, NATIONAL
ASSOCIATION,
Master Servicer
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
CWCAPITAL ASSET MANAGEMENT LLC,
Special Servicer
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
XXXXX FARGO BANK, N.A.,
Trustee
By: /s/ Xxx Xxxxxxxxx
-----------------------------------
Name: Xxx Xxxxxxxxx
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 16th day of August, 2007, before me, a notary public in and
for said State, personally appeared Xxxxxx Xxxxxxxx, known to me to be a Senior
Managing Director of CWCapital Commercial Funding Corp, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxx
-------------
Notary Public
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 8th day of August, 2007, before me, a notary public in and
for said State, personally appeared Xxxxxx X. Xxxxxxxxxx, known to me to be a
Vice President of Wachovia Bank, National Association, one of the entities that
executed the within instrument, and also known to me to be the persons who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxx X. Xxxxxx
------------------
Notary Public
XXXXX XX XXXXXXXX XX XXXXXXXX )
) ss.:
COUNTY OF DISTRICT OF COLUMBIA )
On the 10th day of August, 2007, before me, a notary public in and
for said State, personally appeared Xxxxx X. Xxxxxxxxx, known to me to be a
Managing Director of CWCapital Asset Management LLC, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx X. Xxxxxx
--------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF KINGS )
On the 17th day of August, 2007, before me, a notary public in and
for said State, personally appeared Xxx Xxxxxxxxx, known to me to be a Vice
President of Xxxxx Fargo Bank, N.A., one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxxx
-------------------
Notary Public
SCHEDULE I
MORTGAGE LOAN SCHEDULE
COBALT CMBS COMMERCIAL MORTGAGE TRUST 2007-C3
PSA SCHEDULE I
Mortgage Loan
Number Property Name Address
----------------------------------------------------------------------------------------------------------------------------------
1 Xxxxxxx Xxxxx Xxxxx Xxxxx 000 Xxxxxxxxx Xxxxxx
2 Irvine EOP San Diego Portfolio Various
2.01 Nobel Xxxxxxxxx Xxxxx 0000 Xxxxx Xxxxx
0.00 Xxxxxx View Corporate Center 00000 Xxxx Xxxxx Xxx Xxxxx
2.03 Xxxx Xxxxx Xxxxxx Xxxxxxxx 0000 Xxxxxxxxx Xxxxx
2.04 Xxxxxxx Xxxx Xxxxxxxx 0000 Xx Xxxxx Xxxxxxx Drive
2.05 La Xxxxx Xxxxxxx Xxxxxxxx 0000 Xx Xxxxx Xxxxxxx Xxxxx
2.06 Bank of America Building 0000 Xx Xxxxx Xxxxxxx Xxxxx
2.07 Xxxxxxx'x Steak House 0000 Xx Xxxxx Xxxxxxx Xxxxx
3 2 Xxxxxx Xxxxxx 0 Xxxxxx Xxxxxx
4 90 Xxxx Street 00 Xxxx Xxxxxx
0 Xxxxxxxx Xxxxxx - Xxxxxxxxxx, XX 000 Xxxxx Xxxxx Xxxxx Xxxxxx
0 Xxxxxx at Broadlands 00000 Xxxxxxxxx Xxxxxxx
7 Tradewinds Hospitality Portfolio Various
7.01 Tradewinds Island Grand Resort 0000 Xxxx Xxxxxxxxx
7.02 Tradewinds Breckenridge Resort 0000 Xxxx Xxxxxxxxx
7.03 Tradewinds Sandpiper Resort 0000 Xxxx Xxxxxxxxx
8 Express Scripts Office Property 0000 Xxxxxxxxxx Xxxxx
9 Falcon Ridge Town Center Phase I Northeast Corner of Summit Road & X-00 Xxxxxxx
00 0000 Xxxxxxxx Xxxxxxxxx 0000 Xxxxxxxx Xxxxxxxxx
00 Xxxx Corporation Headquarters Building 901 West Walnut Hill Lane
12 Walgreens Portfolio Various
12.01 Walgreens - Florissant, MO 0000 Xxxxx Xxxxxxx 00
00.00 Xxxxxxxxx - Xxxxx, XX 0000 Xxxx Xxxxxx
12.03 Walgreens - Rogers, AR 0000 Xxxx Xxxxxx Xxxxxx
12.04 Walgreens - Albuquerque, NM 0000 Xxxxx Xxxxxxxxx XX
12.05 Walgreens - Mesa, AZ 1960 South Country Club
12.06 Walgreens - Xxxxxxxxx, XX 0000-0000 West Capitol Drive
12.07 Walgreens - Springdale, AR 0000 Xxxxx Xxxxxxxx
00.00 Xxxxxxxxx - Xxxxxxxx, XX 0000 Xxxxx Xxxxx Xxxxx Xxxxx
00.00 Xxxxxxxxx - Xxxxx Xxxxxx, XX 000 Xxxx Xxxxxxxxxxx Xxxx
00.00 Xxxxxxxxx - Xxxxxxx, XX 0000 Xxxx XxXxxxxx Xxxx
00.00 Xxxxxxxxx - Xxxxxxx, XX 000 Xxxxx 00xx Xxxxxx
00 Xxxxxxxx Xxxxxx - Xxxxxxxxxx, XX 000 Xxxxxxxx Xxxxxx
14 Alameda Media Center 0000 Xxxx Xxxxxxx Xxxxxx
00 Xxxxx Xxxxxxx Phase I 00-00 Xxxx Xxxxxx; 000 Xxxxx Xxxxxxx Xxxxx
00 Xxxxxxxx Xxxxxx - Xxxxxx Xxxx, XX 000 Xxxx 00xx Xxxxxx
17 0000 Xxxxxxxxx Xxxxxx & 000 Xxxx Xxxxxx 0000 Xxxxxxxxx Xxxxxx & 000 Xxxx Xxxxxx
18 Vinings Corner Apartments 2101 Paces Ferry Road
19 The Encino Courtyard 17401 Xxxxxxx Xxxxxxxxx
00 Xxxxxxx Xxxx 0000 Xxxx Xxxxx
00 Xxx Xxxxx Xxxxxxxx Xxxxxx 0000-0000 Xxx Xxxxxxxx & 0000 Xxxxx Xxxxx Xxxxxx
22 Hilton Garden Inn - College Park, GA 2301 Xxxxxxxx Xxxx
00 Chant Portfolio - Pool 2 Various
23.01 0000 Xxxxxxxxx Xxxxxx 0000 Xxxxxxxxx Xxxxxx
23.02 0000 Xxxxxxxxx Xxxxxx 0000 Xxxxxxxxx Xxxxxx
23.03 3900 Singer Boulevard 3900 Singer Boulevard
23.04 0000 Xxxxxxxxx Xxxxxx 0000 Xxxxxxxxx Xxxxxx
24 Lynnhaven North Shopping Center 0000-0000 Xxxxx Xxxx Xxxxx
25 Preferred Freezer - Philadelphia, PA 0000 Xxxxx 0xx Xxxxxx
00 Xxxxxxx Xxx - Xxxxxxxx, XX 000 Xxxx Xxx Xxxxxx
27 Semoran North Apartments 0000 Xxxxxxx Xxxxx Xxxxxx
28 The Xxxxx of North Bend 000-X Xxxxx xx Xxxxx Xxxx Xxxxx
29 Campus Club Student Housing Complex 0000 X.X. 00xx Xxxxxxxxx
30 Hilton Garden Inn - Frederick, MD 7226 Corporate Court
31 One Deerwood Center 00000 Xxxxxxxxx Xxxxxxx Xxxxx
00 Xxxxxxx Xxxxx Apartments 0000 Xxxxxxxxxx Xxxx
00 Xxxxxxxx Xxx - Xxxxxxxx, XX 000 Xxxx Xxx Xxxxxx
34 1111 & 0000 Xxxxxx Xxxxxx 1111 & 0000 Xxxxxx Xxxxxx
35 Xxxxxxx Technologies Buildings Portfolio Various
35.01 000 Xxxxxxxx Xxxxxxxxx 000 Xxxxxxxx Xxxxxxxxx
35.02 515 Xxxxx Xxxxx Court 515 Xxxxx Xxxxx Court
36 Joe's Kirkland 00000 000xx Xxxxx Xxxxxxxxx
37 Beaumont Medical Center 0000 Xxxxx Xxxxxx Xxxx
00 Xxxxxxxx - Xxxx Xxxxxxxx, XX 000 Xxxx Xxxxx Xxxxx
39 0000 Xxxxxxxxxx Xxxxxx, XX 0000 Xxxxxxxxxx Xxxxxx, XX
40 Xxxxxxxx Apartments 000 Xxxx Xxxxxx XX
41 Fox Chase Apartments 0000 Xxxxxxxxxxx Xxxx
42 Xxxxxxxx Reserve Apartments 0000 Xxxxxxx Xxxxxxxx Xxxxx
43 Greens Crossroads 000-000 Xxxxxx Xxxx
44 321 Xxxxxxxxx Center Drive 321 Xxxxxxxxx Center Drive
45 Shadowridge Apartments 0000 Xxxxxxx Xxxxxx
46 Illinois Student Housing Portfolio Various
46.01 000 Xxxx Xxxx Xxxxxx 000 Xxxx Xxxx Xxxxxx
46.02 000 Xxxx Xxxxxxx Xxxxxx 000 Xxxx Xxxxxxx Xxxxxx
46.03 000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
46.04 000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
46.05 000 Xxxx Xxxx Xxxxxx 000 Xxxx Xxxx Street
47 San Marin Apartments - Corpus Christi, TX 0000 Xxxxx Xxxxxxx Xxxxxx
48 The Crane Building 000 XX 00xx Xxxxxx
49 Dorado Heights Apartments 00000 Xxxxxxxxxx Xxxxxxxxx XX
50 Cherry Hill Theatres 0000 Xxxxx 00
00 Timberhill Shopping Center 0000-0000 Xxxxxxxxx Xxxxx Xxxxxxxxx
00 Xxxxxx Xxxxxx Xxxxx 000-000 Xxxxx Xxxx School Road
53 Days Inn - Broward, FL 0000 Xxxxx 00xx Xxxxxx
54 Tahiti Village Restaurant Building 7200 Las Vegas Boulevard South
55 GE Distribution Center 000 Xxxxxxxx Xxxxx
56 PRC Building 19500 South Xxxxx Xxxxxxx
00 Xxxxxxx Xxxxxx Xxxxx 0000 Xxxx Xxxxxx
58 Xxxxxx'x Mill 00000 Xxxx Xxxxxxx
00 Xxxxxxxxxx Xxxxxx Student Housing Complex 0000 XX 00xx Xxxxxxxxx
60 Microtel Airport Inn & Suites - Philadelphia, PA 8840 Tinicum Boulevard
61 Buschwood III 0000 Xxxxxxxxx Xxxx Xxxxx
62 Northmark II Office Building 10123 Alliance Road
00 Xxxxxxxx Xxxxxxxxx - Xxxxxxxx, XX 000 Xxxxxxxxxxx Xxx
64 Verizon Wireless I 0000 000xx Xxxxxx
65 Verizon Wireless II 0000 000xx Xxxxxx XX
66 Wind Hill Office Center 2315-2325 Xxxx Xxxxxx
00 Xxxxxxxxxx Xxxxxx Shopping Center Xxxx 00xx Xxxxxx xxx Xxxxx Xxxxxxxx Xxxxx
68 Staverton West 21441 Pacific Xxxxxxxxx
00 Xxxxxxx Xxxxxx Xxxxx 23920-23930 Westhemier Parkway
00 Xxxxxxxxxxxx Xxxxxxx & Xxxxxxxxxxxx Xxxxx 0000, 7706 & 0000 Xxxxxxxxxxxx Xxxx
71 Landmark Apartments 0000 Xxxxxx Xxxxxx Xxxx XX
72 TownePlace Suites - Fort Worth, TX 4200 International Plaza
73 1601 Precision Park Lane 1601 Precision Park Lane
74 Sweet Ovations Plant 00000 Xxxxx Xxxxxxxxx Xxxxxx
75 Fairfield Inn & Suites - Manassas, VA 6950 Nova Way
76 Ville Montee Apartments 0000 Xxxxxx Xxxx, 000 Xxxx Saginaw Highway
77 Xxxxxxx Town Center 2330 Xxxxxxx Home Road
78 Guam Medical Plaza 633 Governor Xxxxxx Xxxxxxx Xxxx
00 0000 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx
80 Air & Space Self Storage 00000 Xxx Xxxx
00 Xxxxxxxx Xxxxxx Xxxxxxx 00 Xxxx Xxxx Xxxxxx
00 Xxxxxxxxxx Xxxxx Apartments 000 Xxxx 00xx Xxxxxx
83 Jasper Medical Office Building 220 & 620 X. X. Xxxxx Drive
84 San Marin Apartments - El Paso, TX 1450 Xxxxxx Xxxxxx Drive
85 University Park 000 Xxxx Xxxxxx Xxxxxx
86 Tanglewood Apartments 0000 00xx Xxxxxx Xxxxx
87 0000 00xx Xxxxxx XX 0000 00xx Xxxxxx XX
88 Harbor Boulevard 00000-00 Xxxxxx Xxxxxxxxx
00 Xxxxxxxxx - Xxxxxxxx, XX 0000 Xxxxxxx Xxxxxx
90 The Hallmark Building 695 Eddy Street
91 Rite Aid - Bronx, NY 000 Xxxxx Xxxx Xxxxxx
92 Xxxxxxx Building 0000 Xxxxx Xxxx Xxxx
93 Xxxxxx Xxxxx 0000 XX 000xx Xxxxxx
00 Xxxxx Xxxxx Townhomes 0000 Xxxxx Xxxxx Xxxxx
95 The Northcrest Apartments 0000 XX Xxxxxxx Xxxxx
00 Xxxxxxxxx - Xxxxxxxxxxxxx, XX 3948 Route 281
97 SC4 Retail 00000 Xxxxxxxxxxx Xxxxxxx
00 Xxxxxxx Xxxxx Xxxxxxxxxx 0000 Justice Way
99 Walgreens - Camilus, NY 0000 Xxxx Xxxxxxxx Xxxxxx
100 Xxxx Xxxxx Xxxxxxx 00 Xxxx Xxxxxx
101 0000 Xxxxxxxxx Xxxxxx, XX 0000 Xxxxxxxxx Xxxxxx, XX
102 Norco Centre 1750, 1810, 1820 and 0000 Xxxxxx Xxxxxx, 0000 Xxxxxx Xxxxxx
103 Your Extra Attic - Marietta, GA 0000 Xxxxx Xxxxxxx Xxxx
104 Highland Oaks Apartments 0000-0000 Xxxxxxx Xxxx
000 Xxxxx Xxxx Xxxxx 0000 Xxxx Xxxxxxxx Xxxxxx
106 Wometco Building 3195 Xxxxx de Xxxx Boulevard
107 Rite Aid - West Goshen, PA 1301 Phoenixville Pike
108 Harley Retail Shops 0000 Xxxxxxx Xxxx XX
109 The Greenway/Xxxxxxx'x Landing Apartments 0000 Xxxxxxxx Xxxxx & 000 Xxxx 00xx Xxxxxx
110 Foundations Bank & Executive Center N35 W23877 Highfield Court
000 Xxxxx Xxxxxx Xxxxxx 00000-00000 Xxxxx Xxxxx Street
000 Xxxxxxxxx Xxxxx I & II 730-785 4th Street North
113 Prairie Lakes Shopping Center 00000 Xxxxx Xxxxx
000 Xxxxxxxxx Xxxxxxx & Villas 000 Xxxxxx Xxxxx & 0000 Xxxx Xxxxxxxxx Xxxxxx
000 00xx Xxxxxx Xxxxx 000 Xxxx 00xx Street
116 106 South Xxxxxxx and 000 Xxxx Xxxxxxxxx 000 Xxxxx Xxxxxxx and 000 Xxxx Xxxxxxxxx
000 Xxxxx Xxxxx 0000 00xx Xxxxxx XX
000 XXX Xxxxx 0000 Xxxxx Xxxxx Xxxx
119 36 Middlesex Turnpike 00 Xxxxxxxxx Xxxxxxxx
120 The Xxxxxxxx Campus Inn 000 Xxxxxxx Xxxxxx
121 CVS - North Fort Myers, FL 4100 Xxxxxxx Bridge Parkway
122 Maplewood Marketplace 0000 Xxxxxx Xxxx X X
000 Xxxxx Office Building 0000 XX 00xx Xxxxxx
000 Xxxxxxxxxx Xxxxx Retail Center 0000 Xxxxx Xxxxxx Xxxxxx
Mortgage Loan Cut-Off Date Monthly P&I
Number City State Zip Code Loan Balance ($) Payments ($) Mortgage Rate
----------------------------------------------------------------------------------------------------------------------------------
1 Xxxxxx XX 00000 145,000,000 IO 5.6060%
2 San Diego CA Various 137,000,000 IO 5.7750%
2.01 Xxx Xxxxx XX 00000
2.02 Xxx Xxxxx XX 00000
2.03 Xxx Xxxxx XX 00000
2.04 Xxx Xxxxx XX 00000
2.05 Xxx Xxxxx XX 00000
2.06 Xxx Xxxxx XX 00000
2.07 Xxx Xxxxx XX 00000
3 Xxx Xxxx XX 00000 100,000,000 IO 6.1200%
4 Xxx Xxxx XX 00000 57,000,000 IO 5.7350%
5 Xxxxxxxxxx XX 00000 56,400,000 336,336 5.9500%
6 Xxxxxxx XX 00000 50,375,000 IO 5.6400%
0 Xx. Xxxx Xxxxx XX 00000 50,000,000 IO 5.7280%
0.00 Xx. Xxxx Xxxxx XX 00000
7.02 Xx. Xxxx Xxxxx XX 00000
7.03 Xx. Xxxx Xxxxx XX 00000
8 Xxxxx Xxxxx XX 00000 45,000,000 260,041 5.6600%
9 Xxxxxxx XX 00000 43,500,000 IO 5.6800%
10 Xxx Xxxxxxx XX 00000 41,000,000 245,289 5.9800%
11 Xxxxxx XX 00000 41,000,000 244,236 5.9400%
12 Various Various Various 40,000,000 IO 5.6100%
12.01 Xxxxxxxxxx XX 00000
12.02 Xxxxx XX 00000
12.03 Xxxxxx XX 00000
12.04 Xxxxxxxxxxx XX 00000
12.05 Xxxx XX 00000
12.06 Xxxxxxxxx XX 00000
12.07 Xxxxxxxxxx XX 00000
12.08 Xxxxxxxx XX 00000
12.09 Xxxxx Xxxxxx XX 00000
12.10 Xxxxxxx XX 00000
12.11 Xxxxxxx XX 00000
13 Xxxxxxxxxx XX 00000 36,450,000 217,366 5.9500%
14 Xxxxxxx XX 00000 36,000,000 IO 5.6600%
00 Xxxxx XX 00000 33,200,000 IO 5.7100%
16 Xxxxxx Xxxx XX 00000 31,237,500 186,282 5.9500%
00 Xx Xxxxxxx XX 00000 28,416,993 161,857 5.5100%
18 Xxxxxx XX 00000 27,580,000 IO 5.8550%
19 Xxxxxx XX 00000 27,462,000 IO 6.2690%
20 Xxxxx XX 00000 26,400,000 IO 5.8750%
00 Xxxxxx XX 00000 25,120,000 144,082 5.5920%
00 Xxxxxxx Xxxx XX 00000 24,880,000 147,413 5.8900%
23 Xxxxxxxxxxx XX 00000 24,800,000 145,610 5.8060%
23.01 Xxxxxxxxxxx XX 00000
23.02 Xxxxxxxxxxx XX 00000
23.03 Xxxxxxxxxxx XX 00000
23.04 Xxxxxxxxxxx XX 00000
24 Xxxxxxxx Xxxxx XX 00000 24,140,000 IO 5.6600%
25 Xxxxxxxxxxxx XX 00000 22,300,000 IO 5.7700%
26 Xxxxxxxx XX 00000 21,956,711 127,270 5.6700%
00 Xxxxxx Xxxx XX 00000 21,500,000 IO 5.9800%
28 Xxxxxxx XX 00000 21,200,000 IO 5.5710%
29 Xxxxxxxxxxx XX 00000 20,475,000 IO 6.0400%
30 Xxxxxxxxx XX 00000 19,500,000 116,787 5.9900%
31 Xxxxxxxxxxxx XX 00000 19,000,000 IO 5.6730%
32 Xxxxxxx XX 00000 17,875,000 IO 6.2700%
33 Xxxxxxxx XX 00000 17,725,054 102,742 5.6700%
34 Xxxxxxxx XX 00000 17,000,000 104,705 6.2530%
00 Xxxx Xxxxxxxxx Xxxxxxxx XX 00000 16,300,000 98,546 6.0780%
35.01 Xxxx Xxxxxxxxx Xxxxxxxx XX 00000
35.02 Xxxx Xxxxxxxxx Xxxxxxxx XX 00000
36 Xxxxxxxx XX 00000 15,500,000 90,749 5.7800%
37 Xxxx Xxxxx XX 00000 15,000,000 95,136 6.5330%
00 Xxxx Xxxxxxxx XX 00000 15,000,000 IO 6.2900%
39 Xxxxxxxxxx XX 00000 14,660,000 91,862 6.4170%
40 Xxxxxxxxxxx XX 00000 14,640,000 IO 5.7150%
41 Xxxxxxx XX 00000 14,525,000 83,312 5.5920%
42 Xxxxxxxx XX 00000 13,800,000 IO 5.8350%
43 Xxxxxxx XX 00000 13,000,000 76,278 5.8000%
44 Xxxxxxxxx XX 00000 12,520,000 71,748 5.5840%
45 Xxxxxxxxxxx XX 00000 12,150,000 IO 5.6460%
46 Various IL Various 12,000,000 70,365 5.7940%
46.01 Xxxxxxxxx XX 00000
46.02 Xxxxxxxxx XX 00000
46.03 Xxxxxx XX 00000
46.04 Xxxxxx XX 00000
46.05 Xxxxxx XX 00000
47 Xxxxxx Xxxxxxx XX 00000 12,000,000 69,648 5.7000%
48 Xxxxxxxx XX 00000 11,700,000 74,260 6.5400%
49 Xxxxxxxxxxx XX 00000 11,400,000 IO 5.7170%
00 Xxxxxx Xxxx XX 00000 11,000,000 63,315 5.6240%
51 Xxxxxxxxx XX 00000 11,000,000 62,512 5.5080%
52 Xxxx XX 00000 10,950,000 IO 6.3900%
00 Xxxxxxxxx XX 00000 10,220,070 59,563 5.7200%
54 Xxx Xxxxx XX 00000 10,182,000 62,111 6.1620%
55 Xxxxxxxx XX 00000 10,150,000 58,924 5.7020%
56 Xxxxxx Xxx XX 00000 9,900,000 IO 5.7460%
57 Xxxxxx XX 00000 9,734,000 58,736 6.0600%
00 Xxxxxxx XX 00000 9,700,000 IO 6.1813%
59 Xxxxxxxxxxx XX 00000 9,685,000 IO 6.0400%
60 Xxxxxxxxxxxx XX 00000 9,493,195 60,265 6.5350%
61 Xxxxx XX 00000 9,200,000 IO 5.8400%
62 Xxxxxxxxxx XX 00000 9,120,000 53,106 5.7300%
63 Xxxxxxxx XX 00000 9,000,000 52,579 5.7600%
64 Xxxxxxxx XX 00000 8,840,000 IO 5.7150%
65 Xxxxxxxx XX 00000 8,835,000 IO 5.7150%
00 Xxxxx Xxxxxxx XX 00000 8,705,000 IO 5.7000%
67 Xxxxx XX 00000 8,600,000 53,855 6.4110%
68 Xxxxxxxx XX 00000 8,400,000 IO 5.6560%
69 Xxxx XX 00000 8,250,000 46,749 5.4820%
00 Xxxx Xxxxxx XX 00000 8,000,000 46,164 5.6470%
71 Xxxxxxxxxxx XX 00000 7,878,000 IO 5.7170%
72 Xxxx Xxxxx XX 00000 7,840,000 47,692 6.1360%
73 Xxx Xxxxxx XX 00000 7,740,000 46,107 5.9400%
74 Xxxxxxx XX 00000 7,600,000 47,862 6.4650%
75 Xxxxxxxx XX 00000 7,494,257 46,399 6.2950%
00 Xxxx Xxxxxxx XX 00000 7,250,000 45,777 6.4900%
77 Xxxxxxx XX 00000 7,160,000 IO 5.8960%
00 Xxxxxxxx XX 00000 6,987,256 42,068 6.0220%
00 Xxxx Xxxxxxx XX 00000 6,800,000 40,159 5.8600%
80 Xxxxxxxxx XX 00000 6,800,000 39,037 5.6000%
81 Xxxxxxx XX 00000 6,780,833 39,735 5.7620%
82 Xxxxxxxxxx XX 00000 6,550,000 IO 6.2050%
00 Xxxxxx XX 00000 6,520,000 39,511 6.1000%
84 Xx Xxxx XX 00000 6,250,000 35,561 5.5190%
85 Xxxxxxxxxx XX 00000 5,866,000 IO 6.2050%
00 Xx. Xxxxxxxxxx XX 00000 5,858,565 34,453 5.7950%
00 Xxxxxxx Xxxxxxxx XX 00000 5,825,651 36,980 5.8000%
00 Xxxxxx Xxxxx XX 00000 5,782,000 35,997 6.3550%
89 Xxxxxxxx XX 00000 5,632,000 32,506 5.6490%
90 Xxxxxxxxxx XX 00000 5,600,000 32,623 5.7340%
91 Xxxxx XX 00000 5,464,344 34,016 6.3380%
92 Xxxxxxxx XX 00000 5,370,672 IO 6.4270%
00 Xxxxx XX 00000 5,187,600 32,818 5.8080%
94 Xxxxxxxxx XX 00000 5,140,000 32,647 6.5470%
00 Xxxxxxxxx XX 00000 5,000,000 32,833 6.8710%
96 Xxxxxxxxxxxxx XX 00000 4,864,000 28,074 5.6490%
97 Xxxxxxx XX 00000 4,840,411 27,990 5.6480%
98 Xxxxxxx XX 00000 4,791,281 28,877 6.0320%
99 Xxxxxxx XX 00000 4,480,000 25,857 5.6490%
100 Xxx Xxxxxxxxx XX 00000 4,479,000 26,338 5.8200%
000 Xxxxxxxxxx XX 00000 4,400,000 IO 6.0120%
000 Xxxxx XX 00000 4,400,000 27,384 6.3520%
000 Xxxxxxxx XX 00000 4,250,000 24,759 5.7340%
104 Xxxxxxxxxxx XX 00000 4,200,000 IO 5.6470%
000 Xxxxxxxx XX 00000 3,934,857 23,207 5.8120%
000 Xxxxx Xxxxxx XX 00000 3,850,000 23,918 6.3350%
000 Xxxx Xxxxxx Xxxxxxxx XX 00000 3,825,000 22,619 5.8720%
000 Xxxxx Xxxxxx Xxxxxxxx XX 00000 3,700,000 21,828 5.8500%
000 Xxxxxx XX 00000 3,573,243 21,143 5.8600%
000 Xxxxxxxx XX 00000 3,511,884 20,492 5.7410%
000 Xxxxx XX 00000 3,500,000 20,456 5.7640%
000 Xx. Xxxxxxxxxx XX 00000 3,470,000 19,818 5.5530%
113 Xxxxxxxxxxx XX 00000 3,250,000 19,032 5.7820%
000 Xxxxxxxxxxx XX 00000 3,150,000 18,211 5.6640%
000 Xxxxxx Xxxx XX 00000 3,111,022 18,053 5.6720%
000 Xxxxxx / Xxxxxxxxx XX 00000 / 61820 3,065,000 IO 5.5040%
000 Xxxxxxxxxx XX 00000 3,000,000 17,689 5.8450%
000 Xxxxxx XX 00000 2,950,000 17,197 5.7400%
000 Xxxxxxx XX 00000 2,800,000 IO 6.1850%
000 Xxxxxxx XX 00000 2,692,884 16,275 6.0500%
000 Xxxxx Xxxx Xxxxx XX 00000 2,677,000 15,741 5.8200%
000 Xxxxxxxxx XX 00000 2,645,111 15,823 5.9620%
000 Xxxxx XX 00000 2,277,000 13,663 6.0080%
124 Xxxxxxxxxx XX 00000 1,087,000 IO 6.2050%
Remaining Amort
Remaining Term to Term (Mos.) for Interest Master
Mortgage Loan Maturity or ARD Maturity Date Balloon Mortgage Accrual Loan Servicing
Number (Mos.) or ARD Loan Method Administrative Fee Rate
Cost Rate
----------------------------------------------------------------------------------------------------------------------------------
1 119 07/06/17 IO Actual/360 0.0210% 0.0200%
2 122 10/11/17 IO Actual/360 0.0210% 0.0200%
2.01
2.02
2.03
2.04
2.05
2.06
2.07
3 117 05/11/17 IO Actual/360 0.0210% 0.0200%
4 117 05/11/17 IO Actual/360 0.0210% 0.0200%
5 118 06/11/17 360 Actual/360 0.0410% 0.0400%
6 114 02/11/17 IO Actual/360 0.0210% 0.0200%
7 83 07/01/14 IO Actual/360 0.0310% 0.0300%
7.01
7.02
7.03
8 82 06/11/14 360 Actual/360 0.0210% 0.0200%
9 113 01/11/17 IO Actual/360 0.0210% 0.0200%
10 118 06/11/17 360 Actual/360 0.0210% 0.0200%
11 118 06/11/17 360 Actual/360 0.0210% 0.0200%
12 117 05/11/17 IO Actual/360 0.0210% 0.0200%
12.01
12.02
12.03
12.04
12.05
12.06
12.07
12.08
12.09
12.10
12.11
13 118 06/11/17 360 Actual/360 0.0460% 0.0450%
14 118 06/06/17 IO Actual/360 0.0410% 0.0400%
15 116 04/11/17 IO Actual/360 0.0210% 0.0200%
16 118 06/11/17 360 Actual/360 0.0460% 0.0450%
17 118 06/01/17 358 Actual/360 0.0310% 0.0300%
18 57 05/01/12 IO Actual/360 0.0310% 0.0300%
19 60 08/06/12 IO Actual/360 0.0210% 0.0200%
20 57 05/01/12 IO Actual/360 0.0310% 0.0300%
21 116 04/06/17 360 Actual/360 0.0210% 0.0200%
22 118 06/11/17 360 Actual/360 0.0210% 0.0200%
23 118 06/06/17 360 Actual/360 0.0410% 0.0400%
23.01
23.02
23.03
23.04
24 118 06/11/17 IO Actual/360 0.0210% 0.0200%
25 116 04/01/17 IO Actual/360 0.0310% 0.0300%
26 118 06/11/17 358 Actual/360 0.0210% 0.0200%
27 58 06/11/12 IO Actual/360 0.0210% 0.0200%
28 118 06/01/17 IO Actual/360 0.0310% 0.0300%
29 118 06/11/17 IO Actual/360 0.0210% 0.0200%
30 58 06/11/12 360 Actual/360 0.0210% 0.0200%
31 117 05/01/17 IO Actual/360 0.0310% 0.0300%
32 118 06/11/17 IO Actual/360 0.0210% 0.0200%
33 118 06/11/17 358 Actual/360 0.0210% 0.0200%
34 120 08/06/17 360 Actual/360 0.0210% 0.0200%
35 118 06/01/17 360 Actual/360 0.0310% 0.0300%
35.01
35.02
36 118 06/06/17 360 Actual/360 0.0510% 0.0500%
37 118 06/11/17 360 Actual/360 0.0210% 0.0200%
38 57 05/11/12 IO Actual/360 0.0710% 0.0700%
39 119 07/01/17 360 Actual/360 0.0310% 0.0300%
40 117 05/01/17 IO Actual/360 0.0310% 0.0300%
41 116 04/06/17 360 Actual/360 0.0210% 0.0200%
42 57 05/01/12 IO Actual/360 0.0310% 0.0300%
43 57 05/01/12 360 Actual/360 0.0310% 0.0300%
44 117 05/01/17 360 Actual/360 0.0310% 0.0300%
45 116 04/01/17 IO Actual/360 0.0310% 0.0300%
46 117 05/01/17 360 Actual/360 0.0310% 0.0300%
46.01
46.02
46.03
46.04
46.05
47 118 06/11/17 360 Actual/360 0.0210% 0.0200%
48 59 07/11/12 360 Actual/360 0.0210% 0.0200%
49 117 05/01/17 IO Actual/360 0.0310% 0.0300%
50 118 06/01/17 360 Actual/360 0.0310% 0.0300%
51 119 07/06/17 360 Actual/360 0.0510% 0.0500%
52 59 07/06/12 IO Actual/360 0.0210% 0.0200%
53 118 06/11/17 358 Actual/360 0.0210% 0.0200%
54 119 07/06/17 360 Actual/360 0.0210% 0.0200%
55 118 06/06/17 360 Actual/360 0.0210% 0.0200%
56 118 06/01/17 IO Actual/360 0.0310% 0.0300%
57 119 07/06/17 360 Actual/360 0.0210% 0.0200%
58 58 06/01/12 IO Actual/360 0.0310% 0.0300%
59 118 06/11/17 IO Actual/360 0.0210% 0.0200%
60 119 07/06/17 359 Actual/360 0.0510% 0.0500%
61 118 06/11/17 IO Actual/360 0.0210% 0.0200%
62 118 06/11/17 360 Actual/360 0.0210% 0.0200%
63 118 06/11/17 360 Actual/360 0.0210% 0.0200%
64 119 07/06/17 IO Actual/360 0.0310% 0.0300%
65 119 07/06/17 IO Actual/360 0.0310% 0.0300%
66 118 06/01/17 IO Actual/360 0.0310% 0.0300%
67 120 08/01/17 360 Actual/360 0.0310% 0.0300%
68 59 07/01/12 IO Actual/360 0.0310% 0.0300%
69 117 05/01/17 360 Actual/360 0.0310% 0.0300%
70 116 04/01/17 360 Actual/360 0.0310% 0.0300%
71 117 05/01/17 IO Actual/360 0.0310% 0.0300%
72 118 06/06/17 360 Actual/360 0.0210% 0.0200%
73 119 07/06/17 360 Actual/360 0.0210% 0.0200%
74 119 07/01/17 360 Actual/360 0.0310% 0.0300%
75 119 07/06/17 359 Actual/360 0.0510% 0.0500%
76 119 07/06/17 360 Actual/360 0.0210% 0.0200%
77 120 08/01/17 IO Actual/360 0.0310% 0.0300%
78 118 06/01/17 358 Actual/360 0.0310% 0.0300%
79 117 05/06/17 360 Actual/360 0.0210% 0.0200%
80 117 05/01/17 360 Actual/360 0.0310% 0.0300%
81 117 05/01/17 357 Actual/360 0.0510% 0.0500%
82 59 07/06/12 IO Actual/360 0.0610% 0.0600%
83 119 07/06/17 360 Actual/360 0.0210% 0.0200%
84 117 05/01/17 360 Actual/360 0.0810% 0.0800%
85 59 07/06/12 IO Actual/360 0.0610% 0.0600%
86 117 05/01/17 357 Actual/360 0.0310% 0.0300%
87 117 05/01/17 297 Actual/360 0.0810% 0.0800%
88 119 07/06/17 360 Actual/360 0.0310% 0.0300%
89 117 05/01/17 360 Actual/360 0.0310% 0.0300%
90 119 07/01/17 360 Actual/360 0.0310% 0.0300%
91 118 06/01/17 358 Actual/360 0.0310% 0.0300%
92 119 07/06/17 IO Actual/360 0.0210% 0.0200%
93 119 07/01/17 300 Actual/360 0.0310% 0.0300%
94 120 08/01/17 360 Actual/360 0.0810% 0.0800%
95 119 07/01/17 360 Actual/360 0.0810% 0.0800%
96 117 05/01/17 360 Actual/360 0.0310% 0.0300%
97 118 06/06/17 358 Actual/360 0.0210% 0.0200%
98 118 06/01/17 358 Actual/360 0.0310% 0.0300%
99 117 05/01/17 360 Actual/360 0.0310% 0.0300%
100 118 06/06/17 360 Actual/360 0.0210% 0.0200%
101 119 07/01/17 IO Actual/360 0.0310% 0.0300%
102 120 08/06/17 360 Actual/360 0.0210% 0.0200%
103 117 05/01/17 360 Actual/360 0.0310% 0.0300%
104 116 04/01/17 IO Actual/360 0.0310% 0.0300%
105 116 04/01/17 356 Actual/360 0.0310% 0.0300%
106 119 07/06/17 360 Actual/360 0.0210% 0.0200%
107 117 05/01/17 360 Actual/360 0.0310% 0.0300%
108 117 05/01/17 360 Actual/360 0.0810% 0.0800%
109 118 06/01/17 358 Actual/360 0.0310% 0.0300%
110 119 07/01/17 359 Actual/360 0.0310% 0.0300%
111 119 07/01/17 360 Actual/360 0.0310% 0.0300%
112 117 05/01/17 360 Actual/360 0.0310% 0.0300%
113 118 06/01/17 360 Actual/360 0.0310% 0.0300%
114 118 06/01/17 360 Actual/360 0.0310% 0.0300%
115 117 05/01/17 357 Actual/360 0.0310% 0.0300%
116 117 05/01/17 IO Actual/360 0.0310% 0.0300%
117 117 05/01/17 360 Actual/360 0.0310% 0.0300%
118 117 05/01/17 360 Actual/360 0.0310% 0.0300%
119 120 08/01/17 IO Actual/360 0.0310% 0.0300%
120 117 05/01/17 357 Actual/360 0.0310% 0.0300%
121 118 06/06/17 360 Actual/360 0.0210% 0.0200%
122 118 06/01/17 358 Actual/360 0.1110% 0.1100%
123 118 06/01/17 360 Actual/360 0.0310% 0.0300%
124 59 07/06/12 IO Actual/360 0.0610% 0.0600%
Cross Collateralized
Mortgage Loan Ground Mortgage Loan Defeasance and Cross Defaulted
Number Lease Seller Originator Loan Loan Flag
----------------------------------------------------------------------------------------------------------------------------------
1 N XXXXX XXXXX X X
0 X Xxxxxxxx Xxxxxxxx X N
2.01 N
2.02 N
2.03 N
2.04 N
2.05 N
2.06 N
2.07 N
3 N Wachovia Wachovia Y N
4 N Wachovia Wachovia Y N
5 N Wachovia Wachovia N N
6 N Xxxxxxxx Xxxxxxxx X X
0 X XXXxxxxxx XXXxxxxxx X N
7.01 N
7.02 N
7.03 Y
8 Y Wachovia Wachovia Y N
9 N Wachovia Wachovia Y N
10 N Wachovia Wachovia Y N
11 N Wachovia Wachovia Y N
12 N Wachovia Wachovia Y N
12.01 N
12.02 N
12.03 N
12.04 N
12.05 N
12.06 N
12.07 N
12.08 N
12.09 N
12.10 N
12.11 N
13 N Wachovia Wachovia N N
14 N CGMRC CGMRC Y N
15 N Wachovia Wachovia Y N
16 N Wachovia Wachovia N N
17 N CWCapital CWCapital Y N
18 N CWCapital CWCapital N N
19 N CGMRC CGMRC Y N
20 N CWCapital CWCapital N N
21 N CGMRC CGMRC Y N
22 N Wachovia Wachovia Y N
23 N CGMRC CGMRC N N
23.01 N
23.02 N
23.03 N
23.04 N
24 N Wachovia Wachovia N N
25 N CWCapital CWCapital Y N
26 N Wachovia Wachovia Y N
27 N Wachovia Wachovia Y N
28 N CWCapital CWCapital Y N
29 N Wachovia Wachovia N N
30 N Wachovia Wachovia Y N
31 N CWCapital CWCapital Y N
32 N Wachovia Wachovia N N
33 N Wachovia Wachovia Y N
34 N XXXXX XXXXX X X
00 X XXXxxxxxx XXXxxxxxx X N
35.01 N
35.02 N
36 N CGMRC CGMRC Y N
37 N Wachovia Wachovia Y N
38 N Wachovia Wachovia N N
39 N CWCapital CWCapital Y N
40 N CWCapital CWCapital Y N
41 N CGMRC CGMRC Y N
42 N CWCapital CWCapital N N
00 X XXXxxxxxx XXXxxxxxx X X
00 X XXXxxxxxx XXXxxxxxx Y N
45 N CWCapital CWCapital Y N
46 N CWCapital CWCapital Y N
46.01 N
46.02 N
46.03 N
46.04 N
46.05 N
47 N Wachovia Wachovia Y N
48 N Wachovia Wachovia Y N
49 N CWCapital CWCapital Y N
50 N CWCapital CWCapital Y N
51 N CGMRC CGMRC N N
52 N CGMRC CGMRC Y N
53 N Wachovia Wachovia Y N
54 N CGMRC CGMRC Y N
55 N CGMRC CGMRC N N
56 N CWCapital CWCapital Y N
57 N CGMRC CGMRC Y N
58 N CWCapital CWCapital Y N
59 N Wachovia Wachovia N N
60 N CGMRC CGMRC Y N
61 N Wachovia Wachovia Y N
62 N Wachovia Wachovia Y N
63 N Wachovia Wachovia Y N
64 N CGMRC CGMRC Y N
65 N XXXXX XXXXX X X
00 X XXXxxxxxx XXXxxxxxx X N
67 Y CWCapital CWCapital Y N
68 N CWCapital CWCapital Y N
69 N CWCapital CWCapital Y N
70 N CWCapital CWCapital Y N
71 N CWCapital CWCapital Y N
72 N CGMRC CGMRC Y N
73 N CGMRC CGMRC Y N
74 N CWCapital CWCapital N N
75 N CGMRC CGMRC Y N
76 N CGMRC CGMRC Y N
77 N CWCapital CWCapital Y N
78 N CWCapital CWCapital Y N
79 N CGMRC CGMRC Y N
80 N CWCapital CWCapital Y N
81 N CWCapital CWCapital Y N
82 N CGMRC CGMRC Y N
83 N CGMRC CGMRC Y N
84 N CWCapital CWCapital Y N
85 N CGMRC CGMRC Y N
86 N CWCapital CWCapital Y N
87 N CWCapital CWCapital Y N
88 N CGMRC CGMRC N N
89 N CWCapital CWCapital N N
90 N CWCapital CWCapital N N
91 Y CWCapital CWCapital Y N
92 N XXXXX XXXXX X X
00 X XXXxxxxxx XXXxxxxxx X N
94 N CWCapital CWCapital Y N
95 N CWCapital CWCapital Y N
96 N CWCapital CWCapital N N
97 Y CGMRC CGMRC Y N
98 N CWCapital CWCapital Y N
99 N CWCapital CWCapital N N
100 N CGMRC CGMRC N N
101 N CWCapital CWCapital Y N
102 N CGMRC CGMRC Y N
103 N CWCapital CWCapital N N
104 N CWCapital CWCapital Y N
105 N CWCapital CWCapital Y N
106 N CGMRC CGMRC N N
107 N CWCapital CWCapital Y N
108 N CWCapital CWCapital Y N
109 N CWCapital CWCapital Y N
110 N CWCapital CWCapital Y N
111 N CWCapital CWCapital Y N
112 N CWCapital CWCapital N N
113 N CWCapital CWCapital Y N
114 N CWCapital CWCapital Y N
115 N CWCapital CWCapital Y N
116 N CWCapital CWCapital Y N
117 N CWCapital CWCapital N N
118 N CWCapital CWCapital N N
119 N CWCapital CWCapital Y N
120 N CWCapital CWCapital N N
121 N XXXXX XXXXX X X
000 X XXXxxxxxx XXXxxxxxx X N
123 N CWCapital CWCapital Y N
124 N CGMRC CGMRC Y N
Letter of Credit Anticipated If ARD loan, Serviced Loan
Mortgage Loan In-Place ARD Loan Repayment Date Additional Interest Rate Combination?
