XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Depositor
and
WACHOVIA BANK, NATIONAL ASSOCIATION
Master Servicer No. 1
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Master Servicer No. 2
and
LNR PARTNERS, INC.
Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2007
-------------------------
$2,145,926,359 (Approximate)
ML-CFC Commercial Mortgage Trust 2007-6
Commercial Mortgage Pass-Through Certificates Series 2007-6
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms.......................................................................5
SECTION 1.02 Certain Adjustments to the Principal Distributions on the Certificates.............92
SECTION 1.03 Calculation of LIBOR...............................................................94
ARTICLE II
CONVEYANCE OF TRUST MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Trust Mortgage Loans.................................................96
SECTION 2.02 Acceptance of the Trust Fund by Trustee............................................99
SECTION 2.03 Mortgage Loan Sellers' Repurchase or Substitution of Trust Mortgage Loans for
Document Defects and Breaches of Representations and Warranties...................100
SECTION 2.04 Representations and Warranties of Depositor.......................................104
SECTION 2.05 Acceptance of REMIC I and Grantor Trusts by Trustee...............................106
SECTION 2.06 Execution, Authentication and Delivery of Class R-I Certificates; Issuance of
REMIC I Regular Interests.........................................................106
SECTION 2.07 Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by Trustee........106
SECTION 2.08 Execution, Authentication and Delivery of REMIC II Certificates...................106
SECTION 2.09 Execution, Authentication and Delivery of Class Z Certificates....................106
SECTION 2.10 ML-CFC 2007-6 Grantor Trust FL....................................................107
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01 Administration of the Mortgage Loans..............................................108
SECTION 3.02 Collection of Mortgage Loan Payments..............................................111
SECTION 3.03 Collection of Taxes, Assessments and Similar Items; Servicing Advances;
Servicing Accounts; Reserve Accounts..............................................114
SECTION 3.04 Collection Accounts, Interest Reserve Account, Additional Interest Account,
Distribution Account, Gain-on-Sale Reserve Account and Loan Combination
Custodial Accounts................................................................120
SECTION 3.05 Permitted Withdrawals From the Collection Accounts, the Interest Reserve
Account, the Additional Interest Account, the Distribution Account and the
Loan Combination Custodial Accounts...............................................128
SECTION 3.06 Investment of Funds in the Servicing Accounts, the Reserve Accounts, the
Collection Accounts, the Distribution Account, the Loan Combination Custodial
Accounts, the Additional Interest Account, the Gain-on-Sale Reserve Account,
the REO Accounts and the Floating Rate Account....................................140
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SECTION 3.07 Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage.....142
SECTION 3.08 Enforcement of Alienation Clauses.................................................146
SECTION 3.09 Realization Upon Defaulted Mortgage Loans; Required Appraisals....................149
SECTION 3.10 Trustee and Custodian to Cooperate; Release of Mortgage Files.....................153
SECTION 3.11 Servicing Compensation............................................................155
SECTION 3.12 Property Inspections; Collection of Financial Statements; Delivery of Certain
Reports...........................................................................162
SECTION 3.13 Annual Statement as to Compliance.................................................166
SECTION 3.14 Reports on Assessment of Compliance with Servicing Criteria; Registered Public
Accounting Firm Attestation Reports...............................................167
SECTION 3.15 Access to Certain Information.....................................................169
SECTION 3.16 Title to REO Property; REO Accounts...............................................173
SECTION 3.17 Management of REO Property........................................................175
SECTION 3.18 Resolution of Defaulted Mortgage Loans and REO Properties.........................178
SECTION 3.19 Additional Obligations of the Master Servicers....................................184
SECTION 3.20 Modifications, Waivers, Amendments and Consents...................................186
SECTION 3.21 Transfer of Servicing Between the Master Servicers and the Special Servicer;
Record Keeping....................................................................192
SECTION 3.22 Sub-Servicing Agreements..........................................................195
SECTION 3.23 Representations and Warranties of Each Master Servicer and the Special
Servicer..........................................................................198
SECTION 3.24 Sub-Servicing Agreement Representation and Warranty...............................201
SECTION 3.25 Designation of Controlling Class Representative...................................201
SECTION 3.26 Application of Default Charges....................................................203
SECTION 3.27 Controlling Class Representative Contact with Servicer............................204
SECTION 3.28 Certain Matters Regarding the Loan Combinations...................................204
SECTION 3.29 Control of Trust-Related Litigation...............................................206
SECTION 3.30 The Swap Agreements...............................................................210
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Distributions.....................................................................214
SECTION 4.02 Statements to Certificateholders..................................................229
SECTION 4.03 P&I Advances; Reimbursement of P&I Advances and Servicing Advances................234
SECTION 4.04 Allocation of Realized Losses and Additional Trust Fund Expenses..................238
SECTION 4.05 Calculations......................................................................240
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates..................................................................241
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SECTION 5.02 Registration of Transfer and Exchange of Certificates.............................241
SECTION 5.03 Book-Entry Certificates...........................................................249
SECTION 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.................................250
SECTION 5.05 Persons Deemed Owners.............................................................251
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS, THE SPECIAL SERVICER AND
THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01 Liability of Depositor, Master Servicers and Special Servicer.....................252
SECTION 6.02 Merger, Consolidation or Conversion of Depositor or Master Servicers or
Special Servicer..................................................................252
SECTION 6.03 Limitation on Liability of the Depositor, the Master Servicers, the Special
Servicer and Others...............................................................252
SECTION 6.04 Resignation of Master Servicers and the Special Servicer..........................255
SECTION 6.05 Rights of Depositor and Trustee in Respect of Master Servicers and the Special
Servicer..........................................................................256
SECTION 6.06 Depositor, Master Servicers and Special Servicer to Cooperate with Trustee........257
SECTION 6.07 Depositor, Special Servicer and Trustee to Cooperate with Master Servicer.........257
SECTION 6.08 Depositor, Master Servicers and Trustee to Cooperate with Special Servicer........257
SECTION 6.09 Designation of Special Servicer by the Controlling Class..........................257
SECTION 6.10 Either Master Servicer or the Special Servicer as Owner of a Certificate..........258
SECTION 6.11 The Controlling Class Representative..............................................259
SECTION 6.12 Certain Matters with Respect to the Blackpoint Puerto Rico Retail Portfolio
Loan Combination..................................................................262
ARTICLE VII
DEFAULT
SECTION 7.01 Events of Default.................................................................264
SECTION 7.02 Trustee to Act; Appointment of Successor..........................................269
SECTION 7.03 Notification to Certificateholders................................................270
SECTION 7.04 Waiver of Events of Default.......................................................270
SECTION 7.05 Additional Remedies of Trustee Upon Event of Default..............................270
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE FISCAL AGENT
SECTION 8.01 Duties of Trustee.................................................................272
SECTION 8.02 Certain Matters Affecting Trustee.................................................273
SECTION 8.03 Trustee and Fiscal Agent Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans....................................................275
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SECTION 8.04 Trustee and Fiscal Agent May Own Certificates.....................................275
SECTION 8.05 Fees and Expenses of Trustee; Indemnification of Trustee..........................275
SECTION 8.06 Eligibility Requirements for Trustee..............................................276
SECTION 8.07 Resignation and Removal of Trustee................................................277
SECTION 8.08 Successor Trustee.................................................................278
SECTION 8.09 Merger or Consolidation of Trustee................................................278
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee.....................................279
SECTION 8.11 Appointment of Custodians.........................................................280
SECTION 8.12 Appointment of Authenticating Agents..............................................280
SECTION 8.13 Access to Certain Information.....................................................281
SECTION 8.14 Appointment of REMIC Administrators...............................................281
SECTION 8.15 Representations, Warranties and Covenants of Trustee..............................282
SECTION 8.16 Reports to the Commission.........................................................283
SECTION 8.17 Maintenance of Mortgage File......................................................290
SECTION 8.18 Appointment of Fiscal Agent.......................................................290
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All Trust Mortgage Loans............292
SECTION 9.02 Additional Termination Requirements...............................................295
SECTION 9.03 Non-Serviced Trust Mortgage Loans.................................................296
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01 REMIC Administration..............................................................297
SECTION 10.02 Grantor Trust Administration......................................................300
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.........................................................................303
SECTION 11.02 Recordation of Agreement; Counterparts............................................305
SECTION 11.03 Limitation on Rights of Certificateholders........................................305
SECTION 11.04 Governing Law; Waiver of Trial By Jury............................................306
SECTION 11.05 Notices...........................................................................306
SECTION 11.06 Severability of Provisions........................................................308
SECTION 11.07 Grant of a Security Interest......................................................308
SECTION 11.08 Xxxxxx Act........................................................................308
SECTION 11.09 Successors and Assigns; Beneficiaries.............................................309
SECTION 11.10 Article and Section Headings......................................................309
SECTION 11.11 Notices to Rating Agencies........................................................309
SECTION 11.12 Complete Agreement................................................................311
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SCHEDULES AND EXHIBITS
Schedule No. Schedule Description
------------ ---------------------
Schedule I Mortgage Loan Schedule
Schedule II List of Mortgage Loans with Secured Creditor Environmental Insurance Policies
Schedule III [RESERVED]
Schedule IV [RESERVED]
Schedule V Sub-Servicers as to Which Sub-Servicing Agreements Are In Effect on the Closing Date
Schedule VI List of Mortgage Loans Requiring Operations and Maintenance Plans
Exhibit No. Exhibit Description
----------- -------------------
A-1 Form of Class X-0, X-0, X-0, X-0 and A-1A Certificates
A-2 Form of Class X Certificate
A-3 Form of Class AM, AJ, B, C and D Certificates
A-4 Form of Class A-2FL, AJ-FL, E, F, G and H Certificates
A-5 Form of Class J, K, L, M, N, P and Q Certificates
A-6 Form of Class R-I and R-II Certificates
A-7 Form of Class Y Certificate
A-8 Form of Class Z 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-1 Form of Transferor Certificate for Transfers of Definitive Non-Registered
Certificates (Pursuant to Section 5.02(b))
E-2A Form I of Transferee Certificate for Transfers of Definitive Non-Registered
Certificates (Pursuant to Section 5.02(b))
E-2B Form II of Transferee Certificate for Transfers of Definitive Non-Registered
Certificates (Pursuant to Section 5.02(b))
E-2C Form of Transferee Certificate for Transfers of Interests in Rule 144A Global
Certificates (Pursuant to Section 5.02(b))
E-2D Form of Transferee Certificate for Transfers of Interests in Regulation S Global
Certificates (Pursuant to Section 5.02(b))
F-1 Form I of Transferee Certificate Regarding ERISA Matters (Definitive Non-Registered Certificates)
(Pursuant to Section 5.02(c))
F-2 Form II of Transferee Certificate Regarding ERISA Matters (Book-Entry Non-Registered Certificates)
(Pursuant to Section 5.02(c))
G-1 Form of Transfer Affidavit and Agreement Regarding Residual Certificates (Pursuant to Section
5.02(d)(i)(4))
G-2 Form of Transferor Certificate for Transfers of Residual Certificates
(Pursuant to Section 5.02(d)(i)(4))
H-1 Form of Notice and Acknowledgment (Regarding Proposed Special Servicer)
H-2 Form of Acknowledgment of Proposed Special Servicer
I-1 Form of Information Request from Certificateholder or Certificate Owner
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I-2 Form of Information Request from Prospective Investor
J Form of Exchange Act Reportable Event Notification
K Form of Defeasance Certification
L Relevant Servicing Criteria
M-1 Form of Purchase Option Notice
M-2 Form of Purchase Option Assignment by the Special Servicer
M-3 Form of Purchase Option Assignment by Plurality Subordinate Certificateholder or Controlling
Class Representative
N [RESERVED]
O Form of Xxxxxxxx-Xxxxx Certification by the Depositor
P-1 Form of Certification to be Provided by each Master Servicer to the Depositor
P-2 Form of Certification to be Provided by the Trustee to the Depositor
P-3 Form of Certification to be Provided by the Special Servicer to the Depositor
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POOLING AND SERVICING AGREEMENT
This Pooling and Servicing Agreement is dated and effective as of
April 1, 2007, among XXXXXXX XXXXX MORTGAGE INVESTORS, INC., as Depositor,
WACHOVIA BANK, NATIONAL ASSOCIATION, as Master Servicer No. 1, XXXXX FARGO BANK,
NATIONAL ASSOCIATION, as Master Servicer No. 2, LNR PARTNERS, INC., as Special
Servicer, and LASALLE BANK NATIONAL ASSOCIATION, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates, to
be issued hereunder in multiple classes, which in the aggregate will evidence
the entire beneficial ownership interest in a trust fund to be created
hereunder, the primary assets of which will be the Trust Mortgage Loans.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of all of the Trust Mortgage Loans (exclusive of the
Excess Servicing Strip and that portion of the interest payments on the Trust
Mortgage Loans that constitutes ARD Loan Additional Interest) and certain other
related assets subject to this Agreement as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as "REMIC I".
The Class R-I Certificates will evidence the sole class of "residual interests"
in REMIC I for purposes of the REMIC Provisions under federal income tax law.
For federal income tax purposes, each REMIC I Regular Interest will be
designated as a separate "regular interest" in REMIC I for purposes of the REMIC
Provisions under federal income tax law. None of the REMIC I Regular Interests
will be certificated.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of all of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II". The Class R-II Certificates will evidence the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. For federal income tax purposes, each Class of the
Regular Certificates (or in the case of the Class X Certificates, each Class X
Component thereof), the Class A-2FL REMIC II Regular Interest and the Class
AJ-FL REMIC II Regular Interest will be designated as a separate "regular
interest" in REMIC II for purposes of the REMIC Provisions under federal income
tax law.
The following table sets forth: (i) the class designation of each
Class of Regular Certificates; (ii) the Original Class Principal Balance or
Original Class Notional Amount for each Class of Regular Certificates; (iii) the
corresponding REMIC I Regular Interest (the "Corresponding REMIC I Regular
Interest") for each Class of Regular Certificates (exclusive of the Class X
Certificates); and (iv) the initial REMIC I Principal Balance or REMIC I
Notional Amount, as applicable, of each such Corresponding REMIC I Regular
Interest.
Corresponding
Class Original Class REMIC I Initial REMIC I
Designation Principal Balance Regular Interest(s) Principal Balance
---------------- ----------------- ------------------- -----------------
Class A-1 $27,682,000 LA-1 $27,682,000
Class A-2 $170,430,000 LA-2 $170,430,000
Class A-2FL(1) $150,000,000 LA-2FL $150,000,000
Class A-3 $60,689,000 LA-3 $60,689,000
Class A-4 $728,987,000 LA-4 $728,987,000
Class A-1A $364,360,000 LA-1A $364,360,000
Corresponding
Class Original Class REMIC I Initial REMIC I
Designation Principal Balance Regular Interest(s) Principal Balance
---------------- ----------------- ------------------- -----------------
Class AM $214,593,000 XXX $214,593,000
Class AJ $107,403,000 LAJ $107,403,000
Class AJ-FL(2) $75,000,000 LAJ-FL $75,000,000
Class B $42,919,000 LB $42,919,000
Class C $16,094,000 LC $16,094,000
Class D $34,872,000 LD $34,872,000
Class E $18,776,000 LE $18,776,000
Class F $24,142,000 LF $24,142,000
Class G $24,142,000 LG $24,142,000
Class H $26,824,000 LH $26,824,000
Class J $5,365,000 LJ $5,365,000
Class K $5,365,000 LK $5,365,000
Class L $5,364,000 LL $5,364,000
Class M $5,365,000 LM $5,365,000
Class N $5,365,000 LN $5,365,000
Class P $5,365,000 LP $5,365,000
Class Q $26,824,359 LQ $26,824,359
Class Y $795,033 LY $795,033
Class X $2,145,926,359* N/A N/A
* Original Notional Amount
________________________
(1) The Class A-2FL REMIC II Regular Interest will have the same designation,
Original Class Principal Balance and Corresponding REMIC I Regular
Interest as the Class A-2FL Certificates.
(2) The Class AJ-FL REMIC II Regular Interest will have the same designation,
Original Class Principal Balance and Corresponding REMIC I Regular
Interest as the Class AJ-FL Certificates.
The Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan is
part of a loan group comprised of that Trust Mortgage Loan and five (5) other
mortgage loans, namely the Xxxxx Xxxxxx Village and Stuyvesant Town Pari Passu
Non-Trust Loans, that are both secured by the same Mortgage encumbering the
related Mortgaged Property. The Xxxxx Xxxxxx Village and Stuyvesant Town Pari
Passu Non-Trust Loans are pari passu in right of payment and in other respects
with the Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan. The Xxxxx
Xxxxxx Village and Stuyvesant Town Pari Passu Non-Trust Mortgage Loans, which
will not be included in the Trust Fund, are either, as of the Closing Date,
included in various commercial mortgage securitizations or in the future will be
included in various commercial mortgage securitizations. The Xxxxx Xxxxxx
Village and Stuyvesant Town Loan Combination is being serviced pursuant to the
pooling and servicing agreement for the Wachovia Bank Commercial Mortgage Trust
Series 2007-C30 securitization transaction (the "WBCMT 2007-C30 Securitization")
involving the issuance of a series of commercial mortgage-backed securities
captioned Wachovia Bank Commercial Mortgage Trust Series 2007-C30, Commercial
Mortgage Pass-Through Certificates, Series 2007-C30. The Xxxxx Xxxxxx Village
and Stuyvesant Town Trust Mortgage Loan and the Xxxxx Xxxxxx Village and
Stuyvesant Town Pari Passu Non-Trust Loans together constitute the Xxxxx Xxxxxx
Village and Stuyvesant Town Loan Combination. The relative rights of the holder
of the Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan and the
respective
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holders of the Xxxxx Xxxxxx Village and Stuyvesant Town Non-Trust Loans are set
forth in the Xxxxx Xxxxxx Village and Stuyvesant Town Intercreditor Agreement.
As of the Closing Date, the entire Xxxxx Xxxxxx Village and Stuyvesant Town Loan
Combination is being, and will continue to be, serviced and administered in
accordance with the Pooling and Servicing Agreement, dated as of March 1, 2007,
between Wachovia Commercial Mortgage Securities, Inc., Wachovia Bank, National
Association, CWCapital Asset Management LLC and Xxxxx Fargo Bank, N.A.
Accordingly, the Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan,
although part of the Trust Fund, will be serviced and administered in accordance
with the WBCMT 2007-C30 Pooling and Servicing Agreement by the WBCMT 2007-C30
Master Servicer and the WBCMT 2007-C30 Special Servicer for so long as the Xxxxx
Xxxxxx Village and Stuyvesant Town Pari Passu Non-Trust Loan that is part of the
trust fund created in connection with the WBCMT 2007-C30 Securitization remains
an asset of such trust fund.
There exist two (2) A-Note Trust Mortgage Loans, each of which is
part of a group of loans comprised of that A-Note Trust Mortgage Loan and
another mortgage loan, namely the related B-Note Non-Trust Loan, that are both
secured by the same Mortgage encumbering the related Mortgaged Property. Each
A-Note Trust Mortgage Loan and the related B-Note Non-Trust Loan collectively
constitute a Loan Combination. The relative rights of the holder of an A-Note
Trust Mortgage Loan and the holder of the related B-Note Non-Trust Loan are set
forth in the related Loan Combination Intercreditor Agreement. As and to the
extent provided in the related Loan Combination Intercreditor Agreement, each
B-Note Non-Trust Loan is subordinate in right of payment and in other respects
to the related A-Note Trust Mortgage Loan.
As and to the extent provided herein, the Non-Trust Loans, although
not part of the Trust Fund, will be serviced and administered in accordance with
this Agreement by the applicable Master Servicer and by the Special Servicer.
The portion of the Trust Fund consisting of (i) the ARD Loan
Additional Interest and (ii) amounts held from time to time in the Collection
Accounts and/or the Additional Interest Account that represent ARD Loan
Additional Interest shall be treated as a grantor trust for federal income tax
purposes and such grantor trust will be designated as "Grantor Trust Z".
The Class A-2FL Swap Agreement (and payments thereunder) and the
applicable sub-account of the Floating Rate Account and amounts held from time
to time in the applicable sub-account of the Floating Rate Account that
represent payments under the Class A-2FL Swap Agreement, the Class AJ-FL Swap
Agreement (and payments thereunder) and the applicable sub-account of the
Floating Rate Account and amounts held from time to time in the applicable
sub-account of the Floating Rate Account that represent payments under the Class
AJ-FL Swap Agreement, shall be treated as a grantor trust for federal income tax
purposes and shall be designated as "ML-CFC 0000-0 Xxxxxxx Xxxxx XX"; provided
that the initial up-front payment by the Class A-2FL Swap Counterparty and by
the Class AJ-FL Swap Counterparty to the Depositor under the respective Swap
Agreements shall belong to the Depositor and shall not be part of the Trust Fund
or ML-CFC 0000-0 Xxxxxxx Xxxxx XX. As provided herein, the Grantor Trust Trustee
shall take all actions required hereunder to ensure that ML-CFC 2007-6 Grantor
Trust FL maintains its status as a grantor trust under federal income tax law
and not be treated as part of REMIC I or REMIC II. The Class A2-FL Certificates
shall represent beneficial interests in the portion of ML-CFC 0000-0 Xxxxxxx
Xxxxx XX related to the Class A-2FL Swap Agreement (including payments
thereunder) and the Class A-2FL Sub-Account. The Class AJ-FL Certificates shall
represent beneficial interests in the portion of the ML-CFC
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2007-6 Grantor Trust FL related to the Class AJ-FL Swap Agreement (including
payments thereunder) and the Class AJ-FL Sub-Account.
The portions of the Trust Fund consisting of (i) the Excess
Servicing Strip and (ii) amounts held from time to time in the Collection
Accounts that represent the Excess Servicing Strip shall be treated as a grantor
trust for federal income tax purposes, and such grantor trust will be designated
as "Grantor Trust E". As provided herein, the Trustee (in such capacity and as
Grantor Trust Trustee) shall take all actions reasonably necessary to ensure
that each of the respective portions of the Trust Fund consisting of ML-CFC
2007-6 Grantor Trust FL , Grantor Trust E and Grantor Trust Z maintains its
status as a "grantor trust" under federal income tax law and is not treated as
part of the REMIC I or REMIC II.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicers, the Special Servicer and the Trustee agree as
follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"30/360 Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"9600 Brookpark Road A-Note Trust Mortgage Loan": The Trust Mortgage
Loan (loan number 89) identified on the Mortgage Loan Schedule by property name
0000 Xxxxxxxxx Xxxx.
"9600 Brookpark Road B-Note Non-Trust Loan": The B-Note Non-Trust
Loan that is part of the same Loan Combination as the 0000 Xxxxxxxxx Xxxx A-Note
Trust Mortgage Loan.
"9600 Brookpark Road Loan Combination": Collectively, the 0000
Xxxxxxxxx Xxxx A-Note Trust Mortgage Loan and the 0000 Xxxxxxxxx Xxxx B-Note
Non-Trust Loan.
"9600 Brookpark Road Mortgaged Property": The Mortgaged Property
securing the 0000 Xxxxxxxxx Xxxx A-Note Trust Mortgage Loan and the 0000
Xxxxxxxxx Xxxx B-Note Non-Trust Loan.
"A/B Loan Combination": Collectively, each A-Note Trust Mortgage
Loan and the related B-Note Non-Trust Loan.
"A-Note Trust Mortgage Loan": Each of the Trust Mortgage Loans as to
which the related Mortgage, which encumbers the related Mortgaged Property, also
secures a B-Note Non-Trust Loan, which B-Note Non-Trust Loan will not be
included in the Trust Fund. The 0000 Xxxxxxxxx Xxxx A-Note Trust Mortgage Loan
and the Blackpoint Puerto Rico Retail A-Note Trust Mortgage Loan are the only
A-Note Trust Mortgage Loans.
"Acceptable Insurance Default": With respect to any Serviced
Mortgage Loan, any default under the related Mortgage Loan documents resulting
from: (i) the exclusion of acts of terrorism from coverage under the related
"all risk" casualty insurance policy maintained on the related Mortgaged
Property and (ii) the related Mortgagor's failure to obtain insurance that
specifically covers acts of terrorism, but, in each case, only if the Special
Servicer has determined, in its reasonable judgment (exercised in accordance
with the Servicing Standard), that (a) 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 (b) such insurance is not available at any rate.
Subject to the Servicing Standard, in making any of the determinations required
in subclause (a) or (b) of this definition, the Special Servicer shall be
entitled to rely on the opinion of an insurance consultant.
"Accountant's Consent" As defined in Section 3.14.
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"Accrued Certificate Interest": With respect to any Class of
Sequential Pay Certificates (other than the Class A-2FL Certificates and the
Class AJ-FL Certificates), the Class A-2FL REMIC II Regular Interest or the
Class AJ-FL REMIC II Regular Interest for any Distribution Date, one month's
interest at the Pass-Through Rate applicable to such Class of Certificates, the
Class A-2FL REMIC II Regular Interest or the Class AJ-FL REMIC II Regular
Interest, as the case may be, for such Distribution Date, accrued on the related
Class Principal Balance outstanding immediately prior to such Distribution Date;
and with respect to the Class X Certificates for any Distribution Date, the
aggregate of all Accrued Component Interest with respect to the Class X
Components for such Distribution Date. Accrued Certificate Interest shall be
calculated on a 30/360 Basis and, with respect to any Class of Regular
Certificates, the Class A-2FL REMIC II Regular Interest or the Class AJ-FL REMIC
II Regular Interest, for any Distribution Date, shall be deemed to accrue during
the calendar month preceding the month in which such Distribution Date occurs.
"Accrued Component Interest": With respect to any Class X Component
for any Distribution Date, one month's interest at the Class X Strip Rate with
respect to such Class X Component for such Distribution Date, accrued on the
Component Notional Amount of such Class X Component outstanding immediately
prior to such Distribution Date. Accrued Component Interest shall be calculated
on a 30/360 Basis and, with respect to any Class X Component for any
Distribution Date, shall be deemed to accrue during the calendar month preceding
the month in which such Distribution Date occurs.
"Accrued REMIC I Interest": With respect to any REMIC I Regular
Interest for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the REMIC I Principal Balance of such REMIC I
Regular Interest outstanding immediately prior to such Distribution Date.
"Actual/360 Basis": The accrual of interest calculated on the basis
of the actual number of days elapsed during any calendar month (or other
applicable accrual period) in a year assumed to consist of 360 days.
"Actual/360 Mortgage Loan": Each Mortgage Loan that accrues interest
on an Actual/360 Basis.
"Additional Exclusions": Exclusions in addition to those in the
insurance policies for the Mortgaged Properties on September 11, 2001.
"Additional Interest": With respect to any (i) ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal balance of
such ARD Loan at the Additional Interest Rate (the payment of which interest
shall, under the terms of such Mortgage Loan, be deferred until the entire
outstanding principal balance of such ARD Loan has been paid), together with all
interest, if any, accrued at the related Mortgage Rate plus the related
Additional Interest Rate on such deferred interest; and (ii) Convertible Rate
Mortgage Loan, upon the conversion of the mortgage interest rate on such
Mortgage Loan from a fixed rate to a floating rate, the excess of all interest
accrued on the principal balance of such Convertible Rate Mortgage Loan at the
Additional Interest Rate. For purposes of this Agreement, Additional Interest on
an ARD Loan, Convertible Rate Mortgage 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 such ARD Loan, Convertible Rate Mortgage Loan or successor
REO Loan, notwithstanding that the terms of the related
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Mortgage Loan documents so permit. To the extent that any Additional Interest is
not paid on a current basis, it shall be deemed to be deferred interest.
"Additional Interest Account": The segregated account or accounts
(which may be a sub-account of the Distribution Account) created and maintained
by the Trustee pursuant to Section 3.04(d), which shall be entitled (in the case
of a sub-account, if such sub-account is permitted to be separately titled)
"LaSalle Bank National Association as Trustee, in trust for the registered
holders of ML-CFC Commercial Mortgage Trust 2007-6, Commercial Mortgage
Pass-Through Certificates, Series 2007-6, Additional Interest Account". The
sub-account or portion of the Additional Interest Account consisting of the ARD
Loan Additional Interest shall not be an asset of any of REMIC I or REMIC II.
"Additional Interest Rate": With respect to any (i) ARD Loan after
its Anticipated Repayment Date, the incremental increase in the per annum rate
at which such Mortgage Loan accrues interest after the Anticipated Repayment
Date (in the absence of defaults) as calculated and as set forth in the related
Mortgage Loan documents and (ii) Convertible Rate Mortgage Loan, after the
Convertible Rate Mortgage Loan Conversion Date, the additional interest, the
excess of the original fixed mortgage interest rate over the floating mortgage
interest rate at which such Mortgage Loan accrues interest after the Convertible
Rate Mortgage Loan Conversion Date (in the absence of defaults) as calculated
and as set forth in the related Mortgage Loan documents.
"Additional Item 1123 Servicer": Any Additional Servicer that meets
the criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB with respect
to the Subject Securitization Transaction.
"Additional Servicer": Any Servicer, other than the Master
Servicers, the Special Servicer or the Trustee.
"Additional Trust Fund Expense": Any Special Servicing Fees, Workout
Fees, Principal Recovery Fees and, in accordance with Sections 3.03(d) and
4.03(d), interest payable to either Master Servicer, the Special Servicer, the
Trustee and any Fiscal Agent on Advances (to the extent not offset by Default
Charges or amounts otherwise payable to any related Non-Trust Noteholder as
provided herein) and amounts payable to the Special Servicer in connection with
inspections of Mortgaged Properties required pursuant to the first sentence of
Section 3.12(a) (and not otherwise paid from Default Charges or amounts
otherwise payable to any related Non-Trust Noteholder as provided herein), as
well as (without duplication) any of the expenses of the Trust Fund that may be
withdrawn (x) pursuant to any of clauses (vii)(B), (ix), (xi), (xii), (xiii),
(xv), (xviii) and (xix) of Section 3.05(a) out of collections on the related
Trust Mortgage Loans or REO Properties or out of general collections on the
Trust Mortgage Loans and any REO Properties on deposit in the Collection
Accounts as indicated in such clauses of Section 3.05(a), (y) pursuant to any of
clauses (ix), (xi), (xii), (xiii) and (xvi) of Section 3.05(e) out of
collections on any Loan Combination or any related Loan Combination REO Property
on deposit in the related Loan Combination Custodial Account as indicated in
such clauses of Section 3.05(e) (but only to the extent that such collections
would have otherwise been transferred to the applicable Collection Account with
respect to the related Trust Mortgage Loan or any successor Trust REO Loan with
respect thereto), or (z) pursuant to clause (ii) or any of clauses (iv) through
(vi) of Section 3.05(b) out of general collections on the Trust Mortgage Loans
and any REO Properties on deposit in the Distribution Account; provided that for
purposes of the allocations contemplated by Section 4.04 no such expense shall
be deemed to have been incurred by the Trust Fund until such time as the payment
thereof is actually made from the applicable Collection Account, the related
Loan Combination Custodial Account or the Distribution Account, as the case may
be.
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"Additional Yield and Prepayment Amount": With respect to any Class
of Sequential Pay Certificates (other than any Excluded Class), the Class A-2FL
REMIC II Regular Interest or the Class AJ-FL REMIC II Regular Interest, for any
Distribution Date on which distributions of principal are being made with
respect to that Class of Certificates, the Class A-2FL REMIC II Regular Interest
or the Class AJ-FL REMIC II Regular Interest, as the case may be, pursuant to
Section 4.01(a), provided that a Yield Maintenance Charge and/or Prepayment
Premium was actually collected during the related Collection Period on a Trust
Mortgage Loan or a Trust REO Loan (for purposes of this definition, the "Prepaid
Loan") in the Loan Group as to which the Holders of such Class of Certificates,
ML-CFC 2007-6 Grantor Trust FL with respect to the Class A-2FL REMIC II Regular
Interest and the Class AJ-FL REMIC II Regular Interest are/is receiving payments
of principal on such Distribution Date, the product of (a) such Yield
Maintenance Charge and/or Prepayment Premium, net of Workout Fees and Principal
Recovery Fees payable therefrom and net of any portion of such Yield Maintenance
Charges and/or Prepayment Premiums applied pursuant to Section 4.01(k) to
reimburse one or more Classes of Sequential Pay Certificates in respect of
Realized Losses and/or Additional Trust Fund Expenses previously allocated to
such Class(es), multiplied by (b) a fraction, which in no event will be greater
than one, the numerator of which is equal to the positive excess, if any, of (i)
the Pass-Through Rate for the subject Class of Sequential Pay Certificates, the
Class A-2FL REMIC II Regular Interest or the Class AJ-FL REMIC II Regular
Interest, as the case may be, over (ii) the related Discount Rate, and the
denominator of which is equal to the positive excess, if any, of (i) the
Mortgage Rate for the Prepaid Loan over (ii) the related Discount Rate,
multiplied by (c) a fraction, the numerator of which is equal to the amount of
principal distributable on the subject Class of Sequential Pay Certificates, the
Class A-2FL REMIC II Regular Interest or the Class AJ-FL REMIC II Regular
Interest, as the case may be, on such Distribution Date (or, for so long as
either of the Class A-3 or the Class A-1A Certificates are outstanding,
principal distributable on the subject Class of Sequential Pay Certificates on
that Distribution Date from collections on the applicable Loan Group that
includes the Prepaid Loan), pursuant to Section 4.01(a), and the denominator of
which is equal to the Principal Distribution Amount (or, for so long as either
of the Class A-3 or the Class A-1A Certificates are outstanding, the Loan Group
1 Principal Distribution Amount or the Loan Group 2 Principal Distribution
Amount, as applicable, based on which Loan Group includes the Prepaid Loan) for
such Distribution Date.
"Administered REO Property": Any REO Property other than any Xxxxx
Xxxxxx Village and Stuyvesant Town REO Property.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event": As defined in Section 10.02(e).
"Adverse Rating Event": With respect to each Rating Agency that has
assigned a rating to any Class of rated Certificates, as of any date of
determination, the qualification, downgrade or withdrawal of the rating then
assigned to any such Class of rated Certificates by such Rating Agency (or the
placing of any such Class of rated Certificates on "negative credit watch"
status or "ratings outlook negative" status in contemplation of any such action
with respect thereto).
"Adverse REMIC Event": As defined in Section 10.01(h).
"Affiliate": 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
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contract or otherwise and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Annual Assessment Report": As defined in Section 3.14.
"Annual Attestation Report": As defined in Section 3.14.
"Annual Statement of Compliance": As defined in Section 3.13.
"Anticipated Repayment Date": For each ARD Loan, the date specified
in the related Mortgage Note after which the rate per annum at which interest
accrues on such ARD Loan will increase as specified in the related Mortgage Note
(other than as a result of a default thereunder).
"Appraisal": With respect to any Serviced Mortgage Loan, an
appraisal of the related Mortgaged Property from an Independent Appraiser
selected by the Special Servicer or the applicable Master Servicer, as the case
may be, prepared in accordance with 12 C.F.R. ss. 225.64 and conducted in
accordance with the standards of the Appraisal Institute by an Independent
Appraiser, which Independent Appraiser shall be advised to take into account the
factors specified in Section 3.09(a), any available environmental, engineering
or other third-party reports, and other factors that a prudent real estate
appraiser would consider. The applicable Master Servicer, the Special Servicer,
the Trustee and any Fiscal Agent may conclusively rely on any Appraisal obtained
in accordance with this Agreement and, in the case of the Xxxxx Xxxxxx Village
and Stuyvesant Town Trust Mortgage Loan or any successor Trust REO Loan with
respect thereto, any appraisal obtained in accordance with the WBCMT 2007-C30
Pooling and Servicing Agreement.
"Appraisal Reduction Amount": With respect to any Required Appraisal
Mortgage Loan, the excess, if any, of: (a) an amount, as calculated by the
Special Servicer in consultation with the Controlling Class Representative, as
of the first Determination Date immediately succeeding the date on which the
Special Servicer obtains knowledge of the subject Mortgage Loan becoming a
Required Appraisal Mortgage Loan, if no new Required Appraisal (or letter update
or internal valuation) is required, or otherwise the date on which a Required
Appraisal (or letter update or internal valuation, if applicable) is obtained,
and each anniversary of such Determination Date thereafter so long as the
subject Mortgage Loan remains a Required Appraisal Mortgage Loan, equal to the
sum (without duplication) of (i) the Stated Principal Balance of such Required
Appraisal Mortgage Loan, (ii) to the extent not previously advanced by or on
behalf of a Master Servicer, the Special Servicer, the Trustee or any Fiscal
Agent, all unpaid interest accrued on such Required Appraisal Mortgage Loan
through the most recent Due Date prior to such Determination Date at a per annum
rate equal to the related Net Mortgage Rate (exclusive of any portion thereof
that constitutes Additional Interest), (iii) all accrued but unpaid (from
related collections) Master Servicing Fees and Special Servicing Fees with
respect to such Required Appraisal Mortgage Loan and, without duplication, all
accrued or otherwise incurred but unpaid (from related collections) Additional
Trust Fund Expenses with respect to such Required Appraisal Mortgage Loan, (iv)
all related unreimbursed Advances made by or on behalf of a Master Servicer, the
Special Servicer, the Trustee or any Fiscal Agent with respect to such Required
Appraisal Mortgage Loan, together with (A) interest on those Advances and (B)
any related Unliquidated Advances and (v) all currently due and unpaid real
estate taxes and unfunded improvement reserves and assessments, insurance
premiums and, if applicable, ground rents with respect to the related Mortgaged
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Property; over (b) an amount equal to the sum of (i) the Required Appraisal
Value and (ii) all escrows, reserves and letters of credit held as additional
collateral held with respect to such Required Appraisal Mortgage Loan. If the
Special Servicer fails to obtain a Required Appraisal (or letter update or
internal valuation, if applicable) within the time limit described in Section
3.09(a), and such Required Appraisal (or letter update or internal valuation, if
applicable) is required thereunder, then the Appraisal Reduction Amount for the
related Required Appraisal Mortgage Loan will equal 25% of the Stated Principal
Balance of such Required Appraisal Mortgage Loan, to be adjusted upon receipt of
a Required Appraisal or letter update or internal valuation, if applicable.
Notwithstanding anything herein to the contrary, each Loan
Combination shall be treated as a single Required Appraisal Mortgage Loan for
purposes of calculating an Appraisal Reduction Amount. Any Appraisal Reduction
Amount with respect to any Loan Combination shall be allocated first to the
related B-Note Non-Trust Loan, in each case up to the outstanding principal
balance thereof, and then to the applicable A-Note Trust Mortgage Loan; provided
that, following the Blackpoint Puerto Rico Retail Portfolio Conversion, any
Appraisal Reduction Amount shall be allocated on a pro rata and pari passu basis
between the Blackpoint Puerto Rico Portfolio A-Note Trust Mortgage Loan and the
Blackpoint Puerto Rico Portfolio B-Note Non-Trust Loan.
Notwithstanding the foregoing, any "Appraisal Reduction Amount" (as
defined under the WBCMT 2007-C30 Pooling and Servicing Agreement) with respect
to any Xxxxx Xxxxxx Village and Stuyvesant Town Loan Combination shall be
calculated, and allocated between the Mortgage Loans comprising such Loan
Combination, by the WBCMT 2007-C30 Applicable Servicer pursuant to the WBCMT
2007-C30 Pooling and Servicing Agreement; and the parties hereto shall be
entitled to rely on such calculations and the allocations to the Xxxxx Xxxxxx
Village and Stuyvesant Town Trust Mortgage Loan or any successor Trust REO Loan
with respect thereto, as reported to them by the WBCMT 2007-C30 Applicable
Servicer.
"Appraised Value": With respect to each Serviced Mortgaged Property
and Administered REO Property, the appraised value thereof based upon the most
recent Appraisal (or letter update or internal valuation, if applicable) that is
contained in the related Servicing File upon which the applicable Master
Servicer, the Special Servicer, the Trustee and any Fiscal Agent may
conclusively rely; provided, that the term "Appraised Value" shall include any
value determined by the WBCMT 2007-C30 Applicable Servicer with respect to the
Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan (upon which Master
Servicer No.1, the Special Servicer, the Trustee and any Fiscal Agent may
conclusively rely).
"ARD Loan": Any Mortgage Loan that provides that if the unamortized
principal balance thereof is not repaid on its Anticipated Repayment Date, such
Mortgage Loan will accrue Additional Interest at the rate specified in the
related Mortgage Note and the Mortgagor is required to apply excess monthly cash
flow generated by the related Mortgaged Property to the repayment of the
outstanding principal balance on such Mortgage Loan.
"ARD Loan Additional Interest": Any Additional Interest that relates
to an ARD Loan.
"Asset Status Report": As defined in Section 3.21(c).
"Assignment of Leases": 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.
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"Assumed Periodic Payment": With respect to any Balloon Loan for its
Stated Maturity Date (provided that such Mortgage Loan has not been paid in full
and no other Liquidation Event has occurred in respect thereof on or before such
Stated Maturity Date) and for any related Due Date thereafter as of which such
Mortgage Loan remains outstanding and part of the Trust Fund (or, in the case of
a Non-Trust Loan for any Due Date, as of which such Mortgage Loan remains
outstanding and the related Trust Mortgage Loan remains part of the Trust Fund),
the Periodic Payment of principal and/or interest deemed to be due in respect
thereof on such Due Date equal to the Periodic Payment that would have been due
in respect of such Mortgage Loan on such Due Date if the related Mortgagor had
been required to continue to pay principal in accordance with the amortization
schedule, if any, and to accrue interest at the Mortgage Rate, in effect
immediately prior to, and without regard to the occurrence of, its Stated
Maturity Date. With respect to any REO Loan, for any related Due Date as of
which the related REO Property or any interest therein remains part of the Trust
Fund, the Periodic Payment of principal and/or interest deemed to be due in
respect thereof on such Due Date equal to the Periodic Payment that would have
been due in respect of the predecessor Mortgage Loan on such Due Date had it
remained outstanding (or, if the predecessor Mortgage Loan was a Balloon Loan
and such Due Date coincides with or follows what had been its Stated Maturity
Date, equal to the Assumed Periodic Payment that would have been deemed due in
respect of the predecessor Mortgage Loan on such Due Date had it remained
outstanding).
"Authenticating Agent": Any authenticating agent appointed pursuant
to Section 8.12 (or, in the absence of any such appointment, the Trustee).
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the sum, without duplication, of (i) the aggregate
of the amounts on deposit in the Collection Accounts and the Distribution
Account as of the close of business on the related Determination Date and the
amounts collected by or on behalf of the Master Servicers as of the close of
business on such Determination Date and required to be deposited in the
Collection Accounts, (ii) the aggregate amount of any P&I Advances made by the
Master Servicers, the Trustee or any Fiscal Agent for distribution on the
Certificates on such Distribution Date pursuant to Section 4.03, (iii) the
aggregate amount transferred from the Pool REO Account (if established) and/or
any Loan Combination Custodial Account to the applicable Collection Account
after the Determination Date in the month of such Distribution Date, but on or
prior to the P&I Advance Date in such month, pursuant to Section 3.16(c) and/or
Section 3.05(e), as applicable, (iv) the aggregate amounts deposited by the
Master Servicers in their Collection Accounts for such Distribution Date
pursuant to Section 3.19(a) in connection with Prepayment Interest Shortfalls
and Casualty/Condemnation Interest Shortfalls, and (v) for each Distribution
Date occurring in March, the aggregate of the Interest Reserve Amounts in
respect of each Interest Reserve Loan deposited into the Distribution Account
pursuant to Section 3.05(c), net of (b) the portion of the amount described in
clause (a) of this definition that represents one or more of the following: (i)
collected Periodic 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 (A) a Collection Account pursuant to clauses (ii)-(xvi), (xix) and
(xxi) of Section 3.05(a) or (B) the Distribution Account pursuant to clauses
(ii)-(vi) and (ix) of Section 3.05(b), (iii) Prepayment Premiums and Yield
Maintenance Charges, (iv) Convertible Rate Mortgage Loan Additional Interest,
(v) ARD Loan Additional Interest, (vi) with respect to the Distribution Date
occurring in February of each year and in January of each year that is not a
leap year, the Interest Reserve Amounts with respect to the Interest Reserve
Loans to be withdrawn from the Distribution Account and deposited in the
Interest Reserve Account in respect of such Distribution Date and held for
future distribution, pursuant to Section
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3.04(c), and (vii) any amounts deposited in either Master Servicer's Collection
Account or the Distribution Account in error.
"B-Note Loan Holder": Each holder of (i) the Mortgage Note for a
B-Note Non-Trust Loan and (ii) the corresponding rights under the related Loan
Combination Intercreditor Agreement.
"B-Note Non-Trust Loan": With respect to each A-Note Trust Mortgage
Loan, the other Mortgage Loan that (i) is not included in the Trust Fund, (ii)
is subordinate in right of payment and in other respects to such A-Note Trust
Mortgage Loan to the extent set forth in the related Loan Combination
Intercreditor Agreement and (iii) is secured by the same Mortgage on the same
Mortgaged Property as such A-Note Trust Mortgage Loan.
"Balloon Loan": 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.
"Balloon Payment": With respect to any Balloon Loan as of any date
of determination, the Scheduled Payment payable on the Stated Maturity Date of
such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Blackpoint Puerto Rico Retail Portfolio A-Note Trust Mortgage
Loan": The Trust Mortgage Loan (loan number 4) identified on the Mortgage Loan
Schedule by property name Blackpoint Puerto Rico Retail Portfolio.
"Blackpoint Puerto Rico Retail Portfolio B-Note Non-Trust Loan": The
B-Note Non-Trust Loan that is part of the same Loan Combination as the
Blackpoint Puerto Rico Retail Portfolio A-Note Trust Mortgage Loan.
"Blackpoint Puerto Rico Retail Portfolio Intercreditor Agreement":
The Co-Lender Agreement dated April 12, 2007, between the Trust, as holder of
the Blackpoint Puerto Rico Retail Portfolio Trust Mortgage Loan, and the B-Note
Loan Holder with respect to the Blackpoint Puerto Rico Retail Portfolio B-Note
Non-Trust Loan.
"Blackpoint Puerto Rico Retail Portfolio Control Appraisal Event":
The existence of a "Control Appraisal Event" within the meaning of the
Blackpoint Puerto Rico Retail Portfolio Intercreditor Agreement.
"Blackpoint Puerto Rico Retail Portfolio Conversion": The
conversion, pursuant to the Blackpoint Puerto Rico Retail Portfolio
Intercreditor Agreement, of the Blackpoint Puerto Rico Retail Portfolio B-Note
Non-Trust Loan from a subordinate loan to a loan that is pari passu with the
Blackpoint Puerto Rico Retail Portfolio A-Note Trust Mortgage Loan.
"Blackpoint Puerto Rico Retail Portfolio Controlling Party: The
"Directing Holder" within the meaning of the Blackpoint Puerto Rico Retail
Portfolio Intercreditor Agreement, which prior to the occurrence of a Blackpoint
Puerto Rico Retail Portfolio Control Appraisal Event (and for so long as it is
continuing) with respect to the Blackpoint Puerto Rico Retail Portfolio B-Note
Non-Trust Loan, shall be, as of any date of determination, the holder of the
Blackpoint Puerto Rico Retail Portfolio B-
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Note Non-Trust Loan, and, following the occurrence of a Blackpoint Puerto Rico
Retail Portfolio Control Appraisal Event (and for so long as it is continuing)
with respect to the Blackpoint Puerto Rico Retail Portfolio B-Note Non-Trust
Loan, shall be the Controlling Class Representative.
"Blackpoint Puerto Rico Retail Portfolio Loan Combination":
Collectively, the Blackpoint Puerto Rico Retail Portfolio A-Note Trust Mortgage
Loan and the Blackpoint Puerto Rico Retail Portfolio B-Note Non-Trust Loan.
"Blackpoint Puerto Rico Retail Portfolio Loan Combination Specially
Designated Servicing Actions": Proposed actions of the applicable Master
Servicer or the Special Servicer that are defined as "Major Actions" in the
Blackpoint Puerto Rico Retail Portfolio Intercreditor Agreement.
"Blackpoint Puerto Rico Retail Portfolio Mortgaged Property": The
Mortgaged Property securing the Blackpoint Puerto Rico Retail Portfolio Loan
Combination.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Book-Entry Non-Registered Certificate": Any Book-Entry Certificate
that is a Non-Registered Certificate.
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York or the city in which the
Corporate Trust Office of the Trustee (which as of the Closing Date is Chicago,
Illinois), or the offices of either Master Servicer or the Special Servicer
(which as of the Closing Date is/are Charlotte, North Carolina with respect to
Master Servicer Xx. 0, Xxx Xxxxxxxxx, Xxxxxxxxxx with respect to Master Servicer
No. 2 and Miami Beach, Florida with respect to the Special Servicer), are
located, are authorized or obligated by law or executive order to remain closed.
"Casualty/Condemnation Interest Shortfall": With respect to any
Serviced Trust Mortgage Loan as to which a Casualty/Condemnation Principal
Prepayment was received during any Collection Period and was applied to such
Mortgage Loan as an unscheduled payment of principal prior to such Mortgage
Loan's Due Date in such Collection Period, the amount of interest, to the extent
not collected from the related Mortgagor, that would have accrued (at a rate per
annum equal to the sum of (x) the related Net Mortgage Rate for such Mortgage
Loan and (y) the Trustee Fee Rate) on the amount of such Casualty/Condemnation
Principal Prepayment during the period commencing on the date as of which such
Casualty/Condemnation Principal Prepayment was applied to such Mortgage Loan and
ending on the day immediately preceding such Due Date, inclusive (net of any
portion of such interest that would have constituted Penalty Interest and/or
Additional Interest, if applicable).
"Casualty/Condemnation Principal Prepayment": With respect to any
Serviced Trust Mortgage Loan, any amounts constituting Insurance Proceeds or
amounts received in connection with the taking of all or a part of a Mortgaged
Property by the exercise of the power of eminent domain or condemnation, that
are applied as an unscheduled principal prepayment in accordance with the
provisions of this Pooling and Servicing Agreement, in reduction of the
principal balance of such Mortgage Loan.
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"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the ML-CFC Commercial Mortgage Trust
2007-6, Commercial Mortgage Pass-Through Certificates, Series 2007-6, as
executed by the Certificate Registrar and authenticated and delivered hereunder
by the Authenticating Agent.
"Certificate Factor": With respect to any Class of Regular
Certificates, the Class A-2FL REMIC II Regular Interest or the Class AJ-FL REMIC
II Regular Interest, as of any date of determination, a fraction, expressed as a
decimal carried to at least eight places, the numerator of which is the then
current Class Principal Balance or Class X Notional Amount, as applicable, of
such Class of Certificates, the Class A-2FL REMIC II Regular Interest or the
Class AJ-FL REMIC II Regular Interest, as the case may be, and the denominator
of which is the Original Class Principal Balance or Original Notional Amount, as
the case may be, of such Class of Certificates, the Class A-2FL REMIC II Regular
Interest or the Class AJ-FL REMIC II Regular Interest, as the case may be.
"Certificate Notional Amount": With respect to any Class X
Certificate, as of any date of determination, the then notional amount of such
Certificate equal to the product of (a) the Percentage Interest evidenced by
such Certificate, multiplied by (b) the then Class X Notional Amount.
"Certificate Owner": 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": With respect to any Sequential Pay
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class Principal
Balance of the Class of Certificates to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02(a).
"Certificateholder": 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 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 any of the Depositor, any Mortgage Loan Seller, either Master
Servicer, the Special Servicer, the Trustee or any Fiscal Agent in its
respective capacity as such (except with respect to amendments or waivers
referred to in Sections 7.04 and 11.01 hereof and any consent, approval or
waiver required or permitted to be made by the Plurality Subordinate
Certificateholder or the Controlling Class Representative and any election,
removal or replacement of the Special Servicer or the Controlling Class
Representative pursuant to Section 6.09), any Certificate registered in the name
of the Depositor, any Mortgage Loan Seller, either Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent, as the case may be, or any
Certificate registered in the name of any of their respective 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 conclusively rely upon a certificate of the Depositor, the Trustee
(if the Person acting as Trustee is
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different from the Person acting as Certificate Registrar), either 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
"Holders" or "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 "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Certification Parties": As defined in Section 8.16(b).
"Certifying Person": As defined in Section 8.16(b).
"Class": Collectively, all of the Certificates bearing the same
alphabetic or alphanumeric, as applicable, class designation.
"Class A Senior Certificates": The Class A-1, Class A-2, Class
A-2FL, Class A-3, Class A-4 and Class A-1A Certificates.
"Class A-1 Certificate": 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 "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-1A Certificate": 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 "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-2 Certificate": 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 "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-2FL Additional Fixed Swap Payment": With respect to any
Distribution Date and the Class A-2FL Swap Payment Date to which it relates
based on the confirmation under the Class A-2FL Swap Agreement, the applicable
"Additional Fixed Amount" within the meaning of the confirmation under the Class
A-2FL Swap Agreement.
"Class A-2FL Available Funds": With respect to any Distribution
Date, an amount equal to (a) the sum of (i) the total amount of all principal
and/or interest distributions, as well as all distributions of Yield Maintenance
Charges and Prepayment Premiums, properly made on or in respect of the Class
A-2FL REMIC II Regular Interest with respect to such Distribution Date and (ii)
the amounts, if any, received from the Class A-2FL Swap Counterparty pursuant to
the Class A-2FL Swap Agreement for such Distribution Date, less (b) any Class
A-2FL Net Fixed Swap Payment, Class A-2FL Additional Fixed Swap Payment and
Class A-2FL Fixed Payer Shortfall Reimbursement Payment required to be paid to
the Class A-2FL Swap Counterparty pursuant to the Class A-2FL Swap Agreement,
consistent with Section 3.30, for such Distribution Date.
"Class A-2FL Certificate": Any one of the Certificates with a "Class
A-2FL" designation on the face thereof, substantially in the form of Exhibit A-4
hereto, and evidencing a "regular interest" in REMIC II for purposes of the
REMIC Provisions and a proportionate interest in the portion of ML-
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CFC 2007-6 Grantor Trust FL related to the Class A-2FL Swap Agreement and the
Class A-2FL Sub-Account.
"Class A-2FL Depositor's Retained Amount": The initial up-front
payment from the Class A-2FL Swap Counterparty to the Depositor pursuant to the
Class A-2FL Swap Agreement.
"Class A-2FL Distribution Conversion": With respect to any
Distribution Date (i) immediately upon and during the continuation of a Swap
Payment Default under the Class A-2FL Swap Agreement while the Grantor Trust
Trustee is pursuing remedies under the Class A-2FL Swap Agreement pursuant to
Section 3.30, or (ii) immediately upon and following the termination of the
Class A-2FL Swap Agreement until any replacement agreement is entered into, the
conversion of distributions with respect to the Class A-2FL Certificates from
distributions based, in part, on floating interest payments from the Class A-2FL
Swap Counterparty under the Class A-2FL Swap Agreement to distributions based
solely on distributions in respect of the Class A-2FL REMIC II Regular Interest,
as specified in Section 4.01(c).
"Class A-2FL Fixed Swap Payment": With respect to any Distribution
Date and the Class A-2FL Swap Payment Date to which it relates based on the
confirmation under the Class A-2FL Swap Agreement, the applicable "Fixed Amount"
within the meaning of the confirmation under the Class A-2FL Swap Agreement.
"Class A-2FL Fixed Payer Shortfall Reimbursement Payment": With
respect to any Distribution Date and the Class A-2FL Swap Payment Date to which
it relates based on the confirmation under the Class A-2FL Swap Agreement, the
applicable "Fixed Payer Shortfall Reimbursement Amount" within the meaning of
the confirmation under the Class A-2FL Swap Agreement.
"Class A-2FL Floating Swap Payment": With respect to any
Distribution Date and the Class A-2FL Swap Payment Date to which it relates
based on the confirmation under the Class A-2FL Swap Agreement, the applicable
"Floating Amount" within the meaning of the confirmation under the Class A-2FL
Swap Agreement.
"Class A-2FL Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the sum of (i) the Distributable
Certificate Interest with respect to the Class A-2FL REMIC II Regular Interest
for such Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, (ii) any Class A-2FL Net Floating Swap Payment received from
the Class A-2FL Swap Counterparty for distribution on such Distribution Date and
(iii) if the Class A-2FL Swap Agreement is terminated and a replacement Class
A-2FL Swap Agreement is not obtained, any related Swap Termination Payment
collected during the related Collection Period, less (b) any Class A-2FL Net
Fixed Swap Payment and/or Class A-2FL Fixed Payer Shortfall Reimbursement
Payment made to the Class A-2FL Swap Counterparty with respect to such
Distribution Date.
"Class A-2FL Net Fixed Swap Payment": With respect to any
Distribution Date, the excess, if any of (i) the Class A-2FL Fixed Swap Payment
for that Distribution Date over (ii) the Class A-2FL Floating Swap Payment for
that Distribution Date.
"Class A-2FL Net Floating Swap Payment": With respect to any
Distribution Date, the excess, if any of (i) the Class A-2FL Floating Swap
Payment for that Distribution Date over (ii) the Class A-2FL Fixed Swap Payment
for that Distribution Date.
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"Class A-2FL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal allocated pursuant
to Section 4.01 in respect of the Class A-2FL REMIC II Regular Interest on such
Distribution Date.
"Class A-2FL REMIC II Regular Interest": The uncertificated interest
in REMIC II, designated as "Class A-2FL", constituting a "regular interest" in
REMIC II for purposes of the REMIC Provisions and having the characteristics
attributable thereto in this Agreement.
"Class A-2FL Sub-Account": As defined in Section 3.04(f).
"Class A-2FL Swap Agreement": With respect to the Class A-2FL
Certificates and the Class A-2FL REMIC II Regular Interest, the interest rate
swap agreement consisting of the ISDA 2002 Master Agreement, together with the
related schedule, confirmation, credit support annex or other credit support
document relating thereto, dated as of April 12, 2007, by and between the Class
A-2FL Swap Counterparty and the Grantor Trust Trustee, solely in its capacity as
Grantor Trust Trustee, on behalf of ML-CFC 0000-0 Xxxxxxx Xxxxx XX, or any
replacement interest rate swap agreement entered into by the Grantor Trust
Trustee in accordance with the terms of Section 3.30.
"Class A-2FL Swap Counterparty": The swap provider under the Class
A-2FL Swap Agreement, initially Xxxxxxx Xxxxx Capital Services, Inc.
"Class A-2FL Swap Credit Support Annex": The credit support annex,
dated as of April 12, 2007, between the Grantor Trust Trustee and the Class
A-2FL Swap Counterparty, which is annexed to and forms part of the Class A--2FL
Swap Agreement.
"Class A-2FL Swap Custodian": As defined in Section 3.30(g).
"Class A-2FL Swap Payment Date": The "Payment Date" within the
meaning of the confirmation under the Class A-2FL Swap Agreement.
"Class A-3 Certificate": 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 "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-4 Certificate": 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 "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class AJ Certificate": Any one of the Certificates with a "Class
AJ" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class AJ-FL Additional Fixed Swap Payment": With respect to any
Distribution Date and the Class AJ-FL Swap Payment Date to which it relates
based on the confirmation under the Class AJ-FL Swap Agreement, the applicable
"Additional Fixed Amount" within the meaning of the confirmation under the Class
AJ-FL Swap Agreement.
"Class AJ-FL Available Funds": With respect to any Distribution
Date, an amount equal to (a) the sum of (i) the total amount of all principal
and/or interest distributions, as well as all
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distributions of Yield Maintenance Charges and Prepayment Premiums, properly
made on or in respect of the Class AJ-FL REMIC II Regular Interest with respect
to such Distribution Date and (ii) the amounts, if any, received from the Class
AJ-FL Swap Counterparty pursuant to the Class AJ-FL Swap Agreement for such
Distribution Date, less (b) any Class AJ-FL Net Fixed Swap Payment, Class AJ-FL
Additional Fixed Swap Payment and Class AJ-FL Fixed Payer Shortfall
Reimbursement Payment required to be paid to the Class AJ-FL Swap Counterparty
pursuant to the Class AJ-FL Swap Agreement, consistent with Section 3.30, for
such Distribution Date.
"Class AJ-FL Certificate": Any one of the Certificates with a "Class
AJ-FL" designation on the face thereof, substantially in the form of Exhibit A-4
hereto, and evidencing a "regular interest" in REMIC II for purposes of the
REMIC provisions and a proportionate interest in the portion of ML-CFC 0000-0
Xxxxxxx Xxxxx XX related to the Class AJ-FL Swap Agreement and the Class AJ-FL
Sub-Account.
"Class AJ-FL Depositor's Retained Amount": The initial up-front
payment from the Class AJ-FL Swap Counterparty to the Depositor pursuant to the
Class AJ-FL Swap Agreement.
"Class AJ-FL Distribution Conversion": With respect to any
Distribution Date (i) immediately upon and during the continuation of a Swap
Payment Default under the Class AJ-FL Swap Agreement while the Grantor Trust
Trustee is pursuing remedies under the Class AJ-FL Swap Agreement pursuant to
Section 3.30, or (ii) immediately upon and following the termination of the
Class AJ-FL Swap Agreement until any replacement agreement is entered into, the
conversion of distributions with respect to the Class AJ-FL Certificates from
distributions based, in part, on floating interest payments from the Class AJ-FL
Swap Counterparty under the Class AJ-FL Swap Agreement to distributions based
solely on distributions in respect of the Class AJ-FL REMIC II Regular Interest,
as specified in Section 4.01(c).
"Class AJ-FL Fixed Swap Payment": With respect to any Distribution
Date and the Class AJ-FL Swap Payment Date to which it relates based on the
confirmation under the Class AJ-FL Swap Agreement, the applicable "Fixed Amount"
within the meaning of the confirmation under the Class AJ-FL Swap Agreement.
"Class AJ-FL Fixed Payer Shortfall Reimbursement Payment": With
respect to any Distribution Date and the Class AJ-FL Swap Payment Date to which
it relates based on the confirmation under the Class AJ-FL Swap Agreement, the
applicable "Fixed Payer Shortfall Reimbursement Amount" within the meaning of
the confirmation under the Class AJ-FL Swap Agreement.
"Class AJ-FL Floating Swap Payment": With respect to any
Distribution Date and the Class AJ-FL Swap Payment Date to which it relates
based on the confirmation under the Class AJ-FL Swap Agreement, the applicable
"Floating Amount" within the meaning of the confirmation under the Class AJ-FL
Swap Agreement.
"Class AJ-FL Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the sum of (i) the Distributable
Certificate Interest with respect to the Class AJ-FL REMIC II Regular Interest
for such Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, (ii) any Class AJ-FL Net Floating Swap Payment received from
the Class AJ-FL Swap Counterparty for distribution on such Distribution Date and
(iii) if the Class AJ-FL Swap Agreement is terminated and a replacement Class
AJ-FL Swap Agreement is not obtained, any related Swap Termination Payment
collected during the related Collection Period, less (b) any Class AJ-FL Net
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Fixed Swap Payment and/or Class AJ-FL Fixed Payer Shortfall Reimbursement
Payment made to the Class AJ-FL Swap Counterparty with respect to such
Distribution Date.
"Class AJ-FL Net Fixed Swap Payment": With respect to any
Distribution Date, the excess, if any of (i) the Class AJ-FL Fixed Swap Payment
for that Distribution Date over (ii) the Class AJ-FL Floating Swap Payment for
that Distribution Date.
"Class AJ-FL Net Floating Swap Payment": With respect to any
Distribution Date, the excess, if any of (i) the Class AJ-FL Floating Swap
Payment for that Distribution Date over (ii) the Class AJ-FL Fixed Swap Payment
for that Distribution Date.
"Class AJ-FL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal allocated pursuant
to Section 4.01 in respect of the Class AJ-FL REMIC II Regular Interest on such
Distribution Date.
"Class AJ-FL REMIC II Regular Interest": The uncertificated interest
in REMIC II, designated as "Class AJ-FL", constituting a "regular interest" in
REMIC II for purposes of the REMIC Provisions and having the characteristics
attributable thereto in this Agreement.
"Class AJ-FL Sub-Account": As defined in Section 3.04(f).
"Class AJ-FL Swap Agreement": With respect to the Class AJ-FL
Certificates and the Class AJ-FL REMIC II Regular Interest, the interest rate
swap agreement consisting of the ISDA 2002 Master Agreement, together with the
related schedule, confirmation, credit support annex or other credit support
document relating thereto, dated as of April 12, 2007, by and between the Class
AJ-FL Swap Counterparty and the Grantor Trust Trustee, solely in its capacity as
Grantor Trust Trustee, on behalf of ML-CFC 0000-0 Xxxxxxx Xxxxx XX, or any
replacement interest rate swap agreement entered into by the Grantor Trust
Trustee in accordance with the terms of Section 3.30.
"Class AJ-FL Swap Counterparty": The swap provider under the Class
AJ-FL Swap Agreements, initially, Xxxxxxx Xxxxx Capital Services, Inc.
"Class AJ-FL Swap Credit Support Annex": The credit support annex,
dated as of April 12, 2007, between the Grantor Trust Trustee and the Class
AJ-FL Swap Counterparty, which is annexed to and forms part of the Class AJ-FL
Swap Agreement.
"Class AJ-FL Swap Custodian": As defined in Section 3.30(g).
"Class AJ-FL Swap Payment Date": The "Payment Date" within the
meaning of the confirmation under the Class AJ-FL Swap Agreement.
"Class AM Certificate": Any one of the Certificates with a "Class
AM" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
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"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class L Certificate": Any one of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class M Certificate": Any one of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class N Certificate": Any one of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class P Certificate": Any one of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
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"Class Principal Balance": The aggregate principal balance of any
Class of Sequential Pay Certificates, the Class A-2FL REMIC II Regular Interest
or the Class AJ-FL REMIC II Regular Interest, as the case may be, outstanding
from time to time. As of the Closing Date, the Class Principal Balance of each
Class of Sequential Pay Certificates, the Class A-2FL REMIC II Regular Interest
and the Class AJ-FL REMIC II Regular Interest, as the case may be, shall equal
the Original Class Principal Balance thereof. On each Distribution Date, the
Class Principal Balance of each of the respective Classes of the Sequential Pay
Certificates (exclusive of the Class A-2FL Certificates and the Class AJ-FL
Certificates), the Class A-2FL REMIC II Regular Interest and the Class AJ-FL
REMIC II Regular Interest shall be reduced by the amount of any distributions of
principal made thereon on such Distribution Date pursuant to Section 4.01 or
9.01, as applicable, and shall be further reduced by the amount of any Realized
Losses and Additional Trust Fund Expenses allocated thereto on such Distribution
Date pursuant to the first paragraph of Section 4.04(a). The respective Class
Principal Balances of the various Classes of Sequential Pay Certificates
(exclusive of the Class A-2FL Certificates and the Class AJ-FL Certificates),
the Class A-2FL REMIC II Regular Interest and the Class AJ-FL REMIC II Regular
Interest shall be increased, as and to the extent and in the order provided in
the second paragraph of Section 4.04(a), in connection with any recoveries of
Nonrecoverable Advances and/or interest thereon which were reimbursed and/or
paid in a prior Collection Period from the principal portion of general
collections on the Mortgage Pool and which are included in the Principal
Distribution Amount for the current Distribution Date. Distributions in respect
of a reimbursement of Realized Losses and Additional Trust Fund Expenses
previously allocated to a Class of Sequential Pay Certificates, the Class A-2FL
REMIC II Regular Interest and the Class AJ-FL REMIC II Regular Interest, as the
case may be, shall not constitute distributions of principal and shall not
result in reduction of the related Class Principal Balance. The Class Principal
Balance of the Class A-2FL REMIC II Regular Interest and the Class Principal
Balance of the Class AJ-FL Certificates shall at all times equal the Class
Principal Balance of the Class A-2FL REMIC II Regular Interest and Class AJ-FL
REMIC II Regular Interest, respectively.
"Class Q Certificate": Any one of the Certificates with a "Class Q"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class R-I Certificate": Any one of the Certificates with a "Class
R-I" designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing the sole class of "residual interests" in the
REMIC I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing the sole class of "residual interests" in REMIC
II for purposes of the REMIC Provisions.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing multiple "regular interests" in REMIC II for
purposes of the REMIC Provisions.
"Class X Component": Any of the 23 components of the Class X
Certificates listed in the following table.
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Class X Class Designation of
Component Corresponding Certificates
---------------- --------------------------
X-X-0 X-0
X-X-0 X-0
X-X-0XX A-2FL
X-AJ-FL AJ-FL
X-X-0 X-0
X-X-0 X-0
X-X-0X A-1A
X-AM AM
X-AJ AJ
X-B B
X-C C
X-D D
X-E E
X-F F
X-G G
X-H H
X-J J
X-K K
X-L L
X-M M
X-N N
X-P P
X-Q Q
"Class X Notional Amount": With respect to the Class X Certificates,
as of any date of determination, the sum of the then Component Notional Amounts
of all of the Class X Components.
"Class X Strip Rate": With respect to any Class X Component, for any
Distribution Date, a rate per annum equal to (i) the REMIC I Remittance Rate for
each Corresponding REMIC I Regular Interest for each Class X Component for such
Distribution Date, minus (ii) the Pass-Through Rate for the Corresponding
Certificate for such Distribution Date. In no event, however, shall any Class X
Strip Rate be less than zero.
"Class Y Certificate": Any one of the Certificates with a "Class Y"
designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing multiple "regular interests" in REMIC II for
purposes of the REMIC Provisions.
"Class Z Certificate": Any one of the Certificates with a "Class Z"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a proportionate interest in Grantor Trust Z.
"Clearstream": Clearstream Banking, Luxembourg or any successor.
"Closing Date": April 12, 2007.
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"CMSA": 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-backed
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 Servicers (or, in the event of a failure of both
Master Servicers to agree on an association or organization, as shall be
selected by the Trustee) and reasonably acceptable to the Trustee (if the Master
Servicers make the determination), the Special Servicer and the Controlling
Class Representative.
"CMSA Advance Recovery Report": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Advance Recovery Report" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Appraisal Reduction Template": The report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Appraisal Reduction Template" 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": 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 recommended by the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Collateral Summary File": A 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 recommended by the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Comparative Financial Status Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Comparative Financial Status Report" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally.
"CMSA Delinquent Loan Status Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Delinquent Loan Status Report"
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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 recommended by the CMSA for commercial mortgage-backed
securities transactions generally.
"CMSA Financial File": 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 recommended by the CMSA for
commercial mortgage-backed securities transactions.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": 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 recommended
by the CMSA for commercial mortgage-backed securities transactions generally.
"CMSA Historical Bond/Collateral Realized Loss Reconciliation
Template": A report substantially in the form of, and containing the information
called for in, the downloadable form of the "Historical Bond/Collateral Realized
Loss Reconciliation Template" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Historical Liquidation Loss Template": The report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Historical Liquidation Loss Template" 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 Interest Shortfall Reconciliation Template": A report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Interest Shortfall Reconciliation Template" 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 Level Reserve/LOC Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Loan Level Reserve Report" 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 recommended by the CMSA for commercial mortgage
securities transactions generally.
"CMSA Loan Periodic Update File": 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 recommended
by the CMSA for commercial mortgage-backed securities transactions generally.
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"CMSA Loan Setup File": A 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 recommended by the CMSA for commercial
mortgage-backed securities transactions generally.
"CMSA NOI Adjustment Worksheet": A report substantially in the form
of, and containing 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 recommended by the CMSA for
commercial mortgage-backed securities transactions generally, and in any event,
shall present the computations made in accordance with the methodology described
in such form to "normalize" the full year net operating income, net cash flow
and debt service coverage numbers used in the other reports required by this
Agreement.
"CMSA Operating Statement Analysis Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Operating Statement Analysis Report" available as of the Closing
Date on the CMSA Website or in such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions.
"CMSA Property File": 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 recommended by the CMSA for commercial
mortgage-backed securities transactions.
"CMSA Reconciliation of Funds Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Reconciliation of Funds 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 recommended
by the CMSA for commercial mortgage-backed securities transactions generally.
"CMSA Reconciliation of Funds Template": A report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Reconciliation of Funds Template" 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": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "REO
Status Report" available 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 recommended by the CMSA for commercial mortgage
securities transactions generally.
"CMSA Servicer Realized Loss Template": A report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Servicer Realized Loss Template" available as of the Closing Date on the
CMSA Website, or such other form for the
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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": 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 recommended by the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Special Servicer Loan File": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Special Servicer Loan File" 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 recommended by the CMSA for commercial mortgage
securities transactions generally.
"CMSA Total Loan Report": The monthly report substantially in the
form of, and containing the information called for in, the downloadable form of
the "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": The CMSA's website located at "xxx.xxxx.xxx" or such
other primary website as the CMSA may establish for dissemination of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended, and
applicable temporary or final regulations of the U.S. Department of the Treasury
promulgated thereunder.
"Collection Account": One or more segregated accounts created and
maintained by each Master Servicer pursuant to Section 3.04(a) on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled
substantially as follows: in the case of Wachovia, "Wachovia Bank, National
Association, as Master Servicer for LaSalle Bank National Association, as
Trustee, on behalf of and in trust for the registered holders of ML-CFC
Commercial Mortgage Trust 2007-6, Commercial Mortgage Pass-Through Certificates,
Series 2007-6", and in the case of Xxxxx Fargo, "Xxxxx Fargo Bank, National
Association, as Master Servicer for LaSalle Bank National Association, as
Trustee, on behalf of and in trust for the registered holders of ML-CFC
Commercial Mortgage Trust 2007-6, Commercial Mortgage Pass-Through Certificates,
Series 2007-6".
"Collection Period": Individually and collectively, as the context
may require: with respect to each Mortgage Loan and any successor REO Loan with
respect thereto, for any Distribution Date, the period commencing on the day
immediately following the related Determination Date for such Mortgage Loan for
the preceding Distribution Date (or, in the case of the initial Distribution
Date, commencing immediately following the Cut-off Date) and ending on and
including the related Determination Date for such Mortgage Loan for the subject
Distribution Date. For the purposes of this Agreement, with respect to any
Distribution Date, the Collection Period that corresponds to that Distribution
Date (including, for example, but without limitation, references to "the related
Collection Period") shall mean the Collection Periods (determined in accordance
with the preceding sentence) ending in the month in which such Distribution Date
occurs that are applicable to the Xxxxxxx Trust Mortgage Loans and/or the
Countrywide Trust Mortgage Loans, as applicable.
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"Commission": The United States Securities and Exchange Commission
or any successor agency.
"Component Notional Amount": With respect to each Class X Component
and, as of any date of determination, an amount equal to the then REMIC I
Principal Balance of its Corresponding REMIC I Regular Interest.
"Controlling Class": As of any date of determination, the most
subordinate Class of Sequential Pay Certificates (based on the payment
priorities set forth in Section 4.01(a)) that has a Class Principal Balance that
is greater than 25% of the Original Class Principal Balance thereof (without
considering any Appraisal Reduction Amounts); provided, however, that if no
Class of Sequential Pay Certificates has a Class Principal Balance that
satisfies such requirement, then the Controlling Class shall be the most
subordinate outstanding Class of Sequential Pay Certificates (based on the
payment priorities set forth in Section 4.01(a)) with a Class Principal Balance
greater than zero. With respect to determining and exercising the rights of the
Controlling Class, the Class A Senior Certificates shall collectively be deemed
to be a single Class of Certificates.
"Controlling Class Representative": As defined in Section 3.25.
"Convertible Rate Mortgage Loan": The Mortgage Loan (loan number
143) in the Trust Fund, identified on the Mortgage Loan Schedule by property
name 000 Xxxxx Xxxxxx, that provides for the conversion of its Mortgage Rate
into a floating mortgage interest rate.
"Convertible Rate Mortgage Loan Additional Interest": Any Additional
Interest that relates to the Convertible Rate Mortgage Loan.
"Convertible Rate Mortgage Loan Conversion Date": The date as set
forth in the related Mortgage Loan documents, upon which the Convertible Rate
Mortgage Loan converts from a fixed rate mortgage interest rate to a floating
rate mortgage interest rate.
"Corporate Trust Office": 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 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and
Trust Services--ML-CFC Commercial Mortgage Trust 2007-6, Commercial Mortgage
Pass-Through Certificates, Series 2007-6.
"Corrected Mortgage Loan": Any Serviced Mortgage Loan that had been
a Specially Serviced Mortgage Loan but has ceased to be a Specially Serviced
Mortgage Loan in accordance with the definition of "Specially Serviced Mortgage
Loan". The Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan shall
not constitute a Corrected Mortgage Loan under this Agreement.
"Corresponding Certificates": With respect to any REMIC I Regular
Interest, the Class of Regular Certificates (exclusive of the Class X
Certificates) for which such REMIC I Regular Interest is the Corresponding REMIC
I Regular Interest or one of the Corresponding REMIC I Regular Interests. With
respect to any Class X Component, the Class of Sequential Pay Certificates
designated as the "Corresponding Certificates" for such Class X Component in the
definition of "Class X Component".
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Class of Sequential Pay Certificates.
With respect to the Class A-2FL REMIC II
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Regular Interest, REMIC I Regular Interest LA-2FL. With respect to the Class
AJ-FL REMIC II Regular Interest, REMIC I Regular Interest LA-AJFL. With respect
to any Class X Component, the REMIC I Regular Interest that, at the beginning of
its designation, has the same alphabetic or alphanumeric designation as such
Class X Component.
"Countrywide": Countrywide Commercial Real Estate Finance, Inc., a
California corporation, or its successor in interest.
"Countrywide Mortgage Loan Purchase Agreement": That certain
mortgage loan purchase agreement, dated as of March 30, 2007, between the
Depositor and Countrywide and relating to the transfer of the Countrywide Trust
Mortgage Loans to the Depositor.
"Countrywide Securities": Countrywide Securities Corporation, a
California corporation, or its successor in interest.
"Countrywide Trust Mortgage Loans": Each Trust Mortgage Loan
transferred and assigned to the Depositor pursuant to the Countrywide Mortgage
Loan Purchase Agreement.
"Crossed Loan": As defined in Section 2.03(a). The Mortgage Loans
comprising a Loan Combination shall not be deemed to be Crossed Loans for
purposes of this Agreement.
"Crossed Loan Group": As defined in Section 2.03(a).
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an Affiliate of the
Depositor or a Mortgage Loan Seller. If no such custodian has been appointed or
if such custodian has been so appointed, but the Trustee shall have terminated
such appointment, then the Trustee shall be the Custodian.
"Cut-off Date": Individually and collectively, as the context may
require: with respect to each Mortgage Loan, the related Due Date of such
Mortgage Loan in April 2007; or, with respect to any Mortgage Loan that has its
first Due Date after April 2007, the later of April 1, 2007, or its date of
origination.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date,
after application of all unscheduled payments of principal received on or before
such date and the principal component of all Periodic Payments due on or before
such date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Trust Mortgage
Loan, as of any date of determination, the ratio of (x) the annualized Net
Operating Income (before payment of any debt service on such Mortgage Loan)
generated by the related Mortgaged Property during the most recently ended
period of not less than six months and not more than twelve months for which
financial statements, if available (whether or not audited) have been received
by or on behalf of the related Mortgage Loan Seller (prior to the Closing Date
or, in the case of a Qualified Substitute Mortgage Loan, prior to the relevant
date of determination) or the applicable Master Servicer or the Special Servicer
(or, in the case of the Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage
Loan, the WBCMT 2007-C30 Applicable Servicer) (following the Closing Date), to
(y) twelve times the amount of the Periodic Payment in effect for such Mortgage
Loan as of such date of determination.
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"Default Charges": Penalty Interest and/or late payment charges that
are paid or payable, as the context may require, in respect of any Mortgage Loan
or REO Loan.
"Defaulted Mortgage Loan": A Serviced Mortgage Loan: (i) that is (A)
delinquent 60 days or more in respect of a Periodic Payment (not including the
Balloon Payment) or (B) delinquent in respect of its Balloon Payment unless (x)
the related Mortgagor makes an Assumed Periodic Payment on each Due Date
(commencing with the Due Date of such Balloon Payment) during the period
contemplated in clause (y), and (y) the applicable Master Servicer receives,
within 60 days after the Due Date of such Balloon Payment, written evidence from
an institutional lender of such lender's binding commitment to refinance such
Mortgage Loan within 120 days after the Due Date of such Balloon Payment and
either such 120-day period has not expired or it has not been determined, in
accordance with the definition of "Specially Serviced Mortgage Loan" that the
refinancing could not reasonably be expected to occur, in either case such
delinquency to be determined without giving effect to any grace period permitted
by the related Mortgage or Mortgage Note and without regard to any acceleration
of payments under the related Mortgage and Mortgage Note; or (ii) as to which
the Special Servicer has, by written notice to the related Mortgagor,
accelerated the maturity of the indebtedness evidenced by the related Mortgage
Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Collateral": With respect to any Defeasance Loan, the
United States government obligations required or permitted to be pledged in lieu
of prepayment pursuant to the terms thereof.
"Defeasance Loan": Any Mortgage Loan which permits or requires the
related Mortgagor (or permits the holder of such Mortgage Loan to require the
related Mortgagor) to pledge Defeasance Collateral to such holder in lieu of
prepayment.
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than (i) in the case of a Serviced Trust Mortgage Loan, the then
outstanding principal balance of such Mortgage Loan, and (ii) in the case of the
Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan, the Blackpoint
Puerto Rico Retail Portfolio A-Note Trust Mortgage Loan (following a Blackpoint
Puerto Rico Retail Portfolio Conversion) and any Non-Trust Loan, the
then-aggregate outstanding principal balance of such Mortgage Loan and all other
Mortgage Loans in the related Loan Combination that are senior to, or pari passu
with, such Mortgage Loan, which valuation results from a proceeding initiated
under the Bankruptcy Code.
"Definitive Certificates": As defined in Section 5.03(a).
"Definitive Non-Registered Certificate": Any Definitive Certificate
that is a Non-Registered Certificate.
"Depositor": Xxxxxxx Xxxxx Mortgage Investors, Inc. or its successor
in interest.
"Depository": 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
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of the State of New York and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Securities Exchange Act of 1934, as amended.
"Depository Participant": 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.
"Designated Sub-Servicer": As defined in Section 3.22(a).
"Determination Date": For any Distribution Date, the eighth day of
the month in which such Distribution Date occurs or if such eighth day is not a
Business Day, the next following Business Day.
"Determination Information": As defined in Section 3.18(b).
"Directly Operate": With respect to any Administered REO Property,
the furnishing or rendering of services to the tenants thereof, the management
of such Administered REO Property, the holding of such REO Property primarily
for sale or lease or the performance of any construction work thereon, in each
case other than through an Independent Contractor; provided, however, that the
Trustee (or the Special Servicer or any Sub-Servicer on behalf of the Trustee)
shall not be considered to Directly Operate an Administered REO Property solely
because the Trustee (or the Special Servicer or any Sub-Servicer on behalf of
the Trustee) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance, or makes decisions as to repairs or
capital expenditures with respect to such Administered REO Property.
"Discount Rate": With respect to any prepaid Trust Mortgage Loan or
Trust REO Loan for purposes of allocating any Prepayment Premium or Yield
Maintenance Charge received thereon or with respect thereto among the respective
Classes of the Sequential Pay Certificates (other than any Excluded Class
thereof), the Class A-2FL REMIC II Regular Interest and the Class AJ-FL REMIC II
Regular Interest, an amount equal to the discount rate stated in the Mortgage
Loan documents related to such Trust Mortgage Loan or Trust REO Loan used in
calculating the related Prepayment Premium or Yield Maintenance Charge; provided
that, if a discount rate is not stated thereon, the "Discount Rate" will be an
amount 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 Anticipated
Repayment Date, as applicable, for such prepaid Trust Mortgage Loan or Trust REO
Loan. In the event there are two or more such U.S. Treasury issues (a) with the
same coupon, the issue with the lowest yield shall apply, and (b) with maturity
dates equally close to the maturity date or Anticipated Repayment Date, as
applicable, for the prepaid Trust Mortgage Loan or Trust REO Loan, the issue
with the earliest maturity date shall apply.
"Disqualified Non-United States Tax Person": With respect to any
Residual Certificate, any Non-United States Tax Person or agent thereof other
than: (1) a Non-United States Tax Person that (a) holds such Residual
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 Certificate for United States federal income tax
purposes, it may incur tax liabilities in excess of any cash flows generated by
such Residual Certificate and intends to pay taxes associated with holding such
Residual 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
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Registrar an opinion of nationally recognized tax counsel to the effect that (x)
the Transfer of such Residual Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and (y) such
Transfer of such Residual Certificate will not be disregarded for United States
federal income tax purposes.
"Disqualified Organization": (i) the United States, any State or
political subdivision thereof, a foreign government, an international
organization, or any agency or instrumentality of any of the foregoing, (ii) any
organization (other than certain farmers' cooperatives described in Section 521
of the Code) that is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iii) rural electric and telephone cooperatives described in
Section 1381 of the Code and (iv) any other Person so designated by the Trustee
or the REMIC Administrator based upon an Opinion of Counsel that the holding of
an Ownership Interest in a Residual Certificate by such Person may cause the
Trust or any Person having an Ownership Interest in any Class of Certificates
(other than such Person) to incur a liability for any federal tax imposed under
the Code that would not otherwise be imposed but for the Transfer of an
Ownership Interest in a Residual 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": Any domestic entity classified as a
partnership under the Code, if any of its beneficial owners are Disqualified
Non-United States Tax Persons.
"Distributable Certificate Interest": With respect to any Class of
Regular Certificates, the Class A-2FL REMIC II Regular Interest or the Class
AJ-FL REMIC II Regular Interest for any Distribution Date, the Accrued
Certificate Interest in respect of such Class of Certificates, the Class A-2FL
REMIC II Regular Interest or the Class AJ-FL REMIC II Regular Interest, as the
case may be, for such Distribution Date, reduced (other than with respect to the
Class X Certificates) (to not less than zero) by the product of (a) any Net
Aggregate Prepayment Interest Shortfall for such Distribution Date, multiplied
by (b) a fraction, expressed as a decimal, the numerator of which is the Accrued
Certificate Interest in respect of the subject Class of Certificates, the Class
A-2FL REMIC II Regular Interest or the Class AJ-FL REMIC II Regular Interest, as
the case may be, for such Distribution Date, and the denominator of which is the
aggregate Accrued Certificate Interest in respect of all the Classes of
Sequential Pay Certificates (exclusive of the Class A-2FL Certificates and the
Class AJ-FL Certificates), the Class A-2FL REMIC II Regular Interest and the
Class AJ-FL REMIC II Regular Interest, as the case may be, for such Distribution
Date; provided that, if the aggregate Class Principal Balance of the Sequential
Pay Certificates (exclusive of the Class A-2FL Certificates and the Class AJ-FL
Certificates), the Class A-2FL REMIC II Regular Interest or the Class AJ-FL
REMIC II Regular Interest is reduced as a result of a Realized Loss caused by a
diversion of principal collections on the Mortgage Pool to reimburse
Nonrecoverable Advances and/or pay interest thereon as contemplated by Section
1.02, and if there is a subsequent recovery of such amounts that results in the
reinstatement of the Class Principal Balance of any one or more Classes of
Sequential Pay Certificates (exclusive of the Class A-2FL Certificates and the
Class AJ-FL Certificates), the Class A-2FL REMIC II Regular Interest or the
Class AJ-FL REMIC II Regular Interest as provided in the definition of "Class
Principal Balance" and the second paragraph of Section 4.04(a), then the amount
of Distributable Certificate Interest with respect to each Class of Regular
Certificates, the Class A-2FL REMIC II Regular Interest and/or the Class AJ-FL
REMIC II Regular Interest for the next succeeding Distribution Date shall be
increased by the amount of any and all additional Distributable Certificate
Interest that would have been payable with respect to the subject Class of
Regular Certificates, the Class A-2FL
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REMIC II Regular Interest or the Class AJ-FL REMIC II Regular Interest if such
diversion of principal and the corresponding allocation of a Realized Loss (up
to the amount of the reinstated balances) had not occurred.
"Distribution Account": The segregated account or accounts created
and maintained by the Trustee pursuant to Section 3.04(b), which shall be
entitled "LaSalle Bank National Association, as Trustee, in trust for the
registered holders of ML-CFC Commercial Mortgage Trust 2007-6, Commercial
Mortgage Pass-Through Certificates, Series 2007-6".
"Distribution Date": During any given month, the fourth Business Day
following the Determination Date in such month, commencing in May 2007.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) 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 Periodic Payment on such Mortgage Loan is scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date, the day of the
month set forth in the related Mortgage Note on which each Periodic Payment on
such Mortgage Loan had been scheduled to be first due; and (iii) any REO Loan,
the day of the month set forth in the related Mortgage Note on which each
Periodic Payment on the related Mortgage Loan had been scheduled to be first
due.
"Eligible Account": Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, and (a) with respect
to deposits held for 30 days or more in such account, the long-term deposit or
unsecured debt obligations of which are rated at least "Aa3" by Xxxxx'x and
"AA-" by Fitch (or "A-" by Fitch provided the short-term unsecured debt
obligations of such institution or trust company are rated at least "F-1" by
Fitch) (or, with respect to any such Rating Agency, such lower rating as will
not result in an Adverse Rating Event, as evidenced in writing by the applicable
Rating Agency), at any time such funds are on deposit therein, or (b) with
respect to deposits held for less than 30 days in such account, the short-term
deposits of which are rated at least "P-1" by Xxxxx'x and "F-1" by Fitch (or,
with respect to any such Rating Agency, such lower rating as will not result in
an Adverse Rating Event) as evidenced in writing by the applicable Rating Agency
at any time such funds are on deposit therein, (ii) with respect to the Trust
Mortgage Loan (loan number 34) identified on the Mortgage Loan Schedule by
property name Renaissance at Xxxxxx Apartments, an account or accounts
maintained with KeyBank National Association so long as KeyBank National
Association (1) has a long term unsecured debt rating of at least "A" and a
short-term rating of at least "F-1" from Fitch and (2) has a long term unsecured
debt rating of at least "A1" and a short-term rating of at least "P-1" from
Xxxxx'x, (iii) a segregated trust account or accounts maintained with a federal
or state chartered depository institution or trust company acting in its
fiduciary capacity, which, 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 C.F.R. ss. 9.10(b), having
in either case a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority, or (iv) any
other account the use of which would not, in and of itself, cause an Adverse
Rating Event, as confirmed in writing by each Rating Agency.
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"Enhancement/Support Provider": Any enhancement or support provider
contemplated by Item 1114(b) or Item 1115 of Regulation AB with respect to the
Trust Fund or any one or more Classes of Certificates.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, the American Society of Testing Materials Standard
Sections 1527-05 or a review conducted in accordance with the All Appropriate
Inquiries final rule issued by the United States Environmental Protection Agency
on November 1, 2005 (40 C.F.R. Part 312), or any successor to either.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by either 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 similar items in respect of the related Mortgaged
Property.
"Euroclear": The Euroclear System or any successor.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Servicing Strip": With respect to each Trust Mortgage Loan
and Trust REO Loan, that portion of the Master Servicing Fee for such Mortgage
Loan or REO Loan that represents interest accrued at the related Excess
Servicing Strip Rate.
"Excess Servicing Strip Rate": With respect to each Mortgage Loan
and REO Loan, the excess of (x) the Master Servicing Fee Rate for such Mortgage
Loan or REO Loan over (y) the sum of (i) 0.01% (one basis point) per annum and
(ii) with respect to any Mortgage Loan and REO Loan that is a Serviced Mortgage
Loan or Serviced REO Loan not primary serviced by the applicable Master
Servicer, the primary servicing fee rate, if any, for such Mortgage Loan or REO
Loan; provided that the Excess Servicing Strip Rate with respect to each
Mortgage Loan and REO Loan shall be subject to reduction by the Trustee pursuant
to Section 3.11(a).
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Act Reportable Event": With respect to (a) the Trustee or,
if and to the extent specifically applicable thereto or to its duties on behalf
of the Trustee, any Servicing Representative of the Trustee or any Trustee
Appointee, any Trustee Reportable Event, (b) either Master Servicer or, if and
to the extent specifically applicable thereto or to its duties on behalf of such
Master Servicer, any Servicing Representative of such Master Servicer, any
Master Servicer Reportable Event, and (c) the Special Servicer or, if and to the
extent specifically applicable thereto or to its duties on behalf of the Special
Servicer, any Servicing Representative of the Special Servicer, any Special
Servicer Reportable Event.
"Exchange Act Reporting Year": Each of (a) the Trust's fiscal year
2007, and (b) any subsequent fiscal year of the Trust, but only if as of the
beginning of such subsequent fiscal year of the Trust, the Registered
Certificates are held in the aggregate by at least 300 holders (which may
consist of (i) in the case of Registered Certificates held in definitive form,
direct Holders of such Definitive Certificates, and/or (ii) in the case of
Registered Certificates held in book-entry form through the Depository,
Depository Participants having accounts with the Depository).
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"Exchange Act Reports": As defined in Section 8.16(a).
"Excluded Class": Any Class of Sequential Pay Certificates other
than the Class A-1, Class A-2, Class A-3, Class A-4, Class A-1A, Class AM, Class
AJ, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates.
"Exemption": Either of Department of Labor Prohibited Transaction
Exemption ("PTE") 90-29 (as amended by XXX 00-00, XXX 0000-00 and PTE 2002-41)
or PTE 2000-55 (as amended by PTE 2000-58 and PTE 2002-41), as each may be
amended from time to time, or any successor thereto, all as issued by the U.S.
Department of Labor.
"Exemption-Favored Party": Any of (i) MLPF&S or Countrywide
Securities, (ii) any Person directly or indirectly, through one or more
intermediaries, controlling, controlled by or under common control with MLPF&S
or Countrywide Securities, and (iii) any member of any underwriting syndicate or
selling group of which any Person described in clauses (i) and (ii) is a manager
or co-manager with respect to a Class of Investment Grade Certificates.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Specially Serviced Mortgage Loan, Corrected
Mortgage Loan or Administered REO Property (other than a Mortgage Loan or REO
Property, as the case may be, that was purchased or replaced by any of the
Mortgage Loan Sellers pursuant to the applicable Mortgage Loan Purchase
Agreement, or that was purchased by the Plurality Subordinate Certificateholder
or the Special Servicer or any assignee of the foregoing pursuant to Section
3.18, or by the related B-Note Loan Holder (in the case of an A-Note Trust
Mortgage Loan) pursuant to the related Loan Combination Intercreditor Agreement
or by the applicable Master Servicer, the Special Servicer or the Plurality
Subordinate Certificateholder pursuant to Section 9.01) that there has been a
recovery of all Insurance Proceeds, Liquidation Proceeds, REO Revenues 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 include any comparable determination
made by the WBCMT 2007-C30 Special Servicer pursuant to the WBCMT 2007-C30
Pooling and Servicing Agreement with respect to the Xxxxx Xxxxxx Village and
Stuyvesant Town Trust Mortgage Loan or any related Xxxxx Xxxxxx Village and
Stuyvesant Town REO Property.
"Fiscal Agent": A Person who is at any time appointed by the Trustee
pursuant to Section 8.18 to act as fiscal agent.
"Fitch": Fitch, Inc. or its successor in interest. If neither such
rating agency nor any successor remains in existence, "Fitch" shall be deemed to
refer to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, any Fiscal Agent, the Master Servicer and the Special
Servicer, and specific ratings of Fitch herein referenced shall be deemed to
refer to the equivalent ratings of the party so designated.
"Floating Rate Account": The segregated accounts or sub-accounts
created and maintained by the Grantor Trust Trustee pursuant to Section 3.04(f),
in trust for: (i) in the case of the Class A-2FL Certificates, the holders of
Class A-2FL Certificates and the Class A-2FL Swap Counterparty, as their
interests may appear, which shall be entitled "LaSalle Bank National
Association,
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as Grantor Trust Trustee, on behalf of and in trust for the registered holders
of ML-CFC Commercial Mortgage Trust 2007-6, Commercial Mortgage Pass-Through
Certificates, Series 2007-6, Class A-2FL, and Xxxxxxx Xxxxx Capital Services,
Inc., as their interests may appear, Floating Rate Account"; and (ii) in the
case of the Class AJ-FL Certificates, the holders of the Class AJ-FL
Certificates and the Class AJ-FL Swap Counterparty, as their interests may
appear, which shall be entitled "LaSalle Bank National Association, as Grantor
Trust Trustee, on behalf of and in trust for the registered holders of ML-CFC
Commercial Mortgage Trust 2007-6, Commercial Mortgage Pass-Through Certificates,
Series 2007-6, Class AJ-FL, and Xxxxxxx Xxxxx Capital Services, Inc., as their
interests may appear, Floating Rate Account".
"Form 8-K": Exchange Act Form 8-K, as and to the extent that such
form is applicable for an asset-backed issuer to satisfy its reporting
requirements under the Exchange Act, and the rules and regulations promulgated
thereunder, including for purposes of filing current reports under Section 13 or
15(d) of the Exchange Act, filed pursuant to Rule 13a-11 or Rule 15d-11, and for
reports of nonpublic information required to be disclosed by Regulation FD (17
C.F.R. 243.100 and 243.101). For purposes of this Agreement, "Form 8-K" shall be
deemed to include any successor or equivalent Exchange Act form adopted by the
Commission.
"Form 8-K Current Report": A current report on Form 8-K.
"Form 8-K Required Information": Any and all information, including
with respect to any applicable Exchange Act Reportable Events, required pursuant
to the Exchange Act and/or the rules and regulations promulgated thereunder to
be reported by an asset-backed issuer under Form 8-K.
"Form 10-D": Exchange Act Form 10-D, as and to the extent that such
form is applicable for an asset-backed issuer to satisfy its reporting
requirements under the Exchange Act, and the rules and regulations promulgated
thereunder, including for purposes of filing distribution reports under Section
13 or 15(d) of the Exchange Act, filed pursuant to Rule 13a-17 or Rule 15d-17.
For purposes of this Agreement, "Form 10-D" shall be deemed to include any
successor or equivalent Exchange Act form adopted by the Commission.
"Form 10-D Distribution Report": A distribution report on Form 10-D.
"Form 10-D Required Information": Any and all information, including
with respect to any applicable Exchange Act Reportable Events, required pursuant
to the Exchange Act and/or the rules and regulations promulgated thereunder to
be reported by an asset-backed issuer under Form 10-D.
"Form 10-K": Exchange Act Form 10-K, as and to the extent that such
form is applicable for an asset-backed issuer to satisfy its reporting
requirements under the Exchange Act, and the rules and regulations promulgated
thereunder, including for purposes of filing annual reports pursuant to Section
13 or 15(d) of the Exchange Act for which no other form is prescribed, as well
as for filing transition reports pursuant to Section 13 or 15(d) of the Exchange
Act. For purposes of this Agreement, "Form 10-K" shall be deemed to include any
successor or equivalent Exchange Act form adopted by the Commission.
"Form 10-K Annual Report": An annual report on Form 10-K.
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"Form 10-K Required Information": Any and all information, including
with respect to any applicable Exchange Act Reportable Events, required pursuant
to the Exchange Act and/or the rules and regulations promulgated thereunder to
be reported by an asset-backed issuer under Form 10-K.
"Gain-on-Sale Proceeds": With respect to any Trust Mortgage Loan or
Trust REO Loan, the excess, if any, of (i) any and all Liquidation Proceeds
collected with respect to such Mortgage Loan or the related REO Property, as the
case may be, net of any related liquidation expenses, P&I Advances, Servicing
Advances, Principal Recovery Fees, interest on Advances, Master Servicing Fees,
Special Servicing Fees and Additional Trust Fund Expenses, and if applicable,
further net of any portion of such Liquidation Proceeds payable to the related
Non-Trust Noteholder(s) (if any) and, in the case of the Xxxxx Xxxxxx Village
and Stuyvesant Town Trust Mortgage Loan or any related Xxxxx Xxxxxx Village and
Stuyvesant Town REO Property, to the WBCMT 2007-C30 Applicable Servicer, over
(ii) the Purchase Price for such Trust Mortgage Loan or Trust REO Loan, as the
case may be, on the date on which such Liquidation Proceeds were received.
"Gain-on-Sale Reserve Account": A segregated custodial account
(which may be a sub-account of the Distribution Account) created and maintained
by the Trustee pursuant to Section 3.04(e) in trust for the Certificateholders,
which shall be entitled (in the case of a sub-account, if such sub-account is
permitted to be separately titled) "LaSalle Bank National Association, as
Trustee, in trust for the registered holders of ML-CFC Commercial Mortgage Trust
2007-6, Commercial Mortgage Pass-Through Certificates, Series 2007-6,
Gain-on-Sale Reserve Account".
"Global Certificate": With respect to any Class of Book-Entry
Non-Registered Certificates, either the related Rule 144A Global Certificate or
the related Regulation S Global Certificate.
"Grantor Trust E": That certain "grantor trust" (within the meaning
of the Grantor Trust Provisions), the assets of which consist of the Excess
Servicing Strip with respect to the Mortgage Loans and any successor REO Loans
and amounts held from time to time in the Collection Accounts that represent the
Excess Servicing Strip.
"Grantor Trust E Assets": The segregated pool of assets comprising
Grantor Trust E.
"Grantor Trust Provisions": Subpart E of Subchapter J of the Code.
"Grantor Trust Z": That certain "grantor trust" (within the meaning
of the Grantor Trust Provisions), the assets of which consist of any ARD Loan
Additional Interest with respect to the Trust ARD Loans and any successor Trust
REO Loans after their respective Anticipated Repayment Dates and amounts held
from time to time in the Collection Accounts and/or the Additional Interest
Account that represent ARD Loan Additional Interest.
"Grantor Trust Z Assets": The segregated pool of assets comprising
Grantor Trust Z.