Number
----------------------------------------------------------------------------------------------------------------------------------
1 N Y 07/06/17 Greater of interest rate plus N
2% or Treasury Rate plus 3%
2 N N
2.01
2.02 N
2.03 N
2.04 N
2.05
2.06
2.07
3 N N
4 N N N
5 N N N
6 N N N
7 N N N
7.01 N
7.02 N
7.03 N
8 N N N
9 N N N
10 N N N
11 N N
12 N N
12.01
12.02
12.03
12.04
12.05
12.06 N
12.07 N
12.08 N
12.09 N
12.10 N
12.11 N
13 N N N
14 N N N
15 N N N
16 N N N
17 N Y 06/01/17 Greater of initial interest rate N
plus 3% or the Treasury Rate
plus 3%
18 N N
19 N N
20 N N N
21 N N N
22 N N N
23 N N N
23.01 N
23.02 N
23.03 N
23.04 N
24 N N N
25 N Y 04/01/17 Greater of initial interest rate N
plus 3% or the Treasury Rate
plus 3%
26 N N N
27 Y N N
28 N N N
29 N Y 06/11/17 Greater of initial interest rate N
plus 3% or TCMYI plus 3%
00 X X X
00 X Y 05/01/17 Greater of initial interest rate N
plus 3% or the Treasury Rate
plus 3%
32 N Y 06/11/17 Greater of initial interest rate N
plus 3% or TCMYI plus 3%
00 X X
00 X X
00 X Y 06/01/17 Greater of initial interest rate
plus 3% or the Treasury Rate
plus 3%
35.01 N
35.02 N
36 N N N
37 N N N
38 N N
39 N N
40 N N
41 N N N
42 N N N
43 N Y 05/01/12 Greater of initial interest rate N
plus 3% or the Extended
Term Treasury Rate plus 3%
44 N N N
45 N N N
46 N N N
46.01 N
46.02 N
46.03 N
46.04 N
46.05 N
47 N N N
48 N N N
49 N N
50 N Y 06/01/17 Greater of initial interest rate
plus 3% or the Treasury Rate
plus 3%
00 X X
00 X X
00 X X
54 N N
55 N N N
56 N Y 06/01/17 Greater of initial interest rate N
plus 3% or the Treasury Rate
plus 3%.
57 N N N
58 N N N
59 N Y 06/11/17 Greater of initial interest rate N
plus 3% or TCMYI plus 3%
60 N N N
61 N N N
62 Y N N
63 N N N
64 N N N
65 N N N
66 N N N
67 N N N
68 N Y 07/01/12 Greater of initial interest rate N
plus 3% or the Treasury Rate
plus 3%
69 N Y 05/01/17 Greater of initial interest rate N
plus 2.75% or the Treasury
Rate plus 2.75%
70 N N N
71 N N N
72 N N N
73 N N N
74 N Y 07/01/17 Greater of initial interest rate N
plus 3% or the Treasury Rate
plus 3%
75 N N N
76 N N N
77 N Y 08/01/17 Greater of initial interest rate N
plus 3% or the Treasury Rate
plus 3%
78 N N N
79 N N N
80 N Y 05/01/17 Greater of initial interest rate N
plus 3% or the Extended
Term Treasury Rate plus 3%
81 N N N
82 N N N
83 N N N
84 N N N
85 N N N
86 N N
87 N N
88 N N
89 N Y 05/01/17 Greater of initial interest rate N
plus 3% or the Treasury Rate
plus 3%
90 N N N
91 Y N N
92 N N N
93 N Y 07/01/17 Greater of initial interest rate N
plus 2% or the Treasury Rate
plus 2%.
94 N N N
95 N N N
96 N Y 05/01/17 Greater of initial interest rate N
plus 3% or the Treasury Rate
plus 3%
97 N N N
98 N N N
99 N Y 05/01/17 Greater of initial interest rate N
plus 3% or the Treasury Rate
plus 3%
000 X X X
000 X X X
102 N N N
103 N N N
104 N N N
105 N Y 04/01/17 Greater of initial interest rate N
plus 3% or the Treasury Rate
plus 3%
000 X X X
000 X Y 05/01/17 Greater of initial interest rate N
plus 3% or the Treasury Rate
plus 3%.
000 X X X
000 X X X
110 N N N
111 N N N
112 N N N
113 N N N
114 N N N
115 N N
116 N N
117 N Y 05/01/17 Greater of initial interest rate N
plus 3% or the Treasury Rate
plus 3%.
000 X X X
000 X Y 08/01/17 Greater of initial interest rate N
plus 3% or the Treasury Rate
plus 3%
000 X X X
000 X Y 06/06/17 Greater of (i) 2% plus initial N
interest rate or (ii) 3% plus
annualized yield
000 X X X
000 X X X
124 N N N
SCHEDULE II
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
Collateral ID Property Name Pool ID Collgroup Investor ID AlternateLoanID Casenum
-------------- ---------------------------------- ------------ ----------- ----------- --------------- -------
2COBALT2007C3 Irvine - Pool COBALT2007C3 CWCP081607T WACH 2860546 XXXX
3COBALT2007C3 0 Xxxxxx Xxxxxx XXXXXX0000X0 CWCP081607T WACH 2859871 W&ST
3COBALT2007C3 0 Xxxxxx Xxxxxx XXXXXX0000X0 CWCP081607T WACH 2859871 W&ST
4COBALT2007C3 00 Xxxx Xxxxxx XXXXXX0000X0 CWCP081607T WACH 2859826 PROS
5COBALT2007C3 Sheraton Suites - Alexandria, VA COBALT2007C3 CWCP081607T WACH 2857727 MOOR
6COBALT2007C3 The Arbors at Xxxxxxxxxx XXXXXX0000X0 CWCP081607T WACH 2858868 CADW
8COBALT2007C3 Express Scripts Building COBALT2007C3 CWCP081607T WACH 2858271
9COBALT2007C3 Falcon Xxxxx Xxxx Xxxxxx X XXXXXX0000X0 XXXX000000X WACH 2857938 MOOR
10COBALT2007C3 Xxxxxxxx Xxxx Xxxxx XXXXXX0000X0 CWCP081607T WACH 2860196 XXXX
11COBALT2007C3 Xxxxx Xxxxxxxxxxxx XXXXXX0000X0 CWCP081607T WACH 2861233 PROS
12COBALT2007C3 Xxxxxxxxx Xxxxxxxxx XXXXXX0000X0 CWCP081607T WACH 2859999 W&ST
13COBALT2007C3 Sheraton Suites - Wilmington, DE COBALT2007C3 CWCP081607T WACH 2857761 MOOR
15COBALT2007C3 Xxxxx Xxxxxxx Xxxxx X XXXXXX0000X0 CWCP081607T WACH 2859221 MOOR
16COBALT2007C3 Sheraton Suites - Kansas City, MO COBALT2007C3 CWCP081607T WACH 2857760 MOOR
22COBALT2007C3 Xxxxxx Xxxxxx Xxx - Xxxxxxx, XX XXXXXX0000X0 CWCP081607T WACH 2860388
24COBALT2007C3 Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx XXXXXX0000X0 CWCP081607T WACH 2860813 MOOR
25COBALT2007C3 Preferred Freezer - Xxxxxxxxxxxx XXXXXX0000X0 CWCP081607T CWCapital 3195B XXXX
26COBALT2007C3 Xxxxxxx Xxx - Xxxxxxxx XXXXXX0000X0 CWCP081607T WACH 2860095 XXXX
27COBALT2007C3 Xxxxxxx Xxxxx Xxxxxxxxxx XXXXXX0000X0 CWCP081607T WACH 2860640 XXXX
29COBALT2007C3 Xxxxxx Xxxx XXXXXX0000X0 XXXX000000X WACH 2859900
30COBALT2007C3 Xxxxxx Xxxxxx Xxx- Xxxxxxxxx XXXXXX0000X0 CWCP081607T WACH 2860423 XXXX
32COBALT2007C3 Xxxxxxx Xxxxx Xxxxxxxxxx XXXXXX0000X0 CWCP081607T WACH 2860815 XXXX
33COBALT2007C3 Xxxxxxxx Xxx XXXXXX0000X0 CWCP081607T WACH 2860097 XXXX
37COBALT2007C3 Beaumont Medical Center COBALT2007C3 CWCP081607T WACH 2859619 MOOR
38COBALT2007C3 Sheraton Xxxx Xxxxxxxx XXXXXX0000X0 CWCP081607T WACH 2859709 MOOR
47COBALT2007C3 San Marin Apartments COBALT2007C3 CWCP081607T WACH 2860987 XXXX
48COBALT2007C3 Xxx Xxxxx Xxxxxxxx XXXXXX0000X0 CWCP081607T WACH 2857126
53COBALT2007C3 Days Inn COBALT2007C3 CWCP081607T WACH 2860102 XXXX
59COBALT2007C3 University Xxxxxx XXXXXX0000X0 CWCP081607T WACH 2859903
61COBALT2007C3 Xxxxxxxxx XXXXXX0000X0 CWCP081607T WACH 2859854 PROS
62COBALT2007C3 Northmark II COBALT2007C3 CWCP081607T WACH 2858554
63COBALT2007C3 Xxxxxxxx Xxxxxxxxx- Xxxxxxxx XXXXXX0000X0 CWCP081607T WACH 2860140 XXXX
72COBALT2007C3 TownePlace Suites - Fort Worth, TX COBALT2007C3 CWCP081307 CGMRC
90COBALT2007C3 Xxxxxxxx Xxxxxxxx XXXXXX0000X0 CWCP081607T CWCapital 3270
Collateral ID Loan Amount DocType Exception Exception Description
-------------- -------------- ------- --------- ----------------------------------------
2COBALT2007C3 137,000,000.00 ALNV 94 OUT FOR EXECUTION
3COBALT2007C3 110,000,000.00 ALNV 94 OUT FOR EXECUTION
3COBALT2007C3 110,000,000.00 NOTE 14 LOAN AMOUNT DOES NOT AGREE WITH SCHEDULE
4COBALT2007C3 57,000,000.00 ALNV 01 MISSING
5COBALT2007C3 56,400,000.00 ALNV 94 OUT FOR EXECUTION
6COBALT2007C3 50,375,000.00 ALNV 94 OUT FOR EXECUTION
8COBALT2007C3 45,000,000.00 ALNV 94 OUT FOR EXECUTION
9COBALT2007C3 43,500,000.00 ALNV 94 OUT FOR EXECUTION
10COBALT2007C3 41,000,000.00 ALNV 94 OUT FOR EXECUTION
11COBALT2007C3 41,000,000.00 ALNV 01 MISSING
12COBALT2007C3 40,000,000.00 ALNV 94 OUT FOR EXECUTION
13COBALT2007C3 36,450,000.00 ALNV 94 OUT FOR EXECUTION
15COBALT2007C3 33,200,000.00 ALNV 01 MISSING
16COBALT2007C3 31,237,500.00 ALNV 94 OUT FOR EXECUTION
22COBALT2007C3 24,880,000.00 ALNV 94 OUT FOR EXECUTION
24COBALT2007C3 24,140,000.00 ALNV 94 OUT FOR EXECUTION
25COBALT2007C3 22,300,000.00 TPOL 01 MISSING
26COBALT2007C3 22,000,000.00 ALNV 94 OUT FOR EXECUTION
27COBALT2007C3 21,500,000.00 ALNV 94 OUT FOR EXECUTION
29COBALT2007C3 20,475,000.00 ALNV 94 OUT FOR EXECUTION
30COBALT2007C3 19,500,000.00 ALNV 94 OUT FOR EXECUTION
32COBALT2007C3 17,875,000.00 ALNV 94 OUT FOR EXECUTION
33COBALT2007C3 17,760,000.00 ALNV 94 OUT FOR EXECUTION
37COBALT2007C3 15,000,000.00 ALNV 94 OUT FOR EXECUTION
38COBALT2007C3 15,000,000.00 ALNV 94 OUT FOR EXECUTION
47COBALT2007C3 12,000,000.00 ALNV 94 OUT FOR EXECUTION
48COBALT2007C3 11,700,000.00 ALNV 94 OUT FOR EXECUTION
53COBALT2007C3 10,240,000.00 ALNV 94 OUT FOR EXECUTION
59COBALT2007C3 9,685,000.00 ALNV 94 OUT FOR EXECUTION
61COBALT2007C3 9,200,000.00 ALNV 01 MISSING
62COBALT2007C3 9,120,000.00 ALNV 94 OUT FOR EXECUTION
63COBALT2007C3 9,000,000.00 ALNV 94 OUT FOR EXECUTION
72COBALT2007C3 7,840,000.00 TPOL 01 MISSING
90COBALT2007C3 5,600,000.00 TPOL 01 MISSING
Collateral ID Notation
-------------- ------------------------------------------------------------------------
2COBALT2007C3 WACH TO BLANK
3COBALT2007C3 WACH TO BLANK
3COBALT2007C3 NOTE:110,000,000.00; SCHEDULE: 100,000,000.00;RECEIVED PDFS OF NEW NOTES
4COBALT2007C3 WACH TO BLANK
5COBALT2007C3 WACH TO BLANK
6COBALT2007C3 WACH TO BLANK
8COBALT2007C3 WACH TO BLANK
9COBALT2007C3 WACH TO BLANK
10COBALT2007C3 WACH TO BLANK
11COBALT2007C3 WACH TO BLANK
12COBALT2007C3 WACH TO BLANK
13COBALT2007C3 WACH TO BLANK
15COBALT2007C3 WACH TO BLANK
16COBALT2007C3 WACH TO BLANK
22COBALT2007C3 WACH TO BLANK
24COBALT2007C3 WACH TO BLANK
25COBALT2007C3
26COBALT2007C3 WACH TO BLANK
27COBALT2007C3 WACH TO BLANK
29COBALT2007C3 WACH TO BLANK
30COBALT2007C3 WACH TO BLANK
32COBALT2007C3 WACH TO BLANK
33COBALT2007C3 WACH TO BLANK
37COBALT2007C3 WACH TO BLANK
38COBALT2007C3 WACH TO BLANK
47COBALT2007C3 WACH TO BLANK
48COBALT2007C3 WACH TO BLANK
53COBALT2007C3 WACH TO BLANK
59COBALT2007C3 WACH TO BLANK
61COBALT2007C3 WACH TO BLANK
62COBALT2007C3 WACH TO BLANK
63COBALT2007C3 WACH TO BLANK
72COBALT2007C3
90COBALT2007C3
Commercial Document Codes Exception Codes
-----------------------------------------
--------------------------------------------------------------------------------
DOCTYPE DESCRIPTION ADDITIONAL COMMENTS
------- ----------- -------------------
--------------------------------------------------------------------------------
ACC1 NEW UCC1 ASUM FILING NEW COUNTY UCC NEEDED
FOR ASSUMPTION
--------------------------------------------------------------------------------
ACC3 AMEND/TERM FOR OLD XXXX TERMINATION OF ORIGINAL
BORROWER IN ASUM-COUNTY
--------------------------------------------------------------------------------
XXX0 XXX XXX0 ASUM FILING NEW STATE UCC NEEDED FOR
ASSUMPTION
--------------------------------------------------------------------------------
ACS3 AMEND/TERM FOR OLD XXXX TERMINATION OF ORIGINAL
BORROWER IN ASUM-STATE
--------------------------------------------------------------------------------
AFFD NAME AFFIDAVIT DOCUMENT THAT LISTS THE
NAME(S) THAT THE
BORROWER(S) ARE
ALTERNATIVELY KNOW
AS
--------------------------------------------------------------------------------
ALN (1-9) INTERVENING ALLONGE ADDITIONAL PAGE(S) OF
THE NOTE THAT CONTAIN
INTERVENING
ENDORSEMENT(S)
--------------------------------------------------------------------------------
ALNV FINAL ALLONGE FINAL NOTE ENDORSEMENT
--------------------------------------------------------------------------------
AMRT AMORTIZATION SCHEDULE
--------------------------------------------------------------------------------
APPR APPRAISAL DOCUMENT THAT IS USED TO
EVALUATE THE VALUE OF A
PARTICULAR PIECE OF
PROPERTY; IT MAY CONTAIN
MULTIPLE PAGES AND/OR
SECTIONS
--------------------------------------------------------------------------------
ASL1 * ASSIGNMENT 1 OF ASSIGNMENT OF LEASES ALSO REFERRED TO AS THE
AND RENTS ASSIGNMENT OF ASSIGNMENT
1 OF LEASES AND RENTS;
DOCUMENT TRANSFERS
OWNERSHIP OF THE
MORTGAGE FROM ONE LENDER
TO ANOTHER LENDER
--------------------------------------------------------------------------------
ASL2 * ASSIGNMENT 2 OF ASSIGNMENT OF LEASES ALSO REFERRED TO AS THE
AND RENTS ASSIGNMENT OF ASSIGNMENT
2 OF LEASES AND RENTS;
DOCUMENT TRANSFERS
OWNERSHIP OF THE
ASSIGNMENT OF LEASES AND
RENTS FROM ONE LENDER
TO ANOTHER LENDER
--------------------------------------------------------------------------------
ASL3 * ASSIGNMENT 3 OF ASSIGNMENT OF LEASES ALSO REFERRED TO AS THE
AND RENTS ASSIGNMENT OF ASSIGNMENT
3 OF LEASES AND RENTS;
DOCUMENT TRANSFERS
OWNERSHIP OF THE
ASSIGNMENT OF LEASES AND
RENTS FROM ONE LENDER
TO ANOTHER LENDER
--------------------------------------------------------------------------------
ASL4 * ASSIGNMENT 4 OF ASSIGNMENT OF LEASES ALSO REFERRED TO AS THE
AND RENTS ASSIGNMENT OF ASSIGNMENT
4 OF LEASES AND RENTS;
DOCUMENT TRANSFERS
OWNERSHIP OF THE
ASSIGNMENT OF LEASES AND
RENTS FROM ONE LENDER
TO ANOTHER LENDER
--------------------------------------------------------------------------------
ASLQ ASSIGNMENT OF LIQUOR LICENSE
--------------------------------------------------------------------------------
ASLR * ASSIGNMENT OF LEASES AND RENTS NAMED THE ASSIGNMENT OF
LEASES AND RENTS; THIS
DOCUMENT SERVES TO
TRANSFER ANY/ALL LEASES
ASSOCIATED WITH THE
PROPERTY FROM THE
BORROWER TO THE ORIGINAL
LENDER UNDER THE
CONTRACTUAL CONDITIONS
FOUND IN THE DOCUMENT
--------------------------------------------------------------------------------
ASLV * INVESTOR ASSIGNMENT OF ASSIGNMENT OF ALSO REFERRED TO AS THE
LEASES AND RENTS INVESTOR ASSIGNMENT OF
ASSIGNMENT OF LEASES AND
RENTS; DOCUMENT
TRANSFERS OWNERSHIP OF
THE ASSIGNMENT OF LEASES
AND RENTS FROM ONE
LENDER TO ANOTHER
LENDER; USUALLY IT ENDS
IN "XXXXX FARGO or
NORWEST BANK MINNESOTA,
N.A., AS TRUSTEE ..."
--------------------------------------------------------------------------------
ASN1 * ASSIGNMENT 1 ALSO REFERRED TO AS THE
ASSIGNMENT 1 OF
MORTGAGE; DOCUMENT
TRANSFERS OWNERSHIP OF
THE MORTGAGE FROM ONE
LENDER TO ANOTHER LENDER
--------------------------------------------------------------------------------
ASN2 * ASSIGNMENT 2 ALSO REFERRED TO AS THE
ASSIGNMENT 2 OF
MORTGAGE; DOCUMENT
TRANSFERS OWNERSHIP OF
THE MORTGAGE FROM ONE
LENDER TO ANOTHER LENDER
--------------------------------------------------------------------------------
ASN3 * ASSIGNMENT 3 ALSO REFERRED TO AS THE
ASSIGNMENT 3 OF
MORTGAGE; DOCUMENT
TRANSFERS OWNERSHIP OF
THE MORTGAGE FROM ONE
LENDER TO ANOTHER LENDER
--------------------------------------------------------------------------------
ASN4 * ASSIGNMENT 4 ALSO REFERRED TO AS THE
ASSIGNMENT 4 OF
MORTGAGE; DOCUMENT
TRANSFERS OWNERSHIP OF
THE MORTGAGE FROM ONE
LENDER TO ANOTHER LENDER
--------------------------------------------------------------------------------
ASN5 * ASSIGNMENT 5 ALSO REFERRED TO AS THE
ASSIGNMENT 5 OF
MORTGAGE; DOCUMENT
TRANSFERS OWNERSHIP OF
THE MORTGAGE FROM ONE
LENDER TO ANOTHER LENDER
--------------------------------------------------------------------------------
ASN6 * ASSIGNMENT 6 ALSO REFERRED TO AS THE
ASSIGNMENT 6 OF
MORTGAGE; DOCUMENT
TRANSFERS OWNERSHIP OF
THE MORTGAGE FROM ONE
LENDER TO ANOTHER LENDER
--------------------------------------------------------------------------------
ASN7 * ASSIGNMENT 7 ALSO REFERRED TO AS THE
ASSIGNMENT 7 OF
MORTGAGE; DOCUMENT
TRANSFERS OWNERSHIP OF
THE MORTGAGE FROM ONE
LENDER TO ANOTHER LENDER
--------------------------------------------------------------------------------
ASN8 * ASSIGNMENT 8 ALSO REFERRED TO AS THE
ASSIGNMENT 8 OF
MORTGAGE; DOCUMENT
TRANSFERS OWNERSHIP OF
THE MORTGAGE FROM ONE
LENDER TO ANOTHER LENDER
--------------------------------------------------------------------------------
ASN9 * ASSIGNMENT 9 ALSO REFERRED TO AS THE
ASSIGNMENT 9 OF
MORTGAGE; DOCUMENT
TRANSFERS OWNERSHIP OF
THE MORTGAGE FROM ONE
LENDER TO ANOTHER LENDER
--------------------------------------------------------------------------------
ASNB * BLANKET ASSIGNMENT DOCUMENT TRANSFERS
OWNERSHIP OF THE
MORTGAGE FROM ONE
LENDER TO ANOTHER
LENDER; AN ASSIGNMENT OF
MORTGAGE THAT IS USED TO
TRANSFER OWNERSHIP OF
MORE THAN ONE INDIVIDUAL
LOAN AT A TIME
--------------------------------------------------------------------------------
ASNV * INVESTOR ASSIGNMENT ALSO REFERRED TO AS THE
INVESTOR ASSIGNMENT OF
MORTGAGE; DOCUMENT
TRANSFERS OWNERSHIP OF
THE MORTGAGE FROM ONE
LENDER TO ANOTHER
LENDER; USUALLY IT ENDS
IN "XXXXX FARGO or
NORWEST BANK MINNESOTA,
N.A., AS TRUSTEE ..."