"Grantor Trust Trustee" The entity acting as Trustee as herein
provided, which shall initially be LaSalle Bank National Association.
"Ground Lease": With respect to any Mortgage Loan for which the
Mortgagor has a leasehold interest in the related Mortgaged Property or space
lease within such Mortgaged Property, the lease agreement creating such
leasehold interest.
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"Group 1 Mortgage Loan": Any Trust Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Trust Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": 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, without limitation, asbestos and asbestos-containing materials,
polychlorinated biphenyls ("PCBs"), radon gas, petroleum and petroleum products
and urea formaldehyde.
"Holder": A Certificateholder.
"Impound Reserve": As defined in Section 3.16(c).
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, any Mortgage Loan
Seller, either Master Servicer, the Special Servicer, the Controlling Class
Representative, the Trustee, any Fiscal Agent and any and all Affiliates thereof
(and, with respect to any Loan Combination, any of the related Non-Trust
Noteholder(s) and any and all Affiliates thereof), (ii) does not have any direct
financial interest in or any material indirect financial interest in any of the
Depositor, any Mortgage Loan Seller, either Master Servicer, the Special
Servicer, the Controlling Class Representative, the Trustee, any Fiscal Agent or
any Affiliate thereof (or, with respect to any Loan Combination, any of the
related Non-Trust Noteholder(s) or any Affiliate thereof), and (iii) is not
connected with the Depositor, any Mortgage Loan Seller, either Master Servicer,
the Controlling Class Representative, the Special Servicer, the Trustee, any
Fiscal Agent or any Affiliate thereof (or, with respect to any Loan Combination,
any of the related Non-Trust Noteholder(s) 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, any Mortgage Loan Seller, either Master
Servicer, the Controlling Class Representative, the Special Servicer, the
Trustee, any Fiscal Agent or any Affiliate thereof (or, with respect to any Loan
Combination, any of the related Non-Trust Noteholder(s) 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, any Mortgage Loan Seller, either
Master Servicer, the Special Servicer, the Controlling Class Representative, the
Trustee, any Fiscal Agent or any Affiliate thereof (or, with respect to any Loan
Combination, any of the related Non-Trust Noteholder(s) 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": An Independent professional real estate
appraiser who is a member in good standing of the Appraisal Institute, and, if
the State in which the subject Mortgaged Property is located certifies or
licenses appraisers, certified or licensed in such State, and in each such case,
who has a minimum of five years experience in the subject property type and
market.
"Independent Contractor": (a) Any Person that would be an
"independent contractor" with respect to REMIC I within the meaning of Section
856(d)(3) of the Code if REMIC I were a real estate investment trust (except
that the ownership test set forth in that Section shall be considered to be met
by any Person that owns, directly or indirectly, 35% 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
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expense to either Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent or the Trust Fund, delivered to the Trustee (and, if a Loan Combination is
involved, to the related Non-Trust Noteholder(s)), provided that (i) such REMIC
does not receive or derive any income from such Person and (ii) the relationship
between such Person and such REMIC is at arm's length, all within the meaning of
Treasury regulations Section 1.856-4(b)(5), or (b) any other Person upon receipt
by the Trustee (and, if a Loan Combination is involved, by the related Non-Trust
Noteholder(s)) of an Opinion of Counsel, which shall be at no expense to either
Master Servicer, the Special Servicer, the Trustee, any Fiscal Agent or the
Trust Fund, to the effect that the taking of any action in respect of any
Administered REO Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor will not cause such 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 Form 8-K Current Reports": As defined in Section 8.16.
"Initial Purchaser": Each of MLPF&S and Countrywide Securities.
"Institutional Accredited Investor" or "IAI": 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": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title 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": 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": As defined in Section 3.07(d).
"Interest Accrual Period": With respect to any Distribution Date,
except with respect to the Class A-2FL Certificates and the Class AJ-FL
Certificates prior to a Class A-2FL Distribution Conversion or a Class AJ-FL
Distribution Conversion, as the case may be, the calendar month immediately
preceding the calendar month in which such Distribution Date occurs. For
purposes of determining Class A-2FL Interest Distribution Amounts and Class
A-2FL Floating Swap Payments or Class AJ-FL Interest Distribution Amounts and
Class AJ-FL Floating Swap Payments, for any Distribution Date and any Class
A-2FL Swap Payment Date or Class AJ-FL Swap Payment Date, as the case may be,
related thereto based upon the confirmation under the related Swap Agreement,
the Interest Accrual Period will begin on and include the 12th day of the month
preceding the month in which the subject Distribution Date occurs (or, in the
case of the first Distribution Date, will begin on and include the Closing Date)
and will end on and include the 11th day of the month in which the subject
Distribution Date occurs; provided that, if a Class A-2FL Distribution
Conversion or a Class AJ-FL Distribution Conversion is in effect with respect to
the subject Distribution Date, then the Interest Accrual Period applicable to
the Class A-2FL Interest Distribution Amount or the Class AJ-FL Interest
Distribution Amount, as the case may be, for such Distribution Date will be the
same as the Interest
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Accrual Period with respect to the Class A-2FL REMIC II Regular Interest or the
Class AJ-FL REMIC II Regular Interest, as the case may be, for such Distribution
Date.
"Interest Reserve Account": The segregated account (which may be a
sub-account of the Distribution Account) created and maintained by the Trustee
pursuant to Section 3.04(c) in trust for Certificateholders, which shall be
entitled (in the case of a sub-account, if such sub-account is permitted to be
separately titled) "LaSalle Bank National Association, as Trustee, on behalf of
and in trust for the registered holders of ML-CFC Commercial Mortgage Trust
2007-6, Commercial Mortgage Pass-Through Certificates, Series 2007-6".
"Interest Reserve Amount": With respect to each Interest Reserve
Loan and each Distribution Date that occurs in February of each year subsequent
to 2007 and in January of each year subsequent to 2007 that is not a leap year,
an amount equal to one day's interest at the related Net Mortgage Rate 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 owed on
such Due Date), to the extent a Periodic Payment or P&I Advance is made in
respect thereof for such Due Date as of the related P&I Advance Date, in the
case of a Periodic Payment, or as of the related Distribution Date, in the case
of a P&I Advance.
"Interest Reserve Loan": Each Trust Mortgage Loan that is an
Actual/360 Mortgage Loan and each Trust REO Loan that relates to an Actual/360
Mortgage Loan.
"Interested Person": The Depositor, each Mortgage Loan Seller, each
Master Servicer, the Special Servicer, any Independent Contractor hired by the
Special Servicer, any related Non-Trust Noteholder, any Holder of a Certificate
or any Affiliate of any such Person.
"Internet Website": Either the Internet website maintained by the
Trustee (located at "xxx.xxxxxxxx.xxx" or such other address as provided to the
parties hereto from time to time) or the Internet website maintained by either
Master Servicer, as the case may be.
"Investment Account": As defined in Section 3.06(a).
"Investment Grade Certificate": As of any date of determination, a
Certificate that is rated in one of the four highest generic rating categories
by at least one Rating Agency.
"Investment Period": With respect to any Distribution Date and (i)
each of the Collection Accounts, any Servicing Account, any Reserve Account, any
REO Account and any Loan Combination Custodial Account, the related Collection
Period and (ii) each of the Distribution Account, the Interest Reserve Account,
the Additional Interest Account and the Gain-on-Sale Reserve Account, the
related Trustee Investment Period.
"LaSalle": LaSalle Bank National Association, a national banking
association, or its successor in interest.
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Collection Period, other than Penalty Interest,
whether as payments, Insurance Proceeds, Liquidation Proceeds or otherwise,
which represent late collections of the principal and/or interest portions of a
Scheduled Payment (other than a Balloon Payment) or an Assumed Periodic Payment
in respect of such Mortgage Loan due or deemed due on a Due Date in a previous
Collection Period, and
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not previously recovered. With respect to any REO Loan, all amounts received in
connection with the related REO Property during any Collection Period, other
than Penalty Interest, whether as Insurance Proceeds, Liquidation Proceeds, REO
Revenues or otherwise, which represent late collections of the principal and/or
interest portions of a Scheduled Payment (other than a Balloon Payment) or an
Assumed Periodic Payment in respect of the predecessor Mortgage Loan or of an
Assumed Periodic 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": 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 is repurchased or replaced by a Mortgage Loan Seller pursuant to the
applicable Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is
purchased by the Plurality Subordinate Certificateholder, the Special Servicer
or any assignee thereof pursuant to Section 3.18 or by either Master Servicer,
the Special Servicer or the Plurality Subordinate Certificateholder pursuant to
Section 9.01; (v) in the case of an A-Note Trust Mortgage Loan, such Mortgage
Loan is purchased by the related B-Note Loan Holder pursuant to the related Loan
Combination Intercreditor Agreement; (vi) such Mortgage Loan is purchased by a
mezzanine lender pursuant to the related mezzanine intercreditor agreement; or
(vii) such Mortgage Loan is removed from the Trust by the Sole Certificate Owner
in connection with an exchange of all of the outstanding Certificates owned by
the Sole Certificate Owner for all of the Trust Mortgage Loans and each REO
Property remaining in the Trust Fund pursuant to Section 9.01. With respect to
any 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; (ii)
such REO Property is purchased or replaced by a Mortgage Loan Seller pursuant to
the applicable Mortgage Loan Purchase Agreement; (iii) such REO Property is
purchased by either Master Servicer, the Special Servicer or the Plurality
Subordinate Certificateholder pursuant to Section 9.01; or (iv) such REO
Property is removed from the Trust Fund by the Sole Certificate Owner in
connection with an exchange of all of the outstanding Certificates owned by the
Sole Certificate Owner for all of the Trust Mortgage Loans and each REO Property
remaining in the Trust Fund pursuant to Section 9.01.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by either Master Servicer or the Special
Servicer in connection with: (i) 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 rights of the Mortgagor under the terms of the
related Mortgage; (ii) the 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; (iii) the realization upon any deficiency judgment obtained
against a Mortgagor; (iv) the purchase of a Serviced Trust Defaulted Mortgage
Loan by the Plurality Subordinate Certificateholder, the Special Servicer or any
assignee thereof pursuant to Section 3.18; (v) the repurchase or substitution of
a Trust Mortgage Loan or REO Property by a Mortgage Loan Seller, pursuant to the
applicable Mortgage Loan Purchase Agreement; (vi) the purchase of a Trust
Mortgage Loan or REO Property by either Master Servicer, the Special Servicer,
or the Plurality Subordinate Certificateholder pursuant to Section 9.01; (vii)
the purchase of an A-Note Trust Mortgage Loan by the related B-Note Loan Holder
pursuant to the related Loan Combination Intercreditor Agreement; (viii) the
purchase of a Mortgage Loan by a mezzanine lender pursuant to the related
mezzanine intercreditor agreement; or (ix) the removal of a Mortgage Loan or REO
Property from the Trust Fund by the Sole
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Certificate Owner in connection with an exchange of all of the outstanding
Certificates owned by the Sole Certificate Owner for all of the Trust Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to Section
9.01.
"LNR": LNR Partners, Inc., a Florida corporation, or its successor
in interest.
"Loan Combination": Any A/B Loan Combination or the Xxxxx Xxxxxx
Village and Stuyvesant Town Loan Combination as the case may be. The term "Loan
Combination" shall include any successor REO Loan with respect to the applicable
Mortgage Loans comprising such Loan Combination.
"Loan Combination Custodial Account": With respect to any Loan
Combination, the separate account (which may be a sub-account of the applicable
Collection Account) created and maintained by the applicable Master Servicer
pursuant to Section 3.04(h) and held on behalf of the Certificateholders and the
related Non-Trust Noteholder, which shall be entitled (in the case of a
sub-account, if such sub-account is permitted to be separately titled)
substantially as follows: in the case of the Wachovia, "Wachovia Bank, National
Association, as Master Servicer for LaSalle Bank National Association, as
Trustee, on behalf of and in trust for the registered holders of ML-CFC
Commercial Mortgage Trust 2007-6, Commercial Mortgage Pass-Through Certificates,
Series 2007-6 and [name of the related Non-Trust Noteholder(s)], as their
interests may appear", and in the case of Xxxxx Fargo, "Xxxxx Fargo Bank
National Association, as Master Servicer for LaSalle Bank National Association,
as Trustee, on behalf of and in trust for the registered holders of ML-CFC
Commercial Mortgage Trust 2007-6, Commercial Mortgage Pass-Through Certificates,
Series 2007-6, and [name of the related Non-Trust Noteholder(s)], as their
interests may appear". Any such account shall be an Eligible Account.
"Loan Combination Intercreditor Agreement": With respect to each
Loan Combination, each intercreditor agreement (including the Xxxxx Xxxxxx
Village and Stuyvesant Town Intercreditor Agreement) in effect between (i) the
Trust Fund as holder of the related Trust Mortgage Loan and (ii) the Non-Trust
Noteholder(s).
"Loan Combination Mortgaged Property": The Mortgaged Property
securing a Loan Combination.
"Loan Combination REO Account": With respect to each Loan
Combination, a segregated account or accounts created and maintained by the
Special Servicer pursuant to Section 3.16 on behalf of the Trustee, in trust for
the Certificateholders, and the related Non-Trust Noteholder, which shall be
entitled "LNR Partners, Inc., as Special Servicer for LaSalle Bank National
Association, as Trustee in trust for registered holders of ML-CFC Commercial
Mortgage Trust 2007-6, Commercial Mortgage Pass-Through Certificates, Series
2007-6, and [name of the related Non-Trust Noteholder(s)], as their interests
may appear".
"Loan Combination REO Property": With respect to each Loan
Combination, the related Mortgaged Property if such Mortgaged Property is
acquired on behalf and in the name of the Trust Fund, for the benefit of the
Certificateholders, and the related Non-Trust Noteholder(s), as their interests
may appear, through foreclosure, acceptance of a deed-in-lieu of foreclosure or
otherwise in accordance with applicable law in connection with the default or
imminent default of such Loan Combination.
"Loan Group": Either Loan Group 1 or Loan Group 2.
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"Loan Group 1": Collectively, all of the Trust Mortgage Loans that
are Group 1 Mortgage Loans and any successor Trust REO Loans with respect
thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to the Trust Mortgage Loans and Trust REO Loans belonging to Loan
Group 1, taking into account adjustments in accordance with Section 1.02.
"Loan Group 2": Collectively, all of the Trust Mortgage Loans that
are Group 2 Mortgage Loans and any successor Trust REO Loans with respect
thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to the Trust Mortgage Loans and Trust REO Loans belonging to Loan
Group 2, taking into account adjustments in accordance with Section 1.02.
"Loan-to-Value Ratio": With respect to any Trust Mortgage Loan, as
of any date of determination, a fraction, expressed as a percentage, the
numerator of which is (i) the then current principal amount of such Mortgage
Loan, or (ii) in the case of the Xxxxx Xxxxxx Village and Stuyvesant Town Trust
Mortgage Loan or the Blackpoint Puerto Rico Retail Portfolio A-Note Trust
Mortgage Loan following a Blackpoint Puerto Rico Retail Portfolio Conversion,
the then aggregate current principal amount of such Mortgage Loan and the
related Non-Trust Loan(s), in each case as adjusted in accordance with the
considerations specified in Section 3.08(a)(i), and the denominator of which is
the Appraised Value of the related Mortgaged Property.
"Master Servicer": With respect to the Countrywide Trust Mortgage
Loans (and, in each case, any related B-Note Non-Trust Loan), Master Servicer
No. 1; with respect to the Merrill Trust Mortgage Loans (and any related B-Note
Non-Trust Loan) other than the Xxxxx Xxxxxx Village and Stuyvesant Town Trust
Mortgage Loan, Master Servicer No. 2; and with respect to the Xxxxx Xxxxxx
Village and Stuyvesant Town Trust Mortgage Loan for purposes of Section 4.03
hereof and any other obligations of a Master Servicer hereunder that are not
being performed by the WBCMT 2007-C30 Master Servicer, Master Servicer No. 1.
"Master Servicer No. 1": Wachovia or any successor Master Servicer
thereto appointed as herein provided.
"Master Servicer No. 2": Xxxxx Fargo or any successor Master
Servicer thereto appointed as herein provided.
"Master Servicer Indemnification Agreement": With respect to
Wachovia, that certain Master Servicer No. 1 Indemnification Agreement, dated as
of March 30, 2007, between Wachovia, the Depositor, the Underwriters and the
Initial Purchasers; and with respect to Xxxxx Fargo, that certain
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Master Servicer No. 2 Indemnification Agreement, dated as of March 30, 2007,
between Xxxxx Fargo, the Depositor, the Underwriters and the Initial Purchasers.
"Master Servicer Reportable Event": With respect to either Master
Servicer, any of the following events, conditions, circumstances and/or matters:
(i) the entry into or amendment to a definitive agreement
that is material to the Subject Securitization Transaction, including, for
example, a servicing agreement with a Servicer contemplated by Item
1108(a)(3) of Regulation AB, but only if such Master Servicer or any
Servicing Representative of such Master Servicer is a party to such
agreement or has entered into such agreement on behalf of the Trust [ITEM
1.01 ON FORM 8-K];
(ii) the termination of a definitive agreement that is
material to the Subject Securitization Transaction (otherwise than by
expiration of the agreement on its stated termination date or as a result
of all parties completing their obligations under such agreement), but
only if such Master Servicer or any Servicing Representative of such
Master Servicer is a party to such agreement or has entered into such
agreement on behalf of the Trust [ITEM 1.02 ON FORM 8-K];
(iii) the appointment of a receiver, fiscal agent or similar
officer for any Material Debtor in a proceeding under the U.S. Bankruptcy
Code or in any other proceeding under state or federal law in which a
court or governmental authority has assumed jurisdiction over
substantially all of the assets or business of any Material Debtor,
including where such jurisdiction has been assumed by leaving the existing
directors and officers in possession but subject to the supervision and
orders of a court or governmental authority, but only if the subject
Material Debtor is (A) such Master Servicer, (B) any Servicing
Representative of such Master Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Performing Mortgage Loan [ITEM 1.03(a) ON FORM
8-K];
(iv) the entry of an order confirming a plan of
reorganization, arrangement or liquidation of a Material Debtor by a court
or governmental authority having supervision or jurisdiction over
substantially all of the assets or business of such Material Debtor, but
only if the subject Material Debtor is (A) such Master Servicer, (B) any
Servicing Representative of such Master Servicer that constitutes a
Servicer contemplated by Item 1108(a)(3) of Regulation AB or (C) any
Significant Obligor with respect to a Performing Mortgage Loan [ITEM
1.03(b) ON FORM 8-K];
(v) any resignation, removal, replacement or substitution
of (A) such Master Servicer or (B) any Servicing Representative of such
Master Servicer that constitutes a Servicer contemplated by Item
1108(a)(2) of Regulation AB [ITEM 6.02 ON FORM 8-K];
(vi) any appointment of (A) a new Master Servicer or (B)
any new Servicing Representative of such Master Servicer that constitutes
a Servicer contemplated by Item 1108(a)(2) of Regulation AB [ITEM 6.02 ON
FORM 8-K];
(vii) any nonpublic disclosure, by such Master Servicer or
any Servicing Representative of such Master Servicer, with respect to the
Subject Securitization Transaction
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(other than disclosure required pursuant to this Agreement) that is
required to be disclosed by Regulation FD (17 C.F.R. 243.100 through
243.103) [ITEM 7.01 ON FORM 8-K];
(viii) any other information of importance to
Certificateholders (determined by such Master Servicer in accordance with
the Servicing Standard) that (A) is not otherwise required to be included
in the Distribution Date Statement, the CMSA Special Servicer Loan File or
any other report to be delivered or otherwise made available to
Certificateholders hereunder, and (B) such Master Servicer has determined,
in accordance with the Servicing Standard, could have a material adverse
effect on the value of a Mortgaged Property as collateral for a Performing
Mortgage Loan or the ability of a Mortgaged Property to generate
sufficient cash flow for the related Mortgagor to meet its debt service
obligations under the related Performing Mortgage Loan [ITEM 8.01 ON FORM
8-K];
(ix) the commencement or termination of, or any material
developments regarding, any legal proceedings pending against any Material
Litigant, or of which any property of a Material Litigant is the subject,
or any threat by a governmental authority to bring any such legal
proceedings, that are material to Certificateholders, but only if such
Master Servicer is controlling the subject litigation or if the subject
Material Litigant is (A) such Master Servicer, (B) any Servicing
Representative of such Master Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Performing Mortgage Loan [ITEM 2 ON FORM 10-D
AND GENERAL INSTRUCTION J TO FORM 10-K];
(x) the receipt by or on behalf of such Master Servicer or
any Servicing Representative of such Master Servicer of any updated
financial statements, balance sheets, rent rolls or other financial
information regarding a Significant Obligor with respect to a Performing
Mortgage Loan that is required to be provided under Item 1112(b) of
Regulation AB [ITEM 6 ON FORM 10-D AND GENERAL INSTRUCTION J TO FORM
10-K];
(xi) to the extent not otherwise disclosed in the Prospectus
Supplement, whether such Master Servicer has become an affiliate (as
defined in Rule 405 of the Securities Act) of any of (A) the Trust, (B)
the Depositor, (C) a Mortgage Loan Seller, (D) the Trustee, (E) the
Special Servicer, (F) any Servicing Representative of such Master Servicer
that constitutes a Servicer contemplated by Item 1108(a)(3) of Regulation
AB or (G) any Significant Obligor [GENERAL INSTRUCTION J TO FORM 10-K];
and
(xii) to the extent not otherwise disclosed in the
Prospectus Supplement, any specific relationship involving or relating to
the Subject Securitization Transaction or the Mortgage Loans contemplated
by Item 1119(c) of Regulation AB between a Mortgage Loan Seller or the
Trust, on the one hand, and such Master Servicer or any Servicing
Representative of such Master Servicer, on the other hand [GENERAL
INSTRUCTION J TO FORM 10-K];
provided that, in the case of clauses (ii), (iv), (ix) and (xii) above, if a
Servicing Representative is a Designated Sub-Servicer, the subject event,
condition, circumstance and/or matter shall constitute a Master Servicer
Reportable Event with respect to such Servicing Representative only if the
Master Servicer has knowledge thereof.
"Master Servicing Fee": With respect to each Mortgage Loan and any
successor REO Loan with respect thereto, the fee payable to the applicable
Master Servicer pursuant to Section 3.11(a).
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"Master Servicing Fee Rate": With respect to each Trust Mortgage
Loan, the per annum rate equal to the sum of the rates set forth under the
columns "Master Servicing Fee", "Primary Servicing Fee" and the "Sub-Servicing
Fee Rate" on the Mortgage Loan Schedule, and with respect to each Non-Trust
Loan, or any successor REO Loan with respect thereto, the per annum rate at
which any related Master Servicing Fee is permitted to be calculated under the
related Loan Combination Intercreditor Agreement. Notwithstanding the foregoing,
for purposes of determining the amount of servicing compensation actually
payable to the Master Servicer in respect of the Xxxxx Xxxxxx Village and
Stuyvesant Town Trust Mortgage Loan pursuant to Section 3.11(a), only the rate
(0.01%) set forth under the column "Master Servicing Fee" shall be taken into
account.
"Material Debtor": Any of the following:
(i) the Trust;
(ii) each of the Mortgage Loan Sellers;
(iii) each of the parties to this Agreement;
(iv) any Servicing Representative that constitutes a
Servicer contemplated by Item 1108(a)(3) of Regulation AB;
(v) any Significant Obligor;
(vi) any Enhancement/Support Provider; and
(vii) any other material party contemplated by Item
1100(d)(1) of Regulation AB relating to the relating to the Subject
Securitization Transaction.
"Material Litigant": Any of the following:
(i) the Trust;
(ii) each of the Mortgage Loan Sellers;
(iii) the Depositor;
(iv) the Trustee;
(v) each Master Servicer;
(vi) the Special Servicer;
(vii) any Servicing Representative that constitutes a
Servicer contemplated by Item 1108(a)(3) of Regulation AB;
(viii) any originator of Trust Mortgage Loans contemplated by
Item 1110(b) of Regulation AB; and
(ix) any other party contemplated by Item 1100(d)(1) of
Regulation AB relating to the Subject Securitization Transaction.
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"Merrill Mortgage Loan Purchase Agreement": That certain mortgage
loan purchase agreement, dated as of March 30, 2007, between the Depositor and
MLMLI and relating to the transfer of the Merrill Trust Mortgage Loans to the
Depositor.
"Merrill Trust Mortgage Loan": Each Trust Mortgage Loan transferred
and assigned to the Depositor pursuant to the Merrill Mortgage Loan Purchase
Agreement.
"MERS": Mortgage Electronic Registration Systems, Inc. or any
successor thereto.
"MERS Mortgage Loan": Any Mortgage Loan registered with MERS on the
MERS(R) System, as to which MERS is acting as mortgagee, solely as nominee for
the originator of such Mortgage Loan and its successors and assigns.
"MERS(R) System": The system of recording transfers of mortgages
electronically maintained by MERS.
"Mesirow Trust Mortgage Loan": The Trust Mortgage Loan (loan number
74) identified on the Mortgage Loan Schedule by property name Mesirow Financial
Building.
"MIN": The Mortgage Identification Number for any MERS Mortgage
Loan.
"ML-CFC 2007-6 Grantor Trust FL": That certain "grantor trust"
(within the meaning of the Grantor Trust Provisions), the assets of which
consist of (i) the Class A-2FL Swap Agreement and payments thereunder, (ii) the
Class A-2FL Sub-Account, (iii) the Class AJ-FL Swap Agreement and payments
thereunder and (iv) the Class AJ-FL Sub-Account, intended to be treated as a
"grantor trust" within the meaning of the Grantor Trust Provisions.
"ML-CFC 0000-0 Xxxxxxx Xxxxx XX Assets": The segregated pool of
assets comprising ML-CFC 2007-6 Grantor Trust FL.
"MLMLI": Xxxxxxx Xxxxx Mortgage Lending, Inc. or its successor in
interest.
"MLPF&S": Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, a
Delaware corporation, or its successor in interest.
"Moody's": Xxxxx'x Investors Service, Inc. or its successor in
interest. If neither such Rating Agency nor any successor remains in existence,
"Moody's" shall be deemed to refer to such other nationally recognized
statistical rating organization or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee, the Master
Servicers, the Special Servicer and any Fiscal Agent, and specific ratings of
Moody's herein referenced shall be deemed to refer to the equivalent ratings of
the party so designated.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust, deed to secure debt or similar instrument that secures the Mortgage Note
and creates a lien on the fee or leasehold interest in the related Mortgaged
Property.
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"Mortgage File":
(a) With respect to any Serviced Trust Mortgage Loan and, in the
case of any Trust Mortgage Loan that is part of a Loan Combination, also with
respect to the related Non-Trust Loan(s), collectively the following documents
(which, in the case of a Loan Combination, except for the Mortgage Notes
referred to in clause (i) of this definition and any modifications thereof
referred to in clause (vi) of this definition, relate to the entire Loan
Combination):
(i) (A) the original executed Mortgage Note for such
Serviced Trust Mortgage Loan, including any power of attorney related to
the execution thereof (or a lost note affidavit and indemnity with a copy
of such Mortgage Note attached thereto), together with any and all
intervening endorsements thereon, endorsed on its face or by allonge
attached thereto (without recourse, representation or warranty, express or
implied) to the order of LaSalle Bank National Association, as trustee for
the registered holders of ML-CFC Commercial Mortgage Trust 2007-6,
Commercial Mortgage Pass-Through Certificates, Series 2007-6, or in blank,
and (B) in the case of a Loan Combination, a copy of the executed Mortgage
Note for each related Non-Trust Loan;
(ii) an original or a copy of the Mortgage, together with
originals or copies of any and all intervening assignments thereof, in
each case (unless not yet returned by the applicable recording office)
with evidence of recording indicated thereon or certified by the
applicable recording office or, in the case of a MERS Mortgage Loan, an
original or a copy of the Mortgage, together with any and all intervening
assignments thereof, in each case (unless not yet returned by the
applicable recording office) with evidence of recording indicated thereon
or certified by the applicable recording office, with language noting the
presence of the MIN of such Mortgage Loan and language indicating that
such Mortgage Loan is a MERS Mortgage Loan;
(iii) an original or a copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage), together
with originals or copies of any and all intervening assignments thereof,
in each case (unless not yet returned by the applicable recording office)
with evidence of recording indicated thereon or certified by the
applicable recording office or, in the case of a MERS Mortgage Loan, an
original or copy of any related Assignment of Leases (if such item is a
document separate from the Mortgage), together with any and all
intervening assignments thereof, in each case with evidence of recording
indicated thereon or certified by the applicable recording office, with
language noting the presence of the MIN of such Mortgage Loan and language
indicating that such Mortgage Loan is a MERS Mortgage Loan;
(iv) an original executed assignment, in recordable form
(except for completion of the assignee's name and address, if the
assignment is delivered in blank, and any missing recording information)
or a certified copy of that assignment as sent for recording, of (A) the
Mortgage, (B) any related Assignment of Leases (if such item is a document
separate from the Mortgage) and (C) any other recorded document relating
to such Serviced Trust Mortgage Loan otherwise included in the Mortgage
File, in favor of LaSalle Bank National Association, as trustee for the
registered holders of ML-CFC Commercial Mortgage Trust 2007-6, Commercial
Mortgage Pass-Through Certificates, Series 2007-6 (or, in the case of a
Loan Combination, in favor of LaSalle Bank National Association, as
trustee for the registered holders
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of ML-CFC Commercial Mortgage Trust 2007-6, Commercial Mortgage
Pass-Through Certificates, Series 2007-6, and in its capacity as lead
lender on behalf of the holder of the related Non-Trust Loan(s)), or in
blank or, in the case of a MERS Mortgage Loan, evidence from MERS
indicating the Trustee's ownership of such Mortgage Loan on the MERS(R)
System and the Trustee as the beneficiary of the assignment(s) of (a) the
Mortgage, (b) any related Assignment of Leases (if such item is a document
separate from the Mortgage) and (c) any other recorded document relating
to such Mortgage Loan otherwise included in the Mortgage File;
(v) an original assignment of all unrecorded documents
relating to the subject Trust Mortgage Loan (to the extent not already
assigned pursuant to clause (iv) above), in favor of LaSalle Bank National
Association, as trustee for the registered holders of ML-CFC Commercial
Mortgage Trust 2007-6, Commercial Mortgage Pass-Through Certificates,
Series 2007-6 (or, in the case of a Loan Combination, in favor of LaSalle
Bank National Association, as trustee for the registered holders of ML-CFC
Commercial Mortgage Trust 2007-6, Commercial Mortgage Pass-Through
Certificates, Series 2007-6, and in its capacity as lead lender on behalf
of the holder of the related Non-Trust Loan(s)), or in blank or, in the
case of a MERS Mortgage Loan (to the extent not evidenced pursuant to
clause (iv) above), evidence from MERS indicating the Trustee's ownership
of the Mortgage Loan on the MERS(R) System and the Trustee as the
beneficiary of the assignment(s) of unrecorded documents related to the
Mortgage Loan;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the subject Trust Mortgage Loan has been
assumed;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or a copy of an irrevocable, binding commitment
(which may be a pro forma policy or a marked version of the policy that
has been executed by an authorized representative of the title company or
an agreement to provide the same pursuant to binding escrow instructions
executed by an authorized representative of the title company) to issue
such title insurance policy;
(viii) any filed copies or other evidence of filing of any
prior UCC Financing Statements in favor of the originator of such Serviced
Trust Mortgage Loan or in favor of any assignee prior to the Trustee (but
only to the extent the Mortgage Loan Seller had possession of such UCC
Financing Statements prior to the Closing Date) and, if there is an
effective UCC Financing Statement in favor of the Mortgage Loan Seller on
record with the applicable public office for UCC Financing Statements, a
UCC Financing Statement assignment, in form suitable for filing in favor
of LaSalle Bank National Association, as trustee for the registered
holders of ML-CFC Commercial Mortgage Trust 2007-6, Commercial Mortgage
Pass-Through Certificates, Series 2007-6, as assignee (or, in the case of
a Loan Combination, in favor of LaSalle Bank National Association, as
trustee for the registered holders of ML-CFC Commercial Mortgage Trust
2007-6, Commercial Mortgage Pass-Through Certificates, Series 2007-6, and
in its capacity as lead lender on behalf of the holder of the related
Non-Trust Loan(s)), or in blank or, in the case of a MERS Mortgage Loan,
evidence from MERS indicating the Trustee's ownership of the Mortgage Loan
on the MERS(R) System and the Trustee as the beneficiary of any effective
UCC Financing Statement in favor of the related Mortgage Loan Seller on
record with the applicable public office for UCC Financing Statements;
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(ix) an original or a copy of any Ground Lease and any
related ground lessor estoppel or any guaranty;
(x) an original or a copy of any intercreditor agreement
relating to permitted debt of the Mortgagor (including, in the case of a
Trust Mortgage Loan that is part of a Loan Combination, any related Loan
Combination Intercreditor Agreement) and any intercreditor agreement
relating to mezzanine debt related to the Mortgagor;
(xi) an original or a copy of any loan agreement, any escrow
or reserve agreement, any security agreement, any management agreement,
any agreed upon procedures letter, any lockbox or cash management
agreements, any environmental reports or any letter of credit (which
letter of credit shall not be delivered in original form to the Trustee
but rather to the applicable Master Servicer), in each case relating to
such Serviced Trust Mortgage Loan; and
with respect to a Serviced Trust Mortgage Loan secured by a
hospitality property, a signed copy of any franchise agreement and/or franchisor
comfort letter; and
(b) with respect to the Xxxxx Xxxxxx Village and Stuyvesant Town
Trust Mortgage Loan, the following documents collectively:
(i) the original executed Mortgage Note for such Trust
Mortgage Loan including any power of attorney related to the execution
thereof (or a lost note affidavit and indemnity with a copy of such
Mortgage Note attached thereto), together with any and all intervening
endorsements thereon, endorsed on its face or by allonge attached thereto
(without recourse, representation or warranty, express or implied) to the
order of LaSalle Bank National Association, as trustee for the registered
holders of ML-CFC Commercial Mortgage Trust 2007-6, Commercial Mortgage
Pass-Through Certificates, Series 2007-6, or in blank;
(ii) an executed copy of the Xxxxx Xxxxxx Village and
Stuyvesant Town Intercreditor Agreement; and
(iii) an executed copy of the WBCMT 2007-C30 Pooling and
Servicing Agreement;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or the Custodian for documents described in clause
(vi) of this definition, shall be deemed to include only such documents to the
extent the Trustee or Custodian has actual knowledge of their existence.
"Mortgage Loan": Any Trust Mortgage Loan or any Non-Trust Loan. As
used herein, the term "Mortgage Loan" includes the related Mortgage Note,
Mortgage and other security documents contained in the related Mortgage File or
otherwise held on behalf of the Trust and/or any Non-Trust Noteholder, as
applicable.
"Mortgage Loan Purchase Agreement": Each of the Countrywide Mortgage
Loan Purchase Agreement and the Xxxxxxx Mortgage Loan Purchase Agreement.
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"Mortgage Loan Schedule": The list of Trust Mortgage Loans
transferred on the Closing Date to the Trustee as part of REMIC I, respectively,
attached hereto as Schedule I and in a computer readable format. Such list shall
set forth the following information with respect to each Trust Mortgage Loan:
(i) the loan identification number (as specified in Annex
A-1 to the Prospectus);
(ii) the street address (including city, county, state and
zip code) and name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) (A) the amount of the Periodic Payment due on the first
Due Date following the Closing Date and (B) the monthly Due Date;
(v) the Net Mortgage Rate as of the Cut-off Date and the
original Mortgage Rate;
(vi) the (A) original term to stated maturity, (B)
remaining term to stated maturity and (C) Stated Maturity Date;
(vii) the original and remaining amortization term;
(viii) whether the Trust Mortgage Loan is secured by a
Ground Lease;
(ix) the Master Servicing Fee Rate;
(x) whether such Trust Mortgage Loan is an ARD Loan and if
so the Anticipated Repayment Date and Additional Interest Rate for such
ARD Loan;
(xi) whether such Trust Mortgage Loan is a Convertible Rate
Mortgage Loan;
(xii) the related Mortgage Loan Seller and, if different,
the related originator;
(xiii) whether such Trust Mortgage Loan is insured by an
environmental policy;
(xiv) whether such Trust Mortgage Loan is cross-defaulted or
cross-collateralized with any other Trust Mortgage Loan;
(xv) whether such Trust Mortgage Loan is a Defeasance Loan;
(xvi) whether the Trust Mortgage Loan is secured by a letter
of credit;
(xvii) whether payments on such Trust Mortgage Loan are made
to a lock-box;
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(xviii) the amount of any Reserve Funds escrowed in respect
of each Trust Mortgage Loan;
(xix) the number of days of any grace period permitted in
respect of any Periodic Payment due under such Trust Mortgage Loan;
(xx) the property type of the related Mortgaged Property as
reported in the rent roll;
(xxi) the original principal balance of such Trust Mortgage
Loan;
(xxii) the interest accrual basis of such Trust Mortgage
Loan;
(xxiii) the primary servicing fee rate, if any, for such
Trust Mortgage Loan; and
(xxiv) the applicable Loan Group to which the Trust Mortgage
Loan belongs.
"Mortgage Loan Seller": Each of Countrywide and MLMLI.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool": Collectively, all of the Trust Mortgage Loans and
any Trust REO Loans. The Non-Trust Loans shall not constitute part of the
Mortgage Pool.
"Mortgage Rate": With respect to: (i) any Mortgage Loan on or prior
to its Stated Maturity Date, the fixed annualized rate, not including any
Additional Interest 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; (ii) any Mortgage Loan after its
Stated Maturity Date, the annualized rate described in clause (i) above
determined without regard to the passage of such Stated Maturity Date, but
giving effect to any modification thereof as contemplated by Section 3.20 or, in
the case of the Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan,
any modification thereof pursuant to the WBCMT 2007-C30 Pooling and Servicing
Agreement; and (iii) any REO Loan, the annualized rate described in clause (i)
or (ii), as applicable, above determined as if the predecessor Mortgage Loan had
remained outstanding.
"Mortgaged Property": The property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, 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, and any Person that has acquired the
related Mortgaged Property and assumed the obligations of the original obligor
under the Mortgage Note, but excluding guarantors that do not own the related
Mortgaged Property.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Trust Mortgage Loans during the related
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Collection Period, exceeds (b) the aggregate amount deposited by the Master
Servicers in their respective Collection Accounts for such Distribution Date
pursuant to Section 3.19(a) in connection with such Prepayment Interest
Shortfalls on the Trust Mortgage Loans.
"Net Investment Earnings": With respect to each of the Collection
Accounts, the Interest Reserve Account, any Servicing Account, any Reserve
Account, any REO Account, the Distribution Account, any Loan Combination
Custodial Account, the Additional Interest Account and the Gain-on-Sale Reserve
Account, for any Investment Period, the amount, if any, by which the aggregate
of all interest and other income realized during such Investment Period on funds
held in such account, exceeds the aggregate of all losses, if any, incurred
during such Investment Period in connection with the investment of such funds in
accordance with Section 3.06 (other than losses of what would have otherwise
constituted interest or other income earned on such funds).
"Net Investment Loss": With respect to each of the Collection
Accounts, any Servicing Account, any Reserve Account, any REO Account, the
Distribution Account, any Loan Combination Custodial Account, the Interest
Reserve Account, the Additional Interest Account and the Gain-on-Sale Reserve
Account, for any Investment Period, the amount by which the aggregate of all
losses, if any, incurred during such Investment Period in connection with the
investment of funds held in such account in accordance with Section 3.06 (other
than losses of what would have otherwise constituted interest or other income
earned on such funds), exceeds the aggregate of all interest and other income
realized during such Investment Period on such funds.
"Net Mortgage Pass-Through Rate":
(A) With respect to any Trust Mortgage Loan (or any successor
Trust REO Loan with respect thereto) that accrues (or is
deemed to accrue) interest on a 30/360 Basis, for any
Distribution Date, an annual rate equal to the Net Mortgage
Rate for such Trust Mortgage Loan as of the Closing Date
(without regard to any modification, waiver or amendment of
the terms of such Trust Mortgage Loan subsequent to the
Closing Date); and
(B) With respect to any Trust Mortgage Loan (or any successor
Trust REO Loan with respect thereto) that accrues interest on
an Actual/360 Basis, for any Distribution Date, an annual rate
equal to twelve times a fraction, expressed as a percentage:
(1) the numerator of which fraction is, subject to
adjustment as described below in this definition, an
amount of interest equal to the product of (a) the
number of days in the calendar month preceding the month
in which such Distribution Date occurs, multiplied by
(b) the Stated Principal Balance of such Trust Mortgage
Loan (or such Trust REO Loan) immediately preceding such
Distribution Date, multiplied by (c) 1/360, multiplied
by (d) the Net Mortgage Rate for such Trust Mortgage
Loan as of the Closing Date (without regard to any
modification, waiver or amendment of the terms of such
Trust Mortgage Loan subsequent to the Closing Date); and
(2) the denominator of which fraction is the Stated
Principal Balance of such Trust Mortgage Loan (or such
Trust REO Loan) immediately preceding that Distribution
Date.
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Notwithstanding the foregoing, if the subject Distribution Date
occurs during January, except during a leap year, or February of any year
subsequent to 2007, then the amount of interest referred to in the fractional
numerator described in clause (B)(1) above will be decreased to reflect any
Interest Reserve Amounts with respect to the subject Trust Mortgage Loan (or
Trust REO Loan) transferred from the Distribution Account to the Interest
Reserve Account in such calendar month. Furthermore, if the subject Distribution
Date occurs during March of any year subsequent to 2007, then the amount of
interest referred to in the fractional numerator described in clause (B)(1)
above will be increased to reflect any Interest Reserve Amounts with respect to
the subject Trust Mortgage Loan (or Trust REO Loan) transferred from the
Interest Reserve Account to the Distribution Account for distribution on such
Distribution Date.
"Net Mortgage Rate": With respect to any Trust Mortgage Loan or any
Trust REO Loan, as of any date of determination, a rate per annum equal to the
related Mortgage Rate minus the sum of the Trustee Fee Rate and the applicable
Master Servicing Fee Rate and, in the case of the Xxxxx Xxxxxx Village and
Stuyvesant Town Trust Mortgage Loan or any successor Trust REO Loan with respect
thereto, the WBCMT 2007-C30 Servicing Fee Rate; and, with respect to any
Non-Trust Loan or any successor REO Loan with respect thereto, the related
Mortgage Rate minus the applicable Master Servicing Fee Rate.
"Net Operating Income" or "NOI": With respect to any Mortgaged
Property, for any twelve-month period, the total operating revenues derived from
such Mortgaged Property during such period, minus the total operating expenses
incurred in respect of such Mortgaged Property during such period, other than
(i) non-cash items such as depreciation, (ii) amortization, (iii) actual capital
expenditures and (iv) debt service on the related Mortgage Loan.
"New Lease": 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 for the benefit of the Certificateholders and, in the case
of a Loan Combination, the related Non-Trust Noteholder(s).
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance (including
any Workout-Delayed Reimbursement Amount that subsequently becomes a
Nonrecoverable P&I Advance) or Nonrecoverable Servicing Advance (including any
Workout-Delayed Reimbursement Amount that subsequently becomes a Nonrecoverable
Servicing Advance).
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made, including any previously made P&I Advance that constitutes
a Workout-Delayed Reimbursement Amount, in respect of any Trust Mortgage Loan or
Trust REO Loan by the applicable Master Servicer, the Trustee or any Fiscal
Agent, as the case may be, that, as determined by the applicable Master
Servicer, the Special Servicer, the Trustee or any Fiscal Agent, as the case may
be, in accordance with the Servicing Standard (in the case of the applicable
Master Servicer or the Special Servicer) or its good faith judgment (in the case
of the Trustee or any Fiscal Agent) with respect to such P&I Advance (together
with any accrued and unpaid interest thereon), will not be ultimately
recoverable from Late Collections, REO Revenues, Insurance Proceeds or
Liquidation Proceeds, or any other recovery on or with respect to such Trust
Mortgage Loan or Trust REO Loan (or, in the case of a Trust Mortgage Loan that
is a part of a Loan Combination, on or with respect to the related Loan
Combination); provided, however, the Special Servicer may, at its option, make a
determination (which shall be binding upon the applicable Master Servicer, the
Trustee and any Fiscal Agent) in accordance with the Servicing Standard, that
any P&I Advance previously made or proposed to be made, or any Workout-Delayed
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Reimbursement Amount previously made, by the applicable Master Servicer, the
Trustee or any Fiscal Agent is a Nonrecoverable P&I Advance and shall deliver
notice of such determination to the applicable Master Servicer, the Trustee and
any Fiscal Agent. In making a recoverability determination, the applicable
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent, as the
case may be, will be entitled to consider (among other things) the obligations
of the Mortgagor under the terms of the related Mortgage Loan as it may have
been modified, to consider (among other things) the related Mortgaged Properties
in their "as is" or then current conditions and occupancies, as modified by such
Person's assumptions (consistent with the Servicing Standard) regarding the
possibility and effects of future adverse change with respect to such Mortgaged
Properties, to estimate and consider (among other things) future expenses, to
estimate and consider (consistent with the Servicing Standard) (among other
things) the timing of recoveries, and to consider the existence and amount of
any outstanding Nonrecoverable Advances the reimbursement of which is being
deferred pursuant to Section 4.03(f), any outstanding Workout Delayed
Reimbursement Amounts and any Unliquidated Advances. In addition, the applicable
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent, as the
case may be, may update or change its recoverability determinations at any time
and, consistent with the Servicing Standard, may obtain from the Special
Servicer any reasonably required analysis, Appraisals or market value estimates
or other information in the Special Servicer's possession for such purposes.
Absent bad faith, the applicable Master Servicer's, the Special Servicer's, the
Trustee's or any Fiscal Agent's determination as to the recoverability of any
P&I Advance shall be conclusive and binding on the Certificateholders. The
Trustee and any Fiscal Agent shall be entitled to conclusively rely on any
determination by the applicable Master Servicer that any P&I Advance constitutes
a Nonrecoverable P&I Advance, and the applicable Master Servicer, the Trustee
and any Fiscal Agent shall be entitled to conclusively rely on any determination
by the Special Servicer that any P&I Advance constitutes a Nonrecoverable P&I
Advance and shall be required to act in accordance with such determination;
provided that, no party hereto may reverse any determination made by another
party hereto that a P&I Advance is a Nonrecoverable Advance.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made, including any previously made Servicing Advance
that constitutes a Workout-Delayed Reimbursement Amount, in respect of a
Serviced Mortgage Loan or Serviced REO Loan by the applicable Master Servicer,
the Special Servicer, the Trustee or any Fiscal Agent, as the case may be, that,
as determined by the applicable Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent, as the case may be, in accordance with the
Servicing Standard (in the case of the applicable Master Servicer or the Special
Servicer) or its good faith judgment (in the case of the Trustee or any Fiscal
Agent) with respect to such Servicing Advance (together with any accrued and
unpaid interest thereon), will not be ultimately recoverable from Late
Collections, REO Revenues, Insurance Proceeds, Liquidation Proceeds, or any
other recovery on or in respect of such Mortgage Loan or the related REO
Property; provided, however, the Special Servicer may, at its option, make a
determination (which shall be binding upon the applicable Master Servicer, the
Trustee and any Fiscal Agent) in accordance with the Servicing Standard, that
any Servicing Advance previously made or proposed to be made, or any
Workout-Delayed Reimbursement Amount previously made, by the applicable Master
Servicer, the Trustee or any Fiscal Agent is a Nonrecoverable Servicing Advance
and shall deliver notice of such determination to the applicable Master
Servicer, the Trustee and any Fiscal Agent. In making a recoverability
determination, the applicable Master Servicer, the Special Servicer, the Trustee
or any Fiscal Agent, as the case may be, will be entitled to consider (among
other things) the obligations of the Mortgagor under the terms of the related
Mortgage Loan as it may have been modified, to consider (among other things) the
related Mortgaged Properties in their "as is" or then current conditions and
occupancies, as modified by such party's assumptions (consistent with the
Servicing Standard)
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regarding the possibility and effects of future adverse change with respect to
such Mortgaged Properties, to estimate and consider (among other things) future
expenses and to estimate and consider (consistent with the Servicing Standard)
(among other things) the timing of recoveries, and to consider the existence and
amount of any outstanding Nonrecoverable Advances the reimbursement of which is
being deferred pursuant to Section 4.03(f), any outstanding Workout Delayed
Reimbursement Amounts and any Unliquidated Advances. In addition, the applicable
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent, as the
case may be, may update or change its recoverability determinations at any time
and, consistent with the Servicing Standard, may obtain from the Special
Servicer any reasonably required analysis, Appraisals or market value estimates
or other information in the Special Servicer's possession for such purposes.
Absent bad faith, the applicable Master Servicer's, the Special Servicer's, the
Trustee's or any Fiscal Agent's determination as to the recoverability of any
Servicing Advance shall be conclusive and binding on the Certificateholders. The
Trustee and any Fiscal Agent shall be entitled to conclusively rely on any
determination by the applicable Master Servicer that any Servicing Advance
constitutes a Nonrecoverable Servicing Advance, and the applicable Master
Servicer, the Trustee and any Fiscal Agent shall be entitled to conclusively
rely on any determination by the Special Servicer that any Servicing Advance
constitutes a Nonrecoverable Servicing Advance and shall be required to act in
accordance with such determination; provided that, no party hereto may reverse
any determination made by another party hereto that a Servicing Advance is a
Nonrecoverable Advance.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class X, Class A-2FL, Class A-J-FL, Class E, Class F, Class
G, Class H, Class J, Class K, Class L, Class M, Class N, Class P, Class Q, Class
Y, Class Z, Class R-I or Class R-II Certificate.
"Non-Trust Loan" Any B-Note Non-Trust Loan or the Xxxxx Xxxxxx
Village and Stuyvesant Town Pari Passu Non-Trust Loans, as the case may be.
"Non-Trust Noteholder": The holder of a Non-Trust Loan.
"Non-United States Securities Person": Any Person other than a
United States Securities Person.
"Non-United States Tax Person": Any Person other than a United
States Tax Person.
"Officer's Certificate": A certificate signed by a Servicing Officer
of either Master Servicer or the Special Servicer, as the case may be, or by a
Responsible Officer of the Trustee.
"Opinion of Counsel": A written opinion of counsel (which counsel
may be a salaried counsel for the Depositor, the applicable Master Servicer or
the Special Servicer) acceptable to and delivered to the Trustee (in such
capacity or, if applicable, in its capacity as Grantor Trust Trustee) or the
applicable Master Servicer, as the case may be, except that any opinion of
counsel relating to (a) the qualification of REMIC I or REMIC II as a REMIC; (b)
the qualification of any of ML-CFC 0000-0 Xxxxxxx Xxxxx XX, Grantor Trust E or
Grantor Trust Z as a grantor trust; (c) compliance with REMIC Provisions; or (d)
the resignation of either Master Servicer or the Special Servicer pursuant to
Section 6.04 must be an opinion of counsel who is in fact Independent of the
applicable Master Servicer, the Special Servicer or the Depositor, as
applicable.
"Option Holder": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
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"Original Class Principal Balance": With respect to any Class of
Sequential Pay Certificates, the Class A-2FL REMIC II Regular Interest or the
Class AJ-FL REMIC II Regular Interest, the initial Class Principal Balance
thereof as of the Closing Date, in each case as specified in the Preliminary
Statement. The Class A-2FL Certificates and the Class A-2FL REMIC II Regular
Interest will have the same Original Class Principal Balance, and the Class
AJ-FL Certificates and the Class AJ-FL REMIC II Regular Interest will have the
same original class Principal Balance.
"Original Notional Amount": $2,145,926,359, the total original
notional amount of the Class X Certificates.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": 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.
"Pass Through Rate": (i) With respect to each of the Class A 1,
Class A 2, Class A 3 and A-1A Certificates and the Class A-2FL REMIC II Regular
Interest for any Distribution Date, the rate specified in the following table:
Pass
Class Through Rate
-------------------------------
Class A-1 5.175%
Class A-2 5.331%
Class A-2FL* 5.331%
Class A-3 5.420%
Class A-1A 5.464%
* REMIC II Regular Interest
(ii) With respect to each of the Class A-4, Class AM, Class AJ,
Class B, Class C, Class D, Class E, Class J, Class K, Class L, Class M, Class N,
Class P and Class Q Certificates and the Class AJ-FL REMIC II Regular Interest
for any Distribution Date, a per annum rate equal to the lesser of (a) the per
annum rate specified for such Class in the following table and (b) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution Date:
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----------------------------------------------------------
Pass Through Rate
(Subject to Weighted Average Net
Class Mortgage Rate)
----------------------------------------------------------
Class A-4 5.485%
Class AM 5.526%
Class AJ 5.556%
Class AJ-FL* 5.556%
Class B 5.635%
Class C 5.674%
Class D 5.714%
Class E 5.866%
Class J 5.140%
Class K 5.140%
Class L 5.140%
Class M 5.140%
Class N 5.140%
Class P 5.140%
Class Q 5.140%
* REMIC II Regular Interest.
(iii) With respect to each of the Class F, Class G and Class H
Certificates for any Distribution Date, a per annum rate equal to the Weighted
Average Net Mortgage Rate for such Distribution Date.
(iv) With respect to the Class X Certificates, for any Distribution
Date, a rate equal to the weighted average of the Class X Strip Rates for the
Class X Components for such Distribution Date (weighted on the basis of the
respective Component Notional Amounts of the Class X Components outstanding
immediately prior to such Distribution Date).
(v) with respect to the Class A-2FL Certificates, (A) for any
Distribution Date with respect to which a Class A-2FL Distribution Conversion
does not exist, the per annum rate, expressed as a percentage, equal to the
applicable value of LIBOR specified in or calculated in accordance with Section
1.03, plus 0.140% per annum, and (B) for any Distribution Date with respect to
which a Class A-2FL Distribution Conversion does exist, the Pass-Through Rate
for the Class A-2FL REMIC II Regular Interest for that Distribution Date; and
(vi) with respect to the Class AJ-FL Certificates, (A) for any
Distribution Date with respect to which a Class AJ-FL Distribution Conversion
does not exist, the per annum rate, expressed as a percentage, equal to the
applicable value of LIBOR specified in or calculated in accordance with Section
1.03, plus 0.270% per annum, and (B) for any Distribution Date with respect to
which a Class AJ-FL Distribution Conversion does exist, the Pass-Through Rate
for the Class AJ-FL REMIC II Regular Interest for that Distribution Date.
(vii) with respect to the Class Y Certificates, (A) for any
Distribution Date prior to the Convertible Rate Mortgage Loan Conversion Date
with respect to the Convertible Rate Mortgage Loan, 0.0% per annum, and (B) for
any Distribution Date following the Convertible Rate Mortgage Loan
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Conversion Date with respect to the Convertible Rate Mortgage Loan, a per annum
rate equal to the excess, if any, of the Additional Interest Rate for the
Convertible Rate Mortgage Loan over the Mortgage Rate for the Convertible Rate
Mortgage Loan as of the Cut-off Date.
"P&I Advance": As to any Trust Mortgage Loan or Trust REO Loan, any
advance made by the applicable Master Servicer, the Trustee or any Fiscal Agent
pursuant to Section 4.03.
"P&I Advance Date": The Business Day immediately preceding each
Distribution Date.
"PCAOB": The Public Company Accounting Oversight Board.
"Penalty Interest": With respect to any Mortgage Loan (or any
successor REO Loan with respect thereto), any amounts collected thereon, other
than late payment charges, Additional Interest, Prepayment Premiums or Yield
Maintenance Charges, that represent penalty interest (arising out of a default)
in excess of interest on such Mortgage Loan (or such successor REO Loan) accrued
at the related Mortgage Rate.
"Percentage Interest": With respect to any Regular Certificate or
any Class A-2FL Certificate or Class AJ-FL Certificate, the portion of the
relevant Class evidenced by such Certificate, expressed as a percentage, the
numerator of which is the Certificate Principal Balance or Certificate Notional
Amount, as the case may be, of such Certificate as of the Closing Date, as
specified on the face thereof, and the denominator of which is the Original
Class Principal Balance or Original Notional Amount, as the case may be, of the
relevant Class. With respect to a Residual Certificate, Class Y Certificate or
Class Z 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": As defined in Section 8.16(b).
"Performing Mortgage Loan": Any Corrected Mortgage Loan and any
Mortgage Loan as to which a Servicing Transfer Event has never occurred.
"Performing Party": As defined in Section 8.16(b).
"Periodic Payment": With respect to any Mortgage Loan as of any Due
Date, the scheduled payment of principal and/or interest on such Mortgage Loan
(exclusive of Additional Interest), including any Balloon Payment, 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, waiver or amendment granted or agreed
to by the Special Servicer pursuant to Section 3.20) or, in the case of the
Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan, by the WBCMT
2007-C30 Applicable Servicer pursuant to the WBCMT 2007-C30 Pooling and
Servicing Agreement.
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Trustee or
one of its Affiliates 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
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(having original maturities of not more than 365 days), provided 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 agreements or obligations with respect to
any security described in clause (i) above (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 categories of each of Fitch and Xxxxx'x or
such lower rating as will not result in an Adverse Rating Event, as
evidenced in writing by the Rating Agencies; in addition, 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) federal funds, unsecured uncertified 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 categories
of each of Fitch and Xxxxx'x or such lower rating as will not result in an
Adverse Rating Event, as evidenced in writing by the Rating Agencies; in
addition, its terms should 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 (including both non-interest bearing
discount obligations and interest-bearing obligations and having original
maturities of not more than 365 days) of any corporation or other entity
organized under the laws of the United States or any state thereof which
is rated in the highest rating category of each of Fitch and Xxxxx'x or
such lower rating as will not result in an Adverse Rating Event, as
evidenced in writing by the Rating Agencies; the 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) money market funds which are rated in the highest
applicable rating category of each of Fitch and Xxxxx'x or such lower
rating as will not result in an Adverse Rating Event, as evidenced in
writing by the Rating Agencies; in addition, its terms must have a
predetermined fixed dollar amount of principal due at maturity that cannot
vary or change; and
(vi) any other obligation or security acceptable to each
Rating Agency, evidence of which acceptability shall be provided in
writing by each Rating Agency to the applicable Master Servicer, the
Special Servicer and the Trustee;
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; and (2) no investment described hereunder may be
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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.
"Permitted Transferee": Any Transferee that is not (i) a
Disqualified Organization, (ii) any Person as to whom the transfer of any
Residual Certificate may cause any of the REMIC I or REMIC II to fail to qualify
as a REMIC, (iii) a Disqualified Non-United States Tax Person, (iv) a
Disqualified Partnership or (v) a foreign permanent establishment or fixed base
(within the meaning of any applicable income tax treaty between the United
States and any foreign jurisdiction) of a United States Tax Person.
"Person": 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.
"Xxxxx Xxxxxx Village and Stuyvesant Town Intercreditor Agreement":
The A Notes Intercreditor Agreement, dated November 17, 2006, between the Trust
Fund as holder of the Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage
Loan and the related Non-Trust Noteholders.
"Xxxxx Xxxxxx Village and Stuyvesant Town Loan Combination":
Collectively, the Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan
and the Xxxxx Xxxxxx Village and Stuyvesant Town Pari Passu Non-Trust Loans. The
term "Xxxxx Xxxxxx Village and Stuyvesant Town Loan Combination" shall include
any successor REO Loans with respect to the Xxxxx Xxxxxx Village and Stuyvesant
Town Trust Mortgage Loan and the Xxxxx Xxxxxx Village and Stuyvesant Town Pari
Passu Non-Trust Loans.
"Xxxxx Xxxxxx Village and Stuyvesant Town Mortgaged Property": The
Mortgaged Property identified on the Mortgage Loan Schedule as The Xxxxx Xxxxxx
Village and Stuyvesant Town.
"Xxxxx Xxxxxx Village and Stuyvesant Town Pari Passu Non-Trust
Loans": The Mortgage Loan that is secured by the same Mortgage encumbering the
Xxxxx Xxxxxx Village and Stuyvesant Town Mortgaged Property as the Xxxxx Xxxxxx
Village and Stuyvesant Town Trust Mortgage Loan and pari passu in right of
payment and other respects to the Xxxxx Xxxxxx Village and Stuyvesant Town Trust
Mortgage Loan.
"Xxxxx Xxxxxx Village and Stuyvesant Town Pari Passu Noteholder":
Each holder of a Xxxxx Xxxxxx Village and Stuyvesant Town Pari Passu Non-Trust
Loan.
"Xxxxx Xxxxxx Village and Stuyvesant Town REO Property": With
respect to the Xxxxx Xxxxxx Village and Stuyvesant Town Loan Combination, the
related Loan Combination REO Property.
"Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan": The
Trust Mortgage Loan secured by the Xxxxx Xxxxxx Village and Stuyvesant Town
Mortgaged Property and included in the Trust Fund.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Certificateholder": As to any taxable year of
the REMIC I or REMIC II, the Holder of Certificates holding the largest
Percentage Interest of the related Class of Residual Certificates.
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"Plurality Subordinate Certificateholder": As of any date of
determination, any single Holder of Certificates of the Controlling Class (or,
if the Controlling Class consists of Book-Entry Certificates, any single
Certificate Owner) (other than any Holder (or Certificate Owner, as the case may
be) which is an Affiliate of the Depositor or a Mortgage Loan Seller) with the
largest percentage of Voting Rights allocated to such Class. With respect to
determining the Plurality Subordinate Certificateholder, the Class A Senior
Certificates collectively shall be deemed to be a single Class of Certificates,
with such Voting Rights allocated among the Holders of Certificates (or
Certificate Owners) of such Classes of Class A Senior Certificates in proportion
to the respective Certificate Principal Balances of such Certificates as of such
date of determination.
"Pool REO Account": A segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "LNR
Partners, Inc., as Special Servicer, for LaSalle Bank National Association, as
trustee in trust for the registered holders of ML-CFC Commercial Mortgage Trust
2007-6, Commercial Mortgage Pass-Through Certificates, Series 2007-6".
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, (i) each Trust ARD Loan is repaid
on its Anticipated Repayment Date, (ii) no Trust Mortgage Loan will otherwise be
paid prior to maturity and (iii) there will be no extension of maturity for any
Trust Mortgage Loan.
"Prepayment Interest Excess": With respect to: (a) any Serviced
Mortgage Loan that was subject to a voluntary Principal Prepayment in full or in
part during any Collection Period, which Principal Prepayment was applied to
such Mortgage Loan following such Mortgage Loan's Due Date in such Collection
Period, the amount of interest (net of the related Master Servicing Fee and, if
applicable, any Additional Interest and Penalty Interest) accrued on the amount
of such Principal Prepayment during the period from and after such Due Date and
to but not including the date such Principal Prepayment was applied to such
Mortgage Loan, to the extent collected (without regard to any related Prepayment
Premium or Yield Maintenance Charge actually collected); and (b) and the Xxxxx
Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan, if it was subject to a
voluntary Principal Prepayment in full or in part, which Principal Prepayment
was applied to such Mortgage Loan following such Mortgage Loan's Due Date in the
applicable Collection Period, the amount of interest (net of the related Master
Servicing Fee, the WBCMT Series 2007-C30 Servicing Fee and, if applicable, any
Additional Interest and Penalty Interest) accrued on the amount of such
Principal Prepayment during the period from and after such Due Date to but not
including the date such Principal Prepayment was applied to such Mortgage Loan,
to the extent collected by, and to the extent received from, the WBCMT Series
2007-C30 Master Servicer.
"Prepayment Interest Shortfall": With respect to: (a) any Serviced
Mortgage Loan that was subject to a voluntary Principal Prepayment in full or in
part during any Collection Period, which Principal Prepayment was applied to
such Mortgage Loan prior to such Mortgage Loan's Due Date in such Collection
Period, the amount of interest, to the extent not collected from the related
Mortgagor (without regard to any Prepayment Premium or Yield Maintenance Charge
actually collected), that would have accrued (at a rate per annum equal to the
sum of (x) the related Net Mortgage Rate for such Mortgage Loan and (y) the
Trustee Fee Rate) on the amount of such Principal Prepayment during the period
commencing on the date as of which such Principal Prepayment was applied to such
Mortgage Loan and ending on the day immediately preceding such Due Date,
inclusive (net of any portion of that
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interest that would have constituted Penalty Interest and/or Additional
Interest, if applicable); and (b) the Xxxxx Xxxxxx Village and Stuyvesant Town
Trust Mortgage Loan, if it was subject to a voluntary Principal Prepayment in
full or in part during any Collection Period, which Principal Prepayment was
applied to such Mortgage Loan prior to such Mortgage Loan's Due Date in such
Collection Period, the amount of interest, to the extent not collected from the
related Mortgagor by, and received from, the WBCMT 2007-C30 Master Servicer
(without regard to any Prepayment Premium or Yield Maintenance Charge actually
collected), that would have accrued (at a rate per annum equal to the sum of (x)
the related Net Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee
Rate) on the amount of such Principal Prepayment during the period commencing on
the date as of which such Principal Prepayment was applied to such Mortgage Loan
and ending on the day immediately preceding such Due Date, inclusive (net of any
portion of that interest that would have constituted Penalty Interest and/or
Additional Interest, if applicable).
"Prepayment Premium": Any premium, penalty or fee (other than a
Yield Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor in connection with a Principal Prepayment.
"Primary Collateral": The Mortgaged Property directly securing a
Crossed Loan and excluding any property as to which the related lien may only be
foreclosed upon by exercise of cross-collateralization provisions.
"Prime Rate": 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
Master Servicers (or, if the Master Servicers fail to agree, the Trustee) shall
select an equivalent publication that publishes such "prime rate"; and if such
"prime rate" is no longer generally published or is limited, regulated or
administered by a governmental or quasi-governmental body, then the Master
Servicers (or, if the Master Servicers fail to agree, the Trustee) shall agree
on and select a comparable interest rate index. Any such selection shall be made
in the reasonable discretion of the party(ies) making the selection, which
party(ies) shall notify the Trustee and the Special Servicer in writing of its
(their) selection.
"Principal Distribution Amount": With respect to any Distribution
Date, the aggregate of the following (without duplication):
(a) the aggregate of the principal portions of all Periodic
Payments (other than Balloon Payments) and any Assumed Periodic Payments due or
deemed due in respect of the Trust Mortgage Loans for their respective Due Dates
occurring during the related Collection Period, to the extent paid by the
related Mortgagor during or prior to, or otherwise received during, the related
Collection Period or advanced with respect to such Distribution Date;
(b) the aggregate of all Principal Prepayments received on the
Trust Mortgage Loans during the related Collection Period;
(c) with respect to any Trust Mortgage Loan as to which the
related Stated Maturity Date occurred during or prior to the related Collection
Period, any payment of principal (other than a Principal Prepayment) made by or
on behalf of the related Mortgagor during the related Collection Period
(including any Balloon Payment), net of any portion of such payment that
represents a recovery of the principal portion of any Periodic Payment (other
than a Balloon Payment) due, or the principal portion of any Assumed Periodic
Payment deemed due, in respect of such Trust Mortgage Loan on a
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Due Date during or prior to the related Collection Period and included as part
of the Principal Distribution Amount for such Distribution Date or any prior
Distribution Date pursuant to clause (a) above;
(d) the aggregate of all Liquidation Proceeds, Insurance Proceeds
and, to the extent not otherwise included in clause (a), (b) or (c) above,
payments and revenues that were received on the Trust Mortgage Loans during the
related Collection Period and that were identified and applied by the Master
Servicers and/or the Special Servicer (or, in the case of the Xxxxx Xxxxxx
Village and Stuyvesant Town Trust Mortgage Loan, if applicable, by the WBCMT
2007-C30 Applicable Servicer) as recoveries of principal of the Trust Mortgage
Loans, in each case net of any portion of such amounts that represents a
recovery of the principal portion of any Periodic Payment (other than a Balloon
Payment) due, or of the principal portion of any Assumed Periodic Payment deemed
due, in respect of the related Trust Mortgage Loan on a Due Date during or prior
to the related Collection Period and included as part of the Principal
Distribution Amount for such Distribution Date or any prior Distribution Date
pursuant to clause (a) above;
(e) with respect to any REO Properties, the aggregate of the
principal portions of all Assumed Periodic Payments deemed due in respect of the
related Trust REO Loans for their respective Due Dates occurring during the
related Collection Period to the extent received (in the form of REO Revenues or
otherwise) during the related Collection Period or advanced with respect to such
Distribution Date;
(f) with respect to any REO Properties, the aggregate of all
Liquidation Proceeds, Insurance Proceeds and REO Revenues that were received
during the related Collection Period on such REO Properties and that were
identified and applied by the Master Servicers and/or the Special Servicer (or,
in the case of the Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan,
if applicable, by the WBCMT 2007-C30 Applicable Servicer) as recoveries of
principal of the related Trust REO Loans, in each case net of any portion of
such amounts that represents a recovery of the principal portion of any Periodic
Payment (other than a Balloon Payment) due, or of the principal portion of any
Assumed Periodic Payment deemed due, in respect of the related Trust REO Loan or
the predecessor Trust Mortgage Loan on a Due Date during or prior to the related
Collection Period and included as part of the Principal Distribution Amount for
such Distribution Date or any prior Distribution Date pursuant to clause (a) or
(e) above; and
(g) if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal Distribution Amount for
the immediately preceding Distribution Date, over the aggregate distributions of
principal made on the Sequential Pay Certificates (exclusive of the Class A-2FL
Certificates and the Class AJ-FL Certificates), the Class A-2FL REMIC II Regular
Interest and the Class AJ-FL REMIC II Regular Interest on such immediately
preceding Distribution Date pursuant to Section 4.01;
provided that if any Nonrecoverable Advance or Workout-Delayed Reimbursement
Amount is reimbursed, or interest on any Nonrecoverable Advance is paid, from
collections on the Mortgage Pool received during the related Collection Period
that are allocable as principal, as provided in Section 1.02(a), then the
Principal Distribution Amount for the subject Distribution Date shall be reduced
(to not less than zero) as and to the extent provided in Section 1.02(b); and
provided, further, that if any Recovered Amounts are received during the related
Collection Period, then the Principal Distribution
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Amount for the subject Distribution Date shall be increased as and to the extent
provided in Section 1.02(c).
Any allocation of the Principal Distribution Amount between Loan
Group 1 and Loan Group 2 for purposes of calculating the Loan Group 1 Principal
Distribution Amount and the Loan Group 2 Distribution Amount shall take into
account Section 1.02.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan that is received in advance of its scheduled Due
Date; and provided that it shall not include a payment of principal that is
accompanied by an amount of interest representing scheduled interest due on any
date or dates in any month or months subsequent to the month of prepayment.
"Principal Recovery Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer out of
certain related recoveries pursuant to the third paragraph of Section 3.11(c).
"Principal Recovery Fee Rate": With respect to all amounts set forth
in the third paragraph of Section 3.11(c), 1.0%.
"Privileged Person": Any Certificateholder, any Certificate Owner,
any prospective transferee of a Certificate or interest therein, any Rating
Agency, any Mortgage Loan Seller, any Non-Trust Noteholder, any Underwriter or
any party hereto; provided that no Certificate Owner or prospective transferee
of a Certificate or an interest therein shall be considered a "Privileged
Person" or be entitled to a password or restricted access as contemplated by
Section 3.15 unless such Person has delivered to the Trustee or the applicable
Master Servicer, as the case may be, a certification in the form of Exhibit I-1
or Exhibit I-2 (or such other form as may be reasonably acceptable to the
Trustee or the applicable Master Servicer, as the case may be), as the case may
be.
"Proposed Plan": As defined in Section 3.17(a)(iii).
"Prospectus": The prospectus dated March 19, 2007, as supplemented
by the Prospectus Supplement, relating to the Registered Certificates.
"Prospectus Supplement": The final prospectus supplement dated March
19, 2007, of the Depositor relating to the registration of the Registered
Certificates under the Securities Act.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Option Notice": As defined in Section 3.18(e).
"Purchase Price": With respect to any Trust Mortgage Loan (or Trust
REO Loan), a cash price equal to the outstanding principal balance of such Trust
Mortgage Loan (or Trust REO Loan) as of the date of purchase, together with (a)
all accrued and unpaid interest on such Trust Mortgage Loan (or Trust REO Loan)
at the related Mortgage Rate (other than Additional Interest) to but not
including the Due Date in the Collection Period of purchase, (b) any accrued
interest on P&I Advances (other than Unliquidated Advances in respect of prior
P&I Advances) made with respect to such Trust Mortgage Loan (or Trust REO Loan),
(c) all related and unreimbursed (from collections on such Trust Mortgage Loan
and, if such Trust Mortgage Loan is part of a Loan Combination, any related
Non-Trust Loan (or Trust REO Loan and, if such Trust REO Loan is a successor to
a Trust Mortgage Loan that is part of a
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Loan Combination, any related REO Loan that is a successor to a related
Non-Trust Loan)) Servicing Advances (together with Unliquidated Advances) plus
any accrued and unpaid interest thereon (other than on Unliquidated Advances),
(d) any reasonable costs and expenses, including, but not limited to, the cost
of any enforcement action (including reasonable legal fees), incurred by the
applicable Master Servicer, the Special Servicer or the Trust Fund in connection
with any such purchase by a Mortgage Loan Seller (to the extent not included in
clause (c) above) and Principal Recovery Fees payable (to the extent payable
pursuant to Section 3.11(c)) with respect to such Trust Mortgage Loan (or Trust
REO Loan), and (e) any other Additional Trust Fund Expenses in respect of such
Trust Mortgage Loan (or Trust REO Loan) (including any Additional Trust Fund
Expenses (which includes Special Servicing Fees and Workout Fees) previously
reimbursed or paid by the Trust Fund but not so reimbursed by the related
Mortgagor or from related Insurance Proceeds or Liquidation Proceeds); provided
that the Purchase Price shall not be reduced by any outstanding P&I Advance.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer" or "QIB": A "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction (i) with a minimum claims paying ability rating of at least "A" by
Fitch and "A3" by Xxxxx'x (or the obligations of which are guaranteed or backed
by a company having such a claims paying ability) and (ii) with respect to the
fidelity bond and errors and omissions Insurance Policy required to be
maintained pursuant to Section 3.07(c), an insurance company that has a claims
paying ability rated no lower than two rating categories (without regard to
pluses or minuses or numerical qualifications) below the rating assigned to the
then highest rated outstanding Certificate, but in no event lower than "A" by
Fitch and "A3" by Xxxxx'x (or the obligations of which are guaranteed or backed
by a company having such a claims paying ability) or, in the case of clauses (i)
and (ii), such other rating as each Rating Agency shall have confirmed in
writing will not result in an Adverse Rating Event.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, not in excess of the Stated Principal
Balance of the deleted Trust Mortgage Loan as of the Due Date in the calendar
month during which the substitution occurs; (ii) have a Mortgage Rate not less
than the Mortgage Rate of the deleted Trust Mortgage Loan; (iii) have the same
Due Date as and a grace period no longer than the deleted Trust Mortgage Loan;
(iv) accrue interest on the same basis as the deleted Trust Mortgage Loan (for
example, on the basis of a 360-day year consisting of twelve 30-day months); (v)
have a remaining term to stated maturity not greater than, and not more than two
years less than, the remaining term to stated maturity of the deleted Trust
Mortgage Loan; (vi) have a then current Loan-to-Value Ratio not higher than that
of the deleted Trust Mortgage Loan and a current Loan-to-Value Ratio not higher
than the then current Loan-to-Value Ratio of the deleted Trust Mortgage Loan;
(vii) comply as of the date of substitution with all of the representations and
warranties set forth in the applicable Mortgage Loan Purchase Agreement; (viii)
have an Environmental Assessment that indicates no adverse environmental
conditions and an engineering report that indicates no adverse physical
condition with respect to the related Mortgaged Property and which will be
delivered as a part of the related Mortgage File; (ix) have a current Debt
Service Coverage Ratio of not less than the greater of the original Debt Service
Coverage Ratio of the deleted Trust Mortgage Loan and the current Debt Service
Coverage Ratio of the deleted
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Trust Mortgage Loan; (x) be determined by an Opinion of Counsel (at the
applicable Mortgage Loan Seller's expense) to be a "qualified replacement
mortgage" within the meaning of Section 860G(a)(4) of the Code; (xi) not have a
maturity date after the date two years prior to the Rated Final Distribution
Date; (xii) not be substituted for a deleted Trust Mortgage Loan unless the
Trustee has received prior confirmation in writing by each Rating Agency that
such substitution will not result in an Adverse Rating Event (the cost, if any,
of obtaining such confirmation to be paid by the applicable Mortgage Loan
Seller); (xiii) have a date of origination that is not more than 12 months prior
to the date of substitution; (xiv) have been approved by the Controlling Class
Representative (or, if there is no Controlling Class Representative then
serving, by the Holders of Certificates representing a majority of the Voting
Rights allocated to the Controlling Class), which approval may not be
unreasonably withheld or delayed; (xv) not be substituted for a deleted Trust
Mortgage Loan if it would result in the termination of the REMIC status of any
of the REMICs established under this Agreement or the imposition of tax on any
of such REMICs other than a tax on income expressly permitted or contemplated to
be received by the terms of this Agreement, as determined by an Opinion of
Counsel (at the applicable Mortgage Loan Seller's expense); (xvi) have
comparable prepayment restrictions; and (xvii) become a part of the same Loan
Group as the deleted Trust Mortgage Loan. In the event that one or more mortgage
loans are substituted for one or more deleted Trust Mortgage Loans, then the
amounts described in clause (i) shall be determined on the basis of aggregate
principal balances and the rates described in clause (ii) above (provided that
the lowest Net Mortgage Rate shall not be lower than the highest fixed
Pass-Through Rate of any Class of Sequential Pay Certificates outstanding) and
the remaining term to stated maturity referred to in clause (v) above shall be
determined on a weighted average basis. When a Qualified Substitute Mortgage
Loan is substituted for a deleted Trust Mortgage Loan, the applicable Mortgage
Loan Seller shall certify that the proposed Qualified Substitute Mortgage Loan
meets all of the requirements of the above definition and shall send such
certification to the Trustee.
"Rated Final Distribution Date": The Distribution Date in March
2051.
"Rating Agency": Either Fitch or Xxxxx'x.
"Realized Loss": With respect to: (1) each Specially Serviced
Mortgage Loan or Corrected Mortgage Loan as to which a Final Recovery
Determination has been made, or with respect to any successor REO Loan as to
which a Final Recovery Determination has been made as to the related REO
Property and with respect to the Xxxxx Xxxxxx Village and Stuyvesant Town Trust
Mortgage Loan or any successor Trust REO Loan with respect thereto, if a Final
Recovery Determination has been made in respect thereof by the WBCMT 2007-C30
Special Servicer, an amount (not less than zero) equal to (a) 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, plus (b) without taking into account the amount
described in subclause (1)(d) of this definition, all accrued but unpaid
interest on such Mortgage Loan or such REO Loan, as the case may be, at the
related Mortgage Rate to but not including the Due Date in the Collection Period
in which the Final Recovery Determination was made (exclusive of any portion
thereof that constitutes Penalty Interest, Additional Interest, Prepayment
Premiums or Yield Maintenance Charges), plus (c) any related unpaid servicing
expenses, any related Servicing Advances (together with Unliquidated Advances in
respect of prior related Servicing Advances) that, as of the commencement of the
Collection Period in which the Final Recovery Determination was made, had not
been reimbursed from the subject Mortgage Loan or REO Property, as the case may
be, and any new related Servicing Advances made during such Collection Period,
minus (d) all payments and proceeds, if any, received in respect of and
allocable to such Mortgage Loan or such REO Loan, as the case may be, during the
Collection Period in which such Final
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Recovery Determination was made net of any portion of such payments and/or
proceeds that is payable or reimbursable in respect of the related liquidation
and other servicing expenses and, in the case of a Mortgage Loan or REO Loan
that is part of a Loan Combination, net of any portion of such payments and/or
proceeds that represent Liquidation Proceeds payable to the holder(s) of the
other Mortgage Loan(s) in that Loan Combination; (2) each defaulted Mortgage
Loan as to which any portion of the principal or previously accrued interest
(other than Additional Interest and Penalty Interest) payable thereunder or any
Unliquidated Advance was canceled in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Special Servicer
pursuant to Section 3.20 (or, in the case of the Xxxxx Xxxxxx Village and
Stuyvesant Town Trust Mortgage Loan, by the WBCMT 2007-C30 Applicable Servicer
pursuant to the WBCMT 2007-C30 Pooling and Servicing Agreement), the amount of
such principal and/or interest or Unliquidated Advance so canceled; (3) 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, waiver or
amendment of such Mortgage Loan granted or agreed to by the Special Servicer
pursuant to Section 3.20 (or, in the case of the Xxxxx Xxxxxx Village and
Stuyvesant Town Trust Mortgage Loan, by the WBCMT 2007-C30 Applicable Servicer
pursuant to the WBCMT 2007-C30 Pooling and Servicing Agreement), the amount of
the consequent reduction in the interest portion of each successive Periodic
Payment due thereon (each such Realized Loss shall be deemed to have been
incurred on the Due Date for each affected Periodic Payment); (4) each Trust
Mortgage Loan or Trust REO Loan as to which there were any Nonrecoverable
Advances, the amount of any such Nonrecoverable Advance reimbursed (and/or
interest thereon paid) from amounts that would have otherwise been distributable
as principal on the Certificates; and (5) each Trust Mortgage Loan purchased
from the Trust Fund at a price less than the Purchase Price therefor, the amount
of the deficiency.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Recording/Filing Agent": As defined in Section 2.01(d).
"Recovered Amount": As defined in Section 1.02(c).
"Registered Certificate": Any Class A-1, Class A-2, Class A-3, Class
A-4, Class A-1A, Class AM, Class AJ, Class B, Class C or Class D Certificate.
"Regular Certificate": Any REMIC II Certificate other than a Class
R-II Certificate.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506- 1,631 (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": Regulation S under the Securities Act.
"Regulation S Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside of the United
States in reliance on Regulation S, one or collectively more global Certificates
of such Class registered in the name of the Depository or its
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nominee, in definitive, fully registered form without interest coupons, each of
which Certificates bears a Regulation S CUSIP number.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and on P&I
Advances in accordance with Section 4.03(d), which rate per annum is equal to
the Prime Rate.
"Relevant Servicing Criteria": The Servicing Criteria applicable to
the various parties, as set forth on Exhibit L attached hereto. For
clarification purposes, multiple parties can have responsibility for the same
Relevant Servicing Criteria. With respect to a Sub-Servicing Function
Participant engaged by the Trustee, either Master Servicer or the Special
Servicer, the term "Relevant Servicing Criteria" may refer to a portion of the
Relevant Servicing Criteria applicable to such Master Servicer, the Special
Servicer or the Trustee.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Administrator": The Trustee or any REMIC administrator
appointed pursuant to Section 8.14.
"REMIC I": The segregated pool of assets subject hereto,
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) all of the Trust Mortgage Loans as from time to time are subject to this
Agreement and all payments under and proceeds of such Trust Mortgage Loans
received after the Closing Date (excluding the Excess Servicing Strip and all
ARD Loan Additional Interest on such Trust Mortgage Loans), together with all
documents included in the related Mortgage Files and any related Escrow Payments
and Reserve Funds; (ii) all amounts (exclusive of the Excess Servicing Strip and
all ARD Loan Additional Interest) held from time to time in the Collection
Accounts, the Interest Reserve Account, any Pool REO Account, the Gain-on-Sale
Reserve Account, any Loan Combination Custodial Account and the Distribution
Account; (iii) any REO Property acquired in respect of a Trust Mortgage Loan
(or, in the case of the Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage
Loan, the rights of the holder thereof with respect to any related Xxxxx Xxxxxx
Village and Stuyvesant Town REO Property under the WBCMT 2007-C30 Pooling and
Servicing Agreement); (iv) the rights of the Depositor under Sections 2, 3, 8,
10, 11, 12, 13, 14, 15, 17, 18, 20 and 21 of each of the Mortgage Loan Purchase
Agreements with respect to the Trust Mortgage Loans; and (v) the rights of the
mortgagee under all Insurance Policies with respect to the Trust Mortgage Loans;
provided that REMIC I shall not include any Non-Trust Loan or any successor REO
Loan with respect thereto or any payments or other collections of principal,
interest, Prepayment Premiums, Yield Maintenance Charges or other amounts
collected on a Non-Trust Loan or any successor REO Loan with respect thereto.
"REMIC I Principal Balance": The principal amount of any REMIC I
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the initial REMIC I Principal Balance of each REMIC I Regular Interest
shall be the amount set forth as such in the Preliminary Statement hereto. On
each Distribution Date, the REMIC I Principal Balance of each REMIC I Regular
Interest shall be permanently reduced by all distributions of principal deemed
to have been made in respect of such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.01(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 the first paragraph of Section 4.04(b). The REMIC I Principal
Balance of a REMIC I Regular Interest shall
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be increased, pursuant to the second paragraph of Section 4.04(b), in connection
with increases in the Class Principal Balance of the Corresponding Certificates
as contemplated by the second paragraph of Section 4.04(a).
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I, as described in the Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest, for any Distribution Date, the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
"REMIC II": The segregated pool of assets consisting of all of the
REMIC I Regular Interests and all amounts held from time to time, to the extent
related to REMIC II, in the Distribution Account conveyed in trust to the
Trustee for the benefit of REMIC II, as holder of the REMIC I Regular Interests,
and the Holders of the Class R-II Certificates pursuant to Section 2.07, with
respect to which a separate REMIC election is to be made.
"REMIC II Certificate": Any Class A-1, Class A-2, Class A-3, Class
A-4, Class A-1A, Class AM, Class AJ, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P, Class
Q, Class X, Class Y or Class R-II Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, 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": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": The Pool REO Account or any Loan Combination REO
Account, as applicable.
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09 or, in the case of the Xxxxx Xxxxxx Village and Stuyvesant Town
Mortgaged Property, pursuant to the WBCMT 2007-C30 Pooling and Servicing
Agreement.
"REO Disposition": The sale or other disposition of any REO Property
pursuant to Section 3.18 or, in the case of the Xxxxx Xxxxxx Village and
Stuyvesant Town Mortgaged Property, pursuant to the WBCMT 2007-C30 Pooling and
Servicing Agreement.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan (or, if a Loan Combination is
involved, any of the multiple Mortgage Loans comprising the subject Loan
Combination) deemed for purposes hereof to be outstanding with respect to each
REO Property. Each REO Loan shall be deemed to be outstanding for so long as the
related REO Property (or an interest therein) remains part of REMIC I and shall
be deemed to provide for periodic payments of principal and/or interest equal to
its Assumed Periodic Payment and otherwise to have the same terms and conditions
as its predecessor Mortgage Loan (such
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terms and conditions to be applied without regard to the default on such
predecessor Mortgage Loan and the acquisition of the related REO Property as
part of the Trust Fund or, if applicable in the case of any Loan Combination REO
Property, on behalf of the Trust and the related Non-Trust Noteholder(s)). 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 Mortgage Loan as of the date of the
related REO Acquisition. All Periodic Payments (other than a Balloon Payment),
Assumed Periodic 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 Mortgage Loan as of the date of the related
REO Acquisition, shall be deemed to continue to be due and owing in respect of
an REO Loan. Collections in respect of each REO Loan (after provision for
amounts to be applied to the payment of, or to be reimbursed to, the applicable
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent for the
payment of, the costs of operating, managing, selling, leasing and maintaining
the related REO Property or for the reimbursement of or payment to the
applicable Master Servicer, the Special Servicer, the Trustee or any Fiscal
Agent for other related Servicing Advances as provided in this Agreement,
interest on such Advances and other related Additional Trust Fund Expenses)
shall be treated: first, as a recovery of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts (and interest thereon) with respect to
such REO Loan that were repaid from principal collections on the Mortgage Pool
(including Unliquidated Advances) and resulted in principal distributed to the
Certificateholders being reduced; second, as a recovery of accrued and unpaid
interest on such REO Loan at the related Mortgage Rate (in the case of the Trust
REO Loan that relates to the Xxxxx Xxxxxx Village and Stuyvesant Town Trust
Mortgage Loan, net of the WBCMT 2007-C30 Servicing Fee) to but not including the
Due Date in the Collection Period of receipt (exclusive of any portion thereof
that constitutes Additional Interest); third, as a recovery of principal of such
REO Loan to the extent of its entire unpaid principal balance; and fourth, in
accordance with the normal servicing practices of the applicable Master
Servicer, as a recovery of any other amounts due and owing in respect of such
REO Loan, including, without limitation, (i) Yield Maintenance Charges,
Prepayment Premiums and Penalty Interest and (ii) Additional Interest and other
amounts, in that order; provided, however, that if the Mortgage Loans comprising
a Loan Combination become REO Loans, then 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 Loan Combination Intercreditor Agreement.
Notwithstanding the foregoing, all amounts payable or reimbursable to the
applicable Master Servicer, the Special Servicer, the Trustee or any Fiscal
Agent, as the case may be, in respect of the predecessor Mortgage Loan as of the
date of the related REO Acquisition, including, without limitation, any unpaid
Servicing Fees and any unreimbursed Advances, together with any interest accrued
and payable to the applicable Master Servicer, the Special Servicer, the Trustee
or any Fiscal Agent, as the case may be, in respect of such Advances in
accordance with Sections 3.03(d) and 4.03(d), shall continue to be payable or
reimbursable to the applicable Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent, as the case may be, in respect of an REO Loan
pursuant to Section 3.05(a). In addition, Workout-Delayed Reimbursement Amounts
and Nonrecoverable Advances with respect to such REO Loan, in each case, that
were paid from collections on the Trust Mortgage Loans and resulted in principal
distributed to the Certificateholders being reduced as a result of the first
proviso in the definition of "Principal Distribution Amount", shall be deemed
outstanding until recovered.
"REO Property": With respect to any Mortgage Loan (other than a
Mortgage Loan constituting part of a Loan Combination), a Mortgaged Property
acquired on behalf and in the name of the Trust Fund for the benefit of the
Certificateholders through foreclosure, acceptance of a deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in connection with
the default or
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imminent default of a Mortgage Loan; and with respect to a Loan Combination, the
related Loan Combination REO Property; and with respect to the Xxxxx Xxxxxx
Village and Stuyvesant Town Loan Combination, the Xxxxx Xxxxxx Village and
Stuyvesant Town REO Property; provided that the Xxxxx Xxxxxx Village and
Stuyvesant Town Mortgaged Property shall constitute an REO Property if acquired
under the WBCMT 2007-C30 Pooling and Servicing Agreement for the benefit of all
the related Non-Trust Noteholders and the Trust, as their interests may appear,
through foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in connection with a default or imminent default
of the Xxxxx Xxxxxx Village and Stuyvesant Town Loan Combination.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"REO Tax": As defined in Section 3.17(a)(i).
"Request for Release": A request signed by a Servicing Officer, as
applicable, of either Master Servicer in the form of Exhibit D-1 attached hereto
or of the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal": With respect to each Required Appraisal
Mortgage Loan, an appraisal of the related Mortgaged Property from an
Independent Appraiser selected by the Special Servicer, prepared in accordance
with 12 C.F.R. ss. 225.64 and conducted in accordance with the standards of the
Appraisal Institute.
"Required Appraisal Mortgage Loan": Each Serviced Trust Mortgage
Loan (or, in the case of clause (ii) below, any successor Trust REO Loan with
respect thereto) (i) that is 60 days or more delinquent in respect of any
Periodic Payments, (ii) that becomes an REO Loan, (iii) that has been modified
by the Special Servicer in a manner that affects the amount or timing of any
Periodic Payment (other than a Balloon Payment) (except, or in addition to,
bringing monthly Periodic Payments current and extending the Maturity Date for
less than six months), (iv) 60 days following the receipt by the Special
Servicer of notice that a receiver has been appointed and continues in such
capacity in respect of the related Mortgaged Property, (v) 60 days following the
receipt by the Special Servicer of notice that the related Mortgagor has become
the subject of a bankruptcy proceeding, or (vi) delinquent in respect of any
Balloon Payment unless (x) the related Mortgagor makes an Assumed Periodic
Payment on each Due Date (commencing with the Due Date of such Balloon Payment)
during the period contemplated in clause (y), and (y) the applicable Master
Servicer receives, within 60 days after the Due Date of such Balloon Payment,
written evidence from an institutional lender of such lender's binding
commitment to refinance such Trust Mortgage Loan within 120 days after the Due
Date of such Balloon Payment and either such 120-day period has not expired or
it has not been determined, in accordance with the definition of "Specially
Serviced Mortgage Loan" that the refinancing could not reasonably be expected to
occur; provided, however, that a Required Appraisal Mortgage Loan shall cease to
be a Required Appraisal Mortgage Loan::
(a) with respect to the circumstances described in clauses (i) and
(iii) above, when the related Mortgagor has made three consecutive full and
timely Periodic Payments under the terms of such Trust Mortgage Loan (as such
terms may be changed or modified in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or by reason of a modification,
waiver or amendment granted or agreed to by the Special Servicer pursuant to
Section 3.20); and
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(b) with respect to the circumstances described in clauses (iv),
(v) and (vi) above, when such circumstances cease to exist in the reasonable
judgment of the Special Servicer (exercised in accordance with the Servicing
Standard), but, with respect to any bankruptcy or insolvency proceedings
described in clauses (iv) and (v), no later than the entry of an order or decree
dismissing such proceeding, and with respect to the circumstances described in
clause (vi) above, no later than the date that the Special Servicer agrees to an
extension pursuant to Section 3.20 hereof;
so long as at that time no circumstance identified in clauses (i) through (vi)
above exists that would cause the Trust Mortgage Loan to continue to be
characterized as a Required Appraisal Mortgage Loan. For purposes of the
foregoing, each Loan Combination shall be treated as a single Mortgage Loan.
"Required Appraisal Value": With respect to any Mortgaged Property
or REO Property related to a Required Appraisal Mortgage Loan, 90% of an amount
equal to (A) subject to reduction by the Special Servicer in accordance with
Section 3.09(a), the Appraised Value of such Mortgaged Property or REO Property,
as the case may be, as determined by a Required Appraisal or letter update or
internal valuation, if applicable, reduced by (B) the amount of any obligations
secured by liens on such Mortgaged Property that are prior to the lien of such
Required Appraisal Mortgage Loan and estimated liquidation expenses; provided,
however, that for purposes of determining any Appraisal Reduction Amount in
respect of such Required Appraisal Mortgage Loan, such Appraisal Reduction
Amount shall be amended no less often than annually to reflect the Required
Appraisal Value determined pursuant to any Required Appraisal or letter update
of a Required Appraisal or internal valuation, if applicable conducted
subsequent to the original Required Appraisal performed pursuant to Section
3.09(a).
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(f).
"Reserve Funds": With respect to any Serviced Mortgage Loan, any
amounts delivered by the related Mortgagor to be held in escrow by or on behalf
of the mortgagee representing reserves for environmental remediation, repairs,
capital improvements, tenant improvements and/or leasing commissions with
respect to the related Mortgaged Property.
"Residual Certificate": A Class R-I or Class R-II Certificate.
"Responsible Officer": When used with respect to (i) the initial
Trustee, any officer in the Global Securities and Trust Services Group of the
initial Trustee, (ii) any successor Trustee, any officer or assistant officer in
the corporate trust department of the Trustee, or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers to whom a particular matter is
referred by the Trustee because of such officer's knowledge of and familiarity
with the particular subject, and (iii) any Fiscal Agent, any officer thereof.
"Restricted Reports": Collectively, to the extent not filed with the
Commission, the CMSA Servicer Watch List, the CMSA Appraisal Reduction Template,
the CMSA Special Servicer Loan File, the CMSA Operating Statement Analysis
Report, the CMSA NOI Adjustment Worksheet, the CMSA Financial File, the CMSA
Comparative Financial Status Report, the CMSA Loan Level Reserve/LOC Report and
the CMSA Reconciliation of Funds Report.
"Rule 144A Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates, one or collectively more global
certificates representing such Class
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registered in the name of the Depository or its nominee, in definitive, fully
registered form without interest coupons, and each of which certificates has a
Rule 144A CUSIP number.
"Xxxxxxxx-Xxxxx Certification": As defined in Section 8.16(a)(iv).
"Scheduled Payment": With respect to any Mortgage Loan, for any Due
Date following the Cut-off Date as of which it is outstanding, the scheduled
Periodic Payment of principal and interest (other than Additional Interest) on
such Mortgage Loan that is or would be, as the case may be, payable by the
related Mortgagor on such Due Date under the terms of the related Mortgage Note
as in effect on the Closing Date, without regard to any subsequent change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20 (or, in the case of the Xxxxx Xxxxxx Village and Stuyvesant Town Trust
Mortgage Loan by the WBCMT 2007-C30 Special Servicer pursuant to the WBCMT
2007-C30 Pooling and Servicing Agreement) or acceleration of principal by reason
of default, and assuming that each prior Scheduled Payment has been made in a
timely manner; provided, however, that if the related loan documents for a Loan
Combination provide for a single monthly debt service payment for such Loan
Combination, then the Scheduled Payment for each Mortgage Loan comprising such
Loan Combination for any Due Date shall be that portion of the monthly debt
service payment for such Loan Combination and such Due Date that is, in
accordance with the related loan documents and/or the related Loan Combination
Intercreditor Agreement, in the absence of default, allocable to interest at the
related Mortgage Rate on and/or principal of each such Mortgage Loan comprising
the subject Loan Combination.
"Securities Act": The Securities Act of 1933, as amended.
"Senior Certificate": Any Class A-1, Class A-2, Class A-2FL, Class
A-3, Class A-4, Class A-1A or Class X Certificate.
"Sequential Pay Certificate": Any Class A-1, Class A-2, Class A-2FL,
Class X-0, Xxxxx X-0, Class A-1A, Class AM, Class AJ, Class AJ-FL, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class P or Class Q Certificate.
"Serviced Mortgage Loan": Each Mortgage Loan (including a Specially
Serviced Mortgage Loan, but excluding an REO Loan) other than any Mortgage Loan
constituting part of the Xxxxx Xxxxxx Village and Stuyvesant Town Loan
Combination.
"Serviced Mortgaged Property": The Mortgaged Property securing a
Serviced Mortgage Loan.
"Serviced REO Loan": An REO Loan deemed to be outstanding in respect
of a Serviced Mortgaged Property.
"Serviced Trust Defaulted Mortgage Loan": A Defaulted Mortgage Loan
that is a Trust Mortgage Loan and a Serviced Mortgage Loan.
"Serviced Trust Mortgage Loan": Any Trust Mortgage Loan that is a
Serviced Mortgage Loan.
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"Servicer": Any Person that constitutes a "servicer", as defined in
Item 1101(j) of Regulation AB, with respect to the Subject Securitization
Transaction.
"Servicer Notice": As defined in Section 3.14.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees and expenses and fees
of real estate brokers) incurred by or on behalf of the applicable Master
Servicer, the Special Servicer, the Trustee or any Fiscal Agent in connection
with the servicing of a Serviced Mortgage Loan, if a default is imminent
thereunder or after a default, delinquency or other unanticipated event, or in
connection with the administration of any Administered REO Property, including,
but not limited to, the cost of (a) compliance with the obligations of the
applicable Master Servicer and the Special Servicer, if any, set forth in
Section 3.02 and 3.03, (b) (i) real estate taxes, assessments, penalties and
other similar items, (ii) ground rents (if applicable), and (iii) premiums on
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, (c)
the preservation, insurance, restoration, protection and management of a
Mortgaged Property, including the cost of any "force placed" insurance policy
purchased by the applicable Master Servicer or the Special Servicer to the
extent such cost is allocable to a particular Mortgaged Property that the
applicable Master Servicer or the Special Servicer is required to cause to be
insured pursuant to Section 3.07(a), (d) obtaining any Insurance Proceeds or any
Liquidation Proceeds of the nature described in clauses (i)-(iii), (v), (vii)
and (viii) of the definition of "Liquidation Proceeds," (e) any enforcement or
judicial proceedings with respect to a Mortgaged Property, including, without
limitation, foreclosures, (f) any Required Appraisal or other appraisal
expressly required or permitted to be obtained hereunder, (g) the operation,
management, maintenance and liquidation of any REO Property, including, without
limitation, appraisals and compliance with Section 3.16(a) (to the extent not
covered by available funds in the applicable REO Account), (h) obtaining related
ratings confirmation (to the extent not paid by the related Mortgagor), (i) UCC
filings (to the extent not reimbursed by the Mortgagor), (j) compliance with the
obligations of the applicable Master Servicer or the Trustee set forth in
Section 2.03(a) or (b) and (k) any other expenditure expressly designated as a
Servicing Advance under this Agreement. Notwithstanding anything to the
contrary, "Servicing Advances" shall not include allocable overhead of the
applicable Master Servicer or the Special Servicer, 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 a Mortgage Loan or
REO Property, or costs or expenses expressly required to be borne by the
applicable Master Servicer or the Special Servicer without reimbursement
pursuant to the terms of this Agreement.
"Servicing Criteria": The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time.
"Servicing Fees": With respect to each Serviced Mortgage Loan and
any successor REO Loan with respect thereto, the Master Servicing Fee and the
Special Servicing Fee. With respect to the Xxxxx Xxxxxx Village and Stuyvesant
Town Trust Mortgage Loan, the Master Servicing Fee and the WBCMT 2007-C30
Servicing Fee.
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"Servicing File": Any documents, certificates, opinions and reports
(other than documents required to be part of the related Mortgage File)
delivered by the related Mortgagor in connection with, or relating to, the
origination and servicing of any Mortgage Loan, and that are reasonably required
for the ongoing administration of the Mortgage Loan, including appraisals,
surveys, property inspection reports, engineering reports, environmental
reports, financial statements, leases, rent rolls and tenant estoppels.
"Servicing Function Participant": Any of: (i) Master Servicer No. 1
or Master Servicer No. 2; (ii) the Special Servicer; (iii) the Trustee; and (iv)
any other party hereto, in addition to the Master Servicers, the Special
Servicer and the Trustee, that is a "party participating in the servicing
function" (within the meaning of the instructions to Item 1122 of Regulation AB)
as regards the Trust Fund.
"Servicing Officer": Any officer or employee of either Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by such party to the
Trustee and the Depositor on the Closing Date, as such list may be amended from
time to time.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing Representative": With respect to either Master Servicer,
the Special Servicer or the Trustee, any other Person (including any
Sub-Servicer, subcontractor, vendor or agent) retained or engaged thereby to
perform any duties in connection with this Agreement or all or any portion of
the Trust Fund, the performance of which duties would cause such other Person to
be, or result in such other Person being, a Servicer or a Sub-Servicing Function
Participant.
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standard": With respect to either Master Servicer or the
Special Servicer, as applicable, the servicing and administration of the
Serviced Mortgage Loans (including any Non-Trust Loans) for which it is
responsible hereunder (a) in the same manner in which, and with the same care,
skill, prudence and diligence with which, such Master Servicer or the Special
Servicer, as the case may be, generally services and administers similar
mortgage loans (i) for other third parties, giving due consideration to
customary and usual standards of practice of prudent institutional commercial
mortgage loan servicers servicing mortgage loans for third parties or (ii) held
in its own portfolio, whichever standard is higher, (b) with a view to (i) the
timely recovery of all Scheduled Payments of principal and interest under the
Serviced Mortgage Loans, (ii) in the case of the Special Servicer, if a Serviced
Mortgage Loan comes into and continues in default, the maximization of the
recovery on that Serviced Mortgage Loan to the Certificateholders or, in the
case of any Loan Combination, to the Certificateholders and the related
Non-Trust Noteholder(s) (as a collective whole) on a net present value basis
(the relevant discounting of anticipated collections to be performed at the
related Mortgage Rate) and (iii) the best interests (as determined by the
applicable Master Servicer or the Special Servicer, as the case may be, in its
reasonable judgment) of the Certificateholders and the Trust Fund (or, in the
case of any Loan Combination, the Certificateholders, the Trust Fund and the
related Non-Trust Noteholder(s), taking into account, if applicable and to the
extent consistent with the related Loan Combination Intercreditor Agreement and
the related Mortgage Loan documents, the subordinate nature, if applicable, of
the related Non-Trust Loan(s) and (c) without regard to (i) any relationship
that such Master Servicer or the Special Servicer, as the case may be, or any
Affiliate thereof may have with the related Mortgagor (or any Affiliate
thereof), the Depositor, any Mortgage Loan Seller, or any other party
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to the transactions contemplated hereby; (ii) the ownership of any Certificate
or interest in any mezzanine loan or Non-Trust Loan by such Master Servicer or
the Special Servicer, as the case may be, or by any Affiliate thereof; (iii) the
right of such Master Servicer or the Special Servicer, as the case may be, to
receive compensation or other fees for its services rendered pursuant to this
Agreement; (iv) the obligations of such Master Servicer or the Special Servicer,
as the case may be, to make Advances; (v) the ownership, servicing or management
by such Master Servicer or the Special Servicer or any Affiliate thereof for
others of any other mortgage loans or mortgaged property not included in or
securing, as the case may be, the Mortgage Pool; (vi) any obligation of such
Master Servicer or any Affiliate of such Master Servicer to repurchase or
substitute a Mortgage Loan as a Mortgage Loan Seller; (vii) any obligation of
such Master Servicer or any Affiliate of such Master Servicer to cure a breach
of a representation and warranty with respect to a Mortgage Loan; and (viii) any
debt such Master Servicer or the Special Servicer or any Affiliate of either has
extended to any Mortgagor or any Affiliate thereof.
"Servicing Transfer Event": With respect to any Serviced Mortgage
Loan, the occurrence of any of the events described in clauses (a) through (g)
of the definition of "Specially Serviced Mortgage Loan".
"Significant Mortgage Loan": At any time of determination, any
Mortgage Loan that (1) has a principal balance equal to or greater than the
applicable Threshold Principal Balance at the time of determination or has,
whether (a) individually, (b) as part of a Crossed Loan Group or (c) as part of
a group of Mortgage Loans made to affiliated Mortgagors, (2) has a principal
balance that is equal to or greater than the applicable Threshold Percentage of
the aggregate outstanding principal balance of the Mortgage Pool at the time of
determination or (3) is one of the 10 largest Mortgage Loans (which for the
purposes of this definition shall include Crossed Loan Groups and groups of
Mortgage Loans made to affiliated Mortgagors) by outstanding principal balance
at such time. For purposes of the preceding sentence, the "Threshold Principal
Balance" and "Threshold Percentage" shall be (a) $25,000,000 and 5%,
respectively, with respect to any "due-on-sale" or "due-on-encumbrance"
provision with respect to a Significant Mortgage Loan, and (b) with respect to
Sections 3.20(i) and 3.20 (k) hereof, $20,000,000 and 5%, respectively; provided
that, notwithstanding the foregoing, any Mortgage Loan with an outstanding
principal balance (whether (a) individually, (b) as part of a Crossed Loan Group
or (c) as part of a group of Mortgage Loans made to affiliated Mortgagors) of
$5,000,000 or less shall not be a Significant Mortgage Loan.
"Significant Obligor": (a) Any obligor (as defined in Item 1101(k)
of Regulation AB) or group of affiliated obligors on any Trust Mortgage Loan or
group of Trust Mortgage Loans that represent, as of the Closing Date, 10% or
more of the Mortgage Pool (by Cut-off Date Balance); or (b) any single Mortgaged
Property or group of Mortgaged Properties securing any Trust Mortgage Loan or
group of cross-collateralized and/or cross-defaulted Trust Mortgage Loans that
represent, as of the Closing Date, 10% or more of the Mortgage Pool (by Cut-off
Date Balance). The Trust Mortgage Loans (loan numbers 1 and 7) identified on the
Mortgage Loan Schedule by property names MSKP Retail Portfolio-A and MSKP Retail
Portfolio B are Significant Obligors.
"Similar Law": As defined in Section 5.02(c).
"Single Certificate": For purposes of Section 4.02, a hypothetical
Certificate of any Class of Regular Certificates, the Class A-2FL Certificates
or the Class AJ-FL Certificates, evidencing a $1,000 denomination.
"Sole Certificate Owner": As defined in Section 9.01.
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"Special Servicer": LNR, or any successor special servicer appointed
as herein provided.
"Special Servicer Indemnification Agreement": That certain Special
Servicer Indemnification Agreement, dated as of March 30, 2007, between LNR, the
Depositor, the Underwriters and the Initial Purchasers.
"Special Servicer Reportable Event": Any of the following events,
conditions, circumstances and/or matters:
(i) the entry into or amendment to a definitive agreement
that is material to the Subject Securitization Transaction, including, for
example, a servicing agreement with a Servicer contemplated by Item
1108(a)(3) of Regulation AB, but only if the Special Servicer or any
Servicing Representative of the Special Servicer is a party to such
agreement or has entered into such agreement on behalf of the Trust [ITEM
1.01 ON FORM 8-K];
(ii) the termination of a definitive agreement that is
material to the Subject Securitization Transaction (otherwise than by
expiration of the agreement on its stated termination date or as a result
of all parties completing their obligations under such agreement), but
only if the Special Servicer or any Servicing Representative of the
Special Servicer is a party to such agreement or has entered into such
agreement on behalf of the Trust [ITEM 1.02 ON FORM 8-K];
(iii) the appointment of a receiver, fiscal agent or similar
officer for any Material Debtor in a proceeding under the U.S. Bankruptcy
Code or in any other proceeding under state or federal law in which a
court or governmental authority has assumed jurisdiction over
substantially all of the assets or business of any Material Debtor,
including where such jurisdiction has been assumed by leaving the existing
directors and officers in possession but subject to the supervision and
orders of a court or governmental authority, but only if the subject
Material Debtor is (A) the Special Servicer, (B) any Servicing
Representative of the Special Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Specially Serviced Mortgage Loan [ITEM 1.03(a)
ON FORM 8-K];
(iv) the entry of an order confirming a plan of
reorganization, arrangement or liquidation of a Material Debtor by a court
or governmental authority having supervision or jurisdiction over
substantially all of the assets or business of such Material Debtor, but
only if the subject Material Debtor is (A) the Special Servicer, (B) any
Servicing Representative of the Special Servicer that constitutes a
Servicer contemplated by Item 1108(a)(3) of Regulation AB or (C) any
Significant Obligor with respect to a Specially Serviced Mortgage Loan
[ITEM 1.03(b) ON FORM 8-K];
(v) any resignation, removal, replacement or substitution
of (A) the Special Servicer or (B) any Servicing Representative of the
Special Servicer that constitutes a Servicer contemplated by Item
1108(a)(2) of Regulation AB [ITEM 6.02 ON FORM 8-K];
(vi) any appointment of (A) a new Special Servicer or (B)
any new Servicing Representative of the Special Servicer that constitutes
a Servicer contemplated by Item 1108(a)(2) of Regulation AB [ITEM 6.02 ON
FORM 8-K];
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(vii) any nonpublic disclosure, by the Special Servicer or
any Servicing Representative of the Special Servicer, with respect to the
Subject Securitization Transaction (other than disclosure required by this
Agreement) that is required to be disclosed by Regulation FD (17 C.F.R.
243.100 through 243.103) [ITEM 7.01 ON FORM 8-K];
(viii) any other information of importance to
Certificateholders (determined by the Special Servicer in accordance with
the Servicing Standard) that (A) is not otherwise required to be included
in the Distribution Date Statement or any other report to be delivered or
otherwise made available to Certificateholders hereunder, and (B) could
have a material adverse effect on the value of a Mortgaged Property as
collateral for a Specially Serviced Mortgage Loan or the ability of a
Mortgaged Property to generate sufficient cash flow for the related
Mortgagor to meet its debt service obligations under the related Specially
Serviced Mortgage Loan [ITEM 8.01 ON FORM 8-K];
(ix) the commencement or termination of, or any material
developments regarding, any legal proceedings pending against any Material
Litigant, or of which any property of a Material Litigant is the subject,
or any threat by a governmental authority to bring any such legal
proceedings, that are material to Certificateholders, but only if the
Special Servicer is controlling the subject litigation or if the subject
Material Litigant is (A) the Special Servicer, (B) any Servicing
Representative of the Special Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Specially Serviced Mortgage Loan [ITEM 2 ON FORM
10-D AND GENERAL INSTRUCTION J TO FORM 10-K];
(x) the receipt by the Special Servicer or by any Servicing
Representative of the Special Servicer of any updated financial
statements, balance sheets, rent rolls or other financial information
regarding any Significant Obligor (that has been identified to the Special
Servicer in writing) with respect to a Specially Serviced Mortgage Loan
that is required to be provided under Item 1112(b) of Regulation AB [ITEM
6 ON FORM 10-D AND GENERAL INSTRUCTION J TO FORM 10-K];
(xi) to the extent not otherwise disclosed in the Prospectus
Supplement or previously included in a report delivered by the Special
Servicer to the Trustee and the Depositor in accordance with Section
8.16(c), whether the Special Servicer has become an affiliate (as defined
in Rule 405 of the Securities Act) of any of (A) the Trust, (B) the
Depositor, (C) a Mortgage Loan Seller, (D) the Trustee, (E) either Master
Servicer, (F) any Servicing Representative of the Special Servicer that
constitutes a Servicer contemplated by Item 1108(a)(3) of Regulation AB or
(G) any Significant Obligor [GENERAL INSTRUCTION J TO FORM 10-K];
(xii) to the extent not otherwise disclosed in the
Prospectus Supplement, any business relationship, agreement, arrangement,
transaction or understanding contemplated by Item 1119(b) of Regulation AB
between a Mortgage Loan Seller or the Trust, on the one hand, and the
Special Servicer or any Servicing Representative of the Special Servicer,
on the other hand [GENERAL INSTRUCTION J TO FORM 10-K]; and
(xiii) to the extent not otherwise disclosed in the
Prospectus Supplement, any specific relationship involving or relating to
the Subject Securitization Transaction or the Mortgage Loans contemplated
by Item 1119(c) of Regulation AB between a Mortgage Loan
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Seller or the Trust, on the one hand, and the Special Servicer or any
Servicing Representative of the Special Servicer, on the other hand
[GENERAL INSTRUCTION J TO FORM 10-K].
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, the fee designated as such and payable to the
Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.25% per annum.
"Specially Designated Mortgage Loan Documents": With respect to any
Trust Mortgage Loan, the following documents collectively:
(i) the original executed Mortgage Note (or, alternatively,
if the original executed Mortgage Note has been lost, a lost note
affidavit and indemnity with a copy of such Mortgage Note attached
thereto);
(ii) an original or a copy of the Mortgage (with or without
recording information);
(iii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or a copy of an irrevocable, binding commitment
(which may be a pro forma policy or a marked version of the policy that
has been executed by an authorized representative of the title company or
an agreement to provide the same pursuant to binding escrow instructions
executed by an authorized representative of the title company) to issue
such title insurance policy;
(iv) an original or a copy of any Ground Lease and any
related ground lessor estoppel; and
(v) a copy of any letter of credit relating to the Trust
Mortgage Loan;
provided that whenever the term "Specially Designated Mortgage Loan Documents"
is used to refer to documents actually received by the Trustee or by a Custodian
on its behalf, such term, with respect to any receipt or certification by the
Trustee or a Custodian on its behalf for documents described in clauses (iv) and
(v) of this definition, shall be deemed to include such documents only to the
extent the Trustee or a Custodian on its behalf has actual knowledge of their
existence; and provided, further, that the only Specially Designated Mortgage
Loan Document with respect to the Xxxxx Xxxxxx Village and Stuyvesant Town Trust
Mortgage Loan shall be the document described in clause (i) of this definition.
"Specially Serviced Mortgage Loan": Any Serviced Mortgage Loan as to
which any of the following events have occurred:
(a) the related Mortgagor shall have failed to make when due any
Periodic Payment, including a Balloon Payment, and the failure continues
unremedied--
(i) except in the case of a Balloon Payment, for 60 days;
or
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(ii) solely in the case of a delinquent Balloon Payment,
beyond the day such Balloon Payment was due or (if longer) beyond the
applicable grace period for a Balloon Payment unless (x) the related
Mortgagor (A) makes in respect of each Due Date (commencing with the Due
Date of such Balloon Payment) during the period contemplated in (B) below,
without omission, Assumed Periodic Payments and (B) delivers a refinancing
commitment within 60 days after such Mortgage Loan's maturity date, then
for such period (not to exceed 120 days) beyond such Mortgage Loan's
maturity date ending on the earlier of the date on which the related
Mortgagor fails to make an Assumed Periodic Payment or the date on which
it is determined that the refinancing could not reasonably be expected to
occur; or
(b) the applicable Master Servicer or, with the consent of the
Controlling Class Representative, the Special Servicer shall have determined, in
its reasonable judgment (exercised in accordance with the Servicing Standard),
based on, among other things, communications with the related Mortgagor, that a
default in making a Periodic Payment (including a Balloon Payment) is likely to
occur and is likely to remain unremedied for at least 60 days; or
(c) the applicable Master Servicer or, with the consent of the
Controlling Class Representative, the Special Servicer shall have determined, in
its reasonable judgment (exercised in accordance with the Servicing Standard),
that a default (other than an Acceptable Insurance Default or a default
described in clause (a) above) has occurred that may materially impair the value
of the Mortgaged Property as security for the Mortgage Loan and the default
continues unremedied beyond the applicable grace period under the terms of the
Mortgage Loan (or, if no grace period is specified, for 60 days, provided that a
default that gives rise to an acceleration right without any grace period shall
be deemed to have a grace period equal to zero); or
(d) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law or the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the related Mortgagor; provided that if such decree or
order is discharged, dismissed or stayed within 60 days it shall not be a
Specially Serviced Mortgage Loan (and no Special Servicing Fees shall be
payable); or
(e) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
such Mortgagor or of or relating to all or substantially all of its property; or
(f) the related Mortgagor shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take advantage of
any applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(g) the applicable Master Servicer shall have received notice of
the commencement of foreclosure or similar proceedings with respect to the
related Mortgaged Property;
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provided, however, that a Serviced Mortgage Loan will cease to be a Specially
Serviced Mortgage Loan:
(i) with respect to the circumstances described in clause
(a) above, when the related Mortgagor has made three consecutive full and
timely Periodic Payments under the terms of such Mortgage Loan (as such
terms may be changed or modified in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the Special
Servicer pursuant to Section 3.20);
(ii) with respect to the circumstances described in clauses
(b), (d), (e) and (f) above, when such circumstances cease to exist in the
reasonable judgment of the Special Servicer (exercised in accordance with
the Servicing Standard), but, with respect to any bankruptcy or insolvency
proceedings described in clauses (d), (e) and (f), no later than the entry
of an order or decree dismissing such proceeding;
(iii) with respect to the circumstances described in clause
(c) above, when such default is cured; and
(iv) with respect to the circumstances described in clause
(g) above, when such proceedings are terminated;
so long as at that time no other circumstance identified in clauses (a) through
(g) above exists that would otherwise cause such Serviced Mortgage Loan to
continue to be characterized as a Specially Serviced Mortgage Loan.
During any time an entire Loan Combination is serviced and
administered pursuant to this Agreement, if a Servicing Transfer Event exists
with respect to one Mortgage Loan in such Loan Combination, it will also be
considered to exist for the other Mortgage Loan(s) in such Loan Combination;
provided that, if a B-Note Loan Holder prevents the occurrence of a Servicing
Transfer Event with respect to the related A-Note Trust Mortgage Loan through
the exercise of cure rights as set forth in the related Loan Combination
Intercreditor Agreement, then the existence of such Servicing Transfer Event
with respect to the related B-Note Non-Trust Loan shall not, in and of itself,
result in the existence of a Servicing Transfer Event with respect to such
A-Note Trust Mortgage Loan or cause the servicing of the subject Loan
Combination to be transferred to the Special Servicer, unless a separate
Servicing Transfer Event has occurred with respect thereto.
"Startup Day": With respect to each of REMIC I and REMIC II, the day
designated as such in Section 10.01(c).
"State and Local Taxes": Taxes imposed by the states of New York,
Illinois, Kansas, California and Florida and by any other state or local taxing
authorities as may, by notice to the Trustee, assert jurisdiction over the Trust
Fund or any portion thereof, or which, according to an Opinion of Counsel
addressed to the Trustee, have such jurisdiction.
"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date specified in the Mortgage Note (as in effect on the Closing Date or, in the
case of the Mesirow Trust Mortgage Loan, as in effect following an amendment to
such Mortgage Loan as contemplated in Section 3.02(e)) on which the last payment
of principal is due and payable under the terms of the Mortgage Note (as in
effect on the Closing Date or, in the case of the Mesirow Trust Mortgage Loan,
as in effect following an amendment to such Mortgage Loan as contemplated in
Section 3.20(e)), without (except as referred to
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above) 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, waiver or amendment of such Mortgage Loan granted or agreed to by
the Special Servicer pursuant to Section 3.20 (or, in the case of a Mortgage
Loan constituting part of the Xxxxx Xxxxxx Village and Stuyvesant Town Loan
Combination, by the WBCMT 2007-C30 Special Servicer pursuant to the WBCMT
2007-C30 Pooling and Servicing Agreement) and, in the case of an ARD Loan,
without regard to its Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Trust Mortgage Loan
as of any date of determination, an amount (which amount shall not be less than
zero) equal to (x) the Cut-off Date Balance of such Trust Mortgage Loan (or, in
the case of a Qualified Substitute Mortgage Loan that is a Trust Mortgage Loan,
the unpaid principal balance thereof after application of all principal payments
due on or before the related date of substitution, whether or not received),
permanently reduced on each Distribution Date, to not less than zero, by (y) the
sum of:
(i) all payments and other collections of principal, if
any, with respect to such Trust Mortgage Loan that are included as part of
the Principal Distribution Amount for such Distribution Date pursuant to
clause(s) (a), (b), (c) and/or (d) of, and without regard to the provisos
to, the definition of "Principal Distribution Amount";
(ii) any other amount received with respect to such Trust
Mortgage Loan during the related Collection Period that is not included
among the payments and other collections of principal described in the
immediately preceding clause (i), as to which there is not and never has
been an outstanding P&I Advance and that is actually applied in reduction
of the amount of principal owing from the related Mortgagor;
(iii) any amount of reduction in the outstanding principal
balance of such Trust Mortgage Loan resulting from a Deficient Valuation
that occurred during the related Collection Period; and
(iv) any related Realized Loss (other than any such loss
resulting from a Deficient Valuation) incurred during the related
Collection Period that represents a loss of principal with respect to that
Trust Mortgage Loan.
With respect to any Trust REO Loan, as of any date of determination,
an amount equal to (x) the Stated Principal Balance of the predecessor Trust
Mortgage Loan as of the date of the related REO Acquisition, permanently reduced
on each subsequent Distribution Date, to not less than zero, by (y) the sum of:
(a) all amounts, if any, collected with respect to the related
REO Property that are allocable as principal of the subject Trust REO Loan and
that are included as part of the Principal Distribution Amount for such
Distribution Date pursuant to clause (e) and/or clause (f) of, and without
regard to the provisos to, the definition of "Principal Distribution Amount";
and
(b) any related Realized Losses incurred during the related
Collection Period that represents a loss of principal with respect to the
subject Trust REO Loan.
A Trust Mortgage Loan or a Trust REO Loan shall be deemed to be part
of the Trust Fund and to have an outstanding Stated Principal Balance until the
Distribution Date on which the payments or other proceeds, if any, received in
connection with a Liquidation Event in respect thereof
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are to be (or, if no such payments or other proceeds are received in connection
with such Liquidation Event, would have been) distributed to Certificateholders.
With respect to a B-Note Non-Trust Loan or any successor REO Loan
with respect thereto on any date of determination, the Stated Principal Balance
shall equal the unpaid principal balance of such Non-Trust Loan or the deemed
unpaid principal balance of such successor REO Loan.
"Subject Securitization Transaction": The commercial mortgage
securitization transaction contemplated by this Agreement.
"Subordinated Certificate": Any Class AM, Class AJ, Class AJ-FL,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class P, Class Q, Class R-I or Class R-II
Certificate.
"Sub-Servicer": Any Person that either Master Servicer or the
Special Servicer has retained or engaged 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 such Master Servicer or
the Special Servicer under this Agreement, with respect to one or more of the
Mortgage Loans, which servicing functions either (a) are identified in Item
1122(d) of Regulation AB or (b) would cause such Person to be a Servicer.
"Sub-Servicing Agreement": The written contract between either
Master Servicer or the Special Servicer, on the one hand, and any Sub-Servicer,
on the other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Sub-Servicing Function Participant": Any Sub-Servicer,
sub-contractor, vendor, agent or other Person acting on behalf of a party
hereto, which Sub-Servicer, sub-contractor, vendor, agent or other Person is a
"party participating in the servicing function" (within the meaning of the
instructions to Item 1122 of Regulation AB) as regards the Trust Fund (i.e., any
entity that is performing activities that address the criteria in Item 1122(d)
of Regulation AB, unless such entity's activities relate only to 5% or less of
the Mortgage Loans, by balance).
"Subsequent Exchange Act Reports": As defined in Section 8.16(a).
"Substitution Shortfall Amount": With respect to a substitution
pursuant to or as contemplated by Section 2.03(a) hereof, an amount equal to the
excess, if any, of the Purchase Price of the Trust Mortgage Loan being replaced,
calculated as of the date of substitution over the Stated Principal Balance of
the related Qualified Substitute Mortgage Loan as of the date of substitution.
In the event that one or more Qualified Substitute Mortgage Loans are
substituted (at the same time) for one or more deleted Trust Mortgage Loans, the
Substitution Shortfall Amount shall be determined as provided in the preceding
sentence on the basis of the aggregate Purchase Price of the Trust Mortgage Loan
or Trust Mortgage Loans being replaced and the aggregate Stated Principal
Balance of the related Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(c).
"Swap Agreement": Either of the Class A-2FL Swap Agreement or the
Class AJ-FL Swap Agreement.
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"Swap Counterparty": Either of the Class A-2FL Swap Counterparty or
the Class AJ-FL Swap Counterparty.
"Swap Default": With respect to either Swap Agreement, any failure
on the part of the related Swap Counterparty (that continues beyond any
applicable grace period under such Swap Agreement) to (i) make a required
payment under such Swap Agreement as and when due thereunder, (ii) either post
acceptable collateral or find an acceptable replacement Swap Counterparty or
find an acceptable guarantor after a Collateral Event (as defined in such Swap
Agreement) has occurred, as required by such Swap Agreement, or (iii) find an
acceptable replacement Swap Counterparty after a Required Ratings Downgrade
Event (as defined in such Swap Agreement) has occurred, as required by such Swap
Agreement.
"Swap Payment Default": A Swap Default of the nature described in
clause (i) of the definition of "Swap Default".
"Swap Termination Fees": With respect to either Swap Agreement, any
fees, costs or expenses payable by the related Swap Counterparty to the Trust in
connection with a Swap Default under such Swap Agreement, termination of such
Swap Agreement or liquidation of such Swap Agreement, as specified in such Swap
Agreement.
"Tax Matters Person": With respect to each of the REMICs created
hereunder, the Person designated as the "tax matters person" of such REMIC in
the manner provided under Treasury Regulations Section 1.860F-4(d), which Person
shall be the applicable Plurality Residual Certificateholder.
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of REMIC I and REMIC II due to its classification
as a REMIC under the REMIC Provisions, the federal income tax return to be filed
on behalf of each of ML-CFC 0000-0 Xxxxxxx Xxxxx XX, Grantor Trust E and Grantor
Trust Z 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
Internal Revenue Service under any applicable provisions of federal tax law or
any other governmental taxing authority under applicable State and Local Tax
laws.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section
5.02(d)(i)(B).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust": The common law trust created hereunder.
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"Trust ARD Loan": Any Trust Mortgage Loan that is an ARD Loan.
"Trust Convertible Loan": Any Trust Mortgage Loan that is a
Convertible Rate Mortgage Loan.
"Trust Balloon Loan": Any Trust Mortgage Loan that is a Balloon
Loan.
"Trust Corrected Mortgage Loan": Any Trust Mortgage Loan that is a
Corrected Mortgage Loan.
"Trust Defaulted Mortgage Loan": Any Trust Mortgage Loan that is a
Defaulted Mortgage Loan.
"Trust Defeasance Mortgage Loan": Any Trust Mortgage Loan that is a
Defeasance Loan.
"Trust Fund": Collectively, (i) all of the assets of REMIC I and
REMIC II, (ii) the Grantor Trust E Assets, (iii) the ML-CFC 2007-6 Grantor Trust
FL Assets and (iv) the Grantor Trust Z Assets.
"Trust Mortgage Loan": Each Mortgage Loan, including any A-Note
Trust Mortgage Loan, transferred and assigned to the Trust Fund pursuant to
Section 2.01 and listed on the Mortgage Loan Schedule and from time to time held
in the Trust Fund.
"Trust Required Appraisal Mortgage Loan": Any Trust Mortgage Loan or
Trust REO Loan that is a Required Appraisal Mortgage Loan.
"Trust REO Loan": Any REO Loan that succeeded a Trust Mortgage Loan.
"Trust-Related Litigation" As defined in Section 3.29(a)(i).
"Trust Specially Serviced Mortgage Loan": Any Trust Mortgage Loan
that is a Specially Serviced Mortgage Loan.
"Trustee": LaSalle Bank National Association, its successor in
interest, or any successor trustee appointed as herein provided.
"Trustee Appointee": Any Fiscal Agent, Authenticating Agent,
Certificate Registrar, REMIC Administrator, Custodian, co-trustee or separate
trustee appointed or designated by the Trustee hereunder.
"Trustee Fee": With respect to each Trust Mortgage Loan and each
Trust REO Loan for any Distribution Date, an amount equal to one month's
interest for the most recently ended calendar month (calculated on the same
interest accrual basis as such Trust Mortgage Loan or Trust REO Loan, as the
case may be), accrued at the Trustee Fee Rate on the Stated Principal Balance of
such Trust Mortgage Loan or Trust REO Loan, as the case may be, outstanding
immediately following the prior Distribution Date (or, in the case of the
initial Distribution Date, as of the Closing Date).
"Trustee Fee Rate": 0.0009% per annum.
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"Trustee Indemnification Agreement": That certain Trustee
Indemnification Agreement, dated as of March 30, 2007, between LaSalle, the
Depositor, the Underwriters and the Initial Purchasers.
"Trustee Investment Period": With respect to any Distribution Date,
the period commencing on the day immediately following the preceding
Distribution Date (or, in the case of the initial Distribution Date, commencing
on the Closing Date) and ending on and including the subject Distribution Date.
"Trustee Reportable Event": Any of the following events, conditions,
circumstances and/or matters:
(i) the entry into or amendment to a definitive agreement
that is material to the Subject Securitization Transaction, including, for
example, a servicing agreement with a Servicer contemplated by Item
1108(a)(3) of Regulation AB, but only if the Trustee, any Servicing
Representative of the Trustee or any Trustee Appointee is a party to such
agreement or has entered into such agreement on behalf of the Trust [ITEM
1.01 ON FORM 8-K];
(ii) the termination of a definitive agreement that is
material to the Subject Securitization Transaction (otherwise than by
expiration of the agreement on its stated termination date or as a result
of all parties completing their obligations under such agreement), but
only if the Trustee, any Servicing Representative of the Trustee or any
Trustee Appointee is a party to such agreement or has entered into such
agreement on behalf of the Trust [ITEM 1.02 ON FORM 8-K];
(iii) the appointment of a receiver, fiscal agent or similar
officer for any Material Debtor in a proceeding under the U.S. Bankruptcy
Code or in any other proceeding under state or federal law in which a
court or governmental authority has assumed jurisdiction over
substantially all of the assets or business of any Material Debtor,
including where such jurisdiction has been assumed by leaving the existing
directors and officers in possession but subject to the supervision and
orders of a court or governmental authority, but only if the subject
Material Debtor is (A) the Trustee, (B) any Servicing Representative of
the Trustee that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, (C) any Trustee Appointee, (D) any Enhancement/Support
Provider that is not an Affiliate of the Depositor or (E) the Trust [ITEM
1.03(a) ON FORM 8-K];
(iv) the entry of an order confirming a plan of
reorganization, arrangement or liquidation of a Material Debtor by a court
or governmental authority having supervision or jurisdiction over
substantially all of the assets or business of such Material Debtor, but
only if the subject Material Debtor is (A) the Trustee, (B) any Servicing
Representative of the Trustee that constitutes a Servicer contemplated by
Item 1108(a)(3) of Regulation AB, (C) any Trustee Appointee, (D) any
Enhancement/Support Provider that is not an Affiliate of the Depositor or
(E) the Trust [ITEM 1.03(b) ON FORM 8-K];
(v) any event that has occurred hereunder that would
materially alter the payment priority or distribution of cash flows
regarding the Certificates [ITEM 2.04 ON FORM 8-K];
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(vi) any material modification to the rights of the Holders
of any Class of Certificates, including by reason of a modification to
this Agreement, a Mortgage Loan Purchase Agreement or any other
constituent instrument [ITEM 3.03(a) ON FORM 8-K];
(vii) any material limitation or qualification of the rights
evidenced by any Class of Certificates by reason of the modification of
any other Class of Certificates [ITEM 3.03(b) ON FORM 8-K];
(viii) any amendment to this Agreement pursuant to Section
11.01 [ITEM 5.03 ON FORM 8-K];
(ix) any resignation, removal, replacement or substitution
of (A) the Trustee, either Master Servicer or the Special Servicer or (B)
any Servicing Representative of the Trustee that constitutes a Servicer
contemplated by Item 1108(a)(2) of Regulation AB [ITEM ON 6.02 ON FORM
8-K];
(x) any appointment of (A) a new Trustee, new Master
Servicer or new Special Servicer or (B) any new Servicing Representative
of the Trustee that constitutes a Servicer contemplated by Item 1108(a)(2)
of Regulation AB [ITEM 6.02 ON FORM 8-K];
(xi) any termination of a material enhancement or support
specified in Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of
Regulation AB that was previously applicable regarding one or more Classes
of the Certificates, which termination has occurred other than by
expiration of the contract on its stated termination date or as a result
of all parties completing their obligations under such agreement [ITEM
6.03(a) ON FORM 8-K];
(xii) any addition of a material enhancement or support
specified in Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of
Regulation AB with respect to one or more Classes of the Certificates
[ITEM 6.03(b) ON FORM 8-K];
(xiii) any material amendment or modification of a material
enhancement or support specified in Item 1114(a)(1) through (3) of
Regulation AB or Item 1115 of Regulation AB with respect to one or more
Classes of the Certificates [ITEM 6.03(c) ON FORM 8-K];
(xiv) any material failure on the part of the Trustee to
make on the applicable Distribution Date any required monthly
distributions to the Holders of any Class of Certificates [ITEM 6.04 ON
FORM 8-K];
(xv) any nonpublic disclosure, by the Trustee, any Servicing
Representative of the Trustee or any Trustee Appointee, with respect to
the Subject Securitization Transaction that is required to be disclosed by
Regulation FD (17 C.F.R. 243.100 through 243.103) [ITEM 7.01 ON FORM 8-K];
(xvi) any other information of importance to
Certificateholders that is not otherwise required to be included in the
Distribution Date Statement or any other report to be delivered or
otherwise made available to Certificateholders hereunder and that is
directly related to the obligations of the Trustee hereunder [ITEM 8.01 ON
FORM 8-K];
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(xvii) the commencement or termination of, or any material
developments regarding, any legal proceedings pending against any Material
Litigant, or of which any property of a Material Litigant is the subject,
or any threat by a governmental authority to bring any such legal
proceedings, that are material to Certificateholders, but only if the
Trustee is controlling the subject litigation or if the subject Material
Litigant is (A) the Trustee, (B) any Servicing Representative of the
Trustee that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, (C) any Trustee Appointee, (D) any Enhancement/Support
Provider that is not an Affiliate of the Depositor or (E) the Trust [ITEM
2 ON FORM 10-D AND GENERAL INSTRUCTION J TO FORM 10-K];
(xviii) any material default in the payment of principal and
interest on, or any other material default with respect to, any Class of
Certificates [ITEM 4 ON FORM 10-D];
(xix) the submission of any matter to a vote by
Certificateholders [ITEM 5 ON FORM 10-D];
(xx) the receipt by the Trustee or by any Servicing
Representative or other agent of the Trustee of any updated information
regarding an Enhancement/Support Provider with respect to any Class of
Certificates that is required pursuant to Item 1114(b)(2) or Item 1115(b)
of Regulation AB [ITEM 7 ON FORM 10-D AND GENERAL INSTRUCTION J TO FORM
10-K];
(xxi) to the extent not otherwise disclosed in the
Prospectus Supplement or previously included in an Exchange Act Report in
accordance with this Agreement, whether the Trustee as described in Item
1119(a) of Regulation AB has become an affiliate (as defined in Rule 405
of the Securities Act) of any of (A) the Trust, (B) the Depositor, (C) a
Mortgage Loan Seller, (D) either Master Servicer, (E) the Special
Servicer, (F) any Servicing Representative of the Trustee that constitutes
a Servicer contemplated by Item 1108(a)(3) of Regulation AB, (G) any
Trustee Appointee or (H) any Significant Obligor [GENERAL INSTRUCTION J TO
FORM 10-K]; and
(xxii) to the extent not otherwise disclosed in the
Prospectus Supplement, any specific relationship involving or relating to
the Subject Securitization Transaction or the Mortgage Loans contemplated
by Item 1119(c) of Regulation AB between the Depositor, a Mortgage Loan
Seller or the Trust, on the one hand, and the Trustee, any Trustee
Appointee (but only if such Trustee Appointee is a material party to the
Subject Securitization Transaction contemplated by Item 1100(d)(1) of
Regulation AB) or any Servicing Representative (but only if such Servicing
Representative is a Servicer contemplated by Item 1108(a)(3) of Regulation
AB or a material party related to the Subject Securitization Transaction
contemplated by Item 1100(d)(1) of Regulation AB) of the Trustee, on the
other hand [GENERAL INSTRUCTION J TO FORM 10-K].
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement filed pursuant to
the UCC.
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"Underwriter": Each of MLPF&S, Countrywide Securities, Credit Suisse
Securities (USA) LLC and Xxxxxx Xxxxxxx & Co. Incorporated or in each case, its
respective successor in interest.
"United States Securities Person": Any "U.S. person" as defined in
Rule 902(k) of Regulation S.
"United States Tax Person": A citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income from sources without the United States is includable in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise supervision over
the administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust (or to the extent
provided in the Treasury regulations, if the trust was in existence on August
20, 1996 and elected to be treated as a United States person), all within the
meaning of Section 7701(a)(30) of the Code.
"Unliquidated Advance": Any Advance previously made by a party
hereto that (i) is not a Nonrecoverable Advance, (ii) has been previously
reimbursed to the party that made the Advance as a Workout-Delayed Reimbursement
Amount pursuant to Section 3.05(a)(vii) out of principal collections on other
Trust Mortgage Loans and (iii) was originally made with respect to an item that
has not been subsequently recovered out of collections on or proceeds of the
related Trust Mortgage Loan or any related REO Property (and provided that no
Liquidation Event has occurred with respect to the related Trust Mortgage Loan
or any related REO Property).
"Unrestricted Reports": Collectively, the CMSA Total Loan Report,
the CMSA Delinquent Loan Status Report, the CMSA Historical Loan Modification
and Corrected Mortgage Loan Report, the CMSA Historical Liquidation Loss
Template, the CMSA Servicer Realized Loss Template, the CMSA REO Status Report,
the CMSA Advance Recovery Report and, if and to the extent filed with the
Commission, such reports and files as would, but for such filing, constitute
Restricted Reports.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, 100% of the Voting Rights shall be allocated among the
Holders of the Regular Certificates (excluding the Class Y Certificates), the
Class A-2FL Certificates and the Class AJ-FL Certificates. Ninety-eight percent
(98%) of the Voting Rights shall be allocated among the Class X-0, Xxxxx X-0,
Class A-2FL, Class X-0, Xxxxx X-0, Class A-1A, Class AM, Class AJ, Class AJ-FL,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class P and Class Q Certificates in proportion to the
respective Class Principal Balances of their Certificates. Two percent (2%) in
the aggregate of the Voting Rights shall be allocated to the Class X
Certificates. The Residual Certificates shall have no voting rights. Voting
Rights allocated to a Class of Certificateholders shall be allocated among such
Certificateholders in standard proportion to the Percentage Interests evidenced
by their respective Certificates. In addition, if either Master Servicer is the
holder of any Certificates, such Master Servicer, in its capacity as a
Certificateholder, shall have no Voting Rights with respect to matters
concerning compensation affecting such Master Servicer.
"Wachovia": Wachovia Bank, National Association or its successor in
interest.
"WBCMT 2007-C30 Applicable Servicer": The WBCMT 2007-C30 Master
Servicer or the WBCMT 2007-C30 Special Servicer, as applicable.
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"WBCMT 2007-C30 Master Servicer": As defined in the Preliminary
Statement. The term "WBCMT 2007-C30 Master Servicer" shall include any successor
master servicer appointed pursuant to the WBCMT 2007-C30 Pooling and Servicing
Agreement.
"WBCMT 2007-C30 Pooling and Servicing Agreement": As defined in the
Preliminary Statement.
"WBCMT 2007-C30 Securitization": As defined in the Preliminary
Statement.
"WBCMT 2007-C30 Servicing Fee": With respect to the Xxxxx Xxxxxx
Village and Stuyvesant Town Trust Mortgage Loan or any successor Trust REO Loan
with respect thereto, the "Master Servicing Fee" payable to the WBCMT 2007-C30
Master Servicer with respect to such Mortgage Loan or Trust REO Loan, as the
case may be, pursuant to the WBCMT 2007-C30 Pooling and Servicing Agreement.
"WBCMT 2007-C30 Servicing Fee Rate": With respect to the Xxxxx
Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan or any related Trust REO
Loan, the "Master Servicing Fee Rate" (as defined in the WBCMT 2007-C30 Pooling
and Servicing Agreement) for such Mortgage Loan or REO Loan, as the case may be.
The WBCMT 2007-C30 Servicing Fee Rate includes the rate (0.02%) set forth in the
Mortgage Loan Schedule under the column "Primary Servicing Fee Rate" with
respect to the Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan.
"WBCMT 2007-C30 Special Servicer": As defined in the Preliminary
Statement. The term "WBCMT 2007-C30 Special Servicer" shall include any
successor special servicer appointed pursuant to the WBCMT 2007-C30 Pooling and
Servicing Agreement.
"WBCMT 2007-C30 Trustee": As defined in the Preliminary Statement.
The term "WBCMT 2007-C30 Trustee" shall include any successor trustee appointed
pursuant to the WBCMT 2007-C30 Pooling and Servicing Agreement.
"Weighted Average Net Mortgage Pass-Through Rate": With respect to
any Distribution Date, the rate per annum equal to the weighted average,
expressed as a percentage and rounded to six decimal places, of the respective
Net Mortgage Pass-Through Rates applicable to the Trust Mortgage Loans and any
Trust REO Loans for such Distribution Date, weighted on the basis of their
respective Stated Principal Balances immediately following the preceding
Distribution Date (or, in the case of the initial Distribution Date, as of the
Closing Date). For purposes of calculating Pass-Through Rates with respect to
any Distribution Date for federal income tax purposes, such rate shall be the
rate per annum equal to the weighted average, expressed as a percentage and
rounded to six decimal places, of the respective REMIC I Remittance Rates
applicable to the REMIC I Regular Interests, weighted on the basis of their
respective REMIC I Principal Balances immediately preceding such Distribution
Date (or, in the case of the initial Distribution Date, as of the Closing Date).
"Xxxxx Fargo": Xxxxx Fargo Bank, National Association or its
successor in interest.
"Workout-Delayed Reimbursement Amounts": With respect to any Trust
Mortgage Loan, the amount of any Advance made with respect to such Trust
Mortgage Loan on or before the date such Trust Mortgage Loan becomes (or, but
for the making of three monthly payments under its modified terms, would then
constitute) a Trust Corrected Mortgage Loan, together with (to the extent
accrued and unpaid) interest on such Advances accruing before, on and after such
date, to the extent that
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(i) such Advance is not reimbursed to the Person who made such Advance on or
before the date, if any, on which such Trust Mortgage Loan becomes a Trust
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
loan documents. That any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit the right of
any Person hereunder to determine that such amount instead constitutes a
Nonrecoverable Advance.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to the second
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan,
1.00%.
"Yield Maintenance Charge": Payments paid or payable, as the context
requires, on a Mortgage Loan as the result of a Principal Prepayment thereon,
not otherwise due thereon in respect of principal or interest, which have been
calculated (based on Scheduled Payments 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 applicable Master Servicer or the Special Servicer, as
applicable, 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 applicable Master Servicer or the Special Servicer, as
applicable, shall be required to use those U.S. Treasuries having maturity dates
most closely approximating the maturity of such Mortgage Loan. 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 Maturity Date), the applicable Master Servicer or the Special Servicer, as
applicable, shall use the U.S. Treasury whose reinvestment yield is the lowest,
with such yield being based on the bid price for such issue as published in The
Wall Street Journal on the date that is 14 days prior to the date that the Yield
Maintenance Charge shall become due and payable (or, if such bid price is not
published on that date, the next preceding date on which such bid price is so
published) and converted to a monthly compounded nominal yield. The monthly
compounded nominal yield ("MEY") is derived from the reinvestment yield or
discount rate and shall be defined as MEY = 12X ({(1+"BEY"/2)^1/6}-1) 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) 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%.
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SECTION 1.02 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 a Collection Account for (i) any unreimbursed
Advance that has been or is determined to be a Nonrecoverable Advance (together
with interest accrued and payable thereon pursuant to Section 3.03(d) or Section
4.03(d), as applicable, to the extent such interest was paid hereunder from a
source other than related Default Charges) or (ii) any Workout-Delayed
Reimbursement Amount, then (for purposes of calculating distributions on the
Certificates) such reimbursement and payment of interest shall be deemed to have
been made:
first, out of any amounts then on deposit in the Collection Accounts
that represent payments or other collections of principal received by the Trust
with respect to the Trust Mortgage Loans and/or Trust REO Loans in the Loan
Group that includes the Trust Mortgage Loan or Trust REO Loan in respect of
which such Nonrecoverable Advance was made or in respect of which such
Workout-Delayed Reimbursement Amount is outstanding, and which amounts, but for
their application to reimburse such Nonrecoverable Advance (and/or to pay
interest thereon) or to reimburse such Workout-Delayed Reimbursement Amount, as
the case may be, would be included in the Available Distribution Amount for the
related Distribution Date;
second, out of any amounts then on deposit in the Collection
Accounts that represent payments or other collections of principal received by
the Trust with respect to the Trust Mortgage Loans or Trust REO Loans in the
Loan Group that does not include the Trust Mortgage Loan or Trust REO Loan in
respect of which such Nonrecoverable Advance was made or in respect of which
such Workout-Delayed Reimbursement Amount is outstanding, and which amounts, but
for their application to reimburse such Nonrecoverable Advance (and/or to pay
interest thereon) or to reimburse such Workout-Delayed Reimbursement Amount, as
the case may be, would be included in the Available Distribution Amount for the
related Distribution Date;
third, solely in the case of the reimbursement of a Nonrecoverable
Advance and/or the payment of interest thereon, out of any amounts then on
deposit in the Collection Accounts that represent any other payments or other
collections received by the Trust with respect to the Trust Mortgage Loans or
Trust REO Loans in the Loan Group that includes the Trust Mortgage Loan or Trust
REO Loan in respect of which such Nonrecoverable Advance was made, and which
amounts, 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;
fourth, solely in the case of the reimbursement of a Nonrecoverable
Advance and/or the payment of interest thereon, out of any amounts then on
deposit in the Collection Accounts that represent any other payments or other
collections received by the Trust with respect to the Trust Mortgage Loans or
Trust REO Loans in the Loan Group that does not include the Trust Mortgage Loan
or Trust REO Loan in respect of which such Nonrecoverable Advance was made, and
which amounts, but for their application to reimburse a Nonrecoverable Advance
and/or to pay interest thereon, would be included in the Available Distribution
Amount for the related Distribution Date; and
fifth, solely in the case of the reimbursement of a Nonrecoverable
Advance and/or the payment of interest thereon, out of any other amounts then on
deposit in the Collection Accounts that may be available to reimburse the
subject Nonrecoverable Advance and/or to pay interest thereon.
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(b) If and to the extent that any payment or other collection of
principal received on the Mortgage Pool during any Collection Period is deemed
to be applied in accordance with clause first or second of Section 1.02(a) to
reimburse a Nonrecoverable Advance (or to pay interest thereon) or to reimburse
a Workout-Delayed Reimbursement Amount, then:
(i) the Principal Distribution Amount for the related
Distribution Date shall be reduced by the portion of such payment or other
collection of principal that, but for the application of this Section
1.02(b), would constitute part of such Principal Distribution Amount; and
(ii) depending on whether such payment or other collection
of principal relates to Loan Group 1 or Loan Group 2, there shall be a
corresponding reduction in the Loan Group 1 Principal Distribution Amount
or the Loan Group 2 Principal Distribution Amount, as applicable, for the
related Distribution Date.
(c) If and to the extent that any Nonrecoverable Advance or
Workout-Delayed Reimbursement Amount is reimbursed or interest on any
Nonrecoverable Advance is paid out of payments or other collections of principal
received on the Mortgage Pool (with a corresponding reduction to the Principal
Distribution Amount, and to either or both of the Loan Group 1 Principal
Distribution Amount and the Loan Group 2 Principal Distribution Amount, for the
relevant Distribution Date), and further if and to the extent that the
particular item for which such Advance was originally made or such
Workout-Delayed Reimbursement Amount is outstanding is subsequently collected
out of payments or other collections in respect of the related Trust Mortgage
Loan or Trust REO Loan (such item, upon collection, a "Recovered Amount"), then
(without duplication of amounts already included therein):
(i) the Principal Distribution Amount for the Distribution
Date that corresponds to the Collection Period in which such Recovered
Amount was received, shall be increased by an amount equal to the lesser
of (A) such Recovered Amount and (B) any previous reduction in the
Principal Distribution Amount for a prior Distribution Date pursuant to
Section 1.02(b) above resulting from the reimbursement of the subject
Nonrecoverable Advance (and/or the payment of interest thereon) or the
reimbursement of the subject Workout-Delayed Reimbursement Amount, as the
case may be; and
(ii) the Loan Group 1 Principal Distribution Amount and/or
the Loan Group 2 Principal Distribution Amount for the Distribution Date
that corresponds to the Collection Period in which such Recovered Amount
was received, shall be increased by an amount equal to the lesser of (A)
such Recovered Amount and (B) any previous reduction in the Loan Group 1
Principal Distribution Amount and/or the Loan Group 2 Principal
Distribution Amount, as applicable, for a prior Distribution Date pursuant
to Section 1.02(b) above resulting from the reimbursement of the subject
Nonrecoverable Advance (and/or the payment of interest thereon) or the
reimbursement of the subject Workout-Delayed Reimbursement Amount, as the
case may be;
provided that, if both the Loan Group 1 Principal Distribution Amount and the
Loan Group 2 Principal Distribution Amount for a prior Distribution Date were
reduced pursuant to Section 1.02(b) above as a result of the reimbursement of
the subject Nonrecoverable Advance (and/or the payment of interest thereon) or
the reimbursement of the subject Workout-Delayed Reimbursement Amount, as the
case may be, and if the subject Recovered Amount is not sufficient to cover the
full amount of such
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reductions, then such Recovered Amount shall be applied to increase the Loan
Group 1 Principal Distribution Amount and the Loan Group 2 Principal
Distribution Amount in accordance with, and to the extent permitted by, clause
(ii) of this Section 1.02(c) in reverse order of the application of payments and
other collections of principal on the respective Loan Groups in accordance with
Section 1.02(a) to reimburse the subject Nonrecoverable Advance (and/or pay
interest thereon) or to reimburse the subject Workout-Delayed Reimbursement
Amount, as the case may be.
(d) For purposes of making the adjustments to the Principal
Distribution Amount, the Loan Group 1 Principal Distribution Amount or the Loan
Group 2 Principal Distribution Amount, for any Distribution Date, as
contemplated by this Section 1.02, that amount shall be calculated in accordance
with the definition thereof (without regard to this Section 1.02) and shall
thereafter be adjusted as provided in this Section 1.02.
(e) Nothing contained in this Section 1.02 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
3.03(d) 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 1.02(a) is a deemed allocation only for purposes of calculating
distributions on the Certificates.
(f) For purposes of this Section 1.02, notwithstanding any other
provision of this Agreement, the terms "Nonrecoverable Advance" and
"Workout-Delayed Reimbursement Amount" shall include any amounts paid by the
applicable Master Servicer pursuant to Section 3.05(a)(xviii) in reimbursement
of "Nonrecoverable Advances" and "Workout-Delayed Reimbursement Amounts" (in
each case within the meaning of the WBCMT 2007-C30 Pooling and Servicing
Agreement) in respect of the Xxxxx Xxxxxx Village and Stuyvesant Town Trust
Mortgage Loan, any successor Trust REO Loan with respect thereto or the Xxxxx
Xxxxxx Village and Stuyvesant Town Mortgaged Property.
SECTION 1.03 Calculation of LIBOR.
(a) The initial value of LIBOR shall be a rate of 5.320% per
annum. Such value of LIBOR shall be utilized in calculating: (i) with respect to
the Class A-2FL Certificates, (A) the Class A-2FL Floating Swap Payment to be
made on the Class A-2FL Swap Payment Date in May 2007 and (B) the Pass-Through
Rate with respect to the Class A-2FL Certificates for the Distribution Date in
May 2007, and (ii) with respect to the Class AJ-FL Certificates, (A) the Class
AJ-FL Floating Swap Payment to be made on the Class AJ-FL Swap Payment Date in
May 2007 and (B) the Pass-Through Rate with respect to the Class AJ-FL
Certificates for the Distribution Date in May 2007.
(b) The value of LIBOR applicable to the calculation of the Class
A-2FL Floating Swap Payment to be made on the Class A-2FL Swap Payment Date and
the Class AJ-FL Floating Swap Payment to be made on the Class AJ-FL Swap Payment
Date in any particular calendar month subsequent to May 2007, as well as the
calculation of the respective Pass-Through Rates with respect to the Class A-2FL
Certificates and the Class AJ-FL Certificates for the Distribution Date in such
calendar month (provided that no Class A-2FL Distribution Conversion or Class
AJ-FL Distribution Conversion, as applicable, is then in effect), shall be
determined by the Trustee (and promptly reported to the related Swap
Counterparty) on the LIBOR Determination Date in the preceding calendar month in
accordance with the following methodology: LIBOR shall equal the rate for
deposits in U.S. Dollars, for a period equal to one month, which appears on the
Dow Xxxxx Market Service (formerly Telerate) Page 3750 as of 11:00 a.m., London
time, on the applicable LIBOR Determination Date. If that rate does not appear
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on the Dow Xxxxx Market Service Page 3750, LIBOR will be determined on the basis
of the rates at which deposits in U.S. Dollars are offered by any five major
reference banks in the London interbank market selected by the Trustee to
provide that bank's offered quotation of such rates at approximately 11:00 a.m.,
London time, on the applicable LIBOR Determination Date to prime banks in the
London interbank market for a period of one month, commencing on the 12th day of
the calendar month in which the applicable LIBOR Determination Date occurs and
in an amount that is representative for a single such transaction in the
relevant market at the relevant time. The Trustee shall request the principal
London office of any five major reference banks in the London interbank market
selected by the Trustee to provide a quotation of those rates, as offered by
each such bank. If at least two such quotations are provided, LIBOR will be the
arithmetic mean of the quotations. If fewer than two quotations are provided as
requested, LIBOR will be the arithmetic mean of the rates quoted by major banks
in New York City selected by the Trustee, at approximately 11:00 a.m., New York
City time, on the applicable LIBOR Determination Date for loans in U.S. Dollars
to leading European banks for a period equal to one month, commencing on the
applicable LIBOR Determination Date and in an amount that is representative for
a single such transaction in the relevant market at the relevant time. The
determination of LIBOR by the Trustee will be binding absent manifest error.
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ARTICLE II
CONVEYANCE OF TRUST MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Trust Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby establish a common law trust under the laws of the State of
New York, designated as "ML-CFC Commercial Mortgage Trust 2007-6" and consisting
of the Trust Fund, and does hereby assign, sell, transfer, set over and
otherwise convey to the Trustee, in trust, without recourse, for the benefit of
the Certificateholders (and for the benefit of the other parties to this
Agreement as their respective interests may appear) all the right, title and
interest of the Depositor, in, to and under (i) the Trust Mortgage Loans and all
documents included in the related Mortgage Files and Servicing Files, (ii)
Sections 2, 3, 8, 10, 11, 12, 13, 14, 15, 17, 18, 20 and 21 of each Mortgage
Loan Purchase Agreement, (iii) each Loan Combination Intercreditor Agreement and
(iv) all other assets included or to be included in the Trust Fund. Such
assignment includes all interest and principal received or receivable on or with
respect to the Trust Mortgage Loans and due after the Cut-off Date and, in the
case of each Trust Mortgage Loan that is part of a Loan Combination, is subject
to the provisions of the corresponding Loan Combination Intercreditor Agreement.
The Trustee, on behalf of the Trust, assumes the obligations of the holder of
each A-Note Trust Mortgage Loan and the Xxxxx Xxxxxx Village and Stuyvesant Town
Trust Mortgage Loan under the related Loan Combination Intercreditor Agreement;
provided that the applicable Master Servicer shall, as further set forth in
Article III, perform the servicing obligations and exercise the related rights
of the related holder of an A-Note Trust Mortgage Loan under the related Loan
Combination Intercreditor Agreement. The transfer of the Trust Mortgage Loans
and the related rights and property accomplished hereby is absolute and,
notwithstanding Section 11.07, is intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above the Depositor shall direct, and hereby represents and
warrants that it has directed, the Mortgage Loan Sellers pursuant to their
respective Mortgage Loan Purchase Agreements to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby (with a copy to the applicable Master Servicer and the Special
Servicer), on or before the Closing Date, the Mortgage File for each Trust
Mortgage Loan so assigned. At the request of the Special Servicer, each Master
Servicer shall deliver a copy of the Servicing File for each Serviced Trust
Mortgage Loan serviced thereby to the Special Servicer if the Special Servicer
and such Master Servicer reasonably agree such delivery is required for the
Special Servicer to perform its obligations pursuant to this Agreement.
Notwithstanding the foregoing sentence, the delivery of a Servicing File by
either Master Servicer to the Special Servicer may be made by such other means
agreed to by such Master Servicer and the Special Servicer. None of the Trustee,
any Fiscal Agent, any Custodian, the Master Servicers or the Special Servicer
shall be liable for any failure by any Mortgage Loan Seller or the Depositor to
comply with the document delivery requirements of the related Mortgage Loan
Purchase Agreement and this Section 2.01(b).
(c) If any Mortgage Loan Seller cannot deliver, or cause to be
delivered, on the Closing Date, as to any Serviced Trust Mortgage Loan, any of
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
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File", with evidence of recording thereon, solely because of a delay caused by
the public recording office where such document or instrument has been delivered
for recordation, the delivery requirements of the related Mortgage Loan Purchase
Agreement and Section 2.01(b) shall be deemed to have been satisfied as to such
non-delivered document or instrument, and such non-delivered document or
instrument shall be deemed to have been included in the Mortgage File, if a
photocopy of such non-delivered document or instrument (certified by the
applicable Mortgage Loan Seller to be a true and complete copy of the original
thereof submitted for recording) is delivered to the Trustee or a Custodian
appointed thereby on or before the Closing Date, and either the original of such
non-delivered document or instrument, or a photocopy thereof, with evidence of
recording or filing as applicable, thereon, is delivered to the Trustee or such
Custodian within 120 days of the Closing Date (or within such longer period
after the Closing Date as the Trustee may consent to, which consent shall not be
unreasonably withheld so long as the applicable Mortgage Loan Seller is, in good
faith, attempting to obtain from the appropriate county recorder's office such
original or photocopy, as evidenced by an officer's certificate). If the
applicable Mortgage Loan Seller cannot deliver, or cause to be delivered, as to
any Serviced Trust Mortgage Loan, any of 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," with evidence of recording or filing as
applicable, thereon, for any other reason, including, without limitation, that
such non-delivered document or instrument has been lost, the delivery
requirements of the related Mortgage Loan Purchase Agreement and Section 2.01(b)
shall be deemed to have been satisfied as to such non-delivered document or
instrument and such non-delivered document or instrument shall be deemed to have
been included in the Mortgage File, provided that a photocopy of such
non-delivered document or instrument (with evidence of recording in the proper
office thereon and with respect to the item referred to in clause (a)(ii) of the
definition of "Mortgage File", certified by the appropriate county recorder's
office to be a true and complete copy of the original submitted for recording)
is delivered to the Trustee or a Custodian appointed thereby on or before the
Closing Date.
If, on the Closing Date as to any Serviced Trust Mortgage Loan
(other than any Mortgage Loan that has been recorded on the MERS(R) System) the
applicable Mortgage Loan Seller does not deliver in complete and recordable form
any one of the assignments in favor of the Trustee referred to in clause (a)(iv)
or (a)(v) of the definition of "Mortgage File" (in the case of clause (a)(iv)
solely because of a delay caused by the recording office where such document or
instrument has been delivered for recordation), the applicable Mortgage Loan
Seller may provisionally satisfy the delivery requirements of the related
Mortgage Loan Purchase Agreement and Section 2.01(b) by delivering with respect
to such Serviced Trust Mortgage Loan on the Closing Date an omnibus assignment
of such Serviced Trust Mortgage Loan; provided that all required original
assignments with respect to such Serviced Trust Mortgage Loan in fully complete
and recordable form shall be delivered to the Trustee or its Custodian within
120 days of the Closing Date (or within such longer period, not to exceed 18
months, as the Trustee in its reasonable discretion may permit so long as the
applicable Mortgage Loan Seller is, as certified in writing to the Trustee no
less often than every 90 days, attempting in good faith to obtain from the
appropriate county recorder's office such original or photocopy).
If, on the Closing Date as to any MERS Mortgage Loan, the applicable
Mortgage Loan Seller does not deliver written evidence of the Trustee's
ownership of such Mortgage Loan on the MERS(R) System showing the Trustee as a
beneficiary of the assignment referred to in each of clause (a)(iv) and (a)(v)
of the definition of "Mortgage File" or the UCC Financing Statements referred to
in clause (a)(viii) of the definition of "Mortgage File", the applicable
Mortgage Loan Seller may satisfy the delivery requirements of the related
Mortgage Loan Purchase Agreement, as applicable, and Section 2.01(b) by
delivering such evidence of ownership within 90 days following the Closing Date;
provided
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that, during such time, the applicable Mortgage Loan Seller shall execute any
documents requested by the Master Servicer or the Special Servicer with respect
to such MERS Mortgage Loan that, in the reasonable discretion of the Master
Servicer or the Special Servicer (exercised in accordance with the Servicing
Standard), are necessary to evidence the Trustee's ownership of, or are
otherwise required for an immediate servicing need with respect to, such
Mortgage Loan.
(d) The Depositor hereby represents and warrants that with respect
to the Xxxxxxx Trust Mortgage Loans and the Countrywide Trust Mortgage Loans,
the related Mortgage Loan Seller has covenanted in the related Mortgage Loan
Purchase Agreement that it shall retain or cause to be retained, an Independent
Person (such Person, the "Recording/Filing Agent") that shall, as to each such
Serviced Trust Mortgage Loan, promptly (and in any event within 90 days
following the later of the Closing Date or the delivery of each assignment and
UCC Financing Statement to the Recording/Filing Agent) cause to be submitted,
for recording or filing, as the case may be, in the appropriate public office
for real property records or UCC Financing Statements, each such assignment of
Mortgage, each such assignment of Assignment of Leases and any other recordable
documents relating to each such Trust Mortgage Loan in favor of the Trustee that
is referred to in clause (a)(iv) of the definition of "Mortgage File" and each
such UCC Financing Statement assignment in favor of the Trustee that is referred
to in clause (a)(viii) of the definition of "Mortgage File," in each case
pursuant to Section 2(d) of the related Mortgage Loan Purchase Agreement.
(e) All documents and records in the Servicing File (except draft
documents, privileged or other communications, credit underwriting, legal or
other due diligence analyses, credit committee briefs or memoranda or other
internal approval documents or data or internal worksheets, memoranda,
communications or evaluations of the Mortgage Loan Seller) in possession of the
Depositor or the Mortgage Loan Sellers that relate to the Serviced Trust
Mortgage Loans and that are not required to be a part of a Mortgage File in
accordance with the definition thereof (including any original letter of credit
that is not part of the Mortgage File because the applicable Master Servicer or
any Sub-Servicer therefor has possession thereof), together with all Escrow
Payments and Reserve Accounts in the possession thereof, shall be delivered to
the applicable Master Servicer or such other Person as may be directed by the
applicable Master Servicer (at the expense of the applicable Mortgage Loan
Seller) on or before the Closing Date and shall be held by the applicable Master
Servicer on behalf of the Trustee in trust for the benefit of the
Certificateholders; provided, however, the applicable Master Servicer shall have
no responsibility for holding documents created or maintained by the Special
Servicer hereunder and not delivered to such Master Servicer. The applicable
Mortgage Loan Seller shall pay any costs of assignment or amendment of any
letter of credit related to the Trust Mortgage Loans such Mortgage Loan Seller
sold to the Depositor required in order for the applicable Master Servicer to
draw on such letter of credit.
(f) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall deliver to the Custodian, the
applicable Master Servicer and the Special Servicer on or before the Closing
Date and hereby represents and warrants that it has delivered a copy of a fully
executed counterpart of each of the Mortgage Loan Purchase Agreements, as in
full force and effect on the Closing Date.
(g) The Depositor hereby consents to the filing of any UCC
Financing Statements contemplated by this Agreement without its consent.
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(h) The Trust Fund shall constitute the sole assets of the Trust.
Except as expressly provided herein, the Trust may not issue or invest in
additional securities, borrow money or make loans to other Persons. The fiscal
year end of the Trust shall be December 31.
SECTION 2.02 Acceptance of the Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
acknowledges receipt of the Depositor's assignment to it of the Depositor's
right, title and interest in the assets that constitute the Trust Fund, and
further acknowledges receipt by it or a Custodian on its behalf, subject to the
provisos in the definition of "Mortgage File" and the provisions of Section 2.01
and subject to the further limitations on review provided for in Section 2.02(b)
and the exceptions noted on the schedule of exceptions of (i) the Mortgage File
delivered to it for each Trust Mortgage Loan and (ii) a copy of a fully-executed
counterpart of each Mortgage Loan Purchase Agreement, all 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 the other documents received by it
that constitute portions of the Mortgage Files, and that it holds and will hold
the Trust Mortgage Loans and other assets included in the Trust Fund, in trust
for the exclusive use and benefit of all present and future Certificateholders.
To the extent that the Mortgage File for a Trust Mortgage Loan that is part of a
Loan Combination relates to the corresponding Non-Trust Loan, the Trustee shall
also hold such Mortgage File in trust for the use and benefit of the related
Non-Trust Noteholder(s). The Trustee hereby certifies to each of the Depositor,
the Master Servicers, the Special Servicer and each Mortgage Loan Seller that,
without regard to the proviso in the definition of "Mortgage File", each of the
Specially Designated Mortgage Loan Documents are in its possession. In addition,
within 90 days after the Closing Date, the Trustee or a Custodian on its behalf
will review the Mortgage Files and certify (in a certificate substantially in
the form of Exhibit C) to each of the Depositor, the Master Servicers, the
Special Servicer, each Mortgage Loan Seller (with copies to the Controlling
Class Representative), that, with respect to each Trust Mortgage Loan listed in
the Mortgage Loan Schedule, except as specifically identified in the schedule of
exceptions annexed thereto, (i) without regard to the proviso in the definition
of "Mortgage File," all documents specified in clauses (a)(i), (a)(ii),
(a)(iv)(A), (a)(v), (a)(vii) and b(i) through b(iv) of the definition of
"Mortgage File", to the extent provided in the related Mortgage File and
actually known by a Responsible Officer of the Trustee or a Custodian to be
required or to the extent listed on the Mortgage Loan checklist, if any,
provided by the related Mortgage Loan Seller pursuant to the related Mortgage
Loan Purchase Agreement, clauses (a)(iii), (a)(iv)(B), (a)(iv)(C), (a)(vi),
(a)(viii) through (a)(xii) of the definition of "Mortgage File" are in its
possession, (ii) all documents delivered or caused to be delivered with respect
to a Trust Mortgage Loan by the applicable Mortgage Loan Seller constituting the
related Mortgage File have been reviewed by it and appear regular on their face,
appear to be executed and appear to relate to such Trust Mortgage Loan, and
(iii) based on such examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule for such Trust Mortgage Loan
with respect to the items specified in clauses (a)(v) and (a)(vi)(c) of the
definition of "Mortgage Loan Schedule" is correct. Further, with respect to the
documents described in clause (a)(viii) of the definition of "Mortgage File",
absent actual knowledge of a Responsible Officer to the contrary or copies of
UCC Financing Statements delivered to the Trustee as part of the Mortgage File
indicating otherwise, the Trustee may assume, for purposes of the certification
delivered in this Section 2.02(a), that the related Mortgage File should include
one state level UCC Financing Statement filing and one local UCC Financing
Statement fixture filing for each Mortgaged Property (or with respect to any
Mortgage Loan that has two or more Mortgagors, for each Mortgagor). Amendments
with respect to the UCC Financing Statements to be assigned to the Trust,
assigning such UCC Financing Statements to the Trust, will be delivered on the
new national forms and in recordable form and will be filed in the state of
incorporation or organization of the related Mortgagor
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as so indicated on the documents provided. If any exceptions are noted to the
certification delivered to the above-mentioned recipients substantially in the
form of Exhibit C, the Trustee shall, every 90 days after the delivery of such
certification until the second anniversary of the Closing Date, and every 180
days thereafter until the fifth anniversary of the Closing Date, and thereafter
upon request by any party hereto, any Mortgage Loan Seller or the Plurality
Subordinate Certificateholder, distribute an updated exception report to such
recipients; provided that, by delivery of each such updated exception report,
the Trustee shall be deemed to have made the certifications provided for in
Exhibit C as to each Mortgage Loan or each applicable document (that is to be
covered by a certification in the form of Exhibit C) in respect of a Mortgage
Loan that, in each case, is not identified in such updated exception report.
(b) None of the Trustee, any Fiscal Agent, either Master Servicer,
the Special Servicer or any Custodian is under any duty or obligation to
inspect, review or examine any of the documents, instruments, certificates or
other papers relating to the Trust Mortgage Loans delivered to it to determine
that the same are valid, legal, effective, genuine, enforceable, in recordable
form, sufficient or appropriate for the represented purpose or that they are
other than what they purport to be on their face.
(c) The Trustee, directly or through a Custodian retained by it,
shall: (i) provide for the safekeeping and preservation of the Mortgage Files
with respect to the Trust Mortgage Loans; (ii) segregate such Mortgage Files
from its own assets and the assets retained by it for others; (iii) maintain
such Mortgage Files in secure and fire resistant facilities in compliance with
customary industry standard; (iv) maintain disaster recovery protocols to ensure
the preservation of such Mortgage Files in the event of force majeure; and (v)
track and monitor the receipt and movement internally and externally of such
Mortgage Files and any release and reinstatement thereof.
SECTION 2.03 Mortgage Loan Sellers' Repurchase or Substitution of
Trust Mortgage Loans for Document Defects and
Breaches of Representations and Warranties.
(a) If any party hereto discovers (without implying any duty of
such Person to make any inquiry) or receives notice that any document or
documents constituting a part of a Mortgage File with respect to a Trust
Mortgage Loan has not been properly executed, is missing (beyond the time period
required for its delivery hereunder), 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 (without implying any duty of such Person to
make any inquiry) or receives notice of a breach of any representation or
warranty relating to any Trust Mortgage Loan set forth in Schedule I of any
Mortgage Loan Purchase Agreement (a "Breach"), the party discovering such
Document Defect or Breach shall give written notice (which notice, in respect of
any obligation of the Trustee to provide notice of a Document Defect, shall be
deemed given by the delivery of the certificate as required by Section 2.02(a))
to the applicable Mortgage Loan Seller and the other parties hereto. The Trustee
shall then promptly deliver such notice to the Controlling Class Representative
and to the Rating Agencies of such Document Defect or Breach. Promptly upon
becoming aware of any Document Defect or Breach (including through such written
notice provided by any party hereto or the Controlling Class Representative as
provided above), if any party hereto determines that such Document Defect or
Breach materially and adversely affects the value of the affected Trust Mortgage
Loan or the interests of the Certificateholders therein, such party shall notify
the applicable Master Servicer and, if the subject Trust Mortgage Loan is a
Specially Serviced Mortgage Loan, the Special Servicer, of such determination
and promptly after receipt of such notice,
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the applicable Master Servicer or the Special Servicer, as applicable, shall
request in writing that the applicable Mortgage Loan Seller, not later than 90
days from receipt of such written request (or, in the case of a Document Defect
or Breach relating to a Trust Mortgage Loan not being a "qualified mortgage"
within the meaning of the REMIC Provisions, not later than 90 days after any
party to this Agreement discovers such Document Defect or Breach) (i) cure such
Document Defect or Breach, as the case may be, in accordance with Section 3(c)
of the related Mortgage Loan Purchase Agreement, (ii) repurchase the affected
Trust Mortgage Loan (which for purposes of this clause (ii) shall include a
Trust REO Loan) in accordance with Section 3(c) of the related Mortgage Loan
Purchase Agreement, or (iii) within two years of the Closing Date, substitute a
Qualified Substitute Mortgage Loan for such affected Trust Mortgage Loan (which
for purposes of this clause (iii) shall include a Trust REO Loan) and pay the
applicable Master Servicer for deposit into its Collection Account any
Substitution Shortfall Amount in connection therewith in accordance with
Sections 3(c) and 3(d) of the related Mortgage Loan Purchase Agreement;
provided, however, that if such Document Defect or Breach is capable of being
cured but not within such 90 day period, such Document Defect or Breach does not
relate to the Trust Mortgage Loan not being treated as a "qualified mortgage"
within the meaning of the REMIC Provisions, and the applicable Mortgage Loan
Seller has commenced and is diligently proceeding with the cure of such Document
Defect or Breach within such 90 day period, the applicable Mortgage Loan Seller
shall have an additional 90 days to complete such cure (or, failing such cure,
to repurchase or (subject to clause (iii) above) replace the related Trust
Mortgage Loan (which for purposes of such repurchase or substitution shall
include a Trust REO Loan)); and provided, further, with respect to such
additional 90 day period the applicable Mortgage Loan Seller shall have
delivered an Officer's Certificate to the Trustee setting forth the reasons such
Document Defect or 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 such Document Defect or Breach will be cured within the
additional 90 day period; and provided, further, that no Document Defect (other
than with respect to a Specially Designated Mortgage Loan Document) shall be
considered to materially and adversely affect the interests of the
Certificateholders or the value of the related Trust Mortgage Loan unless the
document with respect to which the Document Defect exists is required in
connection with an imminent enforcement of the mortgagee's rights or remedies
under the related Trust Mortgage Loan, defending any claim asserted by any
Mortgagor or third party with respect to the Trust Mortgage Loan, establishing
the validity or priority of any lien on any collateral securing the Trust
Mortgage Loan or for any immediate servicing obligations. In the event of a
Document Defect or Breach as to a Trust Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Trust Mortgage
Loans (each a "Crossed Loan" and, collectively, a "Crossed Loan Group"), and
such Document Defect or Breach does not constitute a Document Defect or Breach,
as the case may be, as to any other Crossed Loan in such Crossed Loan Group
(without regard to this paragraph) and is not cured as provided for above, then
the applicable Document Defect or Breach, as the case may be, shall be deemed to
constitute a Document Defect or Breach, as the case may be, as to any other
Crossed Loan in the Crossed Loan Group for purposes of this paragraph and the
related Mortgage Loan Seller shall be required to repurchase or substitute for
all such Crossed Loans unless (1) the weighted average Debt Service Coverage
Ratio for all the remaining related Crossed Loans for the four calendar quarters
immediately preceding such repurchase or substitution is not less than the
weighted average Debt Service Coverage Ratio for all such Crossed Loans,
including the affected Crossed Loan, for the four calendar quarters immediately
preceding such repurchase or substitution, and (2) the weighted average Loan
to-Value Ratio for the remaining related Crossed Loans, determined at the time
of repurchase or substitution, based upon an Appraisal obtained by the Special
Servicer at the expense of the related Mortgage Loan Seller shall not be greater
than the weighted average Loan-to-Value Ratio for all such Crossed Loans,
including the
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affected Crossed Loan determined at the time of repurchase or substitution,
based upon an Appraisal obtained by the Special Servicer at the expense of the
related Mortgage Loan Seller; provided that if such criteria is satisfied and
any Crossed Loan is not so repurchased or substituted, then such Crossed Loan
shall be released from its cross-collateralization and cross default provision
so long as such Crossed Loan (that is not the Crossed Loan directly affected by
the subject Document Defect or Breach) is held in the Trust Fund; provided,
further, that the repurchase or replacement of less than all such Crossed Loans
and the release from the cross-collateralization and cross-default provision
shall be subject to the delivery by the Mortgage Loan Seller to the Trustee, at
the expense of the Mortgage Loan Seller, of an Opinion of Counsel to the effect
that such release would not cause any of the REMIC I or REMIC II to fail to
qualify as a REMIC under the Code or result in the imposition of any tax on
"prohibited transactions" or "contributions" after the Startup Day under the
REMIC Provisions; and provided, further, that the Controlling Class
Representative shall have consented to the repurchase or replacement of the
affected Crossed Loan, which consent shall not be unreasonably withheld or
delayed. In the event that one or more of such other Crossed Loans satisfy the
aforementioned criteria, the related Mortgage Loan Seller may elect either to
repurchase or substitute for only the affected Crossed Loan as to which the
related Document Defect or Breach exists or to repurchase or substitute for all
of the Crossed Loans in the related Crossed Loan Group. All documentation
relating to the termination of the cross-collateralization provisions of each
Crossed Loan being repurchased or replaced is to be prepared at the expense of
the applicable Mortgage Loan Seller and, where required, with the consent of the
applicable Mortgagor. For a period of two years from the Closing Date, so long
as there remains any Mortgage File as to which there is any uncured Document
Defect and so long as the applicable Mortgage Loan Seller shall provide the
Officer's Certificate pursuant to Section 3(c) of the related Mortgage Loan
Purchase Agreement, the Trustee shall on a quarterly basis prepare and deliver
electronically to the other parties an updated exception report as to the status
of such uncured Document Defects as provided in Section 2.02(a). If the affected
Trust Mortgage Loan is to be repurchased or substituted, the applicable Master
Servicer shall designate its Collection Account as the account to which funds in
the amount of the Purchase Price or the Substitution Shortfall Amount, as
applicable, are to be wired. Any such repurchase or substitution of a Trust
Mortgage Loan shall be on a whole loan, servicing released basis.
Pursuant to each Mortgage Loan Purchase Agreement, to the extent
that the related Mortgage Loan Seller is required to repurchase or substitute
for a Crossed Loan thereunder while the Trustee continues to hold any other
Crossed Loan(s) in the related Crossed Loan Group, the related Mortgage Loan
Seller and the Depositor have agreed that neither such party shall enforce any
remedies against the other party's Primary Collateral, but each is permitted to
exercise remedies against the Primary Collateral securing the Crossed Loan(s)
held thereby, so long as such exercise does not materially impair the ability of
the other party to exercise its remedies against the Primary Collateral securing
the Crossed Loan(s) held thereby. Notwithstanding the foregoing, each Mortgage
Loan Seller and the Depositor have agreed that if the exercise by one party
would materially impair the ability of the other party to exercise its remedies
with respect to the Primary Collateral securing the Crossed Loan(s) held by such
party, then each such party shall forbear from exercising such remedies until
the Mortgage Loan documents evidencing and securing the relevant Crossed Loans
can be modified in a manner consistent with the related Mortgage Loan Purchase
Agreement to remove the threat of material impairment as a result of the
exercise of remedies.
(b) In connection with any repurchase or substitution of one or
more Trust Mortgage Loans contemplated by this Section 2.03, upon receipt of a
Request for Release (in the form of Exhibit D-1 attached hereto) of a Servicing
Officer of the applicable Master Servicer certifying as to the receipt
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of the applicable Purchase Price(s) in its Collection Account (in the case of
any such repurchase) or the receipt of the applicable Substitution Shortfall
Amount(s) in its Collection Account and upon the delivery of the Mortgage
File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage
Loan(s) to the Custodian and the applicable Master Servicer, respectively (in
the case of any such substitution), (i) the Trustee shall execute and deliver
such endorsements and assignments as are provided to it, in each case without
recourse, representation or warranty, as shall be necessary to vest in the
applicable Mortgage Loan Seller the legal and beneficial ownership of each
repurchased Trust Mortgage Loan or deleted Trust Mortgage Loan, as applicable,
being released pursuant to this Section 2.03, (ii) the Trustee, the Custodian,
the applicable Master Servicer, and the Special Servicer shall each tender to
the applicable Mortgage Loan Seller, upon delivery to each of them of a receipt
executed by the applicable Mortgage Loan Seller, all portions of the Mortgage
File and other documents pertaining to each such Mortgage Loan possessed by it
and (iii) the applicable Master Servicer and the Special Servicer shall release
to the applicable Mortgage Loan Seller any Escrow Payments and Reserve Funds
held by it in respect of such repurchased or deleted Trust Mortgage Loan;
provided that such tender by the Trustee or the Custodian shall be conditioned
upon its receipt from the applicable Master Servicer or the Special Servicer of
a Request for Release. Thereafter, the Trustee, any Fiscal Agent, the Custodian,
the applicable Master Servicer and the Special Servicer shall have no further
responsibility with regard to the related repurchased Trust Mortgage Loan(s) or
deleted Trust Mortgage Loan(s), as applicable, and the related Mortgage File(s)
and Servicing File(s). The applicable 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, and the
Trustee shall execute any powers of attorney that are prepared and delivered to
the Trustee by the applicable Master Servicer to permit the applicable Master
Servicer to do so. The applicable Master Servicer shall indemnify the Trustee
for any reasonable costs, fees, liabilities and expenses incurred by the Trustee
in connection with the negligent or willful misuse by the applicable Master
Servicer of such powers of attorney. At the time a substitution is made, the
applicable Mortgage Loan Purchase Agreement will provide that the applicable
Mortgage Loan Seller shall be required to deliver the related Mortgage File to
the Trustee and certify that the substitute Trust Mortgage Loan is a Qualified
Substitute Mortgage Loan.
(c) No substitution of a Qualified Substitute Mortgage Loan or
Loans may be made in any calendar month after the Determination Date for such
month. Periodic Payments due with respect to any Qualified Substitute Mortgage
Loan after the related date of substitution shall be part of REMIC I, as
applicable. No substitution of a Qualified Substitute Mortgage Loan for a
deleted Trust Mortgage Loan shall be permitted under this Agreement if after
such substitution, the aggregate of the Stated Principal Balances of all
Qualified Substitute Mortgage Loans which have been substituted for deleted
Trust Mortgage Loans exceeds 10% of the aggregate Cut-off Date Balance of all
the Trust Mortgage Loans. Periodic Payments due with respect to any Qualified
Substitute Mortgage Loan on or prior to the related date of substitution shall
not be part of the Trust Fund or REMIC I and will (to the extent received by the
applicable Master Servicer) be remitted by the applicable Master Servicer to the
applicable Mortgage Loan Seller promptly following receipt.
(d) The Mortgage Loan Purchase Agreements and Section 2.03(a) of
this Agreement 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 the Trust Mortgage Loans purchased by the Depositor
thereunder.
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(e) The Trustee with the cooperation of the Special Servicer
(in the case of Specially Serviced Mortgage Loans) shall, for the benefit of the
Certificateholders, enforce the obligations of each Mortgage Loan Seller under
Section 3 of the related Mortgage Loan Purchase Agreement.
Notwithstanding anything contained herein or the related Mortgage
Loan Purchase Agreement, no delay in the discovery of a Defect or Breach or
delay on the part of any party to this Agreement in providing notice of such
Defect or Breach shall relieve the related Mortgage Loan Seller of its
obligations to repurchase or substitute if it is otherwise required to do so
under the related Mortgage Loan Purchase Agreement.
If the applicable Mortgage Loan Seller incurs any expense in
connection with the curing of a Document Defect or a Breach which also
constitutes a default under the related Trust Mortgage Loan and is reimbursable
thereunder, such Mortgage Loan Seller shall have a right, and shall be
subrogated to the rights of the Trustee and the Trust Fund, as successor to the
mortgagee, to recover the amount of such expenses from the related Mortgagor;
provided, however, that such Mortgage Loan Seller's rights pursuant to this
paragraph shall be junior, subject and subordinate to the rights of the
applicable Master Servicer, the Special Servicer, the Trustee, any Fiscal Agent
and the Trust Fund to recover amounts owed by the related Mortgagor under the
terms of such Trust Mortgage Loan, including the rights to recover unreimbursed
Advances, accrued and unpaid interest on Advances at the Reimbursement Rate and
unpaid or unreimbursed expenses of the Trustee, any Fiscal Agent, the Trust
Fund, the applicable Master Servicer or the Special Servicer allocable to such
Trust Mortgage Loan. The applicable Master Servicer or, with respect to a
Specially Serviced Mortgage Loan, the Special Servicer, at such Mortgage Loan
Seller's expense, shall use commercially reasonable efforts to recover such
expenses for such Mortgage Loan Seller to the extent consistent with the
Servicing Standard, but taking into account the subordinate nature of the
reimbursement to the Mortgage Loan Seller; provided, however, that such Master
Servicer or, with respect to a Specially Serviced Mortgage Loan, the Special
Servicer determines in the exercise of its sole discretion consistent with the
Servicing Standard that such actions by it will not impair such Master
Servicer's and/or the Special Servicer's collection or recovery of principal,
interest and other sums due with respect to the related Trust Mortgage Loan
which would otherwise be payable to such Master Servicer, the Special Servicer,
the Trustee, any Fiscal Agent, and the Certificateholders pursuant to the terms
of this Agreement.
SECTION 2.04 Representations and Warranties of Depositor.
(a) The Depositor hereby represents and warrants to the Trustee,
for its own benefit and the benefit of the Certificateholders, and to each
Master Servicer, the Special Servicer and any Fiscal Agent, as of the Closing
Date, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Depositor, and the performance and compliance with the terms of this
Agreement by the Depositor, will not violate the Depositor's certificate
of incorporation or bylaws 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.
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(iii) The Depositor has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Depositor, enforceable against the
Depositor in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Depositor's good faith reasonable
judgment, is likely to affect materially and adversely either the ability
of the Depositor to perform its obligations under this Agreement or the
financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the
Trustee as contemplated herein requires no regulatory approval, other than
any such approvals as have been obtained, and is not subject to any bulk
transfer or similar law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the
Depositor's knowledge, threatened against the Depositor that, if
determined adversely to the Depositor, would prohibit the Depositor from
entering into this Agreement or that, in the Depositor's good faith
reasonable judgment, is likely to materially and adversely affect either
the ability of the Depositor to perform its obligations under this
Agreement or the financial condition of the Depositor.
(viii) Immediately prior to the transfer of the Trust
Mortgage Loans to the Trust Fund pursuant to Section 2.01(a) of this
Agreement (and assuming that the Mortgage Loan Sellers transferred to the
Depositor good and marketable title to their respective Mortgage Loans
free and clear of all liens, claims, encumbrances and other interests),
(A) the Depositor had good and marketable title to, and was the sole owner
and holder of, each Trust Mortgage Loan; and (B) the Depositor has full
right and authority to sell, assign and transfer the Trust Mortgage Loans
and all servicing rights pertaining thereto.
(ix) The Depositor is transferring the Trust Mortgage Loans
to the Trust Fund free and clear of any liens, pledges, charges and
security interests created by or through the Depositor.
(b) The representations and warranties of the Depositor set forth
in Section 2.04(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.
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SECTION 2.05 Acceptance of REMIC I and Grantor Trusts by Trustee.
The Trustee acknowledges the assignment to it of the Trust Mortgage
Loans and REMIC I, the ARD Loan Additional Interest and the other property
comprising Grantor Trust Z and the Excess Servicing Strip and the other property
comprising Grantor Trust E and declares that it holds and will hold the same in
trust for the exclusive use and benefit of: in the case of REMIC I, all present
and future Holders of the Class R-I Certificates and REMIC II as the holder of
the REMIC I Regular Interests; and in the case of Grantor Trust E, all present
and future holders of the Excess Servicing Strip; and in the case of the Grantor
Trust Z, all present and future holders of the Class Z Certificates.
SECTION 2.06 Execution, Authentication and Delivery of Class R-I
Certificates; Issuance of REMIC I Regular Interests.
In exchange for the assets included in REMIC I, REMIC I Regular
Interests have been issued pursuant to the written request of the Depositor
executed by an officer of the Depositor, the Certificate Registrar has executed,
and the Authenticating Agent has authenticated and delivered to or upon the
order of the Depositor, the Class R-I Certificates in authorized denominations.
SECTION 2.07 Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the respective Holders of the REMIC
II Certificates. The Trustee acknowledges the assignment to it of the REMIC I
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC II
Certificates.
SECTION 2.08 Execution, Authentication and Delivery of REMIC II
Certificates.
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests and in exchange therefor, the Class A-2FL REMIC II Regular
Interest and the Class AJ-FL REMIC II Regular Interest have been issued, and
pursuant to the written request of the Depositor, executed by an officer of the
Depositor, the Certificate Registrar has executed, and the Authenticating Agent
has authenticated and delivered to or upon the order of the Depositor, the REMIC
II Certificates in authorized denominations, evidencing, together with the Class
A-2FL REMIC II Regular Interest and the Class AJ-FL REMIC II Regular Interest,
the entire beneficial ownership of REMIC II. The rights of the holders of the
respective Classes of REMIC II Certificates, the Class A-2FL REMIC II Regular
Interest and the Class AJ-FL REMIC II Regular Interest to receive distributions
from the proceeds of REMIC II in respect of their REMIC II Certificates, the
Class A-2FL REMIC II Regular Interest or the Class AJ-FL REMIC II Regular
Interest, and all ownership interests evidenced or constituted by the respective
Classes of REMIC II Certificates, the Class A-2FL REMIC II Regular Interest and
the Class AJ-FL REMIC II Regular Interest, in such distributions, shall be as
set forth in this Agreement.
SECTION 2.09 Execution, Authentication and Delivery of Class Z
Certificates.
Concurrently with the assignment to it of the ARD Loan Additional
Interest and the other assets of Grantor Trust Z and in exchange therefor, the
Certificate Registrar, pursuant to the written
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request of the Depositor executed by an officer of the Depositor, has executed,
and the Authenticating Agent has authenticated, and delivered to or upon the
order of the Depositor, the Class Z Certificates.
SECTION 2.10 ML-CFC 0000-0 Xxxxxxx Xxxxx XX
(a) On the Closing Date, there is hereby established a separate
trust ("ML-CFC 2007-6 Grantor Trust FL"), into which the Depositor shall deposit
the Swap Agreements. ML-CFC 2007-6 Grantor Trust FL shall be maintained by the
Grantor Trust Trustee, who shall, at all times, be the entity acting as Trustee,
and shall be held for the benefit of the Holders of the Class A-2FL Certificates
and the Class AJ-FL Certificates. No later than the Closing Date, the Grantor
Trust Trustee shall establish and maintain the Floating Rate Account. Funds on
deposit in the Floating Rate Account shall be held separate and apart from, and
shall not be commingled with, any other funds, including, without limitation,
funds held by the Trustee pursuant to this Agreement.
(b) For federal income tax purposes, each Holder of the Class
A-2FL Certificates and the Class AJ-FL Certificates will be treated as having
acquired its proportionate share of the corresponding REMIC II Regular Interest
and having entered into its proportionate share of the related Swap Agreement.
Any amounts paid to a Swap Counterparty with respect to any Distribution Date
shall first be deemed paid to the Holders of the corresponding REMIC II Regular
Interest to the extent of the amount distributable on the corresponding REMIC II
Regular Interest.
(c) Any obligation of the Grantor Trust Trustee under the Swap
Agreements shall be deemed to be an obligation of ML-CFC 0000-0 Xxxxxxx Xxxxx XX
..
(d) The Trustee hereby agrees to act as the Grantor Trust Trustee
in accordance with the terms of this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01 Administration of the Mortgage Loans.
(a) Each of the Master Servicers and the Special Servicer shall
service and administer the Serviced Mortgage Loans 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 any Loan Combination,
for the benefit of the Certificateholders and the related Non-Trust
Noteholder(s)) in accordance with any and all applicable laws, the terms of this
Agreement, the terms of the respective Mortgage Loans and, in the case of a Loan
Combination, the terms of the related Loan Combination Intercreditor Agreement
(which, in the event of any conflict with this Agreement, shall control), to the
extent consistent with the foregoing, in accordance with the Servicing Standard.
Without limiting the foregoing, and subject to Section 3.21, (i) the
Master Servicers shall service and administer all Serviced Mortgage Loans that
are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall
service and administer each Specially Serviced Mortgage Loan and REO Property
and shall render such services with respect to all Mortgage Loans and REO
Properties as are specifically provided for herein; provided that the Master
Servicers shall continue to receive payments, and prepare, or cause to be
prepared, all reports required hereunder, except for the reports specified
herein, as prepared by the Special Servicer with respect to the Specially
Serviced Mortgage Loans, as if no Servicing Transfer Event had occurred and with
respect to the REO Properties (and the related REO Loans) as if no REO
Acquisition had occurred, and to render such incidental services with respect to
the Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein; provided, further, that neither Master Servicer shall be
liable for its failure to comply with such duties insofar as such failure
results from a failure by the Special Servicer to provide sufficient information
to such Master Servicer to comply with such duties or failure by the Special
Servicer to otherwise comply with its obligations hereunder. All references
herein to the respective duties of the Master Servicers and the Special
Servicer, and to the areas in which they may exercise discretion, shall be
subject to Section 3.21.
(b) Subject to Section 3.01(a), Section 6.11 and, if applicable,
Section 6.12, the Master Servicers and the Special Servicer each shall have full
power and authority, acting alone (or, pursuant to Section 3.22, through one or
more Sub-Servicers), to do or cause to be done any and all things in connection
with such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, each of the Master Servicers
and the Special Servicer, in its own name, with respect to each of the Serviced
Mortgage Loans it is obligated to service hereunder, is hereby authorized and
empowered by the Trustee and, pursuant to each Loan Combination Intercreditor
Agreement, by the related Non-Trust Noteholder(s), to execute and deliver, on
behalf of the Certificateholders, the Trustee and each such Non-Trust
Noteholder, (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 3.20, Section 6.11 and, if applicable, Section
6.12, any and all modifications, 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,
discharge, or assignment, and all
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other comparable instruments; and (iv) pledge agreements and other defeasance
documents in connection with a defeasance contemplated pursuant to Section
3.20(i). Subject to Section 3.10, the Trustee shall, at the written request of
the applicable Master Servicer or the Special Servicer, promptly execute any
limited powers of attorney and other documents furnished by such 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 either Master Servicer or the Special Servicer.
Notwithstanding anything contained herein to the contrary, neither the Master
Servicers 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,
in the case of a Non-Trust Loan, solely under the related Non-Trust Noteholder's
name) without indicating the representative capacity of the applicable Master
Servicer or the Special Servicer, as the case may be; or (ii) take any action
with the intent to cause, and that actually does cause, the Trustee to be
registered to do business in any state.
(c) The relationship of each of the Master Servicers and the
Special Servicer to the Trustee under this Agreement is intended by the parties
to be that of an independent contractor and not that of a joint venture or
partner or agent. No Person acting in any one or more of such capacities shall
be responsible for the actions of or failure to act by another Person acting in
any one or more of such capacities.
(d) Notwithstanding anything herein to the contrary, in no event
shall either Master Servicer, the Trustee or any Fiscal Agent make a Servicing
Advance with respect to any Non-Trust Loan to the extent the related Trust
Mortgage Loan has been paid in full or is no longer included in the Trust Fund.
(e) Neither the Master Servicers nor the Special Servicer shall
have any liability for the failure of any Mortgage Loan Seller to perform its
obligations under the related Mortgage Loan Purchase Agreement.
(f) The parties hereto acknowledge that each Loan Combination is
subject to the terms and conditions of the related Loan Combination
Intercreditor Agreement. The parties hereto further recognize the respective
rights and obligations of the related Non-Trust Noteholder(s) under the related
Loan Combination Intercreditor Agreement, including with respect to (i) the
allocation of collections on or in respect of the applicable Loan Combination,
and the making of payments, to such Non-Trust Noteholder(s) in accordance with
the related Loan Combination Intercreditor Agreement, (ii) the allocation of
expenses and/or losses relating to the subject Loan Combination to such
Non-Trust Noteholder(s) in accordance with the related Loan Combination
Intercreditor Agreement, and (iii) the right of a B-Note Loan Holder or its
designee to purchase the related Trust Mortgage Loan in accordance with the
related Loan Combination Intercreditor Agreement.
(g) With respect to any Loan Combination that includes a Serviced
Trust Mortgage Loan, in the event that either the related Trust Mortgage Loan or
the related Loan Combination REO Property (or any interest therein) is no longer
an asset of the Trust Fund and, except as contemplated in the second paragraph
of this Section 3.01(g), in accordance with the related Loan Combination
Intercreditor Agreement, the servicing and administration of such Loan
Combination and any related Loan Combination REO Property are to be governed by
a separate servicing agreement and not by this Agreement, then (either (i) with
the consent or at the request of the holders of each Mortgage Loan comprising
such Loan Combination or (ii) if expressly provided for in or pursuant to the
related Loan
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Combination Intercreditor Agreement) the applicable Master Servicer and, if such
Loan Combination is then being specially serviced hereunder or the related Loan
Combination Mortgaged Property has become a Loan Combination REO Property, the
Special Servicer, shall continue to act in such capacities under such separate
servicing agreement; provided that such separate servicing agreement shall be
reasonably acceptable to the applicable Master Servicer and/or the Special
Servicer, as the case may be, and shall contain servicing and administration,
limitation of liability, indemnification and servicing compensation provisions
substantially similar to the corresponding provisions of this Agreement, except
for the fact that such Loan Combination and the related Loan Combination
Mortgaged Property shall be the sole assets serviced and administered thereunder
and the sole source of funds thereunder.
Further, with respect to any Loan Combination that includes a
Serviced Trust Mortgage Loan, if at any time neither the related Trust Mortgage
Loan nor any related Loan Combination REO Property (or any interest therein) is
an asset of the Trust Fund, and if a separate servicing agreement with respect
to such Loan Combination or any related Loan Combination REO Property, as
applicable, has not been entered into as contemplated by the related Loan
Combination Intercreditor Agreement and the prior paragraph (for whatever
reason, including the failure to obtain any rating agency confirmation required
in connection therewith pursuant to the related Loan Combination Intercreditor
Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor
any related Loan Combination REO Property (or any interest therein) is an asset
of the Trust Fund, then, unless directed otherwise by the then current holders
of the Mortgage Notes comprising such Loan Combination, the applicable Master
Servicer and, if applicable, the Special Servicer shall continue to service and
administer such Loan Combination and/or any related Loan Combination REO
Property, for the benefit of the respective holders of such Loan Combination,
under this Agreement as if such Loan Combination or any related Loan Combination
REO Property were the sole assets subject hereto but shall not be required to
make any Advances with respect thereto.
(h) Nothing contained in this Agreement shall limit the ability of
either Master Servicer to lend money to or accept deposits from or otherwise
generally engage in any kind of business or dealings with any Mortgagor as
though such Master Servicer was not a party to this Agreement or to the
transactions contemplated hereby; provided, however, that no such loan made by
such Master Servicer may be secured, in whole or in part by any Mortgaged
Property securing a Mortgage Loan or by ownership interests in a Mortgagor, and
provided, further, that the foregoing provision shall not act to modify, qualify
or limit a Master Servicer's obligation to act in accordance with the Servicing
Standard.
(i) In clarification of, and neither in addition to nor in
deletion of the duties and obligations of the Master Servicers or the Special
Servicer pursuant to this Agreement, no provision herein contained shall be
construed as an express or implied guarantee by either Master Servicer or the
Special Servicer of the collectibility or recoverability of payments on the
Mortgage Loans or shall be construed to impair or adversely affect any rights or
benefits provided by this Agreement to such Master Servicer or the Special
Servicer (including with respect to Master Servicing Fees or the right to be
reimbursed for Advances). Any provision in this Agreement for any Advance by a
Master Servicer, the Special Servicer or the Trustee is intended solely to
provide liquidity for the benefit of the Certificateholders and, if applicable,
the Non-Trust Noteholders, and not as credit support or otherwise to impose on
any such Person the risk of loss with respect to one or more of the Mortgage
Loans. No provision hereof shall be construed to impose liability on either
Master Servicer or the Special Servicer for the reason that any recovery to the
Certificateholders (or, in the case of any Loan Combination, to the
Certificateholders and the related Non-Trust Noteholder(s)) in respect of a
Mortgage Loan at any time after a determination of present value recovery made
in its reasonable and good faith judgment in
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accordance with the Servicing Standard by such Master Servicer or the Special
Servicer hereunder at any time is less than the amount reflected in such
determination.
SECTION 3.02 Collection of Mortgage Loan Payments.
(a) Each of the Master Servicers or the Special Servicer shall
undertake reasonable efforts consistent with the Servicing Standard to collect
all payments required under the terms and provisions of the Serviced Mortgage
Loans it is obligated to service hereunder and shall, to the extent such
procedures shall be consistent with this Agreement, follow such collection
procedures in accordance with the Servicing Standard; provided that with respect
to the Serviced Mortgage Loans that have Anticipated Repayment Dates, so long as
the related Mortgagor is otherwise in compliance with each provision of the
related Mortgage Loan documents, the Master Servicers and the Special Servicer
(including the Special Servicer in its capacity as a Certificateholder), shall
not take any enforcement action with respect to the failure of the related
Mortgagor to make any payment of Additional Interest or principal in excess of
the principal component of the constant Periodic Payment, other than requests
for collection, until the maturity date of the related Mortgage Loan; provided,
further, that either Master Servicer or the Special Servicer, as the case may
be, may take action to enforce the Trust Fund's right to apply excess cash flow
to principal in accordance with the terms of the Mortgage Loan documents. Either
Master Servicer may, in its discretion, with respect to Serviced Mortgage Loans
that have Anticipated Repayment Dates, waive any or all of the Additional
Interest accrued on any such Serviced Mortgage Loan if the Mortgagor is ready
and willing to pay all other amounts due under such Serviced Mortgage Loan in
full, including the Stated Principal Balance, provided that it acts in
accordance with the Servicing Standard and it has received the consent of the
Special Servicer and the Controlling Class Representative (which consent will be
deemed granted if not denied in writing within 10 Business Days after the
Special Servicer's receipt of the applicable Master Servicer's request for such
consent), and neither of the Master Servicers nor the Special Servicer will have
any liability to the Trust Fund, the Certificateholders or any other person for
any determination that is made in accordance with the Servicing Standard. The
applicable Master Servicer, with regard to a Serviced Mortgage Loan that is not
a Specially Serviced Mortgage Loan, may waive any Default Charges in connection
with any payment on such Mortgage Loan two (2) times during any period of 12
consecutive months and no more than four (4) times following the Closing Date,
except that such limitations shall not apply with respect to the portion of any
Default Charges that would otherwise be payable to such Master Servicer pursuant
to Section 3.26. A waiver of Default Charges that is prohibited under the prior
sentence shall nonetheless be permitted with the consent of the Controlling
Class Representative, which consent shall be deemed granted if not denied in
writing (which may be sent via facsimile transmission or electronic mail) within
five Business Days of such request.