--------------------------------------------------------------------------------
ASPW ASSIGNMENT OF PERMITS & WARRANTIES
--------------------------------------------------------------------------------
ASSE ASSET MANAGER AGREEMENT
--------------------------------------------------------------------------------
ASUM ASSUMPTION AGREEMENT DOCUMENT TRANSFERS THE
RIGHTS, TERMS, OR
CONDITIONS OF ANY / ALL
DOCUMENTS IN THE FILE
FROM ONE BORROWER TO
ANOTHER BORROWER
--------------------------------------------------------------------------------
ATTY ATTORNEYS OPINION
--------------------------------------------------------------------------------
BOFS XXXX OF SALE
--------------------------------------------------------------------------------
BUYD BUYDOWN AGREEMENT
--------------------------------------------------------------------------------
CEM CONSOLIDATION AGREEMENT
--------------------------------------------------------------------------------
CKLT LOAN FILE CHECKLIST
--------------------------------------------------------------------------------
CNFS CERTIFICATE OF NON-FOREIGN STATUS
--------------------------------------------------------------------------------
COFS CONTRACT OF SALE
--------------------------------------------------------------------------------
COM1 ( --9)* COMBINATION ASSIGNMENT DOCUMENT
ASSIGNING TWO OR MORE
INTERVENING ASSIGNMENTS
IN ONE
--------------------------------------------------------------------------------
COMV* COMBINATION FINAL ASSIGNMENT
DOCUMENT ASSIGNING TWO
OR MORE DOCUMENTS WITH
ONE
--------------------------------------------------------------------------------
CONV CONVERSION AGREEMENT
--------------------------------------------------------------------------------
COOP CO-OP A TYPE OF LOAN THAT HAS
DIFFERENT REVIEW
REQUIREMENTS THAN NORMAL
COMMERCIAL LOANS
--------------------------------------------------------------------------------
CTRL CREDIT LEASE / CREDIT TENANT LEASE
--------------------------------------------------------------------------------
DEE1 ADDITIONAL DEED
--------------------------------------------------------------------------------
XXX0 0XX ADDITIONAL DEED
--------------------------------------------------------------------------------
DEFS DEFEASANCE DOCUMENTS
--------------------------------------------------------------------------------
ENVI ENVIRONMENTAL INDEMNITY
--------------------------------------------------------------------------------
ENAS ENVIRONMENTAL ASSESSMENT ENVIRONMENTAL POLICY OR
PHASE I ENVIRONMENTAL
ASSESSMENT
--------------------------------------------------------------------------------
ESCR ESCROW AGREEMENT
--------------------------------------------------------------------------------
ESTO ESTOPPEL LETTER/AGREEMENT FRANCHISOR OR LESSOR
--------------------------------------------------------------------------------
FILE LOAN FILE REFERS TO THE FILE
FOLDER OR ALL OF THE
INDIVIDUAL DOCUMENTS
ASSOCIATED WITH A
INDIVIDUAL LOAN
--------------------------------------------------------------------------------
XXXX FRANCHISE AGREEMENT (OR TARGET RESERVATION
AGREEMENT FOR
CONSTRUCTION LOAN)
--------------------------------------------------------------------------------
GRND GROUND LEASE
--------------------------------------------------------------------------------
GUAR GUARANTY AGREEMENT
--------------------------------------------------------------------------------
HAZA HAZARD POLICY
--------------------------------------------------------------------------------
ICAG INTERCREDITOR AGREEMENT
--------------------------------------------------------------------------------
IRCA INTEREST RATE CAP AGREEMENT
--------------------------------------------------------------------------------
LAGR MORTGAGE LOAN AGREEMENT
--------------------------------------------------------------------------------
LCRD LETTER OF CREDIT
--------------------------------------------------------------------------------
LEAS LEASE DOCUMENT LEASE DOCUMENT OTHER
THAN THE ASSIGNMENT OF
LEASES AND RENTS
--------------------------------------------------------------------------------
LEGL LEGAL DESCRIPTION DOCUMENT
--------------------------------------------------------------------------------
MERG MERGER DOCUMENT
--------------------------------------------------------------------------------
MODF MODIFICATION AGREEMENT
--------------------------------------------------------------------------------
MORT MORTGAGE/DEED OF TRUST
--------------------------------------------------------------------------------
NOTA NOTICE OF ASSIGNMENT
--------------------------------------------------------------------------------
NOT1 ADD'L NOTE
--------------------------------------------------------------------------------
NOT2 2ND ADDITIONAL NOTE
--------------------------------------------------------------------------------
NOTE MTG NOTE
--------------------------------------------------------------------------------
OMNI/AGRE ASSIGNMENT OF AGREEMENTS ALSO KNOWN AS THE
OMNIBUS ASSIGNMENT;
DOCUMENT SERVES TO
TRANSFER ANY ADDITIONAL
RIGHTS, SERVICES,
PROPERTY, AND OTHER
MISCELLANEOUS RIGHTS
(THAT ARE NOT COVERED BY
THE MORTGAGE, ASSIGNMENT
OF LEASES AND RENTS, OR
UCC'S) FROM THE BORROWER
TO THE ORIGINAL LENDER
--------------------------------------------------------------------------------
PMI PRIVATE MORTGAGE INSURANCE
--------------------------------------------------------------------------------
POA POWER OF ATTORNEY
--------------------------------------------------------------------------------
QCLD QUIT CLAIM DEED
--------------------------------------------------------------------------------
RECG RECOGINITION AGREEMENT
--------------------------------------------------------------------------------
RECP RECEIPT & CLOSING CERTIFICATE
--------------------------------------------------------------------------------
RIDR RIDERS
--------------------------------------------------------------------------------
SCER STOCK CERTIFICATE DOCUMENT THAT IS USUALLY
ASSOCIATED WITH CO-OP
LOANS
--------------------------------------------------------------------------------
SCHD POOL SCHEDULE
--------------------------------------------------------------------------------
SECI * SECURITY INSTRUMENT
--------------------------------------------------------------------------------
SINS SITE INSPECTION
--------------------------------------------------------------------------------
SPOW STOCK POWER DOCUMENT THAT IS USUALLY
ASSOCIATED WITH CO-OP
LOANS
--------------------------------------------------------------------------------
SUBD SUBORDINATION AGREEMENT
--------------------------------------------------------------------------------
SURV SURVEY
--------------------------------------------------------------------------------
SUR1 FINAL SURVEY AS/BUILT (FOR CONSTRUCTION LOANS)
--------------------------------------------------------------------------------
TCMT TITLE COMMITMENT
--------------------------------------------------------------------------------
TENT TENT ESTOPPEL
--------------------------------------------------------------------------------
TPOL TITLE POLICY
--------------------------------------------------------------------------------
UCC1 * UCC-1 (COUNTY) COUNTY FILING TO
ORIGINAL LENDER
--------------------------------------------------------------------------------
UC31 (---9)* INTERVENING UCC-3 (COUNTY) COUNTY FILING -
INTERVENING LENDERS
--------------------------------------------------------------------------------
UCC3 * UCC-3 (COUNTY) COUNTY FILING TO XXXXX
FARGO OR TRUSTEE
--------------------------------------------------------------------------------
UCS1 * UCC-1 (STATE) STATE FILING TO ORIGINAL
LENDER
--------------------------------------------------------------------------------
US31 (---9)* INTERVENING UCC-3 (STATE) STATE FILING -
INTERVENING LENDERS
--------------------------------------------------------------------------------
UCS3 * UCC-3 (STATE) STATE FILING TO XXXXX
FARGO OR TRUSTEE
--------------------------------------------------------------------------------
WDED WARRANTY DEED
--------------------------------------------------------------------------------
SCHEDULE III
SCHEDULE OF ENVIRONMENTALLY INSURED MORTGAGE LOANS
COBALT CMBS COMMERCIAL MORTGAGE TRUST 2007-C3
SCHEDULE III
SCHEDULE OF ENVIRONMENTALLY INSURED MORTGAGE LOANS
Mortgage Loan Number Property Name
--------------------------------------------------------------------------------
NONE
SCHEDULE IV
SCHEDULE OF INITIAL DIRECTING HOLDER FOR EACH LOAN COMBINATION
(as of August 1, 2007)
Loan Combination Initial Directing Holder
---------------- ------------------------
Xxxxxxx River Plaza North Loan
Combination............................. Citigroup Global Markets Realty Corp.
Encino Courtyard Loan Combination......... Citigroup Global Markets Realty Corp.
Irvine EOP San Diego Portfolio Loan
Combination............................. Wachovia Bank, National Association
0 Xxxxxx Xxxxxx Loan Combination.......... Wachovia Bank, National Association
Cedar Ridge Townhomes Loan Combination.... CWCapital LLC
Northcrest Apartments Loan Combination.... CWCapital LLC
SCHEDULE V
SUPPLEMENTAL SERVICER SCHEDULE
COBALT CMBS COMMERCIAL MORTGAGE TRUST 2007-C3
SCHEDULE V
SCHEDULE OF INITIAL DIRECTING HOLDER FOR EACH LOAN GROUP
SERVICED LOAN COMBINATIONS
Mortgage Loan Number Property Name Initial Directing Holder
--------------------------------------------------------------------------------
NONE
SCHEDULE VI
PRIMARY SERVICED LOANS
COBALT CMBS COMMERCIAL MORTGAGE TRUST 2007-C3
Schedule VI
SUPPLEMENTAL SERVICER SCHEDULE
Mortgage Loan Number Property Name General Property Type
--------------------- ------------------------------------------------ ---------------------
1 Xxxxxxx River Plaza North Office
2 Irvine EOP San Diego Portfolio Various
2.01 Nobel Corporate Plaza Office
2.02 Torrey View Corporate Center Office
2.03 Park Plaza Office Building Office
2.04 Genesee Bank Building Office
2.05 La Jolla Village Building Office
2.06 Bank of America Building Office
2.07 Xxxxxxx'x Xxxxx Xxxxx Xxxxxx
0 0 Xxxxxx Xxxxxx Xxxxxx
0 00 Xxxx Xxxxxx Xxxxxx
0 Xxxxxxxx Xxxxxx - Xxxxxxxxxx, XX Hospitality
6 Arbors at Broadlands Multifamily
7 Tradewinds Hospitality Portfolio Hospitality
7.01 Tradewinds Island Grand Resort Hospitality
7.02 Tradewinds Breckenridge Resort Hospitality
7.03 Tradewinds Sandpiper Resort Hospitality
8 Express Scripts Office Property Xxxxxx
0 Xxxxxx Xxxxx Xxxx Xxxxxx Xxxxx I Retail
10 0000 Xxxxxxxx Xxxxxxxxx Office
11 Xxxx Corporation Headquarters Building Office
12 Walgreens Portfolio Retail
12.01 Walgreens - Florissant, MO Retail
12.02 Walgreens - Omaha, NE Retail
12.03 Walgreens - Rogers, AR Retail
12.04 Walgreens - Albuquerque, NM Retail
12.05 Walgreens - Mesa, AZ Retail
12.06 Walgreens - Milwaukee, WI Retail
12.07 Walgreens - Springdale, AR Retail
12.08 Walgreens - Glendale, AZ Retail
12.09 Walgreens - Green Valley, AZ Retail
12.1 Walgreens - Phoenix, AZ Retail
12.11 Walgreens - Lincoln, NE Retail
00 Xxxxxxxx Xxxxxx - Xxxxxxxxxx, XX Hospitality
14 Xxxxxxx Xxxxx Xxxxxx Xxxxxx
00 Xxxxx Xxxxxxx Xxxxx I Retail
00 Xxxxxxxx Xxxxxx - Xxxxxx Xxxx, XX Hospitality
17 0000 Xxxxxxxxx Xxxxxx & 000 Xxxx Xxxxxx Office
18 Vinings Corner Apartments Multifamily
19 The Encino Courtyard Retail
20 Mission Gate Multifamily
21 Rio Norte Shopping Center Retail
00 Xxxxxx Xxxxxx Xxx - Xxxxxxx Xxxx, XX Hospitality
23 Chant Portfolio - Pool 2 Office
23.01 0000 Xxxxxxxxx Xxxxxx Office
23.02 0000 Xxxxxxxxx Xxxxxx Office
23.03 0000 Xxxxxx Xxxxxxxxx Xxxxxx
23.04 0000 Xxxxxxxxx Xxxxxx Office
24 Lynnhaven North Shopping Center Retail
25 Preferred Freezer - Philadelphia, PA Industrial
00 Xxxxxxx Xxx - Xxxxxxxx, XX Hospitality
27 Semoran North Apartments Multifamily
00 Xxx Xxxxx xx Xxxxx Xxxx Multifamily
29 Campus Club Student Housing Complex Multifamily
00 Xxxxxx Xxxxxx Xxx - Xxxxxxxxx, XX Hospitality
31 Xxx Xxxxxxxx Xxxxxx Xxxxxx
00 Xxxxxxx Xxxxx Apartments Multifamily
00 Xxxxxxxx Xxx - Xxxxxxxx, XX Hospitality
34 1111 & 0000 Xxxxxx Xxxxxx Office
35 Xxxxxxx Technologies Buildings Portfolio Various
35.01 000 Xxxxxxxx Xxxxxxxxx Office
35.02 515 Xxxxx Xxxxx Court Industrial
36 Joe's Xxxxxxxx Retail
37 Beaumont Medical Center Xxxxxx
00 Xxxxxxxx - Xxxx Xxxxxxxx, XX Hospitality
39 0000 Xxxxxxxxxx Xxxxxx, XX Mixed Use
40 Xxxxxxxx Apartments Multifamily
41 Fox Chase Apartments Multifamily
42 Xxxxxxxx Reserve Apartments Multifamily
43 Greens Crossroads Retail
44 321 Xxxxxxxxx Center Drive Office
45 Shadowridge Apartments Multifamily
46 Illinois Student Housing Portfolio Multifamily
46.01 000 Xxxx Xxxx Xxxxxx Multifamily
46.02 000 Xxxx Xxxxxxx Xxxxxx Multifamily
46.03 000 Xxxxxx Xxxxxx Multifamily
46.04 000 Xxxxxx Xxxxxx Multifamily
46.05 000 Xxxx Xxxx Xxxxxx Multifamily
00 Xxx Xxxxx Xxxxxxxxxx - Xxxxxx Xxxxxxx, XX Multifamily
48 The Crane Building Mixed Use
49 Dorado Heights Apartments Multifamily
50 Cherry Hill Theatres Retail
51 Timberhill Shopping Center Retail
00 Xxxxxx Xxxxxx Shops Retail
53 Days Inn - Broward, FL Hospitality
54 Tahiti Village Restaurant Building Retail
55 GE Distribution Center Industrial
00 XXX Xxxxxxxx Xxxxxx
00 Xxxxxxx Xxxxxx Xxxxx Retail
58 Xxxxxx'x Mill Multifamily
59 University Glades Student Housing Complex Multifamily
00 Xxxxxxxx Xxxxxxx Xxx & Xxxxxx - Xxxxxxxxxxxx, XX Hospitality
61 Buschwood III Xxxxxx
00 Xxxxxxxxx XX Xxxxxx Xxxxxxxx Xxxxxx
00 Xxxxxxxx Xxxxxxxxx - Yorktown, VA Hospitality
64 Verizon Wireless I Office
65 Verizon Wireless II Xxxxxx
00 Xxxx Xxxx Xxxxxx Xxxxxx Xxxxxx
00 Xxxxxxxxxx Xxxxxx Shopping Center Retail
00 Xxxxxxxxx Xxxx Xxxxxxxxxx
00 Xxxxxxx Xxxxxx Xxxxx Retail
00 Xxxxxxxxxxxx Xxxxxxx & Xxxxxxxxxxxx Xxxxx Office
71 Landmark Apartments Multifamily
00 XxxxxXxxxx Xxxxxx - Xxxx Xxxxx, XX Hospitality
73 1601 Precision Park Lane Industrial
74 Sweet Ovations Plant Industrial
00 Xxxxxxxxx Xxx & Xxxxxx - Xxxxxxxx, XX Hospitality
76 Ville Montee Apartments Multifamily
77 Xxxxxxx Town Center Retail
78 Guam Medical Plaza Office
79 0000 Xxxxxx Xxxxxx Mixed Use
80 Air & Space Self Storage Self Storage
00 Xxxxxxxx Xxxxxx Station Mixed Use
82 University Place Apartments Multifamily
83 Jasper Medical Office Building Xxxxxx
00 Xxx Xxxxx Xxxxxxxxxx - Xx Xxxx, XX Multifamily
85 University Park Multifamily
86 Tanglewood Apartments Multifamily
87 0000 00xx Xxxxxx XX Retail
00 Xxxxxx Xxxxxxxxx Xxxxxx
00 Xxxxxxxxx - Xxxxxxxx, XX Retail
90 The Hallmark Building Office
91 Rite Aid - Bronx, NY Retail
92 Xxxxxxx Building Mixed Use
93 Xxxxxx Xxxxx Retail
94 Cedar Ridge Townhomes Multifamily
95 The Northcrest Apartments Multifamily
96 Walgreens - Cortlandville, NY Retail
97 SC4 Retail Retail
00 Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxxxx
00 Xxxxxxxxx - Xxxxxxx, XX Retail
100 Xxxx Xxxxx Factory Office
101 0000 Xxxxxxxxx Xxxxxx, XX Retail
102 Norco Centre Retail
000 Xxxx Xxxxx Xxxxx - Xxxxxxxx, XX Self Storage
000 Xxxxxxxx Xxxx Xxxxxxxxxx Multifamily
000 Xxxxx Xxxx Xxxxx Multifamily
106 Wometco Building Xxxxxx
000 Xxxx Xxx - Xxxx Xxxxxx, XX Retail
108 Harley Retail Shops Retail
109 The Greenway/Xxxxxxx'x Landing Apartments Multifamily
110 Foundations Bank & Executive Center Mixed Use
000 Xxxxx Xxxxxx Retail Retail
000 Xxxxxxxxx Xxxxx I & II Retail
113 Prairie Lakes Shopping Center Retail
000 Xxxxxxxxx Xxxxxxx & Villas Multifamily
000 00xx Xxxxxx Xxxxx Retail
116 106 South Xxxxxxx and 000 Xxxx Xxxxxxxxx Multifamily
000 Xxxxx Xxxxx Xxxxxx
000 XXX Xxxxx Retail
119 00 Xxxxxxxxx Xxxxxxxx Office
120 The Xxxxxxxx Campus Inn Hospitality
000 XXX - Xxxxx Xxxx Xxxxx, XX Retail
000 Xxxxxxxxx Xxxxxxxxxxx Retail
123 Doral Office Building Office
000 Xxxxxxxxxx Xxxxx Retail Center Retail
Mortgage Loan Number Revised Rate for ARD Loan
--------------------- -----------------------------------------------------------------------------------
1 Greater of interest rate plus 2% or Treasury Rate plus 3%
2
2.01
2.02
2.03
2.04
2.05
2.06
2.07
3
4
5
6
7
7.01
7.02
7.03
8
9
10
11
12
12.01
12.02
12.03
12.04
12.05
12.06
12.07
12.08
12.09
12.1
12.11
13
14
15
16
17 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%
18
19
20
21
22
23
23.01
23.02
23.03
23.04
24
25 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%
26
27
28
29 Greater of initial interest rate plus 3% or TCMYI plus 3%
30
31 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%
32 Greater of initial interest rate plus 3% or TCMYI plus 3%
33
34
35 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%
35.01
35.02
36
37
38
39
40
41
42
43 Greater of initial interest rate plus 3% or the Extended Term Treasury Rate plus 3%
44
45
46
46.01
46.02
46.03
46.04
46.05
47
48
49
50 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%
51
52
53
54
55
56 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%.
57
58
59 Greater of initial interest rate plus 3% or TCMYI plus 3%
60
61
62
63
64
65
66
67
68 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%
69 Greater of initial interest rate plus 2.75% or the Treasury Rate plus 2.75%
70
71
72
73
74 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%
75
76
77 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%
78
79
80 Greater of initial interest rate plus 3% or the Extended Term Treasury Rate plus 3%
81
82
83
84
85
86
87
88
89 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%
90
91
92
93 Greater of initial interest rate plus 2% or the Treasury Rate plus 2%.
94
95
96 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%
97
98
99 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%
100
101
102
103
104
105 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%
106
107 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%.
108
109
110
111
112
113
114
115
116
117 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%.
118
119 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%
120
121 Greater of (i) 2% plus initial interest rate or (ii) 3% plus annualized yield
122
123
124
Mortgage Loan Number Original Loan Balance ($) Original Amort Term (Mos.) Remaining Amort Term (Mos.) Letter of Credit
--------------------- ------------------------- -------------------------- --------------------------- ----------------
1 145,000,000 IO IO N
2 137,000,000 IO IO N
2.01 35,777,070
2.02 30,410,510
2.03 22,338,854
2.04 17,277,707
2.05 15,707,006
2.06 12,652,866
2.07 2,835,987
3 100,000,000 IO IO N
4 57,000,000 IO IO N
5 56,400,000 360 360 N
6 50,375,000 IO IO N
7 50,000,000 IO IO N
7.01
7.02
7.03
8 45,000,000 360 360 N
9 43,500,000 IO IO N
10 41,000,000 360 360 N
11 41,000,000 360 360 N
12 40,000,000 IO IO N
12.01
12.02
12.03
12.04
12.05
12.06
12.07
12.08
12.09
12.1
12.11
13 36,450,000 360 360 N
14 36,000,000 IO IO N
15 33,200,000 IO IO N
16 31,237,500 360 360 N
17 28,475,000 360 358 N
18 27,580,000 IO IO N
19 27,462,000 IO IO N
20 26,400,000 IO IO N
21 25,120,000 360 360 N
22 24,880,000 360 360 N
23 24,800,000 360 360 N
23.01 8,736,274
23.02 8,295,525
23.03 4,517,677
23.04 3,250,524
24 24,140,000 IO IO N
25 22,300,000 IO IO N
26 22,000,000 360 358 N
27 21,500,000 IO IO Y
28 21,200,000 IO IO N
29 20,475,000 IO IO N
30 19,500,000 360 360 Y
31 19,000,000 IO IO N
32 17,875,000 IO IO N
33 17,760,000 360 358 N
34 17,000,000 360 360 N
35 16,300,000 360 360 N
35.01 9,943,818
35.02 6,356,182
36 15,500,000 360 360 N
37 15,000,000 360 360 N
38 15,000,000 IO IO N
39 14,660,000 360 360 N
40 14,640,000 IO IO N
41 14,525,000 360 360 N
42 13,800,000 IO IO N
43 13,000,000 360 360 N
44 12,520,000 360 360 N
45 12,150,000 IO IO N
46 12,000,000 360 360 N
46.01
46.02
46.03
46.04
46.05
47 12,000,000 360 360 N
48 11,700,000 360 360 N
49 11,400,000 IO IO N
50 11,000,000 360 360 N
51 11,000,000 360 360 N
52 10,950,000 IO IO N
53 10,240,000 360 358 N
54 10,182,000 360 360 N
55 10,150,000 360 360 N
56 9,900,000 IO IO N
57 9,734,000 360 360 N
58 9,700,000 IO IO N
59 9,685,000 IO IO N
60 9,500,000 360 359 N
61 9,200,000 IO IO N
62 9,120,000 360 360 Y
63 9,000,000 360 360 N
64 8,840,000 IO IO N
65 8,835,000 IO IO N
66 8,705,000 IO IO N
67 8,600,000 360 360 N
68 8,400,000 IO IO N
69 8,250,000 360 360 N
70 8,000,000 360 360 N
71 7,878,000 IO IO N
72 7,840,000 360 360 N
73 7,740,000 360 360 N
74 7,600,000 360 360 N
75 7,500,000 360 359 N
76 7,250,000 360 360 N
77 7,160,000 IO IO N
78 7,000,000 360 358 N
79 6,800,000 360 360 N
80 6,800,000 360 360 N
81 6,800,000 360 357 N
82 6,550,000 IO IO N
83 6,520,000 360 360 N
84 6,250,000 360 360 N
85 5,866,000 IO IO N
86 5,875,000 360 357 N
87 5,850,000 300 297 N
88 5,782,000 360 360 N
89 5,632,000 360 360 N
90 5,600,000 360 360 N
91 5,473,620 360 358 Y
92 5,370,672 IO IO N
93 5,187,600 300 300 N
94 5,140,000 360 360 N
95 5,000,000 360 360 N
96 4,864,000 360 360 N
97 4,850,000 360 358 N
98 4,800,000 360 358 N
99 4,480,000 360 360 N
100 4,479,000 360 360 N
101 4,400,000 IO IO N
102 4,400,000 360 360 N
103 4,250,000 360 360 N
104 4,200,000 IO IO N
105 3,950,000 360 356 N
106 3,850,000 360 000 X
000 3,825,000 360 000 X
000 3,700,000 360 000 X
000 3,580,000 360 000 X
000 3,515,000 360 000 X
000 3,500,000 360 000 X
000 3,470,000 360 000 X
000 3,250,000 360 000 X
000 3,150,000 360 000 X
000 3,120,000 360 357 N
116 3,065,000 IO IO N
117 3,000,000 360 360 N
118 2,950,000 360 360 N
119 2,800,000 IO IO N
120 2,700,000 360 357 N
121 2,677,000 360 000 X
000 2,650,000 360 000 X
000 2,277,000 360 360 N
124 1,087,000 IO IO N
Mortgage Loan Number Current Tax Balance
--------------------- -------------------
1
2
2.01
2.02
2.03
2.04
2.05
2.06
2.07
3 767,256
4 354,856
5 49,648
6 158,954
7
7.01
7.02
7.03
8 551,250
9
10 51,650
11
12
12.01
12.02
12.03
12.04
12.05
12.06
12.07
12.08
12.09
12.1
12.11
13 377,426
14
15
16 324,054
17 83,066
18 161,489
19 128,730
20 170,640
21 225,003
22 88,421
23 33,471
23.01
23.02
23.03
23.04
24 27,769
25
26 62,760
27 128,436
28 174,699
29 347,430
30 11,397
31 181,825
32 300,211
33 79,972
34 196,988
35
35.01
35.02
36
37 107,192
38 157,021
39 86,312
40 18,216
41 81,253
42 50,667
43 46,667
44 108,419
45 23,859
46 43,927
46.01
46.02
46.03
46.04
46.05
47 115,121
48 42,144
49 14,345
50
51
52 51,512
53 132,365
54 27,622
55
56
57
58 117,093
59 152,056
60 74,601
61 98,768
62
63 4,790
64 23,456
65 23,254
66 75,813
67 107,316
68 17,827
69 72,672
70 29,657
71 14,489
72 51,209
73
74
75 7,481
76 238,453
77 93,149
78 13,618
79 102,829
80 42,000
81 127,146
82
83 54,249
84 62,799
85
86 94,234
87
88 14,938
89
90 34,864
91
92 5,879
93
94 90,153
95 27,704
96
97
98 50,184
99
100 5,972
101
102
103 20,520
104 10,527
105 14,190
106
107 9,985
108 14,040
109 10,441
110 16,350
111 26,109
112 24,996
113 5,200
114 18,476
115 28,938
116 73,100
117 14,190
118 41,278
119
120
121
122
123 78,001
124
Mortgage Loan Number On-going Tax Escrow - Monthly
--------------------- -------------------------------------------------------------------------------
1
2
2.01
2.02
2.03
2.04
2.05
2.06
2.07
3 127,876
4 59,143
5 16,549
6 39,739
7
7.01
7.02
7.03
8 78,750
9
10 17,217
11
12
12.01
12.02
12.03
12.04
12.05
12.06
12.07
12.08
12.09
12.1
12.11
13 36,339
14
15
16 46,293
17 20,767
18 20,186
19 42,910
20 42,660
21 45,001
22 10,996
23 16,735
23.01
23.02
23.03
23.04
24 13,885
25
26 20,920
27 16,055
28 21,837
29 43,429
30 950
31 22,728
32 50,035
33 26,657
34
35
35.01
35.02
36
37 21,438
38 26,170
39 17,262
40 6,072
41 27,084
42 12,667
43 11,667
44 10,842
45 11,930
46 12,038
46.01
46.02
46.03
46.04
46.05
47 19,187
48 4,214
49 4,782
50
51
52 12,878
53 16,546
54 6,906
55
56
57
58 23,419
59 19,007
60 10,657
61 12,346
62 8,545
63 2,395
64 7,819
65 7,751
66 15,163
67 1/12 of taxes estimated by lender -- closing statement does not specify monthly
68 5,942
69 12,112
70 3,707
71 4,830
72 10,242
73
74
75 3,740
76 21,678
77 13,307
78 3,405
79 25,707
80 7,000
81 31,786
82 4,573
83 7,750
84 12,560
85 3,580
86 13,462
87
88 4,979
89
90 8,716
91
92 5,879
93
94 11,269
95 3,463
96
97 2,765
98 8,364
99
100 1,991
101
102
103 2,565
104 5,264
105 1,290
106
107 3,328
108 3,510
109 5,220
110 2,336
111 2,901
112 4,166
113 2,600
114 4,619
115 4,134
116 6,092
117 1,290
118 5,160
119
120
121
122
123 8,667
124 678
Mortgage Loan Number Current Insurance Balance
--------------------- -------------------------
1
2
2.01
2.02
2.03
2.04
2.05
2.06
2.07
3 90,545
4 65,388
5 29,137
6 51,300
7
7.01
7.02
7.03
8 40,747
9
10 11,774
11
12
12.01
12.02
12.03
12.04
12.05
12.06
12.07
12.08
12.09
12.1
12.11
13 25,699
14
15
16 27,403
17 32,152
18 29,064
19 4,699
20 35,738
21 5,956
22
23
23.01
23.02
23.03
23.04
24
25
26
27 75,592
28 16,082
29 87,656
30
31 114,794
32 72,890
33
34
35
35.01
35.02
36
37 3,846
38 22,013
39 6,037
40 21,400
41 4,830
42 14,710
43 23,388
44 2,203
45 23,067
46 4,805
46.01
46.02
46.03
46.04
46.05
47 40,081
48 46,231
49 22,012
50
51
52 2,074
53
54
55
56
57
58 40,423
59 34,467
60 2,069
61 17,285
62 9,693
63
64 2,617
65 2,676
66 2,037
67 31,283
68 10,041
69 3,290
70 7,249
71 10,293
72 9,146
73
74
75
76
77 2,105
78 19,704
79
80 7,219
81
82 1,690
83 1,123
84 4,800
85 1,499
86 112,140
87
88 641
89
90 8,934
91
92
93
94 36,879
95 3,471
96
97 2,453
98 6,158
99
100
101
102
103 7,440
104 13,420
105 6,750
106
107 1,731
108 1,100
109 9,033
110 3,988
111 825
112 2,668
113 6,068
114 8,803
115 3,221
116 6,183
117 1,168
118 4,559
119
120
121
122 1,139
123 24,084
124 407
Mortgage Loan Number On-going Insurance Escrow - Monthly
--------------------- --------------------------------------------------------------------------------------------
1
2
2.01
2.02
2.03
2.04
2.05
2.06
2.07
3 10,090
4 10,898
5 7,284
6 5,700
7
7.01
7.02
7.03
8 5,093
9
10 2,943
11
12
12.01
12.02
12.03
12.04
12.05
12.06
12.07
12.08
12.09
12.1
12.11
13 6,425
14
15
16 6,851
17 4,019
18 5,813
19 1,566
20 7,148
21 5,956
22
23
23.01
23.02
23.03
23.04
24
25
26
27 5,399
28 3,959
29 12,522
30
31 9,566
32 10,413
33
34
35
35.01
35.02
36
37 1,125
38 7,338
39 1,317
40 3,567
41 4,830
42 2,942
43 5,847
44 2,203
45 3,845
46 2,402
46.01
46.02
46.03
46.04
46.05
47 5,010
48 5,137
49 3,669
50
51
52 2,074
53
54
55
56
57
58 13,474
59 4,924
60 1,034
61 4,321
62 1,212
63
64 1,309
65 1,338
66 679
67 1/12 of insurance premiums estimated by lender -- closing statement does not specify monthly
68 1,116
69 1,645
70 1,450
71 1,715
72 4,573
73
74
75
76
77 1,053
78 9,852
79
80 555
81
82 1,690
83 1,123
84 2,400
85 1,499
86 9,345
87
88 641
89
90 1,117
91
92
93
94 3,073
95 1,736
96
97 613
98 1,232
99
100
101
102
103 827
104 1,678
105 614
106
107 433
108 550
109 2,258
110 307
111 275
112 2,668
113 607
114 2,934
115 1,610
116 883
117 117
118 2,279
119
120
121
122 104
123 6,893
124 407
Mortgage Loan Number Current Deferred Maintenance Balance Deferred Maintenance Escrow Current Capex Balance
--------------------- ------------------------------------ --------------------------- ---------------------
1
2
2.01
2.02
2.03
2.04
2.05
2.06
2.07
3 587,018 510,450
4 6,250 5,000 2,468,007
5
6
7
7.01
7.02
7.03
8
9
10 1,402,982 1,122,386
11
12
12.01
12.02
12.03
12.04
12.05
12.06
12.07
12.08
12.09
12.1
12.11
13 15,400
14 24,000
15
16
17
18 3,125 2,500 9,450
19 105,750 84,600 77,490
20 1,500 9,042
21 64,935 51,948
22
23 31,875 25,500
23.01
23.02
23.03 7,000
23.04 18,500
24 12,125 5,700
25
26 7,500
27 518,900
28 1,350,000 1,189,256 9,896
29
30
31
32
33 5,440
34 1,563 1,250
35
35.01
35.02
36 3,450
37
38 21,250 17,000
39 93,975 5,500 1,248
40
41
42 4,417
43 42,000 34,000 2,477
44 1,361
45 3,750 3,000 4,267
46 58,120 46,500 126,000
46.01 29,500
46.02 17,000
46.03
46.04
46.05
47
48
49 1,000
50
51
52 30,000
53
54
55
56
57
58 6,062 4,850
59
60
61 700,000
62 51,563 41,250
63
64
65 952
66 500
67 39,356 31,485
68 2,500 747
69
70 673
71 3,050
72
73
74 10,469 8,375
75
76 86,375 69,100
77 20,250 16,200 830
78 6,875 5,500 1,093
79
80 1,176
81 10,000 8,000
82
83
84 25,194 20,155 3,750
85
86 90,608
87
88 59,591 47,673
89
90 405
91
92
93
94 196,195 9,500 2,630
95 34,288 27,430
96
97
98 4,438 3,550
99
100
101
102
103 8,750 7,000 716
104 1,500 1,200 1,333
105 11,500 9,200 1,000
106
107
108
109 9,000 7,200
110
111 6,563 5,250
112
113
114 825
115 216
116 21,938 17,550
117 273
118 50,000 50,000 1,100
119 899
120
121
122
123 740
124
Mortgage Loan Number On-going Capex Escrow - Monthly Current TI/LC Balance On-going TI/LC Escrow - Monthly
--------------------- ------------------------------- --------------------- -------------------------------
1 631,094
2 3,960,433
2.01
2.02
2.03
2.04
2.05
2.06
2.07
3 8,697 5,500,000
4 2,323 2,500,000
5 47,307
6 4,800
7
7.01
7.02
7.03
8
9
10 3,808
11
12
12.01
12.02
12.03
12.04
12.05
12.06
12.07
12.08
12.09
12.1
12.11
13 38,793
14
15
16 34,608
17
18 9,450
19 828
20 9,042
21 3,225 400,000 5,375
22 22,882
23 2,169 11,879
23.01
23.02
23.03
23.04
24
25
26
27
28 9,896
29 8,960
30 12,834
31
32 5,300
33
34 2,068 300,000
35 1,200,000 6,735
35.01
35.02
36
37 710 257,960 3,560
38 23,031
39 1,248 300,000 7,420
40
41 6,333
42 4,417
43 2,477 7,349
44 1,361 200,000 7,128
45 4,267
46 3,150
46.01
46.02
46.03
46.04
46.05
47 4,583
48 461 2,881
49
50
51
52 75,000
53
54
55 2,500
56 2,364 7,363
57
58 7,625
59 3,872
60 8,949
61 600,000
62 700,000
63 8,151
64 1,124
65 1,114
66 200,000 5,070
67 1,770 7,670
68 747
69
70 673 2,357
71
72
73 513
74
75 7,072
76 4,458
77 830 2,543 2,543
78 1,093 100,000 3,669
79 773 1,546
80 1,176
81
82 2,581
83 616 3,079
84 3,750
85 2,021
86 3,108
87 922
88 346 1,127
89
90 405
91
92 1,765
93
94 2,630
95 3,125
96
97
98 3,584
99
100 265 1,324
101
102 321 200,000
103 716
104 1,333
105 1,000
106
107
108 913
109 1,813
110
111 990
112 135 899
113 195 2,772
114 825 327 327
115 216 1,476 1,476
116 925
117 273 2,447
118 1,100 2,512
119 899
120
121
122 153 770
123 740
124 142 542
Mortgage Loan Number Current Other Reserve Balance Ongoing Other Escrow - Monthly ($)
--------------------- ----------------------------- ----------------------------------
1 3,754,604
2 1,854,551 / 900,498
2.01
2.02
2.03
2.04
2.05
2.06
2.07
3 5,000,000
4 1,000,000
5 4,045,343
6 1,100,000
7 500,000
7.01
7.02
7.03
8 1,744,438
9
10 550,000
11 1,247,000
12
12.01
12.02
12.03
12.04
12.05
12.06
12.07
12.08
12.09
12.1
12.11
13 3,793,774
14
15
16 3,386,077
17
18
19
20
21 39,303
22 3,100,000
23
23.01
23.02
23.03
23.04
24
25
26
27 3,000,000 / 1,000,000
28
29
30 1,100,000
31 56,250 56,250
32
33
34
35
35.01
35.02
36
37 89,250 / 420,000
38
39 620,000
40 800,000
41
42
43 2,700,000
44 670,000
45 53,813
46 208,260
46.01
46.02
46.03
46.04
46.05
47 400,000
48 159,804
49 650,000
50
51
52
53
54
55
56
57
58
59
60
61
62 600,000
63
64 287,505
65 287,505
66
67 4,562 / 13,438
68
69 21,380
70
71 450,000
72
73
74
75 45,142
76
77 125,060
78 35,000
79
80 360,000 Excess Cash Flow
81 180,000 7,500
82
83
84 106,436
85
86
87
88
89
90
91 775,000
92
93
94
95 40,000
96
97
98
99
100 859,000
101
102
103
104
105
106
107 90,897 / 376,966
108 20,000
109
110 22,530
111 85,285
112
113 18,822
114 10,920
115 34,870
116
117
118
119
120
121
122 64,122
123
124
Mortgage Loan Number Grace Period to Impose Late Charge Grace Period to Call a Default
--------------------- ---------------------------------- ------------------------------
1 0 0
2 2 days once per calendar year 0
2.01
2.02
2.03
2.04
2.05
2.06
2.07
3 0 0
4 5 0
5 0 0
6 0 0
7 5 (once per year) 0
7.01
7.02
7.03
8 0 0
9 0 0
10 0 0
11 5 0
12 0 0
12.01
12.02
12.03
12.04
12.05
12.06
12.07
12.08
12.09
12.1
12.11
13 0 0
14 0 0
15 0 0
16 0 0
17 5 5
18 7 7
19 0 0
20 7 7
21 0 0
22 0 0
23 0 0
23.01
23.02
23.03
23.04
24 15 0
25 5 5
26 0 0
27 0 0
28 7 7
29 0 0
30 0 0
31 7 7
32 10 0
33 0 0
34 0 0
35 5 0
35.01
35.02
36 0 0
37 0 0
38 0 0
39 7 7
40 7 5
41 0 0
42 15 7
43 5 5
44 5 5
45 5 5
46 0 5
46.01
46.02
46.03
46.04
46.05
47 10 0
48 0 0
49 7 5
50 7 5
51 0 0
52 0 0
53 0 0
54 0 0
55 0 0
56 5 5
57 0 0
58 7 7
59 0 0
60 0 0
61 0 0
62 0 0
63 0 0
64 0 0
65 0 0
66 5 5
67 7 7
68 5 5
69 5 5
70 5 5
71 7 5
72 0 0
73 0 0
74 7 7
75 0 0
76 0 0
77 7 7
78 5 0
79 0 0
80 7 7
81 7 7
82 0 0
83 0 0
84 6 6
85 0 0
86 5 5
87 5 5
88 0 0
89 5 5
90 5 5
91 5 5
92 0 0
93 5 5
94 7 7
95 5 5
96 5 5
97 0 0
98 7 7
99 5 5
100 0 0
101 0 7
102 0 0
103 5 5
104 5 5
105 5 5
106 0 0
107 0 7
108 5 5
109 5 5
110 7 7
111 5 5
112 5 5
113 7 7
114 7 7
115 5 0
116 7 7
117 5 5
118 5 5
119 7 7
120 5 5
121 0 0
122 5 5
123 0 5
124 0 0
Mortgage Loan Number Insured by Environmental Policies Lockbox Cash Management Number of Units Unit of Measure
--------------------- --------------------------------- ---------- --------------- --------------- ---------------
1 N Hard In-Place 354,594 Sq. Ft.
2 N Hard Springing 380,954 Sq. Ft.
2.01 103,200 Sq. Ft.
2.02 71,788 Sq. Ft.
2.03 71,758 Sq. Ft.
2.04 47,190 Sq. Ft.
2.05 43,207 Sq. Ft.
2.06 34,811 Sq. Ft.
2.07 9,000 Sq. Ft.
3 N Hard In-Place 417,473 Sq. Ft.
4 N Hard In-Place 185,851 Sq. Ft.
5 N None None 247 Rooms
6 N None None 240 Units
7 N Hard Springing 796 Rooms
7.01 381 Rooms
7.02 204 Rooms
7.03 211 Rooms
8 N Springing Springing 315,000 Sq. Ft.
9 N None None 232,754 Sq. Ft.
10 N Soft Springing 267,606 Sq. Ft.
11 N Hard In-Place 358,884 Sq. Ft.
12 N None None 164,850 Sq. Ft.
12.01 15,595 Sq. Ft.
12.02 15,008 Sq. Ft.
12.03 15,053 Sq. Ft.
12.04 13,886 Sq. Ft.
12.05 15,060 Sq. Ft.
12.06 14,171 Sq. Ft.
12.07 15,039 Sq. Ft.
12.08 15,136 Sq. Ft.
12.09 15,854 Sq. Ft.
12.1 14,996 Sq. Ft.
12.11 15,052 Sq. Ft.
13 N None None 223 Rooms
14 N Springing Springing 106,660 Sq. Ft.
15 N None None 129,009 Sq. Ft.
16 N None None 257 Rooms
17 N Hard Springing 83,516 Sq. Ft.
18 N None None 360 Xxxxx
00 X Xxxx Xxxx 99,305 Sq. Ft.
20 N None None 434 Units
21 N Springing Springing 257,981 Sq. Ft.
22 N Springing Springing 200 Rooms
23 N Springing Springing 173,553 Sq. Ft.
23.01 62,777 Sq. Ft.
23.02 56,000 Sq. Ft.
23.03 31,000 Sq. Ft.
23.04 23,776 Sq. Ft.
24 N None None 173,191 Sq. Ft.
25 N Hard In Place 132,428 Sq. Ft.
26 N Soft Springing 144 Rooms
27 N None None 348 Xxxxx
00 X Xxxx Xxxx 000 Units
29 N Soft In-Place 252 Xxxxx
00 X Xxxx Xxxx 000 Rooms
31 N Springing Springing 162,609 Sq. Ft.
32 N Hard In-Place 318 Units
33 N Hard Springing 145 Rooms
34 N None None 124,078 Sq. Ft.
35 N Hard Springing 140,000 Sq. Ft.
35.01 80,000 Sq. Ft.
35.02 60,000 Sq. Ft.
36 N None None 60,960 Sq. Ft.
37 N None None 85,252 Sq. Ft.
38 N None None 215 Rooms
39 N Hard In Place 74,904 Sq. Ft.
40 N None None 210 Units
41 N Springing Springing 304 Xxxxx
00 X Xxxx Xxxx 000 Units
43 N Hard Springing 148,647 Sq. Ft.
44 N None None 81,637 Sq. Ft.
45 N Hard Springing 204 Xxxxx
00 X Xxxx Xxxx 000 Units
46.01 59 Units
46.02 34 Units
46.03 12 Units
46.04 9 Units
46.05 12 Units
47 N Springing Springing 220 Xxxxx
00 X Xxxx Xxxx 57,345 Sq. Ft.
49 N None None 216 Units
50 N Direct Pay Springing 107,022 Sq. Ft.
51 N Springing Springing 121,120 Sq. Ft.
52 N Springing Springing 93,424 Sq. Ft.
53 N Soft Springing 114 Rooms
54 N Springing Springing 21,678 Sq. Ft.
55 N Springing Springing 300,000 Sq. Ft.
56 N Hard Springing 109,085 Sq. Ft.
57 N None None 29,524 Sq. Ft.
00 X Xxxx Xxxx 000 Units
59 N Hard In-Place 120 Units
60 N Springing Springing 132 Rooms
61 N None None 77,568 Sq. Ft.
62 N Springing Springing 103,401 Sq. Ft.
00 X Xxxx Xxxx 00 Rooms
64 N Springing Springing 67,408 Sq. Ft.
65 N Springing Springing 66,827 Sq. Ft.
66 N None None 71,268 Sq. Ft.
67 N None None 141,601 Sq. Ft.
68 N Springing Springing 59,747 Sq. Ft.
69 N Springing Springing 36,124 Sq. Ft.
70 N None None 40,367 Sq. Ft.
71 N None None 101 Units
72 N Springing Springing 95 Rooms
73 N Springing Springing 61,502 Sq. Ft.
74 N Hard Springing 93,160 Sq. Ft.
75 N Springing Springing 00 Xxxxx
00 X Xxxx Xxxx 000 Units
77 N Springing Springing 66,409 Sq. Ft.
78 N None None 62,485 Sq. Ft.
79 N Springing Springing 61,852 Sq. Ft.
80 N Soft Springing 92,476 Sq. Ft.
81 N 0 0 108,669 Sq. Ft.
82 N None None 121 Xxxxx
00 X Xxxx Xxxx 36,947 Sq. Ft.
84 N None None 180 Xxxxx
00 X Xxxx Xxxx 00 Xxxxx
00 X Xxxx Xxxx 000 Units
87 N Springing Springing 73,821 Sq. Ft.
88 N None None 30,041 Sq. Ft.
89 N Springing Springing 14,820 Sq. Ft.
90 N None None 24,330 Sq. Ft.
91 N Hard Springing 12,368 Sq. Ft.
92 N None None 105,909 Sq. Ft.
93 N Springing Springing 20,927 Sq. Ft.
94 N None None 124 Xxxxx
00 X Xxxx Xxxx 000 Units
96 N Springing Springing 14,550 Sq. Ft.
97 N Springing Springing 16,087 Sq. Ft.
98 N None None 172 Units
99 N Springing Springing 14,550 Sq. Ft.
100 N None None 15,891 Sq. Ft.
101 N Hard Springing 6,518 Sq. Ft.
102 N None None 25,709 Sq. Ft.
103 N None None 57,241 Sq. Ft.
104 N Hard Springing 64 Units
105 N Hard Springing 40 Xxxxx
000 X Xxxx Xxxx 00,000 Sq. Ft.
107 N Springing Springing 11,153 Sq. Ft.
108 N None None 19,931 Sq. Ft.
000 X Xxxx Xxxx 00 Xxxxx
000 X Xxxx Xxxx 27,901 Sq. Ft.
111 N None None 15,840 Sq. Ft.
112 N None None 10,792 Sq. Ft.
113 N Hard Springing 15,600 Sq. Ft.
000 X Xxxx Xxxx 00 Xxxxx
000 X Xxxx Xxxx 17,302 Sq. Ft.
000 X Xxxx Xxxx 00 Units
117 N Hard Springing 16,366 Sq. Ft.
118 N None None 34,738 Sq. Ft.
119 N Springing Springing 41,472 Sq. Ft.
000 X Xxxx Xxxx 00 Rooms
121 N Springing Springing 10,908 Sq. Ft.
122 N None None 12,270 Sq. Ft.
123 N None None 55,494 Sq. Ft.
124 N None None 10,000 Sq. Ft.
SCHEDULE VII
CLASS A-PB PLANNED PRINCIPAL BALANCE
COBALT CMBS COMMERCIAL MORTGAGE TRUST 2007-C2
SCHEDULE VII
PRIMARY SERVICED LOANS
CWCAPITAL
Primary
Mortgage Loan Servicing
Number Property Name Fee
--------------------------------------------------------------------------------
7 Tradewinds Hospitality Portfolio 0.0200%
7.01 Tradewinds Island Grand Resort
7.02 Tradewinds Breckenridge Resort
7.03 Tradewinds Sandpiper Resort
17 0000 Xxxxxxxxx Xxxxxx & 000 Xxxx Xxxxxx 0.0200%
18 Vinings Corner Apartments 0.0200%
00 Xxxxxxx Xxxx 0.0200%
25 Preferred Freezer - Philadelphia, PA 0.0200%
00 Xxx Xxxxx xx Xxxxx Xxxx 0.0200%
31 One Deerwood Center 0.0200%
00 Xxxxxxx Xxxxxxxxxxxx Xxxxxxxxx Xxxxxxxxx 0.0200%
35.01 000 Xxxxxxxx Xxxxxxxxx
35.02 000 Xxxxx Xxxxx Xxxxx
39 0000 Xxxxxxxxxx Xxxxxx, XX 0.0200%
40 Xxxxxxxx Apartments 0.0200%
42 Xxxxxxxx Reserve Apartments 0.0200%
00 Xxxxxx Xxxxxxxxxx 0.0200%
44 321 Xxxxxxxxx Center Drive 0.0200%
45 Shadowridge Apartments 0.0200%
46 Illinois Student Housing Portfolio 0.0200%
46.01 000 Xxxx Xxxx Xxxxxx
46.02 000 Xxxx Xxxxxxx Xxxxxx
46.03 000 Xxxxxx Xxxxxx
46.04 000 Xxxxxx Xxxxxx
46.05 000 Xxxx Xxxx Xxxxxx
49 Dorado Heights Apartments 0.0200%
00 Xxxxxx Xxxx Theatres 0.0200%
56 PRC Building 0.0200%
58 Xxxxxx'x Mill 0.0200%
66 Wind Hill Office Center 0.0200%
00 Xxxxxxxxxx Xxxxxx Shopping Center 0.0200%
00 Xxxxxxxxx Xxxx 0.0200%
00 Xxxxxxx Xxxxxx Xxxxx 0.0200%
00 Xxxxxxxxxxxx Xxxxxxx & Xxxxxxxxxxxx Xxxxx 0.0200%
71 Landmark Apartments 0.0200%
74 Sweet Ovations Plant 0.0200%
77 Xxxxxxx Town Center 0.0200%
00 Xxxx Xxxxxxx Xxxxx 0.0200%
80 Air & Space Self Storage 0.0200%
00 Xxxxxxxx Xxxxxx Station 0.0400%
00 Xxx Xxxxx Xxxxxxxxxx - Xx Xxxx, XX 0.0700%
86 Tanglewood Apartments 0.0200%
87 0000 00xx Xxxxxx XX 0.0700%
89 Walgreens - Brighton, NY 0.0200%
90 The Hallmark Building 0.0200%
91 Rite Aid - Bronx, NY 0.0200%
00 Xxxxxx Xxxxx 0.0000%
00 Xxxxx Xxxxx Townhomes 0.0700%
95 The Northcrest Apartments 0.0700%
00 Xxxxxxxxx - Xxxxxxxxxxxxx, XX 0.0200%
00 Xxxxxxx Xxxxx Xxxxxxxxxx 0.0000%
00 Xxxxxxxxx - Xxxxxxx, XX 0.0200%
101 0000 Xxxxxxxxx Xxxxxx, XX 0.0200%
000 Xxxx Xxxxx Xxxxx - Xxxxxxxx, XX 0.0200%
000 Xxxxxxxx Xxxx Xxxxxxxxxx 0.0200%
000 Xxxxx Xxxx Xxxxx 0.0200%
107 Rite Aid - West Goshen, PA 0.0200%
108 Harley Retail Shops 0.0700%
109 The Greenway/Xxxxxxx'x Landing Apartments 0.0200%
110 Foundations Bank & Executive Center 0.0200%
000 Xxxxx Xxxxxx Retail 0.0200%
000 Xxxxxxxxx Xxxxx I & II 0.0200%
000 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx 0.0200%
000 Xxxxxxxxx Xxxxxxx & Villas 0.0200%
000 00xx Xxxxxx Plaza 0.0200%
116 000 Xxxxx Xxxxxxx xxx 000 Xxxx Xxxxxxxxx 0.0200%
117 Xxxxx Alley 0.0200%
000 XXX Xxxxx 0.0200%
119 00 Xxxxxxxxx Xxxxxxxx 0.0200%
120 The Xxxxxxxx Campus Inn 0.0200%
000 Xxxxxxxxx Xxxxxxxxxxx 0.1000%
123 Doral Office Building 0.0200%
EXHIBIT A-1
FORM OF CLASS [A-1] [A-2] [A-3] [A-PB] [A-1A] [A-4] [A-M] [A-J] [B] [C] [D]
[E] [F] [G] [H] [J] [K] [L] [M] [N] [O] [P] CERTIFICATE
COBALT CMBS COMMERCIAL MORTGAGE TRUST 2007-C3
CLASS [A-1] [A-2] [A-3] [A-PB] [A-1A] [A-4] [A-M] [A-J] [B] [C] [D] [E] [F]
[G] [H] [J] [K] [L] [M] [N] [O] [P]
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
CWCAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [___]%[, subject to Initial Certificate Principal
the Weighted Average Net Mortgage Balance of this Certificate as of
Rate](1) the Closing Date:
$____________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
August 1, 2007 Class [A-1] [A-2] [A-3] [A-PB]
[A-1A] [A-4] [A-M] [A-J] [B] [C] [D]
[E] [F] [G] [H] [J] [K] [L] [M] [N]
[O] [P] Certificates as of the
Closing Date:
$____________
Cut-off Date: With respect to each Aggregate unpaid principal balance
Mortgage Loan included in the Trust its of the Mortgage Pool as of the
Due Date in August, 2007. Cut-off Date, after deducting
payments of principal due on or
Closing Date: August __, 2007 before such date:
$[___]
First Distribution Date: September
___, 2007
Master Servicer: Wachovia Bank, Trustee: Xxxxx Fargo Bank, N.A.
National Association
Special Servicer: CWCapital Asset
Management LLC
Certificate No. [A-1] [A-2] [A-3] CUSIP No.: _____________
[A-PB] [A-1A] [A-4] [A-M] [A-J] [B] [C]
[D] [E] [F] [G] [H] [J] [K] [L] [M] [N]
[O] [P] -____
--------------------------------------------
(1) For Class X-0, X-0, X-XX, X-0, A-1A, A-M, A-J, B, C, D, E, F, G and H
Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.](1)
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CWCAPITAL
COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, CWCAPITAL
ASSET MANAGEMENT LLC, XXXXX FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
[THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.](2)
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
------------------------------------
(1) For Class E, F, G, H, J, K, L, M, N, O and P Certificates only.
(2) For Class B, C, D, E, F, G, H, J, K, L, M, N, O and P Certificates only.
[PRIOR TO THE DATE (THE "RELEASE DATE") THAT IS 40 DAYS AFTER THE LATER OF (A)
THE COMMENCEMENT OF THE OFFERING TO PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE
ON REGULATION S UNDER THE SECURITIES ACT, AND (B) THE DATE OF CLOSING OF THE
OFFERING, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. NO BENEFICIAL OWNERS OF THIS
CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.](1)
-------------------------
(1) For Class E, F, G, H, J, K, L, M, N, O and P Regulation S Global
Certificates only.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among CWCapital
Commercial Funding Corp., as depositor (the "Depositor," which term includes any
successor entity under the Agreement), Wachovia Bank, National Association, as
master servicer (the "Master Servicer," which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC, as special servicer (the
"Special Servicer," which term includes any successor entity under the
Agreement) and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee," which term
includes any successor entity under the Agreement), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. In the event of any conflict between any provision of this
Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
monthly, commencing in September 2007. During any given month, the payment date
will be the 4th Business Day following the related Determination Date (each, a
"Distribution Date"), commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (or, in the case of the first Distribution Date, at the
close of business on the Closing Date specified above) ( in any event, the
"Record Date"), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed pursuant
to the Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to (or, in the case of
the first such distribution, on) the Record Date for such distribution (which
wiring instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register. Notwithstanding
the above, the final distribution in respect of this Certificate (determined
without regard to any possible future reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate) will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
[No direct or indirect transfer, sale, pledge, hypothecation or
other disposition (each, a "Transfer") of this Certificate or any interest
herein shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with a Transfer of a Global Certificate for any Class
of Book-Entry Non-Registered Certificates to a successor Depository or to the
applicable Certificate Owner in accordance with Section 5.03 of the Agreement),
then the Certificate Registrar shall refuse to register such Transfer unless it
receives (and, upon receipt, may conclusively rely upon) either: (i) a
certificate from the Certificateholder desiring to effect such Transfer
substantially in the form attached as Exhibit F-1 to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A to the Agreement or as Exhibit F-2B
to the Agreement; or (ii) an Opinion of Counsel satisfactory to the Trustee to
the effect that such Transferee is an Institutional Accredited Investor or a
Qualified Institutional Buyer and such Transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer,
the Tax Administrator, the Trustee or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such Transfer from the Certificateholder desiring to
effect such Transfer and/or such Certificateholder's prospective Transferee on
which such Opinion of Counsel is based.
Except as discussed below, an interest in a Rule 144A Global
Certificate for any Class of Book-Entry Non-Registered Certificates may not be
transferred to any Person who takes delivery other than in the form of an
interest in such Rule 144A Global Certificate. If this Certificate constitutes a
Rule 144A Global Certificate, a Transferee of an interest herein that takes
delivery for a Class of Book-Entry Non-Registered Certificates shall be deemed
to have represented and warranted that all the certifications set forth in
Exhibit F-2C attached to the Agreement are, with respect to the subject
Transfer, true and correct.
Any interest in a Rule 144A Global Certificate for a Class of
Book-Entry Non-Registered Certificates may be transferred by the Depositor or
any Affiliate of the Depositor to any Person who takes delivery in the form of a
beneficial interest in the Regulation S Global Certificate for such Class of
Certificates upon delivery to the Certificate Registrar of (x) a certificate to
the effect that the Certificate Owner desiring to effect such Transfer is the
Depositor or an Affiliate of the Depositor and (y) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the Trustee to debit the account of a
Depository Participant by a denomination of interests in such Rule 144A Global
Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, that is equal
to the denomination of beneficial interests in the subject Class of Certificates
to be transferred. Upon delivery to the Certificate Registrar of such
certification and such orders and instructions, the Trustee, subject to and in
accordance with the applicable procedures of the Depository, shall reduce the
denomination of the Rule 144A Global Certificate in respect of the subject Class
of Certificates and increase the denomination of the Regulation S Global
Certificate for such Class, by the denomination of the beneficial interest in
such Class specified in such orders and instructions, provided that no
Regulation S Restricted Certificate may be transferred to a Person who wishes to
take delivery under Regulation S. A Regulation S Restricted Certificate is any
Certificate that is not rated in one of the four highest generic ratings
categories by a Rating Agency.
Also notwithstanding the second preceding paragraph, any interest in
a Rule 144A Global Certificate with respect to any Class of Book-Entry
Non-Registered Certificates may be transferred by any Certificate Owner holding
such interest to any Institutional Accredited Investor (other than a Qualified
Institutional Buyer) that takes delivery in the form of a Definitive Certificate
of the same Class as such Rule 144A Global Certificate upon delivery to the
Certificate Registrar and the Trustee of (i) such certifications and/or opinions
as are contemplated by the second paragraph of Section 5.02(b) of the Agreement
and (ii) such written orders and instructions as are required under the
applicable procedures of the Depository to direct the Trustee to debit the
account of a Depository Participant by the denomination of the transferred
interests in such Rule 144A Global Certificate. Upon delivery to the Certificate
Registrar of such certifications and/or opinions and such orders and
instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the subject Rule
144A Global Certificate by the denomination of the transferred interests in such
Rule 144A Global Certificate, and shall cause a Definitive Certificate of the
same Class as such Rule 144A Global Certificate, and in a denomination equal to
the reduction in the denomination of such Rule 144A Global Certificate, to be
executed, authenticated and delivered in accordance with the Agreement to the
applicable Transferee.
Except as provided in the next paragraph no beneficial interest in a
Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of a beneficial interest in such Regulation S Global Certificate. On
and prior to the Release Date, the Certificate Owner desiring to effect any such
Transfer shall be required to obtain from such Certificate Owner's prospective
Transferee a written certification substantially in the form set forth in
Exhibit F-2D to the Agreement certifying that such Transferee is not a United
States Securities Person. On or prior to the Release Date, beneficial interests
in the Regulation S Global Certificate for each Class of Book-Entry
Non-Registered Certificates may be held only through Euroclear or Clearstream.
The Regulation S Global Certificate for each Class of Book-Entry Non-Registered
Certificates shall be deposited with the Trustee as custodian for the Depository
and registered in the name of Cede & Co. as nominee of the Depository, provided
that no Regulation S Restricted Certificate may be transferred to a Person who
wishes to take delivery under Regulation S.
Notwithstanding the preceding paragraph, after the Release Date, any
interest in a Regulation S Global Certificate for a Class of Book-Entry
Non-Registered Certificates may be transferred by the Depositor or any Affiliate
of the Depositor to any Person who takes delivery in the form of a beneficial
interest in the Rule 144A Global Certificate for such Class of Certificates upon
delivery to the Certificate Registrar of (x) a certificate to the effect that
the Certificate Owner desiring to effect such Transfer is the Depositor or an
Affiliate of the Depositor and (y) such written orders and instructions as are
required under the applicable procedures of the Depository, Clearstream and
Euroclear to direct the Trustee to debit the account of a Depository Participant
by a denomination of interests in such Regulation S Global Certificate, and
credit the account of a Depository Participant by a denomination of interests in
such Rule 144A Global Certificate, that is equal to the denomination of
beneficial interests in the subject Class of Certificates to be transferred.
Upon delivery to the Certificate Registrar of such certification and such orders
and instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the Regulation S
Global Certificate in respect of the subject Class of Certificates being
transferred and increase the denomination of the Rule 144A Global Certificate
for such Class, by the denomination of the beneficial interest in such Class
specified in such orders and instructions.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, Citigroup Global Markets Inc., Wachovia Capital
Markets, LLC, the Trustee, the Master Servicer, the Special Servicer, the Tax
Administrator, the Certificate Registrar and their respective Affiliates against
any liability that may result if such Transfer is not exempt from the
registration and/or qualification requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to Title I of ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (each, a
"Plan"), or (B) any Person who is directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan, if the purchase and holding of this
Certificate or such interest herein by the prospective Transferee would result
in a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or
would result in the imposition of an excise tax under Section 4975 of the Code
or any similar violation of Similar Law. Except in connection with Transfer of
this Certificate to a successor Depository or to the applicable Certificate
Owner in accordance with Section 5.03 of the Agreement, the Certificate
Registrar shall refuse to register the Transfer of a Definitive Non-Registered
Certificate unless it has received from the prospective Transferee one of the
following: (i) a certification to the effect that such prospective Transferee is
not a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) a certification to the effect that the purchase and
holding of this Certificate or such interest herein by such prospective
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code, by reason of Sections I
and III of Prohibited Transaction Class Exemption 95-60; or (iii) a
certification of facts and an Opinion of Counsel which otherwise establish to
the reasonable satisfaction of the Trustee or such Certificate Owner, as the
case may be, that such Transfer will not result in a violation of Section 406 or
407 of ERISA or Section 4975 of the Code or result in the imposition of an
excise tax under Section 4975 of the Code. If any Transferee of this Certificate
or any interest herein does not, in connection with the subject Transfer,
deliver to the Certificate Registrar (if this Certificate constitutes a
Definitive Certificate) a certification and/or Opinion of Counsel as required by
the preceding sentence, then such Transferee (and in any event any owner of a
Book-Entry Certificate that is not an Investment Grade Certificate) shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or any
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt from the prohibited transaction
provisions of Sections 406(a) and (b) and 407 of ERISA and the excise taxes
imposed on such prohibited transactions by Sections 4975(a) and (b) of the Code
(or similar violation of Similar Law). Any Transferee of a Book-Entry
Certificate that is an Investment Grade Certificate that is being acquired by or
on behalf of a Plan in reliance on the Prohibited Transaction Exemption shall be
deemed to have represented and warranted that such Plan (X) is an accredited
investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act, and
(Y) is not sponsored (within the meaning of Section 3(16)(B) of ERISA) by the
Trustee, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, any Sub-Servicer, any Exemption-Favored Party or any Mortgagor
with respect to Mortgage Loans constituting more than 5% of the aggregate
unamortized principal balance of all the Mortgage Loans determined as of the
Closing Date, or by any Affiliate of such Person.](1)
----------------------
(1) For Class E, F, G, H, J, K, L, M, N, O and P Certificates only.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust and (iii) the
exchange by the sole remaining Certificateholder of all of its Certificates for
all of the Mortgage Loans and REO Properties remaining in the Trust. The
Agreement permits, but does not require, the Depositor, the Master Servicer, the
Special Servicer or any Controlling Class Certificateholder to purchase from the
Trust all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Trust
Balance specified on the face hereof. The Agreement also permits, but does not
require, the sole remaining Certificateholder to acquire all of the Mortgage
Loans and any REO Properties remaining in the Trust in exchange for all of the
Certificates (excluding the Class Y, Class R-I and Class R-II Certificates) held
by such Certificateholder following the date on which the aggregate principal
balance of the Class A-1, Class A-2, Class A-3, Class A-PB, Class A-4, Class
A-1A, Class A-M, Class A-J, Class B, Class C, Class D Certificates are reduced
to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66 2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any amendment necessary
to maintain the status of either REMIC Pool as a REMIC or the Grantor Trust as a
"grantor trust", without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
XXXXX FARGO BANK, N.A.,
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1] [A-2] [A-3] [A-PB] [A-1A] [A-4] [A-M]
[A-J] [B] [C] [D] [E] [F] [G] [H] [J] [K] [L] [M] [N] [O] [P] Certificates
referred to in the within-mentioned Agreement.
Dated: _____________
XXXXX FARGO BANK, N.A.,
as Certificate Registrar
By:_________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
______________________________________________
Signature by or on behalf of Assignor
______________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made, by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ______
___________________________) and all applicable statements and notices should be
mailed to _____________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT A-2
FORM OF CLASS IO CERTIFICATE
COBALT CMBS COMMERCIAL MORTGAGE TRUST 2007-C3
CLASS IO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
CWCAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [____]% Variable Initial Certificate Notional Amount
of this Certificate as of the
Closing Date:
$____________
Date of Pooling and Servicing Class Notional Amount of all the
Agreement: Class IO Certificates as of the
August 1, 2007 Closing Date:
$_____________
Cut-off Date: With respect to each Aggregate unpaid principal balance
Mortgage Loan included in the Trust of the Mortgage Pool as of the
its Due Date in August, 2007. Cut-off Date, after deducting
payments of principal due on or
Closing Date: August __, 2007 before such date:
$[___]
First Distribution Date: September
___, 2007
Master Servicer: Wachovia Bank, Trustee: Xxxxx Fargo Bank, N.A.
National Association
Special Servicer: CWCapital Asset
Management LLC
Certificate No. IO-___ CUSIP No.: _____________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CWCAPITAL
COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, CWCAPITAL
ASSET MANAGEMENT LLC, XXXXX FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF
THIS CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Closing Date by the aggregate notional principal amount of
all the Certificates of the same Class as this Certificate (their "Class
Notional Amount") as of the Closing Date) in that certain beneficial ownership
interest in the Trust evidenced by all the Certificates of the same Class as
this Certificate. The Trust was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among CWCapital Commercial Funding Corp., as depositor (the
"Depositor," which term includes any successor entity under the Agreement),
Wachovia Bank, National Association, as master servicer (the "Master Servicer,"
which term includes any successor entity under the Agreement), CWCapital Asset
Management LLC, as special servicer (the "Special Servicer," which term includes
any successor entity under the Agreement) and Xxxxx Fargo Bank, N.A., as trustee
(the "Trustee," which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound. In the event of any conflict
between any provision of this Certificate and any provision of the Agreement,
such provision of this Certificate shall be superseded to the extent of such
inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
monthly, commencing in September 2007. During any given month, the payment date
will be the 4th Business Day following the related Determination Date (each, a
"Distribution Date"), commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (or, in the case of the first Distribution Date, at the
close of business on the Closing Date specified above) (in any event, the
"Record Date"), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed pursuant
to the Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to (or, in the case of
the first such distribution, on) the Record Date for such distribution (which
wiring instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register. Notwithstanding
the above, the final distribution in respect of this Certificate will be made
after due notice by the Trustee of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust and (iii) the
exchange by the sole remaining Certificateholder of all of its Certificates for
all of the Mortgage Loans and REO Properties remaining in the Trust. The
Agreement permits, but does not require, the Depositor, the Master Servicer, the
Special Servicer or any Controlling Class Certificateholder to purchase from the
Trust all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Trust
Balance specified on the face hereof. The Agreement also permits, but does not
require, the sole remaining Certificateholder to acquire all of the Mortgage
Loans and any REO Properties remaining in the Trust in exchange for all of the
Certificates (excluding the Class Y, Class R-I and Class R-II Certificates) held
by such Certificateholder following the date on which the aggregate principal
balance of the Class A-1, Class A-2, Class A-3, Class A-PB, Class A-4, Class
A-1A, Class A-M, Class A-J, Class B, Class C, Class D Certificates are reduced
to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66 2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any amendment necessary
to maintain the status of either REMIC Pool as a REMIC or the Grantor Trust as a
"grantor trust", without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
XXXXX FARGO BANK, N.A.,
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO Certificates referred to in the
within-mentioned Agreement.
Dated: _____________
XXXXX FARGO BANK, N.A.,
as Certificate Registrar
By:_________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
______________________________________________
Signature by or on behalf of Assignor
______________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made, by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ______
___________________________) and all applicable statements and notices should be
mailed to _____________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT A-3
FORM OF CLASS [R-I] [R-II] CERTIFICATES
COBALT CMBS COMMERCIAL MORTGAGE TRUST 2007-C3
CLASS [R-I] [R-II] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
CWCAPITAL COMMERCIAL FUNDING CORP.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this
August 1, 2007 Certificate in the related Class: ___%
Cut-off Date: With respect to each Aggregate unpaid principal balance of
Mortgage Loan included in the Trust its the Mortgage Pool as of the Cut-off
Due Date in August, 2007. Date, after deducting payments of
principal due on or before such date:
Closing Date: August __, 2007 $[___]
First Distribution Date: September __,
2007
Master Servicer: Wachovia Bank, Trustee: Xxxxx Fargo Bank, N.A.