(b) All amounts collected in respect of any Serviced Mortgage Loan
in the form of payments from Mortgagors, Liquidation Proceeds (insofar as such
Liquidation Proceeds are of the nature described in clauses (i) through (iii) of
the definition thereof) or Insurance Proceeds shall be applied to either amounts
due and owing under the related Mortgage Note, loan agreement (if any) and
Mortgage (including, without limitation, for principal and accrued and unpaid
interest) in accordance with the express provisions of the related Mortgage
Note, loan agreement (if any) and Mortgage (and, with respect to any Loan
Combination, the related Loan Combination Intercreditor Agreement and the
documents evidencing and securing the related Non-Trust Loan(s)) except as
otherwise provided herein or, if required pursuant to the express provisions of
the related Mortgage or as determined by the applicable Master Servicer or the
Special Servicer in accordance with the Servicing Standard, to the repair or
restoration of the related Mortgaged Property, and, in the absence of such
express provisions,
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shall be applied (after reimbursement or payment, first, to the Trustee and any
Fiscal Agent, and second, to the applicable Master Servicer or the Special
Servicer, as the case may be, for any unpaid Master Servicing Fee, Special
Servicing Fee, Principal Recovery Fee, liquidation expenses and related
Additional Trust Fund Expenses) for purposes of this Agreement: first, in
connection with Liquidation Proceeds or Insurance Proceeds as a recovery of
Nonrecoverable Advances (and interest thereon) and Workout Delayed Reimbursement
Amounts with respect to such Mortgage Loan that were paid from principal
collections on the Serviced Mortgage Pool (including Unliquidated Advances) and
resulted in principal distributed to the Certificateholders being reduced;
second, as a recovery of any other related and unreimbursed Advances plus unpaid
interest accrued thereon; third, as a recovery of accrued and unpaid interest at
the related Mortgage Rate (net of the Master Servicing Fee Rate) on such
Serviced Mortgage Loan, to the extent such amounts have not been previously
advanced, and exclusive of any portion thereof that constitutes Additional
Interest; fourth, as a recovery of principal of such Serviced Mortgage Loan then
due and owing, including, without limitation, by reason of acceleration of such
Mortgage Loan following a default thereunder, to the extent such amounts have
not been previously advanced; fifth, as a recovery of Default Charges due and
owing on such Mortgage Loan; sixth, in accordance with the normal servicing
practices of the applicable Master Servicer, as a recovery of any other amounts
then due and owing under such Serviced Mortgage Loan (other than Additional
Interest), including, without limitation, Prepayment Premiums and Yield
Maintenance Charges; seventh, as a recovery of any remaining principal of such
Serviced Mortgage Loan to the extent of its entire remaining unpaid principal
balance; and eighth, with respect to any ARD Loan after its Anticipated
Repayment Date, as a recovery of any unpaid Additional Interest. All amounts
collected on any Trust Mortgage Loan in the form of Liquidation Proceeds of the
nature described in clauses (iv) through (ix) of the definition thereof shall be
deemed to be applied (after reimbursement or payment first to any Fiscal Agent,
second to the Trustee and third to the applicable Master Servicer or the Special
Servicer, as the case may be, for any unpaid Master Servicing Fee, Special
Servicing Fee, Principal Recovery Fee, liquidation expenses and related
Additional Trust Fund Expenses): first, as a recovery of any related and
unreimbursed Advances plus unpaid interest accrued thereon; second, as a
recovery of Nonrecoverable Advances (and interest thereon) and Workout-Delayed
Reimbursement Amounts with respect to such Mortgage Loan that were paid from
principal collections on the Mortgage Pool (including Unliquidated Advances) and
resulted in principal to the Certificateholders being reduced; third, as a
recovery of accrued and unpaid interest at the related Mortgage Rate (net of the
Master Servicing Fee Rate) on such Serviced Mortgage Loan to but not including
the Due Date in the Collection Period of receipt, to the extent such amounts
have not been previously advanced, and exclusive of any portion thereof that
constitutes Additional Interest; fourth, as a recovery of principal of such
Serviced Mortgage Loan up to its entire unpaid principal balance, to the extent
such amounts have not been previously advanced; and fifth, with respect to any
ARD Loan after its Anticipated Repayment Date, as a recovery of any unpaid
Additional Interest. Amounts collected on any REO Loan shall be deemed to be
applied in accordance with the definition thereof. The provisions of this
paragraph with respect to the application of amounts collected on any Serviced
Mortgage Loan shall not alter in any way the right of either Master Servicer,
the Special Servicer or any other Person to receive payments from the Collection
Accounts as set forth in Section 3.05(a) from amounts so applied.
(c) To the extent consistent with the terms of the related
Mortgage Loan and applicable law, the applicable Master Servicer shall apply all
Insurance Proceeds and condemnation proceeds it receives on a day other than the
Due Date to amounts due and owing under the related Mortgage Loan as if such
Insurance Proceeds and condemnation proceeds were received on the Due Date
immediately succeeding the month in which such Insurance Proceeds and
condemnation proceeds were received.
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(d) In the event that a Master Servicer or the Special Servicer
receives Additional Interest in any Collection Period, or receives notice from
the related Mortgagor that it will be receiving Additional Interest in any
Collection Period, such Master Servicer or the Special Servicer, as applicable,
shall, to the extent not included in the related CMSA Loan Periodic Update File,
promptly notify the Trustee. Subject to the provisions of Section 3.02(a)
hereof, none of the Master Servicers, the Trustee, any Fiscal Agent or the
Special Servicer shall be responsible for any such Additional Interest not
collected after notice from the related Mortgagor.
(e) With respect to any Mortgage Loan in connection with which the
Mortgagor was required to escrow funds or to post a letter of credit related to
obtaining certain performance objectives described in the applicable Mortgage
Loan documents, the applicable Master Servicer (with the consent of the Special
Servicer, which consent shall be deemed given if not denied within 10 Business
Days (or, if the Controlling Class Representative is entitled to object pursuant
to Section 6.11, 15 Business Days (which 15 Business Days shall include the five
Business Days specified in the proviso at the end of the first paragraph of
Section 6.11) of the Special Servicer's receipt of the applicable Master
Servicer's request for such consent and all reasonably requested information),
to the extent the Mortgage Loan documents provide for any discretion, with
respect to non-Specially Serviced Mortgage Loans, or the Special Servicer, with
respect to Specially Serviced Mortgage Loans shall, to the extent consistent
with the Servicing Standard, hold such escrows, letters of credit and proceeds
thereof as additional collateral and not apply such items to reduce the
principal balance of such Mortgage Loan unless otherwise required to do so
pursuant to the applicable Mortgage Loan documents, applicable law or the
Servicing Standard.
(f) Promptly following the Closing Date, the Trustee shall send a
copy of this Pooling and Servicing Agreement fully executed by the parties
hereto and written notice to the WBCMT Series 2007-C30 Master Servicer, the
WBCMT 2007-C30 Special Servicer and the WBCMT 2007-C30 Trustee, stating that, as
of the Closing Date, the Trustee is the holder of the Xxxxx Xxxxxx Village and
Stuyvesant Town Trust Mortgage Loan and directing the WBCMT Series 2007-C30
Master Servicer to remit to Master Servicer No. 1 all amounts payable to, and to
forward, deliver or otherwise make available to, Master Servicer No. 1 all
reports, statements, documents, communications and other information that are to
be forwarded, delivered or otherwise made available to, the holder of the Xxxxx
Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan under the Xxxxx Xxxxxx
Village and Stuyvesant Town Intercreditor Agreement and the WBCMT Series
2007-C30 Pooling and Servicing Agreement. Master Servicer No. 1 shall, within
one Business Day of receipt thereof, deposit into the Collection Account all
amounts received by it from the WBCMT Series 2007-C30 Master Servicer or any
other party under the WBCMT Series 2007-C30 Pooling and Servicing Agreement with
respect to the Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan, or
the Xxxxx Xxxxxx Village and Stuyvesant Town Mortgaged Property or any Xxxxx
Xxxxxx Village and Stuyvesant Town REO Property. In the event Master Servicer
No. 1 fails to so receive any amounts due to the Trust Fund as holder of the
Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan under the Xxxxx
Xxxxxx Village and Stuyvesant Town Intercreditor Agreement and the WBCMT Series
2007-C30 Pooling and Servicing Agreement by the Determination Date occurring in
such calendar month, Master Servicer No. 1 shall notify the WBCMT Series
2007-C30 Master Servicer, the WBCMT Series 2007-C30 Trustee, the Trustee and any
Fiscal Agent that such amounts due with respect to the Xxxxx Xxxxxx Village and
Stuyvesant Town Trust Mortgage Loan have not been received (specifying the
amount of such deficiency).
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SECTION 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Advances; Servicing Accounts; Reserve
Accounts.
(a) Each Master Servicer shall, as to all Serviced Mortgage Loans
establish and maintain one or more accounts (the "Servicing Accounts"), into
which all Escrow Payments shall be deposited and retained, and shall administer
such accounts in accordance with the terms of the Mortgage Loan documents;
provided that, in the case of a Loan Combination, if the related Servicing
Account includes funds with respect to any other Serviced Mortgage Loan, then
the applicable Master Servicer shall maintain a separate sub-account of such
Servicing Account that relates solely to such Loan Combination. Each Servicing
Account with respect to a Serviced Mortgage Loan shall be an Eligible Account
unless not permitted by the terms of the applicable Mortgage Loan documents.
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 Serviced Mortgage
Loan or, in the case of clauses (iv) and (v) below, to the extent of interest or
other income earned on such amounts) only for the following purposes: (i)
consistent with the related 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 applicable Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent, as the case may be, for any such
Servicing Advance (provided that any interest thereon may only be withdrawn from
its Collection Account), (iii) to refund to Mortgagors any sums as may be
determined to be overages; (iv) to pay interest, if required by law or the
related Mortgage Loan documents and as described below, to Mortgagors on
balances in the respective Servicing Accounts; (v) to pay the applicable Master
Servicer interest and investment income on balances in the Servicing Accounts as
described in Section 3.06(b), if and to the extent not required by law or the
terms of the related Mortgage Loan documents to be paid to the Mortgagor; (vi)
during an event of default under the related Serviced Mortgage Loan, for any
other purpose permitted by the related Mortgage Loan documents, applicable law
and the Servicing Standard; (vii) to withdraw amounts deposited in error; (viii)
to clear and terminate the Servicing Accounts at the termination of this
Agreement in accordance with Section 9.01; or (ix) only as, when and to the
extent permitted under the Mortgage Loan documents, to effect payment of accrued
and unpaid late charges, default interest and other reasonable fees. 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 and in accordance with the terms of the
related Mortgage Loan documents. Each Master Servicer shall pay or cause to be
paid to the applicable Mortgagors interest, if any, earned on the investment of
funds in the related Servicing Accounts maintained thereby, if required by law
or the terms of the related Serviced Mortgage Loan. If either 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. The Servicing Accounts
shall not be considered part of the segregated pool of assets constituting the
REMIC I, REMIC II, ML-CFC 2007-6 Grantor Trust FL or Grantor Trust E. If for any
reason any Escrow Payments or Reserve Funds are received by the Special
Servicer, then promptly after such receipt, and in any event within two Business
Days of such receipt, the Special Servicer shall remit such Escrow Payments to
the applicable Master Servicer for deposit in the applicable Servicing
Account(s).
(b) Each Master Servicer, with respect to Serviced Mortgage Loans
serviced thereby that are not Specially Serviced Mortgage Loans, or the Special
Servicer with respect to Specially
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Serviced Mortgage Loans and Serviced REO Loans, shall (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 Mortgage Loan required the related
Mortgagor to escrow for such items, shall effect payment thereof prior to the
applicable penalty or termination date 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. For purposes of effecting any
such payment for which it is responsible, the applicable Master Servicer shall
apply Escrow Payments (at the direction of the Special Servicer for Specially
Serviced Mortgage Loans and Serviced REO Loans) as allowed under the terms of
the related Serviced Mortgage Loan or, if such Serviced Mortgage Loan does not
require the related Mortgagor to escrow for the payment of real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items,
the applicable Master Servicer shall, as to all Serviced Mortgage Loans, use
reasonable efforts consistent with the Servicing Standard to cause the 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.
(c) Each Master Servicer shall, as to all Serviced Mortgage Loans,
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 the costs and expenses described in the definition of "Servicing
Advances", provided that neither Master Servicer shall make any Servicing
Advance prior to the penalty date or cancellation date, as applicable, if the
applicable Master Servicer reasonably anticipates in accordance with the
Servicing Standard that the Mortgagor will pay such amount on or before the
penalty date or cancellation date, and provided, further, that neither Master
Servicer shall be obligated to make any Servicing Advance that would, if made,
constitute a Nonrecoverable Servicing Advance. All such Servicing Advances shall
be reimbursable in the first instance from related collections from the
Mortgagors, and in the case of REO Properties, from the operating revenues
related thereto, and further as provided in Section 3.05(a) and/or Section
3.05(e). No costs incurred by either Master Servicer in effecting the payment of
real estate taxes, assessments and, if applicable, ground rents on or in respect
of such Mortgaged Properties shall, for purposes of this Agreement, including,
without limitation, the Trustee's calculation of monthly distributions to
Certificateholders, be added to the unpaid Stated Principal Balances of the
related Serviced Mortgage Loans, notwithstanding that the terms of such Serviced
Mortgage Loans so permit. The foregoing shall in no way limit the applicable
Master Servicer's ability to charge and collect from the Mortgagor such costs
together with interest thereon.
The Special Servicer shall give the applicable Master Servicer, the
Trustee and any Fiscal Agent not less than five Business Days' notice (or, in an
emergency situation, not less than two Business Days' notice) with respect to
Servicing Advances to be made on any Specially Serviced Mortgage Loan or
Administered REO Property, before the date on which the applicable Master
Servicer is required to make any Servicing Advance with respect to a given
Serviced Mortgage Loan or Administered REO Property; provided, however, that the
Special Servicer may (without implying any duty to do so) make any Servicing
Advance on a Specially Serviced Mortgage Loan or Administered REO Property only
as may be required on an urgent or emergency basis. In addition, the Special
Servicer shall provide the applicable Master Servicer, the Trustee and any
Fiscal Agent with such information in its possession as the applicable Master
Servicer, the Trustee or any Fiscal Agent, as applicable, may reasonably request
to
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enable the applicable Master Servicer, the Trustee or any Fiscal Agent, as
applicable, to determine whether a requested Servicing Advance would constitute
a Nonrecoverable Servicing Advance. The Special Servicer shall not be entitled
to deliver such a notice (other than for emergency Servicing Advances) more
frequently than once per calendar month (although such notice may relate to more
than one Servicing Advance). The Master Servicer to whom the Special Servicer
has given notice (as contemplated above) regarding a Servicing Advance that is
to be made will have the obligation to make any such Servicing Advance (other
than a Nonrecoverable Servicing Advance) that it is so requested by the Special
Servicer to make, within five Business Days after such Master Servicer's receipt
of such request. If the request is timely and properly made, the Special
Servicer shall be relieved of any obligations with respect to a Servicing
Advance that it so requests the applicable Master Servicer to make with respect
to any Specially Serviced Mortgage Loan or Administered REO Property (regardless
of whether or not such Master Servicer shall make such Servicing Advance). The
applicable Master Servicer shall be entitled to reimbursement for any Servicing
Advance made by it at the direction of the Special Servicer, together with
interest accrued thereon, at the same time, in the same manner and to the same
extent as such Master Servicer is entitled with respect to any other Servicing
Advances made thereby. Any request by the Special Servicer that a Master
Servicer make a Servicing Advance shall be deemed to be a determination by the
Special Servicer that such requested Servicing Advance is not a Nonrecoverable
Servicing Advance, and the applicable Master Servicer shall be entitled to (but
shall have no obligation to) conclusively rely on such determination. On the
fourth Business Day before each Distribution Date, the Special Servicer shall
report to the applicable Master Servicer the Special Servicer's determination
that any Servicing Advance previously made with respect to a Specially Serviced
Mortgage Loan or Serviced REO Loan is a Nonrecoverable Servicing Advance. The
applicable Master Servicer shall act in accordance with such determination and
shall be entitled to rely conclusively on such determination; provided that, no
party hereto may reverse any determination made by another party hereto that a
Servicing Advance is a Nonrecoverable Advance.
No later than 1:00 p.m., New York City time, on the first
Determination Date that follows the date on which it makes any Servicing
Advance, the Special Servicer shall provide the applicable Master Servicer an
Officer's Certificate (via facsimile) setting forth the details of the Servicing
Advance, upon which such Master Servicer may conclusively rely in reimbursing
the Special Servicer. The applicable Master Servicer shall be obligated, out of
its own funds, to reimburse the Special Servicer for any unreimbursed Servicing
Advances (other than Nonrecoverable Servicing Advances) made by the Special
Servicer together with interest thereon at the Reimbursement Rate from the date
made to, but not including, the date of reimbursement. Any such reimbursement,
together with any accompanying payment of interest, shall be made by the
applicable Master Servicer, by wire transfer of immediately available funds to
an account designated by the Special Servicer, no later than the first P&I
Advance Date that is at least three (3) Business Days after the date on which
such Master Servicer receives the corresponding Officer's Certificate
contemplated by the prior sentence; provided that any such Officer's Certificate
received after 1:00 p.m., New York City time, on any particular date shall, for
purposes of any such reimbursement, be deemed received on the next succeeding
Business Day. Upon its reimbursement to the Special Servicer of any Servicing
Advance and payment to the Special Servicer of interest thereon, the applicable
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 actually made
such Servicing Advance, and accordingly, such Master Servicer shall be entitled
to reimbursement for such Servicing Advance, together with interest accrued
thereon, at the same time, in the same manner and to the same extent as such
Master Servicer would otherwise have been entitled if it had actually made such
Servicing Advance at the time the Special Servicer did.
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Notwithstanding the foregoing provisions of this Section 3.03(c), a
Master Servicer shall not be required to reimburse the Special Servicer for, or
to make at the direction of the Special Servicer, any Servicing Advance if such
Master Servicer determines that such Servicing Advance, although not
characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is
a Nonrecoverable Servicing Advance. The subject Master Servicer shall notify the
Special Servicer in writing of such determination and, if applicable, such
Nonrecoverable Servicing Advance shall be reimbursed to the Special Servicer
pursuant to Section 3.05(a) or 3.05(e).
If a Master Servicer is required under any provision of this
Agreement (including, but not limited to, this Section 3.03(c)) to make a
Servicing Advance, but does not do so within 15 days after such Advance is
required to be made, the Trustee shall, if a Responsible Officer of the Trustee
has actual knowledge of such failure on the part of such Master Servicer, give
written notice of such failure to such Master Servicer. If such Servicing
Advance is not made by the subject Master Servicer within five Business Days
after such notice then (subject to a determination that such Servicing Advance
would not be a Nonrecoverable Servicing Advance) the Trustee shall make such
Servicing Advance. If the Trustee does not make such Servicing Advance within
such period, any Fiscal Agent shall make such Servicing Advance within such
period. Any failure by a Master Servicer to make a Servicing Advance hereunder
shall constitute an Event of Default by such Master Servicer subject to and as
provided in Section 7.01.
(d) In connection with its recovery of any Servicing Advance from
a Collection Account pursuant to Section 3.05(a) or from a Loan Combination
Custodial Account pursuant to Section 3.05(e) or from a Servicing Account or
Reserve Fund pursuant to Section 3.03(a), as applicable, each of the Master
Servicers, the Special Servicer, the Trustee and any Fiscal Agent shall be
entitled to receive, out of amounts then on deposit in the applicable Collection
Account as provided in Section 3.05(a) or in such Loan Combination Custodial
Account as provided in Section 3.05(e), as applicable, any unpaid interest at
the Reimbursement Rate in effect from time to time, accrued on the amount of
such Servicing Advance (to the extent made with its own funds) from the date
made to but not including the date of reimbursement, such interest to be
payable: first, out of Default Charges received on the related Serviced Mortgage
Loans and Administered REO Properties during the Collection Period in which such
reimbursement is made, and then, to the extent that such Default Charges are
insufficient, but only after or at the same time the related Advance has been or
is reimbursed pursuant to this Agreement, from general collections on the Trust
Mortgage Loans then on deposit in the applicable Collection Account or in such
Loan Combination Custodial Account, as applicable; provided that interest on
Servicing Advances with respect to a Loan Combination or any related Loan
Combination Mortgaged Property shall, to the maximum extent permitted under the
related Loan Combination Intercreditor Agreement, be payable out of amounts then
on deposit in the related Loan Combination Custodial Account and otherwise
payable to the related B-Note Loan Holder and/or payments having then been
received from the related B-Note Loan Holder under the related Loan Combination
Intercreditor Agreement for such purpose. Subject to any exercise of the option
to defer reimbursement for Advances pursuant to Section 4.03(f), the applicable
Master Servicer shall reimburse itself, the Special Servicer, the Trustee or any
Fiscal Agent, as the case may be, for any outstanding Servicing Advance made
thereby as soon as practicable after funds available for such purpose have been
received by such Master Servicer, and in no event shall interest accrue in
accordance with this Section 3.03(d) on any Servicing Advance as to which the
corresponding Escrow Payment or other similar payment by the Mortgagor was
received by the applicable Master Servicer on or prior to the date the related
Servicing Advance was made.
(e) The determination by a Master Servicer or the Special Servicer
that it has made a Nonrecoverable Servicing Advance or that any proposed
Servicing Advance, if made, would constitute a
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Nonrecoverable Servicing Advance, shall be evidenced by an Officer's Certificate
delivered promptly to the Trustee, any Fiscal Agent, the Depositor and, in the
case of a Loan Combination, the related Non-Trust Noteholder(s), setting forth
the basis for such determination, together with a copy of any Appraisal (the
cost of which may be paid out of the applicable Collection Account pursuant to
Section 3.05(a) or, in the case of a Loan Combination, out of the related Loan
Combination Custodial Account pursuant to Section 3.05(e)) of the related
Mortgaged Property or REO Property, as the case may be, which Appraisal shall be
obtained pursuant to Section 3.09(a) by the applicable Master Servicer, or by or
on behalf of the Special Servicer if the Mortgage Loan is a Defaulted Mortgage
Loan (or, if no such Appraisal has been performed, a copy of an Appraisal of the
related Mortgaged Property or REO Property, performed within the twelve months
preceding such determination and the party delivering such appraisal has no
actual knowledge of a material adverse change in the condition of the related
Mortgaged Property that would draw into question the applicability of such
Appraisal) and further accompanied by related Mortgagor operating statements and
financial statements, budgets and rent rolls of the related Mortgaged Property
and any engineers' reports, environmental surveys or similar reports that the
applicable Master Servicer or the Special Servicer may have obtained and that
support such determination. The Trustee and any Fiscal Agent shall act in
accordance with any determination made by the applicable Master Servicer or the
Special Servicer that a Servicing Advance, if made, would be a Nonrecoverable
Advance and shall be entitled to rely, conclusively, on such determination by
such Master Servicer or the Special Servicer; provided, however, that if such
Master Servicer has failed to make a Servicing Advance for reasons other than a
determination by such Master Servicer or the Special Servicer that such
Servicing Advance would be a Nonrecoverable Advance, the Trustee or any Fiscal
Agent shall make such Servicing Advance within the time periods required by
Section 3.03(c) unless the Trustee or any Fiscal Agent in good faith makes a
determination that such Servicing Advance would be a Nonrecoverable Advance. The
applicable Person shall consider Unliquidated Advances in respect of prior
Servicing Advances as outstanding Advances for purposes of recoverability
determinations as if such Unliquidated Advance were a Servicing Advance.
(f) Each Master Servicer shall, as to all Serviced Mortgage Loans,
establish and maintain, as applicable, one or more accounts (the "Reserve
Accounts"), into which all Reserve Funds, if any, shall be deposited and
retained; provided that, in the case of a Loan Combination, if the related
Reserve Account includes funds with respect to any other Serviced Mortgage Loan,
then the applicable Master Servicer shall maintain a separate sub-account of
such Reserve Account that relates solely to such Loan Combination. Withdrawals
of amounts so deposited may be made (i) to pay for, or to reimburse the related
Mortgagor in connection with, the related environmental remediation, repairs
and/or capital improvements, tenant improvements and/or leasing commissions with
respect to the related Mortgaged Property if the repairs and/or capital
improvements have been completed, and such withdrawals are made in accordance
with the Servicing Standard and the terms of the related Mortgage Note, Mortgage
and any agreement with the related Mortgagor governing such Reserve Funds and
any other items for which such Reserve Funds were intended pursuant to the loan
documents, (ii) to pay the applicable Master Servicer interest and investment
income earned on amounts in the Reserve Accounts if permitted under the related
Mortgage Loan documents, (iii) during an event of default under the related
Serviced Mortgage Loan, for any other purpose permitted by the related Mortgage
Loan documents, applicable law and the Servicing Standard and (iv) to withdraw
funds deposited in error. To the extent permitted in the applicable Mortgage
Loan documents, funds in the Reserve Accounts to the extent invested may be only
invested in Permitted Investments in accordance with the provisions of Section
3.06. All Reserve Accounts shall be Eligible Accounts. The Reserve Accounts
shall not be considered part of the segregated pool of assets comprising REMIC
I, REMIC II, ML-CFC 0000-0 Xxxxxxx Xxxxx XX, Grantor Trust Z and Grantor Trust
E. Consistent with the Servicing Standard, either
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Master Servicer may waive or extend the date set forth in any agreement
governing such Reserve Funds by which the required repairs and/or capital
improvements at the related Mortgaged Property must be completed.
(g) Notwithstanding anything to the contrary in this Agreement,
but subject to the limitations on reimbursements in Section 4.03, a Master
Servicer may (and, at the direction of the Special Servicer if a Specially
Serviced Mortgage Loan or an Administered REO Property is involved, shall) pay
directly out of its Collection Account or, with respect to a servicing expense
relating to a Non-Trust Loan or related to a Loan Combination Mortgaged
Property, out of the related Loan Combination Custodial Account any servicing
expense that, if paid by a Master Servicer or the Special Servicer, would
constitute a Nonrecoverable Servicing Advance for the subject Serviced Mortgage
Loan or Administered REO Property; provided that the applicable Master Servicer
(or the Special Servicer, if a Specially Serviced Mortgage Loan or an
Administered REO Property is involved) has determined in accordance with the
Servicing Standard that making such payment is in the best interests of the
Certificateholders (as a collective whole) (or, with respect to a Loan
Combination, if paid out of the related Loan Combination Custodial Account, in
the best interests of the Certificateholders and the related Non-Trust
Noteholder(s), as a collective whole), as evidenced by an Officer's Certificate
delivered promptly to the Depositor, the Trustee and the Controlling Class
Representative, setting forth the basis for such determination and accompanied
by any information that such Person may have obtained that supports such
determination. The applicable Master Servicer and the Special Servicer shall
deliver a copy of any such Officer's Certificate (and accompanying information)
promptly to the other such Person.
(h) To the extent an operations and maintenance plan is required
to be established and executed pursuant to the terms of a Serviced Mortgage Loan
(each of which Serviced Mortgage Loans is listed on Schedule VI hereto), the
applicable Master Servicer shall request from the Mortgagor written confirmation
thereof within a reasonable time after the later of the Closing Date and the
date as of which such plan is required to be established or completed. To the
extent any repairs, capital improvements, actions or remediations are required
to have been taken or completed pursuant to the terms of the Serviced Mortgage
Loan, the applicable Master Servicer shall request from the Mortgagor written
confirmation of such actions and remediations within a reasonable time after the
later of the Closing Date and the date as of which such action or remediations
are required to be or to have been taken or completed. To the extent a Mortgagor
shall fail to promptly respond to any inquiry described in this Section 3.03(h),
the applicable Master Servicer shall determine whether the Mortgagor has failed
to perform its obligations under the respective Serviced Mortgage Loan and
report any such failure to the Special Servicer within a reasonable time after
the date as of which such operations and maintenance plan is required to be
established or executed or the date as of which such actions or remediations are
required to be or to have been taken or completed.
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SECTION 3.04 Collection Accounts, Interest Reserve Account,
Additional Interest Account, Distribution Account,
Gain-on-Sale Reserve Account and Loan Combination
Custodial Accounts.
(a) Each Master Servicer shall establish and maintain one or more
accounts (as to each Master Servicer, a "Collection Account"), held on behalf of
the Trustee in trust for the benefit of the Certificateholders. Each Collection
Account shall be an Eligible Account. Each Master Servicer shall deposit or
cause to be deposited in its Collection Account, within one Business Day of
receipt of available funds (in the case of payments by Mortgagors or other
collections on the Trust Mortgage Loans) or as otherwise required hereunder, the
following payments and collections received or made by such Master Servicer or
on its behalf subsequent to the Cut-off Date (other than in respect of principal
and interest on the Trust Mortgage Loans due and payable on or before the
Cut-off Date, which payments shall be delivered promptly to the applicable
Mortgage Loan Seller or its designee, with negotiable instruments endorsed as
necessary and appropriate without recourse), other than amounts received from
Mortgagors which are to be used to purchase defeasance collateral, 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 Trust
Mortgage Loans including Principal Prepayments;
(ii) all payments on account of interest on the Trust
Mortgage Loans including Additional Interest and Penalty Interest;
(iii) all Prepayment Premiums, Yield Maintenance Charges
and late payment charges received in respect of the Trust Mortgage Loans;
(iv) all Insurance Proceeds and Liquidation Proceeds (other
than Gain-on-Sale Proceeds) received in respect of any Trust Mortgage
Loan, and together with any amounts representing recoveries of
Workout-Delayed Reimbursement Amounts and/or Nonrecoverable Advances in
respect of the related Trust Mortgage Loans, in each case to the extent
not otherwise required to be applied to the restoration of the Mortgaged
Property or released to the related Mortgagor;
(v) any amounts required to be deposited by such Master
Servicer pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the Collection Account;
(vi) any amounts required to be deposited by such 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 3.16(c);
(viii) any amount in respect of Purchase Prices and
Substitution Shortfall Amounts pursuant to Section 2.03(b);
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(ix) any amount required to be deposited by such Master
Servicer pursuant to Section 3.19(a) in connection with Prepayment
Interest Shortfalls and Casualty/Condemnation Interest Shortfalls;
(x) any amount paid by or on behalf of a Mortgagor to cover
items for which a Servicing Advance has been previously made, and payments
collected in respect of Unliquidated Advances;
(xi) any amounts representing a reimbursement, payment
and/or contribution due and owing to the Trust from a Non-Trust Noteholder
in accordance with the related Loan Combination Intercreditor Agreement;
(xii) any amounts required to be transferred from any Loan
Combination Custodial Account pursuant to Section 3.05(e); and
(xiii) all remittances to the Trust under the WBCMT Series
2007-C30 Pooling and Servicing Agreement and/or the Xxxxx Xxxxxx Village
and Stuyvesant Town Intercreditor Agreement with respect to the Xxxxx
Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan or any Xxxxx Xxxxxx
Village and Stuyvesant Town REO Property.
provided that, in the case of a Trust Mortgage Loan that is part of a Loan
Combination, any amounts required to be deposited in the related Loan
Combination Custodial Account, pursuant to Section 3.04(h), shall first be so
deposited therein and shall thereafter be transferred to the applicable
Collection Account only to the extent provided in Section 3.05(e).
Notwithstanding the foregoing requirements, neither Master Servicer
shall be obligated to deposit into the related Collection Account any amount
that such Master Servicer would be authorized to withdraw immediately from such
Collection Account in accordance with the terms of Section 3.05 and shall be
entitled to instead pay such amount directly to the Person(s) entitled thereto.
The foregoing requirements for deposit in the Collection Accounts
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, amounts to be deposited in Reserve
Accounts, and amounts that the applicable Master Servicer and the Special
Servicer are entitled to retain as additional servicing compensation pursuant to
Sections 3.11(b) and (d), need not be deposited by such Master Servicer in its
Collection Account. If either Master Servicer shall deposit in its Collection
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from its Collection Account, any provision herein to the
contrary notwithstanding. Each Master Servicer shall promptly deliver to the
Special Servicer as additional special servicing compensation in accordance with
Section 3.11(d), assumption fees, late payment charges (to the extent not
applied to pay interest on Advances or Additional Trust Fund Expenses as
provided in Sections 3.03(d),3.12 and 4.03(d) or otherwise applied pursuant to
Section 3.26) and other transaction fees or other expenses received by such
Master Servicer to which the Special Servicer is entitled pursuant to Section
3.11 upon receipt of a certificate of a Servicing Officer of the Special
Servicer describing the item and amount. The Collection Accounts shall be
maintained as a segregated accounts, separate and apart from trust funds created
for mortgage pass-through certificates of other series and the other accounts of
the Master Servicers.
Upon receipt of any of the amounts described in clauses (i) through
(iv), (x) and (xi) of the second preceding paragraph with respect to any
Serviced Trust Mortgage Loan, the Special Servicer
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shall promptly, but in no event later than one Business Day after receipt of
available funds, remit such amounts (net of any reimbursable expenses incurred
by the Special Servicer) to or at the direction of the applicable Master
Servicer for deposit into its Collection Account in accordance with the second
preceding paragraph or any related Loan Combination Custodial Account pursuant
to Section 3.04(h), unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item should not be deposited because of a
restrictive endorsement. Any such amounts received by the Special Servicer with
respect to an Administered REO Property shall be deposited by the Special
Servicer into the related REO Account and remitted to the applicable Master
Servicer for deposit into its Collection Account or any applicable Loan
Combination Custodial Account, as the case may be, pursuant to Section 3.16(c).
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
applicable Master Servicer and shall deliver promptly, but in no event later
than two Business Days after receipt, any such check to the applicable Master
Servicer by overnight courier, 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.
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") at its Corporate Trust
Office to be held in trust for the benefit of the Certificateholders. The
Distribution Account shall be an Eligible Account. Each Master Servicer shall
deliver to the Trustee each month on or before 2:00 p.m. (New York City time) on
the P&I Advance Date therein, for deposit in the Distribution Account, an
aggregate amount of immediately available funds equal to that portion of the
Available Distribution Amount (calculated without regard to clauses (a)(ii),
(a)(v), (b)(ii)(B) and (b)(v) of the definition thereof) for the related
Distribution Date then on deposit in such Master Servicer's Collection Account,
together with (i) any Prepayment Premiums and/or Yield Maintenance Charges
received on the related Trust Mortgage Loans during the related Collection
Period, and (ii) in the case of the final Distribution Date, any additional
amounts contemplated by the second or third, as applicable, paragraph of Section
9.01.
In addition, each Master Servicer shall, as and when required
hereunder, deliver to the Trustee for deposit in the Distribution Account:
(i) any P&I Advances required to be made by such Master
Servicer in accordance with Section 4.03(a); and
(ii) the aggregate purchase price paid in connection with
the purchase by such Master Servicer of all of the Trust Mortgage Loans
and any REO Properties (net of any portion of such aggregate purchase
price to be paid to any Non-Trust Noteholder(s)) pursuant to Section 9.01,
exclusive of the portion of such amounts required to be deposited in its
Collection Account pursuant to Section 9.01.
If, in connection with any Distribution Date, the Trustee has
reported the amount of an anticipated distribution to the Depository based on
information reported to it by each Master Servicer pursuant to Section 3.12, and
the funds (including, but not limited to, unscheduled payments, late payments,
Principal Prepayments or Balloon Payments) remitted to it by a Master Servicer
differ in amount from what was reported to the Trustee by such Master Servicer,
the Trustee shall use commercially reasonable efforts to cause the Depository to
revise the related distribution and make such revised distribution on a timely
basis on such Distribution Date, but there can be no assurance that the
Depository can do so. The Trustee, the Master Servicers, the Special Servicer
and any Fiscal Agent
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shall not be liable or held responsible for any resulting delay (or claims by
the Depository resulting therefrom) in the making of such revised distribution
to the Certificateholders. In addition, if the Trustee incurs out-of-pocket
expenses, despite reasonable efforts to avoid and mitigate such expenses, as a
consequence of attempting to revise such distribution to the Depository, the
Trustee shall be entitled to reimbursement from the Trust Fund, payable from
amounts on deposit in the Distribution Account.
The Trustee shall, upon receipt, deposit in the Distribution Account
any and all amounts received by the Trustee that are required by the terms of
this Agreement to be deposited therein. The Trustee shall also deposit into the
Distribution Account any amounts required to be deposited by the Trustee
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Distribution Account.
(c) The Trustee shall establish and maintain one or more accounts
(which may be sub-accounts of the Distribution Account) (collectively, the
"Interest Reserve Account"), in trust for the benefit of the Certificateholders.
The Interest Reserve Account shall be an Eligible Account. On or before each
Distribution Date in February and, during each year that is not a leap year,
January, the Trustee shall withdraw from the Distribution Account and deposit in
the Interest Reserve Account, with respect to each Interest Reserve Loan, an
amount equal to the Interest Reserve Amount in respect of such Interest Reserve
Loan for such Distribution Date (such withdrawal from the Distribution Account
to be made out of general collections on the Mortgage Pool including any related
P&I Advance that was deposited in the Distribution Account). The Trustee shall
also deposit into the Interest Reserve Account any amounts required to be
deposited by the Trustee pursuant to Section 3.06 in connection with losses
incurred with respect to Permitted Investments of funds held in the Interest
Reserve Account.
(d) Prior to any Collection Period during which Additional
Interest is received on the Trust Mortgage Loans, and upon notification from
either Master Servicer or the Special Servicer pursuant to Section 3.02(d), the
Trustee shall establish and maintain the Additional Interest Account in the name
of the Trustee in trust for the benefit of the Class Y Certificateholders and
the Class Z Certificateholders, as applicable. The Additional Interest Account
shall be established and maintained as an Eligible Account. Prior to each
Distribution Date, each Master Servicer shall remit to the Trustee for deposit
in the Additional Interest Account an amount equal to the Additional Interest
received on the Trust ARD Loans serviced thereby and, if applicable, on the
Convertible Rate Mortgage Loan and any successor Trust REO Loans with respect
thereto during the applicable Collection Period. The Trustee shall also deposit
into the Additional Interest Account any amounts required to be deposited by the
Trustee pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Additional Interest Account.
Following the distribution of Additional Interest to Class Y
Certificateholders and Class Z Certificateholders on the first Distribution Date
after which there are no longer any Trust Mortgage Loans outstanding which
pursuant to their terms could pay Additional Interest or any successor Trust REO
Loans with respect thereto, the Trustee shall terminate the Additional Interest
Account.
(e) The Trustee shall establish (upon notice from the Special
Servicer of an event occurring that generates Gain-on-Sale Proceeds) and
maintain the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders. The Gain-on-Sale Reserve Account shall be an Eligible
Account. The Gain-on-Sale Reserve Account shall be maintained as a segregated
account or a sub-account of the Distribution Account, separate and apart from
trust funds for mortgage pass-through certificates of other series administered
by the Trustee and other accounts of the Trustee.
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Upon the liquidation of a Trust Specially Serviced Mortgage Loan or
the disposition of any Administered REO Property in accordance with Section 3.09
or Section 3.18 or the liquidation of the Xxxxx Xxxxxx Village and Stuyvesant
Town Trust Mortgage Loan or the disposition of any Xxxxx Xxxxxx Village and
Stuyvesant Town REO Property in accordance with the WBCMT Series 2007-C30
Pooling and Servicing Agreement and/or the Xxxxx Xxxxxx Village and Stuyvesant
Town Intercreditor Agreement, the Special Servicer (or, in the case of the Xxxxx
Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan or any Xxxxx Xxxxxx
Village and Stuyvesant Town REO Property, Master Servicer No. 1), shall
calculate the Gain-on-Sale Proceeds, if any, realized in connection with such
event and remit such funds to the Trustee for deposit into the Gain-on-Sale
Reserve Account. The Trustee shall deposit into the Gain-on-Sale Reserve Account
any amounts required to be deposited by the Trustee pursuant to Section 3.06 in
connection with losses incurred with respect to Permitted Investments of funds
held in the Gain-on-Sale Reserve Account.
(f) The Grantor Trust Trustee shall establish and maintain the
Floating Rate Account, which shall consist of two sub-accounts. One of those
sub-accounts (the "Class A-2FL Sub-Account") shall be held in trust for the
benefit of the Holders of the Class A-2FL Certificates and the Class A-2FL Swap
Counterparty, as their interests may appear, and the other such sub-account (the
"Class AJ-FL Sub-Account") shall be held in trust for the benefit of the Holders
of the Class AJ-FL Certificates and the Class AJ-FL Swap Counterparty, as their
interests may appear. The Floating Rate Account shall be established and
maintained as an Eligible Account consisting of the two sub-accounts described
in the preceding sentence or, subject to Section 3.04(g), two subaccounts of the
Distribution Account. The Grantor Trust Trustee shall make or be deemed to have
made deposits in and withdrawals from the Floating Rate Account in accordance
with the terms of this Agreement. The Grantor Trust Trustee shall, as and when
required, deposit in the applicable sub-account of the Floating Rate Account any
amounts required to be so deposited by the Grantor Trust Trustee pursuant to
Section 3.06 in connection with losses incurred with respect to Permitted
Investments of funds held in the Floating Rate Account and, to the extent
permitted by Section 3.06, may withdraw any Net Investment Earnings from the
applicable sub-account of the Floating Rate Account. The Grantor Trust Trustee
shall deposit into the applicable sub-account of the Floating Rate Account
(i.e., the Class A-2FL Sub-Account, in the case of clauses (i) and (iii) of this
sentence, and the Class AJ-FL Sub-Account, in the case of clauses (ii) and (iv)
of this sentence): (i) all amounts distributable with respect to the Class A-2FL
REMIC II Regular Interest pursuant to Sections 4.01 and 9.01 for each
Distribution Date; (ii) all amounts distributable with respect to the Class
AJ-FL REMIC II Regular Interest pursuant to Sections 4.01 and 9.01 for each
Distribution Date; (iii) upon receipt, all amounts received from the Class A-2FL
Swap Counterparty under the Class A-2FL Swap Agreement intended for distribution
on the Class A-2FL Certificates; and (iv) upon receipt, all amounts received
from the Class AJ-FL Swap Counterparty under the Class AJ-FL Swap Agreement
intended for distribution on the Class AJ-FL Certificates.
(g) Notwithstanding that any of the Interest Reserve Account, the
Additional Interest Account or the Gain-on-Sale Reserve Account may be a
sub-account of the Distribution Account for reasons of administrative
convenience, each of the Interest Reserve Account, the Additional Interest
Account, the Gain-on-Sale Reserve Account and the 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 Trustee shall
indemnify and hold harmless the Trust Fund against any losses arising out of the
failure by the Trustee to perform its duties and obligations hereunder as if
such accounts were separate accounts. The provisions of this paragraph shall
survive any resignation or removal of the Trustee and appointment of a successor
trustee.
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(h) With respect to the 0000 Xxxxxxxxx Xxxx Loan Combination, the
applicable Master Servicer shall establish and maintain, or cause to be
established and maintained, one or more separate accounts for each Loan
Combination (collectively, as to each Loan Combination, the related "Loan
Combination Custodial Account") (which may be a sub-account of such Master
Servicer's Collection Account), into which, subject to the related Loan
Combination Intercreditor Agreement, such Master Servicer shall deposit or cause
to be deposited on a daily basis (and in no event later than the Business Day
following its receipt of available funds) the following payments and collections
received after the Closing Date:
(i) all payments on account of principal, including
Principal Prepayments, on such Loan Combination;
(ii) all payments on account of interest, including Penalty
Interest, on such Loan Combination;
(iii) all Prepayment Premiums, Yield Maintenance Charges
and late payment charges on such Loan Combination;
(iv) all Insurance Proceeds and Liquidation Proceeds (other
than Gain-on-Sale Proceeds, and, insofar as they relate to the purchase or
other acquisition of the related Trust Mortgage Loan that is part of such
Loan Combination, other than Liquidation Proceeds described in clauses
(iv) - (ix) of the definition of "Liquidation Proceeds", which amounts
shall be required to be deposited in such Master Servicer's Collection
Account) received in respect of such Loan Combination and together with
any amounts representing recoveries of Workout-Delayed Reimbursement
Amounts or Nonrecoverable Advances in respect of such Loan Combination, in
each case to the extent not otherwise required to be applied to the
restoration of the Mortgaged Property or released to the related
Mortgagor;
(v) any amounts required to be deposited by such Master
Servicer pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in such Loan Combination
Custodial Account;
(vi) any amounts required to be deposited by such 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 to such Loan
Combination Custodial Account from the related REO Account pursuant to
Section 3.16(c);
(viii) insofar as they do not constitute Escrow Payments,
any amounts paid by or on behalf of the related Mortgagor with respect to
such Loan Combination specifically to cover items for which a Servicing
Advance has been made; and
(ix) any amounts representing a reimbursement, payment
and/or contribution due and owing to a party other than the Trust from a
related Non-Trust Noteholder in accordance with the related Loan
Combination Intercreditor Agreement and any amounts representing a cure
payment made by a related Non-Trust Noteholder in accordance with the
related Loan Combination Intercreditor Agreement.
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Notwithstanding the foregoing requirements, the applicable Master
Servicer need not deposit into the applicable Loan Combination Custodial Account
any amount that such Master Servicer would be authorized to withdraw immediately
from such Loan Combination Custodial Account in accordance with the terms of
Section 3.05 and shall be entitled to instead pay such amount directly to the
Person(s) entitled thereto.
The foregoing requirements for deposit by the applicable Master
Servicer in a Loan Combination Custodial Account shall be exclusive, it being
understood and agreed that actual payments from the Mortgagor(s) in the nature
of Escrow Payments, charges for beneficiary statements or demands, assumption
fees, assumption application fees, modification fees, extension fees, defeasance
fees, earn-out fees, amounts collected for Mortgagor checks returned for
insufficient funds or other amounts that such Master Servicer or the Special
Servicer is entitled to retain as additional servicing compensation pursuant to
Section 3.11 need not be deposited by such Master Servicer in a Loan Combination
Custodial Account. If the applicable Master Servicer shall deposit in 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. The applicable Master Servicer shall promptly deliver to the Special
Servicer, as additional special servicing compensation in accordance with
Section 3.11(d), all assumption fees and assumption application fees (or the
applicable portions thereof) and other transaction fees received by such Master
Servicer with respect to any Loan Combination, to which the Special Servicer is
entitled pursuant to such section, upon receipt of a written statement of a
Servicing Officer of the Special Servicer describing the item and amount. Each
Loan Combination Custodial Account shall be maintained as a segregated account,
separate and apart from trust funds created for mortgage-backed securities of
other series and the other accounts of the applicable Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv), (viii) and (ix) of the second preceding paragraph with respect to a Loan
Combination, the Special Servicer shall promptly, but in no event later than one
Business Day after receipt, remit such amounts to the applicable 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 applicable
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 Loan Combination REO
Property shall initially be deposited by the Special Servicer into the related
REO Account and thereafter remitted to the applicable Master Servicer for
deposit into the related Loan Combination Custodial Account, all in accordance
with Section 3.16(c).
(i) Notwithstanding that any Loan Combination Custodial Account
may be a sub-account of a Collection Account for reasons of administrative
convenience, each Loan Combination Custodial Account and such Collection Account
shall, for all purposes of this Agreement (including the obligations and
responsibilities of the applicable Master Servicer hereunder), be considered to
be and shall be required to be treated as, separate and distinct accounts. The
applicable Master Servicer shall indemnify and hold harmless the Trust Fund and
each Non-Trust Noteholder against any losses arising out of the failure by such
Master Servicer to perform its duties and obligations hereunder as if such
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accounts were separate accounts. The provisions of this paragraph shall survive
any resignation or removal of the applicable Master Servicer and appointment of
a successor Master Servicer.
(j) Funds in the Collection Accounts, the Distribution Account,
any Loan Combination Custodial Account, the Gain-on-Sale Reserve Account, the
Interest Reserve Account and the Additional Interest Account may be invested
only in Permitted Investments in accordance with the provisions of Section 3.06.
The Master Servicers shall give written notice to the Trustee, the Special
Servicer and the Rating Agencies of the location of their Collection Accounts
and any Loan Combination Custodial Account as of the Closing Date and of the new
location of each such account prior to any change thereof. The Trustee shall
give written notice to the Master Servicers, the Special Servicer and the Rating
Agencies of any new location of the Distribution Account prior to any change
thereof.
(k) The Class A-2FL Swap Custodian shall, on or before the Closing
Date, establish a Class A-2FL Swap Collateral Account (the "Class A-2FL Swap
Collateral Account"). The Class A-2FL Swap Collateral Account shall be held in
the name of the Class A-2FL Swap Custodian in trust for the benefit of the
Holders of Class A-2FL Certificates. The Class A-2FL Swap Collateral Account
must be an Eligible Account and shall be entitled "ML CFC 2007-6 Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Class A-2FL Swap
Collateral Account, LaSalle Bank National Association, as Custodian for the
benefit of holders of the Class A-2FL Certificates."
The Class A-2FL Swap Custodian shall credit to Class A-2FL Swap
Collateral Account all collateral (whether in the form of cash or securities)
posted by the Class A-2FL Swap Counterparty to secure the obligations of the
Swap Counterparty in accordance with the terms of the Class A-2FL Swap
Agreement. Except for investment earnings, the Class A-2FL Swap Counterparty
shall not have any legal, equitable or beneficial interest in the Class A-2FL
Swap Collateral Account other than in accordance with this Agreement, the Swap
Agreement and applicable law. The Class A-2FL Swap Custodian shall maintain and
apply all collateral and earnings thereon on deposit in the Swap Collateral
Account in accordance with Class A-2FL Swap Credit Support Annex.
Cash collateral posted by the Class A-2FL Swap Counterparty in
accordance with the Class A-2FL Swap Credit Support Annex shall be invested at
the direction of the Swap Counterparty in Permitted Investments in accordance
with the requirements of the Swap Credit Support Annex. All amounts earned on
amounts on deposit in the Class A-2FL Swap Collateral Account (whether cash
collateral or securities) shall be for the account of and taxable to the Class
A-2FL Swap Counterparty.
Upon the occurrence of an Event of Default or Specified Condition
(each as defined in the Class A-2FL Swap Agreement) with respect to the Swap
Counterparty or upon occurrence or designation of an Early Termination Date (as
defined in the Class A-2FL Swap Agreement) as a result of any such Event of
Default or Specified Condition with respect to the Swap Counterparty, and, in
either such case, unless the Class A-2FL Swap Counterparty has paid in full all
of its Obligations (as defined in the Class A-2FL Swap Credit Support Annex)
that are then due, then any collateral posted by the Swap Counterparty in
accordance with the Class A-2FL Swap Credit Support Annex shall be applied to
the payment of any Obligations due to Party B (as defined in the Class A-2FL
Swap Agreement) in accordance with the Class A-2FL Swap Credit Support Annex.
Any excess amounts held in such Swap Collateral Account after payment of all
amounts owing to Party B under the Class A-2FL Swap Agreement shall be withdrawn
from the Class A-2FL Swap Collateral Account and paid to the Class A-2FL Swap
Counterparty in accordance with the Class A-2FL Swap Credit Support Annex.
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The Class AJ-FL Swap Custodian shall, on or before the Closing Date,
establish a Class AJ-FL Swap Collateral Account (the "Class AJ-FL Swap
Collateral Account"). The Class AJ-FL Swap Collateral Account shall be held in
the name of the Class AJ-FL Swap Custodian in trust for the benefit of the
Holders of Class AJ-FL Certificates. The Class AJ-FL Swap Collateral Account
must be an Eligible Account and shall be entitled "ML CFC 2007-6 Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Class AJ-FL Swap
Collateral Account, LaSalle Bank National Association, as Custodian for the
benefit of Holders of the Class AJ-FL Certificates."
The Class AJ-FL Swap Custodian shall credit to Class AJ-FL Swap
Collateral Account all collateral (whether in the form of cash or securities)
posted by the Class AJ-FL Swap Counterparty to secure the obligations of the
Swap Counterparty in accordance with the terms of the Class AJ-FL Swap
Agreement. Except for investment earnings, the Class AJ-FL Swap Counterparty
shall not have any legal, equitable or beneficial interest in the Class AJ-FL
Swap Collateral Account other than in accordance with this Agreement, the Swap
Agreement and applicable law. The Class AJ-FL Swap Custodian shall maintain and
apply all collateral and earnings thereon on deposit in the Swap Collateral
Account in accordance with Class AJ-FL Swap Credit Support Annex.
Cash collateral posted by the Class AJ-FL Swap Counterparty in
accordance with the Class AJ-FL Swap Credit Support Annex shall be invested at
the direction of the Swap Counterparty in Permitted Investments in accordance
with the requirements of the Swap Credit Support Annex. All amounts earned on
amounts on deposit in the Class AJ-FL Swap Collateral Account (whether cash
collateral or securities) shall be for the account of and taxable to the Class
AJ-FL Swap Counterparty.
Upon the occurrence of an Event of Default or Specified Condition
(each as defined in the Class AJ-FL Swap Agreement) with respect to the Swap
Counterparty or upon occurrence or designation of an Early Termination Date (as
defined in the Class AJ-FL Swap Agreement) as a result of any such Event of
Default or Specified Condition with respect to the Swap Counterparty, and, in
either such case, unless the Class AJ-FL Swap Counterparty has paid in full all
of its Obligations (as defined in the Class AJ-FL Swap Credit Support Annex)
that are then due, then any collateral posted by the Swap Counterparty in
accordance with the Class AJ-FL Swap Credit Support Annex shall be applied to
the payment of any Obligations due to Party B (as defined in the Class AJ-FL
Swap Agreement) in accordance with the Class AJ-FL Swap Credit Support Annex.
Any excess amounts held in such Swap Collateral Account after payment of all
amounts owing to Party B under the Class AJ-FL Swap Agreement shall be withdrawn
from the Class AJ-FL Swap Collateral Account and paid to the Class AJ-FL Swap
Counterparty in accordance with the Class AJ-FL Swap Credit Support Annex.
SECTION 3.05 Permitted Withdrawals From the Collection Accounts,
the Interest Reserve Account, the Additional Interest
Account, the Distribution Account and the Loan
Combination Custodial Accounts.
(a) Each Master Servicer may, from time to time, make withdrawals
from its Collection 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 amount that may be applied to make
P&I Advances pursuant to Section 4.03(a);
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(ii) to reimburse any Fiscal Agent, the Trustee and itself,
in that order, for xxxxxxxxxxxx X&X Advances in respect of any Trust
Mortgage Loan or Trust REO Loan (exclusive of any Serviced Trust Mortgage
Loan that is part of a Loan Combination and any successor Trust REO Loan
with respect thereto), any Fiscal Agent's, the Trustee's and such Master
Servicer's right to reimbursement pursuant to this clause (ii) with
respect to any P&I Advance (other than Nonrecoverable Advances, which are
reimbursable pursuant to clause (vii) below) being limited to amounts that
represent Late Collections of interest (net of related Master Servicing
Fees and, in the case of the Xxxxx Xxxxxx Village and Stuyvesant Town
Trust Mortgage Loan, net of the related WBCMT Series 2007-C30 Servicing
Fee) and principal (net of any related Workout Fee or Principal Recovery
Fee) received in respect of the particular Trust Mortgage Loan or Trust
REO Loan (exclusive of any Serviced Trust Mortgage Loan that is part of a
Loan Combination or any successor Trust REO Loan with respect thereto) as
to which such P&I Advance was made; provided, however, that if such P&I
Advance 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 the Trust Mortgage Loans
and related REO Properties on deposit in such Master Servicer's Collection
Account from time to time that represent principal to the extent provided
in clause (vii) below (to be allocated between the Loan Groups as set
forth in Section 1.02);
(iii) to pay to itself and/or the holder of the Excess
Servicing Strip earned and unpaid Master Servicing Fees, as allocable
between such Master Servicer and such holder (if different from such
Master Servicer), in respect of each Trust Mortgage Loan and Trust REO
Loan (other than a Serviced Trust Mortgage Loan that is part of a Loan
Combination and any successor Trust REO Loan with respect thereto), such
Master Servicer's right to payment pursuant to this clause (iii) with
respect to any such Trust Mortgage Loan or Trust REO Loan being limited to
amounts received on or in respect of such Trust Mortgage Loan (whether in
the form of payments, Liquidation Proceeds or Insurance Proceeds) or such
Trust REO Loan (whether in the form of REO Revenues, Liquidation Proceeds
or Insurance Proceeds) that are allocable as a recovery of interest
thereon;
(iv) to pay to the Special Servicer earned and unpaid
Special Servicing Fees in respect of each Trust Specially Serviced
Mortgage Loan and Trust REO Loan;
(v) to pay the Special Servicer (or, if applicable, a
predecessor Special Servicer) earned and unpaid Workout Fees or Principal
Recovery Fees in respect of each Trust Specially Serviced Mortgage Loan,
Trust Corrected Mortgage Loan and/or Trust REO Loan (in each case other
than a Serviced Trust Mortgage Loan that is part of a Loan Combination or
any successor Trust REO Loan with respect thereto), in the amounts and
from the sources contemplated by Section 3.11(c);
(vi) to reimburse any Fiscal Agent, the Trustee, itself or
the Special Servicer, in that order, (with reimbursements to the Special
Servicer and such Master Servicer to be made concurrently on a pro rata
basis), for any unreimbursed Servicing Advances in respect of any Serviced
Trust Mortgage Loan, Serviced Trust REO Loan or related Administered REO
Property (other than a Serviced Trust Mortgage Loan that is part of a Loan
Combination or any successor Trust REO Loan with respect thereto or any
related REO Property), any Fiscal Agent's, the Trustee's, such 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
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first to payments made by or on behalf of the related Mortgagor that are
allocable to such Servicing Advance, and then to Liquidation Proceeds,
Insurance Proceeds and, if applicable, REO Revenues received in respect of
the particular Serviced Mortgage Loan or Administered 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 the Trust Mortgage
Loans and related REO Properties on deposit in such Master Servicer's
Collection Account from time to time that represent collections or
recoveries of principal to the extent provided in clause (vii) below (to
be allocated between the Loan Groups as set forth in Section 1.02);
(vii) (A) to reimburse any Fiscal Agent, the Trustee,
itself or the Special Servicer, in that order, (except that reimbursements
to the Special Servicer and such Master Servicer shall be made
concurrently on a pro rata basis), for any unreimbursed Advances that have
been or are determined to be (1) Nonrecoverable Advances with respect to
any Trust Mortgage Loan or any related REO Property and the portion of any
P&I Advance that would have been reimbursable from a Late Collection of
principal under clause (ii) above but for the application of a Workout Fee
or Principal Recovery Fee to such Late Collection, first, out of REO
Revenues, Liquidation Proceeds and Insurance Proceeds received on the
related Trust Mortgage Loan, then out of the principal portion of general
collections on the Mortgage Pool (to be allocated between the Loan Groups
as set forth in Section 1.02), then, to the extent the principal portion
of general collections is insufficient and with respect to such excess
only, subject to any exercise of the sole option to defer reimbursement
thereof pursuant to Section 4.03(f), out of other collections on the Trust
Mortgage Loans and related REO Properties, and/or (2) Workout-Delayed
Reimbursement Amounts, out of the principal portion of the general
collections on the Mortgage Pool (to be allocated between the Loan Groups
as set forth in Section 1.02), net of such amounts being reimbursed
pursuant to (1) above, together with, in the case of a Nonrecoverable
Advance, interest thereon being paid pursuant to clause (viii) below, or
(B) to pay itself, with respect to any Trust Mortgage Loan or related REO
Property (other than a Serviced Trust Mortgage Loan that is part of a Loan
Combination or any successor Trust REO Loan or REO Property), any related
earned Master Servicing Fee that remained unpaid in accordance with clause
(iii) above following a Final Recovery Determination made with respect to
such Trust Mortgage Loan or related REO Property and the deposit into such
Master Servicer's Collection Account of all amounts received in connection
therewith;
(viii) at such time as it reimburses any Fiscal Agent, the
Trustee, itself or the Special Servicer, in that order, for any
unreimbursed Advance (excluding any such Advance that constitutes a
Workout-Delayed Reimbursement Amount for which interest was paid under
clause (vii) above) pursuant to clause (ii), (vi) or (vii) above, to pay
any Fiscal Agent, the Trustee, itself or the Special Servicer, as the case
may be, in that order, (except that payments to the Special Servicer and
such Master Servicer shall be made concurrently on a pro rata basis), any
unpaid interest accrued and payable thereon in accordance with Section
3.03(c), 3.03(d) or 4.03(d), as applicable; such Master Servicer's, the
Special Servicer's, the Trustee's and/or any Fiscal Agent's right to
payment pursuant to this clause (viii) with respect to interest on any
Advance being permitted to be satisfied (A) in the case of interest on an
Advance that has been or is determined to be a Nonrecoverable Advance, out
of the sources out of which the related Advance may be satisfied as
provided in clause (vii) above, as the case may be, and (B) in the case of
interest on an Advance that has not been determined to be a Nonrecoverable
Advance, (1) out of
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Default Charges collected on or in respect of the related Trust Mortgage
Loan or Trust REO Loan during the Collection Period in which such Advance
is reimbursed (the use of such Default Charges to be allocated pursuant to
Section 3.26), and (2) to the extent that the Default Charges described in
the immediately preceding clause (1) are insufficient, but only at the
same time or after such Advance has been reimbursed, out of general
collections on the Trust Mortgage Loans and any related REO Properties on
deposit in such Master Servicer's Collection Account;
(ix) to pay for property inspection costs and expenses
incurred by the Trust Fund as an Additional Trust Fund Expense pursuant to
Section 3.12(a);
(x) (A) to pay itself, as additional servicing compensation
in accordance with Section 3.11(b), (1) interest and investment income
earned in respect of amounts held in such Master Servicer's Collection
Account as provided in Section 3.06(b), but only to the extent of the Net
Investment Earnings with respect to such Collection Account for any
Investment Period; and (2) any Prepayment Interest Excesses (after
deduction of the amounts required to be deposited by such Master Servicer
in such Collection Account for the related Distribution Date pursuant to
Section 3.19(a) in connection with Prepayment Interest Shortfalls and
Casualty/Condemnation Interest Shortfalls); and (B) to pay itself and the
Special Servicer, as additional servicing compensation in accordance with
Sections 3.11(b) and 3.11(d), respectively, Default Charges to the extent
provided in clause seventh of Section 3.26(a);
(xi) to pay for the cost of an independent appraiser or
other expert in real estate matters retained pursuant to Section 3.03(e),
3.09(a), 3.18 or 4.03(c), to the extent such cost is not required to be
advanced hereunder;
(xii) to pay itself, the Special Servicer, the Depositor,
or any of their respective Affiliates, directors, partners, members,
managers, shareholders, officers, employees or agents, as the case may be,
any amounts payable to any such Person pursuant to Section 6.03;
(xiii) to pay for (A) the advice of counsel and other
experts contemplated by Section 3.17(a)(iii), (B) the cost of the Opinions
of Counsel contemplated by Sections 3.09(b)(ii), 3.20(b) and 11.02(a), (C)
the cost of an Opinion of Counsel contemplated by Section 11.01(a),
11.01(b) or 11.01(c) in connection with any amendment to this Agreement
requested by such Master Servicer or the Special Servicer that protects or
is in furtherance of the rights and interests of Certificateholders, and
(D) the cost of recording this Agreement in accordance with Section
11.02(a);
(xiv) to pay itself, the Special Servicer, any of the
Mortgage Loan Sellers, the Plurality Subordinate Certificateholder or any
other Person, as the case may be, with respect to each Trust Mortgage
Loan, if any, previously purchased by such Person pursuant to this
Agreement and/or a related Loan Combination Intercreditor Agreement or
mezzanine intercreditor agreement, all amounts received thereon subsequent
to the date of purchase;
(xv) to pay, out of general collections on the Mortgage
Pool on deposit in such Master Servicer's Collection Account, to a
Non-Trust Noteholder, any amount (other than normal monthly payments)
specifically payable or reimbursable to such party by the Trust, in its
capacity as holder of the related Trust Mortgage Loan that is a part of
the related Loan Combination or any successor REO Loan with respect
thereto, pursuant to the terms of the related Loan Combination
Intercreditor Agreement;
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(xvi) to reimburse any Fiscal Agent, the Trustee, such
Master Servicer and/or the Special Servicer, as applicable, for
unreimbursed Advances, unpaid Master Servicing Fees and/or any unpaid
interest on any Advances, but only to the extent that such items relate to
a Trust Mortgage Loan that is part of a Loan Combination or any successor
Trust REO Loan, each such party's respective rights to reimbursement
pursuant to this clause (xvi) being limited to amounts on deposit in such
Master Servicer's Collection Account that represent Liquidation Proceeds
described in clauses (iv) through (ix) of the definition thereof; provided
that, such items may only be reimbursed to any party pursuant to this
clause (xvi) if and to the extent that such items have not been or are not
simultaneously being reimbursed to such party pursuant to Section 3.05(e);
and provided, further, that the amount of any unpaid Master Servicing
Fees, unreimbursed Advances and/or unpaid interest on Advances
reimbursable to any party pursuant to this clause (xvi) shall be reduced
by any related unpaid Master Servicing Fees, unreimbursed Advances and
unpaid interest on Advances in respect of the subject Trust Mortgage Loan
or Trust REO Loan which, following the purchase or sale from which the
subject Liquidation Proceeds have been derived, will continue to be
payable or reimbursable under the related Loan Combination Intercreditor
Agreement and/or any successor servicing agreement with respect to the
related Loan Combination to the Master Servicer and/or the Special
Servicer (and which amounts shall no longer be payable hereunder) if the
Master Servicer and/or the Special Servicer has agreed to continue acting
as a master servicer or special servicer, as the case may be, of the
related Loan Combination following the removal of the related Trust
Mortgage Loan from the Trust Fund;
(xvii) to remit to the Trustee for deposit into the
Additional Interest Account the amounts required to be deposited pursuant
to Section 3.04(d);
(xviii) to pay, out of general collections on the Mortgage
Pool as are then on deposit in the Collection Account, to the WBCMT Series
2007-C30 Applicable Servicer or the WBCMT Series 2007-C30 Trustee, any
amount payable by the Trust, in its capacity as holder of the Xxxxx Xxxxxx
Village and Stuyvesant Town Trust Mortgage Loan, pursuant to the terms of
the Xxxxx Xxxxxx Village and Stuyvesant Town Intercreditor Agreement;
(xix) to pay the cost of any Environmental Assessment (to
the extent not otherwise advanced pursuant to Section 3.09(c)) or any
remedial, corrective or other action pursuant to Section 3.09(c);
(xx) to withdraw any amounts deposited in error;
(xxi) to withdraw any other amounts that this Agreement
expressly provides may be withdrawn from such Master Servicer's Collection
Account; and
(xxii) to clear and terminate such Master Servicer's
Collection Account at the termination of this Agreement pursuant to
Section 9.01.
Each Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from its Collection Account pursuant to clauses (ii)-(xix) above and
such records shall be sufficient to determine the amounts attributable to REMIC
I.
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Each Master Servicer shall pay to the Special Servicer, the Trustee
or any Fiscal Agent, on each P&I Advance Date from its Collection Account
amounts permitted to be paid to the Special Servicer, the Trustee or any Fiscal
Agent therefrom based on a certificate of a Servicing Officer of the Special
Servicer or of a Responsible Officer of the Trustee or any Fiscal Agent,
received not later than 1:00 p.m. (New York City time) on the immediately
preceding Determination Date and describing the item and amount to which the
Special Servicer, the Trustee or any Fiscal Agent, as the case may be, is
entitled. The Master Servicers may rely conclusively on any such certificate 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 and property-by-property
basis, for the purpose of substantiating any request for withdrawal from the
Collection Accounts. With respect to each Mortgage Loan for which it makes an
Advance, the Trustee and any Fiscal Agent shall similarly keep and maintain
separate accounting for each Mortgage Loan, on a loan-by-loan and
property-by-property basis, for the purpose of substantiating any request for
withdrawal from the Collection Accounts for reimbursements of Advances or
interest thereon.
In addition, but subject to the preceding provisions of this Section
3.05(a), if at any time a Master Servicer is entitled to make a payment,
reimbursement or remittance from its Collection Account, and the payment,
reimbursement or remittance can be made from funds on deposit in such Collection
Account without any requirement that they be paid, reimbursed or remitted from
funds that relate to a particular Mortgage Loan and the amounts on deposit in
such Collection Account that are available to make such payment, reimbursement
or remittance are insufficient and the amounts on deposit in the other Master
Servicer's Collection Account are sufficient to make up any shortfall in the
requesting Master Servicer's Collection Account, then such other Master Servicer
shall withdraw such funds from its Collection Account and make such payment,
reimbursement or remittance within three (3) Business Days following a written
request therefor from the requesting Master Servicer, which request shall be
accompanied by an Officer's Certificate (1) either (x) stating that the
requesting Master Servicer, the Special Servicer, the Trustee, any Fiscal Agent
or another particular Person, as applicable, is entitled to such payment,
reimbursement or remittance (and setting forth the nature and amount of such
payment, reimbursement or remittance and the party entitled thereto) or (y)
forwarding a copy of any Officer's Certificate or other information provided by
the Special Servicer, the Trustee or any Fiscal Agent or any comparable
certification from another particular Person, as the case may be, that states
that such Person is entitled to such payment, reimbursement or remittance (and
the nature and amount of such payment, reimbursement or remittance and the party
entitled thereto) and (2) stating that the requesting Master Servicer does not
then have on deposit in its Collection Account funds sufficient for such
payment, reimbursement or remittance; provided, however, that prior to
determining whether there are sufficient funds available to make, and prior to
making such requested payment, reimbursement or remittance to the requesting
Master Servicer, such other Master Servicer shall be entitled to apply the
amounts on deposit in its Collection Account to make any payment, remittance or
reimbursement permitted to be made by such other Master Servicer pursuant to
clauses (ii)-(xxi) above.
In connection with any payments required to be made to a Non-Trust
Noteholder in accordance with Section 3.05(a)(xv), the applicable Master
Servicer may request a written statement from such Non-Trust Noteholder,
describing the nature and amount of the item for which such party is seeking
payment or reimbursement and setting forth the provision(s) of the related Loan
Combination Intercreditor Agreement pursuant to which such party believes it is
entitled to reimbursement; provided that such Master Servicer may not condition
payments required to be made to a Non-Trust Noteholder in accordance with
Section 3.05(a)(xv) upon receipt of such a written statement (other than as
permitted under the related Loan Combination Intercreditor Agreement); and
provided, further, that to the extent
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such a written statement from a Non-Trust Noteholder is received by such Master
Servicer, such Master Servicer may conclusively rely, absent manifest error and
consistent with the Servicing Standard, upon such statement as to the nature and
amount of the item for which reimbursement is sought. In connection with any
payments required to be made to the WBCMT Series 2007-C30 Applicable Servicer or
the WBCMT Series 2007-C30 Trustee in accordance with Section 3.05(a)(xviii),
Master Servicer No. 1 may request a written statement from a responsible officer
of the WBCMT Series 2007-C30 Applicable Servicer and/or the WBCMT Series
2007-C30 Trustee, as applicable, describing the nature and amount of the item
for which such party is seeking reimbursement and setting forth the provision(s)
of the Xxxxx Xxxxxx Village and Stuyvesant Town Intercreditor Agreement pursuant
to which such party believes it is entitled to reimbursement; provided that
Master Servicer No. 1 may not condition payments required to be made to such
party in accordance with Section 3.05(a)(xviii) upon receipt of such a written
statement (other than as permitted under the Xxxxx Xxxxxx Village and Stuyvesant
Town Intercreditor Agreement); and provided, further, that to the extent such a
written statement from the WBCMT Series 2007-C30 Applicable Servicer or the
WBCMT Series 2007-C30 Trustee is received by Master Servicer No. 1; Master
Servicer No. 1 (unless it also acting as the WBCMT Series 2007-C30 Applicable
Servicer) may conclusively rely, absent manifest error and consistent with the
Servicing Standard, upon such statement as to the nature and amount of the item
for which reimbursement is sought.
(b) The Trustee may, from time to time, make withdrawals from the
Distribution Account for any of the following purposes (in no particular order
of priority):
(i) to make deemed distributions to itself as holder of the
REMIC I Regular Interests, and to make distributions to
Certificateholders, on each Distribution Date, pursuant to Section 4.01 or
9.01, as applicable;
(ii) to pay itself or any of its directors, officers,
employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05;
(iii) to pay itself the Trustee Fee as contemplated by
Section 8.05(a) hereof with respect to the Mortgage Loans;
(iv) to pay for the cost of the Opinions of Counsel sought
by it (A) as provided in clause (iv) of the definition of "Disqualified
Organization", (B) as contemplated by Section 3.20(b), 9.02(a) and
10.01(h), or (C) as contemplated by Section 11.01(a), 11.01(b) or 11.01(c)
in connection with any amendment to this Agreement requested by the
Trustee which amendment is in furtherance of the rights and interests of
Certificateholders;
(v) to pay any and all federal, state and local taxes
imposed on any of the REMICs created hereunder or on the assets or
transactions of any such REMIC, together with all incidental costs and
expenses, to the extent none of the Trustee, the REMIC Administrator,
either Master Servicer or the Special Servicer is liable therefor pursuant
to Section 10.01(i);
(vi) to pay the REMIC Administrator any amounts
reimbursable to it pursuant to Section 10.01(e);
(vii) to pay to the applicable Master Servicer any amounts
deposited by such Master Servicer in the Distribution Account not required
to be deposited therein;
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(viii) to withdraw any Interest Reserve Amount and deposit
such Interest Reserve Amount into the Interest Reserve Account pursuant to
Section 3.04(c);
(ix) to pay itself interest and investment income earned in
respect of amounts held in the Distribution Account as provided in Section
3.06(b), but only to the extent of the Net Investment Earnings with
respect to the Distribution Account for any Investment Period; and
(x) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) The Trustee shall on each Distribution Date to occur in March
of each year, prior to any distributions required to be made to
Certificateholders on such date, withdraw from the Interest Reserve Account and
deposit into the Distribution Account in respect of each Interest Reserve Loan,
an amount equal to the aggregate of the Interest Reserve Amounts deposited into
the Interest Reserve Account pursuant to Section 3.04(c) during February and, if
applicable, January of that year.
(d) The Trustee shall, on any Distribution Date, make withdrawals
from the Additional Interest Account to the extent required to make the
distributions of Additional Interest required by Section 4.01(b).
(e) The applicable Master Servicer may, from time to time, make
withdrawals from each Loan Combination Custodial Account for any of the
following purposes (the order set forth below not constituting an order of
priority for such withdrawals):
(i) to make remittances on each P&I Advance Date (or, with
respect to a Non-Trust Noteholder, on such earlier or later date as
provided for in the related Loan Combination Intercreditor Agreement) to
the related Non-Trust Noteholder(s) and to the Trust in accordance with
the related Loan Combination Intercreditor Agreements, such remittances to
the Trust to be made to such Master Servicer's Collection Account;
(ii) to reimburse any Fiscal Agent, the Trustee and itself,
in that order, for xxxxxxxxxxxx X&X Advances made with respect to the
related Trust Mortgage Loan that is part of the related Loan Combination
or any successor Trust REO Loan, any Fiscal Agent's, the Trustee's and
such Master Servicer's right to reimbursement pursuant to this clause (ii)
with respect to any P&I Advance (other than any P&I Advance that has been
or is determined to be a Nonrecoverable Advance, which shall be reimbursed
in the manner contemplated in Section 3.05(a)(vii)) being limited to
amounts that represent Late Collections of interest (net of related Master
Servicing Fees) and principal (net of any related Workout Fee or Principal
Recovery Fee) received in respect of the related Trust Mortgage Loan that
is part of the related Loan Combination or any successor Trust REO Loan;
provided, however, that if such P&I Advance becomes a Workout-Delayed
Reimbursement Amount, then such P&I Advance shall thereafter be reimbursed
in the manner contemplated in Section 3.05(a)(vii);
(iii) to pay to itself and/or the holder of the Excess
Servicing Strip earned and unpaid Master Servicing Fees (as allocable
between such Master Servicer and such holder (if different from such
Master Servicer)) in respect of the related Loan Combination (including,
without limitation, any successor REO Loans comprising such), such Master
Servicer's right to payment pursuant to this clause (iii) with respect to
the related Loan Combination (including,
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without limitation, any successor REO Loans comprising such) being limited
to amounts received on or in respect of such Mortgage Loans (whether in
the form of payments, Liquidation Proceeds or Insurance Proceeds) or such
REO Loans (whether in the form of REO Revenues, Liquidation Proceeds or
Insurance Proceeds) that are allocable as a recovery of interest thereon;
(iv) [RESERVED];
(v) to pay the Special Servicer (or, if applicable, a
predecessor Special Servicer) earned and unpaid Special Servicing Fees,
Workout Fees and/or Principal Recovery Fees in respect of the related Loan
Combination in the amounts provided in Section 3.11(c) and out of the
collections contemplated by the applicable Loan Combination Intercreditor
Agreement;
(vi) to reimburse any Fiscal Agent, the Trustee, the
Special Servicer or itself, in that order (with reimbursements to the
Special Servicer and such Master Servicer to be made concurrently on a pro
rata basis), for any unreimbursed Servicing Advances in respect of the
related Loan Combination or any related Loan Combination REO Property, any
Fiscal Agent's, the Trustee's, the Special Servicer's and such Master
Servicer's respective rights to reimbursement pursuant to this clause (vi)
with respect to any Servicing Advance being limited to payments made by or
on behalf of the related Mortgagor that are allocable to such Servicing
Advance, or to Liquidation Proceeds, Insurance Proceeds and, if
applicable, REO Revenues received in respect of the related Loan
Combination or any related Loan Combination REO Property; provided,
however, that if such Servicing Advance becomes a Workout-Delayed
Reimbursement Amount, then such Servicing Advance shall thereafter be
reimbursed in the manner contemplated in Section 3.05(a)(vii);
(vii) to reimburse any Fiscal Agent, the Trustee, the
Special Servicer or itself, in that order (except that reimbursements to
the Special Servicer and such Master Servicer shall be made concurrently
on a pro rata basis), for any unreimbursed Servicing Advances in respect
of the related Loan Combination or any related Loan Combination REO
Property that have been or are determined to be Nonrecoverable Advances
out of REO Revenues, Liquidation Proceeds and Insurance Proceeds received
on such Loan Combination or any related Loan Combination REO Property;
provided that if REO Revenues, Liquidation Proceeds and Insurance Proceeds
received on the related Loan Combination or any related Loan Combination
REO Property are insufficient, then such Servicing Advance shall be
reimbursed in the manner contemplated in Section 3.05(a)(vii);
(viii) at such time as it reimburses any Fiscal Agent, the
Trustee, the Special Servicer or itself, in that order, for any
unreimbursed Advance pursuant to clause (ii), (vi) or (vii) above, to pay
any Fiscal Agent, the Trustee, the Special Servicer or itself, as the case
may be, in that order (except that payments to the Special Servicer and
such Master Servicer shall be made concurrently on a pro rata basis), any
unpaid interest accrued and payable thereon in accordance with Section
3.03(d) or 4.03(d), as applicable; such Master Servicer's, Special
Servicer's, Trustee's and/or Fiscal Agent's right to payment pursuant to
this clause (viii) with respect to interest on any Advance being permitted
to be satisfied (A) out of Default Charges collected on or in respect of
the related Loan Combination, during the Collection Period in which such
Advance is reimbursed (the use of such Default Charges to be allocated
pursuant to Section 3.26), (B) to the extent that the Default Charges
described in the immediately preceding clause
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(A) are insufficient, but only at the same time or after such Advance has
been reimbursed, out of general collections on the Loan Combination and
any related Loan Combination REO Property on deposit in such Loan
Combination Custodial Account, and (C) if general collections on the
related Loan Combination and any related Loan Combination REO Property on
deposit in such Loan Combination Custodial Account are insufficient and
such Advance has been or is determined to be a Nonrecoverable Advance, out
of the sources out of which the related Advance may be reimbursed as
provided in Section 3.05(a)(vii);
(ix) to pay for property inspection costs and expenses
incurred by the Trust Fund as an Additional Trust Fund Expense pursuant to
Section 3.12(a), to the extent such costs and expenses relate to the
related Loan Combination Mortgaged Property;
(x) (A) to pay itself, as additional servicing compensation
in accordance with Section 3.11(b), (1) interest and investment income
earned in respect of amounts held in such Loan Combination Custodial
Account as provided in Section 3.06(b), but only to the extent of the Net
Investment Earnings with respect to such Loan Combination Custodial
Account for any Investment Period; and (2) any Prepayment Interest Excess
with respect to the Trust Mortgage Loan that is part of the related Loan
Combination (after deduction of the amounts required to be deposited by
such Master Servicer in its Collection Account for the related
Distribution Date pursuant to Section 3.19(a) in connection with
Prepayment Interest Shortfalls and Casualty/Condemnation Interest
Shortfalls); and (B) to pay itself and the Special Servicer, as additional
servicing compensation in accordance with Sections 3.11(b) and 3.11(d),
respectively, Default Charges with respect to such Loan Combination to the
extent provided in clause seventh of Section 3.26(a);
(xi) to pay for the cost of an independent appraiser or
other expert in real estate matters retained pursuant to Section 3.03(e),
3.09(a), 3.18 or 4.03(c), to the extent those costs relate to such Loan
Combination and/or the related Loan Combination Mortgaged Property;
(xii) to pay itself, the Special Servicer, the Depositor,
or any of their respective Affiliates, directors, partners, members,
managers, shareholders, officers, employees or 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 such Loan Combination and/or the related
Loan Combination Mortgaged Property;
(xiii) to pay for (A) the advice of counsel and other
experts contemplated by Section 3.17(a)(iii), (B) the cost of the Opinions
of Counsel contemplated by Sections 3.09(b)(ii), 3.20(b) and 11.02(a), and
(C) the cost of recording the related Loan Combination Intercreditor
Agreement and any required opinion of counsel related thereto and, to the
extent applicable pursuant to Section 11.02(a), the allocable portion of
the cost of the Opinion of Counsel contemplated by Section 11.02(a) and,
in the case of each of (A) and (B) preceding, to the extent such amounts
relate to such Loan Combination and/or the related Loan Combination
Mortgaged Property;
(xiv) to pay itself, the Special Servicer, the related
Mortgage Loan Seller, the Plurality Subordinate Certificateholder or any
other Person, as the case may be, with respect to the related Trust
Mortgage Loan in such Loan Combination, if previously purchased by such
Person pursuant to this Agreement and/or a related Loan Combination
Intercreditor Agreement
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or mezzanine intercreditor agreement, all amounts received thereon
subsequent to the date of purchase;
(xv) [RESERVED];
(xvi) to pay the cost of any Environmental Assessment (to
the extent not otherwise advanced pursuant to Section 3.09(c)) or any
remedial, corrective or other action pursuant to Section 3.09(c), to the
extent such costs relate to such Loan Combination and/or the related Loan
Combination Mortgaged Property;
(xvii) to withdraw any amounts deposited in error;
(xviii) to withdraw any other amounts that this Agreement
expressly provides may be withdrawn from such Loan Combination Custodial
Account; and
(xix) to clear and terminate such Loan Combination
Custodial Account at the termination of this Agreement pursuant to Section
9.01.
The applicable Master Servicer shall keep and maintain separate
accounting records, on a loan-by-loan basis when appropriate, in connection with
any withdrawal from a Loan Combination Custodial Account pursuant to clauses
(ii)-(xviii) above and such records shall be sufficient to determine the amounts
attributable to REMIC I.
The applicable Master Servicer shall, on or before 12:00 p.m. (New
York City time) on each P&I Advance Date (or, if a different date and/or time is
provided under or pursuant to the related Loan Combination Intercreditor
Agreement with respect to remittances to be made to a Non-Trust Noteholder, such
other date and/or time), remit to the Trust and the related Non-Trust
Noteholder(s), such amounts as are distributable in respect of each Mortgage
Loan that is part of a Loan Combination (or any successor REO Loan with respect
thereto) pursuant to the corresponding Loan Combination Intercreditor Agreement,
such remittances to the Trust to be made to its Collection Account and such
remittances to the related Non-Trust Noteholder(s) to be made by wire transfer
to the respective accounts designated by such Non-Trust Noteholder(s) pursuant
to the related Loan Combination Intercreditor Agreements.
The applicable Master Servicer shall pay to the Special Servicer,
the Trustee or any Fiscal Agent on each P&I Advance Date from any Loan
Combination Custodial Account amounts permitted to be paid to the Special
Servicer, the Trustee or any Fiscal Agent therefrom based on a certificate of a
Servicing Officer of the Special Servicer or of a Responsible Officer of the
Trustee or any Fiscal Agent received not later than 1:00 p.m. (New York City
time) on the immediately preceding Determination Date and describing the item
and amount to which the Special Servicer, the Trustee or any Fiscal Agent, as
the case may be, is entitled. The applicable Master Servicer may rely
conclusively on any such certificate 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 and property-by-property basis, for the purpose of substantiating
any request for withdrawal from a Loan Combination Custodial Account. With
respect to each Mortgage Loan for which it makes an Advance, each of the Trustee
and any Fiscal Agent shall similarly keep and maintain separate accounting for
each Mortgage Loan, on a loan-by-loan and property-by-property basis, for the
purpose of substantiating any request for withdrawal from a Loan Combination
Custodial Account for reimbursements of Advances or interest thereon.
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If and to the fullest extent that it is permitted to do so pursuant
to the related Loan Combination Intercreditor Agreement, the applicable Master
Servicer shall, consistent with the Servicing Standard, seek payment from the
related B-Note Loan Holder to cover (or to reimburse the Trust for the payment
of) any cost or expense, including the reimbursement of Advances and the payment
of interest thereon, with respect to such Loan Combination or any related REO
Property that is not (but, subject to available funds, would have been permitted
to be) paid out of amounts otherwise payable to such B-Note Loan Holder.
(f) In addition, the Trustee may from time to time, make
withdrawals from the Gain-on-Sale Reserve Account, the Additional Interest
Account and the Interest Reserve Account to pay itself interest and investment
income earned in respect of amounts held in the Gain-on-Sale Reserve Account,
the Additional Interest Account and the Interest Reserve Account, respectively,
as provided in Section 3.06(b), but in each case only to the extent of the Net
Investment Earnings with respect to the Gain-on-Sale Reserve Account, the
Additional Interest Account and the Interest Reserve Account, respectively, for
any Investment Period.
(g) The Grantor Trust Trustee may, from time to time, make
withdrawals from the Floating Rate Account for (but only for) the following
purposes:
(i) solely to the extent of amounts on deposit in the Class
A-2FL Sub-Account, to make payments to the Class A-2FL Swap Counterparty
pursuant to Section 3.30(d);
(ii) solely to the extent of amounts on deposit in the
Class A-2FL Sub-Account, to make distributions to the Holders of the Class
A-2FL Certificates on each Distribution Date pursuant to Section 4.01(c);
(iii) solely to the extent of amounts on deposit in the
Class AJ-FL Sub-Account, to make payments to the Class AJ-FL Swap
Counterparty pursuant to Section 3.30(d);
(iv) solely to the extent of amounts on deposit in the
Class AJ-FL Sub-Account, to make distributions to the Holders of the Class
AJ-FL Certificates on each Distribution Date pursuant to Section 4.01(c);
(v) to pay itself Net Investment Earnings earned on funds
held in the Floating Rate Account;
(vi) to pay to the Persons entitled thereto any amounts
deposited in the Floating Rate Account in error; and
(vii) to clear and terminate the Floating Rate Account
pursuant to Section 9.01.
It is hereby acknowledged that amounts on deposit in the Class A-2FL
Sub-Account as of any Distribution Date and available for such purposes shall be
applied to make any payments to the Class A-2FL Swap Counterparty pursuant to,
and subject to the limitations and conditions set forth in, Section 3.30(d),
prior to being applied to make distributions to the Holders of the Class A-2FL
Certificates pursuant to Section 4.01(c).
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It is hereby acknowledged that amounts on deposit in the Class AJ-FL
Sub-Account as of any Distribution Date and available for such purposes shall be
applied to make any payments to the Class AJ-FL Swap Counterparty pursuant to,
and subject to the limitations and conditions set forth in, Section 3.30(d),
prior to being applied to make distributions to the Holders of the Class AJ-FL
Certificates pursuant to Section 4.01(c).
SECTION 3.06 Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Collection Accounts, the
Distribution Account, the Loan Combination Custodial
Accounts, the Additional Interest Account, the
Gain-on-Sale Reserve Account, the REO Accounts and the
Floating Rate Account.
(a) Each Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, a Collection
Account or a Loan Combination 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 (also, for
purposes of this Section 3.06, an "Investment Account"), and the Trustee or the
Grantor Trust Trustee, as applicable, may direct in writing any depository
institution maintaining the Distribution Account, the Gain-on-Sale Reserve
Account, the Additional Interest Account, the Interest Reserve Account and the
Floating Rate Account (each 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 only 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. 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). The Master Servicers
(with respect to Permitted Investments of amounts in the Servicing Accounts, the
Reserve Accounts, the Collection Accounts or the Loan Combination Custodial
Accounts) and the Special Servicer (with respect to Permitted Investments of
amounts in the REO Accounts), on behalf of the Trustee, and the Trustee or the
Grantor Trust Trustee, as applicable (with respect to Permitted Investments of
amounts in the Distribution Account, the Gain-on-Sale Reserve Account, the
Additional Interest Account, the Interest Reserve Account and the Floating Rate
Account), shall (and in the case of the Master Servicers and the Special
Servicer, the Trustee hereby designates each Master Servicer and the Special
Servicer, as applicable, as the Person that shall) maintain continuous
possession of any Permitted Investment that is either (i) a "certificated
security", as such term is defined in the UCC, or (ii) other property in which a
secured party may perfect its security interest by possession under the UCC or
any other applicable law. Possession of any such Permitted Investment by either
Master Servicer, the Special Servicer or the Trustee shall constitute possession
by the Trustee, as secured party, for purposes of Section 9-313 of the UCC and
any other applicable law. If amounts on deposit in an Investment Account are at
any time invested in a Permitted Investment payable on demand, the Master
Servicers (in the case of the Collection Accounts, the Loan Combination
Custodial Accounts, the Servicing Accounts and the Reserve Accounts), the
Special Servicer (in the case of the REO Accounts) or the Trustee or the Grantor
Trust Trustee, as applicable (in the case of the Distribution Account, the
Gain-on-Sale Reserve Account, the Additional Interest Account, the Interest
Reserve Account and the Floating Rate Account), shall:
(i) 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
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hereunder in an amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly
upon determination by the applicable 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 applicable Master Servicer directs the
investment of funds in any of the Servicing Accounts, the Reserve Accounts, its
Collection Account or the Loan Combination Custodial Accounts, interest and
investment income realized on funds deposited therein, to the extent of the
related Net Investment Earnings, if any, for each Investment Period and, in the
case of a Reserve Account or a Servicing Account, to the extent not otherwise
payable to the related Mortgagor in accordance with applicable law or the
related Mortgage Loan documents, shall be for the sole and exclusive benefit of
such Master Servicer and shall be subject to its withdrawal in accordance with
Section 3.03(a), 3.03(f) or 3.05(a), as applicable. Whether or not the Special
Servicer directs the investment of funds in any REO Account, interest and
investment income realized on funds deposited therein, to the extent of the Net
Investment Earnings, if any, for each Investment Period, shall be for the sole
and exclusive benefit of the Special Servicer and shall be subject to its
withdrawal in accordance with Section 3.16(b). Whether or not the Trustee or the
Grantor Trust Trustee, as applicable, directs the investment of funds in the
Distribution Account, the Gain-on-Sale Reserve Account, the Additional Interest
Account, the Interest Reserve Account and the Floating Rate Account, interest
and investment income realized on funds deposited therein, to the extent of the
Net Investment Earnings, if any, for each Investment Period, shall be for the
sole and exclusive benefit of the Trustee and shall be subject to its withdrawal
in accordance with Section 3.05(b) or 3.05(f), as applicable. If any loss shall
be incurred in respect of any Permitted Investment on deposit in any Investment
Account, the applicable Master Servicer (in the case of the Servicing Accounts,
the Reserve Accounts, its Collection Account and the Loan Combination Custodial
Accounts, excluding any accounts containing amounts invested solely for the
benefit of, and at the direction of, the Mortgagor under the terms of the
Mortgage Loan or applicable law), the Special Servicer (in the case of the REO
Accounts) and the Trustee or the Grantor Trust Trustee, as applicable (in the
case of the Distribution Account, the Gain-on-Sale Reserve Account, the
Additional Interest Account, the Interest Reserve Account and the Floating Rate
Account), shall promptly deposit therein from its own funds, without right of
reimbursement, no later than the end of the Investment Period during which such
loss was incurred, the amount of the Net Investment Loss, if any, for such
Investment Period (except, in the case of any such loss with respect to a
Servicing Account or Reserve Account, to the extent the loss amounts represent
amounts that were invested for the benefit of, and payable to, a Mortgagor under
the terms of a Mortgage Loan or applicable law and there is no liability on the
part of the lender to such Mortgagor for such loss). Notwithstanding any of the
foregoing, 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 not earlier than 30 days prior to the insolvency and so long
as such party is not itself the insolvent federal or state chartered depository
institution or trust company or an affiliate thereof.
(c) Except as otherwise expressly provided in this Agreement, if
any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other
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performance required under any Permitted Investment and the Special Servicer or
the applicable Master Servicer fails to deposit any losses with respect to such
Permitted Investment pursuant to Section 3.06(b), the Trustee may and, subject
to Section 8.02, upon the request of Holders of Certificates entitled to not
less than 25% of the Voting Rights allocated to any Class, shall take such
action as may be appropriate to enforce such payment or performance, including
the institution and prosecution of appropriate proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including, without
limitation, the calculation of the Available Distribution 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.
(a) The Master Servicers, with respect to each of the Serviced
Mortgage Loans, including Specially Serviced Mortgage Loans, and the Special
Servicer, with respect to Administered REO Properties, shall use reasonable
efforts, consistent with the Servicing Standard, to cause the Mortgagor to
maintain, to the extent required by the terms of the related Mortgage Loan
documents, or if the Mortgagor does not maintain, shall itself maintain for each
Mortgaged Property all insurance coverage as is required under the related
Mortgage; 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 Servicers shall exercise such discretion in a manner consistent with the
Servicing Standard and subject to the terms of this Section 3.07; and provided,
further that, if and to the extent that a Mortgage so permits, the applicable
Master Servicer shall use reasonable efforts to cause the related Mortgagor to
obtain the required insurance coverage from Qualified Insurers and required
insurance coverage obtained by the Master Servicers shall be from Qualified
Insurers. The cost of any such insurance coverage obtained by either Master
Servicer or the Special Servicer shall be a Servicing Advance to be paid by the
applicable Master Servicer pursuant to Section 3.03. If not required under the
terms of the Mortgage or the Mortgage Loan documents, the Special Servicer may
require that earthquake insurance be secured for one or more Serviced Mortgaged
Properties at the expense of the Trust Fund (including the Special Servicer's
costs and expenses incurred in obtaining such insurance). Subject to Section
3.17(a), the Special Servicer shall also cause to be maintained for each
Administered REO Property no less insurance coverage than was required of the
Mortgagor under the related Mortgage as of the Closing Date; provided that all
such insurance shall be obtained from Qualified Insurers. All such insurance
policies maintained by either Master Servicer or the Special Servicer (i) 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 (or, in the case
of liability insurance, naming as an additional insured) the Trustee or the
applicable Master Servicer on behalf of the Trustee (and, in the case of a Loan
Combination, the related Non-Trust Noteholder(s)) (in the case of insurance
maintained in respect of Mortgage Loans); (ii) shall be in the name of the
Special Servicer (in the case of insurance maintained in respect of Administered
REO Properties), on behalf of the Trustee; (iii) shall be non-cancelable without
30 days' prior written notice to the insured party or with respect to
non-payment shall be non-cancelable without the insurer providing 10 days' prior
notice; (iv) in the case of a hazard insurance policy shall include coverage in
an amount not less than the lesser of (x) the full replacement cost of the
improvements securing a Serviced Mortgaged Property or Administered REO
Property, as applicable, or (y) the outstanding principal balance owing on the
related Serviced Mortgage Loan or Serviced REO Loan, as applicable, and in any
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event, the amount necessary to avoid the operation of any co-insurance
provisions; (v) shall include a replacement cost endorsement providing no
deduction for depreciation (unless such endorsement is not permitted under the
related Mortgage Loan documents); (vi) shall include such other insurance,
including, to the extent available at commercially reasonable rates, earthquake
insurance, where applicable, as required under the applicable Mortgage or other
Mortgage Loan documents; (vii) to the extent that the Mortgage or other Mortgage
Loan documents specifically require terrorism coverage or the Mortgage requires
the related Mortgagor to carry "all risk" coverage, shall include terrorism
coverage, unless the failure to obtain such terrorism coverage constitutes an
Acceptable Insurance Default (upon which determination the applicable Master
Servicer may conclusively rely); and (viii) in each case such insurance shall be
issued by an insurer authorized under applicable law to issue such insurance.
Notwithstanding the foregoing, the Master Servicers and the Special Servicer
shall not be required to obtain, and shall not be in default hereunder for
failing to obtain, (A) any insurance coverage that was previously required of
the Mortgagor under the related Mortgage if (a) such insurance is not available
at any rate; (b) such insurance is not available from a Qualified Insurer
(provided that either Master Servicer or the Special Servicer, as applicable,
shall obtain such insurance from the next highest rated insurer offering such
insurance at commercially reasonable rates); (c) subject to the prior approval
of the Controlling Class Representative (which approval is deemed granted if not
denied within 10 Business Days after its receipt of the applicable Master
Servicer's or the Special Servicer's request for such approval), such insurance
is not available at commercially reasonable rates and, as determined by the
applicable Master Servicer or the Special Servicer following due inquiry
conducted in a manner consistent with the Servicing Standard, 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 the then current market rates); or (d) the
Trustee does not have an insurable interest in the related Mortgaged Property or
Administered REO Property or (B) any earthquake or environmental insurance
policy on any Mortgaged Property unless such insurance policy was in effect at
the time of origination of the related Mortgage Loan or on the Closing Date
pursuant to the terms of the related Mortgage Loan documents and is available at
commercially reasonable rates, which determination shall be subject to the
approval of the Controlling Class Representative. In determining whether any
insurance coverage is available or is available at reasonable rates, the
applicable Master Servicer shall be entitled to rely, at its own expense, on
insurance consultants in making such determination and such determinations by
the applicable Master Servicer must be made not less frequently (but need not be
made more frequently) than annually (or such other lesser period as may be
required by the Servicing Standard) but in any event shall be made at the
approximate date on which the applicable Master Servicer receives notice of the
renewal, replacement or cancellation of coverage. Any amounts collected by
either Master Servicer or the Special Servicer under any such policies (other
than amounts to be applied to the restoration or repair of the related Serviced
Mortgaged Property or Administered 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 Master Servicer's Collection Account, subject to withdrawal pursuant
to Section 3.05(a), in the case of amounts received in respect of a Serviced
Mortgage Loan (other than a Loan Combination), or in the related Loan
Combination Custodial Account, subject to withdrawal pursuant to Section
3.05(e), in the case of amounts received in respect of a Loan Combination, or in
the applicable REO Account, subject to withdrawal pursuant to Section 3.16(c),
in the case of amounts received in respect of an Administered REO Property. Any
cost incurred by either Master Servicer or the Special Servicer in maintaining
any such insurance shall not, for purposes hereof, including, without
limitation, calculating monthly distributions to Certificateholders, be added to
the unpaid principal balance of the related Serviced Mortgage Loan,
notwithstanding that the terms of such Serviced Mortgage Loan so permit.
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Notwithstanding the foregoing, with respect to the Serviced Mortgage
Loans which either (x) require the Mortgagor to maintain "all risk" property
insurance (and do not expressly permit an exclusion for terrorism) or (y)
contain provisions generally requiring the applicable Mortgagor to maintain
insurance in types and against such risks as the holder of such Serviced
Mortgage Loan reasonably requires from time to time in order to protect its
interests, the applicable Master Servicer will be required to (A) use reasonable
efforts to monitor whether the insurance policies for the related Mortgaged
Property contain Additional Exclusions, (B) request the Mortgagor to either
purchase insurance against the risks specified in the Additional Exclusions or
provide an explanation as to its reasons for failing to purchase such insurance
and (C) notify the Special Servicer if any insurance policy contains Additional
Exclusions or if any Mortgagor fails to purchase the insurance requested to be
purchased by such Master Servicer pursuant to clause (B) above. If the Special
Servicer determines in accordance with the Servicing Standard that such failure
is not an Acceptable Insurance Default, the Special Servicer shall notify the
applicable Master Servicer and such Master Servicer shall cause such insurance
to be maintained. Furthermore, the Special Servicer shall inform the Rating
Agencies as to such conclusions for those Serviced Mortgage Loans that (i) have
one of the 10 highest outstanding Stated Principal Balances of all of the
Mortgage Loans then included in the Trust Fund or (ii) comprise more than 5% of
the outstanding Stated Principal Balance of the Mortgage Loans then included in
the Trust Fund (and, if a Loan Combination satisfies clause (i) and/or clause
(ii), the Special Servicer shall also inform the related Non-Trust Noteholder(s)
as to such conclusion). During the period that the Special Servicer is
evaluating the availability of such insurance, the applicable Master Servicer
will not be liable for any loss related to its failure to require the Mortgagor
to maintain such insurance and will not be in default of its obligations as a
result of such failure and such Master Servicer will not itself maintain such
insurance or cause such insurance to be maintained.