National Association
Special Servicer: CWCapital Asset
Management LLC
Certificate No. [R-I] [R-II]-___ CUSIP No.: _____________
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CWCAPITAL
COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, CWCAPITAL
ASSET MANAGEMENT LLC, XXXXX FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). CONSEQUENTLY, THE TRANSFER OF THIS
CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX RELATED TRANSFER RESTRICTIONS
DESCRIBED HEREIN. IF ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS
CERTIFICATE IN VIOLATION OF SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL
BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED
TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that _______________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate (as
specified above) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among CWCapital
Commercial Funding Corp., as depositor (the "Depositor," which term includes any
successor entity under the Agreement), Wachovia Bank, National Association, as
master servicer (the "Master Servicer," which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC, as special servicer (the
"Special Servicer," which term includes any successor entity under the
Agreement) and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee," which term
includes any successor entity under the Agreement), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. In the event of any conflict between any provision of this
Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
monthly, commencing in September 2007. During any given month, the payment date
will be the 4th Business Day following the related Determination Date (each, a
"Distribution Date"), commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (or, in the case of the first Distribution Date, at the
close of business on the Closing Date specified above) (in any event, the
"Record Date"), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed pursuant
to the Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to (or, in the case of
the first such distribution, on) the Record Date for such distribution (which
wiring instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register. Notwithstanding
the above, the final distribution in respect of this Certificate will be made
after due notice by the Trustee of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of this Certificate is to be made without registration
under the Securities Act, then the Certificate Registrar shall refuse to
register such Transfer unless it receives (and, upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such Transfer substantially in the form attached as Exhibit F-1 to the
Agreement and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached as Exhibit F-2A to the Agreement; or (ii) an
Opinion of Counsel satisfactory to the Trustee to the effect that such
Transferee is a Qualified Institutional Buyer and such Transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Tax Administrator, the Trustee or the Certificate
Registrar in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such Transfer from the
Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder desiring to effect a Transfer of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, Citigroup Global Markets Inc., Wachovia Capital Markets, LLC, the
Trustee, the Master Servicer, the Special Servicer, the Tax Administrator, the
Certificate Registrar and their respective Affiliates against any liability that
may result if such Transfer is not exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to Title I of ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (each, a
"Plan"), or (B) any Person who is directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan, if the purchase and holding of this
Certificate or such interest herein by the prospective Transferee would result
in a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or
would result in the imposition of an excise tax under Section 4975 of the Code
or any similar violation of Similar Law. The Certificate Registrar shall refuse
to register the Transfer of a Definitive Non-Registered Certificate unless it
has received from the prospective Transferee a certification to the effect that
such prospective Transferee is not a Plan and is not directly or indirectly
purchasing this Certificate on behalf of, as named fiduciary of, as trustee of,
or with assets of a Plan.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Trustee
and the Tax Administrator of any change or impending change in its status as a
Permitted Transferee. In connection with any proposed Transfer of any Ownership
Interest in this Certificate, the Certificate Registrar shall require delivery
to it, and shall not register the transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit H-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its Ownership
Interest in this Certificate as a nominee, trustee or agent for any Person that
is not a Permitted Transferee, that for so long as it retains its Ownership
Interest in this Certificate, it will endeavor to remain a Permitted Transferee,
and that it has reviewed the provisions of Section 5.02(d) of the Agreement and
agrees to be bound by them. Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee, if the Certificate Registrar has actual
knowledge that the proposed Transferee is not a Permitted Transferee, the
Certificate Registrar shall not register the Transfer of an Ownership Interest
in this Certificate to such proposed Transferee. In addition, the Certificate
Registrar shall not register the transfer of an Ownership Interest in this
Certificate to any entity classified as a partnership under the Code unless at
the time of transfer, all of its beneficial owners are United States Persons.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to Transfer its Ownership Interest
herein and (y) not to Transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Trustee and the Tax
Administrator written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Trustee and the Tax Administrator the following: (a) written confirmation from
each Rating Agency to the effect that the modification of, addition to or
elimination of such provisions will not cause such Rating Agency to withdraw,
qualify or downgrade its then-current rating of any Class of Certificates; and
(b) an opinion of counsel, in form and substance satisfactory to the Trustee and
the Tax Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not (i) cause either REMIC Pool to (A) cease
to qualify as a REMIC or (B) be subject to an entity-level tax caused by the
Transfer of a Residual Interest Certificate to a Person which is not a Permitted
Transferee, or (ii) cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Residual Interest
Certificate to a Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not (i) a
Disqualified Organization, (ii) any Person as to whom the transfer of this
Certificate may cause either REMIC Pool to fail to qualify as a REMIC, (iii) a
Disqualified Non-United States Tax Person, (iv) a Disqualified Partnership or
(v) a United States Tax Person with respect to whom income is attributable to a
foreign permanent establishment or fixed base (within the meaning of any
applicable income tax treaty between the United States and any foreign
jurisdiction) of a United States Tax Person.
A "Disqualified Organization" is (i) the United States, any State or
political subdivision thereof, a foreign government, an international
organization, or any agency or instrumentality of any of the foregoing, (ii) any
organization (other than certain farmers' cooperatives described in Section 521
of the Code) that is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iii) rural electric and telephone
cooperatives described in Section 1381 of the Code and (iv) any other Person so
designated by the Trustee or Tax Administrator based upon an opinion of counsel
that the holding of an Ownership Interest in a Residual Interest Certificate by
such Person may cause the Trust Fund or any Person having an Ownership Interest
in any Class of Certificates (other than such Person) to incur a liability for
any federal tax imposed under the Code that would not otherwise be imposed but
for the Transfer of an Ownership Interest in a Residual Interest Certificate to
such Person. The terms "United States", "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
A "Disqualified Non-United States Tax Person" is, with respect to
any Residual Interest Certificate, any Non-United States Tax Person or agent
thereof other than: (1) a Non-United States Tax Person that (a) holds such
Residual Interest Certificate and, for purposes of Treasury regulation section
1.860G-3(a)(3), is subject to tax under Section 882 of the Code, (b) certifies
that it understands that, for purposes of Treasury regulation section
1.860E-1(c)(4)(ii), as a Holder of such Residual Interest Certificate for United
States federal income tax purposes, it may incur tax liabilities in excess of
any cash flows generated by such Residual Interest Certificate and intends to
pay taxes associated with holding such Residual Interest Certificate, and (c)
has furnished the Transferor and the Trustee with an effective IRS Form W-8ECI
or successor form and has agreed to update such form as required under the
applicable Treasury regulations; or (2) a Non-United States Tax Person that has
delivered to the Transferor, the Trustee and the Certificate Registrar an
opinion of nationally recognized tax counsel to the effect that (x) the Transfer
of such Residual Interest Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and (y) such
Transfer of such Residual Interest Certificate will not be disregarded for
United States federal income tax purposes.
A "Disqualified Partnership" is any domestic entity classified as a
partnership under the Code, if any of its beneficial owners (other than through
a U.S. corporation) are (or are permitted to be under the related partnership
agreement) Disqualified Non-United States Tax Persons.
A "Non-United States Tax Person" is any Person other than a United
States Tax Person. A "United States Tax Person" is a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision
thereof, or an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust (or to the extent provided in the Treasury regulations,
if the trust was in existence on August 20, 1996 and elected to be treated as a
United States Person), all within the meaning of Section 7701(a)(30) of the
Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust and (iii) the
exchange by the sole remaining Certificateholder of all of its Certificates for
all of the Mortgage Loans and REO Properties remaining in the Trust. The
Agreement permits, but does not require, the Depositor, the Master Servicer, the
Special Servicer or any Controlling Class Certificateholder to purchase from the
Trust all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Trust
Balance specified on the face hereof. The Agreement also permits, but does not
require, the sole remaining Certificateholder to acquire all of the Mortgage
Loans and any REO Properties remaining in the Trust in exchange for all of the
Certificates (excluding the Class Y, Class R-I and Class R-II Certificates) held
by such Certificateholder following the date on which the aggregate principal
balance of the Class A-1, Class A-2, Class A-3, Class A-PB, Class A-4, Class
A-1A, Class A-M, Class A-J, Class B, Class C and Class D are reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66 2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any amendment necessary
to maintain the status of either REMIC Pool as a REMIC or the Grantor Trust as a
"grantor trust", without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
XXXXX FARGO BANK, N.A.,
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I] [R-II] Certificates referred to in
the within-mentioned Agreement.
Dated: _____________
XXXXX FARGO BANK, N.A.,
as Certificate Registrar
By:_________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
______________________________________________
Signature by or on behalf of Assignor
______________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made, by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ______
___________________________) and all applicable statements and notices should be
mailed to _____________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT A-4
FORM OF CLASS Y CERTIFICATES
COBALT CMBS COMMERCIAL MORTGAGE TRUST 2007-C3
CLASS [Y] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
CWCAPITAL COMMERCIAL FUNDING CORP.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this
August 1, 2007 Certificate in the related Class: ___%
Cut-off Date: With respect to each Aggregate unpaid principal balance of the
Mortgage Loan included in the Trust its Mortgage Pool as of the Cut-off Date,
Due Date in August 2007. after deducting payments of principal due
on or before such date: $[ ]
Closing Date: August [__], 2007
First Distribution Date: September __,
2007
Master Servicer: Wachovia Bank, Trustee: Xxxxx Fargo Bank, N.A.
National Association
Special Servicer: CWCapital Asset
Management LLC
Certificate No. Y-___
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CWCAPITAL
COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, CWCAPITAL
ASSET MANAGEMENT LLC, XXXXX FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD LOAN SUBJECT TO THE TERMS OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
This certifies that ________________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate (as
specified above) in that certain beneficial ownership interest in the Trust
evidenced by all the Class Y Certificates. The Trust was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among CWCapital Commercial Funding Corp. as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), Wachovia Bank, National Association, as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement),
CWCapital Asset Management LLC, as special servicer (the "Special Servicer",
which term includes any successor entity under the Agreement) and Xxxxx Fargo
Bank, N.A., as trustee (the "Trustee", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound. In
the event of any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
monthly, commencing in [September] 2007. During any given month, the payment
date will be the 4th Business Day following the related Determination Date
(each, a "Distribution Date"), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (or, in the case of the first
Distribution Date, at the close of business on the Closing Date specified above)
(in any event, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs. All
distributions made under the Agreement in respect of this Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to (or, in the case of the first such distribution, on) the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice.
This Certificate is entitled only to certain additional interest (if
any) received in respect of the ARD Loan subject to the terms of the Agreement.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of this Certificate is to be made without registration
under the Securities Act, then the Certificate Registrar shall refuse to
register such Transfer unless it receives (and, upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such Transfer substantially in the form attached as Exhibit F-1 to the
Agreement and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached either as Exhibit F-2A to the Agreement or as
Exhibit F-2B to the Agreement; or (ii) an Opinion of Counsel satisfactory to the
Trustee to the effect that such Transferee is an Institutional Accredited
Investor or a Qualified Institutional Buyer and such Transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Tax Administrator, the Trustee or the Certificate
Registrar in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such Transfer from the
Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder desiring to effect a Transfer of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, the Trustee, the Master Servicer, the Special Servicer, the Tax
Administrator, the Certificate Registrar and their respective Affiliates against
any liability that may result if such Transfer is not exempt from the
registration and/or qualification requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to Title I of ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (each, a
"Plan"), or (B) any Person who is directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan, if the purchase and holding of this
Certificate or such interest herein by the prospective Transferee would result
in a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or
would result in the imposition of an excise tax under Section 4975 of the Code
or any similar violation of Similar Law. The Certificate Registrar shall refuse
to register the Transfer of this Certificate unless it has received from the
prospective Transferee a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, the Master Servicer, the Special Servicer or any Controlling
Class Certificateholder at a price determined as provided in the Agreement of
all Mortgage Loans and any REO Properties remaining in the Trust. The Agreement
permits, but does not require, the Depositor, the Master Servicer, the Special
Servicer or any Controlling Class Certificateholder to purchase from the Trust
all Mortgage Loans and any REO Properties remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Trust Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66 2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holders
of Certificates shall be conclusive and binding on such Holders and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. No Voting Rights shall be
allocated to the Class Y, Class R-I or Class R-II Certificates. The Agreement
also permits the amendment thereof, in certain circumstances, including any
amendment necessary to maintain the status of either REMIC Pool as a REMIC or
the Grantor Trust as a "grantor trust", without the consent of the Holders of
any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
XXXXX FARGO BANK, N.A.,
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class Y Certificates referred to in the
within-mentioned Agreement.
Dated: _____________
XXXXX FARGO BANK, N.A.,
as Certificate Registrar
By:_________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
______________________________________________
Signature by or on behalf of Assignor
______________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made, by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ______
___________________________) and all applicable statements and notices should be
mailed to _____________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT B
FORM OF DISTRIBUTION DATE STATEMENT
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
DISTRIBUTION DATE STATEMENT
Table of Contents
-------------------------------------------------------------------------------
STATEMENT SECTIONS PAGE(s)
------------------ -------
Certificate Distribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Cash Reconciliation Detail 6
Ratings Detail 8
Current Mortgage Loan and Property Stratification Tables 8 - 16
Mortgage Loan Detail 17
NOI Detail 18
Principal Prepayment Detail 19
Historical Detail 20
Delinquency Loan Detail 21
Specially Serviced Loan Detail 22 - 23
Advance Summary 24
Modified Loan Detail 25
Historical Liquidated Loan Detail 26
Historical Bond / Collateral Realized Loss Reconciliation 27
Interest Shortfall Reconciliation Detail 28 - 29
Defeased Loan Detail 30
Supplemental Reporting 31
-------------------------------------------------------------------------------
Depositor Master Servicer Special Servicer
-------------------------------------- ------------------------------------------- --------------------------------------
CWCapital Commercial Funding Corp. Wachovia Bank, National Association CWCapital Asset Management LLC.
0000 Xxxxxxxx Xxxxx 0000 Xxxxxxxxxxxx Xxxxxx, XX
0000 Xxxxxxxx, 00xx Xxxxx URP 4, XX0000 Xxxxx 000
Xxx Xxxx, XX 00000 Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000-0000
Contact: Leigh Roumila Contact: Lea Land Contact: Xxxxxxxx Xxxx
Phone Number: (000) 000-0000 Phone Number: (000) 000-0000 Phone Number: (000) 000-0000
-------------------------------------- ------------------------------------------- --------------------------------------
This report has been compiled from information provided to Xxxxx Fargo Bank, N.A. by various third parties, which may include the
Master Servicer, Special Servicer and others. Xxxxx Fargo Bank, N.A. has not independently confirmed the accuracy of information
received from these third parties and assumes no duty to do so. Xxxxx Fargo Bank, N.A. expressly disclaims any responsibility for
the accuracy or completeness of information furnished by third parties.
-----------------------------------------------------------------------------------------------------------------------------------
Page 1 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Certificate Distribution Detail
-----------------------------------------------------------------------------------------------------------------------------------
Realized Loss / Current
Pass-Through Original Beginning Principal Interest Prepayment Additional Trust Total Ending Subordination
Class CUSIP Rate Balance Balance Distribution Distribution Premium Fund Expenses Distribution Balance Level(1)
-----------------------------------------------------------------------------------------------------------------------------------
A-1 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-PB 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1A 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-M 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-J 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
E 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
F 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
G 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
H 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
J 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
K 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
L 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
M 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
N 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
O 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
P 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Q 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
S 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
V 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Y 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
R-I 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
R-II 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Original Beginning Ending
Pass-Through Notional Notional Interest Prepayment Total Notional
Class CUSIP Rate Amount Amount Distribution Premium Distribution Amount
----------------------------------------------------------------------------------------------
IO 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00
----------------------------------------------------------------------------------------------
(1) Calculated by taking (A) the sum of the ending certificate balance of all classes less (B) the sum of (i) the ending
balance of the designated class and (ii) the ending certificate balance of all classes which are not subordinate
to the designated class and deviding the result by (A).
-----------------------------------------------------------------------------------------------------------------------------------
Page 2 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Certificate Factor Detail
--------------------------------------------------------------------------------------------------------------
Realized Loss /
Beginning Principal Interest Prepayment Additional Trust Ending
Class CUSIP Balance Distribution Distribution Premium Fund Expenses Balance
--------------------------------------------------------------------------------------------------------------
A-1 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-3 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-PB 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-4 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-1A 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-M 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
C 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
D 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
E 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
F 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
G 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
H 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
K 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
L 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
M 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
N 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
O 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
P 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
Q 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
S 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
V 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
Y 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R-I 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R-II 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
--------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------
Beginning Ending
Notional Interest Prepayment Notional
Class CUSIP Amount Distribution Premium Amount
---------------------------------------------------------------------------
IO 0.00000000 0.00000000 0.00000000 0.00000000
---------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 3 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Reconciliation Detail
Stated Beginning Principal Unpaid Beginning Scheduled Unscheduled Principal
Loan Group Balance Principal Balance Principal Principal Adjustments
---------- -------------------------- ----------------- --------- ----------- -----------
1 0.00 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00 0.00
---------- -------------------------- ----------------- --------- ----------- -----------
Total 0.00 0.00 0.00 0.00 0.00
Realized Stated Ending Unpaid Ending Current Principal
Loan Group Loss Principal Balance Principal Balance Distribution Amount
---------- -------- ----------------- ----------------- -------------------
1 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00
---------- -------- ----------------- ----------------- -------------------
Total 0.00 0.00 0.00 0.00
Certificate Interest Reconciliation
---------------------------------------------------------------------------------------------
Accrued Net Aggregate Distributable Distributable
Accrual Accrual Certificate Prepayment Certificate Certificate Interest
Class Dates Days Interest Interest Shortfall Interest Adjustment
---------------------------------------------------------------------------------------------
A-1 0 0 0.00 0.00 0.00 0.00
A-2 0 0 0.00 0.00 0.00 0.00
A-3 0 0 0.00 0.00 0.00 0.00
A-PB 0 0 0.00 0.00 0.00 0.00
A-4 0 0 0.00 0.00 0.00 0.00
A-1A 0 0 0.00 0.00 0.00 0.00
A-M 0 0 0.00 0.00 0.00 0.00
A-J 0 0 0.00 0.00 0.00 0.00
IO 0 0 0.00 0.00 0.00 0.00
B 0 0 0.00 0.00 0.00 0.00
C 0 0 0.00 0.00 0.00 0.00
D 0 0 0.00 0.00 0.00 0.00
E 0 0 0.00 0.00 0.00 0.00
F 0 0 0.00 0.00 0.00 0.00
G 0 0 0.00 0.00 0.00 0.00
H 0 0 0.00 0.00 0.00 0.00
J 0 0 0.00 0.00 0.00 0.00
K 0 0 0.00 0.00 0.00 0.00
L 0 0 0.00 0.00 0.00 0.00
M 0 0 0.00 0.00 0.00 0.00
N 0 0 0.00 0.00 0.00 0.00
O 0 0 0.00 0.00 0.00 0.00
P 0 0 0.00 0.00 0.00 0.00
Q 0 0 0.00 0.00 0.00 0.00
S 0 0 0.00 0.00 0.00 0.00
V 0 0 0.00 0.00 0.00 0.00
Y 0 0 0.00 0.00 0.00 0.00
R-I 0 0 0.00 0.00 0.00 0.00
R-II 0 0 0.00 0.00 0.00 0.00
---------------------------------------------------------------------------------------------
Totals 0 0.00 0.00 0.00 0.00
---------------------------------------------------------------------------------------------
Certificate Interest Reconciliation
-----------------------------------------------------------------
Additional Remaining Unpaid
WAC CAP Trust Fund Interest Distributable
Class Shortfall Expenses Distribution Certificate Interest
-----------------------------------------------------------------
A-1 0.00 0.00 0.00 0.00
A-2 0.00 0.00 0.00 0.00
A-3 0.00 0.00 0.00 0.00
A-PB 0.00 0.00 0.00 0.00
A-4 0.00 0.00 0.00 0.00
A-1A 0.00 0.00 0.00 0.00
A-M 0.00 0.00 0.00 0.00
A-J 0.00 0.00 0.00 0.00
IO 0.00 0.00 0.00 0.00
B 0.00 0.00 0.00 0.00
C 0.00 0.00 0.00 0.00
D 0.00 0.00 0.00 0.00
E 0.00 0.00 0.00 0.00
F 0.00 0.00 0.00 0.00
G 0.00 0.00 0.00 0.00
H 0.00 0.00 0.00 0.00
J 0.00 0.00 0.00 0.00
K 0.00 0.00 0.00 0.00
L 0.00 0.00 0.00 0.00
M 0.00 0.00 0.00 0.00
N 0.00 0.00 0.00 0.00
O 0.00 0.00 0.00 0.00
P 0.00 0.00 0.00 0.00
Q 0.00 0.00 0.00 0.00
S 0.00 0.00 0.00 0.00
V 0.00 0.00 0.00 0.00
Y 0.00 0.00 0.00 0.00
R-I 0.00 0.00 0.00 0.00
R-II 0.00 0.00 0.00 0.00
-----------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00
-----------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 4 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Other Required Information
--------------------------------------------------------------------------------
Available Distribution Amount (1) 0.00
Master Servicing Fee Summary
Current Period Accrued Master Servicing Fees 0.00
Less Delinquent Master Servicing Fees 0.00
Less Reductions to Master Servcing Fees 0.00
Plus Master Servicing Fees for Delinquent Payments Received 0.00
Plus Adjustments for Prior Master Servicing Calculation 0.00
Total Master Servicing Fees Collected 0.00
(1) The Available Distribution Amount includes any Prepayment Premiums.
Appraisal Reduction Amount
-------------------------------------------------
Appraisal Cumulative Most Recent
Loan Reduction ASER App. Red.
Number Amount Amount Date
-------------------------------------------------
-------------------------------------------------
Total
-------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 5 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Cash Reconciliation Detail
---------------------------------------------------------------------------------------------------------------------------------
Total Funds Collected
Interest:
Interest paid or advanced 0.00
Interest reductions due to Non-Recoverability Determinations 0.00
Interest Adjustments 0.00
Deferred Interest 0.00
Net Prepayment Interest Shortfall 0.00
Net Prepayment Interest Excess 0.00
Extension Interest 0.00
Interest Reserve Withdrawal 0.00
--------------
Total Interest Collected 0.00
Principal:
Scheduled Principal 0.00
Unscheduled Principal 0.00
Principal Prepayments 0.00
Collection of Principal after Maturity Date 0.00
Recoveries from Liquidation and Insurance Proceeds 0.00
Excess of Prior Principal Amounts paid 0.00
Curtailments 0.00
Negative Amortization 0.00
Principal Adjustments 0.00
--------------
Total Principal Collected 0.00
Other:
Prepayment Penalties/Yield Maintenance 0.00
Repayment Fees 0.00
Borrower Option Extension Fees 0.00
Equity Payments Received 0.00
Net Swap Counterparty Payments Received 0.00
--------------
Total Other Collected 0.00
--------------
Total Funds Collected 0.00
==============
Total Funds Distributed
Fees:
Master Servicing Fee 0.00
Trustee Fee 0.00
Certificate Administration Fee 0.00
Insurer Fee 0.00
Miscellaneous Fee 0.00
--------------
Total Fees 0.00
Additional Trust Fund Expenses:
Reimbursement for Interest on Advances 0.00
ASER Amount 0.00
Special Servicing Fee 0.00
Rating Agency Expenses 0.00
Attorney Fees & Expenses 0.00
Bankruptcy Expense 0.00
Taxes Imposed on Trust Fund 0.00
Non-Recoverable Advances 0.00
Other Expenses 0.00
--------------
Total Additional Trust Fund Expenses 0.00
Interest Reserve Deposit 0.00
Payments to Certificateholders & Others:
Interest Distribution 0.00
Principal Distribution 0.00
Prepayment Penalties/Yield Maintenance 0.00
Borrower Option Extension Fees 0.00
Equity Payments Paid 0.00
Net Swap Counterparty Payments Paid 0.00
--------------
Total Payments to Certificateholders & Others 0.00
--------------
Total Funds Distributed 0.00
==============
-----------------------------------------------------------------------------------------------------------------------------------
Page 6 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Ratings Detail
---------------------------------------------------------------------------------------------------------------
Original Ratings Current Ratings (1)
------------------------------------------------------------------------------
Class CUSIP Fitch Xxxxx'x S & P Fitch Xxxxx'x S & P
---------------------------------------------------------------------------------------------------------------
X-0
X-0
X-0
X-XX
X-0
A-1A
A-M
X-X
XX
X
X
X
X
X
X
X
J
K
L
M
N
O
P
Q
S
V
Y
R-I
R-II
---------------------------------------------------------------------------------------------------------------
NR - Designates that the class was not rated by the above agency at the time of original issuance.
X - Designates that the above rating agency did not rate any classes in this transaction at the time of original issuance.
N/A - Data not available this period.
1) For any class not rated at the time of original issuance by any particular rating agency, no request has been made
subsequent to issuance to obtain rating information, if any, from such rating agency. The current ratings were obtained
directly from the applicable rating agency within 30 days of the payment date listed above. The ratings may have changed since
they were obtained. Because the ratings may have changed, you may want to obtain current ratings directly from the rating
agencies.
Fitch, Inc. Xxxxx'x Investors Service Standard & Poor's Rating Services
Xxx Xxxxx Xxxxxx Xxxxx 00 Xxxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (000) 000-0000 (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------------------
Page 7 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1) State Props Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Page 8 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio Loans Balance Bal. (2) Avg DSCR (1) Type Props Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate Loans Balance Bal. (2) Avg DSCR (1) Seasoning Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Page 9 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) Loans Balance Bal. (2) Avg DSCR (1) Term Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term Loans Balance Bal. (2) Avg DSCR (1) Recent NOI Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset level. In
all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the Servicer,
information from the offering document is used. The Trustee makes no representations as to the accuracy of the data provided by
the borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the Cut-off
Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Page 10 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1) State Props Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Page 11 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio Loans Balance Bal. (2) Avg DSCR (1) Type Props Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate Loans Balance Bal. (2) Avg DSCR (1) Seasoning Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Page 12 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) Loans Balance Bal. (2) Avg DSCR (1) Term Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term Loans Balance Bal. (2) Avg DSCR (1) Recent NOI Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset
level. In all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the
Servicer, information from the offering document is used. The Trustee makes no representations as to the accuracy of the
data provided by the borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of
the Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon
the Cut-off Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Page 13 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1) State Props Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Page 14 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio Loans Balance Bal. (2) Avg DSCR (1) Type Props Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate Loans Balance Bal. (2) Avg DSCR (1) Seasoning Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Page 15 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) Loans Balance Bal. (2) Avg DSCR (1) Term Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term Loans Balance Bal. (2) Avg DSCR (1) Recent NOI Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset
level. In all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the
Servicer, information from the offering document is used. The Paying Agent makes no representations as to the accuracy of
the data provided by for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the
Cut-off Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Page 16 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Mortgage Loan Detail
---------------------------------------------------------------------------------------------------------------------------
Anticipated Neg. Beginning Ending Paid
Loan Property Interest Principal Gross Repayment Maturity Amort Scheduled Scheduled Thru
Number ODCR Type (1) City State Payment Payment Coupon Date Date (Y/N) Balance Balance Date
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Totals
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------
Appraisal Appraisal Res. Mod.
Loan Reduction Reduction Strat. Code
Number Date Amount (2) (3)
---------------------------------------------
---------------------------------------------
Totals
---------------------------------------------
--------------------------------------------------------------------------------
(1) Property Type Code
----------------------
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
(2) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(3) Modification Code
---------------------
1 - Maturity Date Extension
2 - Amortization Change
3 - Principal Write-Off
4 - Combination
--------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 17 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
NOI Detail
-----------------------------------------------------------------------------------------------------------------------------------
Ending Most Most Most Recent Most Recent
Loan Property Scheduled Recent Recent NOI Start NOI End
Number ODCR Type City State Balance Fiscal NOI NOI Date Date
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 18 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Principal Prepayment Detail
--------------------------------------------------------------------------------------------------------
Principal Prepayment Amount
Offering Document --------------------------------------
Loan Number Loan Group Cross-Reference Payoff Amount Curtailment Amount
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------
--------------------------------------------------------------------
Prepayment Penalties
--------------------------------------------------
Loan Number Percentage Premium Yield Maintenance Premium
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
--------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 19 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Historical Detail
------------------------------------------------------------------------------------------------------------------------------------
Delinquencies
-------------------------------------------------------------------------------------------------
Distribution 30-59 Days 60-89 Days 90 Days or More Foreclosure REO Modifications
Date # Balance # Balance # Balance # Balance # Balance # Balance
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Prepayments Rate and Maturities
--------------------------------------------------------------------------------------
Distribution Curtailments Payoff Next Weighted Avg.
Date # Balance # Balance Coupon Remit WAM
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
Note: Foreclosure and REO Totals are excluded from the delinquencies.
-----------------------------------------------------------------------------------------------------------------------------------
Page 20 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Delinquency Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering # of Current Outstanding Status of Resolution
Document Months Paid Through P & I P & I Mortgage Strategy Servicing Foreclosure
Loan Number Cross-Reference Delinq. Date Advances Advances ** Loan (1) Code (2) Transfer Date Date
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------
Actual Outstanding
Principal Servicing Bankruptcy REO
Loan Number Balance Advances Date Date
--------------------------------------------------------------
--------------------------------------------------------------
Totals
--------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
(1) Status of Mortgage Loan
---------------------------
A - Payment Not Received 0 - Current 4 - Assumed Scheduled Payment
But Still in Grace Period 1 - One Month Delinquent (Performing Matured Loan)
B - Late Payment But Less 2 - Two Months Delinquent 7 - Foreclosure
Than 1 Month Delinquent 3 - Three or More Months Delinquent 9 - REO
(2) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed In Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
-------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 21 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Specially Serviced Loan Detail - Part 1
---------------------------------------------------------------------------------------------------------------------
Offering Servicing Resolution
Distribution Loan Document Transfer Strategy Scheduled Property Interest Actual
Date Number Cross-Reference Date Code (1) Balance Type (2) State Rate Balance
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------
Net Remaining
Distribution Operating NOI Note Maturity Amortization
Date Income Date DSCR Date Date Term
----------------------------------------------------------------------------
----------------------------------------------------------------------------
(1) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(2) Property Type Code
----------------------
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
-----------------------------------------------------------------------------------------------------------------------------------
Page 22 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Specially Serviced Loan Detail - Part 2
------------------------------------------------------------------------------------------------------------------------------------
Offering Resolution Site
Distribution Loan Document Strategy Inspection Appraisal Appraisal Other REO
Date Number Cross-Reference Code (1) Date Phase 1 Date Date Value Property Revenue Comment
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(1) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
-----------------------------------------------------------------------------------------------------------------------------------
Page 23 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Modified Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering
Loan Document Pre-Modification Post-Modification Pre-Modification Post-Modification Modification
Number Cross-Reference Balance Balance Interest Rate Interest Rate Date
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Loan Modification
Number Description
------------------------
------------------------
Totals
------------------------
------------------------
Page 24 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Advance Summary
Current Period Interest
Current P&I Outstanding P&I Outstanding Servicing on P&I and Servicing
Loan Group Advances Advances Advances Advances Paid
---------- ----------- --------------- --------------------- -----------------------
1 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00
---------- ----------- --------------- --------------------- -----------------------
Totals 0.00 0.00 0.00 0.00
Page 25 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Historical Liquidated Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Beginning Fees, Most Recent Gross Sales Net Proceeds
Distribution Scheduled Advances, Appraised Proceeds or Received on
Date ODCR Balance and Expenses* Value or BPO Other Proceeds Liquidation
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Current Total
-----------------------------------------------------------------------------------------------------------------------------------
Cumulative Total
-----------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Net Proceeds Date of Current Current Period Cumulative Loss to Loan
Distribution Available for Realized Period Adj. Adjustment Adjustment with Cum
Date Distribution Loss to Trust to Trust to Trust to Trust Adj. to Trust
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Current Total
---------------------------------------------------------------------------------------------------------------------------------
Cumulative Total
---------------------------------------------------------------------------------------------------------------------------------
* Fees, Advances and Expenses also include outstanding P & I advances and unpaid fees (servicing, trustee, etc.).
-----------------------------------------------------------------------------------------------------------------------------------
Page 26 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Historical Bond/Collateral Reallized Loss Reconciliation Detail
Offering Beginning Aggregate Prior Realized Amounts Interest Modification
Distribution Document Balance Realized Loss Loss Applied Covered By (Shortages)/ /Appraisal
Date Cross-Reference at Liquidation on Loans to Certificates Credit Support Excesses Reduction Adj.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
Additional Realized Loss Recoveries of (Recoveries)/
Distribution (Recoveries) Applied to Realized Losses Losses Applied to
Date /Expenses Certificates to Date Paid as Cash Certificate Interest
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
Totals
-------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Page 27 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail - Part 1
Offering Stated Principal Current Ending Special Servicing Fees Non-Recoverable
Document Balance at Scheduled -------------------------------- (Scheduled
Cross-Reference Contribution Balance Monthly Liquidation Work Out ASER (PPIS) Excess Interest)
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Totals
----------------------------------------------------------------------------------------------------------------------------------
Offering Modified Interest Additional
Document Interest on Rate (Reduction) Trust Fund
Cross-Reference Advances /Excess Expense
--------------------------------------------------------------
--------------------------------------------------------------
Totals
--------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Page 28 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail - Part 2
Reimb of Advances to the Servicer
Offering Stated Principal Current Ending ---------------------------------
Document Balance at Scheduled Left to Reimburse Other (Shortfalls)/
Cross-Reference Contribution Balance Current Month Master Servicer Refunds Comments
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail Part 2 Total 0.00
------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail Part 1 Total 0.00
------------------------------------------------------------------------------------------------------------------------
Total Interest Shortfall Allocated to Trust 0.00
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Page 29 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Defeased Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering Document Ending Scheduled
Loan Number Cross-Reference Balance Maturity Date Note Rate Defeasance Status
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Page 30 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | COBALT CMBS Commercial Mortgage Trust | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-C3 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 09/17/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 08/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 09/11/2007
-----------------------------------------------------------------------------------------------------------------------------------
Supplemental Reporting
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Page 31 of 31
EXHIBIT C
FORM OF CUSTODIAL CERTIFICATION
To the parties listed on the attached Schedule A
Re: CWCapital Commercial Funding Corp., as depositor, COBALT
CMBS Commercial Mortgage Trust 2007-C3, Commercial Mortgage
Pass Through Certificates, Series 2007-C3 (the
"Certificates")
-----------------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement
dated as of August 1, 2007, relating to the above-referenced Certificates (the
"Agreement"), Xxxxx Fargo Bank, N.A., in its capacity as trustee (the
"Trustee"), hereby certifies as to each Mortgage Loan subject as of the date
hereof to the Agreement (except as identified in the exception report attached
hereto) that: (i) all documents specified in clauses (a)(i) through (a)(v),
(a)(vii) and (a)(viii) (without regard to the second parenthetical in such
clause (a)(viii)) of the definition of "Mortgage File", are in its possession or
the possession of a Custodian on its behalf; (ii) the recordation/filing
contemplated by Section 2.01(c) of the Agreement has been completed (based
solely on receipt by the Trustee of the particular recorded/filed documents);
(iii) all documents received by it or any Custodian with respect to such
Mortgage Loan have been reviewed by it or by such Custodian on its behalf and
(A) appear regular on their face (handwritten additions, changes or corrections
shall not constitute irregularities if initialed by the Mortgagor), (B) appear
to have been executed (where appropriate) and (C) purport to relate to such
Mortgage Loan; and (iv) based on the examinations referred to in Section 2.02(a)
of the Agreement and in this Certification and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (v) and (vi)(B) of the definition of "Mortgage
Loan Schedule" accurately reflects the information set forth in the Mortgage
File.
Neither the Trustee nor any Custodian is under any duty or
obligation to inspect, review or examine any of the documents, instruments,
certificates or other papers relating to the Loans delivered to it to determine
that the same are valid, legal, effective, genuine, binding, enforceable,
sufficient or appropriate for the represented purpose or that they are other
than what they purport to be on their face. Furthermore, neither the Trustee nor
any Custodian shall have any responsibility for determining whether the text of
any assignment or endorsement is in proper or recordable form, whether the
requisite recording of any document is in accordance with the requirements of
any applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction. In performing the review contemplated herein, the
Trustee or any Custodian may rely on the Depositor as to the purported
genuineness of any such document and any signature thereon.
Capitalized terms used herein and not otherwise defined shall have
the respective meanings assigned to them in the Agreement.
Respectfully,
XXXXX FARGO BANK, N.A.,
as Trustee
By: _________________________________
Name:
Title:
Schedule A
CWCapital Commercial Funding Corp.
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Rating Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Citigroup Global Markets Realty Corp.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wachovia Capital Markets, LLC
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Wachovia Bank, National Association
0000 Xxxxxxxx Xxxxx - XXX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
CWCapital Asset Management LLC,
000 Xxxxxxxx Xxxxxx, XX, Xxxxx 0000
Xxxxxxxxxx, XX 00000
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
Xxxxx Fargo Bank, N.A.
0000 00xx Xxxxxx XX
Xxxxxxxxxxx, XX 00000
Attention: Mortgage Document Custody --
CWCapital Commercial Funding Corp., as depositor, COBALT CMBS
Commercial Mortgage Trust 2007-C3
Re: CWCapital Commercial Funding Corp., as depositor,
COBALT CMBS Commercial Mortgage Trust 2007-C3,
Commercial Mortgage Pass-Through Certificates, Series 2007-C3
-------------------------------------------------------------
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under that certain Pooling and Servicing
Agreement dated as of August 1, 2007 (the "Pooling and Servicing Agreement"), by
and among CWCapital Commercial Funding Corp. as depositor, the undersigned as
master servicer (the "Master Servicer"), CWCapital Asset Management LLC as
special servicer (the "Special Servicer") and you as trustee (the "Trustee"),
the undersigned hereby requests a release of the Mortgage File (or the portion
thereof specified below) held by or on behalf of you as Trustee with respect to
the following described Mortgage Loan for the reason indicated below.
Property Name:______________________________________________________
Address:____________________________________________________________
Control No.:________________________________________________________
If only particular documents in the Mortgage File are requested,
please specify which:_______________________________________________
____________________________________________________________________
____________________________________________________________________
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned hereby
certifies that all amounts received in connection with
the Mortgage Loan that are required to be credited to
the Custodial Account pursuant to the Pooling and
Servicing Agreement, have been or will be so credited.
______ 2. Other. (Describe) _____________________________________
________________________________________________________
________________________________________________________
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
WACHOVIA BANK, NATIONAL ASSOCIATION
By: __________________________________
Name:
Title:
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
___________
Xxxxx Fargo Bank, N.A.
0000 00xx Xxxxxx XX
Xxxxxxxxxxx, XX 00000
Attention: Mortgage Document Custody --
CWCapital Commercial Funding Corp., as depositor, COBALT CMBS
Commercial Mortgage Trust 2007-C3
Re: CWCapital Commercial Funding Corp., as depositor,
COBALT CMBS Commercial Mortgage Trust 2007-C3,
Commercial Mortgage Pass-Through Certificates, Series 2007-C3
--------------------------------------------------------------
In connection with the administration of the Mortgage Files held by or on
behalf of you as Trustee under that certain Pooling and Servicing Agreement
dated as of August 1, 2007 (the "Pooling and Servicing Agreement"), by and among
CWCapital Commercial Funding Corp. as depositor, Wachovia Bank, National
Association as master servicer (the "Master Servicer"), the undersigned as
special servicer (the "Special Servicer") and you as trustee (the "Trustee"),
the undersigned hereby requests a release of the Mortgage File (or the portion
thereof specified below) held by or on behalf of you as Trustee with respect to
the following described Mortgage Loan for the reason indicated below.
Property Name:______________________________________________________
Address:____________________________________________________________
Control No.:________________________________________________________
If only particular documents in the Mortgage File are requested,
please specify which:_______________________________________________
____________________________________________________________________
____________________________________________________________________
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned hereby
certifies that all amounts received in connection with
the Mortgage Loan that are required to be credited to
the Custodial Account pursuant to the Pooling and
Servicing Agreement, have been or will be so credited.
______ 2. Other. (Describe) _____________________________________
________________________________________________________
________________________________________________________
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof (or within such
longer period as we have indicated as part of our reason for the request),
unless the Mortgage Loan has been paid in full or otherwise liquidated, in which
case the Mortgage File (or such portion thereof) will be retained by us
permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
CWCAPITAL ASSET MANAGEMENT LLC
By: _________________________________
Name:
Title:
EXHIBIT E
FORM OF LOAN PAYOFF NOTIFICATION REPORT
LOAN PAYMENT NOTIFICATION REPORT
as of _____________________
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
X0 X00 X00 X00 X0 X0 X00 X00 X00 X00
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
Preceding
Short Name Scheduled Paid Current Fiscal Yr.
(When Property Loan Thru Interest Maturity DSCR Most Recent
Prospectus ID Appropriate) Type State Balance Date Rate Date NCR DSCR NCF
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
----------------------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
Scheduled Payments
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
----------------------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
Unscheduled Payment
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
Total: $
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
--------------- ------------- ---------- ------ ------------ ------ ------------- ------------ ------------- -------------
----------------------------- ---------------------------------------
S4 Servicer Estimated Information
----------------------------- ------------- ----------- -------------
Expected Expected
Yield Payment Distribution
Prospectus ID Maintenance Date Date
----------------------------- ------------- ----------- -------------
----------------------------- ------------- ----------- -------------
Scheduled Payments
----------------------------- ------------- ----------- -------------
----------------------------- ------------- ----------- -------------
--------------- ------------- ------------- ----------- -------------
----------------------------- ------------- ----------- -------------
----------------------------- ------------- ----------- -------------
----------------------------- ------------- ----------- -------------
----------------------------- ------------- ----------- -------------
Unscheduled Payment
----------------------------- ------------- ----------- -------------
----------------------------- ------------- ----------- -------------
----------------------------- ------------- ----------- -------------
----------------------------- ------------- ----------- -------------
----------------------------- ------------- ----------- -------------
----------------------------- ------------- ----------- -------------
----------------------------- ------------- ----------- -------------
Total:
----------------------------- ------------- ----------- -------------
----------------------------- ------------- ----------- -------------
----------------------------- ------------- ----------- -------------
----------------------------- ------------- ----------- -------------
----------------------------- ------------- ----------- -------------
----------------------------- ------------- ----------- -------------
The Borrower has only requested the information to pay-off. This does not
indicate a definite payment.
EXHIBIT F-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services--
CWCapital Commercial Funding Corp., as depositor, COBALT CMBS
Commercial Mortgage Trust 2007-C3
Re: CWCapital Commercial Funding Corp., as depositor, COBALT CMBS
Commercial Mortgage Trust 2007-C3, Commercial Mortgage Pass-Through
Certificates, Series 2007-C3, Class _____, [having an initial
aggregate [Certificate Principal Balance] [Certificate Notional
Amount] as of August 17, 2007 (the "Closing Date") of $__________]
[representing a ____% Percentage Interest in the subject Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of August 1, 2007, between CWCapital
Commercial Funding Corp., as Depositor, Wachovia Bank, National Association, as
Master Servicer, CWCapital Asset Management LLC, as Special Servicer and Xxxxx
Fargo Bank, N.A., as Trustee. All capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Pooling
and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, and for the benefit of the Trustee
and the Depositor, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any
offer to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security with
any person in any manner, (d) made any general solicitation with respect
to any Transferred Certificate, any interest in a Transferred Certificate
or any other similar security by means of general advertising or in any
other manner, or (e) taken any other action with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of the
Transferred Certificates under the Securities Act of 1933, as amended (the
"Securities Act"), would render the disposition of the Transferred
Certificates a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state
securities laws.
Very truly yours,
--------------------------------------
(Transferor)
By:
-----------------------------------
Name:
Title:
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services --
CWCapital Commercial Funding Corp., as depositor, COBALT CMBS
Commercial Mortgage Trust 2007-C3
Re: CWCapital Commercial Funding Corp., as depositor, COBALT CMBS
Commercial Mortgage Trust 2007-C3, Commercial Mortgage Pass-Through
Certificates, Series 2007-C3, Class ___, [having an initial
aggregate [Certificate Principal Balance] [Certificate Notional
Amount] as of August 17, 2007 (the "Closing Date") of $__________]
[representing a ____% Percentage Interest in the subject Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________________ (the "Transferor") to
________________________________ (the "Transferee") of the captioned
Certificates (the "Transferred Certificates"), pursuant to Section 5.02 of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of August 1, 2007 among CWCapital Commercial Funding Corp., as Depositor,
Wachovia Bank, National Association, as Master Servicer, CWCapital Asset
Management LLC, as Special Servicer and Xxxxx Fargo Bank, N.A., as Trustee. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, and for the benefit of the Trustee and the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it
is being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer and to whom notice is given that the resale, pledge or transfer is
being made in reliance on Rule 144A, or (b) pursuant to another exemption
from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto, and (e) all related matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgement below.
4. Check one of the following:
_______ The Transferee is a "U.S. Person" and it has
attached hereto an Internal Revenue Service ("IRS")
Form W-9 (or successor form).
_______ The Transferee is not a "U.S. Person" and under
applicable law in effect on the date hereof, no
taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect
to Distributions to be made on the Transferred
Certificate. The Transferee has attached hereto (i)
a duly executed IRS Form W-8BEN (or successor
form), which identifies such Purchaser as the
beneficial owner of the Transferred Certificate and
states that such Transferee is not a U.S. Person,
(ii) two duly executed copies of IRS Form W-8IMY
(and all appropriate attachment) or (iii) two duly
executed copies of IRS Form W-8ECI (or successor
form), which identify such Transferee as the
beneficial owner of the Transferred Certificate and
state that interest and original issue discount on
the Transferred Certificate is, or is expected to
be, effectively connected with a U.S. trade or
business. The Transferee agrees to provide to the
Certificate Registrar updated IRS Form W-8BEN, IRS
Form W-8IMY or IRS Form W-8ECI, as the case may be,
any applicable successor IRS forms, or such other
certifications as the Certificate Registrar may
reasonably request, on or before the date that any
such IRS form or certification expires or becomes
obsolete, or promptly after the occurrence of any
event requiring a change in the most recent IRS
form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation,
partnership (except to the extent provided in applicable Treasury
regulations) or other entity created or organized in or under the laws of
the United States or any State thereof or the District of Columbia, or an
estate the income of which is subject to U.S. federal income taxation
regardless of its source or a trust if a court within the United States is
able to exercise primary supervision over the administration of the trust
and one or more such U.S. Persons have the authority to control all
substantial decisions of the trust (or, to the extent provided in
applicable Treasury regulations, certain trusts in existence on August 20,
1996 which are eligible to elect to be treated as U.S. Persons).
Very truly yours,
--------------------------------------
(Transferee)
By:
-----------------------------------
Name:
Title:
Nominee Acknowledgement
-----------------------
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
--------------------------------------
(Nominee)
By:
-----------------------------------
Name:
Title:
ANNEX 1 TO EXHIBIT F-2A
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificates (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended, because (i) [the Transferee] [each of the Transferee's equity
owners] owned and/or invested on a discretionary basis
$______________________(6) in securities (other than the excluded
securities referred to below) as of the end of such entity's most recent
fiscal year (such amount being calculated in accordance with Rule 144A)
and (ii) the Transferee satisfies the criteria in the category marked
below.
_____ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
_____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
state or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. bank, and not more than 18 months preceding
such date of sale in the case of a foreign bank or equivalent
institution.
_____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a state or federal authority having
supervision over any such institutions, or is a foreign
savings and loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy
of which is attached hereto, as of a date not more than 16
months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date
of sale in the case of a foreign savings and loan association
or equivalent institution.
--------------------------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee
or any such equity owner, as the case may be, is a dealer, and, in that
case, Transferee or such equity owner, as the case may be, must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
_____ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
_____ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
state, U.S. territory or the District of Columbia.
_____ State or Local Plan. The Transferee is a plan established
and maintained by a state, its political subdivisions, or
any agency or instrumentality of the state or its political
subdivisions, for the benefit of its employees.
_____ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
_____ Investment Advisor. The Transferee is an investment
advisor registered under the Investment Advisers Act of
1940.
_____ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule
144A.
_____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1) ____________________________
______________________________________________________________
_____________________________________________________________.
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated
with such Person, (ii) securities that are part of an unsold allotment to
or subscription by such Person, if such Person is a dealer, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee used the cost of such securities to such Person, unless such
Person reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to
the cost of those securities has been published, in which case the
securities were valued at market. Further, in determining such aggregate
amount, the Transferee may have included securities owned by subsidiaries
of such Person, but only if such subsidiaries are consolidated with such
Person in its financial statements prepared in accordance with generally
accepted accounting principles and if the investments of such subsidiaries
are managed under such Person's direction. However, such securities were
not included if such Person is a majority-owned, consolidated subsidiary
of another enterprise and such Person is not itself a reporting company
under the Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that
the Transferor and other parties related to the Transferred Certificates
are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule
144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificatesonly for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the "qualified
institutional buyer" status of such third party has been established by
the Transferee through one or more of the appropriate methods contemplated
by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Transferred Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the
Transferee is a bank or savings and loan as provided above, the Transferee
agrees that it will furnish to such parties any updated annual financial
statements that become available on or before the date of such purchase,
promptly after they become available.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant
to which the Transferred Certificates were issued.
--------------------------------------
Print Name of Transferee
By:
-----------------------------------
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT F-2A
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional buyer"
as that term is defined in Rule 144A ("Rule 144A") under the Securities
Act of 1933, as amended, because the Transferee is part of a Family of
Investment Companies (as defined below), is an executive officer of the
investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000
in securities (other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year. For purposes of
determining the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of such securities
was used, unless the Transferee or any member of the Transferee's Family
of Investment Companies, as the case may be, reports its securities
holdings in its financial statements on the basis of their market value,
and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were
valued at market.
______ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
______ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies, (ii) bank deposit
notes and certificates of deposit, (iii) loan participations, (iv)
repurchase agreements, (v) securities owned but subject to a repurchase
agreement and (vi) currency, interest rate and commodity swaps. For
purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, or owned by the
Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the Transferor and other parties related to the Transferred Certificates
are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee will be in reliance on Rule
144A.
_____ _____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the "qualified
institutional buyer" status of such third party has been established by
the Transferee through one or more of the appropriate methods contemplated
by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant
to which the Transferred Certificates were issued.
--------------------------------------
Print Name of Transferee or Adviser
By:
-----------------------------------
Name:
Title:
Date:
IF AN ADVISER:
--------------------------------------
Print Name of Transferee
Date:
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services--
CWCapital Commercial Funding Corp., as depositor, COBALT CMBS
Commercial Mortgage Trust 2007-C3
Re: CWCapital Commercial Funding Corp., as depositor, COBALT CMBS
Commercial Mortgage Trust 2007-C3, Commercial Mortgage
Pass-Through Certificates, Series 2007-C3, Class _____,[having
an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of August 17, 2007 (the
"Closing Date") of $__________] [representing a ____%
Percentage Interest in the subject Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of August 1, 2007, between CWCapital
Commercial Funding Corp., as Depositor, Wachovia Bank, National Association, as
Master Servicer, CWCapital Asset Management LLC, as Special Servicer and Xxxxx
Fargo Bank, N.A., as Trustee. All capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Pooling
and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, as Certificate Registrar, and for the benefit of the Trustee
and the Depositor, that:
1. The Transferee is acquiring the Transferred Certificates for its
own account for investment and not with a view to or for sale or transfer
in connection with any distribution thereof, in whole or in part, in any
manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b)
none of the Depositor, the Trustee or the Certificate Registrar is
obligated so to register or qualify the Class of Certificates to which the
Transferred Certificates belong, and (c) neither a Transferred Certificate
nor any security issued in exchange therefor or in lieu thereof may be
resold or transferred unless it is (i) registered pursuant to the
Securities Act and registered or qualified pursuant to any applicable
state securities laws or (ii) sold or transferred in transactions which
are exempt from such registration and qualification and the Certificate
Registrar has received: (A) a certification from the Certificateholder
desiring to effect such transfer substantially in the form attached as
Exhibit F-1 to the Pooling and Servicing Agreement and a certification
from such Certificateholder's prospective transferee substantially in the
form attached either as Exhibit F-2A to the Pooling and Servicing
Agreement or as Exhibit F-2B to the Pooling and Servicing Agreement; or
(B) an opinion of counsel satisfactory to the Trustee with respect to,
among other things, the availability of such exemption from registration
under the Securities Act, together with copies of the written
certification(s) from the transferor and/or transferee setting forth the
facts surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate or interest therein, except in
compliance with the provisions of Section 5.02 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed, and that
each Transferred Certificate will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE
TO (A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security to any person in any manner, (b) solicited any
offer to buy or accept a pledge, disposition or other transfer of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security with
any person in any manner, (d) made any general solicitation with respect
to any Transferred Certificate, any interest in any Transferred
Certificate or any other similar security by means of general advertising
or in any other manner, or (e) taken any other action with respect to any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security, which (in the case of any of the acts
described in clauses (a) through (e) above) would constitute a
distribution of the Transferred Certificates under the Securities Act,
would render the disposition of the Transferred Certificates a violation
of Section 5 of the Securities Act or any state securities law or would
require registration or qualification of the Transferred Certificates
pursuant thereto. The Transferee will not act, nor has it authorized or
will it authorize any person to act, in any manner set forth in the
foregoing sentence with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security.
5. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the Pooling and Servicing Agreement and the Trust Fund
created pursuant thereto, (d) the nature, performance and servicing of the
Mortgage Loans, and (e) all related matters, that it has requested.
6. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act
or an entity in which all of the equity owners come within such
paragraphs. The Transferee has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks
of an investment in the Transferred Certificates; the Transferee has
sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision; and the Transferee is
able to bear the economic risks of such investment and can afford a
complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgement below.
8. Check one of the following:
______ The Transferee is a "U.S. Person" and it has
attached hereto an Internal Revenue Service ("IRS")
Form W-9 (or successor form).
______ The Transferee is not a "U.S. Person" and under
applicable law in effect on the date hereof, no
taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect
to Distributions to be made on the Transferred
Certificate. The Transferee has attached hereto (i)
a duly executed IRS Form W-8BEN (or successor
form), which identifies such Purchaser as the
beneficial owner of the Transferred Certificate and
states that such Transferee is not a U.S. Person,
(ii) two duly executed copies of IRS Form W-8IMY
(and all appropriate attachment) or (iii) two duly
executed copies of IRS Form W-8ECI (or successor
form), which identify such Transferee as the
beneficial owner of the Transferred Certificate and
state that interest and original issue discount on
the Transferred Certificate is, or is expected to
be, effectively connected with a U.S. trade or
business. The Transferee agrees to provide to the
Certificate Registrar updated IRS Form W-8BEN, IRS
Form W-8IMY or IRS Form W-8ECI, as the case may be,
any applicable successor IRS forms, or such other
certifications as the Certificate Registrar may
reasonably request, on or before the date that any
such IRS form or certification expires or becomes
obsolete, or promptly after the occurrence of any
event requiring a change in the most recent IRS
form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation,
partnership (except to the extent provided in applicable Treasury
regulations) or other entity created or organized in or under the laws of
the United States or any State thereof or the District of Columbia, or an
estate the income of which is subject to U.S. federal income taxation
regardless of its source or a trust if a court within the United States is
able to exercise primary supervision over the administration of the trust
and one or more such U.S. Persons have the authority to control all
substantial decisions of the trust (or, to the extent provided in
applicable Treasury regulations, certain trusts in existence on August 20,
1996 which are eligible to elect to be treated as U.S. Persons).
Very truly yours,
--------------------------------------
(Transferee)
By:
-----------------------------------
Name:
Title:
Nominee Acknowledgement
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
--------------------------------------
(Nominee)
By:
-----------------------------------
Name:
Title:
EXHIBIT F-2C
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: CWCapital Commercial Funding Corp., as depositor, COBALT CMBS
Commercial Mortgage Trust 2007-C3, Commercial Mortgage
Pass-Through Certificates, Series 2007-C3, Class _____, having
an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of August 17, 2007 (the
"Closing Date") of $__________
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Company ("DTC") and the Depository Participants) in the
captioned Certificates (the "Transferred Certificates"), pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of August 1, 2007, between CWCapital Commercial Funding
Corp., as Depositor, Wachovia Bank, National Association, as Master Servicer,
CWCapital Asset Management LLC, as Special Servicer and Xxxxx Fargo Bank, N.A.,
as Trustee. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to and agrees with you,
and for the benefit of the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the Transfer
to it of the Transferor's interest in the Transferred Certificates is
being made in reliance on Rule 144A. The Transferee is acquiring such
interest in the Transferred Certificates for its own account or for the
account of another Qualified Institutional Buyer.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b)
none of the Depositor, the Trustee or the Certificate Registrar is
obligated so to register or qualify the Transferred Certificates and (c)
no interest in the Transferred Certificates may be resold or transferred
unless (i) such Certificates are registered pursuant to the Securities Act
and registered or qualified pursuant any applicable state securities laws,
or (ii) such interest is sold or transferred in a transaction which is
exempt from such registration and qualification and the Transferor
desiring to effect such transfer has received (A) a certificate from such
Certificate Owner's prospective transferee substantially in the form
attached as Exhibit F-2C to the Pooling and Servicing Agreement or (B) an
opinion of counsel to the effect that, among other things, such
prospective transferee is a Qualified Institutional Buyer and such
transfer may be made without registration under the Securities Act.
3. The Transferee understands that it may not sell or otherwise
transfer the Transferred Certificates or any interest therein except in
compliance with the provisions of Section 5.02 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed, and that
the Transferred Certificates will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE
TO (A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986 (THE "CODE"), OR ANY MATERIALLY SIMILAR PROVISION OF
APPLICABLE FEDERAL, STATE OR LOCAL LAW OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto, (e) any credit enhancement mechanism associated with the
Transferred Certificates, and (f) all related matters, that it has
requested.
Very truly yours,
--------------------------------------
(Transferee)
By:
-----------------------------------
Name:
Title:
ANNEX 1 TO EXHIBIT F-2C
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of CWCapital Commercial Funding Corp.
with respect to the mortgage pass-through certificates being transferred in
book-entry form (the "Transferred Certificates") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity acquiring interests in the Transferred Certificates
(the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A under the Securities Act of 1933, as amended
("Rule 144A"), because (i) [the Transferee] [each of the Transferee's
equity owners] owned and/or invested on a discretionary basis
$____________(1) in securities (other than the excluded securities
referred to below) as of the end of such entity's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
_____ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
_____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
state or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. bank, and not more than 18 months preceding
such date of sale in the case of a foreign bank or equivalent
institution.
_____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a state or federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. savings and loan association, and not more
than 18 months preceding such date of sale in the case of a
foreign savings and loan association or equivalent
institution.
---------------------------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee
or any such equity owner, as the case may be, is a dealer, and, in that
case, Transferee or such equity owner, as the case may be, must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
___ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
state, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established
and maintained by a state, its political subdivisions, or
any agency or instrumentality of the state or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
___ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule
144A.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated
with such Person, (ii) securities that are part of an unsold allotment to
or subscription by such Person, if such Person is a dealer, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee used the cost of such securities to such Person, unless such
Person reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to
the cost of those securities has been published, in which case the
securities were valued at market. Further, in determining such aggregate
amount, the Transferee may have included securities owned by subsidiaries
of such Person, but only if such subsidiaries are consolidated with such
Person in its financial statements prepared in accordance with generally
accepted accounting principles and if the investments of such subsidiaries
are managed under such Person's direction. However, such securities were
not included if such Person is a majority-owned, consolidated subsidiary
of another enterprise and such Person is not itself a reporting company
under the Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the
Transferred Certificates are relying and will continue to rely on the
statements made herein because one or more Transfers to the Transferee may
be in reliance on Rule 144A.
___ ___ Will the Transferee be acquiring interests in
Yes No the Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no," then in each
case where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a
third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of
such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's acquisition of any
interest in of the Transferred Certificates will constitute a
reaffirmation of this certification as of the date of such acquisition. In
addition, if the Transferee is a bank or savings and loan as provided
above, the Transferee agrees that it will furnish to such parties any
updated annual financial statements that become available on or before the
date of such acquisition, promptly after they become available.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which
the Transferred Certificates were issued.
--------------------------------------
(Transferee)
By:
-----------------------------------
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT F-2C
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of CWCapital Commercial Funding Corp.
with respect to the mortgage pass-through certificates being transferred in
book-entry form (the "Transferred Certificates") as described in the Transferee
certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity acquired interests the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional buyer"
as that term is defined in Rule 144A under the Securities Act of 1933, as
amended ("Rule 144A"), because the Transferee is part of a Family of
Investment Companies (as defined below), is an executive officer of the
investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, as amended, and (ii) as marked
below, the Transferee alone owned and/or invested on a discretionary
basis, or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For
purposes of determining the amount of securities owned by the Transferee
or the Transferee's Family of Investment Companies, the cost of such
securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports
its securities holdings in its financial statements on the basis of their
market value, and no current information with respect to the cost of those
securities has been published, in which case the securities of such entity
were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies, (ii) bank deposit
notes and certificates of deposit, (iii) loan participations, (iv)
repurchase agreements, (v) securities owned but subject to a repurchase
agreement and (vi) currency, interest rate and commodity swaps. For
purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, or owned by the
Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the Transferor and other parties related to the Transferred Certificates
are relying and will continue to rely on the statements made herein
because one or more Transfers to the Transferee will be in reliance on
Rule 144A.
___ ___ Will the Transferee be acquiring interests in
Yes No the Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no," then in each
case where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a
third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of
such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's acquisition of any interest in
the Transferred Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such acquisition.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which
the Transferred Certificates were issued.
--------------------------------------
(Transferee or Adviser)
By:
--------------------------------------
Name:
Title:
Date:
IF AN ADVISER:
Print Name of Transferee
--------------------------------------
Date:
EXHIBIT F-2D
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: CWCapital Commercial Funding Corp., as depositor, COBALT CMBS
Commercial Mortgage Trust 2007-C3, Commercial Mortgage
Pass-Through Certificates, Series 2007-C3, Class _____, having
an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of August 17, 2007 (the
"Closing Date") of $__________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Company ("DTC") and the Depository Participants) in the
captioned Certificates (the "Transferred Certificates"), pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of August 1, 2007, between CWCapital Commercial Funding
Corp., as Depositor, Wachovia Bank, National Association, as Master Servicer,
CWCapital Asset Management LLC, as Special Servicer and Xxxxx Fargo Bank, N.A.,
as Trustee. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to and agrees with you,
and for the benefit of the Depositor, that the Transferee is not a United States
Securities Person.
For purposes of this certification, "United States Securities
Person" means (i) any natural person resident in the United States, (ii) any
partnership or corporation organized or incorporated under the laws of the
United States; (iii) any estate of which any executor or administrator is a
United States Securities Person, other than any estate of which any professional
fiduciary acting as executor or administrator is a United States Securities
Person if an executor or administrator of the estate who is not a United States
Securities Person has sole or shared investment discretion with respect to the
assets of the estate and the estate is governed by foreign law, (iv) any trust
of which any trustee is a United States Securities Person, other than a trust of
which any professional fiduciary acting as trustee is a United States Securities
Person if a trustee who is not a United States Securities Person has sole or
shared investment discretion with respect to the trust assets and no beneficiary
of the trust (and no settlor if the trust is revocable) is a United States
Securities Person, (v) any agency or branch of a foreign entity located in the
United States, unless the agency or branch operates for valid business reasons
and is engaged in the business of insurance or banking and is subject to
substantive insurance or banking regulation, respectively, in the jurisdiction
where located, (vi) any non-discretionary account or similar account (other than
an estate or trust) held by a dealer or other fiduciary for the benefit or
account of a United States Securities Person, (vii) any discretionary account or
similar account (other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated or (if an individual) resident in the United
States, other than one held for the benefit or account of a non-United States
Securities Person by a dealer or other professional fiduciary organized,
incorporated or (if any individual) resident in the United States, (viii) any
partnership or corporation if (a) organized or incorporated under the laws of
any foreign jurisdiction and (b) formed by a United States Securities Person
principally for the purpose of investing in securities not registered under the
Securities Act, unless it is organized or incorporated, and owned, by
"accredited investors" (as defined in Rule 501(a)) under the United States
Securities Act of 1933, as amended (the "Securities Act"), who are not natural
persons, estates or trusts; provided, however, that the International Monetary
Fund, the International Bank for Reconstruction and Development, the
Inter-American Development Bank, the Asian Development Bank, the African
Development Bank, the United Nations and their agencies, affiliates and pension
plans, any other similar international organizations, their agencies, affiliates
and pension plans shall not constitute United States Securities Persons.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Additionally, the Transferee hereby certifies, represents and
warrants to and agrees with you that:
[Check one of the following:]
________ The Transferee is a "U.S. Person" and it has
attached hereto an Internal Revenue Service ("IRS")
Form W-9 (or successor form).
________ The Transferee is not a "U.S. Person" and under
applicable law in effect on the date hereof, no
taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect
to Distributions to be made on the Transferred
Certificate. The Transferee has attached hereto (i)
a duly executed IRS Form W-8BEN (or successor
form), which identifies such Purchaser as the
beneficial owner of the Transferred Certificate and
states that such Transferee is not a U.S. Person,
(ii) two duly executed copies of IRS Form W-8IMY
(and all appropriate attachment) or (iii) two duly
executed copies of IRS Form W-8ECI (or successor
form), which identify such Transferee as the
beneficial owner of the Transferred Certificate and
state that interest and original issue discount on
the Transferred Certificate is, or is expected to
be, effectively connected with a U.S. trade or
business. The Transferee agrees to provide to the
Certificate Registrar updated IRS Form W-8BEN, IRS
Form W-8IMY or IRS Form W-8ECI, as the case may be,
any applicable successor IRS forms, or such other
certifications as the Certificate Registrar may
reasonably request, on or before the date that any
such IRS form or certification expires or becomes
obsolete, or promptly after the occurrence of any
event requiring a change in the most recent IRS
form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation, partnership
(except to the extent provided in applicable Treasury regulations) or other
entity created or organized in or under the laws of the United States or any
State thereof or the District of Columbia, or an estate the income of which is
subject to U.S. federal income taxation regardless of its source or a trust if a
court within the United States is able to exercise primary supervision over the
administration of the trust and one or more such U.S. Persons have the authority
to control all substantial decisions of the trust (or, to the extent provided in
applicable Treasury regulations, certain trusts in existence on August 20, 1996
which are eligible to elect to be treated as U.S. Persons).
Dated: __________, _____
By:
-----------------------------------
As, or agent for, the beneficial
owner(s) of the Certificates to
which this certificate relates.
EXHIBIT G
FORM I OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (DEFINITIVE NON-REGISTERED CERTIFICATES)
[Date]
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services --
CWCapital Commercial Funding Corp., Series 2007-C3
Re: CWCapital Commercial Funding Corp., COBALT CMBS Commercial Mortgage
Trust 2007-C3, Commercial Mortgage Pass-Through Certificates, Series
2007-C3, Class _____, having an initial aggregate [Certificate
Principal Balance] [Certificate Notional Amount] [Percentage
Interest] as of August 17, 2007 (the "Issue Date") of [$__________]
[__________%]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of August 1, 2007, between CWCapital
Commercial Funding Corp., as Depositor, Wachovia Bank, National Association, as
Master Servicer, CWCapital Asset Management LLC, as Special Servicer and Xxxxx
Fargo Bank, N.A., as Trustee. All capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Pooling
and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, as Certificate Registrar, and for the benefit of the Trustee
and the Depositor, that:
The Transferee is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) subject to any federal, state or local law ("Similar Law") which
is, to a material extent, similar to the foregoing provisions of ERISA or the
Code (each a "Plan") or (b) a person acting on behalf of or using the assets of
any such Plan (including an entity whose underlying assets include Plan assets
by reason of investment in the entity by such a Plan or Plans and the
application of Department of Labor Regulation ss. 2510.3-101), other than,
except in the case of a Class IO Certificate or a Residual Interest Certificate,
an insurance company using the assets of its general account under circumstances
whereby the purchase and holding of Privately Offered Certificates by such
insurance company would be exempt from the prohibited transaction provisions of
ERISA and the Code under Sections I and III of Prohibited Transaction Class
Exemption 95-60.
Except in the case of the Class Y Certificates and the Residual Interest
Certificates, which may not be transferred to a Plan or any person acting on
behalf of or using the assets of a Plan, the Transferee understands that if the
Transferee is a Person referred to in 1(a) or (b) above, such Transferee is
required to provide to the Certificate Registrar an opinion of counsel in form
and substance satisfactory to the Certificate Registrar and the Depositor to the
effect that the acquisition and holding of such Certificate by such Transferee
or transferee will not constitute or result in a non-exempt "prohibited
transaction" within the meaning of ERISA, Section 4975 of the Code or any
Similar Law, and will not subject the Trustee, the Certificate Registrar, the
Master Servicer, the Special Servicer, the Initial Purchasers or the Depositor
to any obligation or liability (including obligations or liabilities under
ERISA, Section 4975 of the Code or any such Similar Law) in addition to those
set forth in the Pooling and Servicing Agreement, which Opinion of Counsel shall
not be at the expense of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Initial Purchasers, the Certificate Registrar or the
Trust Fund.
IN WITNESS WHEREOF, the Transferee hereby executes this ERISA representation
letter on the ___ day of [______________], 20[__].
Very truly yours,
-----------------------------------------
[The Transferee]
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
REGARDING RESIDUAL INTEREST CERTIFICATES
TRANSFER AFFIDAVIT PURSUANT TO
SECTIONS 860D(a)(6)(A) and 860E(e)(4) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
Re: CWCapital Commercial Funding Corp., as depositor, COBALT CMBS
Commercial Mortgage Trust 2007-C3, Commercial Mortgage
Pass-Through Certificates, Series 2007-C3 (the
"Certificates"), issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of
August 1, 2007, among CWCapital Commercial Funding Corp. as
Depositor, Wachovia Bank, National Association as Master
Servicer, CWCapital Asset Management LLC as Special Servicer
and Xxxxx Fargo Bank, N.A. as Trustee
STATE OF )
) ss.: ____________________
COUNTY OF )
I, _________________________, under penalties of perjury, declare
that, to the best of my knowledge and belief, the following representations are
true, correct and complete, and being first sworn, depose and say that:
1. I am a __________________________ of
______________________________ (the "Purchaser"), on behalf of which I have the
authority to make this affidavit.
2. The Purchaser is acquiring [Class R-I] [Class R-II] Certificates
representing ________% of the residual interest in each of two real estate
mortgage investment conduits (a "REMIC") designated as ["REMIC I"] ["REMIC II"],
[respectively], relating to the Certificates for which an election is to be made
under Section 860D of the Internal Revenue Code of 1986 (the "Code").