(b) If either Master Servicer or the Special Servicer shall obtain
and maintain, or cause to be obtained and maintained, a blanket policy or master
force-placed policy insuring against hazard losses on all of the Serviced
Mortgage Loans and/or Serviced REO Properties that it is required to service and
administer, then, to the extent such policy (i) is obtained from a Qualified
Insurer and (ii) provides protection equivalent to the individual policies
otherwise required, such 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 Serviced Mortgaged Properties
and/or Administered REO Properties. In the event that the Special Servicer
causes any Administered REO Property to be covered by such blanket policy, the
incremental cost of such insurance applicable to such Administered REO Property
(other than any minimum or standby premium payable for such policy whether or
not any Administered REO Property is covered thereby) shall be paid by the
applicable Master Servicer as a Servicing Advance pursuant to Section 3.03. Such
blanket policy or master force-placed policy may contain a deductible clause
(not in excess of a customary amount), in which case the applicable Master
Servicer or the Special Servicer, as appropriate, shall, if there shall not have
been maintained on the related Serviced Mortgaged Property or Administered REO
Property a 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 policy, promptly deposit into its Collection Account (or, in the
case of a Loan Combination Mortgaged Property or any Loan Combination REO
Property, into the related Loan Combination Custodial Account) from its own
funds the amount not otherwise payable under the blanket policy or master
force-placed policy because of such deductible clause to the extent the amount
of such deductible exceeds the deductible permitted under the related Mortgage
Loan documents (or if the related Mortgage Loan documents are silent regarding a
permitted deductible, a deductible for an individual policy that is consistent
with the Servicing Standard). The applicable Master Servicer or the Special
Servicer, as appropriate, shall prepare and present, on behalf of itself, the
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Trustee and the Certificateholders (and, in the case of a Loan Combination, the
related Non-Trust Noteholder(s)), claims under any such blanket policy or master
force-placed policy in a timely fashion in accordance with the terms of such
policy.
(c) Each of the Master Servicers 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 or Administered REO Properties are part of the Trust
Fund) keep in force a fidelity bond with Qualified Insurers, such fidelity bond
to be in such form and amount as is in accordance with the Servicing Standard,
provided that the amount of such coverage shall not be less than $10,000,000 or,
in the case of the Special Servicer, $7,500,000 (subject to customary and
commercially reasonable deductibles). Each of the Master Servicers 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 subject
Master Servicer or the Special Servicer, as the case may be.
Each of the Master Servicers and the Special Servicer shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans and/or Administered REO Properties exist as part of the
Trust Fund) also keep in force with Qualified Insurers, a policy or policies of
insurance covering loss occasioned by the errors and omissions of its officers
and employees in connection with its servicing obligations hereunder, which
policy or policies shall be in such form and amount as is in accordance with the
Servicing Standard, provided that the amount of such coverage shall not be less
than $10,000,000 or, in the case of the Special Servicer, $7,500,000 (subject to
customary and commercially reasonable deductibles). Each of the Master Servicers
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 subject
Master Servicer or the Special Servicer, as the case may be. Any such errors and
omissions policy shall provide for 10 days' written notice to the Trustee prior
to cancellation. Each Master Servicer and the Special Servicer shall each cause
the Trustee to be an additional loss payee on any policy currently in place or
procured pursuant to the requirements of this Section 3.07(c).
For so long as the long-term debt obligations of either Master
Servicer or the Special Servicer (or in the case of each initial Master Servicer
and the Special Servicer, their respective direct parent), are rated at least
"A" or the equivalent by all of the Rating Agencies (or such lower rating as
will not result in an Adverse Rating Event, as evidenced in writing by the
Rating Agencies), such Person may self-insure with respect to the risks
described in this Section 3.07(c).
(d) Within 90 days of the Closing Date, with respect to each of
the Serviced Mortgage Loans identified on Schedule II as being covered by an
environmental insurance policy, the applicable Master Servicer (or the Special
Servicer in the case of a Specially Serviced Mortgage Loan) shall notify the
insurer under such environmental insurance policy and take all other action
necessary for the Trustee, on behalf of the Certificateholders (and in the case
of a Loan Combination, the related Non-Trust Noteholder(s)), to be an insured
(and for such Master Servicer (or the Special Servicer in the case of a
Specially Serviced Mortgage Loan), on behalf of the Trust Fund (and in the case
of a Loan Combination, the related Non-Trust Noteholder(s)), to make claims)
under such environmental insurance policy. In the event that the applicable
Master Servicer, in the case of a non-Specially Serviced Mortgage Loan, or the
Special Servicer in the case of a Specially Serviced Mortgage Loan, has actual
knowledge of any event (an "Insured Environmental Event") giving rise to a claim
under any
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environmental insurance policy in respect of any Serviced Mortgage Loan covered
thereby, such Master Servicer (or the Special Servicer in the case of a
Specially Serviced Mortgage Loan) 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 (and in the case of a Loan Combination,
the related Non-Trust Noteholder(s)). Any legal fees, premiums or other
out-of-pocket costs incurred in connection with any such claim under an
environmental insurance policy shall be paid by the applicable Master Servicer
and shall be reimbursable to it as a Servicing Advance. With respect to each
environmental insurance policy that relates to one or more Serviced Mortgage
Loans, the applicable Master Servicer shall 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 (and in the case of a Loan Combination, the related Non-Trust
Noteholder(s)) in the event such Master Servicer has actual knowledge of an
Insured Environmental Event giving rise to a claim under such policy.
In the event that the applicable Master Servicer (or the Special
Servicer in the case of a Specially Serviced Mortgage Loan) receives notice of
any termination of any environmental insurance policy that relates to one or
more Serviced Mortgage Loans, such Master Servicer (or the Special Servicer in
the case of a Specially Serviced Mortgage Loan) shall, within five Business Days
after receipt of such notice, notify the Special Servicer, the Controlling Class
Representative, the Rating Agencies, the Trustee and, in the case of a Loan
Combination, the related Non-Trust Noteholder(s) of such termination in writing.
Upon receipt of such notice, the applicable Master Servicer with respect to
non-Specially Serviced Mortgage Loans, and the Special Servicer with respect to
Specially Serviced Mortgage Loans, 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 Mortgage Loan documents. Any legal
fees, premiums or other out-of-pocket costs incurred in connection with a
resolution of such termination of an environmental insurance policy shall be
paid by the applicable Master Servicer and shall be reimbursable to it as a
Servicing Advance.
SECTION 3.08 Enforcement of Alienation Clauses.
(a) Each Master Servicer (with respect to Mortgage Loans that are
not Specially Serviced Mortgage Loans) and the Special Servicer (with respect to
all other Mortgage Loans), on behalf of the Trustee as the mortgagee of record,
shall enforce any "due-on-sale" or "due-on-encumbrance" clauses and any other
restrictions contained in the related Mortgage or other related loan document on
transfers or further encumbrances of the related Mortgaged Property and on
transfers of interests in the related Mortgagor, unless the subject Master
Servicer or the Special Servicer, as the case may be, has (i) determined, in its
reasonable judgment (exercised in accordance with the Servicing Standard and
which, for the avoidance of doubt, would include a determination that any
required conditions to a transfer have been met), that waiver of the lender's
rights under such clauses or the waiver of such other restrictions, as
applicable, would be in accordance with the Servicing Standard and (ii) complied
with the applicable requirements, if any, of Section 6.11 and, if applicable,
Section 6.12; provided that:
(i) subject to the related Mortgage Loan documents and
applicable law, neither Master Servicer nor the Special Servicer shall
waive any right it has, or grant any consent it is otherwise entitled to
withhold, in accordance with any related "due-on-encumbrance" clause
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under any Serviced Trust Mortgage Loan that is a Significant Mortgage
Loan, or if, taking into account existing debt on the subject Mortgaged
Property (including any related Non-Trust Loan(s)) and the proposed
additional debt as if such total debt were a single mortgage loan, the
Loan-to-Value Ratio is equal to or greater than 85% or the Debt Service
Coverage Ratio is equal to or less than 1.2x, unless it receives prior
written confirmation from each Rating Agency that such action would not
result in an Adverse Rating Event (except that prior written confirmation
from Fitch and Xxxxx'x shall not be required unless the Serviced Trust
Mortgage Loan is a Significant Mortgage Loan);
(ii) if the affected Serviced Trust Mortgage Loan is a
Significant Mortgage Loan, then, subject to the related Mortgage Loan
documents and applicable law, neither Master Servicer nor the Special
Servicer shall waive any right it has, or grant any consent it is
otherwise entitled to withhold, in accordance with any related
"due-on-sale" clause under any Serviced Trust Mortgage Loan until it has
received written confirmation from each Rating Agency that such action
would not result in an Adverse Rating Event; provided that, with respect
to a waiver of a due-on-sale provision, in the event that such Serviced
Mortgage Loan is not a Significant Mortgage Loan, and the Mortgage Loan
documents contain a requirement for Rating Agency approval, the applicable
Master Servicer or the Special Servicer, as the case may be, subject to
Section 6.11 and, if applicable, Section 6.12 may waive such requirement
without Rating Agency approval in accordance with the Servicing Standard;
(iii) subject to the related Mortgage Loan documents and
applicable law, the applicable Master Servicer shall not waive any right
it has, or grant any consent it is otherwise entitled to withhold, in
accordance with any related "due-on-encumbrance" clause under any Trust
Mortgage Loan that is not a Specially Serviced Mortgage Loan until it has
delivered to the Special Servicer its recommendation and analysis of the
request, together with a copy of the materials and information upon which
such recommendation is based, and has received the consent of the Special
Servicer (the giving of which consent shall be subject to the Servicing
Standard, Section 6.11 and, if applicable, Section 6.12, which consent
shall be deemed given if not denied in writing within 10 Business Days
(or, if the Controlling Class Representative is entitled to object
pursuant to Section 6.11, 15 Business Days (which 15 Business Days shall
include the five Business Days specified in the proviso at the end of the
first paragraph of Section 6.11) after receipt by the Special Servicer of
the applicable Master Servicer's written recommendation and analysis and
any additional information reasonably requested by the Special Servicer or
the Controlling Class Representative);
(iv) subject to the related Mortgage Loan documents and
applicable law, the applicable Master Servicer shall not waive any right
it has, or grant any consent it is otherwise entitled to withhold, in
accordance with any related "due-on-sale" clause under any Trust Mortgage
Loan that is not a Specially Serviced Mortgage Loan until it has received
the consent of the Special Servicer (the giving of which consent shall be
subject to the Servicing Standard, Section 6.11 and, if applicable,
Section 6.12, which consent shall be deemed given if not denied in writing
within 10 Business Days (or, if the Controlling Class Representative is
entitled to object pursuant to Section 6.11, 15 Business Days (which 15
Business Days shall include the five Business Days specified in the
proviso at the end of the first paragraph of Section 6.11) of receipt by
the Special Servicer of such Master Servicer's written recommendation and
analysis and any additional information reasonably requested by the
Special Servicer or the Controlling Class Representative);
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(v) subject to the related Mortgage Loan documents and
applicable law, neither the applicable Master Servicer nor the Special
Servicer, as the case may be, shall waive any right it has, or grant any
consent it is otherwise entitled to withhold, in accordance with any
related "due-on-sale" or "due-on-encumbrance" clause under any Serviced
Mortgage Loan, or approve the assumption of any Mortgage Loan, unless in
any such case, all associated costs and expenses are covered without any
expense to the Trust (it being understood and agreed that, except as
expressly provided herein, the applicable Master Servicer or the Special
Servicer, as the case may be, shall not be obligated to cover or assume
any such costs or expenses); and
(vi) the applicable Master Servicer or the Special
Servicer, as the case may be, shall not (to the extent that it is within
the control thereof to prohibit such event) consent to the transfer of any
Serviced Mortgaged Property that secures a Crossed Loan Group unless (i)
all of the Serviced Mortgaged Properties securing such Crossed Loan Group
are transferred simultaneously by the respective Mortgagor or (ii) it
obtains the consent of the Controlling Class Representative, which consent
shall be deemed given if not denied in writing within 10 Business Days
(or, if the Controlling Class Representative is entitled to object
pursuant to Section 6.11, 15 Business Days, which 15 Business Days shall
include the five Business Days specified in the proviso at the end of the
first paragraph of Section 6.11) of receipt by the Controlling Class
Representative of written notice of such action and all reasonably
requested information related thereto (or, if no information is requested,
within 10 Business Days (or, if applicable, 15 Business Days) of receipt
of written notice).
If, in connection with an assumption of any Serviced Mortgage Loan,
the applicable Mortgage Loan Seller bears the costs and expenses associated with
such assumption in accordance with the terms of the applicable Mortgage Loan
Purchase Agreement, any costs and expenses subsequently recovered by the
applicable Master Servicer or the Special Servicer from the related Mortgagor in
respect of such assumption shall be promptly remitted by such Master Servicer or
the Special Servicer to the applicable Mortgage Loan Seller.
In the case of any Serviced Mortgage Loan, the applicable Master
Servicer and the Special Servicer shall each provide the other with all such
information as each may reasonably request in order to perform its duties under
this Section.
In connection with any permitted assumption of any Serviced Mortgage
Loan or waiver of a "due-on-sale" or "due-on-encumbrance" clause thereunder, the
applicable Master Servicer, with respect to Trust Mortgage Loans that are not
Specially Serviced Mortgage Loans, or the Special Servicer, with respect to the
Specially Serviced Mortgage Loans, shall prepare all documents necessary and
appropriate for such purposes and shall coordinate with the related Mortgagor
for the due execution and delivery of such documents.
If the applicable Master Servicer or the Special Servicer, as
applicable, consents subsequent to the Closing Date to the incurrence by the
principal(s) of a Mortgagor under a Trust Mortgage Loan of mezzanine financing
or the incurrence by a Mortgagor of subordinate debt and enters into an
intercreditor agreement, such servicer (to the extent it is permitted to do so
under the related loan documents and applicable law and in accordance with the
Servicing Standard) shall require the related mezzanine or subordinate lender to
agree to pay a Principal Recovery Fee in connection with any purchase right that
arises upon a loan default in the event such purchase occurs after the
expiration of 60 days from the date the right to purchase arises under such
intercreditor agreement. The foregoing
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sentence shall not operate to modify the provisions of the preceding paragraph
of this Section 3.08(a) regarding due-on-sale and due-on-encumbrance provisions.
Notwithstanding anything in this Section 3.08(a) or any other
provision of this Agreement to the contrary, with respect to the Mortgage Loan
identified on the Mortgage Loan Schedule by property name Dover Center at Cool
Springs (loan number 18), Master Servicer No. 2 shall determine, in accordance
with the Servicing Standard, whether the related Mortgagor has complied with the
terms and conditions of the provisions of the related Mortgage Loan documents
related to syndication of tenant in common interests in the related Mortgagor.
No consent of the Special Servicer, the Controlling Class Representative or any
Rating Agency to any such transfer of interests shall be required provided all
conditions (none of which may be waived by Master Servicer No. 2) have been
complied with. Master Servicer No. 2 shall notify the Special Servicer of the
occurrence of such transfer.
(b) Notwithstanding any other provisions of this Section 3.08, the
applicable Master Servicer, with respect to Trust Mortgage Loans that are not
Specially Serviced Mortgage Loans (without the Special Servicer's consent, but
subject to delivering prior notice to the Special Servicer and the Controlling
Class Representative (and with respect to a Loan Combination, the related
Non-Trust Noteholder(s)) or the Special Servicer with respect to the Specially
Serviced Mortgage Loans, as applicable, may grant, without any Rating Agency
confirmation as otherwise provided in paragraph (a) above, a Mortgagor's request
for consent to subject the related Mortgaged Property to an easement,
right-of-way or other similar agreement for utilities, access, parking, public
improvements or another purpose, and may consent to subordination of the related
Serviced Mortgage Loan to such easement, right-of-way or other similar agreement
provided the applicable Master Servicer or the Special Servicer, as the case may
be, shall have determined in accordance with the Servicing Standard that such
easement, right-of-way or other similar agreement shall not materially interfere
with the then-current use of the related Mortgaged Property, the security
intended to be provided by such Mortgage or the related Mortgagor's ability to
repay the Serviced Mortgage Loan, or materially and adversely affect the value
of such Mortgaged Property, or cause the Serviced Mortgage Loan to cease to be a
qualified mortgage loan for REMIC purposes.
SECTION 3.09 Realization Upon Defaulted Mortgage Loans; Required
Appraisals.
(a) The Special Servicer shall, subject to Sections 3.09(b)
through 3.09(d) and Section 6.11 and, if applicable, Section 6.12, exercise
reasonable efforts, consistent with the Servicing Standard, to foreclose upon or
exercise any power of sale contained in the related Mortgage, obtain a
deed-in-lieu of foreclosure, or otherwise acquire title to the corresponding
Mortgaged Property by operation of law or otherwise in relation to such of the
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, without limitation, pursuant to Section 3.20. Subject to the second
paragraph of Section 3.03(c), the applicable Master Servicer shall advance all
costs and expenses (other than costs or expenses that would, if incurred,
constitute a Nonrecoverable Servicing Advance) incurred by the Special Servicer
in any such proceedings, and shall be entitled to reimbursement therefor as
provided in Section 3.05(a) or Section 3.05(e), as applicable. Nothing contained
in this Section 3.09 shall be construed so as to require the Special Servicer,
on behalf of the Trust Fund (and, in the case of a Loan Combination Mortgaged
Property, the related Non-Trust Noteholder(s)), to make a bid on any Mortgaged
Property at a foreclosure sale or similar proceeding that is in excess of the
fair market value
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of such property, as determined by the Special Servicer in its reasonable
judgment (exercised in accordance with the Servicing Standard) taking into
account, as applicable, among other factors, the period and amount of any
delinquency on the affected Serviced Mortgage Loan, the occupancy level and
physical condition of the Mortgaged Property or REO Property, the state of the
local economy, the obligation to dispose of any REO Property within the time
period specified in Section 3.16(a) and the results of any appraisal obtained
pursuant to the following sentence, all such bids to be made in a manner
consistent with the Servicing Standard. If and when the applicable 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
Defaulted Mortgage Loan, whether for purposes of bidding at foreclosure or
otherwise, it may, at the expense of the Trust Fund (and, in the case of a Loan
Combination, at the expense of the related Non-Trust Noteholder(s)), 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, as
applicable, among other factors, the period and amount of any delinquency on the
affected Serviced Mortgage Loan, the occupancy level and physical condition of
the related Mortgaged Property or REO Property, the state of the local economy
and the obligation to dispose of any REO Property within the time period
specified in Section 3.16(a), including without limitation, any environmental,
engineering or other third party reports available, and other factors that a
prudent real estate appraiser would consider.
With respect to each Required Appraisal Mortgage Loan, the Special
Servicer will be required to use commercially reasonable efforts to obtain a
Required Appraisal (or with respect to any Mortgage Loan with an outstanding
principal balance, net of related unreimbursed advances of principal, of less
than $2,000,000, at the Special Servicer's option, an internal valuation
performed by the Special Servicer) within 60 days of a Serviced Mortgage Loan
becoming a Required Appraisal Mortgage Loan (unless an appraisal meeting the
requirements of a Required Appraisal was obtained for such Required Appraisal
Mortgage Loan within the prior 12 months and the Special Servicer has no actual
knowledge of a material adverse change in the condition of the related Mortgaged
Property in which case such appraisal may be a letter update of the Required
Appraisal) and thereafter shall obtain a Required Appraisal (or with respect to
any Serviced Mortgage Loan with an outstanding principal balance, net of related
unreimbursed Advances of principal, of less than $2,000,000, an internal
valuation performed by the Special Servicer) once every 12 months (or sooner if
the Special Servicer has actual knowledge of a material adverse change in the
condition of the related Mortgaged Property) if such Serviced Mortgage Loan
remains a Required Appraisal Mortgage Loan. Following its receipt of such
Required Appraisal or letter update or the completion of its internal valuation,
the Special Servicer may, but shall not be required to, reduce the Appraised
Value of the related Mortgaged Property based on its review of the Required
Appraisal (or letter update or internal valuation) and any other information
that the Special Servicer, consistent with the Servicing Standard, deems
appropriate. The Special Servicer shall deliver a copy of each Required
Appraisal (or letter update or internal valuation) to the applicable Master
Servicer, the Controlling Class Representative and the Trustee within 10
Business Days of obtaining or performing such Required Appraisal (or letter
update or internal valuation). Subject to the second paragraph of Section
3.03(c), the applicable Master Servicer shall advance the cost of such Required
Appraisal; provided, however, that such expense will be subject to reimbursement
to such Master Servicer as a Servicing Advance out of its Collection Account
pursuant to Section 3.05(a)(vi) and 3.05(a)(vii) or, in the case of a Loan
Combination, out of the related Loan Combination Custodial Account pursuant to
Section 3.05(e)(vi) and 3.05(e)(vii).
(b) Notwithstanding any other provision of this Agreement, no
Serviced Mortgaged Property shall be acquired by the Special Servicer on behalf
of the Certificateholders (and, in the case of
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a Loan Combination Mortgaged Property, the related Non-Trust Noteholder) under
such circumstances, in such manner or pursuant to such terms as would, in the
reasonable judgment of the Special Servicer (exercised in accordance with the
Servicing Standard), (i) cause such Mortgaged Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(unless the portion of such Mortgaged Property that is not treated as
"foreclosure property" and that is held by REMIC I at any given time constitutes
not more than a de minimis amount of the assets of REMIC I, within the meaning
of Treasury regulations Section 1.860D-1(b)(3)(i) and (ii)), or (ii) except as
permitted by Section 3.17(a), subject the Trust Fund to the imposition of any
federal income taxes under the Code. Subject to the foregoing, however, a
Serviced Mortgaged Property may be acquired through a single member limited
liability company if the Special Servicer determines that such an action is
appropriate to protect the Trust (and, in the case of a Loan Combination
Mortgaged Property, the related Non-Trust Noteholder(s)) from potential
liability. The Special Servicer shall not acquire any personal property pursuant
to this Section 3.09 unless either:
(i) such personal property is 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 may be withdrawn from the applicable Master
Servicer's Collection Account pursuant to Section 3.05(a)) to the effect
that the holding of such personal property as part of the Trust Fund will
not cause the imposition of a tax on any of REMIC I or REMIC II under the
REMIC Provisions or cause any of REMIC I or REMIC II to fail to qualify as
a REMIC at any time that any Certificate is outstanding.
(c) Neither Master Servicer (in such capacity) shall obtain title
to a Mortgaged Property. Notwithstanding the foregoing provisions of this
Section 3.09, the Special Servicer shall not, on behalf of the Trust Fund (and,
in the case of a Loan Combination, on behalf of the related Non-Trust
Noteholder(s)), obtain title to a Serviced Mortgaged Property by foreclosure,
deed in lieu of foreclosure or otherwise, or take any other action with respect
to any Serviced 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 Non-Trust
Noteholder(s)), could, in the reasonable 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 Serviced Mortgaged Property within the meaning of CERCLA or any comparable
law (a "potentially responsible party"), unless the Special Servicer has
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, the
related Non-Trust Noteholder(s)) that shall specify all of the bases for such
determination), in accordance with the Servicing Standard, and based on an
Environmental Assessment of such Serviced Mortgaged Property performed by an
Independent Person who regularly conducts Environmental Assessments and
performed within six months prior to any such acquisition of title or other
action (a copy of which Environmental Assessment shall be delivered to the
Trustee, the Controlling Class Representative, the applicable Master Servicer
and, in the case of a Loan Combination Mortgaged Property, to the related
Non-Trust Noteholder(s)), that:
(i) the Serviced 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 to the Certificateholders (and, in
the case of a Loan Combination Mortgaged Property, on behalf of the
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related Non-Trust Noteholder(s)), as a collective whole, on a present
value basis (the relevant discounting of anticipated collections that will
be distributable to Certificateholders (and, in the case of a Loan
Combination Mortgaged Property, on behalf of the related Non-Trust
Noteholder(s)) to be performed at the related Net Mortgage Rate) to
acquire title to or possession of the Mortgaged Property and to take such
actions as are necessary to bring the Serviced Mortgaged Property into
compliance therewith in all material respects; and
(ii) there are no circumstances or conditions present at
the Serviced 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 to the Certificateholders (and, in the case of a
Loan Combination Mortgaged Property, on behalf of the related Non-Trust
Noteholder(s)), as a collective whole, on a present value basis (the
relevant discounting of anticipated collections that will be distributable
to Certificateholders (and, in the case of a Loan Combination Mortgaged
Property, on behalf of the related Non-Trust Noteholder(s)) to be
performed at the related Net Mortgage Rate) to acquire title to or
possession of the Serviced Mortgaged Property and to take such actions
with respect to the affected Serviced 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 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 applicable
Collection Account or the applicable Loan Combination Custodial Account pursuant
to Section 3.05(a) or 3.05(e) (or, in the case of a Loan Combination Mortgaged
Property, to the extent the funds in the related Loan Combination Custodial
Account are insufficient, shall be advanced by the applicable Master Servicer,
subject to Section 3.03(c)).
(d) If the environmental testing contemplated by Section 3.09(c)
above establishes that any of the conditions set forth in clauses (i) and (ii)
thereof has not been satisfied with respect to any Serviced Mortgaged Property
securing a Defaulted Mortgage Loan and there is no breach of a representation or
warranty requiring repurchase under the applicable Mortgage Loan Purchase
Agreement, the Special Servicer shall take such action as is in accordance with
the Servicing Standard (other than proceeding against the Serviced Mortgaged
Property). At such time as it deems appropriate, the Special Servicer may, on
behalf of the Trust (and, if a Loan Combination is involved, the related
Non-Trust Noteholder(s)), if and as applicable, release all or a portion of such
Serviced Mortgaged Property from the lien of the related Mortgage; provided
that, if such Serviced Mortgage Loan (or such Loan Combination, if applicable)
has a then outstanding principal balance of greater than $1 million, then prior
to the release of all or a portion of the related Mortgaged Property from the
lien of the related Mortgage, (i) the Special Servicer shall have notified the
Rating Agencies, the Trustee, the Controlling Class Representative, the
applicable Master Servicer and, in the case of a Loan Combination Mortgaged
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Property, the related Non-Trust Noteholder(s) in writing of its intention to so
release all or a portion of such Mortgaged Property and the bases for such
intention and (ii) the Trustee shall have notified the Certificateholders in
writing of the Special Servicer's intention to so release all or a portion of
such Mortgaged Property.
(e) The Special Servicer shall report to the applicable Master
Servicer, the Controlling Class Representative, the Trustee and, in the case of
a Loan Combination Mortgaged Property, the related Non-Trust Noteholder(s)
monthly in writing as to any actions taken by the Special Servicer with respect
to any Serviced Mortgaged Property that represents security for a Defaulted
Mortgage Loan as to which the environmental testing contemplated in Section
3.09(c) above has revealed that any of the conditions set forth in clauses (i)
and (ii) 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
Serviced Mortgage on such Mortgaged Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, with respect to any Specially Serviced
Mortgage Loan, the advisability of seeking to obtain a deficiency judgment if
the state in which the related Mortgaged Property is located and the terms of
the Mortgage Loan permit such an action and shall, in accordance with the
Servicing Standard, seek such deficiency judgment if it deems advisable.
(g) Annually in each January, the Special Servicer shall on a
timely basis forward to the Master Servicers, all information required to be
reported and the Master Servicers shall promptly prepare and file with the
Internal Revenue Service on a timely basis, the information returns with respect
to the reports of foreclosures and abandonments and reports relating to any
cancellation of indebtedness income with respect to any Serviced Mortgage Loan
or Serviced Mortgaged Property required by Sections 6050H (as applicable), 6050J
and 6050P of the Code. Each Master Servicer shall prepare and file the
information returns with respect to the receipt of any mortgage interest
received in a trade or business from individuals with respect to any Serviced
Mortgage Loan as required by Section 6050H of the Code. All information returns
shall be in form and substance sufficient to meet the reporting requirements
imposed by the relevant sections of the Code.
(h) The Special Servicer shall maintain accurate records, prepared
by a Servicing Officer, of each Final Recovery Determination in respect of any
Serviced Mortgage Loan or Administered REO Property and the basis thereof. Each
Final Recovery Determination shall be evidenced by an Officer's Certificate
(together with the basis and back-up documentation for the determination)
delivered to the Trustee, the Controlling Class Representative, the applicable
Master Servicer and, in the case of any Loan Combination or any Loan Combination
REO Property, the related Non-Trust Noteholder(s) no later than the third
Business Day following such Final Recovery Determination.
(i) Upon reasonable request of either Master Servicer, the Special
Servicer shall deliver to it and the related Sub-Servicer any other information
and copies of any other documents in its possession with respect to a Specially
Serviced Mortgage Loan or the related Mortgaged Property.
SECTION 3.10 Trustee and Custodian to Cooperate; Release of
Mortgage Files.
(a) Upon the payment in full of any Serviced Trust Mortgage Loan,
or the receipt by the applicable Master Servicer of a notification that payment
in full shall be escrowed in a manner customary for such purposes, such Master
Servicer shall promptly notify the Trustee in writing, who
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shall release or cause the related Custodian to release, 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 such Master Servicer's Collection Account pursuant to Section
3.04(a) 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. Upon receipt of such
certification and request, the Trustee shall release, or cause any related
Custodian to release, the related Mortgage File to the applicable Master
Servicer and shall deliver to such Master Servicer such release or discharge,
duly executed. If the related Mortgage has been recorded in the name of MERS or
its designee, the Master Servicer or a Sub-Servicer at its direction, if
registered with MERS, and if the Master Servicer or such Sub-Servicer is not so
registered, the Trustee, shall take all necessary action to reflect the release
of such Mortgage on the MERS(R) System. No expenses incurred in connection with
any instrument of satisfaction or deed of reconveyance shall be chargeable to
the applicable Master Servicer's Collection Account or the Distribution Account.
Upon the payment in full of any Non-Trust Loan, or the receipt by
the applicable Master Servicer of a notification that payment in full shall be
escrowed in a manner customary for such purposes, such Master Servicer shall
promptly notify the related Non-Trust Noteholder in writing 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 related Loan Combination Custodial Account pursuant to
Section 3.04(h) 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 original Mortgage Note. No expenses incurred
in connection with any instrument of satisfaction or deed of reconveyance shall
be chargeable to the related Loan Combination Custodial Account, the applicable
Master Servicer's Collection Account or the Distribution Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Mortgage Loan, either Master Servicer or the Special
Servicer shall otherwise require any Mortgage File (or any portion thereof) (or
the original of the Mortgage Note for a Non-Trust Loan), the Trustee, upon
request of the applicable Master Servicer and receipt from such 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 portion thereof) (and, in the case of a Non-Trust Loan, the
applicable Master Servicer shall request the related Non-Trust Noteholder to
release the Mortgage Note for such Mortgage Loan) to such Master Servicer or the
Special Servicer, as the case may be. Upon return of such Mortgage File (or
portion thereof) to the Trustee or related Custodian, or the delivery to the
Trustee of a certificate of a Servicing Officer of the Special Servicer stating
that such Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation that are required to be deposited
into the applicable Collection Account or the applicable Loan Combination
Custodial Account pursuant to Section 3.04(a) or Section 3.04(h), as the case
may be, have been or will be so deposited, or that such Mortgage Loan has become
an REO Property, a copy of the Request for Release shall be released by the
Trustee or related Custodian to the applicable Master Servicer or the Special
Servicer, as the case may be.
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(c) Within seven Business Days (or within such shorter period (but
no less than three Business Days) as execution and delivery can reasonably be
accomplished if the Special Servicer notifies the Trustee 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, the related Non-Trust Noteholder(s)) based
on a limited power of attorney issued in favor of the Special Servicer pursuant
to Section 3.01(b)), in the form supplied to the Trustee, 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
Serviced Mortgaged Property or Administered REO 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 any other document or agreement
that in the Special Servicer's reasonable judgment is required to be executed in
connection with the servicing of any Mortgage Loan or REO Property, 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, either Master Servicer, the Special
Servicer or, if applicable, the related Non-Trust Noteholder. Together with such
documents or pleadings, the Special Servicer shall deliver to the Trustee (and,
if applicable, the related Non-Trust Noteholder(s)) 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, also on behalf of the
related Non-Trust Noteholder(s)) will not invalidate or otherwise affect the
lien of the Mortgage, except for the termination of such a lien upon completion
of the foreclosure or trustee's sale.
SECTION 3.11 Servicing Compensation.
(a) As compensation for its activities hereunder, each 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 master serviced by it. As to each such Mortgage Loan and REO Loan, the
Master Servicing Fee shall accrue at the related Master Servicing Fee Rate and
on the same principal amount respecting which the related interest payment due
on such Mortgage Loan or deemed to be due on such REO Loan is computed and
calculated on the same interest accrual basis as that Mortgage Loan, which will
be either a 30/360 Basis or an Actual/360 Basis (or, in the event of a Principal
Prepayment in full or other Liquidation Event with respect to a Mortgage Loan or
an REO Loan, on the basis of the actual number of days to elapse from and
including the 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 Mortgage Loan or any 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 Mortgage Loan and REO Revenues allocable as
interest on each REO Loan. Each Master Servicer shall be entitled to recover
unpaid Master Servicing Fees in respect of any Mortgage Loan or any REO Loan out
of that portion of related Insurance Proceeds or Liquidation Proceeds allocable
as recoveries of interest, to the extent permitted by Section 3.05(a)(iii) or
Section 3.05(e), as applicable, and in the case of a Trust Mortgage Loan or a
Trust REO Loan, out of such other amounts as may be permitted by Section
3.05(a). The right to receive the Master Servicing Fee may not be transferred in
whole or in part except in connection with the transfer of all of either Master
Servicer's responsibilities and obligations under this Agreement or the transfer
of all or a portion of Master Servicer No. 1's right to receive the Excess
Servicing Strip.
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Notwithstanding anything herein to the contrary, either of Wachovia
or Xxxxx Fargo (and its successors and assigns) may at its option assign or
pledge to any third party or retain for itself the Excess Servicing Strip (in
any event, in whole as to the entire portion of the Mortgage Pool serviced by it
but not in part); provided that any assignee or pledgee of the Excess Servicing
Strip must be a Qualified Institutional Buyer or Institutional Accredited
Investor (other than a Plan); and provided, further, that no transfer, sale,
pledge or other assignment of the Excess Servicing Strip shall be made unless
that transfer, sale, pledge or other assignment is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws and is otherwise made in accordance with the Securities Act and
such state securities laws; and provided, further, that in the event of any
resignation or termination of Wachovia or Xxxxx Fargo in its capacity as a
Master Servicer, all or any portion of the Excess Servicing Strip may be reduced
by the Trustee through a reduction in the Excess Servicing Strip Rate with
respect to one or more Mortgage Loans and REO Loans that were serviced by the
resigned or terminated Master Servicer to the extent reasonably necessary (in
the sole discretion of the Trustee) for the Trustee to obtain a qualified
successor Master Servicer (which successor may include the Trustee) that meets
the requirements of Section 6.04 and that requires market rate servicing
compensation (including compensation necessary to pay primary servicing fees)
that accrues at a per annum rate in excess of the sum of (i) 0.01% (one basis
point) per annum and (ii) with respect to any Serviced Mortgage Loan or Serviced
REO Loan that is not primary serviced by Wachovia or Xxxxx Fargo, as the case
may be, the primary servicing fee rate, if any, for such Mortgage Loan or REO
Loan. Wachovia or Xxxxx Fargo, as the case may be, and each holder of the Excess
Servicing Strip desiring to effect a transfer, sale, pledge or other assignment
of the Excess Servicing Strip shall, and each of Wachovia and Xxxxx Fargo hereby
agrees, and each such holder of the Excess Servicing Strip by its acceptance of
the Excess Servicing Strip shall be deemed to have agreed, in connection with
any transfer of the Excess Servicing Strip effected by such Person, to indemnify
the Certificateholders, the Trust, the Depositor, the Underwriters, the Trustee,
any Fiscal Agent, the other Master Servicer, the Certificate Registrar and the
Special Servicer against any liability that may result if such transfer is not
exempt from registration and/or qualification under the Securities Act or other
applicable federal and state securities laws or is not made in accordance with
such federal and state laws or in accordance with the foregoing provisions of
this paragraph. By its acceptance of the Excess Servicing Strip, the holder
thereof shall be deemed to have agreed (i) to keep all information relating to
the Trust and the Trust Fund and made available to it by the applicable Master
Servicer confidential (except as permitted pursuant to clause (iii) below or, in
the case of such Master Servicer, as contemplated hereby in the performance of
its duties and obligations hereunder), (ii) not to use or disclose such
information in any manner that could result in a violation of any provision of
the Securities Act or other applicable securities laws or that would require
registration of the Excess Servicing Strip or any Non-Registered Certificate
pursuant to the Securities Act, and (iii) not to disclose such information, and
to cause its officers, directors, partners, employees, agents or representatives
not to disclose such information, in any manner whatsoever, in whole or in part,
to any other Person other than such holder's auditors, legal counsel and
regulators, except to the extent such disclosure is required by law, court order
or other legal requirement or to the extent such information is of public
knowledge at the time of disclosure by such holder or has become generally
available to the public other than as a result of disclosure by such holder;
provided, however, that such holder may provide all or any part of such
information to any other Person who is contemplating an acquisition of the
Excess Servicing Strip if, and only if, such Person (x) confirms in writing such
prospective acquisition and (y) agrees in writing to keep such information
confidential, not to use or disclose such information in any manner that could
result in a violation of any provision of the Securities Act or other applicable
securities laws or that would require registration of the Excess Servicing Strip
or any Non-Registered Certificates pursuant to the Securities Act and not to
disclose such information, and to cause its officers, directors, partners,
employees, agents or
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representatives not to disclose such information, in any manner whatsoever, in
whole or in part, to any other Person other than such Persons' auditors, legal
counsel and regulators. From time to time following any transfer, sale, pledge
or assignment of the Excess Servicing Strip, the Person then acting as Master
Servicer No. 1 or Master Servicer No. 2, as the case may be, shall pay, out of
each amount paid to such Master Servicer as Master Servicing Fees with respect
to any Mortgage Loan or REO Loan, as the case may be, the portion of the Excess
Servicing Strip attributable to such Mortgage Loan or REO Loan to the holder of
the Excess Servicing Strip within one Business Day following the payment of such
Master Servicing Fees to such Master Servicer, in each case in accordance with
payment instructions provided by such holder in writing to such Master Servicer.
The holder of the Excess Servicing Strip shall not have any rights under this
Agreement except as set forth in the preceding sentences of this paragraph. The
applicable Master Servicer shall pay the Excess Servicing Strip to the holder of
the Excess Servicing Strip (i.e., Wachovia or Xxxxx Fargo, as the case may be,
or any such third party) at such time and to the extent such Master Servicer is
entitled to receive payment of its Master Servicing Fees hereunder,
notwithstanding any resignation or termination of Wachovia or Xxxxx Fargo, as
the case may be, hereunder (subject to reduction as provided above and in the
next paragraph).
In the event that Wachovia or Xxxxx Fargo, as the case may be, is
terminated or resigns as a Master Servicer, it (and its successors and assigns)
will be entitled to retain the Excess Servicing Strip, except to the extent that
any portion of such Excess Servicing Strip is needed (as determined by the
Trustee in its sole discretion) to compensate any replacement Master Servicer
for assuming the duties of Wachovia or Xxxxx Fargo, as the case may be, under
this Agreement.
(b) Additional master servicing compensation in the form of:
(i) any and all Default Charges (or portion thereof that
is comprised of late payment charges) collected with respect to a Mortgage
Loan that is not a Specially Serviced Mortgage Loan, to the extent
provided in clause seventh of Section 3.26(a);
(ii) (A) in the case of Master Servicer No. 1, (1)100% of
any and all modification fees, extension fees, consent fees,
release fees, waiver fees and earn-out fees actually paid by a
Mortgagor (including without limitation, any such fees earned
with respect to any of the actions that such Master Servicer
is permitted to process under Section 3.20(e)) where the
related action does not require the consent of the Special
Servicer, (2) 100% of any fees actually paid by a Mortgagor in
connection with a defeasance of any Mortgage Loan that is not
a Specially Serviced Mortgage Loan, (3) 50% of any fees
actually paid by a Mortgagor in connection with a defeasance
of any Mortgage Loan that is a Specially Serviced Mortgage
Loan, (4) 100% of any and all assumption application fees
actually paid by a Mortgagor with respect to a Mortgage Loan
that is not a Specially Serviced Mortgage Loan where the
related assumption is consummated, (5) 50% of any and all
assumption application fees actually paid by a Mortgagor with
respect to a Mortgage Loan that is not a Specially Serviced
Mortgage Loan where the related assumption fails to be
consummated, and (6) 50% of any and all assumption fees
actually paid by a Mortgagor with respect to the assumption of
a Mortgage Loan that is not a
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Specially Serviced Mortgage Loan to the extent that the
consent of the Special Servicer is required, and
(B) in the case of Master Servicer No. 2,
50% of any and all assumption application fees, fees
paid in connection with defeasance, assumption fees,
modification fees, extension fees, consent fees,
release fees, waiver fees and earn-out fees actually
paid by a Mortgagor with respect to a Serviced
Mortgage Loan that is not a Specially Serviced
Mortgage Loan (provided, however, that if the
consent of the Special Servicer is not required
pursuant to the terms of this Agreement in
connection with the underlying servicing action,
then Master Servicer No. 2 shall be entitled to
receive 100% of such fees);
(iii) any and all charges for beneficiary statements or
demands, amounts collected for checks returned for insufficient funds and
other loan processing fees actually paid by a Mortgagor with respect to a
Serviced Mortgage Loan that is not a Specially Serviced Mortgaged Loan
and, in the case of checks returned for insufficient funds, with respect
to a Specially Serviced Mortgage Loan;
(iv) any and all Prepayment Interest Excesses collected
with respect to a Serviced Trust Mortgage Loan, including a Specially
Serviced Mortgage Loan (after deduction of the amounts required to be
deposited by the applicable Master Servicer in its Collection Account for
the related Distribution Date pursuant to Section 3.19(a) in connection
with Prepayment Interest Shortfalls and Casualty/Condemnation Interest
Shortfalls);
(v) interest or other income earned on deposits in the
Investment Accounts maintained by either Master Servicer (but only to the
extent of the Net Investment Earnings, if any, with respect to any such
Investment Account for each Collection Period and, further, in the case of
a Servicing Account or Reserve Account, only to the extent such interest
or other income is not required to be paid to any Mortgagor under
applicable law or under the related Mortgage Loan documents); and
(vi) other customary charges;
may be retained by the Master Servicers (subject to Section 3.11(e) and are not
required to be deposited in their respective Collection Accounts; provided that
either Master Servicer's right to receive Default Charges pursuant to clause (i)
above shall be limited to the portion of such items that have not been applied
to pay, or reimburse the Trust for, interest on Advances, Additional Trust Fund
Expenses and property inspection costs in respect of the related Mortgage Loan
or REO Loan as provided in Sections 3.03(d), 3.12(a) and 4.03(d) or as otherwise
provided in Section 3.26. Any of the amounts described in clauses (i) through
(v) that are collected by the Special Servicer shall be promptly paid to the
applicable Master Servicer.
Each Master Servicer shall be required to pay out of its own funds
all expenses incurred by it in connection with its servicing activities
hereunder (including, without limitation, payment of any amounts due and owing
to any of its Sub-Servicers and the premiums for any blanket policy insuring
against hazard losses pursuant to Section 3.07(b)), if and to the extent such
expenses are not payable directly out of its Collection Account or, with respect
to a Loan Combination, out of the related Loan
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Combination Custodial Account, and the Master Servicers shall not be entitled to
reimbursement therefor except as expressly provided in this Agreement.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and each Serviced REO Loan. As to each
Specially Serviced Mortgage Loan and Serviced REO Loan, the Special Servicing
Fee shall accrue at the Special Servicing Fee Rate and on the same principal
amount respecting which the related interest payment due on such Specially
Serviced Mortgage Loan or deemed to be due on such Serviced REO Loan is computed
and calculated on the same interest accrual basis as that Mortgage Loan, which
will be either a 30/360 Basis or an Actual/360 Basis (or, in the event of a
Principal Prepayment in full or other Liquidation Event with respect to a
Serviced Mortgage Loan or Serviced REO Loan, on the basis of the actual number
of days to elapse from and including the related Due Date to but excluding the
date of such Principal Prepayment or Liquidation Event in a month consisting of
30 days). The Special Servicing Fee with respect to any Specially Serviced
Mortgage Loan or Serviced REO Loan shall cease to accrue as of the date a
Liquidation Event occurs in respect thereof or it becomes a Corrected Mortgage
Loan. Subject to the penultimate paragraph of Section 3.11(c), earned but unpaid
Special Servicing Fees shall be payable monthly out of related Liquidation
Proceeds and then general collections on the Mortgage Loans and any REO
Properties on deposit in the Collection Accounts pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan, so long as such loan remains a Corrected Mortgage Loan.
As to each Corrected Mortgage Loan, the Workout Fee shall be payable out of, and
shall be calculated by application of the Workout Fee Rate to, each collection
of interest (other than Additional Interest and Penalty Interest) and principal
received on such Mortgage Loan for so long as it remains a Corrected Mortgage
Loan. The Workout Fee with respect to any Corrected Mortgage Loan will cease to
be payable if a Servicing Transfer Event occurs with respect thereto or if the
related Mortgaged Property becomes an REO Property; provided that a new Workout
Fee would become payable if and when such Mortgage Loan again became a Corrected
Mortgage Loan. If the Special Servicer is terminated or resigns, it will retain
the right to receive any and all Workout Fees payable with respect to any
Specially Serviced Mortgage Loan that became a Corrected Mortgage Loan during
the period that it acted as Special Servicer and remained a Corrected Mortgage
Loan at the time of its termination or resignation or if the Special Servicer
resolved the circumstances and/or conditions (including by way of a modification
of the related Mortgage Loan documents) causing the Mortgage Loan to be a
Specially Serviced Mortgage Loan, but the Mortgage Loan had not as of the time
the Special Servicer is terminated or resigns become a Corrected Mortgage Loan
because the related Mortgagor had not made three consecutive monthly debt
service payments and subsequently becomes a Corrected Mortgage Loan as a result
of making such three consecutive payments. The successor Special Servicer will
not be entitled to any portion of those Workout Fees.
In addition, subject to the following sentence, the Special Servicer
shall be entitled to a Principal Recovery Fee with respect to each Specially
Serviced Mortgage Loan (or Qualified Substitute Mortgage Loan substituted in
lieu thereof) for which it obtains a full or discounted payoff from the related
Mortgagor, and the Special Servicer shall also be entitled to the Principal
Recovery Fee with respect to any Specially Serviced Mortgage Loan or
Administered REO Property as to which it receives any Liquidation Proceeds or
Insurance Proceeds and allocable as a recovery of principal, interest (other
than Additional Interest and Penalty Interest) and expenses in accordance with
Section 3.02(b) or the definition of "REO Loan", as applicable; and as to each
such Specially Serviced Mortgage Loan and
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Serviced REO Loan, the Principal Recovery Fee shall be payable from, and will be
calculated by application of the Principal Recovery Fee Rate to the related
payment or proceeds. Notwithstanding the foregoing, no Principal Recovery Fee
shall be payable in connection with, or out of proceeds received in connection
with: the repurchase or substitution of any Mortgage Loan or REO Property by a
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement
due to a Breach or a Document Defect (i) within the time period (or extension
thereof) provided for such repurchase or substitution or (ii) if such repurchase
or substitution occurs after such time period (or extension thereof) and the
Mortgage Loan Seller was acting in good faith to resolve such Breach or Document
Defect; or the purchase of any Trust Mortgage Loan or related Administered REO
Property by the Plurality Subordinate Certificateholder, the Special Servicer or
any Person (except an assignee meeting the requirements of Section 3.18(c))
pursuant to Section 3.18, by the related B-Note Loan Holder pursuant to the
related Loan Combination Intercreditor Agreement unless the purchase occurs more
than 90 days after the subject Trust Mortgage Loan becoming a Specially Serviced
Mortgage Loan or unless provided for under the related Loan Combination
Intercreditor Agreement, or by either Master Servicer, the Special Servicer or
the Plurality Subordinate Certificateholder pursuant to Section 9.01; or the
purchase of any Mortgage Loan by a mezzanine lender pursuant to the related
mezzanine intercreditor agreement unless the purchase price with respect thereto
includes the Principal Recovery Fee; or the removal of any Mortgage Loan or REO
Property from the Trust by the Sole Certificate Owner in connection with an
exchange of all of the outstanding Certificates owned by the Sole Certificate
Owner for all of the Trust Mortgage Loans and each REO Property remaining in the
Trust Fund pursuant to Section 9.01; and further no Principal Recovery Fee
shall, with respect to any Serviced Mortgage Loan, be payable (i) in connection
with a Periodic Payment received in connection with such Serviced Mortgage Loan
or (ii) to the extent a Workout Fee is payable concerning the related payment,
Liquidation Proceeds or Insurance Proceeds.
Notwithstanding the foregoing, any Special Servicing Fee, Workout
Fee and/or Principal Recovery Fee payable in accordance with the three preceding
paragraphs with respect to a Loan Combination (including, without limitation,
any successor REO Loans comprising same) shall be paid from the collections
received on such Loan Combination on deposit in the related Loan Combination
Custodial Account that may be applied to pay such fees in accordance with the
related Loan Combination Intercreditor Agreement, pursuant to Section 3.05(e).
Insofar as any Special Servicing Fee, Workout Fee and/or Principal Recovery Fee
is payable in respect of a Non-Trust Loan, such fee shall be payable solely from
collections in respect of such Non-Trust Loan.
The Special Servicer's right to receive the Special Servicing Fee,
the Workout Fee and the Principal Recovery 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 Sections 6.02, 6.04 and 6.09.
The Special Servicer shall not be entitled to any Special Servicing
Fees, Workout Fees or Principal Recovery Fees with respect to the Xxxxx Xxxxxx
Village and Stuyvesant Town Trust Mortgage Loan or any related REO Property.
(d) Additional servicing compensation in the form of: (i) all
Default Charges (or portion thereof that is comprised of late payment charges)
collected with respect to Specially Serviced Mortgage Loans, to the extent
provided in clause seventh of Section 3.26(a), and (subject to Section
3.11(b)(ii)) one hundred percent (100%) of all assumption application fees
collected with respect to Specially Serviced Mortgage Loans and (ii) one-hundred
percent (100%) of any assumption fee or
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modification fee to the extent actually paid by a Mortgagor with respect to any
Specially Serviced Mortgage Loan and (subject to Section 3.11(b)(ii)) (A) in the
case of Mortgage Loans with respect to which Master Servicer No. 1 is the Master
Servicer, (1) 100% of all modification fees, extension fees, consent fees,
release fees, waiver fees and earn-out fees actually paid by a Mortgagor with
respect to any non-Specially Serviced Mortgage Loan where the related action
requires the consent of the Special Servicer, (2) 50% of all fees actually paid
by a Mortgagor in connection with a defeasance of a Mortgage Loan that is a
Specially Serviced Mortgage Loan, (3) 50% of all assumption application fees
actually paid by a Mortgagor with respect to any non-Specially Serviced Mortgage
Loan where the related assumption fails to be consummated and (4) 50% of all
assumption fees actually paid by a Mortgagor with respect to the assumption of
any Mortgage Loan that is not a Specially Serviced Mortgage Loan to the extent
that consent of the Special Servicer is required, and (B) in the case of
Mortgage Loans with respect to which Master Servicer No. 2 is the Master
Servicer, 50% of all assumption application fees, assumption fees, modification
fees, extension fees, consent fees, release fees, waiver fees, fees paid in
connection with defeasance and earn-out fees actually paid by a Mortgagor with
respect to any non-Specially Serviced Mortgage Loan that is a Serviced Mortgage
Loan for which Special Servicer consent is required, shall be retained by the
Special Servicer or promptly paid to the Special Servicer by the applicable
Master Servicer (subject to Section 3.11(e)) and shall not be required to be
deposited in the applicable Collection Account or any Loan Combination Custodial
Account, as the case may be; provided that the Special Servicer's right to
receive Default Charges pursuant to clause (i) above shall be limited to the
portion of such items that have not been applied to pay or reimburse the Trust
for interest on Advances, Additional Trust Fund Expenses and property inspection
costs in respect of the related Serviced Mortgage Loan as provided in Sections
3.03(d), 3.12(a) and 4.03(d) or as otherwise provided in Section 3.26. The
Special Servicer shall also be entitled to additional servicing compensation in
the form of: (i) interest or other income earned on deposits in 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 the REO Accounts
for each Collection Period); and (ii) 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 maintained by the Special Servicer. The
Special Servicer shall be required to pay out of its own funds all general and
administrative expenses incurred by it in connection with its servicing
activities hereunder, and the Special Servicer shall not be entitled to
reimbursement therefor except as expressly provided in Section 3.05(a) and/or
Section 3.05(e) if and to the extent such expenses are not payable directly out
of either Collection Account, the Loan Combination Custodial Accounts or the REO
Accounts, as the case may be.
(e) If either Master Servicer or the Special Servicer collects
an assumption fee or an assumption application fee in connection with any
transfer or proposed transfer of any interest in a Mortgagor or a Mortgaged
Property in respect of a Serviced Mortgage Loan, then (notwithstanding anything
herein to the contrary) such Master Servicer or the Special Servicer, as
applicable, will apply that fee to cover the costs and expenses associated with
that transfer or proposed transfer that are not otherwise paid by the related
Mortgagor and that would otherwise be payable or reimbursable out of the Trust
Fund, including any Rating Agency fees and expenses to the extent such fees and
expenses are collectible under applicable law and such Master Servicer or the
Special Servicer, as appropriate, fails to enforce such requirement in
accordance with the related Mortgage Loan documents. Any remaining portion of
such assumption fee or of such assumption application fee will be applied as
additional compensation to such Master Servicer or the Special Servicer in
accordance with this Section 3.11. Neither of the Master Servicers nor the
Special Servicer shall waive any assumption fee or assumption application fee,
to the extent it would constitute additional compensation for the other such
party, without the consent of such other party.
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SECTION 3.12 Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Serviced Mortgaged Property as soon as practicable
after a related Serviced Mortgage Loan becomes a Specially Serviced Mortgage
Loan, provided that such expense shall be reimbursable first out of Default
Charges otherwise payable to the Special Servicer and the Master Servicers, then
as an Additional Trust Fund Expense (other than an expense allocable to a
Non-Trust Loan, which shall be reimbursable from the related Loan Combination
Custodial Account). In addition, after a Serviced Mortgage Loan becomes a
Specially Serviced Mortgage Loan, the Special Servicer shall perform or cause to
be performed a physical inspection of the related Mortgaged Property at least
once per calendar year, so long as such Serviced Mortgage Loan remains a
Specially Serviced Mortgage Loan. Beginning in 2008, the applicable Master
Servicer for each Serviced Mortgage Loan other than a Specially Serviced
Mortgage Loan or REO Loan, shall at its expense perform or cause to be performed
an inspection of all the Serviced Mortgaged Properties at least once per
calendar year unless such Mortgaged Property has been inspected in such calendar
year by the Special Servicer. The Special Servicer and each Master Servicer
shall each prepare (and, in the case of the Special Servicer, shall deliver to
the applicable Master Servicer) 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 it is aware, (ii) any change in
the condition, occupancy or value of the Mortgaged Property of which such Master
Servicer or the Special Servicer, as applicable, is aware and considers
material, or (iii) any visible waste committed on the Mortgaged Property of
which such Master Servicer or the Special Servicer, as applicable, is aware and
considers material. Each Master Servicer shall within 45 days of the related
inspection, deliver such reports complete with any photographs taken thereof in
an electronic format to the Trustee (upon request) and to the Controlling Class
Representative (and in the case of a Loan Combination, the related Non-Trust
Noteholder(s)), and the Trustee shall obtain from the applicable Master Servicer
and, subject to Section 3.15, make copies of all such inspection reports
available for review by any requesting Certificateholder and Certificate Owner
during normal business hours at the offices of the Trustee at all times after
Trustee's receipt thereof. Upon written request and at the expense of the
requesting party, the Trustee shall obtain from the applicable Master Servicer
and deliver copies of any such inspection reports to Certificateholders and
Certificate Owners. The Special Servicer shall have the right to inspect or
cause to be inspected (at its own expense) every calendar year any Serviced
Mortgaged Property related to a loan that is not a Specially Serviced Mortgage
Loan, provided that the Special Servicer obtains the approval of the applicable
Master Servicer prior to such inspection, and provides a copy of such inspection
to such Master Servicer; and provided, further, that such Master Servicer and
the Special Servicer shall not both inspect a Serviced Mortgaged Property that
is not securing a Specially Serviced Mortgage Loan in the same calendar year. If
the Special Servicer performs such inspection, such inspection shall satisfy the
applicable Master Servicer's inspection obligations pursuant to this paragraph
(a).
(b) The Special Servicer shall from time to time (and, in any
event, upon request) provide the applicable Master Servicer with such
information in its possession regarding the Specially Serviced Mortgage Loans
and Administered REO Properties as may be necessary for such Master Servicer to
prepare each report and any supplemental information to be provided by such
Master Servicer to the Trustee. Without limiting the generality of the
foregoing, not later than 12:00 p.m. (New York City time) on the Business Day
following each Determination Date, beginning in May 2007, the Special Servicer
shall prepare and deliver or cause to be delivered to the applicable Master
Servicer the
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CMSA Special Servicer Loan File that contains the information called for in, or
that will enable such Master Servicer to produce, the CMSA files and reports
required to be delivered by such Master Servicer to the Trustee as described
below, in each case with respect to all Specially Serviced Mortgage Loans and
the REO Properties.
(c) Each Master Servicer shall deliver to the Trustee, no
later than 2:00 p.m. New York City time on the second Business Day prior to each
Distribution Date beginning in May 2007, the CMSA Loan Periodic Update File with
respect to the subject Distribution Date and notice of the Discount Rate
applicable to each Principal Prepayment received in the related Collection
Period. Each CMSA Loan Periodic Update File prepared by the Master Servicers
shall be accompanied by a CMSA Advance Recovery Report. The preparation of each
CMSA Advance Recovery Report shall constitute a responsibility of the Master
Servicers and shall not constitute a responsibility of any other party.
Notwithstanding anything in this Agreement that suggests otherwise, the Master
Servicers shall not be required to deliver a CMSA Advance Recovery Report (and
no CMSA Loan Periodic Update File need be accompanied by any such report) with
respect to any Collection Period for which all of the entries in the report
would be "zero" or "not applicable". The Master Servicers' responsibilities
under this Section 3.12 with respect to information to be provided by the
Special Servicer with respect to Specially Serviced Mortgage Loans and
Administered REO Properties shall be subject to the satisfaction of the Special
Servicer's obligations under Section 3.12(b), but the failure of the Special
Servicer to provide information required by it shall not relieve either Master
Servicer of its duties to provide the related reports, absent such information.
Notwithstanding the foregoing, because the Master Servicers will not receive the
Servicing Files until the Closing Date and will not have sufficient time to
review and analyze such Servicing Files before the initial Distribution Date,
the parties agree that the CMSA Loan Periodic Update File required to be
delivered by the Master Servicers in May 2007 will be based solely upon
information generated from actual collections received by the Master Servicers
and from information Mortgage Loan Sellers deliver or cause to be delivered to
the Master Servicers (including but not limited to information prepared by
third-party servicers of the subject Serviced Mortgage Loans with respect to the
period prior to the Closing Date). On or before 4:00 p.m., New York City time,
on each P&I Advance Date beginning in May 2007, each Master Servicer shall
deliver or cause to be delivered to the Trustee the following reports with
respect to the Mortgage Loans (and, if applicable, the related REO Properties,
providing the required information as of the related Determination Date): (i) a
CMSA Comparative Financial Status Report; (ii) a CMSA Delinquent Loan Status
Report; (iii) a CMSA Historical Loan Modification and Corrected Mortgage Loan
Report; (iv) a CMSA Historical Liquidation Loss Template; (v) a CMSA Appraisal
Reduction Template; (vi) a CMSA Servicer Realized Loss Template, (vii) a CMSA
Total Loan Report, (viii) a CMSA REO Status Report; (ix) a CMSA Servicer Watch
List; (x) a CMSA Property File; (xi) a CMSA Loan Setup File; (xii) a CMSA
Financial File; and (xiii) a CMSA Loan Level Reserve/LOC Report. Such reports
shall be in CMSA format (as in effect from time to time) and shall be in an
electronic format reasonably acceptable to both the Trustee and the Master
Servicers. Each Master Servicer shall make available promptly upon request of
the other Master Servicer a report setting forth each Advance then outstanding
by such Master Servicer. The Master Servicer No. 1 shall incorporate in the
foregoing reports any information and reports received (by the date in the month
of such Distribution Date that such information and reports are scheduled to be
received in accordance with the WBCMT Series 2007-C30 Pooling and Servicing
Agreement) from the WBCMT Series 2007-C30 Applicable Servicer with respect to
the Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan.
(d) The Special Servicer shall deliver to the Master Servicers
the reports set forth in Section 3.12(b) and this Section 3.12(d), and the
Master Servicers shall deliver to the Trustee the reports
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set forth in Section 3.12(c) in an electronic format reasonably acceptable to
the Special Servicer, each Master Servicer and the Trustee. Each Master Servicer
may, absent manifest error, conclusively rely on the reports to be provided by
the Special Servicer pursuant to Section 3.12(b) and this Section 3.12(d) and,
with respect to the Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage
Loan, by the WBCMT Series 2007-C30 Applicable Servicer pursuant to the WBCMT
Series 2007-C30 Pooling and Servicing Agreement. The Trustee may, absent
manifest error, conclusively rely on the CMSA Loan Periodic Update Files to be
provided by the Master Servicers pursuant to Section 3.12(c). In the case of
information or reports to be furnished by the Master Servicers to the Trustee
pursuant to this Section 3.12, to the extent that such information or reports
are based on information or reports to be provided by the Special Servicer
pursuant to Section 3.12(b) and this Section 3.12(d) and, to the extent that
such reports are to be prepared and delivered by the Special Servicer pursuant
to Section 3.12(b) and this Section 3.12(d) or by the WBCMT Series 2007-C30
Applicable Servicer pursuant to the WBCMT Series 2007-C30 Pooling and Servicing
Agreement, neither Master Servicer shall have an obligation to provide such
information to the Trustee until it has received such information from the
Special Servicer or the WBCMT Series 2007-C30 Applicable Servicer, as
applicable, and neither Master Servicer shall be in default hereunder due to a
delay in providing information required by this Section 3.12 to the extent
caused by the Special Servicer's failure to timely provide any information or
report required under Section 3.12(b) and this Section 3.12(d) of this Agreement
or the WBCMT Series 2007-C30 Applicable Servicer's failure to provide any
information or report required to be provided to the holder of the Xxxxx Xxxxxx
Village and Stuyvesant Town Trust Mortgage Loan pursuant to the WBCMT Series
2007-C30 Pooling and Servicing Agreement, but neither Master Servicer shall be
relieved of its obligation to timely provide such reports absent the information
not provided by the Special Servicer as required by this Section 3.12 or by the
WBCMT Series 2007-C30 Applicable Servicer.
Commencing with respect to the fiscal quarter ended September 2007,
the Special Servicer, in the case of any Specially Serviced Mortgage Loan, and
the applicable Master Servicer, in the case of each non-Specially Serviced
Mortgage Loan, shall make reasonable efforts to collect promptly from each
related Mortgagor quarterly and annual operating statements, budgets and rent
rolls of the related Mortgaged Property, and quarterly and annual financial
statements of such Mortgagor, whether or not delivery of such items is required
pursuant to the terms of the related Mortgage Loan documents. In addition, the
Special Servicer shall cause quarterly and annual operating statements, budgets
and rent rolls to be regularly prepared in respect of each Administered REO
Property and shall collect all such items promptly following their preparation.
The Special Servicer shall deliver images in suitable electronic media of all of
the foregoing items so collected or obtained by it to the applicable Master
Servicer within 30 days of its receipt thereof. Each Master Servicer shall
deliver all items obtained by it, and all items required to be delivered to it
by the Special Servicer pursuant to the immediately preceding sentence to the
Controlling Class Representative (and in the case of a Loan Combination, the
related Non-Trust Noteholder(s), and the Trustee in an imaged format.
Each Master Servicer shall maintain a CMSA Operating Statement
Analysis Report with respect to each Serviced Mortgaged Property and
Administered REO Property related to each Serviced Mortgage Loan serviced
thereby. Within 60 days after receipt by the applicable Master Servicer from the
related Mortgagor or otherwise, as to each non-Specially Serviced Mortgage Loan
and within 30 days after receipt by the applicable Master Servicer from the
Special Servicer or otherwise, as to a Specially Serviced Mortgage Loan or an
Administered REO Property, of any annual operating statements and rent rolls
with respect to any Serviced Mortgaged Property or Administered REO Property,
such Master Servicer shall, based upon such operating statements or rent rolls,
prepare (or, if previously prepared, update) the CMSA Operating Statement
Analysis Report for the subject Serviced
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Mortgaged Property or Administered REO Property. Each Master Servicer shall
remit a copy of each CMSA Operating Statement Analysis Report prepared or
updated by it (promptly following initial preparation and each update thereof),
together with, if not already provided pursuant to this Section 3.12, the
underlying operating statements and rent rolls, to the Controlling Class
Representative (and in the case of a Loan Combination, the related Non-Trust
Noteholder(s)), the Trustee and the Special Servicer. Within 60 days (or, in the
case of items received from the Special Servicer or otherwise with respect to
Specially Serviced Mortgage Loans and Administered REO Properties, 30 days)
after receipt by the applicable Master Servicer of any quarterly or annual
operating statements with respect to any Serviced Mortgaged Property or
Administered REO Property, such Master Servicer shall prepare or update and
forward to the Trustee, the Special Servicer and the Controlling Class
Representative (and in the case of a Loan Combination, the related Non-Trust
Noteholder(s)) a CMSA NOI Adjustment Worksheet using the same format as the CMSA
Operating Statement Analysis Report for such Serviced Mortgaged Property or
Administered REO Property, together with, if so requested and not previously
provided pursuant to this Section 3.12, the related quarterly or annual
operating statements.
(e) Except with respect to delivery to the Special Servicer or
the Controlling Class Representative, which deliveries shall be made in
electronic format, if either Master Servicer or the Special Servicer is required
to deliver any statement, report or information under any provision of this
Agreement, such Master Servicer or the Special Servicer, as the case may be, may
satisfy such obligation by (x) physically delivering a paper copy of such
statement, report or information, (y) delivering such statement, report or
information in a commonly used electronic format or (z) making such statement,
report or information available on such Master Servicer's Internet Website or
the Trustee's Internet Website, unless this Agreement expressly specifies a
particular method of delivery. Notwithstanding the foregoing, the Trustee may
request delivery in paper format of any statement, report or information
required to be delivered to the Trustee.
(f) Notwithstanding any other provision in this Agreement, the
failure of either Master Servicer or the Special Servicer to disclose any
information otherwise required to be disclosed by this Section 3.12, or that may
otherwise be disclosed pursuant to Section 3.15 or Section 4.02, shall not
constitute a breach of this Agreement to the extent such Master Servicer or the
Special Servicer so fails because such disclosure, in the reasonable belief of
such Master Servicer or the Special Servicer, as the case may be, would violate
any applicable law or any provision of a Mortgage Loan document prohibiting
disclosure of information with respect to the Mortgage Loans or Mortgaged
Properties or would constitute a waiver of the attorney-client privilege on
behalf of the Trust. Either Master Servicer and the Special Servicer may
disclose any such information or any additional information to any Person so
long as such disclosure is consistent with applicable law, the related Mortgage
Loan documents and the Servicing Standard. Either Master Servicer or the Special
Servicer may affix to any information provided by it under this Agreement any
disclaimer it deems appropriate in its discretion (without suggesting liability
on the part of any other party hereto).
(g) Each Master Servicer shall, contemporaneously with any
related delivery to the Trustee or the Special Servicer, as applicable, provide
any reports that contain information regarding a Loan Combination Mortgaged
Property or financial information regarding the related Mortgagor to the related
Non-Trust Noteholder(s).
(h) For the purposes of the production by either Master Servicer
or the Special Servicer of any such report that is required to state information
with respect to any Serviced Mortgage Loan for any period prior to the related
Due Date in April 2007, such Master Servicer or the Special
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Servicer, as the case may be, may conclusively rely (without independent
verification), absent manifest error, on information provided to it by the
related Mortgage Loan Seller, by the related Mortgagor or (x) in the case of
such a report produced by such Master Servicer, by the Special Servicer (if
other than such Master Servicer or an Affiliate thereof) and (y) in the case of
such a report produced by the Special Servicer, by either Master Servicer (if
other than such Special Servicer or an Affiliate thereof). Absent manifest error
of which it has actual knowledge, neither the Master Servicers nor the Special
Servicer shall be responsible for the accuracy or completeness of any
information supplied to it by a Mortgage Loan Seller, any other party to this
Agreement, a Mortgagor or another third party that is included in any reports,
statements, materials or information prepared or provided by either such Master
Servicer or the Special Servicer, as the case may be. The Trustee shall not be
responsible for the accuracy or completeness of any information supplied to it
for delivery pursuant to this Section. Neither the Trustee, nor the Master
Servicers nor the Special Servicer shall have any obligation to verify the
accuracy or completeness of any information provided by a Mortgagor or third
party. All reports provided pursuant this Section 3.12 shall be in an electronic
format reasonably acceptable to both the Trustee and each Master Servicer.
(i) The preparation and maintenance by each Master Servicer and
the Special Servicer of all the reports specified in this Section 3.12 with
respect to a Loan Combination, the corresponding Mortgaged Property and/or any
related REO Property, including the calculations made therein, shall be done in
accordance with CMSA standards, to the extent applicable thereto.
SECTION 3.13 Annual Statement as to Compliance.
Each of the Trustee, the Master Servicers and the Special Servicer
shall itself deliver (or, in the case of the Trustee, make available), and shall
cause each Additional Item 1123 Servicer retained or engaged by it to deliver
(but if the related Additional Item 1123 Servicer is a Designated Sub-Servicer,
then the applicable Master Servicer's sole duty shall be to use commercially
reasonable efforts to cause such Designated Sub-Servicer to deliver), on or
before May 1 of each year, beginning in 2008 (provided that if the Trustee
requires the following statement in connection with any filing with the
Commission, each of the Trustee, the Master Servicers and the Special Servicer
shall deliver, and shall cause each Additional Item 1123 Servicer retained or
engaged by it to deliver (but if the related Additional Item 1123 Servicer is a
Designated Sub-Servicer, then the applicable Master Servicer's sole duty shall
be to use commercially reasonable efforts to cause such Designated Sub-Servicer
to deliver, on or before March 15th of the subject year), to the Trustee (to
whom delivery shall be made in XXXXX-compatible format (e.g. Microsoft Word or
Microsoft Excel)), the Depositor, each Non-Trust Noteholder, and each Rating
Agency and, in the case of the Special Servicer or an Additional Item 1123
Servicer, to each Master Servicer, a statement of compliance (the "Annual
Statement of Compliance") from the Trustee, each Master Servicer, the Special
Servicer or such Additional Item 1123 Servicer, as the case may be, signed by an
authorized officer thereof, to the effect that: (i) a review of the activities
of the Trustee, each Master Servicer, the Special Servicer or such Additional
Item 1123 Servicer, as the case may be, during the preceding calendar year (or,
if applicable, the portion of such year during which the Certificates were
outstanding) and of its performance under this Agreement (or, in the case of an
Additional Item 1123 Servicer, under the applicable Sub-Servicing Agreement or
primary servicing agreement) has been made under such officer's supervision, and
(ii) to the best of such officer's knowledge, based on such review, the Trustee,
each Master Servicer, the Special Servicer or such Additional Item 1123
Servicer, as the case may be, has fulfilled all of its obligations under this
Agreement (or, in the case of an Additional Item 1123 Servicer, under the
applicable Sub-Servicing Agreement or primary servicing agreement) in all
material respects throughout such year (or, if
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applicable, the portion of such year during which the Certificates were
outstanding) 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.
In the event that either 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 use its reasonable efforts
to cause any Additional Item 1123 Servicer that resigns or is terminated under
any applicable servicing agreement to provide, an annual statement of compliance
pursuant to this Section 3.13 with respect to the period of time that such
Master Servicer, the Special Servicer or the Trustee was subject to this
Agreement or the period of time that the Additional Item 1123 Servicer was
subject to such other servicing agreement.
In the event the Trustee or the Depositor does not receive the
Annual Statement of Compliance with respect to any party hereto or, if the
Trustee has been notified of the existence thereof, any Additional Item 1123
Servicer contemplated to deliver such report pursuant to the preceding
paragraph, by March 15th of any year during which a Form 10-K Annual Report is
required to be filed with the Commission with respect to the Trust, then the
Trustee shall, and the Depositor may, forward a Servicer Notice to such Person
(or, in the case of an Additional Item 1123 Servicer known to the Trustee or the
Depositor, as the case may be, to the party hereto that retained or engaged such
Additional Item 1123 Servicer), with a copy of such Servicer Notice to the
Depositor (if the Trustee is sending the Servicer Notice) or the Trustee (if the
Depositor is sending the Servicer Notice), as applicable, within two (2)
Business Days of such failure. Any party hereto that retains or engages a
Servicing Representative (other than a Designated Sub-Servicer) that is, at the
time of appointment, or subsequently becomes an Additional Item 1123 Servicer
shall so notify the Trustee (unless such party is the Trustee) and the Depositor
in writing promptly following such party's becoming aware that such Servicing
Representative is or has become an Additional Item 1123 Servicer; and, further,
if such Servicing Representative does not deliver an Annual Statement of
Compliance with respect to itself by March 15th of any year during which a Form
10-K Annual Report is required to be filed with the Commission with respect to
the Trust, the party hereto that retained or engaged such Servicing
Representative shall so notify the Trustee (unless such party is the Trustee)
and the Depositor in writing no later than the second Business Day following
such March 15th, together with an explanation regarding such failure.
SECTION 3.14 Reports on Assessment of Compliance with Servicing
Criteria; Registered Public Accounting Firm
Attestation Reports.
Each Servicing Function Participant shall itself deliver (or, in the
case of the Trustee, make available), and each party hereto shall cause any
Sub-Servicing Function Participant retained or engaged by it to deliver (but if
the related Additional Item 1123 Servicer is a Designated Sub-Servicer, then the
applicable Master Servicer's sole duty shall be to use commercially reasonable
efforts to cause such Designated Sub-Servicer to deliver), on or before May 1 of
each year, beginning in 2008 (provided that if the Trustee requires the
following reports in connection with any filing with the Commission, each
Servicing Function Participant shall deliver (or, in the case of the Trustee,
make available), and each party hereto shall cause any Sub-Servicing Function
Participant retained or engaged by it to deliver (but if the related Additional
Item 1123 Servicer is a Designated Sub-Servicer, then the applicable Master
Servicer's sole duty shall be to use commercially reasonable efforts to cause
such Designated Sub-Servicer to deliver), on or before March 15th of the subject
year), at its own expense, to the Trustee (to whom delivery shall be made in
XXXXX-compatible format (e.g. Microsoft Word or Microsoft
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Excel)), the Depositor, each Non-Trust Noteholder, and each Rating Agency the
following reports: (i) as required under Rule 13a-18 or Rule 15d-18 of the
Exchange Act and Item 1122 of Regulation AB, a report on an assessment of
compliance by it with the Servicing Criteria (an "Annual Assessment Report"),
signed by an authorized officer of such Servicing Function Participant or such
Sub-Servicing Function Participant, as the case may be, which report shall
contain (A) a statement by such Servicing Function Participant or such
Sub-Servicing Function Participant, as the case may be, of its responsibility
for assessing compliance with the Relevant Servicing Criteria, (B) a statement
that such Servicing Function Participant or such Sub-Servicing Function
Participant, as the case may be, used the Servicing Criteria to assess
compliance with the Relevant Servicing Criteria, (C) such Servicing Function
Participant's or such Sub-Servicing Function Participant's, as the case may be,
assessment of compliance with the Relevant Servicing Criteria as of and for the
period ending December 31st of the preceding calendar year, which discussion
must include any material instance of noncompliance with the Relevant Servicing
Criteria identified by such Servicing Function Participant or such Sub-Servicing
Function Participant, as the case may be, and (D) a statement that a registered
public accounting firm has issued an attestation report on such Servicing
Function Participant's or such Sub-Servicing Function Participant's, as the case
may be, assessment of compliance with the Relevant Servicing Criteria as of and
for such period ending December 31st of the preceding calendar year; and (ii) as
to each report delivered by a Servicing Function Participant or a Sub-Servicing
Function Participant pursuant to the immediately preceding clause (i), a report
from a registered public accounting firm (made in accordance with the standards
for attestation engagements issued or adopted by the PCAOB) (an "Annual
Attestation Report") that attests to, and reports on, the assessment made by the
asserting party in such report delivered pursuant to the immediately preceding
clause (i), together with (if required to be filed with the Commission) a
consent from such registered public accounting firm authorizing the filing of
the subject Annual Attestation Report with the Commission (an "Accountant's
Consent"). Each Annual Attestation Report must be available for general use and
may not contain restricted use language. Promptly after receipt of each such
report delivered pursuant to the second preceding sentence, the Depositor shall
review such report and, if applicable, shall be entitled to consult with the
appropriate party hereto as to the nature of any material instance of
noncompliance with the Relevant Servicing Criteria by such party or any
Sub-Servicing Function Participant retained or engaged by it.
In the event that any Servicing Function Participant is terminated
or resigns pursuant to the terms of this Agreement, such party shall provide,
and each such party hereto shall cause any Sub-Servicing Function Participant
engaged by it to provide (but if the related Additional Item 1123 Servicer is a
Designated Sub-Servicer, then the applicable Master Servicer's sole duty shall
be to use commercially reasonable efforts to cause such Designated Sub-Servicer
to deliver), an Annual Assessment Report pursuant to this Section 3.14, coupled
with an Annual Attestation Report pursuant to this Section with respect to the
period of time that the Servicing Function Participant was subject to this
Agreement or the period of time that the Sub-Servicing Function Participant was
subject to such other servicing agreement.
In the event the Trustee or the Depositor does not receive the
Annual Assessment Report and/or the Annual Attestation Report with respect to
any Servicing Function Participant, or with respect to any Sub-Servicing
Function Participant retained or engaged by a party hereto that is known to the
Trustee or the Depositor, as the case may be, by March 15th of any year during
which a Form 10-K Annual Report is required to be filed with the Commission with
respect to the Trust, then the Trustee shall, and the Depositor may, forward a
Servicer Notice to such Servicing Function Participant or the party hereto that
retained or engaged such Sub-Servicing Function Participant, as the case may be,
with a copy of such Servicer Notice to the Depositor (if the Trustee is sending
the Servicer Notice) or the
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Trustee (if the Depositor is sending the Servicer Notice), as applicable, within
two (2) Business Days of such failure. For the purposes of this Section 3.14, as
well as Section 3.13 and clause (B) of Section 7.01(a)(V) of this Agreement, a
"Servicer Notice" shall constitute either any writing forwarded to such party
or, in the case of the Master Servicers and the Special Servicer,
notwithstanding the provisions of Section 11.05, e-mail or facsimile notice
which, in the case of e-mail transmission, shall be forwarded to all of the
following e-mail addresses: (1) in the case of the initial Master Servicer No.
1, xxxxxxxx.xxxxxxxxxx@xxxxxxxx.xxx and xxxx.xxxxxxxx@xxxxxxxx.xxx; (2) in the
case of the initial Master Servicer No. 2, xxx.xxxxxxxxxx@xxxxxxxxxx.xxx; and
(3) in the case of the initial Special Servicer, xxxxxxx@xxxxxxxxxxx.xxx,
XXxxxxxx@xxxxxxxxxxx.xxx and xxxxxxxx@xxxxxxxxxxx.xxx or such other e-mail
addresses as are provided in writing by either Master Servicer or the Special
Servicer to the Trustee and the Depositor; provided that any party to this
Agreement (or someone acting on their behalf) shall only be required to forward
any such notice to be delivered to each Master Servicer to no more than three
e-mail addresses in the aggregate in order to fulfill its notification
requirement as set forth in the preceding sentence and/or under the provisions
of clause (B) of Section 7.01(a)(v); and provided, further, that a copy of any
Servicer Notice to the Special Servicer shall be forwarded by the means provided
in Section 11.05. Any party hereto that retains or engages a Servicing
Representative (other than a Designated Sub-Servicer) that is, at the time of
appointment, or subsequently becomes a Sub-Servicing Function Participant shall
so notify the Trustee (unless such party is the Trustee) and the Depositor in
writing promptly following such party's becoming aware that such Servicing
Representative is or has become a Sub-Servicing Function Participant; and,
further, if such Servicing Representative does not deliver or cause the delivery
of an Annual Assessment Report, an Annual Attestation Report and/or, if required
to be filed with the Commission, an Accountant's Consent with respect to itself
by March 15th of any year during which a Form 10-K Annual Report is required to
be filed with the Commission with respect to the Trust, the party hereto that
retained or engaged such Servicing Representative shall promptly so notify the
Trustee (unless such party is the Trustee) and the Depositor in writing no later
than the second Business Day following such March 15th, together with an
explanation of such failure.
The Master Servicers, the Special Servicer and the Trustee, in each
case, to the extent applicable, will reasonably cooperate with the Depositor in
conforming any reports delivered pursuant to this Section 3.14 to requirements
imposed by the Commission on the Depositor in connection with the Depositor's
reporting requirements in respect of the Trust pursuant to the Exchange Act,
provided that the Master Servicers, the Special Servicer and the Trustee shall
each be entitled to charge the Depositor for any reasonable additional costs and
expenses incurred by it in affording the Depositor such cooperation.
SECTION 3.15 Access to Certain Information.
(a) Upon 10 days' prior written notice, each Master Servicer
(with respect to the items in clauses (a), (b), (c), (d), (e), (f), (h) and (i)
below, to the extent such items are in its possession), the Special Servicer
(with respect to the items in clauses (d), (e), (f), (g), (h) and (i) below, to
the extent those items are in its possession) and the Trustee (with respect to
the items in clauses (a) through (j) below, to the extent those items are in its
possession) shall make available at their respective offices primarily
responsible for administration of the Mortgage Loans (or in the case of the
Trustee, at its Corporate Trust Office), during normal business hours, or send
to the requesting party, such party having been certified to each Master
Servicer, the Special Servicer or the Trustee, as applicable, in accordance with
(a) and (b) in the following paragraph, as appropriate, at the expense of such
requesting party (unless otherwise provided in this Agreement), for review by
any Certificate Owner or
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Certificateholder or any prospective transferee of any Certificate or interest
therein, the Trustee, the Rating Agencies, the Underwriters and the Depositor
originals or copies of the following items: (a) this Agreement and any
amendments thereto, (b) all Distribution Date Statements delivered to holders of
the relevant Class of Certificates since the Closing Date and all reports,
statements and analyses delivered by each Master Servicer since the Closing Date
pursuant to Section 3.12(c), (c) all Officer's Certificates delivered by each
Master Servicer or the Special Servicer since the Closing Date pursuant to
Section 3.13, (d) all accountants' reports delivered to each Master Servicer in
respect of itself or the Special Servicer since the Closing Date as described in
Section 3.14, (e) the most recent property inspection report prepared by or on
behalf of each Master Servicer in respect of each Serviced Mortgaged Property
and any Environmental Assessments prepared pursuant to Section 3.09, (f) the
most recent Serviced Mortgaged Property annual operating statements and rent
roll, if any, collected by or on behalf of each Master Servicer, (g) any and all
modifications, waivers and amendments of the terms of a Serviced Mortgage Loan
and the Asset Status Report prepared by the Special Servicer pursuant to Section
3.21(c), (h) the Servicing File relating to each Serviced Mortgage Loan, (i) any
and all Officer's Certificates and other evidence delivered by each Master
Servicer or the Special Servicer, as the case may be, to support its
determination that any Advance was, or if made, would be, a Nonrecoverable
Advance including appraisals affixed thereto and any Required Appraisal prepared
pursuant to Section 3.09(a), (j) all reports filed with the Commission with
respect to the Trust pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act, and (k) the WBCMT Series 2007-C30 Pooling and Servicing Agreement,
and any reports, statements, documents and other written information delivered
under this Agreement to the Master Servicer for the Trust on behalf of the
Trustee, or to the Trustee, as holder of the Xxxxx Xxxxxx Village and Stuyvesant
Town Trust Mortgage Loan. Copies of any and all of the foregoing items will be
available from either Master Servicer, the Special Servicer or the Trustee, as
the case may be, upon request and payment of reasonable copying costs but shall
be provided to any of the Rating Agencies and the Controlling Class
Representative (and with respect to a Loan Combination, the related Non-Trust
Noteholder(s)) at no cost pursuant to their reasonable requests. The Master
Servicers, the Special Servicer and the Trustee may each satisfy its obligations
under this Section 3.15(a) by making such items available for review on its
Internet Website with the use of a password.
In connection with providing access to or copies of the items
described in the preceding paragraph pursuant to this Section 3.15, or with
respect to the Controlling Class Representative (and in the case of a Loan
Combination, the related Non-Trust Noteholder(s)), in connection with providing
access to or copies of any items in accordance with this Agreement, the Trustee,
either Master Servicer or the Special Servicer, as applicable, shall require:
(a) in the case of Certificate Owners, Certificateholders and the Controlling
Class Representative (and in the case of a Loan Combination, the related
Non-Trust Noteholder(s)), a confirmation executed by the requesting Person
substantially in the form of Exhibit I-1 hereto (or such other form as may be
reasonably acceptable to the Trustee, either Master Servicer or the Special
Servicer, as applicable, and which may provide indemnification for the Master
Servicers, the Special Servicer and the Trustee) generally to the effect that
such Person is a beneficial holder of Book-Entry Certificates, or a
representative of a beneficial holder of Book-Entry Certificates, and, subject
to the last sentence of this paragraph, will keep such information confidential
(except that any such Certificate Owner, any such Certificateholder and the
Controlling Class Representative (and in the case of a Loan Combination, the
related Non-Trust Noteholder(s)) may provide such information to any other
Person that holds or is contemplating the purchase of any Certificate or
interest therein, provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential); and (b) in the case of a prospective purchaser of a
Certificate or an interest therein, confirmation executed by the requesting
Person substantially in the form of Exhibit I-2 hereto (or such other form as
may be
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reasonably acceptable to the Trustee, either Master Servicer or the Special
Servicer, as applicable, and which may provide indemnification for either Master
Servicer, the Special Servicer or the Trustee, as applicable) generally to the
effect that such Person is a prospective purchaser of a Certificate or an
interest therein, is requesting the information for use in evaluating a possible
investment in Certificates and, subject to the last sentence of this paragraph,
will otherwise keep such information confidential. The Certificate Owners and
Holders of the Certificates, by their acceptance thereof, and the Controlling
Class Representative (and in the case of a Loan Combination, the related
Non-Trust Noteholder(s)), by its acceptance of its appointment, will be deemed
to have agreed, subject to the last sentence of this paragraph, to keep such
information confidential (except that any Holder may provide such information
obtained by it to any other Person that holds or is contemplating the purchase
of any Certificate or interest therein, provided that such other Person confirms
in writing such ownership interest or prospective ownership interest and agrees
to keep such information confidential) and agrees not to use such information in
any manner that would violate federal, state or local securities laws.
Notwithstanding the foregoing, no Certificateholder, Certificate Owner or
prospective Certificateholder or Certificate Owner shall be obligated to keep
confidential any information received from the Trustee or either Master
Servicer, as applicable, pursuant to this Section 3.15 that has previously been
made available on an unrestricted basis and without a password via the Trustee's
or either Master Servicer's, as applicable, Internet Website or has previously
been filed with the Commission, and the Trustee or either Master Servicer, as
applicable, shall not require either of the certifications contemplated by the
second preceding sentence in connection with providing any information pursuant
to this Section 3.15 that has previously been made available without a password
via the Trustee's or either Master Servicer's, as applicable, Internet Website
or has previously been filed with the Commission.
Each of the Master Servicers and the Special Servicer shall afford
to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC,
the Federal Reserve Board and any other banking or insurance regulatory
authority that may exercise authority over any Certificateholder, access to any
records regarding the Mortgage Loans and the servicing thereof within its
control, 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. Such access
shall be afforded only upon reasonable prior written request and during normal
business hours at the offices of either Master Servicer or the Special Servicer,
as the case may be, designated by it.
The Trustee, the Master Servicers, the Special Servicer and the
Underwriters may require payment from the Certificateholder or Certificate Owner
of a sum sufficient to cover the reasonable costs and expenses of providing any
such information or access pursuant to this Section 3.15 to, or at the request
of, the Certificateholders or Certificate Owners or prospective transferees,
including, without limitation, copy charges and, in the case of
Certificateholders or Certificate Owners requiring on site review in excess of
three Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicers may but are not
required to, make available each month to any interested party on their
respective Internet Websites (i) the Distribution Date Statement and (ii) this
Agreement, the Prospectus and the Prospectus Supplement. In addition, on each
Distribution Date, the Trustee shall make available to any interested party via
the Trustee's Internet Website the Unrestricted Reports, the CMSA Loan Periodic
Update File, the CMSA Loan Setup File, the CMSA Bond Level File, the CMSA
Collateral Summary File, the CMSA Historical Bond/Collateral Realized Loss
Reconciliation Template, the CMSA Interest Shortfall Reconciliation Template and
the CMSA Reconciliation of Funds Template, in each case for such Distribution
Date, and any other information at the request of the Depositor. The Trustee
shall make available on each Distribution Date
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(i) the Restricted Reports and (ii) the CMSA Property File to any Privileged
Person via the Trustee's Internet Website with the use of a password (or other
comparable restricted access mechanism) provided by the Trustee.
Either Master Servicer may, but is not required to, make available
each month via its Internet Website to any Privileged Person, with the use of a
password provided by such Master Servicer, the reports and files comprising the
CMSA Investor Reporting Package.
(c) In connection with providing access to the Trustee's Internet
Website or either Master Servicer's Internet Website, the Trustee or either
Master Servicer, as applicable, may require registration and the acceptance of a
disclaimer and may otherwise adopt reasonable rules and procedures that may
include, to the extent either Master Servicer or Trustee, as applicable, deems
necessary or appropriate, conditioning access on the execution and delivery of
an agreement (which may be in the form of Exhibit I-1 or I-2 (or such other form
as may be reasonably acceptable to the Trustee or either Master Servicer, as
applicable)) governing the availability, use and disclosure of such information
and providing indemnification to either Master Servicer or Trustee, as
applicable, for any liability or damage that may arise therefrom.
Each Master Servicer and Trustee may, in accordance with such
reasonable rules and procedures as each may adopt (including conditioning access
on the execution and delivery of an agreement (which may be in the form of
Exhibit I-1 or I-2 (or such other form as may be reasonably acceptable to the
Trustee or either Master Servicer, as applicable)) governing the availability,
use and disclosure of information and providing indemnification to either Master
Servicer or Trustee, as applicable, for any liability or damage that may arise
therefrom), also make available, through its Internet Website or otherwise, any
additional information relating to the Mortgage Loans, the Mortgaged Properties
or the Mortgagors for review by any Persons to whom either Master Servicer or
Trustee, as applicable, believes such disclosure is appropriate, in each case
except to the extent doing so is prohibited by applicable law or by the related
Mortgage Loan (in the case of Trustee, if it has actual knowledge of such
prohibition by the related Mortgage Loan).
Notwithstanding anything in this Agreement to the contrary, the
Master Servicers and the Trustee may withhold (other than with respect to items
required to be delivered under this Agreement to the Controlling Class
Representative (and, in the case of a Loan Combination, the related Non-Trust
Noteholder(s)) any information not yet included in a Form 8-K Current Report
filed with the Commission or otherwise made publicly available with respect to
which the Trustee or either Master Servicer has determined that such withholding
is appropriate.
Any transmittal of information by either Master Servicer or the
Trustee to any Person other than the Rating Agencies or the Depositor may be
accompanied by a letter containing the following provision:
"By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities
laws restrict any person who possesses material,
non-public information regarding the Trust that issued
ML-CFC Commercial Mortgage Trust 2007-6, Commercial
Mortgage Pass-Through Certificates, Series 2007-6, from
purchasing or selling such Certificates in circumstances
where the other party to the transaction is not also in
possession of such information. You also acknowledge and
agree that such information is being provided to you for
the purposes of, and
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such information may be used only in connection with,
evaluation by you or another Certificateholder or
prospective purchaser of such Certificates or beneficial
interest therein".
(d) If three or more Holders or the Controlling Class
Representative (hereinafter referred to as "Applicants" with a single Person
which (together with its Affiliates) is the Holder of more than one Class of
Certificates being viewed as a single Applicant for these purposes) apply in
writing to the Trustee, and such application states that the Applicants' 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 Applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, send, at the
Applicants' expense, the written communication proffered by the Applicants to
all Certificateholders at their addresses as they appear in the Certificate
Register.
(e) The Master Servicers and the Special Servicer shall not be
required to confirm, represent or warrant the accuracy or completeness of any
other Person's information or report included in any communication from either
Master Servicer or the Special Servicer under this Agreement. None of the Master
Servicers, the Special Servicer or the Trustee shall be liable for the
dissemination of information in accordance with the terms of this Agreement. The
Trustee makes no representations or warranties as to the accuracy or
completeness of any report, document or other information made available on the
Trustee's Internet Website and assumes no responsibility therefor. In addition,
the Trustee, the Master Servicers and the Special Servicer may disclaim
responsibility for any information distributed by the Trustee, either Master
Servicer or the Special Servicer, respectively, for which it is not the original
source.
SECTION 3.16 Title to REO Property; REO Accounts.
(a) If title to any Serviced Mortgaged Property 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 Non-Trust Noteholder(s). If,
pursuant to Section 3.09(b), the Special Servicer formed or caused to be formed,
at the expense of the Trust, a single member limited liability company (of which
the Trust is the sole member) for the purpose of taking title to one or more
Administered REO Properties pursuant to this Agreement, then (subject to the
interests of, if affected, the related Non-Trust Noteholder(s)), 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, in the case
of any Loan Combination REO Property, the related Non-Trust Noteholder(s), shall
sell any Administered REO Property as soon as practicable in accordance with the
Servicing Standard, but prior to the end of the third year following the
calendar year in which REMIC I acquires ownership of such Administered REO
Property for purposes of Section 860G(a)(8) of the Code, unless the Special
Servicer either (i) applies for, more than 60 days prior to the end of such
third succeeding year, and is granted an extension of time (an "REO Extension")
by the Internal Revenue Service to sell such Administered REO Property or (ii)
obtains for the Trustee an Opinion of Counsel, addressed to the Trustee, the
Special Servicer and the
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applicable Master Servicer, to the effect that the holding by REMIC I of such
Administered REO Property subsequent to the end of such third succeeding year
will not result in the imposition of taxes on "prohibited transactions" (as
defined in Section 860F of the Code) on either of REMIC I or REMIC II or cause
either of REMIC I or REMIC II to fail to qualify as a REMIC at any time that any
Certificates are outstanding. If the Special Servicer is granted the REO
Extension contemplated by clause (i) of the immediately preceding sentence or
obtains the Opinion of Counsel contemplated by clause (ii) of the immediately
preceding sentence, the Special Servicer shall sell the subject Administered REO
Property within such extended period as is permitted by such REO Extension or
such Opinion of Counsel, as the case may be. Any expense incurred by the Special
Servicer in connection with its obtaining the REO Extension contemplated by
clause (i) of the second preceding sentence or its obtaining the Opinion of
Counsel contemplated by clause (ii) of the second preceding sentence, or for the
creation of and the operating of a single member limited liability company,
shall be covered as, and reimbursable as, a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any Administered REO Property separate
and apart from its own funds and general assets. If an REO Acquisition shall
occur in respect of any Serviced Mortgaged Property (other than a Loan
Combination Mortgaged Property), the Special Servicer shall establish and
maintain one or more accounts (collectively, the "Pool REO Account"), to be held
on behalf of the Trustee in trust for the benefit of the Certificateholders, for
the retention of revenues and other proceeds derived from each Administered REO
Property (other than any Loan Combination REO Property). If such REO Acquisition
occurs with respect to a Loan Combination Mortgaged Property, then the Special
Servicer shall establish an REO Account solely with respect to such property (an
"Loan Combination REO Account"), to be held for the benefit of the
Certificateholders and the related Non-Trust 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 applicable REO
Account all REO Revenues, Insurance Proceeds and Liquidation Proceeds received
in respect of any Administered REO Property within 2 Business Days of receipt.
Funds in the REO Accounts may be invested in Permitted Investments in accordance
with Section 3.06. The Special Servicer shall be entitled to make withdrawals
from each REO Account to pay itself, as additional special servicing
compensation in accordance with Section 3.11(d), interest and investment income
earned in respect of amounts held in such REO Account as provided in Section
3.06(b) (but only to the extent of the Net Investment Earnings with respect to
such REO Account for any Collection Period). The Special Servicer shall give
written notice to the Trustee and the Master Servicers of the location of each
REO Account, and shall give notice to the related Non-Trust Noteholder(s) of the
location of any Loan Combination REO Account, in each case when first
established and of the new location of any such REO Account prior to any change
thereof.
(c) The Special Servicer shall withdraw from the related REO
Account funds necessary for the proper operation, management, leasing,
maintenance and disposition of any Administered REO Property, but only to the
extent of amounts on deposit in such REO Account relating to such Administered
REO Property (including any monthly reserve or escrow amounts necessary to
accumulate sufficient funds for taxes, insurance and anticipated capital
expenditures (the "Impound Reserve")). On each Determination Date, the Special
Servicer shall withdraw from the Pool REO Account and deposit into the
applicable Collection Account, or deliver to the applicable Master Servicer or
such other Person as may be designated by such Master Servicer (which shall
deposit such amounts into the applicable Collection Account) the aggregate of
all amounts received in respect of the related Administered REO Property during
the Collection Period ending on such Determination Date, net of any
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withdrawals made out of such amounts pursuant to the preceding sentence. On each
Determination Date, the Special Servicer shall withdraw from each Loan
Combination REO Account and deposit into the related Loan Combination Custodial
Account, or deliver to the applicable Master Servicer or such other Person as
may be designated by such Master Servicer (which shall deposit such amounts into
the related Loan Combination Custodial Account) the aggregate of all amounts
then on deposit therein that were received in respect of the related Loan
Combination REO Property during the Collection Period ending on such
Determination Date, net of any withdrawals made out of such amounts pursuant to
the second preceding sentence. Notwithstanding the foregoing, in addition to the
Impound Reserve, the Special Servicer may retain in the applicable REO Account
such portion of proceeds and collections in respect of any Administered REO
Property as may be necessary to maintain a reserve of sufficient funds for the
proper operation, management, leasing, maintenance and disposition of such
Administered REO Property (including, without limitation, the creation of a
reasonable reserve for repairs, replacements, necessary capital improvements and
other related expenses), such reserve not to exceed an amount reasonably
estimated to be sufficient to cover such items estimated to be incurred during
the following twelve-month period.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, each REO Account pursuant to Section 3.16(b) or (c).
The Special Servicer shall provide the applicable Master Servicer any
information with respect to each REO Account as is reasonably requested by such
Master Servicer.
SECTION 3.17 Management of REO Property.
(a) Prior to the acquisition by it of title to a Serviced
Mortgaged Property, the Special Servicer shall review the operation of such
Serviced 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
Serviced Mortgaged Property would be subject to tax as "net income from
foreclosure property" within the meaning of the REMIC Provisions or would
be subject to the tax imposed on "prohibited transactions" under Section
860F of the Code (either such tax referred to herein as an "REO Tax"),
then such Serviced Mortgaged Property may be Directly Operated by the
Special Servicer as REO Property;
(ii) Directly Operating such Serviced Mortgaged Property as
an Administered 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
reasonable judgment of the Special Servicer (exercised in accordance with
the Servicing Standard), such alternative is commercially reasonable)
acquire such Serviced Mortgaged Property as Administered REO Property and
so lease or operate such Administered REO Property; or
(iii) It is reasonable to believe that Directly Operating
such property as Administered REO Property could result in income subject
to an REO Tax and that no commercially reasonable means exists to operate
such property as Administered REO Property
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without the Trust Fund incurring or possibly incurring an REO Tax on
income from such property, the Special Servicer shall deliver to the REMIC
Administrator, in writing, a proposed plan (the "Proposed Plan") to manage
such property as Administered 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. Within a
reasonable period of time after receipt of such plan, the REMIC
Administrator shall consult with the Special Servicer and shall advise the
Special Servicer of the REMIC 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. In addition, the REMIC Administrator
shall (to the extent reasonably possible) advise the Special Servicer of
the estimated amount of taxes that the Trust Fund would be required to pay
with respect to each such source of income. After receiving the
information described in the two preceding sentences from the REMIC
Administrator, the Special Servicer shall either (A) implement the
Proposed Plan (after acquiring the respective Serviced Mortgaged Property
as Administered REO Property) or (B) manage such property in a manner that
would not result in the imposition of an REO Tax on the income derived
from such property. All of the REMIC Administrator's expenses (including
any fees and expenses of counsel or other experts reasonably retained by
it) incurred pursuant to this Section shall be reimbursed to it from the
Trust Fund in accordance with Section 10.01(e).
The Special Servicer's decision as to how each Administered REO
Property shall be managed and operated shall be based on the Servicing Standard
and, further, based on the reasonable judgment of the Special Servicer as to
which means would be in the best interest of the Certificateholders (and, in the
case of any Loan Combination REO Property, the related Non-Trust Noteholder(s)),
as a collective whole, by maximizing (to the extent commercially reasonable and
consistent with Section 3.17(b)) the net after-tax REO Revenues received by the
Trust Fund with respect to such property and, to the extent consistent with the
foregoing, in the same manner as would prudent mortgage loan servicers operating
acquired mortgaged property comparable to the respective Serviced Mortgaged
Property. Both the Special Servicer and the REMIC Administrator may, at the
expense of the Trust Fund payable pursuant to Section 3.05(a)(xiii) consult with
counsel.
(b) If title to any Administered REO Property is acquired, the
Special Servicer shall manage, conserve, protect and operate such Administered
REO Property for the benefit of the Certificateholders (and, in the case of any
Loan Combination REO Property, the related Non-Trust Noteholder(s)) solely for
the purpose of its prompt disposition and sale in a manner that does not and
will not: (i) cause such Administered REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code for
purposes of Section 860D(a) of the Code; or (ii) except as contemplated by
Section 3.17(a), either result in the receipt by any REMIC of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or
result in an Adverse REMIC Event or an Adverse Grantor Trust Event. Subject to
the foregoing, however, the Special Servicer shall have full power and authority
to do any and all things in connection therewith as are consistent with the
Servicing Standard and, consistent therewith, shall withdraw from the related
REO Account, to the extent of amounts on deposit therein with respect to any
Administered REO Property, funds necessary for the proper operation, management,
maintenance and disposition of such Administered REO Property, including without
limitation:
(i) all insurance premiums due and payable in respect of
such Administered REO Property;
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(ii) all real estate taxes and assessments in respect of
such Administered REO Property that may result in the imposition of a lien
thereon;
(iii) any ground rents in respect of such Administered REO
Property; and
(iv) all costs and expenses necessary to maintain, lease,
sell, protect, manage and restore such Administered REO Property.
To the extent that amounts on deposit in the applicable REO Account
in respect of any Administered REO Property are insufficient for the purposes
set forth in the preceding sentence with respect to such Administered REO
Property, the applicable Master Servicer, subject to Section 3.03(c), shall make
Servicing Advances in such amounts as are necessary for such purposes unless (as
evidenced by an Officer's Certificate delivered to the Trustee) such Master
Servicer determines, in accordance with the Servicing Standard, that such
payment would be a Nonrecoverable Advance; provided, however, that such Master
Servicer may make any such Servicing Advance without regard to recoverability if
it is a necessary fee or expense incurred in connection with the defense or
prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special
Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect
to such Administered REO Property, if the New Lease, by its terms would
give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any
New Lease other than amounts that will constitute Rents from Real
Property;
(iii) authorize or permit any construction on such
Administered REO Property, other than the completion of a building or
other improvement thereon, and then only if more than 10% of the
construction of such building or other improvement was completed before
default on the related Mortgage Loan became imminent, all within the
meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other
than an Independent Contractor, to Directly Operate such Administered REO
Property on any date more than 90 days after the related REO Acquisition;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the applicable Master Servicer, at
the direction of the Special Servicer, and shall be reimbursable as a Servicing
Advance) to the effect that such action would not cause such Administered REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at
any time that it is held by REMIC I, in which case the Special Servicer may take
such actions as are specified in such Opinion of Counsel.
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(d) Unless Section 3.17(a)(i) applies, the Special Servicer shall
contract with any Independent Contractor for the operation and management of any
Administered REO Property, provided that:
(i) the terms and conditions of any such contract may 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) shall be reasonable and customary in
consideration of the nature and locality of such Administered REO
Property;
(iii) except as permitted under Section 3.17(a), any such
contract shall require, or shall be administered to require, that the
Independent Contractor, in a timely manner, (A) pay out of related REO
Revenues all costs and expenses incurred in connection with the operation
and management of such Administered REO Property, including, without
limitation, those listed in Section 3.17(b) above, and (B) except to the
extent that such revenues are derived from any services rendered by the
Independent Contractor to tenants of such Administered REO Property that
are not customarily furnished or rendered in connection with the rental of
real property (within the meaning of Section 1.856-4(b)(5) of the Treasury
regulations or any successor provision), remit all related revenues
collected (net of its fees and such costs and expenses) to the Special
Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d)
relating to any such contract or to actions taken through any such
Independent Contractor shall be deemed to relieve the Special Servicer of
any of its duties and obligations hereunder with respect to the operation
and management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such
Administered REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations under Section 3.16 and this Section 3.17 for indemnification of the
Special Servicer by any such Independent Contractor, and nothing in this
Agreement shall be deemed to limit or modify such indemnification. No agreement
entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing
Agreement for purposes of Section 3.22.
SECTION 3.18 Resolution of Defaulted Mortgage Loans and REO
Properties.
(a) Either Master Servicer, the Special Servicer or the Trustee
may sell or purchase, or permit the sale or purchase of, a Trust
Mortgage Loan or an REO Property related thereto only on the terms and subject
to the conditions set forth in this Section 3.18 or as otherwise expressly
provided in or contemplated by Section 2.03(a), Section 9.01 and/or any related
co-lender, intercreditor or similar agreement to which the Trust is a party.
(b) After a Trust Serviced Mortgage Loan becomes a Serviced
Trust Defaulted Mortgage Loan, the Special Servicer shall determine the fair
value of the Serviced Trust Mortgage Loan in accordance with the Servicing
Standard; provided, however, that such determination shall be made
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without taking into account any effect the restrictions on the sale of such
Serviced Trust Mortgage Loan contained herein may have on the value of such
Serviced Trust Defaulted Mortgage Loan; provided, further, that the Special
Servicer shall use reasonable efforts promptly to obtain an Appraisal with
respect to the related Mortgaged Property unless it has an Appraisal that is
less than 12 months old and has no actual knowledge of, or notice of, any event
which in the Special Servicer's judgment would materially affect the validity of
such Appraisal. The Special Servicer shall make its fair value determination as
soon as reasonably practicable (but in any event within 30 days) after its
receipt of such new Appraisal, if applicable. The Special Servicer will be
permitted, from time to time, to adjust its fair value determination based upon
changed circumstances, new information and other relevant factors, in each
instance in accordance with the Servicing Standard; provided, however, that the
Special Servicer shall update its fair value determination at least once every
90 days; and provided, further, that absent the Special Servicer having actual
knowledge of a material change in circumstances affecting the value of the
related Mortgaged Property, the Special Servicer shall not be obligated to
update such determination. The Special Servicer shall notify the Trustee, the
applicable Master Servicer, each Rating Agency, the Plurality Subordinate
Certificateholder and the Controlling Class Representative promptly upon its
fair value determination and any adjustment thereto. The Special Servicer shall
also deliver to the applicable Master Servicer, the Plurality Subordinate
Certificateholder and the Controlling Class Representative, the most recent
Appraisal of the related Mortgaged Property then in the Special Servicer's
possession, together with such other third-party reports and other information
then in the Special Servicer's possession that the Special Servicer reasonably
believes to be relevant to the fair value determination with respect to such
Serviced Trust Mortgage Loan (such materials are, collectively, the
"Determination Information"). Notwithstanding the foregoing, the Special
Servicer shall not be required to deliver the Determination Information to the
applicable Master Servicer, and shall instead deliver the Determination
Information to the Trustee, if such Master Servicer will not be determining
whether the Option Price represents fair value for the Serviced Trust Defaulted
Mortgage Loan, pursuant to this Section 3.18.
In determining the fair value of any Serviced Trust Defaulted
Mortgage Loan, the Special Servicer shall take into account, among other
factors, the period and amount of the delinquency on such Serviced Trust
Mortgage Loan, the occupancy level and physical condition of the related
Mortgaged Property, the state of the local economy in the area where the
Mortgaged Property is located, and the time and expense associated with a
purchaser's foreclosing on the related Mortgaged Property and the expected
recoveries from pursuing a work-out or foreclosure strategy instead of selling
the Serviced Trust Defaulted Mortgage Loan to the Purchase Option holder. In
addition, the Special Servicer shall refer to all other relevant information
obtained by it or otherwise contained in the related Mortgage File; provided
that the Special Servicer shall take account of any change in circumstances
regarding the related Mortgaged Property known to the Special Servicer that has
occurred subsequent to, and that would, in the Special Servicer's reasonable
judgment, materially affect the value of the related Mortgaged Property
reflected in the most recent related Appraisal. Furthermore, the Special
Servicer shall consider all available objective third-party information obtained
from generally available sources, as well as information obtained from vendors
providing real estate services to the Special Servicer, concerning the market
for distressed real estate loans and the real estate market for the subject
property type in the area where the related Mortgaged Property is located.
(c) Subject to the terms set forth in Section 2.03, in the
event a Serviced Trust Mortgage Loan becomes a Serviced Trust Defaulted Mortgage
Loan, each of the Plurality Subordinate Certificateholder and the Special
Servicer (each, together with their respective assignees, an "Option Holder")
shall have an assignable option (a "Purchase Option") (with respect to any Trust
Mortgage
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Loan that is part of a Loan Combination, subject to the related Loan Combination
Intercreditor Agreement and Section 3.18(o)) to purchase such Serviced Trust
Defaulted Mortgage Loan from the Trust Fund at a price (the "Option Price")
equal to (i) the Purchase Price, if the Special Servicer has not yet determined
the fair value of the Serviced Trust Defaulted Mortgage Loan, or (ii) the fair
value of the Serviced Trust Defaulted Mortgage Loan as determined by the Special
Servicer in the manner described in Section 3.18(b) and in accordance with the
Servicing Standard, if the Special Servicer has made such fair value
determination; provided that, if (A) the Purchase Option is being exercised by
an Option Holder that is an assignee of the Special Servicer or the Plurality
Subordinate Certificateholder that is not an Affiliate of the Special Servicer
or the Plurality Subordinate Certificateholder, (B) the assignment of the
Purchase Option was to such Option Holder for no material consideration, and (C)
the Purchase Option is exercised by such Option Holder more than 90 days
following a determination of the fair value of the subject Serviced Trust
Defaulted Mortgage Loan, the Special Servicer shall be entitled to receive a
Principal Recovery Fee, which Principal Recovery Fee shall be deducted from the
Option Price received. The Special Servicer shall, promptly after a Serviced
Trust Mortgage Loan becomes a Serviced Trust Defaulted Mortgage Loan, deliver to
the Plurality Subordinate Certificateholder and the Controlling Class
Representative a notice substantially in the form of Exhibit M-1. Any holder of
a Purchase Option may sell, transfer, assign or otherwise convey its Purchase
Option with respect to any Serviced Trust Defaulted Mortgage Loan to any party
at any time after the related Serviced Trust Mortgage Loan becomes a Serviced
Trust Defaulted Mortgage Loan. The transferor of any Purchase Option shall
notify the Trustee and the applicable Master Servicer of such transfer and such
notice shall include (i) in the case of the Plurality Subordinate
Certificateholder, an assignment substantially in the form of Exhibit M-3, or
(ii) in the case of the Special Servicer, an assignment substantially in the
form of Exhibit M-2. Notwithstanding the foregoing, the Plurality Subordinate
Certificateholder (or its assignee) shall have the right to exercise its
Purchase Option prior to any exercise of the Purchase Option by the Special
Servicer; provided, however, if the Purchase Option is not exercised by the
Plurality Subordinate Certificateholder or any assignee thereof within 60 days
of the fair value determination being made with respect to the subject Trust
Defaulted Mortgage Loan, then the Special Servicer (or its assignee) shall have
the right to exercise its Purchase Option prior to any exercise by the Plurality
Subordinate Certificateholder and the Special Servicer or its assignee may
exercise such Purchase Option at any time during the 15 day period immediately
following the expiration of such 60-day period. Following the expiration of such
15 day period, the Plurality Subordinate Certificateholder (or its assignee)
shall again have the right to exercise its Purchase Option prior to any exercise
of the Purchase Option by the Special Servicer. If not exercised earlier, the
Purchase Option with respect to any Serviced Trust Defaulted Mortgage Loan will
automatically terminate (i) once the related Serviced Trust Defaulted Mortgage
Loan is no longer a Serviced Trust Defaulted Mortgage Loan; provided, however,
that if such Serviced Trust Mortgage Loan subsequently becomes a Serviced Trust
Defaulted Mortgage Loan, the related Purchase Option shall again be exercisable,
(ii) upon the acquisition, by or on behalf of the Trust Fund, of title to the
related Mortgaged Property through foreclosure or deed in lieu of foreclosure or
(iii) the modification or pay-off, in full or at a discount, of such Serviced
Trust Defaulted Mortgage Loan in connection with a workout. In addition, the
Purchase Option with respect to a Trust Defaulted Mortgage Loan held by any
Person will terminate upon the exercise of the Purchase Option and consummation
of the purchase by any other holder of a Purchase Option.
(d) [RESERVED]
(e) Upon receipt of notice from the Special Servicer indicating
that a Serviced Trust Mortgage Loan has become a Serviced Trust Defaulted
Mortgage Loan, the holder (whether the original
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grantee of such option or any subsequent transferee) of the Purchase Option may
exercise the Purchase Option by providing the applicable Master Servicer, the
Trustee and the Controlling Class Representative, written notice thereof (the
"Purchase Option Notice"), which notice shall identify the Person that, on its
own or through an Affiliate, will acquire the related Serviced Trust Mortgage
Loan upon closing and shall specify a cash exercise price at least equal to the
Option Price. The Purchase Option Notice shall be delivered in the manner
specified in Section 11.05. The exercise of any Purchase Option pursuant to this
clause (e) shall be irrevocable; provided that the assignor of the Purchase
Option shall have no liability to the Trust Fund or any other party hereto for
the failure of its third party assignee to close the sale of the Serviced Trust
Defaulted Mortgage Loan after its exercise of the Purchase Option and upon such
failure, the Purchase Option shall revert to the Option Holder as provided
herein as if the Purchase Option had not been exercised, and the Special
Servicer shall pursue against such assignee whatever remedies the Trust Fund may
have against the assignee.
(f) If the Special Servicer or the Plurality Subordinate
Certificateholder, or any of their respective Affiliates, is identified in the
Purchase Option Notice as the Person expected to acquire the related Serviced
Trust Mortgage Loan, and the Option Price is based upon the Special Servicer's
fair value determination, then the applicable Master Servicer (or, if such
Master Servicer and the Special Servicer are the same Person, the Trustee) shall
determine whether the Special Servicer's determination of the Option Price
represents fair value for the Serviced Trust Defaulted Mortgage Loan, in the
manner set forth in Section 3.18(b). In such event, the Special Servicer shall
promptly deliver to the applicable Master Servicer (or the Trustee, if the
Trustee is making the determination as contemplated in the preceding sentence)
the Determination Information, including information regarding any change in
circumstance regarding the Serviced Trust Defaulted Mortgage Loan known to the
Special Servicer that has occurred subsequent to, and that would materially
affect the value of the related Mortgaged Property reflected in, the most recent
related Appraisal. Notwithstanding the foregoing, and if the Special Servicer
has not already done so, the applicable Master Servicer (or the Trustee, if the
Trustee is making the determination as contemplated in the preceding sentences)
may (at its option) designate an Independent Appraiser or other Independent
expert of recognized standing having experience in evaluating the value of
defaulted mortgage loans, selected with reasonable care by such Master Servicer
or the Trustee, as the case may be, to confirm that the Special Servicer's
determination of the Option Price represents fair value for the Serviced Trust
Defaulted Mortgage Loan (which opinion shall be based on a review, analysis and
evaluation of the Determination Information, and to the extent such an
Independent Appraiser or third party deems any such Determination Information to
be defective, incorrect, insufficient or unreliable, such Person may base its
opinion on such other information it deems reasonable or appropriate). In that
event, the applicable Master Servicer or the Trustee, as the case may be, absent
manifest error, may conclusively rely on the opinion of any such Person. The
costs of all appraisals, inspection reports and opinions of value incurred by
the Special Servicer, the applicable Master Servicer, the Trustee or any such
third party pursuant to this paragraph shall be advanced by such Master Servicer
(or the Trustee, if applicable) and shall constitute, and be reimbursable as,
Servicing Advances. In addition, the applicable Master Servicer (or, if
applicable, the Trustee) shall be entitled to receive out of its Collection
Account a fee in the amount of $2,500, for the initial confirmation of the
Special Servicer's Option Price determination (but no fee for any subsequent
confirmation) that is made by it with respect to any Serviced Trust Defaulted
Mortgage Loan, in accordance with this Section 3.18(f).
Notwithstanding anything contained in this Section 3.18(f) to the
contrary, if the Special Servicer, the Plurality Subordinate Certificateholder
or any of their respective Affiliates, is identified in the Purchase Option
Notice as the Person expected to acquire the related Serviced Trust Mortgage
Loan,
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and the Option Price is based upon the Special Servicer's fair value
determination, and the applicable Master Servicer and the Special Servicer are
Affiliates, the Trustee shall determine whether the Option Price represents fair
value for the Serviced Trust Defaulted Mortgage Loan, in the manner set forth in
Section 3.18(b) and as soon as reasonably practicable but in any event within 30
days (except as such period may be extended as set forth in this paragraph) of
its receipt of the Purchase Option Notice and Determination Information from the
Special Servicer. In determining whether the Option Price represents the fair
value of such Serviced Trust Defaulted Mortgage Loan, the Trustee may obtain an
opinion as to the fair value of such Serviced Trust Defaulted Mortgage Loan,
taking into account the factors set forth in Section 3.18(b), from an
Independent Appraiser or other Independent expert of recognized standing having
experience in evaluating the value of defaulted mortgage loans which opinion
shall be based on a review, analysis and evaluation of the Determination
Information, and to the extent such an Independent Appraiser or third party
deems any such Determination Information to be defective, incorrect,
insufficient or unreliable, such Person may base its opinion on such other
information it deems reasonable or appropriate, and absent manifest error, the
Trustee may conclusively rely on the opinion of any such Person which was chosen
by the Trustee with reasonable care. Notwithstanding the 30 day time period
referenced above in this paragraph, the Trustee will have an additional 15 days
to make a fair value determination if the Person referenced in the immediately
preceding sentence has determined that the Determination Information is
defective, incorrect, insufficient or unreliable. The reasonable costs of all
appraisals, inspection reports and opinions of value, reasonably incurred by the
Trustee or any such third party pursuant to this paragraph shall be advanced by
the applicable Master Servicer and shall constitute, and be reimbursable as,
Servicing Advances. In connection with the Trustee's determination of fair value
the Special Servicer shall deliver to the Trustee the Determination Information
for the use of the Trustee or any such third party.
In the event a designated third party determines that the Option
Price is less than the fair value of the Trust Defaulted Mortgage Loan, such
party shall provide its determination, together will all information and reports
it relied upon in making such determination, to the Special Servicer, the
applicable Master Servicer or the Trustee, as the case may be, and the Special
Servicer shall then adjust its fair value determination and, consequently, the
Option Price, pursuant to Section 3.18(b). The Special Servicer shall promptly
provide written notice of any adjustment of the Option Price to the Option
Holder whose Purchase Option has been declared effective pursuant to Section
3.18(e) above. Upon receipt of such notice, such Option Holder shall have three
(3) Business Days to (i) accept the Option Price as adjusted and proceed in
accordance with Section 3.18(g) below, or (ii) reject the Option Price as
adjusted, in which case such Option Holder shall not be obligated to close the
purchase of the Serviced Trust Defaulted Mortgage Loan. Upon notice from such
Option Holder, that it rejects the Option Price as adjusted, the Special
Servicer and the Trustee shall provide the notices described in Section 3.18(h)
below and thereafter any Option Holder may exercise its purchase option in
accordance with this Section 3.18, at the Option Price as adjusted.
(g) The Option Holder whose Purchase Option is declared effective
pursuant to Section 3.18(e) above shall be required to pay the purchase price
specified in its Purchase Option Notice to the applicable Master Servicer within
10 Business Days of its receipt of such Master Servicer's notice confirming that
the exercise of its Purchase Option is effective. Upon receipt of a Request for
Release from the applicable Master Servicer specifying the date for closing the
purchase of the related Serviced Trust Defaulted Mortgage Loan, and the purchase
price to be paid therefor, the Trustee shall deliver at such closing for release
to or at the direction of such Option Holder, the related Mortgage File, and
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, as shall be provided to it by such Option Holder and are
reasonably necessary to vest in the purchaser or any
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designee thereof the ownership of such Serviced Trust Mortgage Loan. In
connection with any such purchase by any Person other than it, the Special
Servicer shall deliver the related Mortgage File to or at the direction of the
purchaser. In any case, the applicable Master Servicer shall deposit the
purchase price (except that portion of any purchase price constituting
Gain-on-Sale Proceeds which shall be deposited in the Gain-on-Sale Reserve
Account) into its Collection Account within one (1) Business Day following
receipt.
(h) The Special Servicer shall immediately notify the Trustee and
the applicable Master Servicer upon the holder of the effective Purchase
Option's failure to remit the purchase price specified in its Purchase Option
Notice pursuant to this Section 3.18(h). Thereafter, the Trustee shall notify
each Option Holder of such failure and any Option Holder may then exercise its
purchase option in accordance with this Section 3.18.
(i) Unless and until the Purchase Option with respect to a
Serviced Trust Defaulted Mortgage Loan is exercised, the Special Servicer shall
pursue such other resolution strategies available hereunder with respect to such
Serviced Trust Defaulted Mortgage Loan, including, without limitation, workout
and foreclosure, as the Special Servicer may deem appropriate consistent with
the Servicing Standard; provided, however, the Special Servicer will not be
permitted to sell the Serviced Trust Defaulted Mortgage Loan other than in
connection with the exercise of the related Purchase Option.
(j) In the event that title to any REO Property is acquired by the
Trust in respect of any Serviced Trust Defaulted Mortgage Loan, the deed or
certificate of sale shall be issued to the Trust, the Trustee or to its
nominees. The Special Servicer, after notice to the Controlling Class
Representative, shall use its reasonable best efforts to sell any REO Property
as soon as practicable in accordance with Section 3.16(a). If the Special
Servicer on behalf of the Trustee has not received an REO Extension or an
Opinion of Counsel described in Section 3.16(a) and the Special Servicer is not
able to sell such REO Property within the period specified above, or if an REO
Extension has been granted and the Special Servicer is unable to sell such REO
Property within the extended time period, the Special Servicer shall, after
consultation with the Controlling Class Representative, before the end of such
period or extended period, as the case may be, auction the REO Property to the
highest bidder (which may be the Special Servicer) in accordance with the
Servicing Standard. The Special Servicer shall give the Controlling Class
Representative, the applicable Master Servicer and the Trustee (and, in the case
of a Loan Combination Mortgaged Property, the related Non-Trust Noteholder(s))
not less than five days' prior written notice of its intention to sell any
Administered REO Property, and in respect of such sale, the Special Servicer
shall offer such Administered REO Property in a commercially reasonable manner.
Where any Interested Person is among those bidding with respect to an
Administered REO Property, the Special Servicer shall require that all bids be
submitted in writing and be accompanied by a refundable deposit of cash in an
amount equal to 5% of the bid amount. No Interested Person shall be permitted to
purchase the Administered REO Property at a price less than the Purchase Price;
and provided, further, that if the Special Servicer intends to bid on any
Administered REO Property, (i) the Special Servicer shall notify the Trustee of
such intent, (ii) the Trustee shall promptly obtain, at the expense of the Trust
Fund, an Appraisal of such Administered REO Property and (iii) the Special
Servicer shall not bid less than the greater of (A) the fair market value set
forth in such Appraisal or (B) the Purchase Price.
(k) Subject to the REMIC Provisions, the Special Servicer shall
act on behalf of the Trust in negotiating and taking any other action necessary
or appropriate in connection with the sale of any Administered REO Property or
the exercise of a Purchase Option, including the collection of all
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amounts payable in connection therewith. Notwithstanding anything to the
contrary herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may bid for or purchase any Administered REO Property or purchase any
Serviced Trust Defaulted Mortgage Loan. Any sale of a Serviced Trust Defaulted
Mortgage Loan (pursuant to a Purchase Option) or an Administered REO Property
shall be without recourse to, or representation or warranty by, the Trustee, any
Fiscal Agent, the Depositor, the Special Servicer, the applicable Master
Servicer, any Mortgage Loan Seller or the Trust. None of the Special Servicer,
the applicable Master Servicer, the Depositor, the Trustee or any Fiscal Agent
shall have any liability to the Trust or any Certificateholder with respect to
the price at which a Serviced Trust Defaulted Mortgage Loan is sold if the sale
is consummated in accordance with the terms of this Agreement.
(l) Upon exercise of a Purchase Option, the holder of such
Purchase Option shall be required to pay the purchase price specified in its
Purchase Option Notice to the Special Servicer within 10 Business Days of
exercising its Purchase Option. The proceeds of any sale of a Serviced Trust
Defaulted Mortgage Loan, after deduction of the expenses of such sale incurred
in connection therewith, shall be deposited by the Special Servicer in the
applicable Master Servicer's Collection Account.
(m) Notwithstanding anything herein to the contrary, the Special
Servicer shall not take or refrain from taking any action pursuant to
instructions from the Controlling Class Representative that would cause it to
violate applicable law or any term or provision of this Agreement, including the
REMIC Provisions and the Servicing Standard.
(n) The amount paid for a Serviced Trust Defaulted Mortgage Loan
or related Administered REO Property purchased under this Agreement shall be
deposited into the applicable Master Servicer's Collection Account. Upon receipt
of an Officer's Certificate from the applicable Master Servicer to the effect
that such deposit has been made, the Trustee shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be provided to it and are reasonably necessary to vest in the purchaser of such
Serviced Trust Defaulted Mortgage Loan or related Administered REO Property
ownership of the Serviced Trust Defaulted Mortgage Loan or Administered REO
Property. The Custodian, upon receipt of a Request for Release, shall release or
cause to be released to the applicable Master Servicer or the Special Servicer
the related Mortgage File. In connection with any such purchase, the Special
Servicer shall deliver the related Servicing File to the purchaser of a Serviced
Trust Defaulted Mortgage Loan or related Administered REO Property.
(o) Pursuant to the terms of each Loan Combination Intercreditor
Agreement, upon the occurrence of one or more specified events set forth in each
such agreement with respect to the related Trust Mortgage Loan, each related
Non-Trust Noteholder may, at its option and subject to the terms of such
agreement, purchase the subject Trust Mortgage Loan at the purchase price set
forth in such agreement. Any exercise of a Purchase Option under this Section
3.18 with respect to a Trust Mortgage Loan that is part of a Loan Combination
shall be subject to the rights of the related Non-Trust Noteholder(s) to
purchase such Trust Mortgage Loan pursuant to the related Loan Combination
Intercreditor Agreement.
SECTION 3.19 Additional Obligations of the Master Servicers.
(a) Each Master Servicer shall deposit in its Collection Account
on each P&I Advance Date (prior to any transfer of funds from such Collection
Account to the Distribution Account on such date), without any right of
reimbursement therefor with respect to those Trust Mortgage Loans for which it
is the Master Servicer that were, in each such case, subject to a Principal
Prepayment during
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the most recently ended Collection Period (other than Principal Prepayments made
out of Insurance Proceeds or Liquidation Proceeds and other than
Casualty/Condemnation Principal Prepayments) creating a Prepayment Interest
Shortfall, an aggregate amount equal to the lesser of (i) the amount of the
related Prepayment Interest Shortfalls in respect of such Trust Mortgage Loans
and (ii) the sum of (A) that portion of such Master Servicer's Master Servicing
Fees on the portion of the Mortgage Pool for which it is the applicable Master
Servicer that represents an accrual at a rate of 0.01% per annum and (B) the
total amount of Prepayment Interest Excesses that were collected during the
related Collection Period; provided, however, that if a Prepayment Interest
Shortfall occurs as a result of the applicable Master Servicer's allowing the
related Mortgagor to deviate from the terms of the related Mortgage Loan
documents regarding principal prepayments (other than (x) subsequent to a
material default under the related Mortgage Loan documents, (y) pursuant to
applicable law or a court order or (z) at the request or with the consent of the
Special Servicer or the Controlling Class Representative), then, for purposes of
determining the payment that such Master Servicer is required to make to cover
that Prepayment Interest Shortfall, the reference to "Master Servicing Fee" in
clause (A) above shall be construed to include (1) the entire Master Servicing
Fees payable to such Master Servicer with respect to the related Collection
Period, inclusive of any portion payable to a third-party primary servicer and
inclusive of any portion thereof that constitutes the related Excess Servicing
Strip and (2) the amount of any investment income earned by such Master Servicer
on the related Principal Prepayment while on deposit in its Collection Account.
Following the payments made by the applicable Master Servicer
pursuant to the preceding paragraph (excluding the payments contemplated by the
proviso to the sole sentence of the preceding paragraph), such Master Servicer
shall apply any remaining Prepayment Interest Excesses to offset any
Casualty/Condemnation Interest Shortfall incurred with respect to any Trust
Mortgage Loan during the subject Collection Period.
Except as provided in the preceding paragraphs, no other
compensation to the Master Servicers shall be available to cover Prepayment
Interest Shortfalls. Each Master Servicer's obligation to make any particular
deposit in respect of any Collection Period as set forth in this Section 3.19(a)
shall not, in the absence of default under this Section 3.19(a), carry over to
any subsequent Collection Period.
Without the consent of the Special Servicer (which consent shall be
deemed given if the Special Servicer does not respond within five (5) Business
Days following receipt of a request for consent), neither Master Servicer shall
allow a Mortgagor to deviate from the terms of the related Mortgage Loan
documents regarding voluntary Principal Prepayments (other than with respect to
Principal Prepayments made out of Insurance Proceeds or Liquidation Proceeds and
other than Casualty/Condemnation Principal Prepayments) if a Prepayment Interest
Shortfall, in excess of the amount required to be deposited by such Master
Servicer in its Collection Account pursuant to the third preceding paragraph,
would occur as a result of such deviation.
(b) The applicable Master Servicer shall, as to each Serviced
Mortgage Loan that is secured by the interest of the related Mortgagor under a
Ground Lease, promptly (and in any event within 60 days of the Closing Date)
notify the related ground lessor in writing of the transfer of such Serviced
Mortgage Loan to the Trust Fund pursuant to this Agreement and inform such
ground lessor that any notices of default under the related Ground Lease should
thereafter be forwarded to such Master Servicer. The costs and expenses of any
modifications to Ground Leases shall be paid by the related Mortgagor.
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(c) Each Master Servicer shall deliver to each Mortgage Loan
Seller upon request, without charge, no more than twice per calendar year a
current list of the Mortgagors relating to the Mortgage Loans (as identified on
the Mortgage Loan Schedule) sold by such Mortgage Loan Seller to the Depositor
and their respective billing addresses and telephone numbers; provided, however,
that neither Master Servicer shall be under an obligation to provide any such
information not in its possession.
(d) The Master Servicers and the Special Servicer shall each
be responsible for providing (i) to each Non-Trust Noteholder such notices
regarding defaults and events of default with respect to the related Loan
Combination as are required from the holder of the related Trust Mortgage Loan
that is part the related Loan Combination under the related Loan Combination
Intercreditor Agreement, and (ii) to any lender of related mezzanine debt as may
be required from the Trust, as holder of a Trust Mortgage Loan, under any
related co-lender, intercreditor or similar agreement.
SECTION 3.20 Modifications, Waivers, Amendments and Consents.
(a) The Master Servicers (with respect to any Mortgage Loan
that is not a Specially Serviced Mortgage Loan) and the Special Servicer (with
respect to any Specially Serviced Mortgage Loan) each may (consistent with the
Servicing Standard) agree to any modification, waiver or amendment of any term
of, extend the maturity of (in the case of either Master Servicer, subject to a
maximum of two separate one-year extensions without the consent of the Special
Servicer), defer or forgive interest (including Penalty Interest and Additional
Interest) on and principal of, defer or forgive late payment charges, Prepayment
Premiums and Yield Maintenance Charges on, permit the release, addition or
substitution of collateral securing, and/or permit the release, addition or
substitution of the Mortgagor on or any guarantor of, any Serviced Mortgage
Loan, and/or provide consents with respect to any leasing activity at a
Mortgaged Property securing any Serviced Mortgage Loan without the consent of
the Trustee or any Certificateholder; provided, that the Master Servicers' and
the Special Servicer's rights to do so shall be subject to Section 3.08 and
Section 6.11 (and, in the case of a Loan Combination, subject to the terms of
the related Loan Combination Intercreditor Agreement) and, further, to the
following subsections of this Section 3.20; and provided, further, that other
than as provided in Sections 3.02(a) (relating to waivers of Default Charges),
3.08, 3.20(d) and 3.20(e), neither Master Servicer shall agree to any
modification, waiver, forbearance or amendment of any term of, or take any of
the other acts referenced in this Section 3.20(a) with respect to, any Mortgage
Loan, unless such Master Servicer has obtained the consent of the Special
Servicer (it being understood and agreed that (A) such Master Servicer will
promptly provide the Special Servicer with notice of any Mortgagor request for
such modification, waiver, forbearance or amendment, and, with respect to a
Mortgage Loan with respect to which Wachovia is not the Master Servicer, the
Master Servicer's written recommendations and analysis, and all information
reasonably available to such Master Servicer that the Special Servicer may
reasonably request in order to withhold or grant any such consent, (B) the
Special Servicer shall decide whether to withhold or grant such consent in
accordance with the Servicing Standard and Section 6.11 and (C) if any such
consent has not been expressly denied within 10 Business Days (or, if the
Controlling Class Representative is entitled to object pursuant to Section 6.11,
15 Business Days, which 15 Business Days shall include the five Business Days
specified in the proviso at the end of the first paragraph of Section 6.11)
after the Special Servicer's receipt from such Master Servicer of such Master
Servicer's recommendations and analysis and all information reasonably requested
thereby and reasonably available to such Master Servicer in order to make an
informed decision (or, if the Special Servicer did not request any information,
within 10 Business Days (or 15 Business Days, if applicable) after such notice),
such consent shall be deemed to have been granted).
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(b) All modifications, waivers or amendments of any Serviced
Mortgage Loan shall be in writing and shall be considered and effected in
accordance with the Servicing Standard. Neither of the Master Servicers nor the
Special Servicer, as applicable, shall make or permit or consent to, as
applicable, any modification, waiver or amendment of any term of any Serviced
Mortgage Loan that would result in an Adverse REMIC Event. Either Master
Servicer or the Special Servicer shall determine and may conclusively rely on an
Opinion of Counsel (which Opinion of Counsel shall be an expense of the Trust
Fund to the extent not paid by the related Mortgagor) to the effect that such
modification, waiver or amendment would not (1) effect an exchange or reissuance
of the Serviced Mortgage Loan under Treasury Regulations Section 1.860G-2(b) of
the Code, (2) cause either of REMIC I or REMIC II to fail to qualify as a REMIC
under the Code or result in the imposition of any tax on "prohibited
transactions" or "contributions" after the Startup Day under the REMIC
Provisions, or (3) adversely affect the status of any of ML-CFC 0000-0 Xxxxxxx
Xxxxx XX, Grantor Trust Z or Grantor Trust E under the Code.
(c) The Special Servicer, on behalf of the Trust Fund, may agree
or consent to (or permit either Master Servicer to agree or consent to) any
modification, waiver or amendment of any term of any Serviced Mortgage Loan that
would:
(i) affect the amount or timing of any related payment of
principal, interest or other amount (including Prepayment Premiums or
Yield Maintenance Charges, but excluding Penalty Interest and amounts
payable as additional servicing compensation) payable thereunder-
(including, subject to the discussion in the following paragraph, any
related Balloon Payment); or
(ii) affect the obligation of the related Mortgagor to pay
a Prepayment Premium or Yield Maintenance Charge or permit a Principal
Prepayment during any period in which the related Mortgage Note prohibits
Principal Prepayments; or
(iii) in the judgment of the Special Servicer, materially
impair the security for such Mortgage Loan or reduce the likelihood of
timely payment of amounts due thereon;
only if (A) a material default on the Serviced Mortgage Loan has occurred or, in
the Special Servicer's judgment, a material default on the Serviced Mortgage
Loan is reasonably foreseeable, and (B) the modification, waiver, amendment or
other action is reasonably likely to produce a greater recovery to the
Certificateholders (and, in the case of a Loan Combination, the related
Non-Trust Noteholder(s)), as a collective whole, on a present value basis, than
would liquidation.
In addition, subject to the third paragraph of this Section 3.20(c),
the Special Servicer may extend the date on which any Balloon Payment is
scheduled to be due in respect of a Specially Serviced Mortgage Loan if the
conditions set forth in the proviso to the prior paragraph are satisfied and the
Special Servicer has obtained an Appraisal of the related Mortgaged Property in
connection with such extension, which Appraisal supports the determination of
the Special Servicer contemplated by clause (B) of the proviso to the
immediately preceding paragraph.
In no event will either Master Servicer or the Special Servicer (i)
extend the maturity date of a Serviced Mortgage Loan beyond a date that is two
years prior to the Rated Final Distribution Date and (ii) if the Serviced
Mortgage Loan is secured by a Ground Lease (and not by the corresponding fee
simple interest), extend the maturity date of such Serviced Mortgage Loan beyond
a date which is less than 20 years (or, to the extent consistent with the
Servicing Standard, giving due consideration to the
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remaining term of the Ground Lease, and with the consent of the Controlling
Class Representative, 10 years) prior to the expiration of the term of such
Ground Lease including any unilateral options to extend such term.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 3.20(c) shall be evidenced
by an Officer's Certificate to such effect delivered to the Trustee, the
applicable Master Servicer and, in the case of a Loan Combination, the related
Non-Trust Noteholder(s) and describing in reasonable detail the basis for the
Special Servicer's determination. The Special Servicer shall append 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.
(d) Except as expressly contemplated by the related Mortgage Loan
documents, the Special Servicer shall not consent to either Master Servicer
releasing, which consent shall be deemed given if not denied in writing within
10 Business Days (or, if the Controlling Class Representative is entitled to
object pursuant to Section 6.11, 15 Business Days, which 15 Business Days shall
include the five Business Days specified in the proviso at the end of the first
paragraph of Section 6.11), any real property collateral securing an outstanding
Serviced Mortgage Loan, except as provided in Section 3.09 or 3.20(e), or except
in connection with a permitted defeasance, or except where a Serviced Mortgage
Loan (or, in the case of a Crossed Loan Group, where such entire Crossed Loan
Group) is satisfied, or except in the case of a release of real property
collateral provided the Rating Agencies have been notified in writing and, with
respect to a Serviced Mortgage Loan that is not a Specially Serviced Mortgage
Loan, (A) either (1) such release will not, in the reasonable judgment of the
Special Servicer (exercised in accordance with the Servicing Standard),
materially and adversely affect the net operating income being generated by or
the then-current use of the related Mortgaged Property, or (2) there is a
corresponding principal pay down of such Serviced Mortgage Loan in an amount at
least equal to the appraised value of the collateral to be released (or
substitute real property collateral with an appraised value at least equal to
that of the collateral to be released, is delivered), (B) the release does not
materially adversely affect the adequacy of the remaining Mortgaged Property
(together with any substitute real property collateral), in the reasonable
judgment of the Special Servicer (exercised in accordance with the Servicing
Standard), as security for the Serviced Mortgage Loan and (C) if the real
property collateral to be released has an appraised value in excess of
$1,500,000, such release would not, in and of itself, result in an Adverse
Rating Event (as confirmed in writing to the Trustee by each Rating Agency).
(e) Notwithstanding anything in this Section 3.20, Section 3.08 or
Section 6.11 to the contrary, neither Master Servicer shall be required to seek
the consent of, or provide prior notice to, the Special Servicer, any
Certificateholder or the Controlling Class Representative or obtain any
confirmation of the Certificate ratings from the Rating Agencies in order to
approve the following modifications, waivers or amendments of the Mortgage Loans
(but, in the case of the actions described in clauses (iii) and (iv) of this
sentence, shall notify the Controlling Class Representative thereof): (i)
waivers of non-material covenant defaults (other than financial covenants),
including late financial statements; (ii) waivers of Default Charges, to the
extent allowed under Section 3.02; (iii) releases of unimproved parcels of a
Mortgaged Property; (iv) grants of easements, rights-of-way or other similar
agreements in accordance with Section 3.08(b); (v) approval of routine leasing
activities (including any subordination, stand still and attornment agreements)
that affect less than the lesser of 30,000 square feet or 30% of the net
rentable area of the related Mortgaged Property; (vi) approval of annual budgets
to operate the Mortgaged Property; (vii) temporary waivers of any requirements
in the related Mortgage
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Loan documents with respect to insurance deductible amounts or claims-paying
ability ratings of insurance providers; and (viii) consenting to changing the
property manager with respect to any Mortgage Loan with an unpaid principal
balance of less than $2,000,000; provided that any such modification, waiver or
amendment, or agreeing to any such modification, waiver or amendment, (w) would
not in any way affect a payment term of the Certificates, (x) would not
constitute a "significant modification" of such Mortgage Loan pursuant to
Treasury Regulations Section 1.860G-2(b) and would not otherwise constitute an
Adverse REMIC Event with respect to any REMIC or an Adverse Grantor Trust Event
with respect to any of Grantor Trust Z or Grantor Trust E, (y) would be
consistent with the Servicing Standard, and (z) shall not violate the terms,
provisions or limitations of this Agreement or any other document contemplated
hereby; and provided, further, that Master Servicer No. 1 shall promptly notify
the Special Servicer of any requests not subject to this Section 3.20(e) for
which the Special Servicer is responsible pursuant to this Section 3.20 and
shall deliver to the Special Servicer (which delivery may be by electronic
transmission in a format acceptable to such Master Servicer and the Special
Servicer) a copy of the request, and all information in the possession of such
Master Servicer that the Special Servicer may reasonably request related
thereto.
Notwithstanding anything in this Section 3.20 to the contrary, the
Mesirow Trust Mortgage Loan may be amended within 90 days of the Startup Day of
REMIC I in order to change the date initially designated as its Stated Maturity
Date to the date initially designated as its Anticipated Repayment Date without
the consent of the Special Servicer, the Controlling Class Representative or the
Rating Agencies.
(f) Any payment of interest that is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Serviced Mortgage Loan, notwithstanding that the terms of
such modification, 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 and
this Agreement together with interest thereon.
(g) The Special Servicer or either Master Servicer may, as a
condition to granting any request by a Mortgagor for consent, modification,
waiver or indulgence or any other matter or thing, the granting of which is
within its discretion pursuant to the terms of the instruments evidencing or
securing the related Serviced Mortgage Loan and is permitted by the terms of
this Agreement, 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 would not
itself be a "significant modification" pursuant to Treasury Regulations Section
1.1001-3(e)(2) and (ii) any related costs and expenses incurred by it. In no
event shall the Special Servicer be entitled to payment for such fees or
expenses unless such payment is collected from the related Mortgagor.
(h) The Master Servicers and the Special Servicer shall notify
each other, the Trustee, the Controlling Class Representative and, in the case
of a Loan Combination, the related Non-Trust Noteholder(s), in writing, of any
modification, waiver or amendment of any term of any Serviced Mortgage Loan
(including fees charged the Mortgagor) and the date thereof, and shall deliver
to the Custodian for deposit in the related Mortgage File, (in the case of the
Special Servicer, with a copy to the applicable Master Servicer), an original
counterpart of the agreement relating to such modification, waiver or amendment,
promptly (and in any event within 10 Business Days) following the execution
thereof. Copies of each agreement whereby any such modification, waiver or
amendment of any term of
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any Serviced Mortgage Loan is effected shall be made available for review upon
prior request during normal business hours at the offices of the applicable
Master Servicer pursuant to Section 3.15(a) hereof.
(i) With respect to each Serviced Mortgage Loan that provides for
defeasance, each Master Servicer shall, to the extent permitted by the terms of
such Serviced Mortgage Loan, require the related Mortgagor (i) to provide
replacement collateral consisting of U.S. government securities within the
meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Serviced Mortgage Loan (or
defeased portion thereof) when due (and assuming, in the case of an ARD Loan, to
the extent consistent with the related Mortgage Loan documents, that such
Serviced Mortgage Loan matures on its Anticipated Repayment Date), (ii) to
deliver a certificate from an independent certified public accounting firm
certifying that the replacement collateral is sufficient to make such payments,
(iii) at the option of such Master Servicer, to designate a single purpose
entity (which may be a subsidiary of such Master Servicer established for the
purpose of assuming all defeased Serviced Mortgage Loans) to assume the Serviced
Mortgage Loan (or defeased portion thereof) and own the defeasance collateral,
(iv) to implement such defeasance only after the second anniversary of the
Closing Date, (v) to provide an Opinion of Counsel that the Trustee has a
perfected, first priority security interest in the new collateral (subject to
bankruptcy, insolvency and similar standard exceptions), and (vi) in the case of
a partial defeasance of the Serviced Mortgage Loan, to defease a principal
amount equal to at least 125% (or such lower percentage as the related Mortgagor
is entitled to partially defease a principal amount pursuant to the related
Mortgage Loan documents, it being understood that neither Master Servicer is
authorized to modify such terms) of the allocated loan amount for the Serviced
Mortgaged Property or Properties to be released. If the subject Serviced
Mortgage Loan is not a Significant Mortgage Loan and if either the terms of the
subject Serviced Mortgage Loan permit the applicable Master Servicer to impose
the foregoing requirements or such Master Servicer satisfies such requirements
on its own, then confirmation that such defeasance will not result in an Adverse
Rating Event is not required from Fitch or Xxxxx'x so long as such Master
Servicer delivers to Fitch and Xxxxx'x a certification substantially in the form
attached hereto as Exhibit K. In such case, the applicable Master Servicer shall
provide the Rating Agencies and the Controlling Class Representative with notice
that the foregoing requirements have been met with respect to the subject
Serviced Mortgage Loan. However, if the subject Serviced Mortgage Loan is a
Significant Mortgage Loan or if the terms of the subject Serviced Mortgage Loan
do not permit the applicable Master Servicer to impose such requirements and
such Master Servicer does not satisfy such requirements on its own, then such
Master Servicer shall so notify the Rating Agencies and the Controlling Class
Representative (and, in the case of a Loan Combination, the related Non-Trust
Noteholder(s), as applicable and, so long as such a requirement would not
violate applicable law or the Servicing Standard, obtain a confirmation from
each Rating Agency that such defeasance will not result in an Adverse Rating
Event. Subject to the related Mortgage Loan documents and applicable law, the
applicable Master Servicer shall not execute a defeasance unless (a) the subject
Serviced Mortgage Loan requires the Mortgagor to pay all Rating Agency fees
associated with defeasance (if Rating Agency confirmation of the absence of an
Adverse Rating Event is a specific condition thereto) and all expenses
associated with defeasance or other arrangements for payment of such costs are
made at no expense to the Trust Fund or such Master Servicer (provided, however,
that in no event shall such proposed "other arrangements" result in any
liability to the Trust Fund including any indemnification of such Master
Servicer or the Special Servicer which may result in legal expenses to the Trust
Fund), and (b) the Mortgagor is required to provide or such Master Servicer
receives from Independent counsel at the Mortgagor's expense all Opinions of
Counsel, including Opinions of Counsel that the defeasance will not cause an
Adverse REMIC Event or an Adverse Grantor Trust Event and that the Mortgage Loan
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documents are fully enforceable in accordance with their terms (subject to
bankruptcy, insolvency and similar standard exceptions), and any applicable
rating confirmations. In addition, if in connection with a defeasance of any
Serviced Mortgage Loan the applicable Mortgage Loan Seller bears the costs and
expenses associated with such defeasance in accordance with the terms of the
applicable Mortgage Loan Purchase Agreement, any costs and expenses subsequently
recovered by the applicable Master Servicer from the related Mortgagor in
respect of such defeasance shall be promptly remitted by such Master Servicer to
the applicable Mortgage Loan Seller.
Subsequent to the second anniversary of the Closing Date, to the
extent that the applicable Master Servicer can, in accordance with the related
Mortgage Loan documents, require defeasance of any Serviced Mortgage Loan in
lieu of accepting a prepayment of principal thereunder, including a prepayment
of principal accompanied by a Prepayment Premium or Yield Maintenance Charge,
such Master Servicer shall, to the extent it is consistent with the Servicing
Standard, require such defeasance, provided that the conditions set forth in
clauses (i) through (vi) of the first sentence of the immediately preceding
paragraph have been satisfied. Notwithstanding the foregoing, if at any time, a
court with jurisdiction in the matter shall hold that the related Mortgagor may
obtain a release of the subject Mortgaged Property but is not obligated to
deliver the full amount of the defeasance collateral contemplated by the related
Mortgage Loan documents (or cash sufficient to purchase such defeasance
collateral), then the applicable Master Servicer shall (i) if consistent with
the related Mortgage Loan documents, refuse to allow the defeasance of the
Serviced Mortgage Loan or (ii) if such Master Servicer cannot so refuse and if
the related Mortgagor has delivered cash to purchase defeasance collateral, such
Master Servicer shall either (A) to the extent of the cash delivered by the
Mortgagor, purchase defeasance collateral or (B) apply the cash to a prepayment
of the Serviced Mortgage Loan, in either case, in accordance with the Servicing
Standard.
For purposes of this paragraph, a "single purpose entity" shall mean
a Person, other than an individual, whose organization documents provide as
follows: it is formed solely for the purpose of owning and operating a single
property, assuming one or more Serviced Mortgage Loans (or, in the case of a
Loan Combination, the Loan Combination) and owning and pledging the related
Defeasance Collateral; it may not engage in any business unrelated to such
property and the financing thereof; it does not have and may not own any assets
other than those related to its interest in the property or the financing
thereof and may not incur any indebtedness other than as permitted by the
related Mortgage; it shall maintain its own books, records and accounts, in each
case which are separate and apart from the books, records and accounts of any
other person; it shall hold regular meetings, as appropriate, to conduct its
business, and shall observe all entity-level formalities and record keeping; it
shall conduct business in its own name and use separate stationery, invoices and
checks; it may not guarantee or assume the debts or obligations of any other
person; it shall not commingle its assets or funds with those of any other
person; it shall pay its obligations and expenses from its own funds and
allocate and charge reasonably and fairly any common employees or overhead
shared with affiliates; it shall prepare separate tax returns and financial
statements or, if part of a consolidated group, shall be shown as a separate
member of such group; it shall transact business with affiliates on an arm's
length basis pursuant to written agreements; and it shall hold itself out as
being a legal entity, separate and apart from any other person. The single
purpose entity organizational documents shall provide that any dissolution and
winding up or insolvency filing for such entity requires the unanimous consent
of all partners or members, as applicable, and that such documents may not be
amended with respect to the single purpose entity requirements during the term
of the Serviced Mortgage Loan (or the Loan Combination, if applicable).
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(j) To the extent that either Master Servicer or the Special
Servicer waives any Default Charges in respect of any Serviced Mortgage Loan,
whether pursuant to Section 3.02(a) or this Section 3.20, the respective amounts
of additional servicing compensation payable to such Master Servicer and the
Special Servicer under Section 3.11 out of such Default Charges shall be reduced
proportionately, based upon the respective amounts that had been payable thereto
out of such Default Charges immediately prior to such waiver.
(k) Notwithstanding anything to the contrary in this Agreement,
neither of the Master Servicers 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 with
respect to any Mortgaged Property that secures a Significant Mortgage Loan
unless it has received prior written confirmation (the cost of which shall be
paid by the related Mortgagor, if so allowed by the terms of the related loan
documents, and if not so allowed, paid as an Additional Trust Fund Expense) from
the Rating Agencies that such action will not result in an Adverse Rating Event.
(l) Notwithstanding anything in this Section 3.20 to the contrary:
(i) the limitations, conditions and restrictions set forth
in this Section 3.20 shall not apply to any act or event (including,
without limitation, a release of collateral) in respect of any Mortgage
Loan that is required under the Mortgage Loan documents or that either
occurs automatically or results from the exercise of a unilateral option
by the related Mortgagor within the meaning of Treasury Regulations
Section 1.1001-3(c)(2)(iii), in any event under the terms of such Mortgage
Loan in effect on the Closing Date (or, in the case of a Qualified
Substitute Mortgage Loan, on the related date of substitution); and
(ii) neither the Master Servicers nor the Special Servicer
shall be required to oppose the confirmation of a plan in any bankruptcy
or similar proceeding involving a Mortgagor if, in its reasonable
judgment, such opposition would not ultimately prevent the confirmation of
such plan or one substantially similar.
(m) Neither the Special Servicer nor the Master Servicers shall
have any liability to the Trust, the Certificateholders, any Non-Trust
Noteholder or any other Person if its analysis and determination that the
modification, waiver, amendment or other action contemplated by this Section
3.20 is reasonably likely to produce a greater recovery to Certificateholders
(as a collective whole) on a present value basis than would liquidation should
prove to be wrong or incorrect, so long as the analysis and determination were
made by the Special Servicer and/or the subject Master Servicer consistent with
the Servicing Standard.
SECTION 3.21 Transfer of Servicing Between the Master Servicers and
the Special Servicer; Record Keeping.
(a) Upon the applicable Master Servicer or the Special Servicer
determining that a Servicing Transfer Event has occurred with respect to any
Serviced Mortgage Loan, the applicable Master Servicer shall promptly notify the
Trustee, the Special Servicer and the Controlling Class Representative (and with
respect to a Loan Combination, the related Non-Trust Noteholder(s)), and if such
Master Servicer is not also the Special Servicer, such Master Servicer shall
promptly deliver or cause to be delivered 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)
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relating to the Serviced Mortgage Loan, either in such Master Servicer's or any
of its directors', officers', employees', affiliates' or agents' possession or
control or otherwise available to such 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. The applicable Master Servicer
shall use reasonable efforts to comply with the preceding sentence within five
Business Days of the occurrence of each related Servicing Transfer Event;
provided, however, if the information, documents and records requested by the
Special Servicer are not contained in the Servicing File, such Master Servicer
shall have such period of time as reasonably necessary to make such delivery.
After the occurrence of a Servicing Transfer Event, the Special Servicer shall
collect payments on such Mortgage Loan and make remittances to the applicable
Master Servicer in accordance with Section 3.04.
Upon determining that a Specially Serviced Mortgage Loan has become
a Corrected Mortgage Loan and if the applicable Master Servicer is not also the
Special Servicer, the Special Servicer shall immediately give notice thereof to
such Master Servicer and the Controlling Class Representative (and with respect
to a Loan Combination, the related Non-Trust Noteholder(s)), and shall return
the related Servicing File and all other information, documents and records that
were not part of the Servicing File when it was delivered to the Special
Servicer within five Business Days of the occurrence, to such Master Servicer
(or such other Person as may be directed by such Master Servicer) and upon
giving such notice, and returning such Servicing File, to such Master Servicer
(or such other Person as may be directed by such 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 such Master Servicer to service and
administer such Mortgage Loan shall resume.
(b) In servicing any Specially Serviced Mortgage Loans, the
Special Servicer shall provide to the Custodian originals of documents included
within the definition of "Mortgage File" for inclusion in the related Mortgage
File (with a copy of each such original to the applicable Master Servicer), and
copies of any additional related Mortgage Loan information, including
correspondence with the related Mortgagor.
(c) No later than 60 days after a Serviced Mortgage Loan becomes a
Specially Serviced Mortgage Loan (or, in the case of any Loan Combination, such
other number of days provided in the related Loan Combination Intercreditor
Agreement), the Special Servicer shall deliver to each Rating Agency, the
Trustee, the applicable Master Servicer and the Controlling Class Representative
and, if applicable, the related B-Note Loan Holder, a report (the "Asset Status
Report") with respect to such Mortgage Loan and the related Mortgaged Property.
Such Asset Status Report shall set forth the following information to the extent
reasonably determinable:
(i) summary of the status of such Specially Serviced
Mortgage Loan and negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental
considerations reasonably known to the Special Servicer, consistent with
the Servicing Standard, that are applicable to the exercise of remedies as
aforesaid and to the enforcement of any related guaranties or other
collateral for the related Specially Serviced Mortgage Loan and whether
outside legal counsel has been retained;
(iii) the most current rent roll and income or operating
statement available for the related Mortgaged Property;
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(iv) the Appraised Value of the Mortgaged Property together
with the assumptions used in the calculation thereof;
(v) summary of the Special Servicer's recommended action
with respect to such Specially Serviced Mortgage Loan; and
(vi) such other information as the Special Servicer deems
relevant in light of the Servicing Standard;
provided, however, that if a Loan Combination is involved, the Asset Status
Report shall be in respect of the entire Loan Combination and shall also contain
any additional information required to be contained in such Asset Status Report
pursuant to the related Loan Combination Intercreditor Agreement.
With respect to any Mortgage Loan (excluding any Mortgage Loan that
is part of a Loan Combination in respect of which the related Loan Combination
Intercreditor Agreement provides a different process for the review and approval
of Asset Status Reports), within 10 Business Days of receiving an Asset Status
Report which relates to a recommended action as to which the Controlling Class
Representative is entitled to object under Section 6.11, the Controlling Class
Representative does not disapprove such Asset Status Report in writing, the
Special Servicer shall implement the recommended action as outlined in such
Asset Status Report; provided, however, that the Special Servicer may not take
any action that is contrary to applicable law, the Servicing Standard, or the
terms of the applicable Mortgage Loan documents. If, subject to Section 6.11 or,
if applicable, Section 6.12, the Controlling Class Representative disapproves
such Asset Status Report, the Special Servicer will revise such Asset Status
Report and deliver to the Controlling Class Representative, the Rating Agencies,
the Trustee and the applicable Master Servicer a new Asset Status Report as soon
as practicable, but in no event later than 30 days after such disapproval.
With respect to any Mortgage Loan (excluding any Mortgage Loan that
is part of a Loan Combination in respect of which the related Loan Combination
Intercreditor Agreement provides a different process for the review and approval
of Asset Status Reports), the Special Servicer shall revise such Asset Status
Report as described above in this Section 3.21(c) until the Controlling Class
Representative shall fail to disapprove such revised Asset Status Report in
writing within 10 Business Days of receiving such revised Asset Status Report or
until the Special Servicer makes one of the determinations described below. With
respect to any Mortgage Loan (excluding any Mortgage Loan that is part of a Loan
Combination in respect of which the related Loan Combination Intercreditor
Agreement provides a different process for the review and approval of Asset
Status Reports), the Special Servicer may, from time to time, modify any Asset
Status Report it has previously delivered and implement such modified report,
provided such modified report shall have been prepared, reviewed and not
rejected pursuant to the terms of this Section. Notwithstanding the foregoing,
the Special Servicer (i) may, following the occurrence of an extraordinary event
with respect to the related Mortgaged Property, take any action set forth in
such Asset Status Report (and consistent with the terms hereof) before the
expiration of a 10 Business Day period if the Special Servicer has reasonably
determined that failure to take such action would materially and adversely
affect the interests of the Certificateholders (and, in the case of a Loan
Combination, the related Non-Trust Noteholder(s)) and it has made a reasonable
effort to contact the Controlling Class Representative and (ii) in any case,
shall determine whether such affirmative disapproval is not in the best interest
of all the Certificateholders (and, in the case of a Loan Combination, the
related Non-Trust Noteholder(s)) pursuant to the Servicing Standard.
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In the event the Controlling Class Representative and the Special
Servicer have been unable to agree upon an Asset Status Report with respect to a
Specially Serviced Mortgage Loan (excluding any Mortgage Loan that is part of a
Loan Combination in respect of which the related Loan Combination Intercreditor
Agreement provides a different process for the review and approval of Asset
Status Reports) within 90 days of the Controlling Class Representative's receipt
of the initial Asset Status Report, the Special Servicer shall implement the
actions directed by the Controlling Class Representative unless doing so would
result in any of the consequences set forth in the last paragraph of this
Section 3.21, in which case the Special Servicer shall implement the actions
described in the most recent Asset Status Report submitted to the Controlling
Class Representative by the Special Servicer.
In the case of each Loan Combination, the review and approval of
Asset Status Reports shall be conducted in accordance with the provisions of the
related Loan Combination Intercreditor Agreement if a different process for the
review and approval of such reports is provided for therein.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standard, the terms hereof and the related Asset
Status Report. The Special Servicer shall not take any action inconsistent with
the related Asset Status Report, unless such action would be required in order
to act in accordance with the Servicing Standard.
Notwithstanding the fact that an Asset Status Report has been
prepared and/or approved, the Controlling Class Representative will remain
entitled to advise and object regarding the actions set forth in Section 6.11(a)
and any related Asset Status Report shall not be a substitute for the exercise
of those rights.
No direction of, objection by, or failure to approve by, the
Controlling Class Representative or the majority of the Certificateholders (or,
in the case of the Blackpoint Puerto Rico Retail Portfolio Loan Combination, the
Blackpoint Puerto Rico Retail Portfolio Controlling Party) in connection with
any Asset Status Report shall (w) require or cause the Special Servicer to
violate the terms of a Specially Serviced Mortgage Loan, applicable law or any
provision of this Agreement, including the Special Servicer's obligation to act
in accordance with the Servicing Standard and to maintain the REMIC status of
each REMIC, (x) result in the imposition of a "prohibited transaction" or
"prohibited contribution" tax under the REMIC Provisions or (y) expose the
applicable Master Servicer, the Special Servicer, the Depositor, any of the
Mortgage Loan Sellers, the Trust Fund, the Trustee or any Fiscal Agent or the
officers and the directors of each party to any claim, suit or liability to
which they would not otherwise be subject absent such direction or (z) expand
the scope of the applicable Master Servicer's, the Trustee's, any Fiscal Agent's
or the Special Servicer's responsibilities under this Agreement.
SECTION 3.22 Sub-Servicing Agreements.
(a) Subject to Section 3.22(b) and Section 3.22(f), each Master
Servicer and the Special Servicer may enter into Sub-Servicing Agreements to
provide for the performance by third parties of any or all of their respective
obligations hereunder, provided that, in each case, the Sub-Servicing Agreement:
(i) is consistent with this Agreement in all material respects, requires the
Sub-Servicer to comply with all of the applicable conditions of this Agreement,
includes events of default with respect to the Sub-Servicer substantially
similar to the Events of Default set forth in Section 7.01(a) hereof (other than
Section 7.01(a) (x) and (xi)) to the extent applicable (modified to apply to the
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Sub-Servicer instead of the applicable Master Servicer) and, if the Sub-Servicer
has responsibilities that include receiving or maintaining collections on a
Mortgage Loan or in respect of an escrow or otherwise handling funds in respect
thereof, includes such requirements for the maintenance of errors and omissions
insurance and a fidelity bond as are set forth in Section 3.07(c); (ii) provides
that, if the Sub-Servicer constitutes an Additional Item 1123 Servicer, then it
will deliver to the applicable parties an Annual Statement of Compliance in
respect of the Sub-Servicer as and when contemplated by Section 3.13 and, if the
Sub-Servicer constitutes a Sub-Servicing Function Participant, then it will
deliver, or cause to be delivered, to the applicable parties, an Annual
Assessment Report in respect of the Sub-Servicer and a corresponding Annual
Attestation Report (and the consent of the applicable registered public
accounting firm to file it with the Commission) as and when contemplated by
Section 3.14; (iii) provides that if the applicable Master Servicer or the
Special Servicer, as the case may be, shall for any reason no longer act in such
capacity hereunder (including, without limitation, by reason of an Event of
Default), the Trustee or its designee may thereupon (1) assume all of the rights
and, except to the extent such obligations arose prior to the date of
assumption, obligations of the applicable Master Servicer or the Special
Servicer, as the case may be, under such agreement or (2) (except with respect
only to the Sub-Servicing Agreements in effect as of the date of this Agreement
(the Sub-Servicers that are party to such agreements are indicated on Schedule V
hereto) (such Sub-Servicers, "Designated Sub-Servicers")) may terminate such
sub-servicing agreement without cause and without payment of any penalty or
termination fee (other than the right of reimbursement and indemnification);
(iv) provides that the Trustee, for the benefit of the Certificateholders and,
in the case of a Sub-Servicing Agreement relating to a Loan Combination, the
related Non-Trust Noteholder(s), 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 applicable Master Servicer or the Special
Servicer, as the case may be, thereunder as contemplated by the immediately
preceding clause (ii)) none of the Trustee, any Fiscal Agent, the Trust Fund,
any successor Master Servicer or Special Servicer, as the case may be, any
Non-Trust Noteholder or any Certificateholder shall have any duties under such
agreement or any liabilities arising therefrom; (v) permits any purchaser of a
Trust Mortgage Loan pursuant to this Agreement to terminate such agreement with
respect to such purchased Trust Mortgage Loan at its option and without penalty;
(vi) 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 applicable Master Servicer or the Special Servicer contemplated by
Section 3.08, Section 3.09 and Section 3.20 hereof without the consent of such
Special Servicer or conduct any foreclosure action, accept any deed-in-lieu of
foreclosure, or conduct any sale of a Mortgage Loan or REO Property contemplated
by Section 3.18; and (vii) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund. In
addition, each Sub-Servicing Agreement entered into by either Master Servicer
(including any with an effective date on or before the Closing Date) shall
provide that such agreement shall, with respect to any Mortgage Loan serviced
thereunder, terminate at the time such Mortgage Loan becomes a Specially
Serviced Mortgage Loan (or, alternatively, be subject to the Special Servicer's
rights to service such Mortgage Loan for so long as such Mortgage Loan continues
to be a Specially Serviced Mortgage Loan), and each Sub-Servicing Agreement
entered into by the Special Servicer shall relate only to Specially Serviced
Mortgage Loans and shall terminate with respect to any such Mortgage Loan that
ceases to be a Specially Serviced Mortgage Loan. The Master Servicers and the
Special Servicer shall each be solely liable for all fees owed by it to any
Sub-Servicer with which it has entered into a Sub-Servicing Agreement,
irrespective of whether its compensation under this Agreement is sufficient to
pay those fees. The Master Servicers and the Special Servicer each shall deliver
to the Trustee and each other copies of all Sub-Servicing Agreements, 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 either Master Servicer or the Special
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Servicer include actions taken or to be taken by a Sub-Servicer on behalf of
such Master Servicer or the Special Servicer, as the case may be; and, in
connection therewith, all amounts advanced by any Sub-Servicer to satisfy the
obligations of such Master Servicer hereunder to make P&I Advances or Servicing
Advances shall be deemed to have been advanced by such Master Servicer 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 such Master Servicer. For so long as they are
outstanding, Advances shall accrue interest in accordance with Sections 3.03(d)
and 4.03(d), as applicable, such interest to be allocable between the applicable
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 applicable
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
applicable Master Servicer and the Special Servicer each shall notify the other,
the Trustee, the Depositor and, if a Loan Combination is involved, the related
Non-Trust Noteholder(s), in writing promptly of the appointment by it of any
Sub-Servicer after the date of this Agreement. The applicable Master Servicer
and the Special Servicer shall each notify the Trustee and the Depositor in
writing, promptly upon becoming aware thereof, whether any Sub-Servicer
constitutes an Additional Item 1123 Servicer or a Sub-Servicing Function
Participant. Each of the initial Master Servicers and the initial Special
Servicer hereby represents and warrants that, as of the Closing Date, it has not
retained and does not expect to retain any particular Person or group of
affiliated Persons to act as a Servicer with respect to 10% or more of the
Mortgage Pool (by balance); provided that, neither Master Servicer nor the
Special Servicer makes the preceding representation with respect to any
Designated Sub-Servicers.
(b) Each Sub-Servicer 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. In addition, the
Master Servicer shall use reasonable efforts to ensure that any Sub-Servicer of
a MERS Mortgage Loan is registered with MERS if the Master Servicer is not so
registered.
(c) The Master Servicers and the Special Servicer, for the benefit
of the Trustee and the Certificateholders and, in the case of a Loan
Combination, also for the benefit of the related Non-Trust Noteholder(s), shall
(at no expense to the Trustee, the Certificateholders, the subject Loan
Combination, any related Non-Trust Noteholder or the Trust Fund) monitor the
performance and enforce the obligations of their respective Sub-Servicers under
the related Sub-Servicing Agreements. Such enforcement, including, without
limitation, 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 either Master Servicer or the Special Servicer, as
applicable, in its good faith business judgment, would require were it the owner
of the subject Mortgage Loans. Subject to the terms of the related Sub-Servicing
Agreement, the Master Servicers and the Special Servicer may each have the right
to remove a Sub-Servicer at any time it considers such removal to be in the best
interests of Certificateholders.
(d) In the event of the resignation, removal or other termination
of Xxxxx Fargo or Wachovia or any successor Master Servicer to such Person
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 date of this Agreement: (i) to
assume the rights and obligations of the departing Master Servicer under such
Sub-Servicing Agreement and continue the sub-servicing arrangements thereunder
on the same terms (including without limitation the obligation to pay the same
sub-servicing fee); (ii) to enter into a new Sub-Servicing Agreement with
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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 in which case the existing Sub-Servicing Agreement
shall remain in effect); or (iii) to terminate the Sub-Servicing Agreement if
(but only if) an event of default (within the meaning of such Sub-Servicing
Agreement) has occurred and is continuing (that is not subject to any applicable
grace or cure period under the Sub-Servicing Agreement), in each case without
paying any sub-servicer termination fee.
(e) Notwithstanding any Sub-Servicing Agreement, the Master
Servicers and the Special Servicer shall remain obligated and liable to the
Trustee, the Certificateholders and any Non-Trust Noteholder 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 Mortgage Loans
and/or REO Properties for which it is responsible. The foregoing sentence shall
not operate to impose on either Master Servicer or the Special Servicer a
greater obligation than, as set forth herein, to use reasonable efforts to cause
a Designated Sub-Servicer to deliver any Annual Statement of Compliance, any
Annual Assessment Report or any Annual Attestation Report.
In addition, the Special Servicer may not enter into any
Sub-Servicing Agreement without the approval of the Controlling Class
Representative, and the rights and obligations of each Master Servicer and the
Special Servicer to appoint a Sub-Servicer with respect to a Loan Combination
shall be subject to the related Loan Combination Intercreditor Agreement.
Furthermore, notwithstanding anything herein to the contrary, until the Trustee
files a Form 15 with respect to the Trust in accordance with Section 8.16,
neither the Master Servicers nor the Special Servicer shall retain or engage any
Sub-Servicer or other Servicing Representative that, in any case, would
constitute an Additional Item 1123 Servicer or a Sub-Servicing Function
Participant, without the express written consent of the Depositor.
SECTION 3.23 Representations and Warranties of Each Master Servicer
and the Special Servicer.
(a) Each Master Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, the Depositor, the Special Servicer, any Fiscal Agent and
each Non-Trust Noteholder, as of the Closing Date, that:
(i) In the case of Master Servicer No. 1, it is a national
banking association, duly organized and validly existing under the laws of
the United States, and in the case of Master Servicer No. 2, it is a
national banking association, duly organized and validly existing under
the laws of United States, and in each case, it 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, except
where the failure to so qualify or comply would not have a material
adverse effect on its ability to perform its obligations hereunder.
(ii) The execution and delivery of this Agreement by such
Master Servicer, and the performance and compliance with the terms of this
Agreement by such Master Servicer, will not violate such Master Servicer's
articles of incorporation or by-laws or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or
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result in the breach of, any material agreement or other material
instrument to which it is a party or by which it is bound.
(iii) Such 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 such Master Servicer, enforceable against
such Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, liquidation, receivership, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and the rights of creditors of banks, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) Such 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 such Master Servicer's good
faith reasonable judgment, is likely to affect materially and adversely
either the ability of such Master Servicer to perform its obligations
under this Agreement or the financial condition of such Master Servicer.
(vi) No litigation is pending or, to the best of such
Master Servicer's knowledge, threatened, against such Master Servicer that
would prohibit such Master Servicer from entering into this Agreement or,
in such Master Servicer's good faith reasonable judgment, is likely to
materially and adversely affect either the ability of such Master Servicer
to perform its obligations under this Agreement or the financial condition
of such Master Servicer, calculated on a consolidated basis.
(vii) Each officer, director, or employee of such Master
Servicer with responsibilities concerning the servicing and administration
of Mortgage Loans is covered by errors and omissions insurance and a
fidelity bond in the amounts and with the coverage as, and to the extent,
required by Section 3.07(c).
(viii) Any consent, approval, authorization or order of any
court or governmental agency or body required for the execution, delivery
and performance by such Master Servicer of or compliance by such Master
Servicer with this Agreement or the consummation of the transactions
contemplated by this Agreement has been obtained and is effective, or if
any such consent, approval, authorization or order has not been or cannot
be obtained prior to the actual performance by such Master Servicer of its
obligations under this Agreement, the lack of such item would not have a
materially adverse effect on the ability of such Master Servicer to
perform its obligations under this Agreement.
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(b) The Special Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, the Depositor, the Master Servicers, any Fiscal Agent and
each Non-Trust Noteholder, as of the Closing Date, that:
(i) The Special Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Florida and the Special Servicer is in compliance with the laws of each
State in which any Mortgaged Property is located to the extent necessary
to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the
Special Servicer, and the performance and compliance with the terms of
this Agreement by the Special Servicer, will not violate the Special
Servicer's operating agreement 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 by which it is bound.
(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 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
that would prohibit the Special Servicer from entering into this Agreement
or, in the Special Servicer's good faith reasonable judgment, is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(vii) Each officer, director and employee of the Special
Servicer and each consultant or advisor of the Special Servicer with
responsibilities concerning the servicing and administration of Mortgage
Loans is covered by errors and omissions insurance in the amounts and with
the coverage required by Section 3.07(c).
(viii) Any consent, approval, authorization or order of any
court or governmental agency or body required for the execution, delivery
and performance by the Special Servicer of or compliance by the Special
Servicer with this Agreement or the
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consummation of the transactions contemplated by this Agreement has been
obtained and is effective.
(ix) The Special Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
(c) The representations and warranties of the Master Servicers and
the Special Servicer, set forth in Section 3.23(a) (with respect to the Master
Servicers) and Section 3.23(b) (with respect to the Special Servicer),
respectively, 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 to the other
parties hereto.
SECTION 3.24 Sub-Servicing Agreement Representation and Warranty.
Each Master Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Depositor, any Fiscal Agent and the Special
Servicer, as of the Closing Date, that each Sub-Servicing Agreement satisfies
the requirements for such Sub-Servicing Agreements set forth in Section 3.22(a)
and the second paragraph of Section 3.22(d) in all material respects.
SECTION 3.25 Designation of Controlling Class Representative
(a) The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled in accordance with
this Section 3.25 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 6.11) or to replace an existing
Controlling Class Representative. Upon (i) the receipt by the Trustee of written
requests for the selection of a Controlling Class Representative from the
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class, (ii) the resignation or removal of the Person acting as
Controlling Class Representative or (iii) a determination by the Trustee that
the Controlling Class has changed, the Trustee shall promptly notify the
Depositor and the Holders (and, in the case of Book-Entry Certificates, to the
extent actually known to a Responsible Officer of the Trustee or identified
thereto by the Depository or the Depository Participants, the Certificate
Owners) of the Controlling Class that they may select a Controlling Class
Representative. Such notice shall set forth the process for selecting a
Controlling Class Representative, which shall be the designation of the
Controlling Class Representative by the Holders (or Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class by a writing delivered to the Trustee. No appointment of any
Person as a Controlling Class Representative shall be effective until such
Person provides the Trustee, the Master Servicers and the Special Servicer with
written confirmation of its acceptance of such appointment, an address and
facsimile number for the delivery of notices and other correspondence and a list
of officers or employees of such Person with whom the parties to this Agreement
may deal (including their names, titles, work addresses and facsimile numbers);
provided that the initial Controlling Class Representative shall be American
Capital Strategies, Ltd. and no further notice shall be required for such
appointment to be effective.
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(b) Within 10 Business Days (or as soon thereafter as practicable
if the Controlling Class consists of Book-Entry Certificates) of receiving a
request therefor from either Master Servicer or the Special Servicer, the
Trustee shall deliver to the requesting party the identity of the Controlling
Class Representative and a list of each Holder (or, in the case of Book-Entry
Certificates, to the extent actually known to a Responsible Officer of the
Trustee or identified thereto by the Depository or the Depository Participants,
each Certificate Owner) of the Controlling Class, including, in each case, names
and addresses. With respect to such information, the Trustee shall be entitled
to conclusively rely on information provided to it by the Depository, and the
Master Servicers and the Special Servicer shall be entitled to conclusively rely
on such information provided by the Trustee with respect to any obligation or
right hereunder that the Master Servicers and the Special Servicer may have to
deliver information or otherwise communicate with the Controlling Class
Representative or any of the Holders (or, if applicable, Certificate Owners) of
the Controlling Class. In addition to the foregoing, within two (2) Business
Days of the selection, resignation or removal of a Controlling Class
Representative, the Trustee shall notify the other parties to this Agreement of
such event. The expenses incurred by the Trustee in connection with obtaining
information from the Depository or Depository Participants with respect to any
Book-Entry Certificate shall be expenses of the Trust Fund payable out of the
Collection Accounts pursuant to Section 3.05(a).
(c) The Controlling Class Representative may at any time resign as
such by giving written notice to the Trustee and to each Holder (or, in the case
of Book-Entry Certificates, Certificate Owner) of the Controlling Class. The
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class shall be entitled to remove any existing Controlling Class
Representative by giving written notice to the Trustee and to such existing
Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected
pursuant to this Section 3.25 each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Trustee and each other
Holder (or, in the case of Book-Entry Certificates, Certificate Owner) of the
Controlling Class, in writing, of the resignation or removal of such Controlling
Class Representative.
(e) Any and all expenses of the Controlling Class Representative
shall be borne by the Holders (or, if applicable, the Certificate Owners) of
Certificates of the Controlling Class, pro rata among such Holders (or
Certificate Owners) according to their respective Percentage Interests in such
Class, and not by the Trust. Notwithstanding the foregoing, if a claim is made
against the Controlling Class Representative by a Mortgagor with respect to this
Agreement or any particular Mortgage Loan, the Controlling Class Representative
shall immediately notify the Trustee, the Master Servicers and the Special
Servicer, whereupon (if the Special Servicer or the Trust Fund are also named
parties to the same action and, in the sole judgment of the Special Servicer,
(i) the Controlling Class Representative had acted in good faith, without
negligence or willful misfeasance with regard to the particular matter, and (ii)
there is no potential for the Special Servicer or the Trust Fund to be an
adverse party in such action as regards the Controlling Class Representative)
the Special Servicer on behalf of the Trust Fund shall, subject to Section 6.03,
assume the defense of any such claim against the Controlling Class
Representative. This provision shall survive the termination of this Agreement
and the termination or resignation of the Controlling Class Representative.
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SECTION 3.26 Application of Default Charges.
(a) Any and all Default Charges that are actually received with
respect to any Mortgage Loan or REO Loan (but, in the case of the Xxxxx Xxxxxx
Village and Stuyvesant Town Trust Mortgage Loan or any successor Trust REO Loan
with respect thereto, only to the extent of the Default Charges, if any,
remitted to the Trust in accordance with the WBCMT Series 2007-C30 Pooling and
Servicing Agreement and/or the Xxxxx Xxxxxx Village and Stuyvesant Town
Intercreditor 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 any Fiscal Agent, the Trustee, the applicable
Master Servicer or the Special Servicer, in that order, (except that payments to
the Special Servicer and the applicable Master Servicer shall be made
concurrently on a pro rata and pari passu basis), any interest due and owing to
such party on outstanding Advances made thereby with respect to such Mortgage
Loan or REO Loan, as the case may be;
second, to reimburse the Trust for any interest on Advances paid to
any Fiscal Agent, the Trustee, the applicable Master Servicer or the Special
Servicer since the Closing Date with respect to such Mortgage Loan or REO Loan,
as the case may be, which interest was paid from a source other than Default
Charges collected on such Mortgage Loan or REO Loan, as the case may be;
third, to pay any outstanding expense incurred by the Special
Servicer in connection with inspecting the related Mortgaged Property or REO
Property, as applicable, pursuant to Section 3.12;
fourth, to reimburse the Trust for any expenses reimbursed to the
Special Servicer since the Closing Date in connection with inspecting the
related Mortgaged Property or REO Property, as applicable, pursuant to Section
3.12, which expenses were previously paid from a source other than Default
Charges collected on such Mortgage Loan or REO Loan, as the case may be;
fifth, to pay the appropriate party for any other outstanding
expense incurred thereby with respect to such Mortgage Loan or REO Loan, as the
case may be, which expense, if not paid out of Default Charges collected on such
Mortgage Loan or REO Loan, as the case may be, will likely become an Additional
Trust Fund Expense;
sixth, to reimburse the Trust for any other Additional Trust Fund
Expense paid to the appropriate party since the Closing Date with respect to
such Mortgage Loan or REO Loan, as the case may be, which Additional Trust Fund
Expense was paid from a source other than Default Charges collected on such
Mortgage Loan or REO Loan, as the case may be; and
seventh, to pay (A) if such Mortgage Loan is a Non-Trust Loan, any
remaining portion of such Default Charges that is comprised of late payment
charges and (B) if such Mortgage Loan is a Trust Mortgage Loan or such REO Loan
is a Trust REO Loan, as the case may be, any remaining portion of such Default
Charges, in each case as additional master servicing compensation to the
applicable Master Servicer, if such Default Charges (or portion thereof
comprised of late payment charges) were collected when the loan was a
non-Specially Serviced Mortgage Loan, and otherwise to pay (X) if such Mortgage
Loan is a Non-Trust Loan, any remaining portion of such Default Charges that is
comprised of late payment charges and (Y) if such Mortgage Loan is a Trust
Mortgage Loan or such REO Loan is a Trust REO Loan, as the case may be, any
remaining portion of such Default Charges, in each case as additional special
servicing compensation to the Special Servicer.
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(b) Default Charges applied to reimburse the Trust pursuant to any
of clause second, clause fourth or clause sixth of Section 3.26(a) are intended
to be available for distribution on the Certificates pursuant to Section 4.01(a)
and Section 4.01(b), subject to application pursuant to Section 3.05(a) or
3.05(b) for any items payable out of general collections on the Mortgage Pool,
and if such Default Charges so applied relate to a Loan Combination, they shall
be transferred from the related Loan Combination Custodial Account to the
applicable Collection Account. Default Charges applied to reimburse the Trust
pursuant to any of clause second, clause fourth or clause sixth of Section
3.26(a) shall be deemed to offset payments of interest on Advances, costs of
property inspections or other Additional Trust Fund Expenses (depending on which
clause is applicable) in the chronological order in which they were made or
incurred with respect to the subject Mortgage Loan or REO Loan (whereupon such
interest on Advances, costs of property inspections or other Additional Trust
Fund Expenses (depending on which clause is applicable) shall thereafter be
deemed to have been paid out of Default Charges).
(c) The portion of any Default Charges with respect to a Non-Trust
Loan that is not applied as provided for above in this Section 3.26, shall be
applied pursuant to the related Loan Combination Intercreditor Agreement.
SECTION 3.27 Controlling Class Representative Contact with
Servicer.
No less often than on a monthly basis, each of the Master Servicers
and the Special Servicer shall, without charge, make a knowledgeable Servicing
Officer via telephone available to verbally 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 the
Special Servicer, as the case may be, is responsible, at a time mutually agreed
upon during normal business hours. Any such telephone contact shall be
conditioned on the Controlling Class Representative's delivery to the applicable
Master Servicer of an agreement substantially in the form of Exhibit I-1 (or
such other form as may be reasonably acceptable to such Master Servicer or the
Special Servicer, as applicable).
SECTION 3.28 Certain Matters Regarding the Loan Combinations.
(a) The parties hereto, the Controlling Class Representative by
its acceptance of its rights and obligations set forth herein, and each
Certificateholder by its acceptance of a Certificate, hereby acknowledge the
right of the Non-Trust Noteholders, upon the occurrence of certain specified
events under the related Loan Combination Intercreditor Agreement, to purchase
the related Trust Mortgage Loan that is a part of the related Loan Combination
from the Trust, subject to the terms, conditions and limitations set forth in,
and at the price specified in, the related Loan Combination Intercreditor
Agreement, and the parties hereto agree to take such actions contemplated by the
related Loan Combination Intercreditor Agreement as may be expressly
contemplated thereby, or otherwise reasonably necessary, to allow a Non-Trust
Noteholder to purchase the related Trust Mortgage Loan from the Trust.
(b) In connection with any purchase of a Trust Mortgage Loan that
is part of a Loan Combination by a related Non-Trust Noteholder pursuant to the
related Loan Combination Intercreditor Agreement, the applicable Master Servicer
or the Special Servicer shall (i) if it receives the applicable purchase price
provided for in the related Loan Combination Intercreditor Agreement and/or any
other amounts payable in connection with the purchase, deposit same, or remit
same to such Master Servicer for deposit, as applicable, into the applicable
Collection Account or the related Loan Combination
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Custodial Account, as applicable, and so notify the Trustee; and (ii) deliver
the related Servicing File to the Person effecting the purchase or its designee.
In addition, upon its receipt of a Request for Release from the applicable
Master Servicer, the Trustee shall: (i) deliver the related Mortgage File to the
Person effecting the purchase or its designee; and (ii) execute and deliver such
endorsements, assignments and instruments of transfer as shall be provided to it
and are reasonably necessary to vest ownership of the subject Trust Mortgage
Loan in the appropriate purchaser, without recourse, representations or
warranties.
(c) The parties hereto acknowledge that each Non-Trust Noteholder
shall not (1) owe any fiduciary duty to the Trustee, the applicable Master
Servicer, the Special Servicer or any Certificateholder or (2) have any
liability to the Trustee or the Certificateholders for any action taken, or for
refraining from the taking of any action pursuant to the related Loan
Combination Intercreditor Agreement or the giving of any consent or for errors
in judgment. Each Certificateholder, by its acceptance of a Certificate, shall
be deemed to have confirmed its understanding that each Non-Trust Noteholder (i)
may take or refrain from taking actions that favor its interests or the
interests of its affiliates over the Certificateholders, (ii) may have special
relationships and interests that conflict with the interest of the
Certificateholders and shall be deemed to have agreed to take no action against
a Non-Trust Noteholder or any of its officers, directors, employees, principals
or agents as a result of such special relationships or conflicts, and (iii)
shall not be liable by reason of its having acted or refrained from acting
solely in its interest or in the interest of its affiliates.
(d) To the extent not otherwise expressly provided for herein, the
Special Servicer shall provide to each B-Note Loan Holder or its designee, with
respect to the related B-Note Non-Trust Loan or any related Loan Combination REO
Property, subject to the same conditions and restrictions on the distribution of
information as apply with respect to reports, documents and other information
with respect to the Trust Mortgage Loans, the same reports, documents and other
information that the Special Servicer provides to the Trustee with respect to
the related A-Note Trust Mortgage Loan or the related Loan Combination REO
Property, and on a concurrent basis. The Trustee and the Special Servicer shall
each provide or make available to each B-Note Loan Holder or its designee, with
respect to the related B-Note Non-Trust Loan or any related Loan Combination REO
Property, the same reports, documents and other information that the Trustee,
the applicable Master Servicer or the Special Servicer, as the case may be,
provides to the Controlling Class Representative, in so far as they relate to
the related A-Note Trust Mortgage Loan or the related Loan Combination REO
Property, and on a concurrent basis. In addition, the Trustee, the applicable
Master Servicer or the Special Servicer, as the case may be, shall, upon receipt
of a written request, provide to a B-Note Loan Holder or its designee (at such
holder's cost) all other documents and information that such holder or its
designee may reasonably request with respect to the related B-Note Non-Trust
Loan or any Loan Combination REO Property, to the extent such documents and
information are in its possession. Notwithstanding the foregoing, none of the
Trustee or the Special Servicer shall be required to deliver to any B-Note Loan
Holder or its designee any particular report, document or other information
pursuant to this Section 3.28(e) if and to the extent that (but only if and to
the extent that) such particular report, document or other information is
otherwise delivered to such B-Note Loan Holder within the same time period
contemplated by this Section 3.28(e) pursuant to any other section of this
Agreement.
(e) With respect to the Xxxxx Xxxxxx Village and Stuyvesant Town
Trust Mortgage Loan, to the extent the Trust, as "A-6 Lender" under the Xxxxx
Xxxxxx Village and Stuyvesant Town Intercreditor Agreement, has the right to
exercise a purchase option in accordance with Section 3(b) of the Xxxxx Xxxxxx
Village and Stuyvesant Town Intercreditor Agreement, the Controlling Class
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Representative shall have the sole and absolute right to exercise such rights of
the "A-6 Lender" under the Xxxxx Xxxxxx Village and Stuyvesant Town
Intercreditor Agreement.
SECTION 3.29 Control of Trust-Related Litigation.
(a) The following provisions shall apply to each Mortgage Loan or
Loan Combination that is serviced by Master Servicer No. 1:
(i) The Special Servicer, consistent with the Servicing
Standard, shall: (1) direct, manage, prosecute and/or defend any action
brought by a Mortgagor against the Trust and/or the Special Servicer; and
(2) represent the interests of the Trust in any litigation relating to the
rights and obligations of the Mortgagor or the lender, or the enforcement
of the obligations of a Mortgagor, under the subject Mortgage Loan
documents (any such litigation, "Trust-Related Litigation").
(ii) To the extent Master Servicer No. 1 is named in
Trust-Related Litigation, and the Trust or Special Servicer is not named,
in order to effectuate the role of the Special Servicer as contemplated by
paragraph (i) above, Master Servicer No. 1 shall: (1) notify the Special
Servicer of such Trust-Related Litigation within ten (10) days of Master
Servicer No. 1 receiving notice of such Trust-Related Litigation; (2)
provide monthly status reports to the Special Servicer regarding such
Trust-Related Litigation; (3) seek to have the Trust replace Master
Servicer No. 1 as the appropriate party to the lawsuit; and (4) so long as
Master Servicer No. 1 remains a party to the lawsuit, consult with and act
at the direction of the Special Servicer with respect to decisions and
resolutions related to the interests of the Trust in such Trust-Related
Litigation, including but not limited to the selection of counsel,
provided that, if there are claims against Master Servicer No. 1 and
Master Servicer No. 1 has not determined that separate counsel is required
for such claims, such counsel shall be reasonably acceptable to Master
Servicer No. 1.
(iii) Notwithstanding the right of the Special Servicer to
represent the interests of the Trust in Trust-Related Litigation, but
subject to the rights of the Special Servicer to direct Master Servicer
No. 1's actions in paragraph (iv) below, Master Servicer No. 1 shall
retain the right to make determinations relating to claims against Master
Servicer No. 1, including but not limited to the right to engage separate
counsel in Master Servicer No. 1's reasonable discretion, the cost of
which shall be subject to indemnification pursuant to Section 6.03.
Further, nothing in this section shall require Master Servicer No. 1 to
take or fail to take any action which, in Master Servicer No. 1's good
faith and reasonable judgment, may (1) result in an Adverse REMIC Event or
Adverse Grantor Trust Event or (2) subject Master Servicer No. 1 to
liability or materially expand the scope of Master Servicer No. 1's
obligations under this Agreement.
(iv) Notwithstanding Master Servicer No. 1's right to make
determinations relating to claims against itself, the Special Servicer
shall have the right at any time to (1) direct (subject to the consent of
the Controlling Class Representative) Master Servicer No. 1 to settle any
claims brought against the Trust, including claims asserted against Master
Servicer No. 1 (whether or not the Trust or the Special Servicer is named
in any such claims or Trust-Related Litigation) and (2) otherwise
reasonably direct the actions of Master Servicer No. 1 relating to claims
against itself (whether or not the Trust or the Special Servicer is named
in any such claims or Trust-Related Litigation), provided in either case
that (A) such settlement or other
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direction does not require any admission, or is not likely to result in a
finding, of liability or wrongdoing on the part of Master Servicer No. 1,
(B) the cost of such settlement or any resulting judgment is and shall be
paid by the Trust, (C) Master Servicer No. 1 is and shall be indemnified
pursuant to Section 6.03 for all costs and expenses incurred by it in
defending and settling the Trust-Related Litigation and for any judgment,
(D) any such action taken by Master Servicer No. 1 at the direction of the
Special Servicer shall be deemed (as to Master Servicer No. 1) to be in
compliance with the Servicing Standard and (E) the Special Servicer
provides Master Servicer No. 1 with assurance reasonably satisfactory to
Master Servicer No. 1 as to the items on sub-clauses (A), (B) and (C).
Notwithstanding the foregoing in this paragraph (iv), no consent of the
Controlling Class Representative shall be required if adherence by Master
Servicer No. 1 or the Special Servicer to such consent would not be in
accordance with the Servicing Standard.
(v) If both Master Servicer No. 1 and either the Special
Servicer or the Trust are named in litigation, Master Servicer No. 1 and
the Special Servicer shall cooperate with each other to afford Master
Servicer No. 1 and the Special Servicer the rights afforded to such party
in this Section 3.29(a).
(vi) Notwithstanding the foregoing, the Controlling Class
Representative may direct (such direction to be in writing; and which
written direction may apply to more than one Trust-Related Litigation, or
Trust-Related Litigation in general, on Performing Mortgage Loans) that
Master Servicer No. 1 control, and Master Servicer No. 1 agrees that upon
receipt of such written direction it shall control, the Trust-Related
Litigation on behalf of the Trust with respect to the Performing Mortgage
Loans specified in such notice and, in such event, this Section 3.29(a)
shall not apply. Furthermore, this Section 3.29(a) shall not apply in the
event the Special Servicer authorizes Master Servicer No. 1 and Master
Servicer No. 1 agrees (such authority and agreement to be in writing), to
make certain decisions or control certain Trust-Related Litigation on
behalf of the Trust with respect to Specially Serviced Mortgage Loans;
provided, that any authorization by the Special Servicer for Master
Servicer No. 1 to control any Trust-Related Litigation shall be subject to
the consent of the Controlling Class Representative. If Master Servicer
No. 1 controls certain Trust-Related Litigation on behalf of the Trust
with respect to Performing Mortgage Loans in accordance with this
paragraph (vi), the Special Servicer shall retain the right to make
determinations relating to claims against the Special Servicer, including
but not limited to the right to engage separate counsel in the Special
Servicer's reasonable discretion, the cost of which shall be subject to
indemnification pursuant to Section 6.03. Nothing in this Section 3.29(a)
shall be intended to limit the rights of the Controlling Class
Representative under any other section of this Agreement.
(b) The following provisions shall apply to each Mortgage Loan or
Loan Combination that is Serviced by Master Servicer No. 2:
(i) The Special Servicer shall: (1) direct, manage,
prosecute and/or defend any action brought by a Mortgagor against the
Trust and/or the Special Servicer and (2) represent the interests of the
Trust in any Trust-Related Litigation.
(ii) To the extent Master Servicer No. 2 is named in
Trust-Related Litigation, and the Trust or the Special Servicer is not
named, in order to effectuate the role of the Special Servicer as
contemplated by the preceding paragraph, Master Servicer No. 2 shall (1)
notify the Special Servicer of such Trust-Related Litigation within ten
(10) days of Master
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Servicer No. 2 receiving service of such Trust-Related Litigation; (2)
provide monthly status reports to the Special Servicer regarding such
Trust-Related Litigation; (3) seek to have the Trust replace Master
Servicer No. 2 as the appropriate party to the lawsuit; and (4) so long as
Master Servicer No. 2 remains a party to the lawsuit, consult with and act
at the direction of the Special Servicer with respect to decisions and
resolutions related to the interests of the Trust in such Trust-Related
Litigation, including but not limited to the selection of counsel,
provided, however, if there are claims against Master Servicer No. 2 and
Master Servicer No. 2 has not determined that separate counsel is required
for such claims, such counsel shall be reasonably acceptable to Master
Servicer No. 2.
(iii) Notwithstanding the rights of the Special Servicer
otherwise set forth above and below in this subsection (b), (1) the
Special Servicer shall provide Master Servicer No. 2 with copies of any
notices, process and/or pleadings submitted and/or filed in any such
action, suit, litigation or proceeding; (2) Master Servicer No. 2 may
retain its own counsel, whose reasonable costs shall be paid by the Trust
to the extent provided under Section 6.03, and appear in any action, suit,
litigation or proceeding on its own behalf in order to represent, protect
and defend its interests; and (3) Master Servicer No. 2 shall have the
right to approve or disapprove of any judgment, settlement, final order or
decree that may impose liability on Master Servicer No. 2 or otherwise
materially and adversely affect Master Servicer No. 2, including, but not
limited to, damage to Master Servicer No. 2's reputation as a master
servicer. Further, nothing in this section shall require Master Servicer
No. 2 to take or fail to take any action which, in its good faith and
reasonable judgment, may (1) result in an Adverse REMIC Event or Adverse
Grantor Trust Event or (2) subject Master Servicer No. 2 to material
liability or materially expand the scope of Master Servicer No. 2's
obligations under this Agreement.
(iv) Subject to the rights of Master Servicer No. 2 set
forth above and below in this subsection (b), the Special Servicer shall
(1) have the right at any time to direct (subject to the consent of the
Controlling Class Representative) Master Servicer No. 2 to settle any
Trust-Related Litigation brought against the Trust, including claims
asserted against Master Servicer No. 2 (whether or not the Trust or the
Special Servicer is named in any such Trust-Related Litigation) and (2)
otherwise reasonably direct the actions of Master Servicer No. 2 relating
to Trust-Related Litigation (whether or not the Trust or the Special
Servicer is named in any such claims or Trust-Related Litigation),
provided in either case that (A) such settlement or other direction does
not require any admission of liability or wrongdoing on the part of Master
Servicer No. 2 or otherwise materially and adversely affect Master
Servicer No. 2, including, but not limited to, damage to Master Servicer
No. 2's reputation as a master servicer, (B) the cost of such settlement
on any resulting judgment is and shall be paid by the Trust, and Master
Servicer No. 2 is indemnified pursuant to Section 6.03 hereof for all
costs and expenses incurred by it in defending and settling the
Trust-Related Litigation (C) any such action taken by Master Servicer No.
2 at the direction of the Special Servicer be deemed (as to Master
Servicer No. 2) to be in compliance with the Servicing Standard and (D)
the Special Servicer provides Master Servicer No. 2 with assurance
reasonably satisfactory to Master Servicer No. 2 as to the items in
sub-clauses (A), (B) and (C).
(v) In the event both Master Servicer No. 2 and the
Special Servicer or Trust are named in litigation, Master Servicer No. 2
and the Special Servicer shall cooperate with each other to afford Master
Servicer No. 2 and the Special Servicer the rights afforded to such party
in this Section 3.29(b).
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(vi) Notwithstanding the foregoing, the Controlling Class
Representative may direct (such direction to be in writing; and which
written direction may apply to more than one Trust-Related Litigation, or
to Trust-Related Litigation in general, on Performing Mortgage Loans it is
responsible for servicing hereunder) that Master Servicer No. 2 control,
and Master Servicer No. 2 agrees that upon receipt of such written
direction it shall control, the related Trust-Related Litigation on behalf
of the Trust with respect to the Performing Mortgage Loans specified in
such notice and, in such event, this Section 3.29(b) shall not apply;
provided, however, that (1) if a Trust-Related Litigation had commenced
prior the issuance of such direction, then such direction shall not be
effective for a period of ten (10) Business Days, during which ten
(10)-Business Day period the Special Servicer shall cooperate reasonably
following such notice to transfer the control of such Trust-Related
Litigation to Master Servicer No. 2, and (2) insofar as such a direction
would affect a particular Mortgage Loan it is responsible for hereunder,
such authority of the Controlling Class Representative shall be limited to
Trust-Related Litigation that is immaterial (within the meaning of the
next succeeding sentence) in the context of a particular Mortgage Loan.
For purposes of the preceding sentence, a Trust-Related Litigation shall
be deemed to be immaterial in the context of a particular Mortgage Loan if
it (A) does not involve a cause of action against the lender (or a party
to this Agreement or a subservicer, agent or representative of a party to
this Agreement) and (B) does not involve a claim or alleged claim against
the lender (or a party to this Agreement on behalf of the lender) and
would not (whatever a final judgment might be) affect whether such
Mortgage Loan becomes a Specially Serviced Mortgage Loan, such as (but not
limited to) condemnation proceedings. Furthermore, this Section 3.29(b)
shall not apply in the event the Special Servicer authorizes Master
Servicer No. 2 and Master Servicer No. 2 agrees (such authority and
agreement to be in writing), to make certain decisions or control certain
Trust-Related Litigation on behalf of the Trust with respect to Specially
Serviced Mortgage Loans; provided, that any authorization by the Special
Servicer for Master Servicer No. 2 to control any Trust-Related Litigation
shall be subject to the consent of the Controlling Class Representative.
If Master Servicer No. 2 controls certain Trust-Related Litigation on
behalf of the Trust with respect to Performing Mortgage Loans it is
responsible for servicing hereunder in accordance with this paragraph
(vi), the Special Servicer shall retain the right to make determinations
relating to claims against the Special Servicer, including but not limited
to the right to engage separate counsel in the Special Servicer's
reasonable discretion, the cost of which shall be subject to
indemnification pursuant to Section 6.03. Nothing in this Section 3.29(a)
shall be intended to limit the rights of the Controlling Class
Representative under any other section of this Agreement.