3. The Purchaser is a Permitted Transferee and is not a
"Disqualified Organization" (as defined below), and that the Purchaser is not
acquiring the [Class R-I] [Class R-II] Certificates for the account of, or as
agent or nominee of, or with a view to the transfer of direct or indirect record
or beneficial ownership thereof, to a Disqualified Organization. For the
purposes hereof, a Disqualified Organization is any of the following: (i) the
United States, (ii) any state or political subdivision thereof, (iii) any
foreign government, (iv) any international organization, (v) any agency or
instrumentality of any of the foregoing, (vi) any tax-exempt organization (other
than a cooperative described in Section 521 of the Code) which is exempt from
the tax imposed by Chapter 1 of the Code unless such organization is subject to
the tax imposed by Section 511 of the Code, (vii) any organization described in
Section 1381(a)(2)(C) of the Code, or (viii) any other entity designated as a
"disqualified organization" by relevant legislation amending the REMIC
Provisions and in effect at or proposed to be effective as of the time of
determination. In addition, a corporation will not be treated as an
instrumentality of the United States or of any state or political subdivision
thereof if all of its activities are subject to tax (except for the Federal Home
Loan Mortgage Corporation) and a majority of its board of directors is not
selected by such governmental unit. The terms "United States" and "international
organization" shall have the meanings set forth in Section 7701 of the Code.
4. The Purchaser is not a foreign permanent establishment or a fixed
base (within the meaning of any applicable income tax treaty between the United
States and any foreign jurisdiction) of a United States Tax Person.
5. The Purchaser will not cause the income from the [Class R-I]
[Class R-II] Certificates to be attributable to a foreign permanent
establishment or fixed base (within the meaning of any applicable income tax
treaty between the United States and any foreign jurisdiction) of a United
States Tax Person.
6. The Purchaser acknowledges that Section 860E(e) of the Code would
impose a substantial tax on the transferor or, in certain circumstances, on an
agent for the transferee, with respect to any transfer of any interest in any
[Class R-I] [Class R-II] Certificates to a Disqualified Organization.
7. No purpose of the acquisition of the [Class R-I] [Class R-II]
Certificates is to impede the assessment or collection of tax.
8. Check one of the following:
[_] The present value of the anticipated tax liabilities associated with holding
the [Class R-I] [Class R-II] Certificate does not exceed the sum of:
(i) the present value of any consideration given to the Purchaser
to acquire such [Class R-I] [Class R-II] Certificate;
(ii) the present value of the expected future distributions on such
[Class R-I] [Class R-II] Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such [Class R-I] [Class R-II] Certificate as the
related REMIC generates losses.
For purposes of this calculation, (i) the Purchaser is assumed to pay tax at the
highest rate currently specified in Section 11(b) of the Code (but the tax rate
in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Purchaser has been subject to the
alternative minimum tax under Section 55 of the Code in the preceding two years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using a
discount rate equal to the short-term Federal rate prescribed by Section 1274(d)
of the Code for the month of the transfer and the compounding period used by the
Purchaser.
[_] The transfer of the [Class R-I] [Class R-II] Certificates comply with U.S.
Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Purchaser is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which
income from the [Class R-I] [Class R-II] Certificates will
only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Purchaser's two fiscal years preceding the year of the
transfer, the Purchaser had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Purchaser within the meaning of U.S. Treasury
Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Purchaser will transfer the [Class R-I] [Class R-II]
Certificates only to another "eligible corporation," as
defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the
requirements of Sections 1.860E-1(c)(4)(i), (ii) and (iii) and
Section 1.860E-1(c)(5) of the U.S. Treasury Regulations; and
(iv) the Purchaser determined the consideration paid to it to
acquire the [Class R-I] [Class R-II] Certificates based on
reasonable market assumptions (including, but not limited to,
borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates
and other factors specific to the Purchaser) that it has
determined in good faith.
[_] None of the above.
9. [Check the statement that applies]
[_] The Purchaser is a "United States person" as defined in Section 7701(a) of
the Code and the regulations promulgated thereunder (the Purchaser's U.S.
taxpayer identification number is __________). The Purchaser is not classified
as a partnership under the Code (or, if so classified, all of its beneficial
owners are United States persons);
or
[_] The Purchaser is not a United States person. However, the Purchaser:
(a) conducts a trade or business within the United States and,
for purposes of Treasury regulation section 1.860G-3(a)(3), is
subject to tax under Section 882 of the Code;
(b) understands that, for purposes of Treasury regulation
section 1.860E-1(c)(4)(ii), as a holder of a [Class R-I] [Class
R-II] Certificate for United States federal income tax purposes, it
may incur tax liabilities in excess of any cash flows generated by
such [Class R-I] [Class R-II] Certificate;
(c) intends to pay the taxes associated with holding a [Class
R-I] [Class R-II] Certificate;
(d) is not a Disqualified Partnership; and
(e) has furnished the Transferor and the Trustee with an
effective IRS Form W-8ECI or successor form and will update such
form as may be required under the applicable Treasury regulations.
9. The Purchaser historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and
the Purchaser intends to pay taxes associated with holding the [Class R-I]
[Class R-II] Certificates as they become due.
10. The Purchaser understands that it may incur tax
liabilities with respect to the [Class R-I] [Class R-II] Certificates in
excess of any cash flows generated by such Certificates.
11. The Purchaser will not transfer the [Class R-I] [Class
R-II] Certificates to any person or entity as to which the Purchaser has
not received an affidavit substantially in the form of this affidavit or
to any person or entity as to which the Purchaser has actual knowledge
that the requirements set forth in paragraphs 3, 4, 5, 7 or 9 hereof are
not satisfied, or to any person or entity with respect to which the
Purchaser has not (at the time of such transfer) satisfied the
requirements under the Code to conduct a reasonable investigation of the
financial condition of such person or entity (or its current beneficial
owners if such person or entity is classified as a partnership under the
Code).
12. The Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the
prohibition against transferring the [Class R-I] [Class R-II] Certificates
to a Disqualified Organization, an agent thereof or a person that does not
satisfy the requirements of paragraphs 4, 5, 7 and 9.
13. The Purchaser consents to the designation of the Trustee
as the agent of the Tax Matters Person of [REMIC I] [REMIC II] pursuant to
Section 10.01(d) of the Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the meanings
assigned thereto in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
duly executed on its behalf by its duly authorized officer this ___ day of
__________________.
By:
-----------------------------------
Name:
Title:
Personally appeared before me ___________________________, known or
proved to me to be the same person who executed the foregoing instrument and to
be a_______________________ of the Purchaser, and acknowledged to me that he/she
executed the same as his/her free act and deed and as the free act and deed of
the Purchaser.
Subscribed and sworn before me this
____ day of _______________.
______________________________________
Notary Public
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE
REGARDING RESIDUAL INTEREST CERTIFICATES
[Date]
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services --
CWCapital Commercial Funding Corp., as depositor, COBALT CMBS
Commercial Mortgage Trust 2007-C3
Re: CWCapital Commercial Funding Corp., as depositor, COBALT CMBS
Commercial Mortgage Trust 2007-C3, Commercial Mortgage
Pass-Through Certificates, Series 2007-C3 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] Certificates evidencing a ____% Percentage Interest in
such Class (the "Residual Interest Certificates"). The Certificates, including
the Residual Interest Certificates, were issued pursuant to the Pooling and
Servicing Agreement, dated as of August 1, 2007 (the "Pooling and Servicing
Agreement"), among CWCapital Commercial Funding Corp., as depositor, Wachovia
Bank, National Association, as master servicer, CWCapital Asset Management LLC,
as special servicer and Xxxxx Fargo Bank, N.A., as trustee. All capitalized
terms used but not otherwise defined herein shall have the respective meanings
set forth in the Pooling and Servicing Agreement. The Transferor hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of
the Residual Interest Certificates by the Transferor to the Transferee is
or will be to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has
delivered to you a Transfer Affidavit and Agreement in the form attached
to the Pooling and Servicing Agreement as Exhibit H-1. The Transferor does
not know or believe that any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee (or
the beneficial owners of the Transferee if it is classified as a
partnership under the Code) as contemplated by Treasury regulation section
1.860E-1(c)(4)(i) and, as a result of that investigation, the Transferor
has determined that the Transferee has historically paid its debts as they
became due and has found no significant evidence to indicate that the
Transferee will not continue to pay its debts as they become due in the
future. The Transferor understands that the transfer of the Residual
Interest Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States
income taxes associated therewith) unless the Transferor has conducted
such an investigation.
Very truly yours,
____________________________________
(Transferor)
By:
Name:
Title:
EXHIBIT I-1
FORM OF NOTICE AND ACKNOWLEDGEMENT
[Date]
Standard & Poor's Rating Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the
Pooling and Servicing Agreement, dated as of August 1, 2007 and relating to
CWCapital Commercial Funding Corp., COBALT CMBS Commercial Mortgage Trust
2007-C3, Commercial Mortgage Pass-Through Certificates, Series 2007-C3 (the
"Agreement"). Capitalized terms used but not otherwise defined herein shall have
respective meanings assigned to them in the Agreement.
Notice is hereby given that the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class have designated
________________ to serve as the Special Servicer under the Agreement.
The designation of __________________ as Special Servicer will
become final if certain conditions are met and you deliver to _________________,
the trustee under the Agreement (the "Trustee"), written confirmation that if
the person designated to become the Special Servicer were to serve as such, such
event would not result in the qualification, downgrade or withdrawal of the
rating or ratings assigned by you to one or more Classes of the Certificates.
Accordingly, such confirmation is hereby requested as soon as possible.
Please acknowledge receipt of this notice by signing the enclosed
copy of this notice where indicated below and returning it to the Trustee, in
the enclosed stamped self-addressed envelope.
Very truly yours,
XXXXX FARGO BANK, N.A.,
as Trustee
By:
-----------------------------------
Name:
Title:
Receipt acknowledged:
STANDARD & POOR'S RATINGS SERVICES
By:
----------------------------------
Name:
Title:
Date:
FITCH, INC.
By:
----------------------------------
Name:
Title:
Date:
EXHIBIT I-2
FORM OF ACKNOWLEDGEMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[MASTER SERVICER]
[DEPOSITOR]
Re: CWCapital Commercial Funding Corp., as depositor, COBALT CMBS
Commercial Mortgage Trust 2007-C3, Commercial Mortgage
Pass-Through Certificates, Series 2007-C3
-------------------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement,
dated as of August 1, 2007, relating to CWCapital Commercial Funding Corp.,
COBALT CMBS Commercial Mortgage Trust 2007-C3, Commercial Mortgage Pass-Through
Certificates, Series 2007-C3 (the "Agreement"), the undersigned hereby agrees
with all the other parties to the Agreement that the undersigned shall serve as
Special Servicer under, and as defined in, the Agreement. The undersigned hereby
acknowledges that, as of the date hereof, it is and shall be a party to the
Agreement and bound thereby to the full extent indicated therein in the capacity
of Special Servicer. The undersigned hereby makes, as of the date hereof, the
representations and warranties set forth in Section 3.25 of the Agreement, with
the following corrections with respect to type of entity and jurisdiction of
organization: ____________________.
--------------------------------------
By:
-----------------------------------
Name:
Title:
EXHIBIT J
[Reserved]
EXHIBIT K
SUB-SERVICERS IN RESPECT OF WHICH SUB-SERVICING AGREEMENTS ARE IN EFFECT OR
BEING NEGOTIATED AS OF THE CLOSING DATE
CWCapital LLC
CBRE Melody of Texas, LP
Holiday Xxxxxxxx Xxxxxx, X.X.
Laureate Capital LLC
PSRS Administrative Services, LLC
CFC Transactions, LLC
EXHIBIT L
[RESERVED]
EXHIBIT M
FORM OF XXXXXXXX-XXXXX CERTIFICATION
Re: CWCapital Commercial Funding Corp., COBALT CMBS Commercial Mortgage
Trust 2007-C3, Commercial Mortgage Pass-Through Certificates, Series
2007-C3 (the "Trust"), issued pursuant to the Pooling and Servicing
Agreement, dated as of August 1, 2007 (the "Pooling and Servicing
Agreement"), among CWCapital Commercial Funding Corp., as Depositor,
Wachovia Bank, National Association, as Master Servicer, CWCapital
Asset Management LLC, as Special Servicer, and Xxxxx Fargo Bank,
N.A., as Trustee
I, [identify the certifying individual], the senior officer in charge of
securitization of the Depositor into the above-referenced Trust, certify that:
1. I have reviewed the annual report on Form 10-K for the
fiscal year [___] (the "Annual Report") and all reports on Form 10-D
required to be filed in respect of periods included in the year covered by
the Annual Report (collectively with the Annual Report, the "Reports"), of
the Trust;
2. Based on my knowledge, the Reports, taken as a whole, do
not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with
respect to the period covered by the Annual Report;
3. Based on my knowledge, all distribution, servicing and
other information required to be provided under Form 10-D for the period
covered by the Annual Report is included in the Reports;
4. Based on my knowledge and the servicer compliance
statement(s) required in the Annual Report under Item 1123 of Regulation
AB, and except as disclosed in the Reports, the Master Servicer, the
Special Servicer and the Reporting Sub-Servicers have fulfilled their
obligations under the Pooling and Servicing Agreement or the applicable
sub-servicing agreement or primary servicing agreement in all material
respects; and
5. All of the reports on assessment of compliance with
servicing criteria for asset-backed securities and their related
attestation reports on assessments of compliance with servicing criteria
for asset-backed securities required to be included in the Annual Report
in accordance with Item 1122 of Regulation AB and Exchange Act Rules
13a-18 and 15d-18 have been included as an exhibit to the Annual Report,
except as otherwise disclosed in the Annual Report. Any material instances
of noncompliance described in such reports have been disclosed in the
Annual Report on Form 10-K.
In giving the certifications above, I have reasonably relied information
provided to me by the following unaffiliated parties:
o Wachovia Bank, National Association, as Master Servicer;
o CWCapital Asset Management LLC, as Special Servicer; and
o Wells Fargo Bank, N.A., as Trustee.
Date: _________________________
_______________________________________
[Signature]
[Title]
EXHIBIT N-1
FORM OF CERTIFICATION TO BE PROVIDED
TO DEPOSITOR BY THE TRUSTEE
Re: CWCapital Commercial Funding Corp., COBALT CMBS Commercial Mortgage
Trust 2007-C3, Commercial Mortgage Pass-Through Certificates, Series
2007-C3 (the "Trust"), issued pursuant to the Pooling and Servicing
Agreement, dated as of August 1, 2007 (the "Pooling and Servicing
Agreement"), among CWCapital Commercial Funding Corp., as Depositor,
Wachovia Bank, National Association, as Master Servicer, CWCapital
Asset Management LLC, as Special Servicer, and Xxxxx Fargo Bank,
N.A., as Trustee
--------------------------------------------------------------------
I, [identifying the certifying individual], a [title] of [TRUSTEE], certify to
CWCapital Commercial Funding Corp. and its officers, directors and affiliates,
and with the knowledge and intent that they will rely upon this certification,
that:
1. I have reviewed the annual report on Form 10-K for the
fiscal year 20__, and all reports on Form 10-D required to be filed in
respect of periods covered by that annual report on Form 10-K, of the
Trust (the "Exchange Act Periodic Reports");
2. Based on my knowledge, the distribution information in
Exchange Act Periodic Reports, taken as a whole, does not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading with respect to the period
covered by that report on Form 10-K;
3. Based on my knowledge, all of the distribution, servicing
and other information required to be provided to the Trustee by the Master
Servicer and the Special Servicer under the Pooling and Servicing
Agreement for inclusion in the Exchange Act Periodic Reports is included
in such reports; and
4. I am responsible for reviewing the activities performed by
the Trustee and based on my knowledge and the compliance reviews conducted
in preparing the trustee compliance statements required for inclusion on
Form 10-K pursuant to Item 1123 of Regulation AB, and except as disclosed
on any Form 10-D or 10-K, the Trustee has fulfilled its obligations in all
material respects under the Pooling and Servicing Agreement;
5. All of the reports on assessment of compliance with
servicing criteria for asset-backed securities and their related
attestation reports on assessment of compliance with servicing criteria
for asset-backed securities with respect to the Trustee required to be
included in Form 10-K in accordance with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to
Form 10-K, except as otherwise disclosed in Form 10-K. Any material
instances of noncompliance described in such reports have been disclosed
in such report on Form 10-K; and
6. The Certification Parties may rely upon each (i) annual
compliance statement provided pursuant to Section 11.09 of the Pooling and
Servicing Agreement, (ii) annual report on assessment of compliance with
servicing criteria provided pursuant to Section 11.10 of the Pooling and
Servicing Agreement and (iii) registered public accounting firm
attestation report provided pursuant to Section 11.11 of the Pooling and
Servicing Agreement.
Date: _________________________
XXXXX FARGO BANK, N.A.
By: ____________________________
Name:
Title:
EXHIBIT N-2
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY THE MASTER SERVICER
Re: CWCapital Commercial Funding Corp., COBALT CMBS Commercial Mortgage
Trust 2007-C3, Commercial Mortgage Pass-Through Certificates, Series
2007-C3 (the "Trust"), issued pursuant to the Pooling and Servicing
Agreement, dated as of August 1, 2007 (the "Pooling and Servicing
Agreement"), among CWCapital Commercial Funding Corp., as Depositor,
Wachovia Bank, National Association, as Master Servicer, CWCapital
Asset Management LLC, as Special Servicer, and Xxxxx Fargo Bank,
N.A., as Trustee
-------------------------------------------------------------------
I, [identify the certifying individual], a [title] of [MASTER
SERVICER], certify on behalf of Wachovia Bank, National Association to CWCapital
Commercial Funding Corp. and their officers, directors and affiliates, and with
the knowledge and intent that they will rely upon this certification in
delivering the Certification required by the Pooling and Servicing Agreement
relating to the Certificates (capitalized terms used herein without definition
shall have the meanings assigned to such terms in the Pooling and Servicing
Agreement), that:
1. A servicing officer of the Master Servicer reviewed the
servicing reports relating to the Trust Fund delivered by the Master
Servicer to the Trustee covering the fiscal year 20__;
2. Based on my knowledge, and assuming the accuracy of the
statements required to be made in the corresponding certificate of the
Special Servicer (to the extent such statements are relevant to the
statements made in this certification by the Master Servicer), the
servicing information in these reports, taken as a whole, does not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading with respect to the period
covered by these servicing reports;
3. Based on my knowledge, and assuming the accuracy of the
statements required to be made in the corresponding certificate of the
Special Servicer (to the extent such statements are relevant to the
statements made in this certification by the Master Servicer), the
servicing information required to be provided in these servicing reports
to the Trustee by the Master Servicer under the Pooling and Servicing
Agreement is included in the servicing reports delivered by the Master
Servicer to the Trustee;
4. I am responsible for reviewing the activities performed by
the Master Servicer under the Pooling and Servicing Agreement and based
upon my knowledge and the compliance review conducted in preparing the
servicer compliance statement required under Section 11.09 of the Pooling
and Servicing Agreement with respect to the Master Servicer, and except as
disclosed in such compliance statement delivered by the Master Servicer
under Section 11.09 of the Pooling and Servicing Agreement, the Master
Servicer has fulfilled its obligations under the Pooling and Servicing
Agreement in all material respects in the year to which such review
applies; and
Further, notwithstanding the foregoing certifications, the Master Servicer
does not make any certification under the foregoing clauses 1 through 4
that is in turn dependent upon information required to be provided by any
sub-servicer acting under a sub-servicing agreement that the Master
Servicer entered into in connection with the issuance of the Certificates,
or upon the performance by any such sub-servicer of its obligations
pursuant to any such sub-servicing agreement, in each case beyond the
respective backup certifications actually provided by such sub-servicer to
the Master Servicer with respect to the information that is subject of
such certification;
5. The report on assessment of compliance with servicing
criteria and the related attestation report on assessment of compliance
with servicing criteria required to be delivered in accordance with
Section 11.10 and Section 11.11 of the Pooling and Servicing Agreement
discloses all material instances of noncompliance with the Relevant
Servicing Criteria; and
6. The Certification Parties may rely upon each (i) annual
compliance statement provided pursuant to Section 11.09 of the Pooling and
Servicing Agreement, (ii) annual report on assessment of compliance with
servicing criteria provided pursuant to Section 11.10 of the Pooling and
Servicing Agreement and (iii) registered public accounting firm
attestation report provided pursuant to Section 11.11 of the Pooling and
Servicing Agreement.
Date: _________________________
WACHOVIA BANK, NATIONAL ASSOCIATION
By:____________________________
Name:
Title:
EXHIBIT N-3
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY THE SPECIAL SERVICER
Re: COBALT CMBS Commercial Mortgage Trust 2007-C3, Commercial Mortgage
Pass-Through Certificates, Series 2007-C3 (the "Trust"), issued
pursuant to the Pooling and Servicing Agreement, dated as of August
1, 2007 (the "Pooling and Servicing Agreement"), among CWCapital
Commercial Funding Corp., as Depositor, Wachovia Bank, National
Association, as Master Servicer, CWCapital Asset Management LLC, as
Special Servicer, and Xxxxx Fargo Bank, N.A., as Trustee
-------------------------------------------------------------------
I, [identify the certifying individual], a [title] of [SPECIAL SERVICER],
certify on behalf of CWCapital Asset Management LLC to CWCapital Commercial
Funding Corp. and their officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification in delivering
the Certification required by the Pooling and Servicing Agreement relating to
the Certificates (capitalized terms used herein without definition shall have
the meanings assigned to such terms in the Pooling and Servicing Agreement),
that:
1. Based on my knowledge, the servicing information in the
servicing reports or information relating to the trust fund delivered by
the Special Servicer to the Master Servicer covering the fiscal year 20__,
taken as a whole, does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not
misleading with respect to the period covered by these servicing reports;
2. Based on my knowledge, the servicing information required
to be provided to the Master Servicer by the Special Servicer under the
Pooling and Servicing Agreement for inclusion in the reports to be filed
by the Trustee is included in the servicing reports delivered by the
Special Servicer to the Master Servicer;
3. I am responsible for reviewing the activities performed by
the Special Servicer under the Pooling and Servicing Agreement and based
upon my knowledge and the compliance review conducted in preparing the
servicer compliance statement required under Section 11.09 of the Pooling
and Servicing Agreement with respect to the Special Servicer, and except
as disclosed in such compliance statement delivered by the Special
Servicer under Section 11.09 of the Pooling and Servicing Agreement, the
Special Servicer has fulfilled its obligations under the Pooling and
Servicing Agreement in all material respects in the year to which such
review applies;
4. The report on assessment of compliance with servicing
criteria and the related attestation report on assessment of compliance
with servicing criteria required to be delivered in accordance with
Section 11.10 and Section 11.11 of the Pooling and Servicing Agreement
discloses all material instances of noncompliance with the Relevant
Servicing Criteria; and
5. The Certification Parties may rely upon each (i) annual
compliance statement provided pursuant to Section 11.09 of the Pooling and
Servicing Agreement, (ii) annual report on assessment of compliance with
servicing criteria provided pursuant to Section 11.10 of the Pooling and
Servicing Agreement and (iii) registered public accounting firm
attestation report provided pursuant to Section 11.11 of the Pooling and
Servicing Agreement.
Date: _________________________
CWCAPITAL ASSET MANAGEMENT LLC
By:____________________________
Name:
Title:
EXHIBIT O
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the applicable party shall
address, at a minimum, the criteria identified below as "Relevant Servicing
Criteria," as such criteria may be amended from time to time by the parties to
this Agreement in writing due to any change in interpretations of the
requirements of Item 1122(d) of the Regulation AB (whether due to interpretive
guidance provided by the Commission or its staff or otherwise):
RELEVANT SERVICING CRITERIA APPLICABLE PARTY(IES)
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Reference Criteria
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General Servicing Considerations
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance Trustee
or other triggers and events of default in accordance with the Master Servicer
transaction agreements. Special Servicer
1122(d)(1)(ii) If any material servicing activities are outsourced to third Trustee
parties, policies and procedures are instituted to monitor the Master Servicer
third party's performance and compliance with such servicing Special Servicer
activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a N/A
back-up servicer for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the Master Servicer
party participating in the servicing function throughout the Special Servicer
reporting period in the amount of coverage required by and
otherwise in accordance with the terms of the transaction
agreements.
Cash Collection and Administration
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate Trustee
custodial bank accounts and related bank clearing accounts no more Master Servicer
than two business days following receipt, or such other number of Special Servicer
days specified in the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to Trustee
an investor are made only by authorized personnel. Master Servicer
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows Master Servicer
or distributions, and any interest or other fees charged for such Special Servicer
advances, are made, reviewed and approved as specified in the Trustee
transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve Trustee
accounts or accounts established as a form of Master Servicer
overcollateralization, are separately maintained (e.g., with Special Servicer
respect to commingling of cash) as set forth in the transaction
agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured Trustee
depository institution as set forth in the transaction agreements. Master Servicer
For purposes of this criterion, "federally insured depository Special Servicer
institution" with respect to a foreign financial institution means
a foreign financial institution that meets the requirements of Rule
13k-1(b)(1) of the Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized Trustee
access. Master Servicer
Special Servicer
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all Trustee
asset-backed securities related bank accounts, including custodial Master Servicer
accounts and related bank clearing accounts. These reconciliations Special Servicer
are (A) mathematically accurate; (B) prepared within 30 calendar
days after the bank statement cutoff date, or such other number of
days specified in the transaction agreements; (C) reviewed and
approved by someone other than the person who prepared the
reconciliation; and (D) contain explanations for reconciling items.
These reconciling items are resolved within 90 calendar days of
their original identification, or such other number of days
specified in the transaction agreements.
Investor Remittances and Reporting
1122(d)(3)(i) Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements. Specifically,
such reports:
1122(d)(3)(i)(A) (A) are prepared in accordance with timeframes and other terms set Trustee
forth in the transaction agreements;
1122(d)(3)(i)(B) (B) provide information calculated in accordance with the terms Trustee
specified in the transaction agreements;
1122(d)(3)(i)(C) (C) are filed with the Commission as required by its rules and Party who files
regulations; and report
1122(d)(3)(i)(D) (D) agree with investors' or the Trustee's records as to the total Trustee
unpaid principal balance and number of mortgage loans serviced by
each of the Master Servicer and Special Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance Trustee
with timeframes, distribution priority and other terms set forth in
the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business Trustee
days to the Reporting Servicer's investor records, or such other
number of days specified in the transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with Trustee
cancelled checks, or other form of payment, or custodial bank
statements.
Pool Asset Administration
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required Trustee
by the transaction agreements or related mortgage loan documents. Master Servicer
Special Servicer
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by Trustee
the transaction agreements
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are Trustee
made, reviewed and approved in accordance with any conditions or Master Servicer
requirements in the transaction agreements. Special Servicer
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in Master Servicer
accordance with the related mortgage loan documents are posted to
the Reporting Servicer's obligor records maintained no more than
two business days after receipt, or such other number of days
specified in the transaction agreements, and allocated to
principal, interest or other items (e.g., escrow) in accordance
with the related mortgage loan documents.
1122(d)(4)(v) The Reporting Servicer's records regarding the mortgage loans agree Master Servicer
with the Reporting Servicer's records with respect to an obligor's
unpaid principal balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's Master Servicer
mortgage loans (e.g., loan modifications or re-agings) are made, Special Servicer
reviewed and approved by authorized personnel in accordance with
the transaction agreements and related pool asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, Special Servicer
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and
concluded in accordance with the timeframes or other requirements
established by the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during the Master Servicer
period a mortgage loan is delinquent in accordance with the Special Servicer
transaction agreements. Such records are maintained on at least a
monthly basis, or such other period specified in the transaction
agreements, and describe the entity's activities in monitoring
delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency
is deemed temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans Master Servicer
with variable rates are computed based on the related mortgage loan
documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow Master Servicer
accounts): (A) such funds are analyzed, in accordance with the
obligor's mortgage loan documents, on at least an annual basis, or
such other period specified in the transaction agreements; (B)
interest on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and state laws;
and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related mortgage loans, or such other
number of days specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance Master Servicer
payments) are made on or before the related penalty or expiration
dates, as indicated on the appropriate bills or notices for such
payments, provided that such support has been received by the
servicer at least 30 calendar days prior to these dates, or such
other number of days specified in the transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be Master Servicer
made on behalf of an obligor are paid from the servicer's funds and
not charged to the obligor, unless the late payment was due to the
obligor's error or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two Master Servicer
business days to the obligor's records maintained by the servicer,
or such other number of days specified in the transaction
agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are Master Servicer
recognized and recorded in accordance with the transaction
agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item N/A
1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained
as set forth in the transaction agreements.
[NAME OF REPORTING SERVICER]
Date:
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By:
-------------------------------
Name:
-----------------------------
Title:
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EXHIBIT P
ADDITIONAL FORM 10-D DISCLOSURE
The parties identified in the "Party Responsible" column are obligated
pursuant to Section 11.03 and Section 11.04 of this Agreement to disclose to
the Depositor any information described in the corresponding Form 10-D Item
described in the "Item on Form 10-D" column to the extent such party has
knowledge (and in the case of financial statements required to be provided in
connection with Item 6 below, possession) of such information (other than
information as to itself).
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Item on Form 10-D Party Responsible
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Item 1: Distribution and Pool o Master Servicer (only with respect
Performance Information: to 1121(a)(12) as to Performing
o Only with respect to any Serviced Loans)
information required by 1121 o Special Servicer (only with respect
which is NOT included on the to 1121(a)(12) as to Specially
Distribution Date Statement Serviced Loans)
o Trustee
o Depositor
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Item 2: Legal Proceedings: o Master Servicer (as to itself)
o Item 1117 of Regulation AB (to o Special Servicer (as to itself)
the extent material to o Trustee (as to itself)
Certificateholders) o Depositor (as to itself)
o Trustee/Master
Servicer/Depositor/Special Servicer
as to the Trust (in the case of the
Master Servicer, Special Servicer
and the Trustee, to be reported by
the party controlling such
litigation)
o Each Mortgage Loan Seller as
sponsor (as defined in Regulation
AB) (to be provided by the
Depositor)
o Depositor as to any originators
under Item 1110 of Regulation AB
o Depositor as to any party under
Item 1100(d)(1) of Regulation AB
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Item 3: Sale of Securities and Use of o Depositor
Proceeds
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Item 4: Defaults Upon Senior o Trustee
Securities
--------------------------------------------------------------------------------
Item 5: Submission of Matters to a o Trustee
Vote of Security Holders
--------------------------------------------------------------------------------
Item 6: Significant Obligors of Pool N/A
Assets
--------------------------------------------------------------------------------
Item 7: Significant Enhancement o Depositor
Provider Information
--------------------------------------------------------------------------------
Item 8: Other Information o Any party responsible for
(information required to be disclosed disclosure items on Form 8-K
on Form 8-K that was not properly
disclosed)
--------------------------------------------------------------------------------
Item 9: Exhibits o Depositor
o Trustee
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EXHIBIT Q
ADDITIONAL FORM 10-K DISCLOSURE
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 11.03 and Section 11.05 of this Agreement to disclose to the
Depositor any information described in the corresponding Form 10-K Item
described in the "Item on Form 10-K" column to the extent such party has actual
knowledge (and in the case of financial statements required to be provided in
connection with 1112(b) below, possession) of such information (other than
information as to itself).
--------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
--------------------------------------------------------------------------------
Item 1B: Unresolved Staff Comments o Depositor
--------------------------------------------------------------------------------
Item 9B: Other Information o Any party responsible for disclosure
(information required to be disclosed items on Form 8-K to the extent of
on Form 8-K that was not properly such items
disclosed)
--------------------------------------------------------------------------------
Item 15: Exhibits, Financial o Trustee
Statement Schedules o Depositor
--------------------------------------------------------------------------------
Additional Item: o Master Servicer (as to itself)
o Special Servicer (as to itself)
Disclosure per Item 1117 of Regulation o Trustee (as to itself)
AB (to the extent material to o Depositor (as to itself)
Certificateholders) o Any other Reporting Servicer (as to
itself)
o Trustee/Master
Servicer/Depositor/Special Servicer
as to the Trust (in the case of the
Master Servicer, the Special
Servicer and the Trustee to be
reported by the party controlling
such litigation)
o Each Mortgage Loan Seller as sponsor
(as defined in Regulation AB) (to be
provided by the Depositor)
o Depositor as to any originators
under Item 1110 of Regulation AB
o Depositor as to any party under Item
1100(d)(1) of Regulation AB
--------------------------------------------------------------------------------
Additional Item: o Master Servicer (as to itself) (to
Disclosure per Item 1119 of Regulation the extent material to
AB Certificateholders and only as to
affiliations under 1119(a) with the
Trustee, the Special Servicer or its
subservicers that are 1108(a)(3)
servicers)
o Special Servicer (as to itself) (to
the extent material to
Certificateholders and only as to
affiliations under 1119(a))
o Trustee (as to itself)
o Depositor (as to itself)
o Trustee/Master
Servicer/Depositor/Special Servicer
as to the Trust
o Each Mortgage Loan Seller as sponsor
(as defined in Regulation AB) (to be
provided by the Depositor)
o Depositor as to any originators
under Item 1110 of Regulation AB
o Depositor as to any party under Item
1100(d)(1) of Regulation AB
--------------------------------------------------------------------------------
Additional Item: o Master Servicer
Disclosure per Item 1112(b) of o Depositor
Regulation AB
--------------------------------------------------------------------------------
Additional Item: o Depositor
Disclosure per Items 1114(b)(2) and o Trustee
1115(b) of Regulation AB
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EXHIBIT R
Form 8-K Disclosure Information
The parties identified in the "Party Responsible" column are obligated
pursuant to Section 11.07 of this Agreement to report to the Depositor the
occurrence of any event described in the corresponding Form 8-K Item
described in the "Item on Form 8-K" column to the extent such party has
actual knowledge of such information (other than information as to itself).
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Item on Form 8-K Party Responsible
--------------------------------------------------------------------------------
Item 1.01- Entry into a Material o All parties (only as to the
Definitive Agreement agreements such entity is a
party to or entered into on
behalf of the Trust)
--------------------------------------------------------------------------------
Item 1.02- Termination of a Material o All parties (only as to the
Definitive Agreement agreements such entity is a
party to or entered into on
behalf of the Trust)
--------------------------------------------------------------------------------
Item 1.03- Bankruptcy or Receivership o Depositor
--------------------------------------------------------------------------------
Item 2.04- Triggering Events that o Depositor
Accelerate or Increase a Direct
Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement
--------------------------------------------------------------------------------
Item 3.03- Material Modification to o Trustee
Rights of Security Holders
--------------------------------------------------------------------------------
Item 5.03- Amendments of Articles of o Depositor
Incorporation or Bylaws; Change of
Fiscal Year
--------------------------------------------------------------------------------
Item 6.01- ABS Informational and o Depositor
Computational Material
--------------------------------------------------------------------------------
Item 6.02- Change of Servicer or o Master Servicer (as to itself
Trustee or a servicer retained by it)
o Special Servicer (as to itself
or a servicer retained by it)
o Trustee
o Depositor
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Item 6.03- Change in Credit o Depositor
Enhancement or External Support o Trustee
--------------------------------------------------------------------------------
Item 6.04- Failure to Make a Required o Trustee
Distribution
--------------------------------------------------------------------------------
Item 6.05- Securities Act Updating o Depositor
Disclosure
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Item 7.01- Regulation FD Disclosure o Depositor
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Item 8.01 o Depositor
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Item 9.01 o Depositor
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EXHIBIT S
ADDITIONAL DISCLOSURE NOTIFICATION
**SEND VIA FAX TO 000-000-0000 AND VIA EMAIL TO [ ] AND VIA
OVERNIGHT MAIL TO THE ADDRESS IMMEDIATELY BELOW**
Xxxxx Fargo Bank, N.A., as Trustee
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Email: xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Attn: COBALT CMBS Commercial Mortgage Trust 2007-C3
CWCapital Commercial Funding Corp.