(c) Notwithstanding the foregoing, (i) in the event that any
action, suit, litigation or proceeding names the Trustee in its individual
capacity, or in the event that any judgment is rendered against the Trustee in
its individual capacity, the Trustee, upon prior written notice to the
applicable Master Servicer or the Special Servicer, as applicable, may retain
counsel and appear in any such proceeding on its own behalf in order to protect
and represent its interests, provided that the applicable Master Servicer or the
Special Servicer, as applicable, shall maintain the right to manage and direct
any such action, suit, litigation or proceeding, (ii) in the event of any
action, suit, litigation or proceeding, other than an action, suit, litigation
or proceeding relating to the enforcement of the obligations of a Mortgagor
under the related Mortgage Loan documents or otherwise relating to a Mortgage
Loan or Mortgaged Property, neither Master Servicer nor the Special Servicer
shall, without the prior written consent of the Trustee, (A) initiate any
action, suit, litigation or proceeding in the name of the Trustee, whether in
such capacity or individually, (B) engage counsel to represent the Trustee, or
(C) prepare, execute or deliver any government filings, forms, permits,
registrations or other documents or take any other similar action with the
intent to cause, and that actually causes, the Trustee in its individual
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capacity to be registered to do business in any state (provided that neither
Master Servicer nor the Special Servicer shall be responsible for any delay due
to the failure of the Trustee to grant such consent), and (iii) in the event
that any court finds that the Trustee is a necessary party in respect of any
action, suit, litigation or proceeding relating to or arising from this
Agreement or any Mortgage Loan, the Trustee shall have the right to retain
counsel and appear in any such proceeding on its own behalf in order to protect
and represent its interest; provided that the applicable Master Servicer or the
Special Servicer, as applicable, shall maintain the right to manage and direct
any such action, suit, litigation or proceeding.
SECTION 3.30 The Swap Agreements.
(a) The Grantor Trust Trustee is hereby authorized and directed,
not in its individual capacity but solely as Grantor Trust Trustee and on
behalf, and for the benefit, of ML-CFC 2007-6 Grantor Trust FL , to execute and
deliver each Swap Agreement on the Closing Date and to perform obligations as
described herein with respect to each Swap Agreement. Furthermore, the Grantor
Trust Trustee is hereby authorized and directed to, and shall, perform all
obligations on the part of the Grantor Trust Trustee and/or ML-CFC 2007-6
Grantor Trust FL under each Swap Agreement; provided that (i) payments to be
made to the Class A-2FL Swap Counterparty pursuant to Section 3.30(d) shall be
made out of amounts allocable as interest (or, in the case of Class A-2FL
Additional Fixed Swap Payments, Yield Maintenance Charges and Prepayment
Premiums) distributable on or with respect to the Class A-2FL REMIC II Regular
Interest, (ii) payments to be made to the Class AJ-FL Swap Counterparty pursuant
to Section 3.30(d) shall be made out of amounts allocable as interest (or, in
the case of Class AJ-FL Additional Fixed Swap Payments, Yield Maintenance
Charges and Prepayment Premiums) distributable on or with respect to the Class
AJ-FL REMIC II Regular Interest and (iii) any termination payment owing to a
Swap Counterparty shall be payable solely out of any upfront payment made by a
replacement swap counterparty with respect thereto in connection with entering
into a replacement interest rate swap agreement with the Trust, (net of any
costs or expenses incurred by ML-CFC 2007-6 Grantor Trust FL in connection
therewith) and the Grantor Trust Trustee shall not be responsible for using its
own funds in making such payments. Upon the Grantor Trust Trustee entering into
the Swap Agreements on behalf of the Trust, ML-CFC 2007-6 Grantor Trust FL shall
be bound by the terms and conditions of the Swap Agreements.
(b) Notwithstanding anything to the contrary in this Agreement,
neither of the Class A-2FL Depositor's Retained Amount nor the Class AJ-FL
Depositor's Retained Amount shall be a part of ML-CFC 2007-6 Grantor Trust FL or
the Trust Fund, but instead shall belong to the Depositor; and the Grantor Trust
Trustee, on behalf of ML-CFC 2007-6 Grantor Trust FL , hereby assigns to the
Depositor ML-CFC 2007-6 Grantor Trust FL's entire right, title and interest in
and to the Class A-2FL Depositor's Retained Amount and the Class AJ-FL
Depositor's Retained Amount.
(c) The related Swap Counterparty shall act as "calculation agent"
under each Swap Agreement and shall timely perform all duties associated
therewith.
In addition, by 5:00 p.m. (New York time) on the Business Day prior
to (or, in the case of item (i) below, no later than the Determination Date
relating to) each Distribution Date, based on (in the case of items (ii) and
(iii) below) the CMSA Loan Periodic Update File for the related Collection
Period provided by the Master Servicer pursuant to Section 3.12, the Trustee
shall notify the Class A-2FL Swap Counterparty in writing of (i) the Class
Principal Balance of the Class A-2FL Certificates immediately prior to the
related Distribution Date, (ii) the amount of any Prepayment Premiums and Yield
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Maintenance Charges distributable with respect to the Class A-2FL REMIC II
Regular Interest for the related Distribution Date, and (iii) the amount of
interest distributable with respect to the Class A-2FL REMIC II Regular Interest
pursuant to Section 4.01(a) for such Distribution Date.
In addition, by 5:00 p.m. (New York time) on the Business Day prior
to (or, in the case of item (i) below, no later than the Determination Date
relating to) each Distribution Date, based on (in the case of items (ii) and
(iii) below) the CMSA Loan Periodic Update File for the related Collection
Period provided by the Master Servicer pursuant to Section 3.12, the Trustee
shall notify the Class AJ-FL Swap Counterparty in writing of (i) the Class
Principal Balance of the Class AJ-FL Certificates immediately prior to the
related Distribution Date, (ii) the amount of any Prepayment Premiums and Yield
Maintenance Charges distributable with respect to the Class AJ-FL REMIC II
Regular Interest for the related Distribution Date, and (iii) the amount of
interest distributable with respect to the Class AJ-FL REMIC II Regular Interest
pursuant to Section 4.01(a) for such Distribution Date.
(d) On each Distribution Date, following all deposits to the
Floating Rate Account on or prior to that date pursuant to Section 3.04(c), the
Trustee shall (i) remit the Class A-2FL Net Fixed Swap Payment, the Class A-2FL
Additional Fixed Swap Payment and the Class A-2FL Fixed Payer Shortfall
Reimbursement Payment, in each case if any, to the Class A-2FL Swap Counterparty
out of amounts on deposit in the Floating Rate Account that represent
distributions of Distributable Certificate Interest (or, in the case of the
Class A-2FL Additional Fixed Swap Payments, Yield Maintenance Charges and
Prepayment Premiums) in respect of the Class A-2FL REMIC II Regular Interest;
and (ii) remit the Class AJ-FL Net Fixed Swap Payment, the Class AJ-FL
Additional Fixed Swap Payment and the Class AJ-FL Fixed Payer Shortfall
Reimbursement Payment, in each case if any, to the Class AJ-FL Swap Counterparty
out of amounts on deposit in the Floating Rate Account that represent
distributions of Distributable Certificate Interest (or, in the case of the
Class AJ-FL Additional Fixed Swap Payments, Yield Maintenance Charges and
Prepayment Premiums) in respect of the Class AJ-FL REMIC II Regular Interest;
provided that, during the continuation of a Swap Payment Default under a Swap
Agreement while the Trustee is pursuing remedies under such Swap Agreement, or
following the termination of a Swap Agreement, the Trustee shall not make such
payments to the related Swap Counterparty. If by 3:00 p.m. New York City time on
any Class A-2FL Swap Payment Date the Trustee has not received any Class A-2FL
Net Floating Swap Payment payable by the Class A-2FL Swap Counterparty on such
date, the Trustee shall, consistent with the Class A-2FL Swap Agreement, in
order to, among other things, cause the commencement of the applicable grace
period, promptly notify the Class A-2FL Swap Counterparty that the Trustee has
not received such Class A-2FL Net Floating Swap Payment. If by 3:00 p.m. New
York City time on any Class AJ-FL Swap Payment Date the Trustee has not received
any Class AJ-FL Net Floating Swap Payment payable by the Class AJ-FL Swap
Counterparty on such date, the Trustee shall, consistent with the Class AJ-FL
Swap Agreement, in order to, among other things, cause the commencement of the
applicable grace period, promptly notify the Class AJ-FL Swap Counterparty that
the Trustee has not received such Class AJ-FL Net Floating Swap Payment.
(e) Subject to Section 8.02(iii), the Grantor Trust Trustee shall
at all times enforce ML-CFC 2007-6 Grantor Trust FL's rights under the Class
A-2FL Swap Agreement. In the event of a Swap Default under the Class A-2FL Swap
Agreement, the Grantor Trust Trustee shall (i) provide notice of such Swap
Default on the date of such default to the Class A-2FL Swap Counterparty and
(ii) promptly provide written notice to the Holders of the Class A-2FL
Certificates and, subject to Section 8.02(iii), shall be required to take such
actions (following the expiration of any applicable grace period specified in
the Class A-2FL Swap Agreement), unless otherwise directed in writing by the
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Holders or Certificate Owners of Class A-2FL Certificates representing at least
51% of the Class Principal Balance of the Class A-2FL Certificates, to enforce
such rights of ML-CFC 0000-0 Xxxxxxx Xxxxx XX under the Class A-2FL Swap
Agreement as may be permitted by the terms thereof, including termination
thereof, and use any Swap Termination Fees received from the Class A-2FL Swap
Counterparty to enter into a replacement interest rate swap agreement on
substantially identical terms, with a replacement swap counterparty that meets
all applicable eligibility requirements under the Class A-2FL Swap Agreement. If
the costs attributable to entering into a replacement interest rate swap
agreement with respect to the Class A-2FL Certificates would exceed the amount
of any Swap Termination Fees received from the Class A-2FL Swap Counterparty, a
replacement interest rate swap agreement with respect to the Class A-2FL
Certificates shall not be entered into and any such proceeds will instead be
distributed, pro rata, to the Holders of the Class A-2FL Certificates on the
immediately succeeding Distribution Date as part of the Class A-2FL Interest
Distribution Amount for such Distribution Date. If any replacement swap
counterparty pays any fee in connection with the execution of any replacement
interest rate swap agreement in respect of the Class A-2FL Certificates with the
Trust, the Grantor Trust Trustee shall distribute such fee: first, to the Class
A-2FL Swap Counterparty in respect of the terminated Class A-2FL Swap Agreement,
up to the amount of any termination payment owing to the terminated Class A-2FL
Swap Counterparty under, and in connection with the termination of, such Swap
Agreement, and such fee (or applicable portion thereof) shall be deemed to have
been distributed first to the Depositor as compensation to the Depositor under
this Agreement and then from the Depositor to the Class A-2FL Swap Counterparty
in respect of the terminated Class A-2FL Swap Agreement, and then, any
remainder, to the Depositor. Any expenses, costs and/or liabilities incurred by
the Grantor Trust Trustee in connection with enforcing the Class A-2FL Swap
Agreement shall be payable and/or reimbursable solely out of indemnification
payments made by Class A-2FL Certificateholders.
Any Class A-2FL Distribution Conversion shall become permanent
following the determination by the Grantor Trust Trustee (in the circumstances
contemplated in the third sentence of the preceding paragraph) or by the Holders
or Certificate Owners of Class A-2FL Certificates representing at least 51% of
the Class Principal Balance of the Class A-2FL Certificates not to enter into a
replacement interest rate swap agreement and distribution of any Swap
Termination Fees paid by the Class A-2FL Swap Counterparty to the Holders of the
Class A-2FL Certificates. Any Swap Default under, or termination of, the Class
A-2FL Swap Agreement and the consequent Class A-2FL Distribution Conversion
shall not, in and of itself, constitute an Event of Default under this
Agreement.
Upon any change in the payment terms on the Class A-2FL
Certificates, including as a result of a Class A-2FL Distribution Conversion,
termination of a Class A-2FL Distribution Conversion, a Swap Default under the
Class A-2FL Swap Agreement or the cure of a Swap Default under the Class A-2FL
Swap Agreement, the Grantor Trust Trustee shall promptly notify the Depository
of the change in payment terms.
(f) Subject to Section 8.02(iii), the Grantor Trust Trustee shall
at all times enforce the Trust's rights under the Class AJ-FL Swap Agreement. In
the event of a Swap Default under the Class AJ-FL Swap Agreement, the Grantor
Trust Trustee shall (i) provide notice of such Swap Default on the date of such
default to the Class AJ-FL Swap Counterparty and (ii) promptly provide written
notice to the Holders of the Class AJ-FL Certificates and, subject to Section
8.02(iii), shall be required to take such actions (following the expiration of
any applicable grace period specified in the Class AJ-FL Swap Agreement), unless
otherwise directed in writing by the Holders or Certificate Owners of Class
AJ-FL Certificates representing at least 51% of the Class Principal Balance of
the
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Class AJ-FL Certificates, to enforce such rights of ML-CFC 0000-0 Xxxxxxx Xxxxx
XX under the Class AJ-FL Swap Agreement as may be permitted by the terms
thereof, including termination thereof, and use any Swap Termination Fees
received from the Class AJ-FL Swap Counterparty to enter into a replacement
interest rate swap agreement on substantially identical terms, with a
replacement swap counterparty that meets all applicable eligibility requirements
under the Class AJ-FL Swap Agreement). If the costs attributable to entering
into a replacement interest rate swap agreement with respect to the Class AJ-FL
Certificates would exceed the amount of any Swap Termination Fees received from
the Class AJ-FL Swap Counterparty, a replacement interest rate swap agreement
with respect to the Class AJ-FL Certificates shall not be entered into and any
such proceeds will instead be distributed, pro rata, to the Holders of the Class
AJ-FL Certificates on the immediately succeeding Distribution Date as part of
the Class AJ-FL Interest Distribution Amount for such Distribution Date. If any
replacement swap counterparty pays any fee in connection with the execution of
any replacement interest rate swap agreement in respect of the Class AJ-FL
Certificates with the Trust, the Grantor Trust Trustee shall distribute such
fee: first, to the Class AJ-FL Swap Counterparty in respect of the terminated
Class AJ-FL Swap Agreement, up to the amount of any termination payment owing to
the terminated Class AJ-FL Swap Counterparty under, and in connection with the
termination of, such Swap Agreement, and such fee (or applicable portion
thereof) shall be deemed to have been distributed first to the Depositor as
compensation to the Depositor under this Agreement and then from the Depositor
to the Class AJ-FL Swap Counterparty in respect of the terminated Class AJ-FL
Swap Agreement, and then, any remainder, to the Depositor. Any expenses, costs
and/or liabilities incurred by the Grantor Trust Trustee in connection with
enforcing the Class AJ-FL Swap Agreement shall be payable and/or reimbursable
solely out of indemnification payments made by Class AJ-FL Certificateholders.
Any Class AJ-FL Distribution Conversion shall become permanent
following the determination by the Grantor Trust Trustee (in the circumstances
contemplated in the third sentence of the preceding paragraph) or by the Holders
or Certificate Owners of Class AJ-FL Certificates representing at least 51% of
the Class Principal Balance of the Class AJ-FL Certificates not to enter into a
replacement interest rate swap agreement and distribution of any Swap
Termination Fees paid by the Class AJ-FL Swap Counterparty to the Holders of the
Class AJ-FL Certificates. Any Swap Default under, or termination of, the Class
AJ-FL Swap Agreement and the consequent Class AJ-FL Distribution Conversion
shall not, in and of itself, constitute an Event of Default under this
Agreement.
Upon any change in the payment terms on the Class AJ-FL
Certificates, including as a result of a Class AJ-FL Distribution Conversion,
termination of a Class AJ-FL Distribution Conversion, a Swap Default under the
Class AJ-FL Swap Agreement or the cure of a Swap Default under the Class AJ-FL
Swap Agreement, the Grantor Trust Trustee shall promptly notify the Depository
of the change in payment terms.
(g) The Grantor Trust Trustee is hereby directed to perform the
obligations of the Custodian under the Class A-2FL Swap Credit Support Annex (in
such capacity, the "Class A-2FL Swap Custodian").
The Grantor Trust Trustee is hereby directed to perform the
obligations of the Custodian under the Class A-JFL Swap Credit Support Annex (in
such capacity, the "Class A-JFL Swap Custodian").
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Distributions.
(a) On each Distribution Date, the Trustee shall (except as
otherwise provided in Section 9.01), based on, among other things, information
provided by the Master Servicers and the Special Servicer, apply amounts on
deposit in the Distribution Account, after payment of amounts payable from the
Distribution Account in accordance with Section 3.05(b)(ii) through (ix) and
deemed distributions from REMIC I pursuant to Section 4.01(i), for the following
purposes and in the following order of priority, in each case to the extent of
the remaining portion of the Loan Group 1 Available Distribution Amount and/or
the Loan Group 2 Available Distribution Amount, as applicable:
(i) to make distributions of interest to the Holders of
the Class A-1, Class A-2, Class A-3 and Class A-4 Certificates and to the
Floating Rate Account with respect to the Class A-2FL REMIC II Regular
Interest, from the Loan Group 1 Available Distribution Amount, in an
amount equal to, and pro rata as among those Classes of Senior
Certificates and the Class A-2FL REMIC II Regular Interest in accordance
with, all Distributable Certificate Interest in respect of each such Class
of Senior Certificates and the Class A-2FL REMIC II Regular Interest for
such Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates; and concurrently, to make distributions of
interest to the Holders of the Class A-1A Certificates, from the Loan
Group 2 Available Distribution Amount in an amount equal to all
Distributable Certificate Interest in respect of the Class A-1A
Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates; and also concurrently, to make
distributions of interest to the Holders of the Class X Certificates, from
the Loan Group 1 Available Distribution Amount and/or the Loan Group 2
Available Distribution Amount, in an amount equal to all Distributable
Certificate Interest in respect of the Class X Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates; provided, however, that if the Loan Group 1 Available
Distribution Amount and/or the Loan Group 2 Available Distribution Amount
is insufficient to pay in full the Distributable Certificate Interest
payable as described above in respect of any Class of Senior Certificates
or the Class A-2FL REMIC II Regular Interest, as the case may be, on such
Distribution Date, then the entire Available Distribution Amount shall be
applied to make distributions of interest to the Holders of the respective
Classes of the Senior Certificates (exclusive of the Class A-2FL
Certificates) and the Class A-2FL REMIC II Regular Interest up to an
amount equal to, and pro rata as among such Classes of Senior Certificates
and the Class A-2FL REMIC II Regular Interest in accordance with, the
Distributable Certificate Interest in respect of each such Class of Senior
Certificates and the Class A-2FL REMIC II Regular Interest for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(ii) to make distributions of principal, first, to the
Holders of the Class A-1 Certificates, until the related Class Principal
Balance is reduced to zero, second, to the Holders of the Class A-2
Certificates and the Floating Rate Account with respect to the Class
A-2FL REMIC II Regular Interest, on a pro rata basis in accordance
with the respective Class Principal Balances thereof outstanding
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immediately prior to such Distribution Date, until such related Class
Principal Balances are reduced to zero, third, to the Holders of the Class
A-3 Certificates, until the related Class Principal Balance is reduced to
zero, and fourth, to the Holders of the Class A-4 Certificates until the
related Class Principal Balance (after taking into account any
distributions of principal made with respect to the Class A-4 Certificates
on such Distribution Date pursuant to subclause first of this clause (ii))
is reduced to zero, in that order, in an aggregate amount for sub-clauses
first through fourth above (not to exceed the aggregate of the Class
Principal Balances of those Classes of Senior Certificates and the Class
A-2FL REMIC II Regular Interest outstanding immediately prior to such
Distribution Date) equal to the Loan Group 1 Principal Distribution Amount
for such Distribution Date; and concurrently, to make 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 Loan
Group 2 Principal Distribution Amount for such Distribution Date; provided
that, if the portion of the Available Distribution Amount for such
Distribution Date remaining after the distributions of interest made
pursuant to the immediately preceding clause (i) is less than the
Principal Distribution Amount for such Distribution Date, then the Holders
of the Class A-1, Class A-2, Class A-3 and Class A-4 Certificates and the
Class A-2FL REMIC II Regular Interest shall have a prior right, relative
to the Holders of the Class A-1A Certificates, to receive their
distributions of principal pursuant to this clause (ii) out of the
remaining portion of the Loan Group 1 Available Distribution Amount for
such Distribution Date and the Holders of the Class A-1A Certificates
shall have a prior right, relative to the Holders of the Class A-1, Class
A-2, Class A-3 and Class A-4 Certificates and the Class A-2FL REMIC II
Regular Interest, to receive their distributions of principal pursuant to
this clause (ii) out of the remaining portion of the Loan Group 2
Available Distribution Amount for such Distribution Date; and provided,
further, that, notwithstanding the foregoing, if the aggregate of the
Class Principal Balances of the Class AM, Class AJ, Class AJ-FL, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class P and Class Q Certificates has previously
been reduced to zero, then distributions of principal will be made to the
Holders of the Class A-1, Class A-2, Class A-3, Class A-4 and Class A-1A
Certificates and to the Floating Rate Account with respect to the Class
A-2FL REMIC II Regular Interest pursuant to this clause (ii) up to an
amount equal to, and pro rata as among such Classes of Senior Certificates
and the Class A-2FL REMIC II Regular Interest in accordance with, the
respective Class Principal Balances thereof outstanding immediately prior
to such Distribution Date (and without regard to Loan Groups or the
Principal Distribution Amount for such Distribution Date);
(iii) after the Class Principal Balance of the Class A-1A
Certificates has been reduced to zero, to make distributions of principal,
first, to the Holders of the Class A-1 Certificates, until the related
Class Principal Balance (after taking into account any distributions of
principal made with respect to the Class A-1 Certificates on such
Distribution Date pursuant to the immediately preceding clause (ii)) is
reduced to zero, second, to the Holders of the Class A-2 Certificates
and the Floating Rate Account with respect to the Class A-2FL REMIC II
Regular Interest, on a pro rata basis in accordance with the
respective Class Principal Balances thereof then outstanding, until
such related Class Principal Balances (after taking into account any
distributions of principal with respect to the Class A-2 Certificates
and the Class A-2FL REMIC II Regular Interest on such Distribution
Date pursuant to the immediately preceding clause (ii)) is reduced to
zero, third, to the Holders of the Class A-3 Certificates, until the
related Class Principal Balance (after taking
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into account any distributions of principal with respect to the Class A-3
Certificates on such Distribution Date pursuant to the immediately
preceding clause (ii)) is reduced to zero, and fourth, to the Holders of
the Class A-4 Certificates, until the related Class Principal Balance
(after taking into account any distributions of principal made with
respect to the Class A-4 Certificates on such Distribution Date pursuant
to the immediately preceding clause (ii) and/or subclause first of this
clause (iii)) is reduced to zero, in that order, in an aggregate amount
for subclauses first through fourth above (not to exceed the aggregate of
the Class Principal Balances of those Classes of Senior Certificates and
the Class A-2FL REMIC II Regular Interest outstanding immediately prior to
such Distribution Date, reduced by any distributions of principal made
with respect to those Classes of Senior Certificates and the Class A-2FL
REMIC II Regular Interest on such Distribution Date pursuant to the
immediately preceding clause (ii)) equal to the excess, if any, of (A) the
Loan Group 2 Principal Distribution Amount for such Distribution Date,
over (B) the distributions of principal made with respect to the Class
A-1A Certificates on such Distribution Date pursuant to the immediately
preceding clause (ii);
(iv) after the aggregate of the Class Principal Balances of
the Class A-1, Class A-2, Class A-3 and Class A-4 Certificates and the
Class A-2FL REMIC II Regular Interest has been reduced to zero, to make
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,
reduced by any distributions of principal made with respect to the Class
A-1A Certificates on such Distribution Date pursuant to clause (ii) above)
equal to the excess, if any, of (A) the Loan Group 1 Principal
Distribution Amount for such Distribution Date, over (B) the aggregate
distributions of principal made with respect to the Class A-1, Class A-2,
Class A-3 and/or Class A-4 Certificates and/or the Class A-2FL REMIC II
Regular Interest on such Distribution Date pursuant to clause (ii) above;
(v) to make distributions to the Holders of the Class A-1,
Class A-2, Class A-3, Class A-4 and Class A-1A Certificates and to the
Floating Rate Account with respect to the Class A-2FL REMIC II Regular
Interest, in an amount equal to, pro rata in accordance with, and in
reimbursement of, all Realized Losses and Additional Trust Fund Expenses,
if any, previously allocated to each such Class of Senior Certificates and
the Class A-2FL REMIC II Regular Interest, respectively, and not
previously reimbursed;
(vi) to make distributions of interest to the Holders of
the Class AM 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;
(vii) after the Class Principal Balances of the Class A-1,
Class A-2, Class A-3, Class A-4 and Class A-1A Certificates and the Class
A-2FL REMIC II Regular Interest have been reduced to zero, to make
distributions of principal to the Holders of the Class AM Certificates, in
an amount (not to exceed the Class Principal Balance of the Class AM
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 Sequential Pay Certificates and/or to
the Floating Rate Account with respect to the Class A-2FL REMIC II Regular
Interest pursuant to any prior clause of this Section 4.01(a));
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(viii) to make distributions to the Holders of the Class AM
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 AM Certificates and not previously reimbursed;
(ix) to make distributions of interest to the Holders of
the Class AJ Certificates and the Floating Rate Account with respect to
the Class AJ-FL REMIC II Regular Interest, in an amount equal to, and pro
rata as between that Class of Certificates and the Class AJ-FL REMIC II
Regular Interest in accordance with, all Distributable Certificate
Interest in respect of such Class of Certificates and the Class AJ-FL
REMIC II Regular Interest for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates;
(x) after the Class Principal Balance of the Class AM
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class AJ Certificates and the Floating Rate Account
with respect to the Class AJ-FL REMIC II Regular Interest, on a pro rata
basis in accordance with the respective Class Principal Balances thereof
outstanding immediately prior to such Distribution Date, in an amount (not
to exceed the aggregate Class Principal Balance of the Class AJ
Certificates and the Class AJ-FL REMIC II Regular Interest 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
Sequential Pay Certificates pursuant to any prior clause of this Section
4.01(a));
(xi) to make distributions to the Holders of the Class AJ
Certificates and the Floating Rate Account with respect to the Class AJ-FL
REMIC II Regular Interest, in an amount equal to, pro rata in accordance
with, and in reimbursement of, all Realized Losses and Additional Trust
Fund Expenses, if any, previously allocated to the Class AJ Certificates
and the Class AJ-FL REMIC II Regular Interest, respectively, and not
previously reimbursed;
(xii) to make 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;
(xiii) after the Class Principal Balance of the Class AJ
Certificates and the Class AJ-FL REMIC II Regular Interest has been
reduced to zero, to make 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 Sequential Pay
Certificates and/or to the Floating Rate Account with respect to the Class
A-2FL REMIC II Regular Interest Regular Interest and/or the Class AJ-FL
REMIC II Regular Interest pursuant to any prior clause of this Section
4.01(a));
(xiv) to make distributions to the Holders of the Class B
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 B Certificates and not previously reimbursed;
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(xv) to make distributions of interest to the Holders of
the Class C 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;
(xvi) 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, in an amount (not to exceed
the Class Principal Balance of the Class C 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-2FL REMIC II Regular Interest and/or the Class
AJ-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xvii) to make distributions to the Holders of the Class C
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 C Certificates and not previously reimbursed;
(xviii) to make distributions of interest to the Holders of
the Class D Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class D Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xix) 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, in an amount (not to exceed
the Class Principal Balance of the Class D 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-2FL REMIC II Regular Interest and/or the Class
AJ-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xx) to make distributions to the Holders of the Class D
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 D Certificates and not previously reimbursed;
(xxi) to make distributions of interest to the Holders of
the Class E Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class E Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxii) 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, in an amount (not to exceed
the Class Principal Balance of the Class E 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-2FL REMIC II Regular Interest and/or the Class
AJ-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
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(xxiii) to make distributions to the Holders of the Class E
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 E Certificates and not previously reimbursed;
(xxiv) to make distributions of interest to the Holders of
the Class F Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class F Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxv) 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, in an amount (not to exceed
the Class Principal Balance of the Class F 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-2FL REMIC II Regular Interest and/or the Class
AJ-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xxvi) to make distributions to the Holders of the Class F
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 F Certificates and not previously reimbursed;
(xxvii) to make distributions of interest to the Holders of
the Class G Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class G Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxviii) 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, in an amount (not to exceed
the Class Principal Balance of the Class G 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-2FL REMIC II Regular Interest and/or the Class
AJ-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xxix) to make distributions to the Holders of the Class G
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 G Certificates and not previously reimbursed;
(xxx) to make distributions of interest to the Holders of
Class H Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class H Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xxxi) 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, in an amount (not to exceed
the Class Principal Balance of the Class H 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
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Holders of any other Class of Sequential Pay Certificates and/or to the
Floating Rate Account with respect to the Class A-2FL REMIC II Regular
Interest and/or the Class AJ-FL REMIC II Regular Interest pursuant to any
prior clause of this Section 4.01(a));
(xxxii) to make distributions to the Holders of the Class H
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 H Certificates and not previously reimbursed;
(xxxiii) to make distributions of interest to the Holders of
the Class J Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class J Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxxiv) 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, in an amount (not to exceed
the Class Principal Balance of the Class 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 Holders of any other Class of
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-2FL REMIC II Regular Interest and/or the Class
AJ-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xxxv) to make distributions to the Holders of the Class J
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 J Certificates and not previously reimbursed;
(xxxvi) to make distributions of interest to the Holders of
the Class K Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class K Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxxvii) 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, in an amount (not to exceed
the Class Principal Balance of the Class K 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-2FL REMIC II Regular Interest and/or the Class
AJ-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xxxviii) to make distributions to the Holders of the Class K
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 K Certificates and not previously reimbursed;
(xxxix) to make distributions of interest to the Holders of
the Class L Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class L Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
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(xl) 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, in an amount (not to exceed
the Class Principal Balance of the Class L 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-2FL REMIC II Regular Interest and/or the Class
AJ-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xli) to make distributions to the Holders of the Class L
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 L Certificates and not previously reimbursed;
(xlii) to make distributions of interest to the Holders of
the Class M Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class M Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xliii) 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, in an amount (not to exceed
the Class Principal Balance of the Class M 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-2FL REMIC II Regular Interest and/or the Class
AJ-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xliv) to make distributions to the Holders of the Class 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 M Certificates and not previously reimbursed;
(xlv) to make distributions of interest to the Holders of
the Class N Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class N Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xlvi) 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, in an amount (not to exceed
the Class Principal Balance of the Class N 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-2FL REMIC II Regular Interest and/or the Class
AJ-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xlvii) to make distributions to the Holders of the Class N
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 N Certificates and not previously reimbursed;
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(xlviii) to make distributions of interest to the Holders of
the Class P Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class P Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xlix) after the Class Principal Balance of the Class N
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class P Certificates, in an amount (not to exceed
the Class Principal Balance of the Class P 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-2FL REMIC II Regular Interest and/or the Class
AJ-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(l) to make distributions to the Holders of the Class P
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 P Certificates and not previously reimbursed;
(li) to make distributions of interest to the Holders of
the Class Q Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class Q Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(lii) after the Class Principal Balance of the Class P
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class Q Certificates, in an amount (not to exceed
the Class Principal Balance of the Class Q 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-2FL REMIC II Regular Interest and/or the Class
AJ-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(liii) to make distributions to the Holders of the Class Q
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 Q Certificates and not previously reimbursed;
(liv) to make distributions to the Holders of the Class R-II
Certificates, in an amount equal to the excess, if any, of (A) the
aggregate distributions deemed made in respect of the REMIC I Regular
Interests on such Distribution Date pursuant to Section 4.01(i), over (B)
the aggregate distributions made in respect of the Regular Certificates,
the Class A-2FL REMIC II Regular Interest and the Class AJ-FL REMIC II
Regular Interest on such Distribution Date pursuant to clauses (i) through
(liii) above; and
(lv) to make distributions to the Holders of the Class R-I
Certificates of the excess, if any, of (A) the Available Distribution
Amount for such Distribution Date, over (B) the aggregate distributions
made in respect of the REMIC II Certificates, the Class A-2FL REMIC II
Regular Interest and the Class AJ-FL REMIC II Regular Interest on such
Distribution Date pursuant to clauses (i) through (liv) above.
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Distributions in reimbursement of Realized Losses and Additional
Trust Fund Expenses previously allocated to a Class of Sequential Pay
Certificates, the Class A-2FL REMIC II Regular Interest or the Class AJ-FL REMIC
II Regular Interest shall not constitute distributions of principal and shall
not result in reduction of the related Class Principal Balance.
All distributions of interest made in respect of the Class X
Certificates on any Distribution Date pursuant to clause (i) above, shall be
deemed to have been made in respect of all the Class X Components, pro rata in
accordance with the respective amounts of Accrued Component Interest with
respect to the Class X Components for such Distribution Date, together with any
amounts thereof remaining unpaid from previous Distribution Dates.
(b) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account any amounts on deposit therein that represent Prepayment
Premiums and/or Yield Maintenance Charges actually collected on the Trust
Mortgage Loans and any Trust REO Loans during the related Collection Period
(excluding any portion of such Prepayment Premiums and/or Yield Maintenance
Charges applied pursuant to Section 4.01(k) to reimburse the Holders of one or
more Classes of Sequential Pay Certificates and/or to the Floating Rate Account
with respect to the Class A-2FL REMIC II Regular Interest and/or the Class AJ-FL
REMIC II Regular Interest in respect of Realized Losses and/or Additional Trust
Fund Expenses previously allocated thereto) and shall be deemed to distribute
such Prepayment Premiums and/or Yield Maintenance Charges (or remaining portion
thereof) from REMIC I to REMIC II in respect of REMIC I Regular Interest LA-1
(whether or not such REMIC I Regular Interest has received all distributions of
interest and principal to which it is entitled), and then shall distribute each
such Prepayment Premium and/or Yield Maintenance Charge (or remaining portion
thereof), as additional yield, as follows:
(i) first, to the Holders of the respective Classes of
Sequential Pay Certificates (other than any Excluded Class thereof)
entitled to distributions of principal pursuant to Section 4.01(a) on such
Distribution Date with respect to the Loan Group that includes the prepaid
Trust Mortgage Loan or Trust REO Loan, as the case may be, and to the
Floating Rate Account with respect to the Class A-2FL REMIC II Regular
Interest and/or the Class AJ-FL REMIC II Regular Interest (if
distributions of principal are being made with respect thereto on such
Distribution Date pursuant to Section 4.01(a)), up to an amount equal to,
and pro rata based on, the Additional Yield and Prepayment Amount for each
such Class of Certificates, the Class A-2FL REMIC II Regular Interest (if
applicable) and/or the Class AJ-FL REMIC II Regular Interest (if
applicable) for such Distribution Date with respect to the subject
Prepayment Premium or Yield Maintenance Charge, as the case may be; and
(ii) second, to the Holders of the Class X Certificates, to
the extent of any remaining portion of the subject Yield Maintenance
Charge or Prepayment Premium, as the case may be (excluding any portion of
such Prepayment Premium and/or Yield Maintenance Charge applied pursuant
to Section 4.01(k) to reimburse the Holders of one or more Classes of
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-2FL REMIC II Regular Interest and/or the Class
AJ-FL REMIC II Regular Interest in respect of Realized Losses and/or
Additional Trust Fund Expenses previously allocated thereto).
On each Distribution Date, the Trustee shall withdraw from the Additional
Interest Account any amounts that represent Additional Interest actually
collected during the related Collection Period on the Convertible Rate Mortgage
Loan and Trust ARD Loans, respectively
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and any successor Trust REO Loans with respect thereto and shall distribute such
amounts among the Holders of the Class Y Certificates and Class Z Certificates,
respectively, pro rata in accordance with their respective Percentage Interests
of such Class.
(c) Subject to Section 3.30, on each Distribution Date, the
Trustee shall apply amounts on deposit in the Class A-2FL Sub-Account for the
following purposes and in the following order of priority, in each case to the
extent of the Class A-2FL Available Funds (exclusive of any portion thereof that
constitutes Yield Maintenance Charges and/or Prepayment Premiums) for such
Distribution Date:
(i) to make distributions of interest to the Holders of
the Class A-2FL Certificates, up to the Class A-2FL Interest Distribution
Amount for such Distribution Date;
(ii) to make distributions of principal to the Holders of
the Class A-2FL Certificates, in reduction of the Class Principal Balance
thereof, up to the Class A-2FL Principal Distribution Amount for such
Distribution Date, until such Class Principal Balance has been reduced to
zero;
(iii) to reimburse the Holders of the Class A-2FL
Certificates, until all Realized Losses and Additional Trust Fund Expenses
previously allocated to the Class A-2FL Certificates, but not previously
reimbursed, have been reimbursed in full; and
(iv) to make distributions to the Holders of the Class
A-2FL Certificates of any remaining amount.
For so long as the Class A-2FL Swap Agreement is in effect and there
is no continuing payment default thereunder on the part of the Class A-2FL Swap
Counterparty, all Prepayment Premiums and Yield Maintenance Charges allocable to
the Class A-2FL REMIC II Regular Interest shall be payable to the Class A-2FL
Swap Counterparty pursuant to the terms of the Class A-2FL Swap Agreement.
However, during the occurrence of a payment default on the part of the Class
A-2FL Swap Counterparty under the Class A-2FL Swap Agreement or if the Class
A-2FL Swap Agreement is terminated and a replacement Class A-2FL Swap Agreement
is not obtained, then all Prepayment Premiums and Yield Maintenance Charges
distributed to the Floating Rate Account with respect to the Class A-2FL REMIC
II Regular Interest shall be distributed by the Trustee to the Holders of the
Class A-2FL Certificates on the subject Distribution Date.
Subject to Section 3.30, on each Distribution Date, the Trustee
shall apply amounts on deposit in the Class AJ-FL Sub-Account for the following
purposes and in the following order of priority, in each case to the extent of
the Class AJ-FL Available Funds (exclusive of any portion thereof that
constitutes Yield Maintenance Charges and/or Prepayment Premiums) for such
Distribution Date:
(i) to make distributions of interest to the Holders of
the Class AJ-FL Certificates, up to the Class AJ-FL Interest Distribution
Amount for such Distribution Date;
(ii) to make distributions of principal to the Holders of
the Class AJ-FL Certificates, in reduction of the Class Principal Balance
thereof, up to the Class AJ-FL Principal Distribution Amount for such
Distribution Date, until such Class Principal Balance has been reduced to
zero;
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(iii) to reimburse the Holders of the Class AJ-FL
Certificates, until all Realized Losses and Additional Trust Fund Expenses
previously allocated to the Class AJ-FL Certificates, but not previously
reimbursed, have been reimbursed in full; and
(iv) to make distributions to the Holders of the Class
AJ-FL Certificates of any remaining amount.
For so long as the Class AJ-FL Swap Agreement is in effect and there
is no continuing payment default thereunder on the part of the Class AJ-FL Swap
Counterparty, all Prepayment Premiums and Yield Maintenance Charges allocable to
the Class AJ-FL REMIC II Regular Interest shall be payable to the Class AJ-FL
Swap Counterparty pursuant to the terms of the Class AJ-FL Swap Agreement.
However, during the occurrence of a payment default on the part of the Class
AJ-FL Swap Counterparty under the Class AJ-FL Swap Agreement or if the Class
AJ-FL Swap Agreement is terminated and a replacement Class AJ-FL Swap Agreement
is not obtained, then all Prepayment Premiums and Yield Maintenance Charges
distributed to the Floating Rate Account with respect to the Class AJ-FL REMIC
II Regular Interest shall be distributed by the Trustee to the Holders of the
Class AJ-FL Certificates on the subject Distribution Date.
(d) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise provided below, all such distributions with respect to each Class on
each Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than five Business Days prior to (or, in the case of the
initial Distribution Date, no later than) the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
Distribution Dates), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined, in the case of a Sequential Pay
Certificate, without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate)
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, 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 Holders of the Class R-II Certificates.
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(e) 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 (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each 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, the Master Servicers, the
Special Servicer or any Fiscal Agent 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 a Letter of
Representations among the Depositor, the Trustee and the Initial Depository
dated as of the Closing Date.
(f) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of 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 in respect of amounts properly
previously distributed on the Certificates.
(g) 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 without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to such Class of Certificates) will be made on the
next Distribution Date, the Trustee shall, no later than five days after the
related Determination Date, mail to each Holder of record on such date of such
Class of Certificates 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 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 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 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 pursuant to this paragraph. If all of the Certificates
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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 Holders of the Class R-II Certificates all unclaimed funds and
other assets which remain subject thereto.
(h) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal income tax withholding requirements
respecting payments to Certificateholders of interest or original issue discount
that the Trustee reasonably believes are applicable under the Code. The
Certificate Registrar shall promptly provide the Trustee with any IRS Form W-9
or W-8 (including Form W-8ECI, W-8BEN or W-IMY) upon its receipt thereof. The
consent of Certificateholders shall not be required for such withholding. If the
Trustee does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal income
tax withholding requirements, the Trustee shall indicate the amount withheld to
such Certificateholders.
(i) All distributions of interest, principal and reimbursements of
previously allocated Realized Losses and Additional Trust Fund Expenses made in
respect of any Class of Regular Certificates on each Distribution Date pursuant
to Section 4.01(a), 4.01(j) or 4.01(k) shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of its Corresponding REMIC I
Regular Interest. All distributions made in respect of the Class X Certificates
on each Distribution Date pursuant to Section 4.01(a), and allocable to any
particular Class X Component in accordance with the second paragraph of Section
4.01(a), shall be deemed to have first been distributed from REMIC I to REMIC II
in respect of such Class X Component's Corresponding REMIC I Regular Interest.
In each case, if such distribution on any such Class of Regular Certificates was
a distribution of interest or principal or in reimbursement of previously
allocated Realized Losses and Additional Trust Fund Expenses in respect of such
Class of Regular Certificates, then the corresponding distribution deemed to be
made on a REMIC I Regular Interest pursuant to either of the preceding two
sentences shall be deemed to also be a distribution of interest or principal or
in reimbursement of previously allocated Realized Losses and Additional Trust
Fund Expenses, as the case may be, in respect of such REMIC I Regular Interest.
If a Class of Sequential Pay Certificates has two or more
Corresponding REMIC I Regular Interests, then:
(i) deemed distributions of accrued interest made on such
Corresponding REMIC I Regular Interests on any Distribution Date shall be
allocated between or among them, as applicable, on a pro rata basis in
accordance with the respective amounts of unpaid interest in respect of
such Corresponding REMIC I Regular Interests as of such Distribution Date;
(ii) deemed distributions of principal made on such
Corresponding REMIC I Regular Interests on any Distribution Date shall be
allocated to them in numeric order (i.e., from lowest number to highest
number) of the respective ending numbers of the respective alphanumeric
designations for such Corresponding REMIC I Regular Interests, in each
case up to an amount equal to the REMIC I Principal Balance of the subject
Corresponding REMIC I Regular Interest outstanding immediately prior to
such Distribution Date (such that no deemed distributions of principal
will be made on any such Corresponding REMIC I Regular Interest until the
REMIC I Principal Balance of each other such Corresponding REMIC I Regular
Interest, if any, with an alphanumeric designation that ends in a lower
number, has been paid in full);
(iii) deemed distributions of additional interest (in the
form of Prepayment Premiums and Yield Maintenance Charges) made on such
Corresponding REMIC I Regular
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Interests on any Distribution Date shall be allocated between or among
them, as applicable, on a pro rata basis in accordance with the respective
amounts of principal deemed distributed in respect of such Corresponding
REMIC I Regular Interests on such Distribution Date;
(iv) deemed distributions made on such Corresponding REMIC
I Regular Interests on any Distribution Date in reimbursement of Realized
Losses and Additional Trust Fund Expenses previously allocated thereto
shall be allocated to them in the same order that deemed distributions of
principal made on such Corresponding REMIC I Regular Interests are
allocated to them pursuant to subclause (ii) of this paragraph, in each
case up to the aggregate amount of all Realized Losses and Additional
previously allocated to the subject REMIC I Regular Interest; and
(v) for purposes of determining the portion of the Accrued
REMIC I Interest in respect of any such Corresponding REMIC I Regular
Interest for any Distribution Date that is allocable to deemed
distributions thereon, any reduction in the Distributable Certificate
Interest in respect of such Class of Sequential Pay Certificates for such
Distribution Date as a result of a Net Aggregate Prepayment Interest
Shortfall shall be deemed to have first been allocated among all such
Corresponding REMIC I Regular Interests to reduce the interest
distributable thereon on a pro rata basis in accordance with the
respective amounts of Accrued REMIC I Interest in respect thereof for such
Distribution Date.
(j) On each Distribution Date, the Trustee shall withdraw amounts
from the Gain-on-Sale Reserve Account and shall distribute such amounts to
reimburse the Holders of the Sequential Pay Certificates (other than the Class
A-2FL and the Class AJ-FL Certificates) and to reimburse the Floating Rate
Account with respect to the Class A-2FL REMIC II Regular Interest and the Class
AJ-FL REMIC II Regular Interest (in the same order as such reimbursements would
be made pursuant to Section 4.01(a)) up to an amount equal to all Realized
Losses and Additional Trust Fund Expenses, if any, previously deemed allocated
to them and unreimbursed after application of the Available Distribution Amount
for such Distribution Date. Amounts paid from the Gain-on-Sale Reserve Account
will not reduce the Class Principal Balance of any Class of Sequential Pay
Certificates, the Class A-2FL REMIC II Regular Interest and/or the Class AJ-FL
REMIC II Regular Interest. Any amounts remaining in the Gain-on-Sale Reserve
Account after such distributions shall be applied to offset future Realized
Losses and Additional Trust Fund Expenses and, upon termination of the Trust
Fund, any amounts remaining in the Gain-on-Sale Reserve Account shall be
distributed to the Class R-I Certificateholders.
(k) On each Distribution Date, the Trustee shall withdraw from
the Distribution Account an amount equal to any Prepayment Premium and/or Yield
Maintenance Charge that was received in respect of a Trust Specially Serviced
Mortgage Loan during the related Collection Period to the extent that Realized
Losses and/or Additional Trust Fund Expenses had been allocated to one or more
Classes of Sequential Pay Certificates (other than the Class A-2FL and Class
AJ-FL Certificates), the Class A-2FL REMIC II Regular Interest and/or the Class
AJ-FL REMIC II Regular Interest pursuant to Section 4.04 and had not been
previously reimbursed, and the Trustee shall distribute such amounts to
reimburse the Holders of the Sequential Pay Certificates (other than the Class
A-2FL and Class AJ-FL Certificates) and to reimburse the Floating Rate Account
with respect to the Class A-2FL REMIC II Regular Interest and the Class AJ-FL
REMIC II Regular Interest (in the same order as such reimbursements would be
made pursuant to Section 4.01(a)) up to an amount equal to all such Realized
Losses and Additional Trust Fund Expenses, if any, previously deemed allocated
to them and remaining
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unreimbursed after application of the Available Distribution Amount for such
Distribution Date and the amounts on deposit in the Gain-on-Sale Reserve
Account. Any such amounts paid from the Distribution Account will not reduce the
Class Principal Balance of any Class of Sequential Pay Certificates, the Class
A-2FL REMIC II Regular Interest or the Class AJ-FL REMIC II Regular Interest.
SECTION 4.02 Statements to Certificateholders.
(a) On each Distribution Date, the Trustee shall make available
electronically via its Internet Website or, upon written request, by first class
mail, to each Certificateholder, each initial Certificate Owner and (upon
written request made to the Trustee) each subsequent Certificate Owner (as
identified to the reasonable satisfaction of the Trustee), the Depositor, the
Master Servicers, the Special Servicer, the Underwriters, each Rating Agency and
any other Person designated in writing by the Depositor, a statement (a
"Distribution Date Statement"), as to the distributions made on such
Distribution Date, based solely on information provided to it by the Master
Servicers and the Special Servicer. Each Distribution Date Statement shall be in
the form set forth on Exhibit B hereto and, in any event, shall set forth:
(i) the amount of the distribution on such Distribution
Date to the Holders of each Class of Sequential Pay 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 Certificates, the Class A-2FL
Certificates and/or the Class AJ-FL Certificates allocable to
Distributable Certificate Interest, the Class A-2FL Interest Distribution
Amount and/or the Class AJ-FL Interest Distribution Amount, as the case
may be;
(iii) the amount of the distribution on such Distribution
Date to the Holders of each Class of Regular Certificates, the Class A-2FL
Certificates and/or the Class AJ-FL Certificates allocable to Prepayment
Premiums and/or Yield Maintenance Charges;
(iv) the amount of the distribution on such Distribution
Date to the Holders of each Class of Sequential Pay 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 general purpose of such fees and
expenses and the party receiving such fees and expenses), the Available
Distribution Amount for such Distribution Date and the respective portions
of such Available Distribution Amount attributable to each Loan Group;
(vi) (a) the aggregate amount of P&I Advances made with
respect to the entire Mortgage Pool, and made with respect to each Loan
Group, for such Distribution Date pursuant to Section 4.03(a), including,
without limitation, any amounts applied pursuant to Section 4.03(a)(ii),
and the aggregate amount of xxxxxxxxxxxx X&X Advances with respect to the
entire Mortgage Pool, and with respect to each Loan Group, that had been
outstanding at the close of business on the related Determination Date and
the aggregate amount of interest accrued and payable to the Master
Servicers, the Trustee or any Fiscal Agent in respect of such xxxxxxxxxxxx
X&X Advances in accordance with Section 4.03(d) as of the close of
business on the related Determination Date, (b) the aggregate amount of
Servicing Advances with respect to the entire Mortgage Pool, and with
respect to each Loan Group, as of the close of business on the
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related Determination Date and (c) the aggregate amount of all
Nonrecoverable Advances with respect to the entire Mortgage Pool, and with
respect to each Loan Group, as of the close of business on the related
Determination Date;
(vii) the aggregate unpaid principal balance of the Mortgage
Pool and of each Loan Group outstanding as of the close of business on the
related Determination Date;
(viii) the aggregate Stated Principal Balance of the Mortgage
Pool and of each Loan Group outstanding immediately before and immediately
after such Distribution Date;
(ix) the number, aggregate principal balance, weighted
average remaining term to maturity and weighted average Mortgage Rate of
the Trust Mortgage Loans as of the close of business on the related
Determination Date;
(x) the number, aggregate unpaid principal balance (as of
the close of business on the related Determination Date) and aggregate
Stated Principal Balance (immediately after such Distribution Date) of the
Trust Mortgage Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days,
(C) delinquent more than 89 days, (D) as to which foreclosure proceedings
have been commenced, and (E) to the actual knowledge of either Master
Servicer or the Special Servicer, in bankruptcy proceedings;
(xi) as to each Trust Mortgage Loan referred to in the
preceding clause (x) above, (A) the loan number thereof, (B) the Stated
Principal Balance thereof immediately following such Distribution Date,
and (C) a brief description of any executed loan modification;
(xii) with respect to any Trust Mortgage Loan as to which a
Liquidation Event occurred during the related Collection Period (other
than a payment in full), (A) the loan number thereof, (B) 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 (C) the amount of any
Realized Loss in connection with such Liquidation Event;
(xiii) with respect to any Trust Mortgage Loan that was the
subject of any material modification, extension or waiver during the
related Collection Period, (A) the loan number thereof, (B) the unpaid
principal balance thereof and (C) a brief description of such
modification, extension or waiver, as the case may be;
(xiv) with respect to any Trust Mortgage Loan as to which an
uncured and unresolved Breach or Document Defect that materially and
adversely affects the value of such Trust Mortgage Loan or the interests
of the Certificateholders, is alleged to exist, (A) the loan number
thereof, (B) the unpaid principal balance thereof, (C) a brief description
of such Breach or Document Defect, as the case may be, and (D) the status
of such Breach or Document Defect, as the case may be, including any
actions known to the Trustee that are being taken by or on behalf of the
applicable Mortgage Loan Seller with respect thereto;
(xv) with respect to any Trust Mortgage Loan as to which
the related Mortgaged Property became an REO Property during the related
Collection Period, the loan number of such Trust Mortgage Loan and the
Stated Principal Balance of such Trust Mortgage Loan as of the related
date of acquisition;
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(xvi) with respect to any REO Property that was included (or
an interest in which was included) in the Trust Fund as of the close of
business on the related Determination Date, the loan number of the related
Trust Mortgage Loan, the book value of such REO Property and the amount of
REO Revenues and other amounts, if any, received by the trust with respect
to such REO Property during the related Collection Period (separately
identifying the portion thereof allocable to distributions on the
Certificates) and, if available, the Appraised Value of such REO Property
as expressed in the most recent appraisal thereof and the date of such
appraisal;
(xvii) with respect to any REO Property included in the Trust
Fund as to which a Final Recovery Determination was made during the
related Collection Period, (A) the loan number of the related Trust
Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and other
amounts received in connection with such Final Recovery Determination
(separately identifying the portion thereof allocable to distributions on
the Certificates), and (C) the amount of any Realized Loss in respect of
the related Trust REO Loan in connection with such Final Recovery
Determination;
(xviii) the Accrued Certificate Interest and Distributable
Certificate Interest in respect of each Class of Regular Certificates, the
Class A-2FL REMIC II Regular Interest and the Class AJ-FL REMIC II Regular
Interest, as well as the Class A-2FL Interest Distribution Amount and the
Class AJ-FL Interest Distribution Amount for such Distribution Date;
(xix) any unpaid Distributable Certificate Interest in
respect of each Class of Regular Certificates, the Class A-2FL REMIC II
Regular Interest and the Class AJ-FL REMIC II Regular Interest,
respectively, as well as any unpaid portion of the Class A-2FL Interest
Distribution Amount and the Class AJ-FL Interest Distribution Amount,
respectively, after giving effect to the distributions made on such
Distribution Date;
(xx) the Pass-Through Rate for each Class of Regular
Certificates, the Class A-2FL REMIC II Regular Interest, the Class AJ-FL
REMIC II Regular Interest, the Class A-2FL Certificates and the Class
AJ-FL Certificates, respectively, for such Distribution Date;
(xxi) the Principal Distribution Amount, the Loan Group 1
Principal Distribution Amount and the Loan Group 2 Principal Distribution
Amount for such Distribution Date, in each case, separately identifying
the respective components thereof (and, in the case of any Principal
Prepayment or other unscheduled collection of principal received during
the related Collection Period, the loan number for the related Trust
Mortgage Loan and the amount of such prepayment or other collection of
principal);
(xxii) the aggregate of all Realized Losses incurred during
the related Collection Period and all Additional Trust Fund Expenses
incurred during the related Collection Period;
(xxiii) the aggregate of all Realized Losses and Additional
Trust Fund Expenses that were allocated on such Distribution Date;
(xxiv) the Class Principal Balance and Class X Notional
Amount, as applicable, of each Class of Regular Certificates outstanding
immediately before and
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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
Certificates, the Class A-2FL Certificates and the Class AJ-FL
Certificates, respectively, immediately following such Distribution Date;
(xxvi) the aggregate amount of interest on P&I Advances in
respect of the Mortgage Pool and in respect of each Loan Group paid to the
Master Servicers, the Trustee and any Fiscal Agent during the related
Collection Period in accordance with Section 4.03(d);
(xxvii) the aggregate amount of interest on Servicing Advances
in respect of the Mortgage Pool and in respect of each Loan Group paid to
the Master Servicers, the Special Servicer, the Trustee and any Fiscal
Agent during the related Collection Period in accordance with Section
3.03(d);
(xxviii) the aggregate amount of servicing compensation
(separately identifying the amount of each category of compensation) paid
to the Master Servicers and the Special Servicer during the related
Collection Period;
(xxix) the loan number for each Trust Required Appraisal
Mortgage Loan and any related Appraisal Reduction Amount as of the related
Determination Date;
(xxx) the original and then current credit support levels
for each Class of Regular Certificates, the Class A-2FL Certificates and
the Class AJ-FL Certificates, respectively;
(xxxi) the original and then current ratings known to the
Trustee for each Class of Regular Certificates;
(xxxii) the aggregate amount of Prepayment Premiums and Yield
Maintenance Charges collected during the related Collection Period;
(xxxiii) the value of any REO Property included in the Trust
Fund as of the end of the related Determination Date for such Distribution
Date, based on the most recent Appraisal or valuation;
(xxxiv) the amounts, if any, actually distributed with respect
to the Class Y Certificates, Class Z Certificates, the Class R-I
Certificates and the Class R-II Certificates, respectively, on such
Distribution Date; and
(xxxv) a brief description of any uncured Event of Default
known to the Trustee (to the extent not previously reported) and, as
determined and/or approved by the Depositor, any other information
necessary to satisfy the requirements of Item 1121(a) of Regulation AB
that can, in the Trustee's reasonable judgment, be included on the
Distribution Date Statement without undue difficulty.
In the case of information to be furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a basis for
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information to be furnished pursuant to clauses (x) through (xvii), (xxviii) and
(xxxiii) above, insofar as the underlying information is solely within the
control of the Special Servicer, the Trustee and the Master Servicers may,
absent manifest error, conclusively rely on the reports to be provided by the
Special Servicer.
Each Distribution Date Statement shall identify the Distribution
Date to which it relates and the Record Date, the Interest Accrual Period, the
Determination Date and the Collection Period that correspond to such
Distribution Date.
The Trustee may conclusively rely on and shall not be responsible
absent manifest error for the content or accuracy of any information provided by
third parties for purposes of preparing the Distribution Date Statement and may
affix thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto).
On each Distribution Date, the Trustee shall make available via its
Internet Website the information specified in Section 3.15(b) to the Persons
specified therein. Absent manifest error, none of the Master Servicers or the
Special Servicer shall be responsible for the accuracy or completeness of any
information supplied to it by a Mortgagor or third party that is included in any
reports, statements, materials or information prepared or provided by either
Master Servicer or the Special Servicer, as applicable. The Trustee shall not be
responsible absent manifest error for the accuracy or completeness of any
information supplied to it for delivery pursuant to this Section. None of the
Trustee, the Master Servicers or the Special Servicer shall have any obligation
to verify the accuracy or completeness of any information provided by a
Mortgagor or third party.
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 provided to Certificateholders pursuant to clauses
(i) and (ii) of the description of "Distribution Date Statement" above and, upon
request, the items provided to Certificateholders pursuant to clauses (iii) and
(iv) of the description of "Distribution Date Statement" above 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.
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 mail or cause the mailing of, or provide
electronically or cause the provision electronically of, such statements,
reports and/or other written information to such Certificate Owner 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 facsimile from the Trustee; provided that the cost of such
overnight courier delivery or facsimile 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 the necessary underlying information from
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the Special Servicer or either Master Servicer, as applicable, and shall not be
liable for any failure to deliver any statement, report or information on the
prescribed due dates, to the extent caused by failure to receive timely such
underlying information. Nothing herein shall obligate the Trustee or either
Master Servicer to violate any applicable law prohibiting disclosure of
information with respect to any Mortgagor and the failure of the Trustee, either
Master Servicer or the Special Servicer to disseminate information for such
reason shall not be a breach hereof.
(b) In the performance of its obligations set forth in Section
4.05 and its other duties hereunder, the Trustee may, absent bad faith,
conclusively rely on reports provided to it by the Master Servicers, and the
Trustee shall not be responsible to recompute, recalculate or verify the
information provided to it by the Master Servicers.
SECTION 4.03 P&I Advances; Reimbursement of P&I Advances and
Servicing Advances.
(a) On or before 2:00 p.m. (New York City time) on each P&I
Advance Date, each Master Servicer shall (i) apply amounts in its respective
Collection Account received after the end of the related Collection Period or
otherwise held for future distribution to Certificateholders in subsequent
months in discharge of its obligation to make P&I Advances or (ii) subject to
Section 4.03(c) below, remit from its own funds to the Trustee for deposit into
the Distribution Account an amount equal to the aggregate amount of P&I
Advances, if any, to be made in respect of the related Distribution Date. The
Master Servicers may also make P&I Advances in the form of any combination of
clauses (i) and (ii) above aggregating the total amount of P&I Advances to be
made. Any amounts held in the Collection Accounts for future distribution and so
used to make P&I Advances shall be appropriately reflected in the applicable
Master Servicer's records and replaced by such Master Servicer by deposit in its
Collection 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 3:00 p.m. (New York City time) on any P&I Advance Date, the
applicable 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 such Master Servicer by
facsimile transmission sent to (000) 000-0000, in the case of Master Servicer
No. 1, or (000)000-0000 in the case of Master Servicer No. 2 (or, in the case of
the subject Master Servicer, such alternative number provided by such Master
Servicer to the Trustee in writing) as soon as possible, but in any event before
4:00 p.m. (New York City time) on such P&I Advance Date. If 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, subject to Section 4.03(c), (i) the
Trustee shall, no later than 12:00 p.m., or if the Trustee fails, any Fiscal
Agent shall, no later than 1:00 p.m. (New York City time), on such related
Distribution Date make the portion of such P&I Advances that was required to be,
but was not, made by the applicable Master Servicer on such P&I Advance Date,
and (ii) with respect to such Master Servicer, the provisions of Sections 7.01
and 7.02 shall apply.
(b) The aggregate amount of P&I Advances to be made by either
Master Servicer, the Trustee or any Fiscal Agent in respect of the Mortgage Pool
for any Distribution Date shall, subject to Section 4.03(c) below, equal the
aggregate of all Periodic Payments (other than Balloon Payments) and any Assumed
Periodic Payments, net of related Master Servicing Fees (and, in the case of the
Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan, net of the WBCMT
Series 2007-C30
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Servicing Fee), in respect of the Trust Mortgage Loans (including, without
limitation, Trust Balloon Loans delinquent as to their respective Balloon
Payments) and any Trust REO 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: (x) if the Periodic Payment on any Trust
Mortgage Loan has been reduced in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section 3.20
(or, in the case of the Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage
Loan, by the WBCMT Series 2007-C30 Applicable Servicer pursuant to the WBCMT
Series 2007-C30 Pooling and Servicing Agreement), or if the final maturity on
any Trust Mortgage Loan shall be extended in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section 3.20
(or, in the case of the Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage
Loan, by the WBCMT Series 2007-C30 Applicable Servicer pursuant to the WBCMT
Series 2007-C30 Pooling and Servicing Agreement), and the Periodic Payment due
and owing during the extension period is less than the related Assumed Periodic
Payment, then the applicable Master Servicer, the Trustee or any Fiscal Agent
shall, as to such Trust Mortgage Loan only, advance only the amount of the
Periodic Payment due and owing after taking into account such reduction (net of
related Master Servicing Fees and, in the case of the Xxxxx Xxxxxx Village and
Stuyvesant Town Trust Mortgage Loan, net of the WBCMT Series 2007-C30 Servicing
Fee) in the event of subsequent delinquencies thereon; and (y) if any Trust
Mortgage Loan or Trust REO Loan is a Required Appraisal Mortgage Loan as to
which it is determined that an Appraisal Reduction Amount exists or, in the case
of the Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan, the WBCMT
Series 2007-C30 Applicable Servicer has determined that an Appraisal Reduction
Amount exists under the WBCMT Series 2007-C30 Pooling and Servicing Agreement,
then, with respect to the Distribution Date immediately following the date of
such determination and with respect to each subsequent Distribution Date for so
long as such Appraisal Reduction Amount exists, the applicable Master Servicer,
the Trustee or any Fiscal Agent will be required in the event of subsequent
delinquencies to advance in respect of such Trust Mortgage Loan or Trust REO
Loan, as the case may be, only an amount equal to the sum of (A) the interest
portion of the P&I Advance required to be made equal to the product of (1) the
amount of the interest portion of the P&I Advance for that Trust Mortgage Loan
or Trust REO Loan, as the case may be, for the related Distribution Date without
regard to this sentence, and (2) a fraction, expressed as a percentage, the
numerator of which is equal to the Stated Principal Balance of that Trust
Mortgage Loan or Trust REO Loan, as the case may be, immediately prior to the
related Distribution Date, net of the related Appraisal Reduction Amount, if
any, and the denominator of which is equal to the Stated Principal Balance of
that Trust Mortgage Loan or Trust REO Loan, as the case may be, immediately
prior to the related Distribution Date, and (B) the amount of the principal
portion of the P&I Advance that would otherwise be required without regard to
this clause (y). In the case of each A-Note Trust Mortgage Loan or any successor
Trust REO Loan with respect thereto, the reference to "Appraisal Reduction
Amount" in clause (y) of the proviso to the preceding sentence means the portion
of any Appraisal Reduction Amount with respect to the related Loan Combination
that is allocable, in accordance with the definition of "Appraisal Reduction
Amount", to such A-Note Trust Mortgage Loan or any successor Trust REO Loan with
respect thereto, as the case may be.
(c) Notwithstanding anything herein to the contrary, no P&I
Advance shall be required to be made hereunder if such P&I Advance would, if
made, constitute a Nonrecoverable P&I Advance. The determination by the
applicable Master Servicer or the Special Servicer that a prior P&I Advance (or,
assuming that it was still outstanding, any Unliquidated Advance in respect
thereof) that
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has been made constitutes a Nonrecoverable P&I Advance or that any proposed P&I
Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be
evidenced by an Officer's Certificate delivered to the Trustee, any Fiscal Agent
and the Depositor on or before the related P&I Advance Date, setting forth the
basis for such determination, together with any other information, including
Appraisals (the cost of which may be paid out of the applicable Master
Servicer's Collection Account pursuant to Section 3.05(a)) (or, if no such
Appraisal has been performed pursuant to this Section 4.03(c), a copy of an
Appraisal of the related Mortgaged Property performed within the twelve months
preceding such determination), related Mortgagor operating statements and
financial statements, budgets and rent rolls of the related Mortgaged
Properties, engineers' reports, environmental surveys and any similar reports
that the applicable Master Servicer may have obtained consistent with the
Servicing Standard and at the expense of the Trust Fund, that support such
determination by such Master Servicer. As soon as practical after making such
determination, the Special Servicer shall report to the applicable Master
Servicer, the Trustee and any Fiscal Agent, the Special Servicer's determination
that any P&I Advance made with respect to any previous Distribution Date or
required to be made with respect to the next following Distribution Date with
respect to any Trust Specially Serviced Mortgage Loan or Trust REO Loan is a
Nonrecoverable P&I Advance. The applicable Master Servicer, the Trustee and any
Fiscal Agent shall act in accordance with such determination and shall be
entitled to conclusively rely on such determination; provided that, no party
hereto may reverse any determination made by another party hereto that a P&I
Advance is a Nonrecoverable Advance. The Trustee and any Fiscal Agent shall be
entitled to rely, conclusively, on any determination by the applicable Master
Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance (and the
Trustee and any Fiscal Agent) shall rely on such Master Servicer's determination
that the P&I Advance would be a Nonrecoverable Advance if the Trustee or any
Fiscal Agent determines that it does not have sufficient time to make such
determination); provided, however, that if such Master Servicer has failed to
make a P&I Advance for reasons other than a determination by such Master
Servicer or the Special Servicer that such P&I Advance would be a Nonrecoverable
Advance, the Trustee or any Fiscal Agent shall make such Advance within the time
periods required by Section 4.03(a) unless the Trustee or any Fiscal Agent, as
the case may be, in good faith makes a determination prior to the times
specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable
Advance. The Special Servicer, in determining whether or not a P&I Advance
previously made is, or a proposed P&I Advance, if made, would be, a
Nonrecoverable Advance, shall be subject to the standards applicable to each
Master Servicer hereunder.
Notwithstanding the foregoing, if the WBCMT Series 2007-C30 Master
Servicer provides Master Servicer No. 1 with written notice to the effect that
it has determined that a proposed P&I Advance, if made, would be Nonrecoverable
P&I Advance or that an outstanding P&I Advance is a Nonrecoverable P&I Advance,
Master Servicer No. 1 shall not make any P&I Advances with respect to the Xxxxx
Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan until it has consulted
with the WBCMT Series 2007-C30 Master Servicer and agreed that circumstances
with respect to the Xxxxx Xxxxxx Village and Stuyvesant Town Loan Combination
have changed such that it is not expected that a proposed future P&I Advance
would be a Nonrecoverable P&I Advance.
(d) In connection with the recovery by either Master Servicer, the
Trustee or any Fiscal Agent of any P&I Advance out of the applicable Collection
Account pursuant to Section 3.05(a), subject to the following sentence, such
Master Servicer shall be entitled to pay itself, the Trustee or any Fiscal
Agent, as the case may be, out of any amounts then on deposit in its Collection
Account, interest at the Reimbursement Rate in effect from time to time, accrued
on the amount of such P&I Advance (to the extent made with its own funds) from
the date made to but not including the date of reimbursement, such interest to
be payable first out of Default Charges received on the related Trust Mortgage
Loan or
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Trust REO Loan during the Collection Period in which such reimbursement is made,
then from general collections on the Trust Mortgage Loans then on deposit in
such Master Servicer's Collection Account; provided, however, that no interest
shall accrue on any P&I Advance made with respect to a Trust Mortgage Loan if
the related Periodic Payment is received on or prior to the Due Date of such
Trust Mortgage Loan, prior to the expiration of any applicable grace period or
prior to the related P&I Advance Date; and provided, further, that, if such P&I
Advance was made with respect to a Trust Mortgage Loan that is part of a Loan
Combination or any successor Trust REO Loan with respect thereto, then such
interest on such P&I Advance shall first be payable out of amounts on deposit in
the related Loan Combination Custodial Account in accordance with Section
3.05(e). Subject to Section 4.03(f), the applicable Master Servicer shall
reimburse itself, the Trustee or any Fiscal Agent, for any outstanding P&I
Advance made thereby as soon as practicable after funds available for such
purpose have been received by such Master Servicer, and in no event shall
interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to
which the corresponding Late Collection was received by such Master Servicer on
or prior to the related P&I Advance Date.
(e) In no event shall either Master Servicer, the Trustee or any
Fiscal Agent make a P&I Advance with respect to any Non-Trust Loan.
(f) Upon the determination that a previously made Advance is a
Nonrecoverable Advance, to the extent that the reimbursement thereof would
exceed the full amount of the principal portion of general collections deposited
in the Collection Accounts, the applicable Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent, at its own option, instead of
obtaining reimbursement for the remaining amount of such Nonrecoverable Advance
immediately, may elect to refrain from obtaining such reimbursement for such
portion of the Nonrecoverable Advance during the one-month Collection Period
ending on the then-current Determination Date. If any of the applicable Master
Servicer, the Special Servicer, the Trustee or any Fiscal Agent makes such an
election at its sole option to defer reimbursement with respect to all or a
portion of a Nonrecoverable Advance (together with interest thereon), then such
Nonrecoverable Advance (together with interest thereon) or portion thereof shall
continue to be fully reimbursable in the subsequent Collection Period (subject,
again, to the same sole option to defer; it is acknowledged that, in such a
subsequent period, such Nonrecoverable Advance shall again be payable first from
principal collections as described above prior to payment from other
collections). Notwithstanding the foregoing, no party entitled to reimbursement
for a Nonrecoverable Advance or a portion of a Nonrecoverable Advance may defer
the reimbursement of that Nonrecoverable Advance or the subject portion of a
Nonrecoverable Advance for a period greater than 12 months without the consent
of the Controlling Class Representative. In connection with a potential election
by any of the applicable Master Servicer, the Special Servicer, the Trustee or
any Fiscal Agent to refrain from the reimbursement of a particular
Nonrecoverable Advance or portion thereof during the one-month Collection Period
ending on the related Determination Date for any Distribution Date, such Master
Servicer, the Special Servicer, the Trustee or any Fiscal Agent, as the case may
be, shall further be authorized to wait for principal collections to be received
before making its determination of whether to refrain from the reimbursement of
a particular Nonrecoverable Advance or portion thereof until the end of such
Collection Period. The foregoing shall not, however, be construed to limit any
liability that may otherwise be imposed on such Person for any failure by such
Person to comply with the conditions to making such an election under this
subsection or to comply with the terms of this subsection and the other
provisions of this Agreement that apply once such an election, if any, has been
made. Any election by any of the applicable Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent to refrain from reimbursing itself for
any Nonrecoverable Advance (together with interest thereon) or portion thereof
with respect to any Collection Period shall not be construed to impose on any of
such
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Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent, as the
case may be, any obligation to make such an election (or any entitlement in
favor of any Certificateholder or any other Person to such an election) with
respect to any subsequent Collection Period or to constitute a waiver or
limitation on the right of such Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent, as the case may be, to otherwise be reimbursed for
such Nonrecoverable Advance (together with interest thereon). Any such election
by any of the applicable Master Servicer, the Special Servicer, the Trustee or
any Fiscal Agent shall not be construed to impose any duty on the other such
party to make such an election (or any entitlement in favor of any
Certificateholder or any other Person to such an election). Any such election by
any such party to refrain from reimbursing itself or obtaining reimbursement for
any Nonrecoverable Advance or portion thereof with respect to any one or more
Collection Periods shall not limit the accrual of interest on such
Nonrecoverable Advance for the period prior to the actual reimbursement of such
Nonrecoverable Advance. None of the applicable Master Servicer, the Special
Servicer, the Trustee, any Fiscal Agent or the other parties to this Agreement
shall have any liability to one another or to any of the Certificateholders for
any such election that such party makes as contemplated by this subsection or
for any losses, damages or other adverse economic or other effects that may
arise from such an election, and any such election shall not, with respect to
the applicable Master Servicer or the Special Servicer, constitute a violation
of the Servicing Standard nor, with respect to the Trustee or any Fiscal Agent,
constitute a violation of any fiduciary duty to the Certificateholders or any
contractual duty under this Agreement. Nothing herein shall give the applicable
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent the right
to defer reimbursement of a Nonrecoverable Advance to the extent that principal
collections then available in the Collection Accounts are sufficient to
reimburse such Nonrecoverable Advances pursuant to Section 3.05(a)(vii).
SECTION 4.04 Allocation of Realized Losses and Additional Trust
Fund Expenses.
(a) On each Distribution Date, following all distributions to be
made on such date pursuant to Section 4.01, the Trustee shall allocate to the
respective Classes of Sequential Pay Certificates (exclusive of the Class A-2FL
Certificates and the Class AJ-FL Certificates), the Class A-2FL REMIC II Regular
Interest and the Class AJ-FL REMIC II Regular Interest as follows the aggregate
of all Realized Losses and Additional Trust Fund Expenses that were incurred at
any time following the Cut-off Date through the end of the related Collection
Period and in any event that were not previously allocated pursuant to this
Section 4.04(a) on any prior Distribution Date, but only to the extent that (i)
the aggregate of the Class Principal Balances of the Sequential Pay Certificates
(exclusive of the Class A-2FL Certificates and the Class AJ-FL Certificates),
the Class A-2FL REMIC II Regular Interest and the Class AJ-FL REMIC II Regular
Interest as of such Distribution Date (after taking into account all of the
distributions made on such Distribution Date pursuant to Section 4.01), exceeds
(ii) the aggregate Stated Principal Balance of, and any Unliquidated Advances
with respect to, the Mortgage Pool that will be outstanding immediately
following such Distribution Date: first, sequentially, to the Class Q, Class P,
Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E,
Class D, Class C, Class B, Class AJ and Class AJ-FL on a pro rata and pari passu
basis, and Class AM Certificates, in that order, in each case until the
remaining Class Principal Balance thereof is reduced to zero; and then, pro rata
(based on remaining Class Principal Balances) to the Class A-1, Class A-2, Class
A-3, Class A-4 and Class A-1A Certificates and the Class A-2FL REMIC II Regular
Interest until the respective Class Principal Balances thereof are reduced to
zero. Any Realized Losses and Additional Trust Fund Expenses allocated to the
Class A-2FL REMIC II Regular Interest shall, in turn, be deemed allocated to the
Class A-2FL Certificates. Any Realized Losses and Additional Trust Fund Expenses
allocated to the Class AJ-FL REMIC II Regular Interest shall, in turn, be deemed
allocated to the
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Class AJ-FL Certificates. Any allocation of Realized Losses and Additional Trust
Fund Expenses to a Class of Sequential Pay Certificates, the Class A-2FL REMIC
II Regular Interest and the Class AJ-FL REMIC II Regular Interest shall be made
by reducing the Class Principal Balance thereof by the amount so allocated. All
Realized Losses and Additional Trust Fund Expenses, if any, allocated to a Class
of Sequential Pay Certificates shall be allocated among the respective
Certificates of such Class in proportion to the Percentage Interests evidenced
thereby. All Realized Losses and Additional Trust Fund Expenses, if any, that
have not been allocated to the Sequential Pay Certificates (exclusive of the
Class A-2FL and Class AJ-FL Certificates), the Class A-2FL REMIC II Regular
Interest and/or the Class AJ-FL REMIC II Regular Interest as of the Distribution
Date on which the aggregate of the Class Principal Balances of the Sequential
Pay Certificates (exclusive of the Class A-2FL and Class AJ-FL Certificates),
the Class A-2FL REMIC II Regular Interest and the Class AJ-FL REMIC II Regular
Interest has been reduced to zero, shall be deemed allocated to the Residual
Certificates.
If and to the extent any Nonrecoverable Advances (and/or interest
thereon) that were reimbursed from principal collections on the Mortgage Pool
and previously resulted in a reduction of the Principal Distribution Amount are
subsequently recovered on the related Trust Mortgage Loan or Trust REO Loan,
then, on the Distribution Date immediately following the Collection Period in
which such recovery occurs, the Class Principal Balances of the respective
Classes of Sequential Pay Certificates (exclusive of the Class A-2FL and Class
AJ-FL Certificates), the Class A-2FL REMIC II Regular Interest and/or the Class
AJ-FL REMIC II Regular Interest shall be increased, in the reverse order from
which Realized Losses and Additional Trust Fund Expenses are allocated pursuant
to Section 4.04(a), by the amount of any such recoveries that are included in
the Principal Distribution Amount for the current Distribution Date; provided,
however, that, in any case, the Class Principal Balance of any Class of
Sequential Pay Certificates (exclusive of the Class A-2FL and Class AJ-FL
Certificates), the Class A-2FL REMIC II Regular Interest and the Class AJ-FL
REMIC II Regular Interest shall in no event be increased by more than the amount
of unreimbursed Realized Losses and Additional Trust Fund Expenses previously
allocated thereto (which unreimbursed Realized Losses and Additional Trust Fund
Expenses shall be reduced by the amount of the increase in such Class Principal
Balance); and provided, further, that the aggregate increase in the Class
Principal Balances of the respective Classes of the Sequential Pay Certificates
(exclusive of the Class A-2FL and Class AJ-FL Certificates), the Class A-2FL
REMIC II Regular Interest and the Class AJ-FL REMIC II Regular Interest on any
Distribution Date shall not exceed the excess, if any, of (1) the aggregate
Stated Principal Balance of, and all Unliquidated Advances with respect to, the
Mortgage Pool that will be outstanding immediately following such Distribution
Date, over (2) the aggregate of the Class Principal Balances of the respective
Classes of the Sequential Pay Certificates (exclusive of the Class A-2FL and
Class AJ-FL Certificates), the Class A-2FL REMIC II Regular Interest and the
Class AJ-FL REMIC II Regular Interest outstanding immediately following the
distributions to be made on such Distribution Date, but prior to any such
increase in any of those Class Principal Balances. If the Class Principal
Balance of any Class of Sequential Pay Certificates, the Class A-2FL REMIC II
Regular Interest or the Class AJ-FL REMIC II Regular Interest is so increased,
the amount of unreimbursed Realized Losses and/or Additional Trust Fund Expenses
considered to be allocated to such Class shall be decreased by such amount.
(b) If the Class Principal Balance of any Class of Sequential Pay
Certificates (exclusive of the Class A-2FL Certificates and the Class AJ-FL
Certificates), the Class A-2FL REMIC II Regular Interest or the Class AJ-FL
REMIC II Regular Interest is reduced on any Distribution Date pursuant to the
first paragraph of Section 4.04(a), then the REMIC I Principal Balance of such
Class's Corresponding REMIC I Regular Interest (or, if applicable, the aggregate
REMIC I Principal Balance of
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such Class's Corresponding REMIC I Regular Interests) shall be deemed to have
first been reduced on such Distribution Date by the exact same amount. If a
Class of Sequential Pay Certificates has two or more Corresponding REMIC I
Regular Interests, then the respective REMIC I Principal Balances of such
Corresponding REMIC I Regular Interests shall be reduced as contemplated by the
preceding sentence in the same sequential order that principal distributions are
deemed made on such Corresponding REMIC I Regular Interests pursuant to Section
4.01(i), such that no reduction shall be made in the REMIC I Principal Balance
of any such Corresponding REMIC I Regular Interest pursuant to this Section
4.04(b) until the REMIC I Principal Balance of each other such Corresponding
REMIC I Regular Interest, if any, with an alphanumeric designation that ends in
a lower number, has been reduced to zero. Any and all such reductions in the
REMIC I Principal Balances of the respective REMIC I Regular Interests shall be
deemed to constitute allocations of Realized Losses and Additional Trust Fund
Expenses thereto.
If the Class Principal Balance of any Class of Sequential Pay
Certificates (exclusive of the Class A-2FL Certificates and the Class AJ-FL
Certificates), the Class A-2FL REMIC II Regular Interest or the Class AJ-FL
REMIC II Regular Interest is increased on any Distribution Date pursuant to the
second paragraph of Section 4.04(a), then the REMIC I Principal Balance of such
Class's Corresponding REMIC I Regular Interest (or, if applicable, the aggregate
REMIC I Principal Balance of such Class's Corresponding REMIC I Regular
Interests) shall be deemed to have first been increased on such Distribution
Date by the exact same amount. In circumstances where there are multiple
Corresponding REMIC I Regular Interests with respect to a Class of Sequential
Pay Certificates, the increases in the respective REMIC I Principal Balances of
such Corresponding REMIC I Regular Interests as contemplated by the prior
sentence shall be made in the reverse order that reductions are made to such
REMIC I Principal Balances pursuant to the prior paragraph of this Section
4.04(b), in each case up to the amount of the remaining unreimbursed Realized
Loses and Additional Trust Fund Expenses previously deemed allocated to the
subject REMIC I Regular Interest.
SECTION 4.05 Calculations.
The Trustee shall, provided it receives the necessary information
from the Master Servicers 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, Section
5.02(d) and Article IX and the actual and deemed allocations of Realized Losses,
Additional Trust Fund Expenses and other items to be made pursuant to Section
4.04. The Trustee shall calculate the Available Distribution Amount for each
Distribution Date and shall allocate such amount 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 either 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.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibits X-0, X-0, X-0, X-0, X-0, X-0, A-7 and A-8, as
applicable; 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 Sequential Pay Certificates and the Class X Certificates shall
initially be held and transferred through the book-entry facilities of the
Depository. The Sequential Pay Certificates and the Class X Certificates will be
issuable only in denominations corresponding to initial Certificate Principal
Balances or initial Certificate Notional Amounts, as the case may be, as of the
Closing Date of not less than $25,000 in the case of the Registered Certificates
and not less than $100,000 in the case of Non-Registered Certificates (other
than the Class Y Certificates, the Class Z Certificates and the Residual
Certificates), and in each such case in integral multiples of $1 in excess
thereof. The Class R-I and Class R-II Certificates will be issuable in minimum
Percentage Interests of 10%. The Class Y Certificates and the Class Z
Certificates shall have no minimum denomination and shall each be represented by
a single Definitive Certificate.
(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 (located as of the Closing Date at the
Corporate Trust Office of the Trustee) 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 Certificate Registrar may appoint, by a written instrument
delivered to the Depositor, the Master Servicers, the Special Servicer and (if
the Trustee is not the Certificate Registrar) the Trustee, any other bank or
trust company
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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 Servicers 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.
Upon written request of any Certificateholder made for purposes of
communicating with other Certificateholders with respect to their rights under
this Agreement, the Certificate Registrar shall promptly furnish such
Certificateholder with a list of the other Certificateholders of record
identified in the Certificate Register at the time of the request.
(b) No Transfer of any Non-Registered Certificate or interest
therein shall be made unless that Transfer is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of any Definitive Non-Registered Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance of the Non-Registered Certificates or a Transfer of
such Certificate by the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated or any of their respective Affiliates or, in the case of a Global
Certificate for any Class of Book-Entry Non-Registered Certificates, a Transfer
thereof to a successor Depository or to the applicable Certificate Owner(s) in
accordance with Section 5.03), then the Certificate Registrar shall refuse to
register such Transfer unless it receives (and, upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such Transfer substantially in the form attached hereto as Exhibit E-1
and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached hereto either as Exhibit E-2A or, except in
the case of the Class Y, Class Z, Class R-I or Class R-II Certificates, as
Exhibit E-2B; or (ii) an Opinion of Counsel satisfactory to the Trustee to the
effect that the prospective Transferee is a Qualified Institutional Buyer or,
except in the case of the Class Y, Class Z, Class R-I or Class R-II
Certificates, an Institutional Accredited Investor, 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
Servicers, the Special Servicer, the REMIC 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.
No beneficial interest in the Rule 144A Global Certificate for any
Class of Book-Entry Non-Registered Certificates may be held by any Person that
is not a Qualified Institutional Buyer. If a Transfer of any interest in the
Rule 144A Global Certificate for any Class of Book-Entry Non-Registered
Certificates is to be made without registration under the Securities Act (other
than in connection with the initial issuance of the Book-Entry Non-Registered
Certificates or a Transfer of any interest therein by the Depositor, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or any of their respective
Affiliates), then the Certificate Owner desiring to effect such Transfer shall
be required to obtain either (i) a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached hereto as Exhibit
E-2C, or (ii) an Opinion of Counsel to the effect that the prospective
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Transferee is a Qualified Institutional Buyer and such Transfer may be made
without registration under the Securities Act. If any Transferee of an interest
in the Rule 144A Global Certificate for any Class of Book-Entry Non-Registered
Certificates does not, in connection with the subject Transfer, deliver to the
Transferor the Opinion of Counsel or the certification described in the
preceding sentence, then such Transferee shall be deemed to have represented and
warranted that all the certifications set forth in Exhibit E-2C hereto are, with
respect to the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the Rule
144A Global Certificate for a Class of Book-Entry Non-Registered Certificates
may be transferred to any Non-United States Securities Person who takes delivery
in the form of a beneficial interest in the Regulation S Global Certificate for
such Class of Certificates, provided that the Certificate Owner desiring to
effect such Transfer (i) complies with the requirements for Transfers of
interests in such Regulation S Global Certificate set forth in the following
paragraph and (ii) delivers or causes to be delivered to the Certificate
Registrar and the Trustee (A) a certificate from such Certificate Owner
confirming its ownership of the beneficial interests in the subject Class of
Book-Entry Non-Registered Certificates to be transferred, (B) a copy of the
certificate to be obtained by such Certificate Owner from its prospective
Transferee in accordance with the second sentence of the following paragraph and
(C) such written orders and instructions as are required under the applicable
procedures of the Depository, Clearstream and Euroclear to direct the Trustee,
as transfer agent for the Depository, to approve the debit of the account of a
Depository Participant by a denomination of interests in such Rule 144A Global
Certificate, and approve the credit of the account of a Depository Participant
by a denomination of interests in such Regulation S Global Certificate, that is
equal to the denomination of beneficial interests in the subject Class of
Book-Entry Non-Registered Certificates to be transferred. Upon delivery to the
Certificate Registrar and the Trustee of such certifications and such orders and
instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the Rule 144A
Global Certificate in respect of the subject Class of Book-Entry Non-Registered
Certificates, and increase the denomination of the Regulation S Global
Certificate for such Class of Certificates, by the denomination of the
beneficial interest in such Class of Certificates specified in such orders and
instructions.
No beneficial interest in the Regulation S Global Certificate for
any Class of Book-Entry Non-Registered Certificates may be held by any Person
that is a United States Securities Person. Any Certificate Owner desiring to
effect any Transfer of a beneficial interest in the Regulation S Global
Certificate for any Class of Book-Entry Non-Registered Certificates shall be
required to obtain from such Certificate Owner's prospective Transferee a
certificate substantially in the form set forth in Exhibit E-2D hereto to the
effect that such Transferee is not a United States Securities Person. If any
Transferee of an interest in the Regulation S Global Certificate for any Class
of Book-Entry Non-Registered Certificates does not, in connection with the
subject Transfer, deliver to the Transferor the certification described in the
preceding sentence, then such Transferee shall be deemed to have represented and
warranted that all the certifications set forth in Exhibit E-2D hereto are, with
respect to the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred to any Qualified Institutional Buyer that takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates, provided that the Certificate Owner
desiring to effect such transfer (i) complies with the requirements for
Transfers of interests in such Rule 144A Global Certificate set forth in the
third paragraph of this Section 5.02(b) and (ii) delivers or causes to be
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delivered to the Certificate Registrar and the Trustee (A) a certificate from
such Certificate Owner confirming its ownership of the beneficial interests in
the subject Class of Book-Entry Non-Registered Certificates to be transferred,
(B) a copy of the certificate or Opinion of Counsel to be obtained by such
Certificate Owner from its prospective Transferee in accordance with the second
sentence of the third paragraph of this Section 5.02(b) and (C) such written
orders and instructions as are required under the applicable procedures of the
Depository, Clearstream and Euroclear to direct the Trustee to debit the account
of a Depository Participant by a denomination of interests in such Regulation S
Global Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Rule 144A Global Certificate, that is equal to
the denomination of beneficial interests in the subject Class of Book-Entry
Non-Registered Certificates to be transferred. Upon delivery to the Certificate
Registrar and the Trustee of such certification(s) and/or Opinion of Counsel and
such orders and instructions, the Trustee, subject to and in accordance with the
applicable procedures of the Depository, shall reduce the denomination of the
Regulation S Global Certificate in respect of the subject Class of Book-Entry
Non-Registered Certificates, and increase the denomination of the Rule 144A
Global Certificate for such Class of Certificates, by the denomination of the
beneficial interest in such Class of Certificates specified in such orders and
instructions.
Also notwithstanding the foregoing, any interest in a Global
Certificate with respect to any Class of Book-Entry Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
that takes delivery in the form of a Definitive Certificate of the same Class as
such Global Certificate upon delivery to the Certificate Registrar and the
Trustee of (i) such certifications and/or opinions as are contemplated by the
second paragraph of this Section 5.02(b) and (ii) such written orders and
instructions as are required under the applicable procedures of the Depository
to direct the Trustee to debit the account of a Depository Participant by the
denomination of the transferred interests in such Global Certificate. Upon
delivery to the Certificate Registrar and the Trustee of the certifications
and/or opinions contemplated by the second paragraph of this Section 5.02(b),
the Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the subject Global Certificate by
the denomination of the transferred interests in such Global Certificate, and
shall cause a Definitive Certificate of the same Class as such Global
Certificate, and in a denomination equal to the reduction in the denomination of
such Global Certificate, to be executed, authenticated and delivered in
accordance with this Agreement to the applicable Transferee.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Non-Registered Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the Transfer of any
Non-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 Initial Purchasers, the Trustee,
any Fiscal Agent, the Master Servicers, the Special Servicer, the REMIC
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
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ERISA or the Code or any other federal, state, local or foreign law ("Similar
Law") that is substantially similar to Section 405 or 407 of ERISA or Section
4975 of the Code (each, a "Plan"), or (ii) to any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of such Certificate or interest therein by the prospective Transferee
would result in a non-exempt violation of Section 406 or 407 of ERISA or Section
4975 of the Code or Similar Law or would result in the imposition of an excise
tax under Section 4975 of the Code. The foregoing sentence notwithstanding, no
Transfer of the Class Y, Class Z, Class R-I and R-II Certificates shall be made
to a Plan or to a 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. Except in connection with the initial issuance of
the Non-Registered Certificates or any Transfer of a Non-Registered Certificate
or any interest therein by the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated or any of their respective Affiliates or, in the case of a Global
Certificate for any Class of Book-Entry Non-Registered Certificates, any
Transfer thereof to a successor Depository or to the applicable Certificate
Owner(s) in accordance with Section 5.03, the Certificate Registrar shall refuse
to register the Transfer of a Definitive Non-Registered Certificate unless it
has received from the prospective Transferee, and any Certificate Owner
transferring an interest in a Global Certificate for any Class of Book-Entry
Non-Registered Certificates shall be required to obtain from its prospective
Transferee, one of the following: (i) a certification to the effect that such
prospective Transferee is not a Plan and is not directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or (ii) alternatively, except in
the case of the Class Y, Class Z, Class R-I and Class R-II Certificates, 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 and 407 of ERISA and the excise taxes
imposed on such prohibited transactions by Section 4975 of the Code, by reason
of Sections I and III of Prohibited Transaction Class Exemption 95-60; or (iii)
alternatively, but only in the case of a Non-Registered Certificate that is an
Investment Grade Certificate that is being acquired by or on behalf of a Plan in
reliance on the Exemption, a certification to the effect that such Plan (X) is
an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (Y) is not sponsored (within the meaning of Section 3(16)(B) of
ERISA) by the Trustee, the Depositor, any Mortgage Loan Seller, either Master
Servicer, the Special Servicer, any Sub-Servicer, any Fiscal Agent, any Person
responsible for servicing the Xxxxx Xxxxxx Village and Stuyvesant Town Trust
Mortgage Loan or related Xxxxx Xxxxxx Village and Stuyvesant Town REO Property,
any Exemption-Favored Party or any Mortgagor with respect to Trust Mortgage
Loans constituting more than 5% of the aggregate unamortized principal balance
of all the Trust Mortgage Loans determined as of the Closing Date, or by any
Affiliate of such Person, and (Z) agrees that it will obtain from each of its
Transferees that is a Plan a written representation that such Transferee
satisfies the requirements of the immediately preceding clauses (iii)(X) and
(iii)(Y), together with a written agreement that such Transferee will obtain
from each of its Transferees that is a Plan a similar written representation
regarding satisfaction of the requirements of the immediately preceding clauses
(iii)(X) and (iii)(Y); or (iv) alternatively, except in the case of the Class
R-I and Class R-II Certificates, 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 and,
in the case of a Class A-2FL Certificate (prior to a Class A-2FL Distribution
Conversion becoming permanent as contemplated in Section 3.30(e)) or a Class
AJ-FL Certificate (prior to the Class AJ-FL Distribution Conversion becoming
permanent as contemplated in Section 3.30(e)), a certification that the purchase
and holding of such Certificate satisfies the requirements for exemptive relief
under Prohibited Transaction Class Exemption ("PTCE") 84-14,
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XXXX 00-0, XXXX 91-38, Section I of XXXX 00-00, XXXX 96-23 or a similar
exemption. It is hereby acknowledged that the forms of certification attached
hereto as Exhibit F-1 (in the case of Definitive Non-Registered Certificates)
and Exhibit F-2 (in the case of ownership interests in Book-Entry Non-Registered
Certificates) are acceptable for purposes of the preceding sentence. If any
Transferee of a Certificate (including a Registered Certificate) or any interest
therein does not, in connection with the subject Transfer, deliver to the
Certificate Registrar (in the case of a Definitive Certificate) or the
Transferor (in the case of ownership interests in a Book-Entry Certificate) any
certification and/or Opinion of Counsel contemplated by the second preceding
sentence, then such Transferee shall be deemed to have represented and warranted
that either: (i) such Transferee is not a Plan and is not directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or (ii) the purchase and holding of
such Certificate or interest therein by such Transferee is exempt from the
prohibited transaction provisions of Sections 406 and 407 of ERISA and the
excise taxes imposed on such prohibited transactions by Section 4975 of the
Code.
(d) (i) Each Person who has or who acquires any Ownership Interest
in a Residual 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 Certificate are
expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Permitted
Transferee and shall promptly notify the REMIC
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 Certificate, the
Certificate Registrar shall require delivery to it, and
shall not register the Transfer of any Residual
Certificate until its receipt, of an affidavit and
agreement substantially in the form attached hereto as
Exhibit G-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 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 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
Certificate to such proposed Transferee shall be
effected.
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(D) Each Person holding or acquiring any Ownership Interest
in a Residual 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 Certificate and (2)
not to Transfer its Ownership Interest in such Residual
Certificate unless it provides to the Certificate
Registrar a certificate substantially in the form
attached hereto as Exhibit G-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 Certificate, by purchasing such Ownership
Interest, agrees to give the REMIC 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 Certificate, if it is, or is holding an
Ownership Interest in a Residual Certificate on behalf
of, a "pass-through interest holder".
(ii) (A) If any purported Transferee shall become a Holder
of a Residual Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Holder of such Residual 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
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 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 Certificate in violation of the restrictions in this Section 5.02(d),
then, to the extent that the retroactive restoration of the rights of the
preceding Holder of such Residual 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 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 Certificate as a result of the Trustee's
exercise of such discretion. Such purported Transferee shall promptly endorse
and deliver such Residual 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 REMIC Administrator shall make available to the
Internal Revenue Service and to those Persons specified by the REMIC
Provisions all information furnished to it by the other parties hereto
that is necessary to compute any tax imposed (A) as a result of the
Transfer of an Ownership Interest in a Residual 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 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
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Code that holds an Ownership Interest in a Residual 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
REMIC Administrator all information in its possession necessary for the
REMIC Administrator to discharge such obligation. The Person holding such
Ownership Interest shall be responsible for the reasonable compensation of
the REMIC Administrator for providing such information thereto pursuant to
this subsection (d)(iii) and Section 10.01(g)(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 REMIC 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 REMIC 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 REMIC Administrator or the Trust Fund), to
the effect that doing so will not (1) cause REMIC I or
REMIC II to cease to qualify as a REMIC or be subject to
an entity-level tax caused by the Transfer of any
Residual 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
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.
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(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 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.
(k) Upon request, the Certificate Registrar shall provide to the
Master Servicers, the Special Servicer and the Depositor notice of each transfer
of a Certificate and shall provide to each such Person with an updated copy of
the Certificate Register.
SECTION 5.03 Book-Entry Certificates.
(a) Each Class of Regular Certificates, the Class A-2FL
Certificates and the Class AJ-FL Certificates shall initially be issued as one
or more Certificates registered in the name of the Depository or its nominee
and, except as provided in Section 5.03(c) and 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 Section 5.02(b), shall not be
entitled to definitive, fully registered Certificates ("Definitive
Certificates") in respect of such Ownership Interests. The Class X, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P
and Class Q Certificates initially sold to Qualified Institutional Buyers in
reliance on Rule 144A or in reliance on another exemption from the registration
requirements of the Securities Act shall, in the case of each such Class, be
represented by the Rule 144A Global Certificate for such Class, which shall be
deposited with the Trustee as custodian for the Depository and registered in the
name of Cede & Co. as nominee of the Depository. The Class X, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P
and Class Q Certificates initially sold in offshore transactions in reliance on
Regulation S shall, in the case of each such Class, be represented by the
Regulation S Global Certificate for such Class, which shall be deposited with
the Trustee as custodian for the Depository and registered in the name of Cede &
Co. as nominee of the Depository. All Transfers by Certificate Owners of their
respective Ownership Interests in the Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing each such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures. Each
Certificate Owner is deemed, by virtue of its acquisition of an Ownership
Interest in the applicable Class of Book-Entry Certificates, to agree to comply
with the transfer requirements provided for in Section 5.02.
(b) The Trustee, the Master Servicers, 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
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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
Servicers, the Special Servicer, the Trustee or the Certificate Registrar shall
be liable for any delay in delivery of such instructions, and each of them may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates for purposes of evidencing
ownership of any Class of Registered Certificates, the registered holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) Notwithstanding any other provisions contained herein, neither
the Trustee nor the Certificate Registrar shall have any responsibility
whatsoever to monitor or restrict the Transfer of ownership interests in any
Certificate (including but not limited to any Non-Registered Certificate or any
Subordinated Certificate) which interests are transferable through the
book-entry facilities of the Depository.
SECTION 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be reasonably required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate under this Section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and the Certificate Registrar) connected
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therewith. Any replacement Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the applicable
REMIC created hereunder, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
SECTION 5.05 Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicers, 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 of the related Record Date as the owner of
such Certificate for the purpose of receiving distributions pursuant to Section
4.01 and may treat the person in whose name each Certificate is registered as of
the relevant date of determination as owner of such Certificate for all other
purposes whatsoever and none of the Depositor, the Master Servicers, the Special
Servicer, the Trustee, the Certificate Registrar or any agent of any of them
shall be affected by notice to the contrary.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS, THE SPECIAL SERVICER AND THE CONTROLLING
CLASS REPRESENTATIVE
SECTION 6.01 Liability of Depositor, Master Servicers and Special
Servicer.
The Depositor, the Master Servicers 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 Servicers and the Special Servicer herein.
SECTION 6.02 Merger, Consolidation or Conversion of Depositor or
Master Servicers or Special Servicer.
Subject to the following paragraph, the Depositor, the Master
Servicers and the Special Servicer shall each keep in full effect its existence,
rights and franchises as an entity under the laws of the jurisdiction of its
incorporation or organization, and each will obtain and preserve its
qualification to do business as a foreign entity in each jurisdiction in which
such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Trust Mortgage
Loans and to perform its respective duties under this Agreement.
The Depositor, either Master Servicer or the Special Servicer may be
merged or consolidated with or into any Person (other than the Trustee), or
transfer all or substantially all of its assets (which, in the case of either
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, either Master Servicer or the Special Servicer shall be a party, or
any Person succeeding to the business (which, in the case of either Master
Servicer or the Special Servicer, may be limited to the commercial mortgage loan
servicing business) of the Depositor, the subject Master Servicer or the Special
Servicer, shall be the successor of the Depositor, the subject 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 either Master
Servicer or the Special Servicer unless (i) as evidenced in writing by the
Rating Agencies, such succession will not result in an Adverse Rating Event and
(ii) such successor or surviving Person makes the applicable representations and
warranties set forth in Section 3.23.
SECTION 6.03 Limitation on Liability of the Depositor, the Master
Servicers, the Special Servicer and Others.