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Global Securities and Trust Services--CWCapital Commercial Funding
Corp., COBALT CMBS Commercial Mortgage Trust Series 2007-C3--SEC REPORT
PROCESSING
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [ ] of the Pooling and Servicing Agreement, dated as
of August 1, 2007, among CWCapital Commercial Funding Corp., as depositor,
Wachovia Bank, National Association, as master servicer, CWCapital Asset
Management LLC, as special servicer and Xxxxx Fargo Bank, N.A., as trustee, the
undersigned, as [ ], hereby notifies you that certain events have come to our
attention that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
-----------------------------------------------------------
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
--------------------------------------------------------------------
Any inquiries related to this notification should be directed to [ ],
phone number: [ ]; email address: [ ].
[NAME OF PARTY],
as [role]
By: ___________________________________
Name:
Title:
EXHIBIT T
SERVICING AND SUBSERVICING AGREEMENTS
1. Sub-Servicing Agreement dated as of August 1, 2007 by and between
Wachovia Bank, National Association and CWCapital LLC.
EXHIBIT U
[RESERVED]
EXHIBIT V
TENANT-IN-COMMON TRANSFER COMPLIANCE
Sponsor Name Timing & Notice Requirement
----------------------------------------------------- ---------------------------
Xxxxx Xxxxxx (Walgreens Brighton) N/A - not a TIC syndicate
Xxxxx Xxxxxx (Walgreens Camillus) N/A - not a TIC syndicate
Xxxxx Xxxxxx (Walgreens Cortlandville) N/A - not a TIC syndicate
HGGP CAPITAL II, LLC (Xxxxx of North Bend Apartments)
Sponsor Name Approval of New Borrower
----------------------------------------------------- ----------------------------------------------------------------
Xxxxx Xxxxxx (Walgreens Brighton) Per standard transfer provisions in Lender's security instrument
(no material revisions made to standard provisions)
Xxxxx Xxxxxx (Walgreens Camillus) Per standard transfer provisions in Lender's security instrument
(no material revisions made to standard provisions)
Xxxxx Xxxxxx (Walgreens Cortlandville) Per standard transfer provisions in Lender's security instrument
(no material revisions made to standard provisions)
HGGP CAPITAL II, LLC (Xxxxx of North Bend Apartments) At Lender's Discretion
Sponsor Name Accredited Investors Only
----------------------------------------------------- -------------------------
Xxxxx Xxxxxx (Walgreens Brighton) N/A - not a TIC syndicate
Xxxxx Xxxxxx (Walgreens Camillus) N/A - not a TIC syndicate
Xxxxx Xxxxxx (Walgreens Cortlandville) N/A - not a TIC syndicate
HGGP CAPITAL II, LLC (Xxxxx of North Bend Apartments)
Sponsor Name Continued Sponsor Control Requirement
----------------------------------------------------- ----------------------------------------------------------------
Xxxxx Xxxxxx (Walgreens Brighton) Per standard transfer provisions in Lender's security instrument
(no material revisions made to standard provisions). Xxxxx
Xxxxxx has interest in single member entity of both TICs.
Xxxxx Xxxxxx (Walgreens Camillus) Per standard transfer provisions in Lender's security instrument
(no material revisions made to standard provisions). Xxxxx
Xxxxxx has interest in single member entity of both TICs.
Xxxxx Xxxxxx (Walgreens Cortlandville) Per standard transfer provisions in Lender's security instrument
(no material revisions made to standard provisions). Xxxxx
Xxxxxx has interest in single member entity of both TICs.
HGGP CAPITAL II, LLC (Xxxxx of North Bend Apartments) Sponsor is not required to maintain any interest in the Property
Sponsor Name New Borrower Debt Liability
----------------------------------------------------- ----------------------------------------------------------------
Xxxxx Xxxxxx (Walgreens Brighton) No additional borrowers contemplated; see, however, standard
transfer provisions in Lender's security instrument (no material
revisions made to standard provisions).
Xxxxx Xxxxxx (Walgreens Camillus) No additional borrowers contemplated; see, however, standard
transfer provisions in Lender's security instrument (no material
revisions made to standard provisions).
Xxxxx Xxxxxx (Walgreens Cortlandville) No additional borrowers contemplated; see, however, standard
transfer provisions in Lender's security instrument (no material
revisions made to standard provisions).
HGGP CAPITAL II, LLC (Xxxxx of North Bend Apartments) Joint & Several
Sponsor Name New Guarantor Requirement
----------------------------------------------------- -----------------------------------------------------------
Xxxxx Xxxxxx (Walgreens Brighton) Yes
Xxxxx Xxxxxx (Walgreens Camillus) Yes
Xxxxx Xxxxxx (Walgreens Cortlandville) Yes
HGGP CAPITAL II, LLC (Xxxxx of North Bend Apartments) Not Applicable; Sponsor provides indemnity for all entities
Sponsor Name Sponsor Release on Guaranty
----------------------------------------------------- ------------------------------------------------------------
Xxxxx Xxxxxx (Walgreens Brighton) Sponsor would only be released pursuant to standard transfer
provisions in Lender's security instrument (no material
revisions made to standard provisions).
Xxxxx Xxxxxx (Walgreens Camillus) Sponsor would only be released pursuant to standard transfer
provisions in Lender's security instrument (no material
revisions made to standard provisions).
Xxxxx Xxxxxx (Walgreens Cortlandville) Sponsor would only be released pursuant to standard transfer
provisions in Lender's security instrument (no material
revisions made to standard provisions).
HGGP CAPITAL II, LLC (Xxxxx of North Bend Apartments) Not Applicable; Sponsor provides indemnity for all entities
Sponsor Name General Pre-Conditions
----------------------------------------------------- ----------------------------------------------------------------
Xxxxx Xxxxxx (Walgreens Brighton) Per standard transfer provisions in Lender's security instrument
(no material revisions made to standard provisions)
Xxxxx Xxxxxx (Walgreens Camillus) Per standard transfer provisions in Lender's security instrument
(no material revisions made to standard provisions)
Xxxxx Xxxxxx (Walgreens Cortlandville) Per standard transfer provisions in Lender's security instrument
(no material revisions made to standard provisions)
HGGP CAPITAL II, LLC (Xxxxx of North Bend Apartments) (I) No Event of Default; (ii) No material adverse change in
financial condition
Sponsor Name Total Borrowers Permitted
----------------------------------------------------- ---------------------------------------------
Xxxxx Xxxxxx (Walgreens Brighton) 2, per TIC provisions in security instrument.
Xxxxx Xxxxxx (Walgreens Camillus) 2, per TIC provisions in security instrument.
Xxxxx Xxxxxx (Walgreens Cortlandville) 2, per TIC provisions in security instrument.
HGGP CAPITAL II, LLC (Xxxxx of North Bend Apartments)
Sponsor Name Required Closing & Assumption Documents
----------------------------------------------------- ----------------------------------------------------------------
Xxxxx Xxxxxx (Walgreens Brighton) Per standard transfer provisions in Lender's security instrument
(no material revisions made to standard provisions).
Xxxxx Xxxxxx (Walgreens Camillus) Per standard transfer provisions in Lender's security instrument
(no material revisions made to standard provisions).
Xxxxx Xxxxxx (Walgreens Cortlandville) Per standard transfer provisions in Lender's security instrument
(no material revisions made to standard provisions).
HGGP CAPITAL II, LLC (Xxxxx of North Bend Apartments) Settlement Statement; Transfer Deed; Note Modification; Partial
Loan Assumption Agreement; Assumption of TIC Agreement; UCCs;
other required by Lender
Sponsor Name Opinions Required
----------------------------------------------------- ----------------------------------------------------------------
Xxxxx Xxxxxx (Walgreens Brighton) Per standard transfer provisions in Lender's security instrument
(no material revisions made to standard provisions).
Xxxxx Xxxxxx (Walgreens Camillus) Per standard transfer provisions in Lender's security instrument
(no material revisions made to standard provisions).
Xxxxx Xxxxxx (Walgreens Cortlandville) Per standard transfer provisions in Lender's security instrument
(no material revisions made to standard provisions).
HGGP CAPITAL II, LLC (Xxxxx of North Bend Apartments) Due Execution; Enforceability; Non-Consolidation (only if
required at initial closing)
Sponsor Name Assumption/ Application Fees
----------------------------------------------------- ----------------------------------------------------------
Xxxxx Xxxxxx (Walgreens Brighton) Greater of $15,000 or 1% of Debt on date of assumption.
Xxxxx Xxxxxx (Walgreens Camillus) Greater of $15,000 or 1% of Debt on date of assumption.
Xxxxx Xxxxxx (Walgreens Cortlandville) Greater of $15,000 or 1% of Debt on date of assumption.
HGGP CAPITAL II, LLC (Xxxxx of North Bend Apartments) 1/2% of Debt for the first transfer; 1% of Debt thereafter
Sponsor Name SPE Requirement
----------------------------------------------------- --------------------------------------------------------------
Xxxxx Xxxxxx (Walgreens Brighton) Existing TICs (2) are Delaware LLCs and are SPEs.
Xxxxx Xxxxxx (Walgreens Camillus) Existing TICs (2) are Delaware LLCs and are SPEs.
Xxxxx Xxxxxx (Walgreens Cortlandville) Existing TICs (2) are Delaware LLCs and are SPEs.
HGGP CAPITAL II, LLC (Xxxxx of North Bend Apartments) All TIC LLCs must be Delaware SPEs; all organization documents
to be approved by Lender
Sponsor Name Title Down-Date Endorsement
----------------------------------------------------- --------------------------------------------------------------
Xxxxx Xxxxxx (Walgreens Brighton) To the extent required by insurance provisions and/or transfer
provisions in security instrument. Transfer provisions in
Lender's security instrument were not materially revised.
Xxxxx Xxxxxx (Walgreens Camillus) To the extent required by insurance provisions and/or transfer
provisions in security instrument. Transfer provisions in
Lender's security instrument were not materially revised.
Xxxxx Xxxxxx (Walgreens Cortlandville) To the extent required by insurance provisions and/or transfer
provisions in security instrument. Transfer provisions in
Lender's security instrument were not materially revised.
HGGP CAPITAL II, LLC (Xxxxx of North Bend Apartments) Lender's discretion
Sponsor Name Insurance Endorsements
----------------------------------------------------- --------------------------------------------------------------
Xxxxx Xxxxxx (Walgreens Brighton) To the extent required by insurance provisions and/or transfer
provisions in security instrument. Transfer provisions in
Lender's security instrument were not materially revised.
Xxxxx Xxxxxx (Walgreens Camillus) To the extent required by insurance provisions and/or transfer
provisions in security instrument. Transfer provisions in
Lender's security instrument were not materially revised.
Xxxxx Xxxxxx (Walgreens Cortlandville) To the extent required by insurance provisions and/or transfer
provisions in security instrument. Transfer provisions in
Lender's security instrument were not materially revised.
HGGP CAPITAL II, LLC (Xxxxx of North Bend Apartments) Not Required
Sponsor Name Timing & Notice Requirement
---------------------------------- -------------------------------
NNN Loans (Hunter Plaza) At any time upon 20 days notice
Rio Norte Shopping Center At any time
Chant Portfolio - Pool 2 At any time
Fox Chase Apartments At any time
TownePlace Suites - Fort Worth, TX At any time
Sponsor Name Approval of New Borrower Accredited Investors Only
---------------------------------- --------------------------------- -------------------------
NNN Loans (Hunter Plaza) At Lender's Discretion Yes
Rio Norte Shopping Center At Lender's reasonable discretion Yes
Chant Portfolio - Pool 2 At Lender's reasonable discretion Yes
Fox Chase Apartments At Lender's reasonable discretion Yes
TownePlace Suites - Fort Worth, TX At Lender's reasonable discretion Yes
Sponsor Name Continued Sponsor Control Requirement New Borrower Debt Liability
---------------------------------- ---------------------------------------------------------------- ---------------------------
NNN Loans (Hunter Plaza) Sponsor is not required to maintain any interest in the Property Joint & Several
Rio Norte Shopping Center Sponsor is not required to maintain any interest in the Property Joint & Several
Chant Portfolio - Pool 2 Sponsor shall maintain a 1.00% interest in the Property Joint & Several
Fox Chase Apartments Sponsor shall maintain a 1.00% interest in the Property Joint & Several
TownePlace Suites - Fort Worth, TX Sponsor is not required to maintain any interest in the Property Joint & Several
Sponsor Name New Guarantor Requirement
---------------------------------- -----------------------------------------------------------------------------------------
NNN Loans (Hunter Plaza) Not Applicable; Sponsor provides indemnity for all entities
Rio Norte Shopping Center Sponsor of each TIC signs TIC Guaranty in substantially the same form as Sponsor Guaranty
Chant Portfolio - Pool 2 Sponsor of each TIC signs TIC Guaranty in substantially the same form as Sponsor Guaranty
Fox Chase Apartments Sponsor of each TIC signs TIC Guaranty in substantially the same form as Sponsor Guaranty
TownePlace Suites - Fort Worth, TX Sponsor of each TIC signs TIC Guaranty in substantially the same form as Sponsor Guaranty
Sponsor Name Sponsor Release on Guaranty
---------------------------------- ---------------------------------------------------------------------------------------------
NNN Loans (Hunter Plaza) Not Applicable; Sponsor provides indemnity for all entities
Rio Norte Shopping Center Not applicable; sponsor covers bad acts of affiliated prop mgr in addition to acts of related
TICs
Chant Portfolio - Pool 2 Not applicable; sponsor covers bad acts of affiliated prop mgr in addition to acts of related
TICs
Fox Chase Apartments Not applicable; sponsor covers bad acts of affiliated prop mgr in addition to acts of related
TICs
TownePlace Suites - Fort Worth, TX Not applicable; sponsor covers bad acts of affiliated Master Tenant in addition to acts of
related TICs
Sponsor Name General Pre-Conditions
---------------------------------- --------------------------------------------------------------------------------
NNN Loans (Hunter Plaza) (I) No Event of Default; (ii) No material adverse change in financial condition
Rio Norte Shopping Center No Event of Default, no Transfer to result in a new TIC owning more than 49% of
property (except for Gemini Rio Norte H, LP), clean searches, UCC filing,
opinions, rating agency confirmation on transfers involving greater than 10%
interests in the Property
Chant Portfolio - Pool 2 No Event of Default, no Transfer to result in a new TIC owning more than 49% of
property (except for affiliates of Trustor), clean searches, UCC filing,
opinions, rating agency confirmation
Fox Chase Apartments No Event of Default, no Transfer to result in a new TIC owning more than 49% of
property (except for affiliates of Trustor), clean searches, UCC filing,
opinions, rating agency confirmation
TownePlace Suites - Fort Worth, TX No Event of Default, no Transfer to result in a new TIC owning more than 49% of
property (except for Xxxxx National TPS Fort Worth H, LLC), clean searches, UCC
filing, opinions, rating agency confirmation on transfers involving greater than
10% interests in the Property
Sponsor Name Total Borrowers Permitted
---------------------------------- -----------------------------------------------------
NNN Loans (Hunter Plaza) Max permitted under Rev. Proc. 2002-14 (currently 35)
Rio Norte Shopping Center 35
Chant Portfolio - Pool 2 35
Fox Chase Apartments 35
TownePlace Suites - Fort Worth, TX 35
Sponsor Name Required Closing & Assumption Documents
---------------------------------- ---------------------------------------------------------------------------------------
NNN Loans (Hunter Plaza) Settlement Statement; Transfer Deed; Note Modification; Partial Loan Assumption
Agreement; Assumption of TIC Agreement; UCCs; other required by Lender
Rio Norte Shopping Center Settlement Statement; Transfer Deed; Note Modification; Partial Loan Assumption
Agreement; Assumption of TIC Agreement; UCCs; other required by Lender
Chant Portfolio - Pool 2 Settlement Statement; Transfer Deed; Note Modification; Partial Loan Assumption
Agreement; Assumption of TIC Agreement; UCCs; other required by Lender
Fox Chase Apartments Settlement Statement; Transfer Deed; Note Modification; Partial Loan Assumption
Agreement; Assumption of TIC Agreement; UCCs; other required by Lender
TownePlace Suites - Fort Worth, TX Settlement Statement; Transfer Deed; Note Modification; Partial Loan Assumption
Agreement; Assumption of TIC Agreement; UCCs; other required by Lender
Sponsor Name Opinions Required
---------------------------------- ---------------------------------------------------------------------------------------
NNN Loans (Hunter Plaza) Due Execution; Enforceability; Non-Consolidation (only if required at initial closing)
Rio Norte Shopping Center Due Execution; Enforceability; Non-Consolidation (only if required at initial closing);
DE Opinions
Chant Portfolio - Pool 2 Due Execution; Enforceability;
Fox Chase Apartments Due Execution; Enforceability;
TownePlace Suites - Fort Worth, TX Due Execution; Enforceability;
Sponsor Name Assumption/ Application Fees
---------------------------------- ------------------------------------------------------------------------------
NNN Loans (Hunter Plaza) $1000 per TIC LLC plus costs
Rio Norte Shopping Center $5,000 per TIC plus costs (except for transfers occurring within 180 days from
the date of closing by Gemini Rio Norte S, LP as transferor)
Chant Portfolio - Pool 2 $2,500 per TIC plus costs (except for transfers from Trustor occuring within 6
months of closing)
Fox Chase Apartments $2,500 per TIC plus costs (except for transfers from Trustor occuring within 6
months of closing)
TownePlace Suites - Fort Worth, TX $5,000 per TIC plus costs (except for transfers occurring within 180 days from
the date of closing by Xxxxx Nation TPS Fort Worth S, LLC as transferor)
Sponsor Name SPE Requirement
---------------------------------- ---------------------------------------------------------------------------------------
NNN Loans (Hunter Plaza) All TIC LLCs must be Delaware SPEs; all organization documents to be approved by Lender
Rio Norte Shopping Center All TIC LLCs must be Delaware SPEs; all organization documents to be approved by Lender
Chant Portfolio - Pool 2 All TIC LLCs must be Delaware SPEs; all organization documents to be approved by Lender
Fox Chase Apartments All TIC LLCs must be Delaware SPEs; all organization documents to be approved by Lender
TownePlace Suites - Fort Worth, TX All TIC LLCs must be Delaware SPEs; all organization documents to be approved by Lender
Sponsor Name Title Down-Date Endorsement Insurance Endorsements
---------------------------------- --------------------------- ----------------------
NNN Loans (Hunter Plaza) Required Not Required
Rio Norte Shopping Center Required Not Required
Chant Portfolio - Pool 2 Required Not Required
Fox Chase Apartments Required Not Required
TownePlace Suites - Fort Worth, TX Required Not Required
TIC SYNDICATOR Loan Seller Loan Number Mortgage Loan Number
--------------------------------------------------------- ----------- ----------- --------------------
Gemini Real Estate Advisors, LLC CGM 7020356
BGK Properties CGM 7020149
The TIC structure was in place for 1031 exchange purpose, CGM 7020290
this is not syndication TIC.
Xxxxx XxXxxxx CGM 7020418
The TIC structure was in place for 1031 exchange purpose, CGM 7021458
this is not syndication TIC.
Not a Syndication TIC CGM 7021502
Not a Syndication TIC CGM 7021503
Xxxxx Xxxxx CGM 7020246
TIC SYNDICATOR DM RE COUNSEL Property Name
--------------------------------------------------------- -- --------------------- ----------------------------------
Gemini Real Estate Advisors, LLC Xxxxxx X. Xxxxxx Rio Norte Shopping Center
BGK Properties Xxxxxx X. Xxxxxx Chant Portfolio - Pool 2
The TIC structure was in place for 1031 exchange purpose, Xxxxxx Xxxxxxxxxxx 1111 & 0000 Xxxxxx Xxxxxx
this is not syndication TIC.
Xxxxx XxXxxxx Xxxxxx X. Xxxxxxxxxxx Xxx Xxxxx Apartments
The TIC structure was in place for 1031 exchange purpose, Xxxxx Xxxxx Eighth Avenue Shops
this is not syndication TIC.
Not a Syndication TIC Xxxxxx X. Xxxxxx Verizon Wireless I
Not a Syndication TIC Xxxxxx X. Xxxxxx Verizon Wireless II
Xxxxx Xxxxx Xxxxxx X. Xxxxxx TownePlace Suites - Fort Worth, TX
TIC SYNDICATOR Cut-Off Date Balance % of Pool Group #
--------------------------------------------------------- -------------------- --------- -------
Gemini Real Estate Advisors, LLC $25,120,000.00 1.22% 1
BGK Properties $24,800,000.00 1.21% 1
The TIC structure was in place for 1031 exchange purpose, $17,000,000.00 0.83% 1
this is not syndication TIC.
Xxxxx XxXxxxx $14,525,000.00 0.71% 2
The TIC structure was in place for 1031 exchange purpose, $10,950,000.00 0.53% 1
this is not syndication TIC.
Not a Syndication TIC $8,840,000.00 0.43% 1
Not a Syndication TIC $8,835,000.00 0.43% 1
Xxxxx Xxxxx $7,840,000.00 0.38% 1
$2,052,768,090.00
TIC SYNDICATOR SPONSOR Tenants-In-Common (Y/N)?
--------------------------------------------------------- ------------------------------------------- ------------------------
Gemini Real Estate Advisors, LLC Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxxxx, Y
Xxxxxxxxxxx X. Xx Xxxx and Xxxx X. Xxxxxxxx
BGK Properties Xxxx Xxxxxx, Xxxx Xxxxxx Y
The TIC structure was in place for 1031 exchange purpose, Xxxxxxx Xxxxxxx Xxxxx, Xxxx Xxxxxxx Y
this is not syndication TIC.
Xxxxx XxXxxxx Xxxxx XxXxxxx Y
The TIC structure was in place for 1031 exchange purpose, Xxxx Xxxxxx Y
this is not syndication TIC.
Not a Syndication TIC Xxxx X. Xxxx Y
Not a Syndication TIC Xxxx X. Xxxx Y
Xxxxx Xxxxx Xxxxx Xxxxx Y
TIC SYNDICATOR Maximum # of members Fully Syndicated?
--------------------------------------------------------- -------------------- -----------------
Gemini Real Estate Advisors, LLC 35 No
BGK Properties 35 No
The TIC structure was in place for 1031 exchange purpose, NAP NAP
this is not syndication TIC.
Xxxxx XxXxxxx 35 Yes
The TIC structure was in place for 1031 exchange purpose, NAP NAP
this is not syndication TIC.
Not a Syndication TIC NAP NAP
Not a Syndication TIC NAP NAP
Xxxxx Xxxxx 35 Yes
Sponsor Name Timing & Notice Requirement
---------------------------------------------------------- ----------------------------------------------------------
SCI Real Estate Investments (SCI) - Initiall TIC Transfers Until the Sponsor provides notice that all sales have
occurred; upon 10 days prior notice
SCI Real Estate Investments (SCI) - Future TIC Transfers After the completion of the Initial TIC Transfers; upon 30
days notice; no more than 20 permitted
Sponsor Name Approval of New Borrower Accredited Investors Only
---------------------------------------------------------- ------------------------ -------------------------
SCI Real Estate Investments (SCI) - Initiall TIC Transfers At Lender's Discretion Yes
SCI Real Estate Investments (SCI) - Future TIC Transfers At Lender's Discretion Yes
Sponsor Name Continued Sponsor Control Requirement
---------------------------------------------------------- ----------------------------------------------------
SCI Real Estate Investments (SCI) - Initiall TIC Transfers Sponsor is required to maintain a direct or indirect
interest in the property of at least 1%
SCI Real Estate Investments (SCI) - Future TIC Transfers Not Applicable
Sponsor Name New Borrower Debt Liability
---------------------------------------------------------- ---------------------------
SCI Real Estate Investments (SCI) - Initiall TIC Transfers Joint & Several
SCI Real Estate Investments (SCI) - Future TIC Transfers Joint & Several
Sponsor Name New Guarantor Requirement
---------------------------------------------------------- ----------------------------------------------
SCI Real Estate Investments (SCI) - Initiall TIC Transfers Required from the principal(s) of each new TIC
SCI Real Estate Investments (SCI) - Future TIC Transfers Required from the principal(s) of each new TIC
Sponsor Name Sponsor Release on Guaranty General Pre-Conditions
---------------------------------------------------------- --------------------------- -----------------------------------------
SCI Real Estate Investments (SCI) - Initiall TIC Transfers No (I) No Event of Default; (ii) No material
adverse change in financial condition
SCI Real Estate Investments (SCI) - Future TIC Transfers Not applicable (I) No Event of Default; (ii) No material
adverse change in financial condition
Sponsor Name Total Borrowers Permitted
---------------------------------------------------------- -----------------------------------------------------
SCI Real Estate Investments (SCI) - Initiall TIC Transfers Max permitted under Rev. Proc. 2002-14 (currently 35)
SCI Real Estate Investments (SCI) - Future TIC Transfers Max permitted under Rev. Proc. 2002-14 (currently 35)
Sponsor Name Required Closing & Assumption Documents
---------------------------------------------------------- ------------------------------------------------------------
SCI Real Estate Investments (SCI) - Initiall TIC Transfers Settlement Statement; Transfer Deed; Note Modification;
Partial Loan Assumption Agreement; TIC Indemnity; Assumption
of TIC Agreement; UCCs; other documents required by Lender
SCI Real Estate Investments (SCI) - Future TIC Transfers Settlement Statement; Transfer Deed; Note Modification;
Partial Loan Assumption Agreement; TIC Indemnity; Assumption
of TIC Agreement; UCCs; other documents required by Lender
Sponsor Name Opinions Required
---------------------------------------------------------- ---------------------------------------------------------
SCI Real Estate Investments (SCI) - Initiall TIC Transfers Due Execution; Enforceability; Non-Consolidation (only if
required at initial closing)
SCI Real Estate Investments (SCI) - Future TIC Transfers Due Execution; Enforceability; Non-Consolidation (only if
required at initial closing)
Sponsor Name Assumption/ Application Fees
---------------------------------------------------------- -------------------------------------------------------
SCI Real Estate Investments (SCI) - Initiall TIC Transfers $1000 for first 5 sTICs; $750 for 6-10; $500 for 11-15;
$250 for 15+; plus costs
SCI Real Estate Investments (SCI) - Future TIC Transfers $2,000 application fee and prorata 0.5% assumption fee,
plus costs
Sponsor Name SPE Requirement
---------------------------------------------------------- ----------------------------------------------------
SCI Real Estate Investments (SCI) - Initiall TIC Transfers All TIC LLCs must be Delaware SPEs; all organization
documents to be approved by Lender
SCI Real Estate Investments (SCI) - Future TIC Transfers All TIC LLCs must be Delaware SPEs; all organization
documents to be approved by Lender
Sponsor Name Title Down-Date Endorsement Insurance Endorsements
---------------------------------------------------------- --------------------------- ----------------------
SCI Real Estate Investments (SCI) - Initiall TIC Transfers Required Not Required
SCI Real Estate Investments (SCI) - Future TIC Transfers Required Not Required
TIC SYNDICATOR Loan Seller Loan Number Mortgage Loan Number DM RE COUNSEL
----------------------------------------------------- ----------- ----------- -------------------- -- ----------------
NNN Wachovia 62 502858554 Xxxxx Xxxxxx
Wilshire Plaza LLC and 0000 Xxxxxxxx LLC, Wachovia 12 502859999 Xxxxx Xxxxxxx
or the beneficiaries thereof, i.e., Xxxxxxxxxx Xxxxxx
or Trusts by Xxxxxxxxxx Xxxxxx
SCI Wachovia 29 502859900 Xxxxx Xxxxxx
SCI Wachovia 59 502859903 Xxxxx Xxxxxx
NNN Wachovia 8 502858271 Xxxxx Xxxxxx
SCI Wachovia 32 502860815 Xxxxx Xxxxxx
NNN Wachovia 47 502860987 Xxxxx Xxxxxx
Xxxxxx X. Xxxx & Company Wachovia 24 502860813 Xxxxxxx
Xxxxx Xxxxxxx Wachovia 11 502861233 Xxxxx Xxxxxxxxxx
TIC SYNDICATOR Property Name Cut-Off Date Balance
----------------------------------------------------- ----------------------------------------- --------------------
NNN Northmark II Office Building $9,120,000.00
Wilshire Plaza LLC and 0000 Xxxxxxxx LLC, Walgreens Portfolio $40,000,000.00
or the beneficiaries thereof, i.e., Xxxxxxxxxx Xxxxxx
or Trusts by Xxxxxxxxxx Xxxxxx
SCI Campus Club Student Housing Complex $20,475,000.00
SCI University Glades Student Housing Complex $9,685,000.00
NNN Express Scripts Office Property $45,000,000.00
SCI Western Ridge Apartments $17,875,000.00
NNN San Marin Apartments - Corpus Christi, TX $12,000,000.00
Xxxxxx X. Xxxx & Company Lynnhaven North Shopping Center $24,140,000.00
Xxxxx Xxxxxxx Xxxx Corporation Headquarters Building $41,000,000.00
TIC SYNDICATOR % of Pool Group # SPONSOR
----------------------------------------------------- --------- ------- -------------------------------
NNN 0.45% 1 NNN Realty Advisors
Wilshire Plaza LLC and 0000 Xxxxxxxx LLC, 1.98% 1 Xxxxxx Xxxxx
or the beneficiaries thereof, i.e., Xxxxxxxxxx Xxxxxx
or Trusts by Xxxxxxxxxx Xxxxxx
SCI 1.02% 2 SCI Real Estate Investments LLC
SCI 0.48% 2 SCI Real Estate Investments LLC
NNN 2.23% 1 NNN Realty Advisors, Inc.
SCI 0.89% 2 SCI Real Estate Investments LLC
NNN 0.60% 2 NNN Realty Advisors, LLC
Xxxxxx X. Xxxx & Company 1.20% 1 Xxxxxx X. Xxxx & Company
Xxxxx Xxxxxxx 2.03% 1 Xxxxx Xxxxxxx
TIC SYNDICATOR Tenants-In-Common (Y/N)? Maximum # of members
----------------------------------------------------- ------------------------ --------------------
NNN Y 35
Wilshire Plaza LLC and 0000 Xxxxxxxx LLC, Y 3
or the beneficiaries thereof, i.e., Xxxxxxxxxx Xxxxxx
or Trusts by Xxxxxxxxxx Xxxxxx
XXX X 00
XXX X 00
XXX X 00
XXX X 35
NNN Y 35
Xxxxxx X. Xxxx & Company Y 5
Xxxxx Xxxxxxx Y 5
TIC SYNDICATOR Fully Syndicated?
----------------------------------------------------- ------------------------------------------------------------
NNN Fully Syndicated
Wilshire Plaza LLC and 0000 Xxxxxxxx LLC, Yes, however, Borrower is permitted to add one (1)
or the beneficiaries thereof, i.e., Xxxxxxxxxx Xxxxxx additional TIC Member, and same shall be comprised solely of
or Trusts by Xxxxxxxxxx Xxxxxx the trust entities comprising the members of Borrower's sole
member, or the beneficiaries thereof
SCI No
SCI No
NNN Fully Syndicated
SCI Fully Syndicated
NNN Fully Syndicated
Xxxxxx X. Xxxx & Company Fully Syndicated
Xxxxx Xxxxxxx Fully Syndicated
EXHIBIT W
FORM OF OFFICER'S CERTIFICATE
Wachovia Bank, National Association
0000 Xxxxxxxx Xxxxx, XXX0
Xxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
[WACHOVIA SECURITIES LOGO]
[Date]
VIA EMAIL AND OVERNIGHT MAIL
[Addressee]
RE: Depositor: CWCapital Commercial Funding Corp.
Pool: COBALT CMBS Commercial Mortgage Trust 2007-C3, Commercial
Mortgage Pass-Through Certificates, Series 2007-C3
Borrower:
Property:
Control #:
WB Loan #:
Current Loan Amount: $
Proposed TICs:
OFFICER'S CERTIFICATE
Dear [____________]:
Wachovia Bank, National Association ("WB"), is the Master Servicer on behalf of
Xxxxx Fargo Bank, N.A., as Trustee, in trust for the Holders of COBALT CMBS
Commercial Mortgage Trust 2007-C3, Commercial Mortgage Pass-Through
Certificates, Series 2007-C3.
Borrower has submitted for lender approval information pertaining to the
proposed transfer of Tenant in Common interests per Section [______] of the
Mortgage and Security Agreement dated [________]. In accordance with our
responsibilities as dictated by the Pooling and Servicing Agreement dated August
1, 2007, WB has conducted its review and determined that the proposed transfer
meets the applicable requirements of Exhibit V. The results of our analysis can
be found on the attached spreadsheet and the supporting documents have been
provided for your review. Accordingly, we are recommending approval of the
proposed transaction.
Sincerely,
Wachovia Bank, NA
Master Servicer
_____________________
_____________________
Vice President
TIC Consent
Original Borrower
Loan #
Current UPB
TIC #
Proposed TIC
Purchase Price
Net Worth
TIC % Interest
Requirements
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1. Timing & Notice Requirement
2. Approval of New Borrower
3. Accredited Investor
4. Sponsor control requirement
5. New Borrower Debt Liability
6. New Guarantor Requirement
7. Sponsor Release on Guaranty
8. General Pre-Conditions
9. Total Borrowers permitted
10. Required Closing Docs
11. Required Opinions
12. Application/Assumption Fees
Application Fee
Assumption Fee
13. MS/SS Assumption Fee Arrangement
MS portion of Assumption Fee
SS portion of Assumption Fee
12. SPE Requirement
13. Title Date-Down Endorsement
14. Insurance Endorsements
Attached
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Purchase and Sale Agreement
Purchaser Questionnaire
Lender Questionnaire
Lender Minimum Qualifications
Acknowledgement
Statement of Net Worth
Credit Check
Company/LLC/Trust Information
Settlement Statement
Transfer Deed/Membership Assignment
Partial Loan Assumption Agreement
TIC Indemnity Agreement
UCCs
Required Opinions