(a) None of the Depositor, the Master Servicers, the Special
Servicer nor any of the Affiliates, directors, partners, members, managers,
shareholders, officers, employees or agents of any of them shall be under any
liability to the Trust Fund, the Underwriters, the parties hereto, the
Certificateholders or any other Person for any action taken, or for refraining
from the taking of any action, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect the
Depositor, either Master Servicer, the Special Servicer nor any of the
Affiliates, directors, partners, members, managers, shareholders, officers,
employees or agents of any of them against any liability to the Trust Fund, the
Trustee, the Certificateholders or any other Person for
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the breach of warranties or representations 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
Servicers, the Special Servicer and any director, officer, employee or agent of
the Depositor, either 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 Servicers, the Special Servicer, and any
Affiliate, director, shareholder, member, partner, manager, officer, employee or
agent of any of the foregoing shall be indemnified and held harmless by the
Trust Fund out of the Collection Accounts or the Distribution Account, as
applicable in accordance with Section 3.05, against any loss, liability or
expense (including reasonable legal fees and expenses) incurred in connection
with any legal action or claim relating to this Agreement, the Mortgage Loans or
the Certificates (including, without limitation, the distribution or posting of
reports or other information as contemplated by this Agreement), other than any
loss, liability or expense: (i) specifically required to be borne thereby
pursuant to the terms hereof or that would otherwise constitute a Servicing
Advance; (ii) incurred in connection with any breach of a representation or
warranty made by it herein; (iii) incurred by reason of bad faith, willful
misconduct or negligence in the performance of its obligations or duties
hereunder or negligent disregard of such obligations or duties; or (iv) incurred
in connection with any violation by any of them of any state or federal
securities law; provided, however, that if and to the extent that a Loan
Combination and/or a related Non-Trust Noteholder is involved, such expenses,
costs and liabilities shall be payable out of the related Loan Combination
Custodial Account pursuant to Section 3.05(e) and, if and to the extent not
solely attributable to a related Non-Trust Loan (or any successor REO Loan with
respect thereto), shall also be payable out of the Collection Accounts if
amounts on deposit in the related Loan Combination Custodial Account are
insufficient therefor; and provided, further, that in making a determination as
to whether any such indemnity is solely attributable to a Non-Trust Loan (or any
successor REO Loan with respect thereto), the fact that any related legal action
was instituted by such Non-Trust Noteholder shall not create a presumption that
such indemnity is solely attributable thereto.
(b) None of the Depositor, the Master Servicers or the Special
Servicer shall be under any obligation to appear in, prosecute or defend any
legal or administrative action, proceeding, hearing or examination that is not
incidental to its respective duties under this Agreement and, unless it is
specifically required to bear the costs thereof, that in its opinion may involve
it in any expense or liability for which it is not reasonably assured of
reimbursement by the Trust; provided, however, that the Depositor, either Master
Servicer or the Special Servicer may in its discretion undertake any such
action, proceeding, hearing or examination that 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
hereunder. In such event, the reasonable legal fees, expenses and costs of such
action, proceeding, hearing or examination and any liability resulting therefrom
shall be expenses, costs and liabilities of the Trust Fund, and the Depositor,
the applicable Master Servicer and the Special Servicer shall be entitled to be
reimbursed therefor out of amounts attributable to the Mortgage Pool on deposit
in the Collection Accounts as provided by Section 3.05(a); provided, however,
that if a Loan Combination is involved, such expenses, costs and liabilities
shall be payable out of the related Loan Combination Custodial Account pursuant
to Section 3.05(e) and, if and to the extent not solely attributable to a
related Non-Trust Loan (or any successor REO Loan with respect thereto), shall
also be payable out of the Collection Accounts if amounts on deposit in the
related Loan Combination Custodial Account are
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insufficient therefor, and provided, further, that in making a determination as
to whether any such expenses, costs and liabilities are solely attributable to a
Non-Trust Loan (or any successor REO Loan with respect thereto), the fact that
any related legal action was instituted by such Non-Trust Noteholder shall not
create a presumption that such expenses, costs and liabilities are solely
attributable thereto.
In no event shall either Master Servicer or the Special Servicer be
liable or responsible for any action taken or omitted to be taken by the other
of them or by the Depositor, the Trustee or any Certificateholder, subject to
the provisions of Section 8.05(b).
(c) Each Master Servicer and the Special Servicer agrees to
indemnify the Depositor, the Trust Fund and the Trustee and any Affiliate,
director, officer, employee or agent thereof, and hold it harmless, from and
against any and all claims, losses, penalties, fines, forfeitures, reasonable
legal fees and related out-of-pocket costs, judgments, and any other
out-of-pocket costs, liabilities, fees and expenses that any of them may sustain
arising from or as a result of any willful misfeasance, bad faith or negligence
of such Master Servicer or the Special Servicer, as the case may be, in the
performance of its obligations and duties under this Agreement or by reason of
negligent disregard by such Master Servicer or the Special Servicer, as the case
may be, of its duties and obligations hereunder or by reason of breach of any
representations or warranties made by it herein. The Master Servicers and the
Special Servicer may consult with counsel, and any written advice or Opinion of
Counsel shall be full and complete authorization and protection with respect to
any action taken or suffered or omitted by it hereunder in good faith in
accordance with the Servicing Standard and in accordance with such advice or
Opinion of Counsel relating to (i) tax matters, (ii) any amendment of this
Agreement under Article XI, (iii) the defeasance of any Trust Defeasance
Mortgage Loan or (iv) any matter involving legal proceedings with a Mortgagor.
The Trustee shall immediately notify the applicable Master Servicer
or the Special Servicer, as applicable, if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans entitling the Trust Fund or the
Trustee to indemnification hereunder, whereupon either Master Servicer or the
Special Servicer, as the case may be, shall assume the defense of such claim and
pay all expenses in connection therewith, including reasonable counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify either
Master Servicer or the Special Servicer, as the case may be, shall not affect
any rights that the Trust Fund or the Trustee, as the case may be, may have to
indemnification under this Agreement or otherwise, unless either Master
Servicer's or Special Servicer's, as the case may be, defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the termination or resignation of the
indemnifying party.
The Depositor shall immediately notify either Master Servicer or the
Special Servicer, as applicable, if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans entitling the Depositor to
indemnification hereunder, whereupon either Master Servicer or the Special
Servicer, as the case may be, shall assume the defense of such claim and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify either Master Servicer
or the Special Servicer, as the case may be, shall not affect any rights that
the Depositor may have to indemnification under this Agreement or otherwise,
unless either Master Servicer's or Special Servicer's, as the case may be,
defense of such claim is materially prejudiced thereby. The
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indemnification provided herein shall survive the termination of this Agreement
and the termination or resignation of the indemnifying party.
The Depositor agrees to indemnify the Master Servicers, the Special
Servicer and the Trustee and any Affiliate, director, officer, employee or agent
thereof, and hold them harmless, from and against any and all claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related out-of-pocket
costs, judgments, and any other out-of-pocket costs, liabilities, fees and
expenses that any of them may sustain arising from or as a result of any breach
of representations and warranties or the willful misfeasance, bad faith or
negligence of the Depositor in the performance of the Depositor's obligations
and duties under this Agreement. Each Master Servicer, the Special Servicer or
the Trustee, as applicable, shall immediately notify the Depositor if a claim is
made by a third party with respect to this Agreement or the Mortgage Loans
entitling it to indemnification under this paragraph, whereupon the Depositor
shall assume the defense of such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Depositor shall not affect any rights that
any of the foregoing Persons may have to indemnification under this Agreement or
otherwise, unless the Depositor's defense of such claim is materially prejudiced
thereby. The indemnification provided herein shall survive the termination of
this Agreement.
The Trustee agrees to indemnify the Master Servicers, the Special
Servicer and the Depositor and any Affiliate, director, officer, employee or
agent thereof, and hold them harmless, from and against any and all claims,
losses, penalties, fines, forfeitures, reasonable legal fees and related
out-of-pocket costs, judgments, and any other out-of-pocket costs, liabilities,
fees and expenses that any of them may sustain arising from or as a result of
any breach of representations and warranties made by it herein or as a result of
any willful misfeasance, bad faith or negligence of the Trustee in the
performance of its obligations and duties under this Agreement or the negligent
disregard by the Trustee of its duties and obligations hereunder. The Depositor,
either Master Servicer or the Special Servicer, as applicable, shall immediately
notify the Trustee if a claim is made by a third party with respect to this
Agreement or the Mortgage Loans entitling it to indemnification under this
paragraph, whereupon the Trustee shall assume the defense of such claim and pay
all expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Trustee shall not
affect any rights that any of the foregoing Persons may have to indemnification
under this Agreement or otherwise, unless the Trustee's defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the termination or resignation of the
indemnifying party.
SECTION 6.04 Resignation of Master Servicers and the Special
Servicer.
The Master Servicers 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 either 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 either Master Servicer or the Special
Servicer, as the case may be, at the date of this Agreement). Any such
determination requiring the resignation of either 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
either Master Servicer's or Special Servicer's resignation to be effective
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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 Servicers 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 has been found by either Master Servicer or the Special
Servicer, as applicable, (ii) each of the Rating Agencies confirms in writing
that the resignation and 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 of the Master Servicers nor the Special Servicer shall
be permitted to resign except as contemplated above in this Section 6.04.
Consistent with the foregoing, neither of the Master Servicers nor
the Special Servicer shall, except as expressly provided herein, assign or
transfer any of its rights, benefits or privileges hereunder (except for the
assignment or other transfer of the right to receive the Excess Servicing Strip)
to any other Person, or, except as provided in Section 3.22, 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 either Master Servicer or the Special
Servicer are transferred to a successor thereto, the applicable Master Servicing
Fee (except as expressly contemplated by Section 3.11(a)), the Special Servicing
Fee, any Workout Fee (except as expressly contemplated by Section 3.11(c))
and/or any Principal Recovery Fee, as applicable, that accrues pursuant hereto
from and after the date of such transfer shall be payable to such successor.
SECTION 6.05 Rights of Depositor and Trustee in Respect of Master
Servicers and the Special Servicer.
The Master Servicers and the Special Servicer shall each afford the
Depositor, the Underwriters and the Trustee, upon reasonable notice, during
normal business hours access to all records maintained thereby in respect of its
rights and obligations hereunder and access to officers thereof responsible for
such obligations. Upon reasonable request, the Master Servicers and the Special
Servicer shall each furnish the Depositor, the Underwriters and the Trustee with
its most recent publicly available audited financial statements and such other
information as it possesses, and which it is not prohibited by applicable law or
contract from disclosing, regarding its business, affairs, property and
condition, financial or otherwise, except to the extent such information
constitutes proprietary information or is subject to a privilege under
applicable law. The Depositor may, but is not obligated to, enforce the
obligations of the Master Servicers and the Special Servicer hereunder and may,
but is not obligated to, perform, or cause a designee to perform, any defaulted
obligation of either Master Servicer or the Special Servicer hereunder or
exercise the rights of either Master Servicer and the Special Servicer
hereunder; provided, however, that neither the Master Servicers 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
either 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 either Master Servicer or the Special Servicer and is not
obligated to supervise the performance of either Master Servicer or the Special
Servicer under this Agreement or otherwise.
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SECTION 6.06 Depositor, Master Servicers and Special Servicer to
Cooperate with Trustee.
The Depositor, the Master Servicers and the Special Servicer shall
each (to the extent not already furnished under this Agreement) furnish such
reports, certifications and information (including, with regard to either Master
Servicer, the identity of any Non-Trust Noteholder that holds a Non-Trust Loan
that is part of a Loan Combination as to which such Master Servicer is the
applicable Master Servicer) 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 (to
the extent not already furnished under this Agreement) furnish such reports,
certifications and information as are reasonably requested by the Master
Servicers in order to enable it to perform its duties hereunder.
SECTION 6.08 Depositor, Master Servicers and Trustee to Cooperate
with Special Servicer.
The Depositor, the Master Servicers, and the Trustee shall each (to
the extent not already furnished under this Agreement) furnish such reports,
certifications and information as are reasonably requested by the Special
Servicer in order to enable it to perform its duties hereunder.
SECTION 6.09 Designation of Special Servicer by the Controlling
Class.
The Holder or Holders (or, in the case of Book-Entry Certificates,
the Certificate Owner or Certificate Owners) of the Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class may at any time
and from time to time designate a Person meeting the requirements set forth in
Section 6.04 (including, without limitation, Rating Agency confirmation) to
serve as Special Servicer hereunder and to replace any existing Special Servicer
or any Special Servicer that has resigned or otherwise ceased to serve as
Special Servicer; provided that such Holder or Holders (or such Certificate
Owner or Certificate Owners, as the case may be) shall pay all costs related to
the transfer of servicing if the Special Servicer is replaced other than due to
an Event of Default. Such Holder or Holders (or such Certificate Owner or
Certificate Owners, as the case may be) of the Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class shall so
designate a Person to serve as replacement Special Servicer by the delivery to
the Trustee, the Master Servicers 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 H-1. If such Holder or
Holders (or such Certificate Owner or Certificate Owners, as the case may be) of
the Certificates evidencing a majority of the Voting Rights allocated to the
Controlling Class have not replaced the Special Servicer within 30 days of such
Special Servicer's resignation or the date such Special Servicer has ceased to
serve in such capacity, the Trustee shall designate a successor Special Servicer
meeting the requirements set forth in Section 6.04. Any designated Person shall
become the Special Servicer, subject to satisfaction of the other conditions set
forth below, on the date that the Trustee shall have received written
confirmation from all of the Rating Agencies that the appointment of such Person
will not result in an Adverse Rating Event. The appointment of such designated
Person as Special Servicer shall also be subject to receipt by the Trustee of
(1) an Acknowledgment of Proposed Special Servicer in the form attached hereto
as Exhibit H-2, executed by the designated Person, and (2) an Opinion of Counsel
(at the expense of the Person
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designated to become the Special Servicer) to the effect that the designation of
such Person to serve as Special Servicer is in compliance with this Section 6.09
and all other applicable provisions of this Agreement, 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 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, and it 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, without limitation, the transfer (within two Business Days
of the terminated Special Servicer receiving notice from the Trustee that all
conditions to the appointment of the replacement Special Servicer hereunder have
been satisfied) 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 the Collection Accounts or the applicable REO Account or
should have been delivered to the Master Servicers or that are thereafter
received with respect to Specially Serviced Mortgage Loans and REO Properties.
SECTION 6.10 Either Master Servicer or the Special Servicer as
Owner of a Certificate.
Either Master Servicer or an Affiliate of either Master Servicer or
the Special Servicer or an Affiliate of the Special Servicer may become the
Holder of (or, in the case of a Book-Entry Certificate, Certificate Owner with
respect to) any Certificate with (except as set forth in the definition of
"Certificateholder") the same rights it would have if it were not a Master
Servicer or the Special Servicer or an Affiliate thereof. If, at any time during
which either Master Servicer or the Special Servicer or an Affiliate of either
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,
either Master Servicer or the Special Servicer proposes to take action
(including for this purpose, omitting to take action) that (i) is not expressly
prohibited by the terms hereof and would not, in such Master Servicer's or the
Special Servicer's good faith judgment, violate the Servicing Standard, and (ii)
if taken, might nonetheless, in such Master Servicer's or the Special Servicer's
reasonable, good faith judgment, be considered by other Persons to violate the
Servicing Standard, then such 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 such Master Servicer or the Special
Servicer or an Affiliate of such Master Servicer or the Special Servicer, as
appropriate, and (c) describes in reasonable detail the action that such 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 subject
Master Servicer and its Affiliates or the Special Servicer and its Affiliates,
as appropriate), together with such instructions for response as the Trustee
shall reasonably determine. If at any time Certificateholders holding greater
than 50% of the Voting Rights of all Certificateholders (calculated without
regard to the Certificates beneficially owned by the subject Master Servicer or
its Affiliates or the Special Servicer or its Affiliates, as appropriate) shall
have failed to object in writing to the proposal described in the written
notice, and if such Master Servicer or the Special Servicer shall act as
proposed in the written notice within 30 days, such action shall be deemed to
comply with, but not modify, the Servicing Standard. The Trustee shall be
entitled to reimbursement from the applicable Master Servicer
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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 a 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 in the case of unusual circumstances.
SECTION 6.11 The Controlling Class Representative.
(a) Subject to Section 6.11(b), the Controlling Class
Representative will be entitled to advise the Special Servicer with respect to
the following actions of the Special Servicer with respect to the Serviced Trust
Mortgage Loans and any Administered REO Properties (in the case of the
Blackpoint Puerto Rico Retail Portfolio Loan Combination and related Loan
Combination REO Property, subject to the prior rights of the Blackpoint Puerto
Rico Retail Portfolio Controlling Party contemplated in Section 6.12 below and
as provided in the Blackpoint Puerto Rico Retail Portfolio Intercreditor
Agreement), and notwithstanding anything herein to the contrary except as
necessary or advisable to avoid an Adverse REMIC Event and except as set forth
in, and in any event subject to, Section 6.11(b), the Special Servicer will not
be permitted to take (or permit the applicable Master Servicer to take) any of
the following actions with respect to the Serviced Trust Mortgage Loans and any
Administered REO Properties (in the case of the Blackpoint Puerto Rico Retail
Portfolio Loan Combination and related Loan Combination REO Property, subject to
the prior rights of the Blackpoint Puerto Rico Retail Portfolio Controlling
Party contemplated in Section 6.12 below and as provided in the Blackpoint
Puerto Rico Retail Portfolio Intercreditor Agreement) as to which the
Controlling Class Representative has objected in writing within 10 Business Days
of being notified in writing thereof, which notification with respect to the
action described in clauses (vi) and (viii) below shall be copied by the Special
Servicer to the applicable Master Servicer (provided that if such written
objection has not been received by the Special Servicer within such 10 Business
Day period, then the Controlling Class Representative's approval will be deemed
to have been given):
(i) any foreclosure upon or comparable conversion (which
may include acquisitions of an Administered REO Property) of the ownership
of properties securing such of the Trust Specially Serviced Mortgage Loans
as come or have come into and continue in default;
(ii) any modification or consent to a modification of a
material term of a Serviced Trust Mortgage Loan (excluding the waiver of
any due-on-sale or due-on-encumbrance clause, as set forth in clause (vii)
below), including the timing of payments or a modification consisting of
the extension of the maturity date of a Serviced Trust Mortgage Loan;
(iii) any proposed sale of any Serviced Trust Defaulted
Mortgage Loan or any Administered REO Property (other than in connection
with the termination of the Trust Fund or, in the case of a Serviced Trust
Defaulted Mortgage Loan, pursuant to Section 3.18) for less than the
Purchase Price of the subject Trust Defaulted Mortgage Loan or related
Trust REO Loan, as applicable;
(iv) any determination to bring an Administered REO
Property into compliance with applicable environmental laws or to
otherwise address Hazardous Materials located at an Administered REO
Property;
(v) any release of material real property collateral for
any Serviced Trust Mortgage Loan, other than (A) where the release is not
conditioned upon obtaining the consent of the lender or certain specified
conditions being satisfied, (B) upon satisfaction of that Serviced
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Trust Mortgage Loan, (C) in connection with a pending or threatened
condemnation action or (D) in connection with a full or partial defeasance
of that Serviced Trust Mortgage Loan;
(vi) any acceptance of substitute or additional real
property collateral for any Serviced Trust Mortgage Loan (except where the
acceptance of the substitute or additional collateral is not conditioned
upon obtaining the consent of the lender, in which case only notice to the
Controlling Class Representative will be required);
(vii) any waiver of a due-on-sale or due-on-encumbrance
clause in any Serviced Trust Mortgage Loan;
(viii) any releases of earn-out reserves or related letters
of credit with respect to a Mortgaged Property securing a Trust Mortgage
Loan (other than where the release is not conditioned upon obtaining the
consent of the lender, in which case only notice to the Controlling Class
Representative will be required);
(ix) any termination or replacement, or consent to the
termination or replacement, of a property manager with respect to any
Serviced Mortgaged Property or any termination or change, or consent to
the termination or change, of the franchise for any Serviced Mortgaged
Property operated as a hospitality property (other than where the action
is not conditioned upon obtaining the consent of the lender, in which case
only prior notice to the Controlling Class Representative will be
required);
(x) any determination that an insurance-related default in
respect of a Serviced Trust Mortgage Loan is an Acceptable Insurance
Default or that earthquake or terrorism insurance is not available at
commercially reasonable rates; and
(xi) any waiver of insurance required under the related
Mortgage Loan documents for a Serviced Trust Mortgage Loan (except as
contemplated in clause (x) above);
provided that, with respect to any Trust Mortgage Loan (other than a Trust
Specially Serviced Mortgage Loan), the 10 Business Days within which the
Controlling Class Representative must object to any such action shall not exceed
by more than five Business Days the 10 Business Day period the Special Servicer
has to object to the applicable Master Servicer taking such action as set forth
in Sections 3.02, 3.08 and 3.20.
In addition, subject to Section 6.11(b), the Controlling Class
Representative may direct the Special Servicer to take, or to refrain from
taking, any such actions as the Controlling Class Representative may deem
advisable or as to which provision is otherwise made herein.
(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection given or made, or consent withheld, by the Controlling
Class Representative, contemplated by Section 6.11(a) or any other section of
this Agreement, may (i) require or cause the applicable Master Servicer or the
Special Servicer to violate any applicable law, the terms of any Serviced Trust
Mortgage Loan, any provision of this Agreement, including without limitation
such Master Servicer's or the Special Servicer's obligation to act in accordance
with the Servicing Standard or the Mortgage Loan documents for any Serviced
Trust Mortgage Loan, (ii) result in an Adverse REMIC Event with respect to REMIC
I or REMIC II or otherwise violate the REMIC Provisions or result in an Adverse
Grantor Trust Event or result in an adverse tax consequence for the Trust Fund,
except that the Controlling Class Representative
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may advise or direct that the Trust Fund earn "net income from foreclosure
property" that is subject to tax with the consent of the Special Servicer, if
the Special Servicer determines that the net after-tax benefit to
Certificateholders is greater than another method of operating or net-leasing
the subject REO Property, (iii) expose the Depositor, the applicable Master
Servicer, the Special Servicer, the Trust Fund, the Trustee, any Fiscal Agent or
any of their respective Affiliates, directors, officers, employees or agents, to
any claim, suit or liability to which they would not otherwise be subject absent
such advice, direction or objection or consent withheld, (iv) materially expand
the scope of the applicable Master Servicer's or the Special Servicer's
responsibilities hereunder or (v) cause the applicable Master Servicer or the
Special Servicer to act, or fail to act, in a manner which violates the
Servicing Standard. The applicable Master Servicer and the Special Servicer
shall disregard any action, direction or objection on the part of the
Controlling Class Representative that would have any of the effects described in
clauses (i) through (v) of the prior sentence. In addition, if the applicable
Master Servicer or the Special Servicer determines that immediate action is
necessary to protect the interests of the Certificateholders (as a collective
whole), it may take such action without waiting for a response from the
Controlling Class Representative.
The Special Servicer shall not be obligated to seek approval from
the Controlling Class Representative under Section 6.11(a) for any actions to be
taken by the Special Servicer with respect to any particular Trust Specially
Serviced Mortgage Loan if (i) the Special Servicer has, as set forth in the
first paragraph of Section 6.11(a), notified the Controlling Class
Representative in writing of various actions that the Special Servicer proposes
to take with respect to the work-out or liquidation of that Trust Specially
Serviced Mortgage Loan and (ii) for 60 days following the first such notice, the
Controlling Class Representative has objected to all of the proposed actions and
has failed to suggest any alternative actions that the Special Servicer
considers to be consistent with the Servicing Standard.
(c) The Controlling Class Representative will have no duty or
liability to the Certificateholders (other than the Controlling Class) for any
action taken, or for refraining from the taking of any action pursuant to this
Agreement, or for errors in judgment. By its acceptance of a Certificate, each
Certificateholder confirms its understanding that the Controlling Class
Representative may take actions that favor the interests of one or more Classes
of the Certificates over other Classes of the Certificates, and that the
Controlling Class Representative may have special relationships and interests
that conflict with those of Holders of some Classes of the Certificates, that
the Controlling Class Representative may act solely in the interests of the
Holders of the Controlling Class, that the Controlling Class Representative does
not have any duties to the Holders of any Class of Certificates other than the
Controlling Class, that the Controlling Class Representative shall have no
liability by reason of its having acted solely in the interests of the Holders
of the Controlling Class, and no Certificateholder may take any action
whatsoever against the Controlling Class Representative or any director,
officer, employee, agent or principal thereof for having so acted.
(d) Any right to take action, grant or withhold any consent or
otherwise exercise any right, election or remedy afforded the Controlling Class
Representative under this Agreement may, unless otherwise expressly provided
herein to the contrary, be affirmatively waived by the Controlling Class
Representative by written notice given to the Trustee or Master Servicer, as
applicable. Upon delivery of any such notice of waiver given by the Controlling
Class Representative, any time period (exclusive or otherwise) afforded the
Controlling Class Representative to exercise any such right, make any such
election or grant or withhold any such consent shall thereupon be deemed to have
expired. Any waiver of rights by a Controlling Class Representative, as set
forth above, shall not be binding any subsequent Controlling Class
Representative.
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SECTION 6.12 Certain Matters with Respect to the Blackpoint
Puerto Rico Retail Portfolio Loan Combination.
(a) The applicable Master Servicer and the Special Servicer each
hereby agree that, prior to taking any of the Blackpoint Puerto Rico Retail
Portfolio Loan Combination Specially Designated Servicing Actions it shall
consult with, provide required notices and information to, obtain the consent
of, receive objection(s) from and/or take advice and/or direction from, the
Blackpoint Puerto Rico Retail Portfolio Controlling Party subject to, and to the
extent required by, the Blackpoint Puerto Rico Retail Portfolio Intercreditor
Agreement. Notwithstanding the foregoing, the Controlling Class Representative,
at any time when it is not the Blackpoint Puerto Rico Retail Portfolio
Controlling Party, shall have the right to consult with the Special Servicer
(who shall not be obligated, as a result of such consultation, to take any
action that would conflict with any actions that it is taking at the direction
of the Blackpoint Puerto Rico Retail Portfolio Controlling Party pursuant to
this Section 6.12 and the Blackpoint Puerto Rico Retail Portfolio Intercreditor
Agreement) with respect to the Blackpoint Puerto Rico Retail Portfolio Loan
Combination pursuant to the Blackpoint Puerto Rico Retail Portfolio
Intercreditor Agreement.
(b) If, and for so long as, a Blackpoint Puerto Rico Retail
Portfolio Control Appraisal Event has occurred and is continuing with respect to
the Blackpoint Puerto Rico Retail Portfolio B-Note Non-Trust Loan or the
Blackpoint Puerto Rico Retail Portfolio Priority Conversion has occurred and the
Trust, as holder of the Blackpoint Puerto Rico Retail Portfolio A-Note Trust
Mortgage Loan (or any successor Trust REO Loan with respect thereto), is the
Blackpoint Puerto Rico Retail Portfolio Controlling Party, the Controlling Class
Representative (i) is hereby designated as the representative of the Trust for
purposes of exercising the rights and powers of the Blackpoint Puerto Rico
Retail Portfolio Controlling Party under the Blackpoint Puerto Rico Retail
Portfolio Intercreditor Agreement and (ii) shall be the Blackpoint Puerto Rico
Retail Portfolio Controlling Party hereunder. The Trustee shall take such
actions as are necessary or appropriate to make such designation effective in
accordance with the related Loan Combination Intercreditor Agreement. The
applicable Master Servicer (to the extent the Blackpoint Puerto Rico Retail
Portfolio A-Note Trust Mortgage Loan is a Performing Mortgage Loan) shall
provide the Special Servicer and the Controlling Class Representative with
notice of the occurrence of a Blackpoint Puerto Rico Retail Portfolio Control
Appraisal Event or the Blackpoint Puerto Rico Retail Portfolio Conversion
promptly upon becoming aware of the occurrence thereof. Until such time as the
Controlling Class Representative shall be the Blackpoint Puerto Rico Retail
Portfolio Controlling Party pursuant to the third preceding sentence, any and
all expenses of the Blackpoint Puerto Rico Retail Portfolio Controlling Party
shall be borne by the related B-Note Loan Holder and not by the Trust, and for
so long as the Controlling Class Representative shall be the Blackpoint Puerto
Rico Retail Portfolio Controlling Party pursuant to the third preceding
sentence, any and all expenses of the Controlling Class Representative as the
Blackpoint Puerto Rico Retail Portfolio Controlling Party shall be borne by the
Holders (or, if applicable, the Certificate Owners) of Certificates of the
Controlling Class, pro rata according to their respective Percentage Interests
in such Class, and not by the Trust.
Each of the rights of the B-Note Loan Holder with respect to the
Blackpoint Puerto Rico Retail Portfolio B-Note Non-Trust Loan under or
contemplated by this Section 6.12 shall be exercisable, to the extent not
prevented by the Blackpoint Puerto Rico Retail Portfolio Intercreditor
Agreement, by a designee thereof on its behalf; provided that the applicable
Master Servicer, the Special Servicer and the Trustee are provided with written
notice by such B-Note Loan Holder of such designation (upon which such party may
conclusively rely) and the contact details of the designee.
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(c) Master Servicer No. 1 hereby delegates to the Special
Servicer (which delegation may not be revoked) its rights and powers under the
Blackpoint Puerto Rico Retail Portfolio Intercreditor Agreement to confirm, in
consultation with the Controlling Class Representative, whether or not the
Required Conditions (as defined in the Blackpoint Puerto Rico Retail Portfolio
Intercreditor Agreement) that are conditions precedent to the Blackpoint Puerto
Rico Retail Portfolio Conversion have been satisfied. The Special Servicer
hereby accepts the foregoing delegation of rights and powers. The Master
Servicer shall have no responsibility for the actions taken by the Special
Servicer in connection with confirming whether the Required Conditions to the
Blackpoint Puerto Rico Retail Portfolio Conversion have been satisfied.
Master Servicer No. 1 shall forward to the Special Servicer any
documentation in its possession reasonably requested by the Special Servicer in
connection with the Special Servicer's efforts to confirm whether the Required
Conditions referred to in the preceding paragraph have been satisfied.
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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 either Master Servicer to deposit into
its Collection Account or Loan Combination Custodial Account any amount
required to be so deposited by it under this Agreement, which failure
continues unremedied for two Business Days following the date on which the
deposit was required to be made; or
(ii) any failure by either Master Servicer to deposit into,
or to remit to the Trustee for deposit into, the Distribution Account or
any other account maintained by the Trustee hereunder, any amount 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 Business
Day following the date on which the remittance was required to be made,
provided that to the extent such Master Servicer does not timely make such
remittances, such Master Servicer shall pay the Trustee (for the account
of the Trustee) interest on any amount not timely remitted at the Prime
Rate from and including the applicable required remittance date to but not
including the date such remittance is actually made; or
(iii) any failure by the Special Servicer to deposit into
the applicable REO Account or to deposit into, or to remit to the
applicable Master Servicer for deposit into, the applicable Collection
Account, any amount required to be so deposited or remitted by it under
this Agreement provided; however that the failure to deposit or remit such
amount shall not be an Event of Default if such failure is remedied within
one Business Day and in any event on or prior to the related P&I Advance
Date; or
(iv) any failure by either Master Servicer to timely make
any Servicing Advance required to be made by it hereunder, which Servicing
Advance remains unmade for a period of three Business Days following the
date on which notice shall have been given to such Master Servicer by the
Trustee as provided in Section 3.03(c) or by any other party to this
Agreement; or
(v) any failure on the part of either Master Servicer or
the Special Servicer duly to observe or perform in any material respect
any other of the covenants or agreements on the part of such Master
Servicer or the Special Servicer, as the case may be, contained in this
Agreement, which failure continues unremedied for a period of 30 days
after the date on which written notice of such failure, requiring the same
to be remedied, shall have been given to such Master Servicer or the
Special Servicer, as the case may be, by any other party hereto (with a
copy to each other party hereto) or by the Holders of Certificates
entitled to at least 25% of the Voting Rights, provided, however, that (A)
with respect to any such failure (other than a failure referred to in
clause (v)(B) below) which is not curable within such 30-day period, such
Master Servicer or the Special Servicer, as the case may be, shall have an
additional cure period of 30 days to effect such cure so long as such
Master Servicer or the Special Servicer, as the case may be, has commenced
to cure the subject failure within the initial 30-day period and has
provided
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the Trustee and any affected Non-Trust Noteholder(s) with an Officer's
Certificate certifying that it has diligently pursued, and is diligently
continuing to pursue, a full cure, or (B) in the case of a failure to
deliver to the Trustee and the Depositor the Annual Statement of
Compliance, the Annual Assessment Report, the Annual Attestation Report
and/or, if required to be filed with the Commission, the Accountant's
Consent with respect to such Master Servicer (or any Additional Item 1123
Servicer or Sub-Servicing Function Participant, as applicable, engaged
thereby that is not a Designated Sub-Servicer) or the Special Servicer (or
any Additional Item 1123 Servicer or Sub-Servicing Function Participant,
as applicable, engaged thereby that is not a Designated Sub-Servicer), as
applicable, pursuant to Section 3.13 or Section 3.14, as applicable, which
is required to be part of or incorporated in a Subsequent Exchange Act
Report required to be filed with respect to the Trust pursuant to the
Exchange Act and this Agreement, continues unremedied beyond 5:00 p.m.
(New York City time) on the second Business Day after the date on which
Servicer Notice of the subject failure has been given to such Master
Servicer or the Special Servicer, as the case may be, by or on behalf of
any other party hereto; in accordance with Section 3.13 or Section 3.14,
as applicable, or (C) in the case of a failure to notify the Trustee and
the Depositor that an Additional Item 1123 Servicer or a Sub-Servicing
Function Participant has been retained or engaged by it, which Additional
Item 1123 Servicer or Sub-Servicing Function Participant was performing
duties with respect to all or any part of the Trust Fund on behalf of such
Master Servicer or Special Servicer, as applicable, during an Exchange Act
Reporting Year, continues unremedied for 30 days; or
(vi) any breach on the part of either Master Servicer or
the Special Servicer of any representation or warranty contained in this
Agreement that materially and adversely affects the interests of any Class
of Certificateholders and which breach continues unremedied for a period
of 30 days after the date on which written notice of such breach,
requiring the same to be remedied, shall have been given to the subject
Master Servicer or the Special Servicer, as the case may be, by any other
party hereto (with a copy to each other party hereto) or by the Holders of
Certificates entitled to at least 25% of the Voting Rights, provided,
however, that with respect to any such breach which is not curable within
such 30-day period, such Master Servicer or the Special Servicer, as the
case may be, shall have an additional cure period of 30 days so long as
such 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 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
either Master Servicer or the Special Servicer and such decree or order
shall have remained in force undischarged, undismissed or unstayed for a
period of 60 days, provided, however, that such Master Servicer or the
Special Servicer, as appropriate, will have an additional period of 30
days to effect such discharge, dismissal or stay so long as such Master
Servicer or the Special Servicer, as appropriate, has commenced the
appropriate proceedings to have such decree or order dismissed, discharged
or stayed within the initial 60 day period; or
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(viii) either 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) either 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) either of Fitch or Xxxxx'x has (1) qualified,
downgraded or withdrawn its rating or ratings of one or more Classes of
Certificates or (2) placed one or more Classes of the Certificates on
"watch status" (and such "watch status" placement shall not have been
withdrawn by Fitch or Xxxxx'x, as the case may be, within 60 days
thereof), and, in the case of either clauses (1) or (2), cited servicing
concerns with a Master Servicer or the Special Servicer as the sole or
material factor in such rating action; or
(xi) either Master Servicer ceases to be rated at least
"CMS3" by Fitch or the Special Servicer ceases to be rated at least "CSS3"
by Fitch and such rating is not restored within 30 days after the subject
downgrade or withdrawal.
(b) If any Event of Default shall occur with respect to either
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 Controlling Class
Representative or the Holders of Certificates entitled to at least 25% of the
Voting Rights, the Trustee shall, by notice in writing to the Defaulting Party
(with a copy of such notice to each other party hereto and the Rating Agencies),
terminate all of the rights and obligations (but not the liabilities for actions
and omissions occurring prior thereto) of the Defaulting Party under this
Agreement and in and to the Trust Fund and each Non-Trust Loan, other than its
rights, if any, as a Certificateholder hereunder or as holder of a Non-Trust
Loan; provided that each Master Servicer and the Special Servicer 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 (and
each of its Affiliates, directors, partners, members, managers, shareholders,
officers, employees or agents) shall continue to be entitled to the benefits of
Section 6.03 notwithstanding any such termination; provided, further, that
nothing contained in this Section 7.01(b) shall terminate any rights purchased
or otherwise owned or held by either Master Servicer to primary service any of
the Mortgage Loans as a Sub-Servicer to the Trustee or any other replacement
Master Servicer; provided, further, that neither Master Servicer may be
terminated solely for an Event of Default that affects only a Non-Trust
Noteholder; and provided, further, that the Special Servicer may not be
terminated solely for an Event of Default that affects only a Non-Trust
Noteholder. 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) or the Mortgage Loans 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
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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. Each
Master Servicer and the Special Servicer agree that, if it is terminated
pursuant to this Section 7.01(b), it shall promptly (and in any event no later
than 20 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 or a successor Master
Servicer or Special Servicer to assume the functions of such terminated Master
Servicer or Special Servicer, as the case may be, hereunder, and shall cooperate
with the Trustee in effecting the termination of the responsibilities and rights
hereunder of such terminated Master Servicer or Special Servicer, as the case
may be, including, without limitation, (i) the transfer within 5 Business Days
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 such
Master Servicer to its Collection Account, any Loan Combination Custodial
Account, the Distribution Account, a Servicing Account or a Reserve Account (if
such Master Servicer is the Defaulting Party) or that are thereafter received by
or on behalf of it with respect to any Mortgage Loan or (ii) the transfer within
two Business Days to the Trustee or a successor Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Special Servicer to an REO Account, the applicable
Collection Account, any Loan Combination Custodial Account, a Servicing Account
or a Reserve Account or delivered to the applicable Master Servicer (if the
Special Servicer is the Defaulting Party) or that are thereafter received by or
on behalf of it with respect to any Mortgage Loan or REO Property. Any costs or
expenses in connection with any actions to be taken by either Master Servicer,
the Special Servicer or the Trustee pursuant to this paragraph shall be borne by
the Defaulting Party and if not paid by the Defaulting Party within 90 days
after the presentation of reasonable documentation of such costs and expenses,
such costs and expenses shall be reimbursed by the Trust Fund; provided,
however, that the Defaulting Party shall not thereby be relieved of its
liability for such costs and expenses. If and to the extent that the Defaulting
Party has not reimbursed such costs and expenses, the Trustee shall have an
affirmative obligation to take all reasonable actions to collect such expenses
on behalf of and at the expense of the Trust Fund. For purposes of this Section
7.01 and 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 described in clauses (i)-(viii) of
subsection (a) above unless a Responsible Officer of the Trustee 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) Notwithstanding Section 7.01(b) of this Agreement, if a Master
Servicer receives a notice of termination solely due to an Event of Default
under Section 7.01(a)(x) or (xi) and the terminated Master Servicer provides the
Trustee with the appropriate "request for proposal" materials within the five
(5) Business Days after receipt of such notice of termination, then such Master
Servicer shall continue to serve as a Master Servicer, if requested to do so by
the Trustee, and the Trustee shall promptly thereafter (using such "request for
proposal" materials provided by the terminated Master Servicer) solicit good
faith bids for the rights to master service under this Agreement the Mortgage
Loans in respect of which the terminated Master Servicer is the applicable
Master Servicer from at least three (3) Persons qualified to act as successor
Master Servicer hereunder in accordance with Section 6.02 and Section 7.02 for
which the Trustee has received written confirmation from each Rating Agency for
the Rated Certificates that the appointment of such Person would not result in
an Adverse Rating Event (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, however, that (i) at
the Trustee's request, the terminated Master Servicer shall supply the Trustee
with
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the names of Persons from whom to solicit such bids; (ii) prior to making such
solicitation, the Trustee or, upon request of the Trustee, the terminated Master
Servicer, shall have consulted with (although it shall not be required to have
obtained the approval of) the Controlling Class Representative with respect to
the identity and quality of each of the Persons from whom the Trustee is to
solicit bids; and (iii) the Trustee shall not be responsible if less than three
(3) or no Qualified Bidders submit bids for the right to master service the
subject 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 with respect to the applicable
Mortgage Loans, and to agree to be bound by the terms hereof, within forty-five
(45) days after the receipt by the terminated Master Servicer of a notice of
termination referred to above in this Section 7.01(c). The Trustee shall solicit
bids (i) on the basis of such successor Master Servicer (x) retaining any
applicable Sub-Servicers to continue the primary servicing of the applicable
Mortgage Loans pursuant to the terms of their respective Sub-Servicing
Agreements and (y) entering into a Sub-Servicing Agreement with the terminated
Master Servicer under which the terminated Master Servicer would sub-service
each of the Mortgage Loans for which it was the applicable Master Servicer and
which were not then subject to a Sub-Servicing Agreement at a sub-servicing fee
rate per annum equal to, for each applicable Mortgage Loan, the excess of the
related Master Servicing Fee Rate minus one basis point (each, a
"Servicing-Retained Bid") and (ii) on the basis of terminating each applicable
Sub-Servicing Agreement and each applicable Sub-Servicer (other than a
Designated Sub-Servicer and its Sub-Servicing Agreement) that it is permitted to
terminate in accordance with Section 3.22 and having no obligation to enter into
a Sub-Servicing Agreement with the terminated Master Servicer (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 termination of the terminated Master
Servicer. In no event shall the bid procedures under this subsection (c) purport
to offer the servicing right of any Designated Sub-Servicer that is not then in
default under its Sub-Servicing Agreement.
Upon the assignment and acceptance of the applicable master
servicing rights hereunder to and by the Successful Bidder, the Trustee shall
remit or cause to be remitted to the terminated Master Servicer the amount of
such cash bid received from the Successful Bidder (net of "out-of-pocket"
expenses incurred by the Trustee in connection with obtaining such bid and
transferring servicing). The terminated Master Servicer shall be responsible for
all out-of-pocket expenses incurred in connection with the attempt to sell its
rights to master service the Mortgage Loans, which expenses are not reimbursed
to the party that incurred such expenses.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within forty-five (45) days after the applicable
Master Servicer received a notice of termination or no Successful Bidder was
identified within such forty-five (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 a Master Servicer
hereunder in accordance with the provisions of Section 7.02.
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SECTION 7.02 Trustee to Act; Appointment of Successor.
On and after the time a 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 a successor is appointed pursuant to
Section 6.04 or 6.09, be the successor in all respects to such 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 (except
as provided in the next sentence) of a Master Servicer or the Special Servicer,
as the case may be, arising thereafter, including, without limitation, if a
Master Servicer is the resigning or terminated party, such Master Servicer's
obligation to make P&I Advances, 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 either 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. Notwithstanding
anything contrary in this Agreement, the Trustee shall in no event be held
responsible or liable with respect to any of the representations and warranties
of the resigning or terminated party (other than the Trustee) or for any losses
incurred by such 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
(subject to Section 3.11(a) with respect to the Excess Servicing Strip).
Notwithstanding the above and subject to its obligations under Section 3.22(d)
and 7.01(b), the Trustee may, if it shall be unwilling in its sole discretion to
so act as either a Master Servicer or the Special Servicer, as the case may be,
or shall, if it is unable to so act as either a Master Servicer or the Special
Servicer, as the case may be, or shall, if the Trustee is not approved as a
Master Servicer or the Special Servicer, as the case may be, by any of the
Rating Agencies, or if either the Controlling Class Representative or the
Holders of Certificates entitled to a majority of the Voting Rights so request
in writing to the Trustee, promptly appoint, subject to the approval of each of
the Rating Agencies (as evidenced by written confirmation therefrom to the
effect that the appointment of such institution would not cause an Adverse
Rating Event, or petition a court of competent jurisdiction to appoint, any
established mortgage loan servicing institution that meets the requirements of
Section 6.02 (including, without limitation, rating agency confirmation), which
institution shall, in the case of an appointment by the Trustee, be reasonably
acceptable to the Controlling Class Representative; provided, however, that in
the case of a resigning or terminated Special Servicer, such appointment shall
be subject to the rights of the Holders or Certificate Owners of Certificates
evidencing a majority of the Voting Rights allocated to the Controlling Class to
designate a successor pursuant to Section 6.09. Except with respect to an
appointment provided below, no appointment of a successor to a Master Servicer
or the Special Servicer hereunder shall be effective until the assumption of the
successor to such party of all its responsibilities, duties and liabilities
under this Agreement. Pending appointment of a successor to a Master Servicer or
the Special Servicer hereunder, the Trustee shall act in such capacity as
hereinabove provided. Notwithstanding the above, the Trustee shall, if a Master
Servicer is the resigning or terminated party and the Trustee is prohibited by
law or regulation from making P&I Advances, promptly appoint any established
mortgage loan servicing institution that has a net worth of not less than
$15,000,000 and is otherwise acceptable to each Rating Agency (as evidenced by
written confirmation therefrom to the effect that the appointment of such
institution would not cause an Adverse Rating Event), as the successor to the
departing Master Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of such Master Servicer hereunder
(including, without limitation, the obligation to make P&I Advances), which
appointment will become effective immediately. In
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connection with any such appointment and assumption described herein, the
Trustee may (subject to Section 3.11(a) with respect to the Excess Servicing
Strip) make such arrangements for the compensation of such successor out of
payments on the Mortgage Loans and REO Properties as it and such successor shall
agree, subject to the terms of this Agreement and/or any Loan Combination
Intercreditor Agreement limiting the use of funds received in respect of a Loan
Combination to matters related to the related 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 either Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of either Master Servicer or
the Special Servicer pursuant to Section 7.01, any appointment of a successor to
either 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 each
Non-Trust Noteholder.
(b) Not later than the later of (i) 60 days after the occurrence
of any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after a Responsible Officer of
the Trustee has notice of the occurrence of such an event, the Trustee shall
notify the Depositor, all Certificateholders, each Non-Trust Noteholder (if
affected thereby) and the Rating Agencies 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 may waive such Event of Default; provided, however, that an Event of
Default under clauses (i), (ii), (iii), (x) or (xi) of Section 7.01(a) may be
waived only by all of the Certificateholders of the affected Classes; and
provided, further, that an Event of Default contemplated by clause (B) or clause
(C) of Section 7.01(a)(v) may only be waived with the consent of the Depositor.
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.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled to
Voting Rights with respect to the matters described above.
SECTION 7.05 Additional Remedies of Trustee Upon 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, 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
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). No remedy provided for by this Agreement shall be exclusive of any
other remedy, and each
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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. Under no
circumstances shall the rights provided to the Trustee under this Section 7.05
be construed as a duty or obligation of the Trustee.
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ARTICLE VIII
CONCERNING THE TRUSTEE AND THE FISCAL AGENT
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. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement to the
extent specifically set forth herein or therein. 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 or either 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 if it was
required to do so;
(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 direction of 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
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any trust or power conferred upon the Trustee, under this Agreement or, as
holder of the Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage
Loan, under the WBCMT Series 2007-C30 Pooling and Servicing Agreement; and
(iv) The protections, immunities and indemnities afforded
to the Trustee hereunder shall also be available to it in its capacity as
Authenticating Agent, Certificate Registrar, REMIC 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, in the absence of bad faith or
negligence on the part of the Trustee, conclusively rely upon and shall be
fully protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
therewith;
(iii) the Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or, except as provided in
Section 10.01 or 10.02, to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any
of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; except as provided
in Section 10.01 or 10.02, the Trustee shall not be required to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it; provided, however, that nothing
contained herein shall 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 or 10.02, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing to
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do so by Holders of Certificates entitled to at least 25% of the Voting
Rights; provided, however, that if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by
the terms of this Agreement, the Trustee, may require reasonable indemnity
against such expense or liability as a condition to taking any such
action;
(vi) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys; provided, however, that the Trustee, shall remain
responsible for all acts and omissions of such agents or attorneys within
the scope of their employment to the same extent as it is responsible for
its own actions and omissions hereunder and provided, further, that,
unless and until the Trustee has filed a Form 15 with respect to the Trust
in accordance with Section 8.16, the Trustee may not engage any such agent
or attorney-in-fact that would constitute an Additional Item 1123 Servicer
or a Sub-Servicing Function Participant, unless it first (i) obtains the
written consent of the Depositor, which consent shall not be unreasonably
withheld, and (ii) delivers to the Depositor an indemnity reasonably
acceptable to the Depositor to cover any losses, liabilities, claims,
damages, costs or expenses incurred by the Depositor by reason of such
agent or attorney-in-fact failing to timely deliver an Annual Statement of
Compliance, an Annual Assessment Report or an Annual Attestation Report,
in each case as contemplated by Section 3.13 and/or Section 3.14, as
applicable;
(vii) the Trustee shall not be responsible for any act or
omission of either Master Servicer, the Special Servicer (unless the
Trustee is acting as a Master Servicer or as the Special Servicer) or the
Depositor or any party to the WBCMT Series 2007-C30 Pooling and Servicing
Agreement; 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.
Whenever in the administration of the provisions of this Agreement
the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering any action to be taken hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officer's
Certificate delivered to the Trustee and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the provisions of
this Agreement upon the faith thereof.
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SECTION 8.03 Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than
the statements attributed to the Trustee in Article II and Section 8.15, the
statements attributed to any Fiscal Agent in Section 8.19 and the signature of
the Certificate Registrar and the Authenticating Agent set forth on each
outstanding Certificate, shall be taken as the statements of the Depositor
either Master Servicer or the Special Servicer, as the case may be, and neither
the Trustee nor any Fiscal Agent assumes any responsibility for their
correctness. Except as set forth in Section 8.15, the Trustee makes 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 or of MERS or the MERS(R) System. The
Trustee and any Fiscal Agent shall not be accountable for the use or application
by the Depositor of any of the Certificates issued to it or of the proceeds of
such Certificates, or for the use or application of any funds paid to the
Depositor in respect of the assignment of the Trust Mortgage Loans to the Trust
Fund, or any funds deposited in or withdrawn from the Collection Accounts or any
other account by or on behalf of the Depositor, either Master Servicer or the
Special Servicer. The Trustee and any Fiscal Agent shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Depositor, either
Master Servicer or the Special Servicer, and accepted by the Trustee in good
faith, pursuant to this Agreement.
SECTION 8.04 Trustee and Fiscal Agent May Own Certificates.
The Trustee, any Fiscal Agent or any agent of the Trustee or any
Fiscal Agent, in its individual or any other capacity, may become the owner or
pledgee of Certificates with the same rights (except as otherwise provided in
the definition of "Certificateholder") it would have if it were not the Trustee
or such agent.
SECTION 8.05 Fees and Expenses of Trustee; Indemnification of
Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from the
general funds on deposit in the Distribution Account as provided in Section
3.05(b), prior to any distributions to be made therefrom on such date, and pay
to itself all earned but unpaid Trustee Fees for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates, as
compensation for all services rendered by the Trustee in the execution of the
trusts hereby created and in the exercise and performance of any of the powers
and duties of the Trustee hereunder. Except as contemplated by Section 3.06, the
Trustee Fee (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) shall constitute the Trustee's
sole compensation for such services to be rendered by it.
(b) The Trustee (whether in its individual capacity or its
capacity as Trustee) and any director, officer, employee, affiliate, agent or
"control" person within the meaning of the Securities Act of 1933, as amended,
of the Trustee shall be entitled to be indemnified for and held harmless by the
Trust Fund out of the Collection Accounts (and, to the extent that any Loan
Combination and/or any related REO Property is affected, by the Trust Fund
and/or the related Non-Trust Noteholder(s) out of the related Loan Combination
Custodial Account) against any loss, liability or reasonable "out-of-pocket"
expense (including, without limitation, 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, the Mortgage
Loans or the Certificates or any act of either
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Master Servicer or the Special Servicer taken on behalf of the Trustee as
provided for herein, provided that such 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 hereof, (2) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of the Trustee's
obligations and duties hereunder, or by reason of its negligent disregard of
such obligations and duties, or as may arise from a breach of any
representation, warranty or covenant of the Trustee made herein, or (3) any
loss, liability or expense that constitutes an Advance (the reimbursement of
which is separately addressed herein) or allocable overhead. The provisions of
this Section 8.05(b) shall survive any resignation or removal of the Trustee and
appointment of a successor trustee.
SECTION 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be an association, a bank,
a trust company 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 $100,000,000 and subject to supervision or examination
by a federal or state banking authority. If such association, bank, trust
company 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 association, bank, trust company 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 also be an entity with a long term
unsecured debt rating of at least "A" and a short term unsecured debt rating of
at least "F-1" from Fitch and a long term unsecured debt rating of at least
"Aa3" from Xxxxx'x or an entity that has a fiscal agent with such ratings, or
such other rating that shall not result in an Adverse Rating Event as confirmed
in writing.
In case 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 $100,000,000 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) result in 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 no Adverse Rating Event occurs as a result of the Trustee's continuing in
such capacity. The bank, trust company, corporation or association serving as
Trustee may have normal banking and trust relationships with the Depositor, the
Master Servicers, the Special Servicer and their respective Affiliates but,
except to the extent permitted or required by Section 7.02, shall not be an
"Affiliate" (as such term is defined in Section III of PTE 2000-58) of either
Master Servicer, the Special Servicer, any sub-servicer, the Depositor, or any
obligor with respect to Trust Mortgage Loans constituting more than 5.0% of the
aggregate authorized principal balance of the Trust Mortgage Loans as of the
date of the initial issuances of the Certificates or any "Affiliate" (as such
term is defined in Section III of PTE 2000-58) of any such person.
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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 Servicers, the Special Servicer, to all Certificateholders at their
respective addresses set forth in the Certificate Register. Upon receiving such
notice of resignation, the Depositor shall promptly appoint a successor trustee
meeting the requirements in Section 8.06 and acceptable to the Rating Agencies
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 Servicers, the Special Servicer and the
Certificateholders. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or either Master Servicer, 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 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 any report to be delivered by the Trustee
pursuant to Section 4.02 and such failure shall continue unremedied for a period
of five days, or if the Trustee shall fail (other than by reason of the failure
of either Master Servicer, the Special Servicer or the Depositor to timely
perform its obligations hereunder or as a result of other circumstances beyond
the Trustee's reasonable control) to timely perform any of its obligations set
forth in Section 3.13, Section 3.14 or Section 8.16(a) and such failure
adversely affects the Depositor's ability to use or file a registration
statement on Form S-3 for purposes of publicly offering commercial
mortgage-backed securities, or if the Trustee fails to make distributions
required pursuant to Section 3.05(b), 4.01 or 9.01, then the Depositor may
remove the Trustee and appoint a successor trustee, if necessary, acceptable to
the Master Servicers and the Rating Agencies (as evidenced by written
confirmation therefrom to the effect that the appointment of such institution
would not cause an Adverse Rating Event) 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
Servicers, the Special Servicer and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor
trustee, if necessary, by written instrument or instruments, in triplicate,
signed by such Holders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered to each 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 and the remaining Certificateholders 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, without limitation, P&I Advances and accrued interest thereon)
accrued or owing to it under this Agreement,
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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.
SECTION 8.08 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, each Master Servicer,
the Special Servicer and its predecessor trustee, an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee all Mortgage Files and related documents
and statements 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 Servicers, 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. Any and all costs and expenses associated with
transferring the duties of a Trustee that has resigned or been removed or
terminated, as contemplated by Section 8.07, to a successor Trustee, including
those associated with transfer of the Mortgage Files and other documents and
statements held by the predecessor Trustee to the successor Trustee, as
contemplated by Section 8.08(a), shall be paid by: (i) the predecessor Trustee,
if such predecessor Trustee has resigned in accordance with Section 8.07(a), has
been removed in accordance with Section 8.07(b) or has been removed with cause
in accordance with Section 8.07(c); (ii) the Certificateholders that effected
the removal, if the predecessor Trustee has been removed without cause in
accordance with Section 8.07(c); and (iii) the Trust, if such costs and expenses
are not paid by the predecessor Trustee or the subject Certificateholders, as
contemplated by the immediately preceding clauses (i) and (ii), within 90 days
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).
(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 and the Rating Agencies
have provided confirmation pursuant to such Section.
(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 Certificateholders
and each Non-Trust Noteholder.
SECTION 8.09 Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with
which it 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 such entity shall be eligible under the provisions
of Section 8.06 and the Rating Agencies have provided confirmation pursuant to
such Section, without the
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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 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 a 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 cease to exist, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts 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.
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SECTION 8.11 Appointment of Custodians.
The Trustee may appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor,
any Mortgage Loan Seller or any Affiliate of the Depositor or any Mortgage Loan
Seller. Neither the Master Servicers 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. Any such appointment of a third party Custodian and
the acceptance thereof shall be pursuant to a written agreement, which written
agreement shall (i) be consistent with this Agreement in all material respects
and requires the Custodian to comply with this Agreement in all material
respects and requires the Custodian to comply with all of the applicable
conditions of this Agreement; (ii) provide that if the Trustee shall for any
reason no longer act in the capacity of Trustee hereunder (including, without
limitation, by reason of an Event of Default), the successor trustee or its
designee may thereupon assume all of the rights and, except to the extent such
obligations 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) 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 and liable 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 herewith.
The initial Custodian shall be the Trustee. 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 (other than the Trustee) 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.
SECTION 8.12 Appointment of Authenticating Agents.
(a) The Trustee may at the Trustee's expense appoint one or more
Authenticating Agents, 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, in accordance 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 do a trust business, have a combined
capital and surplus of at least $15,000,000, and be subject to supervision or
examination by federal or state authorities. Each Authenticating Agent shall be
subject to the same obligations, standard of care, protection and indemnities as
would be imposed on, or would protect, the Trustee hereunder. The appointment of
an Authenticating Agent shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible and liable for
all acts and omissions of the Authenticating Agent. If LaSalle Bank National
Association is removed as Trustee, then it shall be terminated as Authenticating
Agent. If the Authenticating Agent (other than LaSalle Bank National
Association) resigns or is terminated, the Trustee shall appoint a successor
Authenticating Agent which may be the Trustee or an Affiliate thereof. In the
absence of any other Person appointed in accordance herewith acting as
Authenticating Agent, the Trustee hereby agrees to
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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 may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, each Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent, each Master Servicer, the Certificate Registrar and the
Depositor. Upon receiving a notice of 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 each 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. No Authenticating Agent shall have responsibility or
liability for any action taken by it as such at the direction of the Trustee.
SECTION 8.13 Access to Certain Information.
The Trustee shall afford to each Master Servicer, the Special
Servicer, each Rating Agency and the Depositor, to any Certificateholder or
Certificate Owner 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. Upon request and with the consent of the Depositor and at the
cost of the requesting Party, the Trustee shall provide copies of such
documentation to the Depositor, any Certificateholder and to the OTS, the FDIC
and any other bank or insurance regulatory authority that may exercise authority
over any Certificateholder.
SECTION 8.14 Appointment of REMIC Administrators.
(a) The Trustee may appoint at the Trustee's expense, one or more
REMIC Administrators, which shall be authorized to act on behalf of the Trustee
in performing the functions set forth in Sections 3.17, 10.01 and 10.02 herein.
The Trustee shall cause any such REMIC Administrator to execute and deliver to
the Trustee an instrument in which such REMIC Administrator shall agree to act
in such capacity, with the obligations and responsibilities herein. The
appointment of a REMIC Administrator shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall
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remain responsible and liable for all acts and omissions of the REMIC
Administrator. Each REMIC Administrator must be acceptable to the Trustee and
must be organized and doing business under the laws of the United States of
America or of any State and be subject to supervision or examination by federal
or state authorities. In the absence of any other Person appointed in accordance
herewith acting as REMIC Administrator, the Trustee hereby agrees to act in such
capacity in accordance with the terms hereof. If LaSalle Bank National
Association is removed as Trustee, then it shall be terminated as REMIC
Administrator.
(b) Any Person into which any REMIC 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 REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Trustee
or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, each Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any REMIC
Administrator by giving written notice of termination to such REMIC
Administrator, each Master Servicer, the Certificate Registrar and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any REMIC Administrator shall cease to be eligible in
accordance with the provisions of this Section 8.14, the Trustee may appoint a
successor REMIC Administrator, in which case the Trustee shall give written
notice of such appointment to each Master Servicer and the Depositor and shall
mail notice of such appointment to all Holders of Certificates; provided,
however, that no successor REMIC Administrator shall be appointed unless
eligible under the provisions of this Section 8.14. Any successor REMIC
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 REMIC Administrator. No
REMIC Administrator shall have responsibility or liability for any action taken
by it as such at the direction of the Trustee.
SECTION 8.15 Representations, Warranties and Covenants of
Trustee.
The Trustee hereby represents and warrants to each Master Servicer,
the Special Servicer and the Depositor and for the benefit of the
Certificateholders, as of the Closing Date, that:
(a) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States.
(b) 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 a material breach of, any material
agreement or other material instrument to which it is a party or by which it is
bound.
(c) 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
carry on its business as now being conducted and to enter into and consummate
all transactions contemplated by
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this Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(d) 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 (including with respect to any advancing obligations
hereunder), subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally and the rights of creditors of banks, and (B) general principles of
equity, regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(e) 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 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 reasonable judgment, is likely to affect materially and
adversely the ability of the Trustee to perform its obligations under this
Agreement.
(f) 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 reasonable judgment, is likely to materially and adversely
affect the ability of the Trustee to perform its obligations under this
Agreement.
(g) 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.
(h) With respect to any Trust Mortgage Loan that is part of a Loan
Combination, the Trustee is qualified to hold that Trust Mortgage Loan under the
related Loan Combination Intercreditor Agreement.
SECTION 8.16 Reports to the Commission.
(a) With respect to any Exchange Act Reporting Year, the Trustee
shall:
(i) as soon as reasonably practicable (and, in any event,
within 15 days or such other period as may be provided under the Exchange
Act and the rules and regulations promulgated thereunder) after each
Distribution Date during such Exchange Act Reporting Year, in accordance
with the Exchange Act, the rules and regulations promulgated thereunder,
and applicable releases and "no-action letters" issued by the Commission,
prepare for filing, arrange for execution by the Depositor and properly
and timely file with the Commission with respect to the Trust, a Form 10-D
Distribution Report with or including, as the case may be, a copy of the
applicable Distribution Date Statement, any applicable Trustee Reportable
Events (and related information) to be reported for the period covered by
the subject Form 10-D Distribution Report and, to the extent that a
Responsible Party of the Trustee has been provided written notice thereof,
any other Form 10-D Required Information to be reported for the period
covered by the subject Form 10-D Distribution Report;
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(ii) during such Exchange Act Reporting Year, at the
direction of the Depositor, in accordance with the Exchange Act, the rules
and regulations promulgated thereunder, and applicable releases and
"no-action letters" issued by the Commission, prepare for filing, arrange
for execution by the Depositor and properly and timely file with the
Commission with respect to the Trust, a Form 8-K Current Report regarding
and disclosing any Form 8-K Required Information (except in the case where
it relates to a Trustee Reportable Event, to the extent a Responsible
Officer of the Trustee has been provided with written notice of such
information), within the time periods specified under Form 8-K, the
Exchange Act, the rules and regulations promulgated thereunder and
applicable releases and "no-action letters" issued by the Commission;
provided that the Depositor shall cooperate with the Trustee to determine
the applicable required time period; and provided, further, that, if the
Depositor directs the Trustee to file a Form 8-K Current Report in
accordance with this clause (ii), the Depositor shall cooperate with the
Trustee in preparing such Form 8-K Current Report and the Trustee will
report the subject information in accordance with the Exchange Act, the
rules and regulations promulgated thereunder and applicable releases and
"no-action letters" issued by the Commission;
(iii) within 90 days following the end of such Exchange Act
Reporting Year, prepare, arrange for execution by the Depositor and
properly and timely file with the Commission, with respect to the Trust, a
Form 10-K Annual Report, which complies in all material respects with the
requirements of the Exchange Act, the rules and regulations promulgated
thereunder and applicable "no-action letters" issued by the Commission,
which shall include as exhibits each Annual Statement of Compliance,
Annual Assessment Report and Annual Attestation Report delivered pursuant
to or as contemplated by Section 3.13 and/or Section 3.14, with respect to
either Master Servicer, the Special Servicer or other applicable Person
for such Exchange Act Reporting Year, and which shall further include a
certification in the form attached hereto as Exhibit O (a "Xxxxxxxx-Xxxxx
Certification") (or in such other form as required by 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)) and shall include any other Form 10-K Required Information to be
reported for such Exchange Act Reporting Year (except in the case where it
relates to a Trustee Reportable Event, to the extent a Responsible Officer
of the Trustee has been provided written notice thereof); and
(iv) at the reasonable request of, and in accordance with
the reasonable directions of, the Depositor, prepare for filing, arrange
for execution by the Depositor and promptly file with the Commission an
amendment to any Form 8-K Current Report, Form 10-D Distribution Report or
Form 10-K Annual Report previously filed with the Commission with respect
to the Trust during or relating to, as applicable, such Exchange Act
Reporting Year;
provided that (x) the Trustee shall not have any responsibility to file any
items (other than those generated by it) that have not been received in a format
suitable for (or readily convertible to a format suitable for) electronic filing
via the XXXXX system (such suitable formats including "ASCII", "Microsoft Excel"
(solely in the case of reports from either Master Servicer or the Special
Servicer pursuant to Section 3.12), "Microsoft Word" or another format
reasonably acceptable to the Trustee) and shall not have any responsibility to
convert any such items to such format (other than those items generated by it or
readily convertible to such format), and (y) the Depositor shall be responsible
for preparing, executing and filing (via the XXXXX system) a Current Report on
Form 8-K reporting the establishment of the Trust and a Current Report on Form
8-K whereby this Agreement will be filed as an exhibit (the Current Reports on
Form 8-K contemplated by this subclause (y) being herein referred to as
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the "Initial Form 8-K Current Report"); and provided, further, that if all or
any required portion of a Form 10-K Annual Report or a Form 10-D Distribution
Report cannot be timely filed by the Trustee (other than for a reason
contemplated by Rule 12b-25(g) of the Exchange Act), then (i) the Trustee (upon
becoming aware thereof or the reasonable likelihood thereof) shall immediately
notify the Depositor, (ii) the Trustee shall (to the extent appropriate, and at
the direction of the Depositor) file a Form 12b-25 (17 C.F.R. 249.322) in
connection therewith consistent with Rule 12b-25 of the Exchange Act, each party
hereto shall reasonably cooperate with the Trustee and the Depositor to complete
the subject Exchange Act Report and such Exchange Act Report (or the applicable
portions thereof) shall be filed with the Commission as soon as reasonably
practicable and, if the Depositor is relying upon Rule 12b-25 of the Exchange
Act, within the time frames contemplated thereby; and provided, further, that if
all or any required portion of any Exchange Act Report cannot be timely filed by
the Trustee for the sole reason that the Trustee is unable to file the report in
electronic format, then (i) the Trustee (upon becoming aware thereof or the
reasonable likelihood thereof) shall immediately notify the Depositor and, as
determined by the Depositor, the Depositor and the Trustee shall comply with
either Rule 201 or 202 of Regulation S-T or apply for an adjustment of filing
date pursuant to Rule 13b of Regulation S-T. Each of the other parties to this
Agreement shall deliver to the Trustee in the format required for (or readily
convertible to a format suitable for) electronic filing via the XXXXX system
(such suitable formats including "ASCII", "Microsoft Excel" (solely in the case
of reports from either Master Servicer or the Special Servicer pursuant to
Section 3.12), "Microsoft Word" or another format reasonably acceptable to the
Trustee) any and all items contemplated to be filed with the Commission pursuant
to this Section 8.16.
All Form 8-K Current Reports, Form 10-D Distribution Reports and
Form 10-K Annual Reports, as well as any amendments to those reports, that are
to be filed with respect to the Trust pursuant to the Exchange Act, and the
rules and regulations promulgated thereunder, and this Section 8.16(a), are
(together with the exhibits thereto) herein referred to as the "Exchange Act
Reports". The Exchange Act Reports, exclusive of the Initial Current Reports on
Form 8-K, are herein referred to as the "Subsequent Exchange Act Reports". All
Subsequent Exchange Act Reports prepared by the Trustee pursuant to this Section
8.16(a) shall be executed by the Depositor promptly upon delivery thereto and
subject to the Subsequent Exchange Act Report being in form and substance
reasonably acceptable thereto. The Senior Officer in charge of securitization
for the Depositor shall sign the Xxxxxxxx-Xxxxx Certification included in each
Form 10-K Report with respect to the Trust.
The Trustee shall have no liability to Certificateholders or the
Trust or the Depositor or the Underwriters with respect to any failure to
properly prepare or file with the Commission any of the reports under the
Exchange Act contemplated by this Section 8.16(a) to the extent that such
failure did not result from any negligence, bad faith or willful misconduct on
the part of the Trustee. The parties to this Agreement acknowledge that the
performance by the Trustee of its duties under this Section 8.16 related to the
timely preparation, arrangement for execution and filing of Subsequent Exchange
Act Reports is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under Sections 3.13, 3.14 and 8.16.
The Trustee has no duty under this Section 8.16 or otherwise under this
Agreement to enforce the performance by the parties of their duties under this
Section 8.16.
The Trustee shall make available to all Certificateholders and
Certificate Owners on its internet website each Subsequent Exchange Act Report
that is filed with the Commission with respect to the Trust. The Trustee shall
post each such report on its internet website as soon as reasonably practicable
after the filing thereof with the Commission. In addition, the Trustee shall,
free of charge,
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upon request, deliver to any Certificateholder, Certificate Owner or party
identified as a prospective Certificateholder or Certificate Owner copies of all
Subsequent Exchange Act Reports that are filed with the Commission with respect
to the Trust. Any request contemplated by the prior sentence shall be made to
LaSalle Bank National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Xxx Xxxxxxxxx (telephone number:
000-000-0000) or to such other Person, address and/or phone number as the
Trustee may specify by notice to Certificateholders.
(b) All Form 10-K Annual Reports with respect to the Trust shall
include a Xxxxxxxx-Xxxxx Certification, in so far as it is required to be part
of any particular Form 10-K Annual Report. The Senior Officer in charge of
securitization for the Depositor shall sign the Xxxxxxxx-Xxxxx Certification.
Each Master Servicer, the Special Servicer and the Trustee (each, a "Performing
Party") shall provide a certification (each, a "Performance Certification") to
the Person who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person"),
to the Depositor in the form set forth on Exhibit P-1 hereto (with respect to
each Master Servicer), Exhibit P-2 hereto (with respect to the Trustee), or
Exhibit P-3 hereto (with respect to the Special Servicer's certification to the
Certifying Person of the Depositor), as applicable, on which the Certifying
Person and the Depositor may rely. Each partner, representative, Affiliate,
member, manager, shareholder, director, officer, employee and agent of the
Depositor (the "Certifying Person" and the Depositor, collectively,
"Certification Parties") may rely on a Performance Certification to the same
extent as the Depositor. Notwithstanding the foregoing, nothing in this
paragraph shall require any Performing Party to (i) certify or verify the
accurateness or completeness of any information provided to such Performing
Party by third parties, (ii) to certify information other than to such
Performing Party's knowledge and in accordance with such Performing Party's
responsibilities hereunder or under any other applicable servicing agreement 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 Performing Party have been completed except as they have been
left blank on their face. In addition, with respect to any report regarding one
or more Specially Serviced Mortgage Loans, the Special Servicer shall not be
required to include in any such report prepared by it specific detailed
information related to the status or nature of any workout negotiations with the
related Mortgagor with respect to such Mortgage Loan or any facts material to
the position of the Trust (or, in the case of a Loan Combination, the position
of the Trust and the related Non-Trust Noteholder(s)) in any such negotiations
if (A) the Special Servicer determines, in its reasonable judgment in accordance
with the Servicing Standard, that stating such information in such report would
materially impair the interests of the Trust (or, in the case of a Loan
Combination, the interest of the Trust and the related Non-Trust Noteholder(s))
in such negotiations, and (B) the Special Servicer included in such report a
general description regarding the status of the subject Mortgage Loan and an
indication that workout negotiations were ongoing. In the event any Performing
Party is terminated or resigns pursuant to the terms of this Agreement, such
Performing Party shall provide a Performance Certification to the Depositor and
the Certifying Person pursuant to this Section 8.16 with respect to the period
of time such Performing Party was subject to this Agreement.
(c) At all times during each Exchange Act Reporting Year, each of
the Trustee, the Master Servicers and the Special Servicer shall (and shall use
reasonable efforts to cause each Servicing Representative acting on its behalf
hereunder and, solely in the case of the Trustee, each Trustee Appointee to)
monitor for, and (in accordance with the timeframes set forth in this Section
8.16(c)) notify (including with such notice the Exchange Act Reportable Event
Notification attached hereto as Exhibit J) the Depositor and the Trustee in
writing of, the occurrence or existence of any and all events, conditions,
circumstances and/or matters that constitute or may constitute related Exchange
Act Reportable Events with respect to such Person. Each of the Trustee, Master
Servicers and Special
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Servicer shall provide such notice of any Exchange Act Reportable Event to the
Trustee and the Depositor (i) no later than 5 calendar days after the
Distribution Date with respect to any Exchange Act Reportable Event to be
disclosed on Form 10-D, (ii) no later than March 15th in any year in which the
Trustee will file a Form 10-K for the Trust with respect to any Exchange Act
Reportable Event to be disclosed on Form 10-K, and (iii) no later than Noon (New
York City time) on the 2nd Business Day after the occurrence of any Exchange Act
Reportable Event to be disclosed on Form 8-K. Notwithstanding the foregoing, in
connection with any Mortgage Loans that are the subject of a Sub-Servicing
Agreement in effect as of the Closing Date between the applicable Master
Servicer and a Designated Sub-Servicer, the sole obligation of such Master
Servicer to provide monitoring, notice, information or reports as otherwise set
forth above shall be to use reasonable efforts to cause the related Designated
Sub-Servicer to comply with such similar reporting and delivery obligations as
such Designated Sub-Servicer may have under such Sub-Servicing Agreement. In
addition, for purposes of the duties set forth above, each of the Trustee,
either Master Servicer and the Special Servicer (and any Additional Servicer or
Servicing Function Participant) shall be entitled to assume the accuracy and
completeness of the Prospectus Supplement as of the Closing Date as to all
matters other than the information for which the Trustee, such Master Servicer
or the Special Servicer is responsible under the Trustee Indemnification
Agreement, the related Master Servicer Indemnification Agreement or the Special
Servicer Indemnification Agreement, as applicable. Upon becoming aware of any
Form 8-K Required Information, the Trustee shall promptly notify the Depositor
that the filing of a Form 8-K Current Report may be required with respect to any
of the events, conditions, circumstances and/or matters that are the subject of
that information and, further, shall consult with the Depositor regarding
whether to prepare and file a Form 8-K Current Report under Section 8.16(a)(ii)
above with respect to such events, conditions, circumstances and/or matters and,
if prepared, the form and content of such filing (and the Trustee shall be
entitled to rely on the direction of the Depositor with regard to whether to
make, and the form and content of, such filing). For purposes of this paragraph,
none of the Trustee, either Master Servicer or the Special Servicer shall be
considered to be aware of any related Exchange Act Reportable Event, and the
Trustee shall not be considered to be aware of any Form 8-K Required
Information, Form 10-D Required Information or Form 10-K Required Information,
unless a Responsible Officer (in the case of the Trustee) or a Servicing Officer
(in the case of either Master Servicer or the Special Servicer) thereof has
actual knowledge.
Upon reasonable request of the Depositor or the Trustee, each other
party hereto (including the Trustee, if the Depositor is the requesting party,
and the Depositor, if the Trustee is the requesting party) shall (and shall use
reasonable efforts to cause each Servicing Representative acting on its behalf
hereunder and, solely in the case of the Trustee, each Trustee Appointee, to)
promptly provide to the requesting party any information in its possession as is
necessary or appropriate for the Depositor or the Trustee, as applicable, to
prepare fully and properly any Exchange Act Report with respect to the Trust in
accordance with the Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder.
If, during any Exchange Act Reporting Year, a new Master Servicer,
Special Servicer or Trustee is appointed, then such new Master Servicer, Special
Servicer or Trustee, as the case may be, shall in connection with its acceptance
of such appointment provide the Depositor and, in the case of a new Master
Servicer or Special Servicer, the Trustee with such information regarding
itself, its business and operations and its experience and practices regarding
the duties it is to perform under this Agreement, as is required to be reported
by the Depositor pursuant to Item 6.02 of Form 8-K. If, during any Exchange Act
Reporting Year, either Master Servicer, the Special Servicer or the Trustee
appoints a Servicing Representative (excluding any Designated Sub-Servicer) that
constitutes a Servicer
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contemplated by Item 1108(a)(2) of Regulation AB in respect of the Subject
Securitization Transaction, then such Master Servicer, the Special Servicer or
the Trustee, as the case may be, shall cause such Servicing Representative, in
connection with its acceptance of such appointment, to provide the Depositor and
the Trustee with such information regarding itself, its business and operations
and its servicing experience and practices, as is required to be reported by the
Depositor pursuant to Item 6.02 of Form 8-K.
Each of the Trustee, the Master Servicers and the Special Servicer
acknowledges and agrees that the information to be provided by it (or by any
Servicing Representative acting on its behalf hereunder or, solely in the case
of the Trustee, any Trustee Appointee) pursuant to or as contemplated by this
Section 8.16(c) is intended to be used in connection with the preparation of
Exchange Act Reports with respect to the Trust.
(d) No later than (i) 12:00 noon, New York City time, on the
Business Day prior to any filing deadline of a Current Report on Form 8-K (other
than an Initial Current Report on Form 8-K) that is to be made with respect to
the Trust as contemplated by Section 8.16(a), (ii) March 20th of the applicable
calendar year in which the filing of any Annual Report on Form 10-K is to be
made with respect to the Trust as contemplated by Section 8.16(a), and (iii) two
(2) Business Days prior to any filing (or, in the case of a Form 10-D
Distribution Report, any filing deadline) of a Form 10-D Distribution Report or
any other Subsequent Exchange Act Report that is to be made with respect to the
Trust as contemplated by Section 8.16(a), the Trustee shall deliver a copy of
such Exchange Act Report, together with all exhibits thereto (to the extent
received by the Trustee), to the Depositor, which delivery shall include an
e-mail transmission of such applicable report to xxxxx_xxxxxxx@xx.xxx or to such
other e-mail address as may be hereafter furnished by the Depositor to the
Trustee in writing.
(e) If as of the beginning of any fiscal year for the Trust
(other than fiscal year 2007), the Registered Certificates are held (directly
or, in the case of Registered Certificates held in book-entry form, through the
Depository) by less than 300 Holders and/or Depository Participants having
accounts with the Depository, the Trustee shall, in accordance with the Exchange
Act and the rules and regulations promulgated thereunder, timely file a Form 15
with respect to the Trust notifying the Commission of the suspension of the
reporting requirements under the Exchange Act and shall post such Form 15 to its
internet website. In addition, the Trustee shall deliver a copy of such Form 15
to the Depositor by e-mail addressed to xxxxx_xxxxxxx@xx.xxx or to such other
e-mail address as may be hereafter furnished by the Depositor to the Trustee in
writing.
(f) Each Performing Party shall indemnify and hold harmless each
Certification Party from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses incurred by such Certification Party arising out of
(i) any material misstatement in a Performance Certification delivered by such
Performing Party on which such Certification Party is entitled to rely, (ii) an
actual breach by the applicable Performing Party of its obligations under this
Section 8.16 or (iii) negligence, bad faith or willful misconduct on the part of
such Performing Party in the performance of its obligations otherwise under this
Agreement. A Performing Party shall have no obligation to indemnify any
Certification Party for an inaccuracy in the Performance Certification of any
other Performing Party. If the indemnification provided for in this Section
8.16(f) is unavailable or insufficient to hold harmless a Certification Party
(on grounds of public policy or otherwise), then each Performing Party shall
contribute to the amount paid or payable by such Certification Party as a result
of the losses, claims, damages or liabilities of such Certification Party in
such proportion as is appropriate to reflect the relative fault of such
Certification Party on the one hand
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and such Performing Party on the other. The obligations of the Performing
Parties in this Section 8.16(f) to contribute are several in the proportions
described in the preceding sentence and not joint.
(g) The respective parties hereto agree to cooperate with all
reasonable requests made by any Certifying Person in connection with such
Person's attempt to conduct any due diligence that such Person reasonably
believes to be appropriate in order to allow it to deliver any Xxxxxxxx-Xxxxx
Certification or portion thereof with respect to the Trust.
(h) The respective parties hereto shall deliver to the Trustee, no
later than March 15th of any year in which a Form 10-K Annual Report is to be
filed, any items required to be delivered by such party that are to be an
exhibit to such Form 10-K Annual Report. The Trustee hereby notifies the Master
Servicers and the Special Servicer that a Form 10-K Annual Report shall be
required to be filed with respect to the Trust for 2007.
(i) [RESERVED]
(j) Prior to April 1 of the first year in which the Trustee has
filed a Form 15 with the Commission in accordance with this section, if at any
time a Servicing Representative retained or engaged by either Master Servicer,
the Special Servicer or the Trustee with respect to all or any portion of the
Trust Fund fails to deliver, if and to the extent applicable in accordance with
Regulation AB and this Agreement, any of the items set forth in the following
clauses (i), (ii) and/or (iii), then such Master Servicer, the Special Servicer
or the Trustee, as the case may be, shall deliver a written notice thereof to
the Depositor and shall (or, in the case of a Designated Sub-Servicer, shall use
reasonable efforts to) promptly terminate all engagements with the subject
Servicing Representative relating to the Subject Securitization Transaction: (i)
any Annual Statement of Compliance contemplated by Item 1123 of Regulation AB,
as and when provided under Section 3.13; or (ii) any Annual Assessment Report
contemplated by Item 1122 of Regulation AB, as and when provided under Section
3.14; or (iii) any Annual Attestation Report contemplated by Item 1122 of
Regulation AB, together with any corresponding required Accountant's Consent, as
and when provided under Section 3.14. In addition, prior to April 1 of the first
year in which the Trustee has filed a Form 15 with the Commission in accordance
with this section, if at any time the Depositor delivers a written notice to
either Master Servicer, the Special Servicer or the Trustee stating that any
Servicing Representative retained or engaged thereby has defaulted on its
obligation to deliver, (i) if and to the extent applicable in accordance with
Regulation AB and this Agreement, any of the items set forth in clauses (i),
(ii) and/or (iii) of the preceding sentence, as and when provided under this
Agreement, or (ii) if and to the extent applicable in accordance with Regulation
AB and another pooling and servicing agreement to which the Depositor is a
party, any of the items similar to those set forth in clauses (i), (ii) and/or
(iii) of the preceding sentence, as and when provided under such other pooling
and servicing agreement, then such Master Servicer, the Special Servicer or the
Trustee, as the case may be, shall (or, in the case of a Designated
Sub-Servicer, shall use reasonable efforts to) promptly terminate all
engagements with the subject Servicing Representative relating to the Subject
Securitization Transaction.
(k) Each of the Master Servicers, the Special Servicer and the
Trustee shall each indemnify the Depositor and its Affiliates for, and hold the
Depositor and its Affiliates harmless from and against, any and all losses,
liabilities, claims, damages, costs and expenses whatsoever, as incurred,
arising out of or based upon the failure of any Servicing Representative (other
than a Designated Sub-Servicer) acting on behalf of the subject Master Servicer,
the Special Servicer or the Trustee, as the case may be, to deliver, if and to
the extent applicable in accordance with Regulation AB and this
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Agreement: (i) any Annual Statement of Compliance contemplated by Item 1123 of
Regulation AB, as and when provided under Section 3.13; or (ii) any Annual
Assessment Report contemplated by Item 1122 of Regulation AB, as and when
provided under Section 3.14; or (iii) any Annual Attestation Report contemplated
by Item 1122 of Regulation AB, together with (if required to be filed with the
Commission) any corresponding required Accountant's Consent, as and when
provided under Section 3.14.
(l) In the event the parties to this Agreement desire to further
clarify or amend any provision of this Section 8.16, this Agreement shall be
amended to reflect the new agreement between the parties covering matters in
this Section 8.16 pursuant to Section 11.01, which amendment shall not require
any Opinion of Counsel or Rating Agency confirmations or the consent of any
Certificateholder or any Non-Trust Mortgage Loan Noteholder; provided that no
such amendment shall diminish the filing requirements under this Section 8.16 on
the part of the parties to this Agreement, as a collective whole, in
contravention of applicable law.
(m) With respect to any notice required to be delivered by the
Trustee to the Depositor pursuant to this Section 8.16 or Sections 3.13 or 3.14,
the Trustee may deliver such notice, in addition to the form of delivery
required pursuant to Section 11.05, by telephone call made to Xxxxx Xxxxxxx at
000-000-0000, in which event the Trustee shall also deliver the same notice via
e-mail to xxxxx.xxxxxxx@xx.xxx or to such other telephone number and/or e-mail
address as may be hereafter furnished by the Depositor to the Trustee in
writing.
SECTION 8.17 Maintenance of Mortgage File.
Except for the release of items in the Mortgage File contemplated by
this Agreement, including, without limitation, as necessary for the enforcement
of the holder's rights and remedies under the related Trust Mortgage Loan, the
Trustee covenants and agrees that it shall maintain each Mortgage File in the
State of Illinois, and that it shall not move any Mortgage File outside the
State of Illinois, other than as specifically provided for in this Agreement,
unless it shall first obtain and provide, at the expense of the Trustee, an
Opinion of Counsel to the Depositor and the Rating Agencies to the effect that
the Trustee's first priority interest in the Mortgage Notes has been duly and
fully perfected under the applicable laws and regulations of such other
jurisdiction.
SECTION 8.18 Appointment of Fiscal Agent.
(a) Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may appoint, at the Trustee's own
expense, a Fiscal Agent for purposes of making Advances hereunder that are
otherwise required to be made by the Trustee. Any Fiscal Agent shall at all
times maintain a long-term unsecured debt rating of no less than "Aa3" from
Xxxxx'x and "AA" from Fitch (or, in the case of either Rating Agency, such lower
rating as will not result in an Adverse Rating Event (as confirmed in writing to
the Trustee and the Depositor by such Rating Agency)). Any Person so appointed
by the Trustee pursuant to this Section 8.18(a) shall become the Fiscal Agent on
the date as of which the Trustee and the Depositor have received: (i) if the
long-term unsecured debt of the designated Person is not rated at least "Aa3" by
Xxxxx'x and "A" by Fitch, written confirmation from each Rating Agency that the
appointment of such designated Person will not result in an Adverse Rating
Event; (ii) a written agreement whereby the designated Person is appointed as,
and agrees to assume and perform the duties of, Fiscal Agent hereunder, executed
by such designated Person and the Trustee (such agreement, the "Fiscal Agent
Agreement"); and (iii) an opinion of counsel (which shall be paid for by the
designated Person or the Trustee) substantially to the effect that (A) the
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appointment of the designated Person to serve as Fiscal Agent is in compliance
with this Section 8.18, (B) the designated Person is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (C) the related Fiscal Agent Agreement has been duly authorized,
executed and delivered by the designated Person and (D) upon execution and
delivery of the related Fiscal Agent Agreement, the designated Person shall be
bound by the terms of this Agreement and, subject to customary bankruptcy and
insolvency exceptions and customary equity exceptions, that this Agreement shall
be enforceable against the designated Person in accordance with its terms. Any
Person that acts as Fiscal Agent shall, for so long as it so acts, be deemed a
party to this Agreement for all purposes hereof. Pursuant to the related Fiscal
Agent Agreement, each Fiscal Agent, if any, shall make representations and
warranties with respect to itself that are comparable to those made by the
Trustee pursuant to Section 8.15(a).
(b) To the extent that the Trustee is required, pursuant to the
terms of this Agreement, to make any Advance, whether as a successor Master
Servicer or otherwise, and has failed to do so in accordance with the terms
hereof, a Fiscal Agent (if one has been appointed by the Trustee) shall make
such Advance when and as required by the terms of this Agreement on behalf the
Trustee as if such Fiscal Agent were the Trustee hereunder. To the extent that a
Fiscal Agent (if one has been appointed by the Trustee) makes an Advance
pursuant to this Section 8.18 or otherwise pursuant to this Agreement, the
obligations of the Trustee under this Agreement in respect of such Advance shall
be satisfied.
(c) Notwithstanding anything contained in this Agreement to the
contrary, any Fiscal Agent shall be entitled to all limitations on liability,
rights of reimbursement and indemnities to which the Trustee is entitled
hereunder (including, without limitation, pursuant to Section 8.05(b)) as if it
were the Trustee, except that all fees and expenses of a Fiscal Agent (other
than interest owed to such Fiscal Agent in respect of unreimbursed Advances)
incurred by such Fiscal Agent in connection with the transactions contemplated
by this Agreement shall be borne by the Trustee, and neither the Trustee nor
such Fiscal Agent shall be entitled to reimbursement therefor from any of the
Trust, the Depositor, either Master Servicer or the Special Servicer.
(d) The obligations of a Fiscal Agent set forth in this Section
8.18 or otherwise pursuant to this Agreement shall exist only for so long as the
Trustee that appointed it shall act as Trustee hereunder. A Fiscal Agent may
resign or be removed by the Trustee only if and when the existence of such
Fiscal Agent is no longer necessary for such Trustee to satisfy the eligibility
requirements of Section 8.06; provided that a Fiscal Agent shall be deemed to
have resigned at such time as the Trustee that appointed it resigns or is
removed as Trustee hereunder (in which case the responsibility for appointing a
successor Fiscal Agent in accordance with Section 8.18(a) shall belong to the
successor trustee insofar as such appointment is necessary for such successor
trustee to satisfy the eligibility requirements of Section 8.06).
(e) The Trustee shall promptly notify the other parties hereto
and the Certificateholders in writing of the appointment, resignation or removal
of a Fiscal Agent.
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ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All
Trust Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicers, the Special Servicer, any Fiscal Agent and the Trustee (other
than the obligations of the Trustee to provide for and make distributions to
Certificateholders as hereafter set forth) shall terminate upon distribution (or
provision for distribution) (i) to the Certificateholders of all amounts held by
or on behalf of the Trustee and required hereunder to be so distributed on the
Distribution Date following the earlier to occur of (A) the purchase by either
Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder of all Trust Mortgage Loans and each REO Property (or, in the
case of a Loan Combination Mortgaged Property if it has become an REO Property,
the Trust's interest therein) remaining in the Trust Fund at a price equal to
(1) the aggregate Purchase Price of all the Trust Mortgage Loans then included
in the Trust Fund, plus (2) the appraised value of each REO Property (or, in the
case of a Loan Combination Mortgaged Property if it has become an REO Property,
the Trust's interest therein), if any, then included in the Trust Fund, such
appraisal to be conducted by an Independent Appraiser mutually agreed upon by
the Master Servicers, the Special Servicer and the Trustee, minus (3) if the
purchaser is a Master Servicer, the aggregate amount of unreimbursed Advances
made by such Master Servicer, together with any interest accrued and payable to
such Master Servicer in respect of unreimbursed Advances in accordance with
Sections 3.03(d) and 4.03(d) and any unpaid Master Servicing Fees remaining
outstanding (which items shall be deemed to have been paid or reimbursed to such
Master Servicer in connection with such purchase), (B) the exchange by the Sole
Certificate Owner of all the Certificates for all the Trust Mortgage Loans and
each REO Property remaining in the Trust Fund in the manner set forth below in
this Section 9.01 and (C) the final payment or other liquidation (or any advance
with respect thereto) of the last Trust Mortgage Loan or REO Property (in the
case of a Loan Combination Mortgaged Property if it has become an REO Property,
the Trust's interest therein) remaining in the Trust Fund, and (ii) to the
Trustee, the Master Servicers, the Special Servicer, any Fiscal Agent and the
officers, directors, employees and 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 Fund created hereby continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late ambassador of the United States to the Court of St. James's,
living on the date hereof.
Each of the Plurality Subordinate Certificateholder (or, as
contemplated in the following paragraph, the Controlling Class Representative if
one is then so acting), either Master Servicer and the Special Servicer may at
its option elect to purchase (with the Plurality Subordinate Certificateholder
having the first priority) all of the Trust Mortgage Loans and each REO Property
remaining in the Trust Fund as contemplated by clause (i) (A) of the immediately
preceding paragraph by giving written notice to the other parties hereto no
later than 60 days prior to the anticipated date of purchase; provided, however,
that (i) the aggregate Stated Principal Balance of the Mortgage Pool at the time
of such election is less than 1.00% of the aggregate Cut-off Date Balances of
the Trust Mortgage Loans, (ii) the Special Servicer shall not have the right to
effect such a purchase if, within 30 days following the Special Servicer's
delivery of a notice of election pursuant to this paragraph, the Plurality
Subordinate Certificateholder shall give notice of its election to purchase all
of the Trust Mortgage Loans and each
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REO Property (or, in the case of a Loan Combination Mortgaged Property if it has
become an REO Property, the Trust's interest therein) remaining in the Trust
Fund and shall thereafter effect such purchase in accordance with the terms
hereof, (iii) a Master Servicer shall not have the right to effect such a
purchase if, within 30 days following a Master Servicer's delivery of a notice
of election pursuant to this paragraph, the Special Servicer (subject to the
Plurality Subordinate Certificateholder's prior right as set forth in clause
(ii) above) or the Plurality Subordinate Certificateholder shall give notice of
its election to purchase all of the Trust Mortgage Loans and each REO Property
remaining in the Trust Fund and shall thereafter effect such purchase in
accordance with the terms hereof and (iv) if a Master Servicer makes such an
election, then the other Master Servicer shall have the option, by giving
written notice to the other parties hereto no later than 30 days prior to the
anticipated date of purchase, to purchase all of the Trust Mortgage Loans and
each REO Property remaining in the Trust Fund for which it is the applicable
Master Servicer. Neither Master Servicer may elect to purchase solely the
Mortgage Loans and REO Properties it is servicing hereunder if the other Master
Servicer is not similarly purchasing the Mortgage Loans and REO Properties it is
servicing. If the Trust Fund is to be terminated in connection with the
Plurality Subordinate Certificateholder's, a Master Servicer's or the Special
Servicer's purchase of all of the Trust Mortgage Loans and each REO Property
(or, in the case of a Loan Combination Mortgaged Property if it has become an
REO Property, the Trust's interest therein) remaining in the Trust Fund, the
Plurality Subordinate Certificateholder, the purchasing Master Servicer or the
Special Servicer, as applicable, shall deliver to the Master Servicers (or, if a
Master Servicer is a purchaser, the non-purchasing Master Servicer) for deposit
in their respective Collection Accounts not later than the Determination Date
relating to the Distribution Date on which the final distribution on the
Certificates is to occur an amount in immediately available funds equal to the
above-described purchase price. In addition, each Master Servicer shall transfer
to the Distribution Account all amounts required to be transferred thereto on
the related P&I Advance Date from its Collection Account pursuant to the first
paragraph of Section 3.04(b), together with any other amounts on deposit in its
Collection Account that would otherwise be held for future distribution. Upon
confirmation that such final deposit has been made, the Trustee shall release or
cause to be released to the Plurality Subordinate Certificateholder, the
purchasing Master Servicer or the Special Servicer, as applicable, the Mortgage
Files for the remaining Trust Mortgage Loans and shall execute all assignments,
endorsements and other instruments furnished to it by the Plurality Subordinate
Certificateholder, such Master Servicer or the Special Servicer, as applicable,
as shall be necessary to effectuate transfer of the Trust Mortgage Loans and REO
Properties (or, in the case of a Loan Combination Mortgaged Property if it has
become an REO Property, the Trust's interest therein) to the Plurality
Subordinate Certificateholder, such Master Servicer or the Special Servicer (or
their respective designees), as applicable.
The foregoing notwithstanding, if a Controlling Class Representative
has been appointed and is acting in that capacity, the Controlling Class
Representative shall have the option, in lieu of the Plurality Subordinate
Certificateholder, to purchase all the Trust Mortgage Loans and REO Properties
remaining in the Trust as described in the preceding paragraph.
Following the date on which the aggregate Certificate Principal
Balance of the Class A-1, Class A-2, Class A-2FL, Class X-0, Xxxxx X-0, Class
A-1A, Class AM, Class AJ, Class AJ-FL, Class B, Class C and Class D Certificates
is reduced to zero, if one Person is the owner of a 100% Ownership Interest of
each of the other outstanding Classes of Regular Certificates (any such Person,
the "Sole Certificate Owner"), then the Sole Certificate Owner shall have the
right to exchange all of the outstanding Certificates owned by the Sole
Certificate Owner for all of the Trust Mortgage Loans and each REO Property
remaining in the Trust Fund as contemplated by clause (i)(B) of the first
paragraph of this Section 9.01(a), by giving written notice to all the parties
hereto and each Non-Trust Noteholder
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no later than 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
Loan Combination. In the event that the Sole Certificate Owner elects to
exchange all of the Certificates owned by the Sole Certificate Owner for all of
the Trust Mortgage Loans and, subject to the proviso to the preceding sentence,
each REO Property remaining in the Trust Fund, the Sole Certificate Owner, not
later than the fifth Business Day preceding the Distribution Date on which the
final distribution on the Certificates is to occur, shall deposit in the
applicable Collection Account an amount in immediately available funds equal to
all amounts then due and owing to the Depositor, the Master Servicers, the
Special Servicer, the Trustee and any Fiscal Agent pursuant to Section 3.05(a),
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
the applicable Collection Account. In addition, on the P&I Advance Date
immediately preceding the final Distribution Date, each Master Servicer shall
transfer to the Distribution Account all amounts required to be transferred
thereto on such P&I Advance Date from its Collection Account pursuant to the
first paragraph of Section 3.04(b), together with any other amounts on deposit
in its Collection Account that would otherwise be held for future distribution.
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 a designee of the Sole Certificate
Owner, the Mortgage Files for the remaining Trust Mortgage Loans and REO
Properties and shall execute all assignments, endorsements and other instruments
furnished to it by the Sole Certificate Owner as shall be necessary to
effectuate transfer of the Trust Mortgage Loans and REO Properties remaining in
the Trust Fund; provided that, if any Trust Mortgage Loan exchanged pursuant to
this Section 9.01 is part of a Loan Combination, then the release, endorsement
or assignment of the documents constituting the related Mortgage File and
Servicing File shall be in the manner contemplated by Section 3.10. Any transfer
of Trust Mortgage Loans pursuant to this paragraph, except with respect to the
Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan, shall be on a
servicing-released basis.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders mailed (a) if such notice is given in connection
with the Plurality Subordinate Certificateholder's (or the Controlling Class
Representative's), either Master Servicer's or the Special Servicer's purchase
of the Trust Mortgage Loans and each REO Property (or, in the case of a Loan
Combination Mortgaged Property if it has become an REO Property, the Trust's
interest therein) remaining in the Trust Fund, not earlier than the 15th day and
not later than the 25th day of the month next preceding the month of the final
distribution on the Certificates or (b) otherwise during the month of such final
distribution on or before the Determination Date in 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 Servicers, 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 such Certificateholder so presenting and
surrendering its Certificates the amounts payable thereto on such final
Distribution Date in accordance with Section 4.01.
Any funds not distributed to any Holder or Holders of Certificates
on the final Distribution Date because of the failure of such Holder or Holders
to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given
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pursuant to this Section 9.01 shall not have been surrendered for cancellation
within six months after the time specified in such notice, the Trustee shall
mail a second notice to the remaining non-tendering Certificateholders to
surrender their Certificates for cancellation in order to receive the final
distribution with respect thereto. If within one year after the second notice
all such Certificates shall not have been surrendered for cancellation, the
Trustee, directly or through an agent, shall take such reasonable steps to
contact the remaining non-tendering Certificateholders concerning the surrender
of their Certificates as it shall deem appropriate, and shall deal with all such
unclaimed amounts in accordance with applicable law. 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.
SECTION 9.02 Additional Termination Requirements.
(a) If the Plurality Subordinate Certificateholder, either Master
Servicer or the Special Servicer purchases all of the Trust Mortgage Loans and
each REO Property (or, in the case of a Loan Combination Mortgaged Property if
it has become an REO Property, the Trust's interest therein) remaining in the
Trust Fund as provided in Section 9.01, the Trust Fund (and, accordingly, REMIC
I and REMIC II) shall be terminated in accordance with the following additional
requirements, unless the Person effecting the purchase obtains at its own
expense and delivers to the Trustee, an Opinion of Counsel, addressed to the
Trustee, to the effect that the failure of the Trust Fund to comply with the
requirements of this Section 9.02 will not result in the imposition of taxes on
"prohibited transactions" of REMIC I or REMIC II as defined in Section 860F of
the Code or cause either of REMIC I or REMIC II to fail to qualify as a REMIC at
any time that any Certificates are outstanding:
(i) the Trustee shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return for
each of REMIC I and REMIC II pursuant to Treasury Regulations Section
1.860F-1 and shall satisfy all requirements of a qualified liquidation
under Section 860F of the Code and any regulations thereunder as set forth
in the Opinion of Counsel obtained pursuant to Section 9.01 from the party
effecting the purchase of all the Trust Mortgage Loans and REO Property
remaining in the Trust Fund;
(ii) during such 90-day liquidation period and at or prior
to the time of making of the final payment on the Certificates, the
Trustee shall sell all of the assets of REMIC I to the applicable Master
Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder, as the case may be, 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 of REMIC I and REMIC II shall terminate at that time.
(b) In the event the Trust Fund is to be terminated while a Swap
Agreement is still in effect, the Trustee shall promptly notify the related Swap
Counterparty in writing of the date on which the Trust Fund is to be terminated
and that the notional amount of such Swap Agreement shall be reduced to zero on
such date. Based on the date of termination, the Trustee, prior to any final
distributions to the Holders of the Class A-2FL Certificates and/or the Holders
of the Class AJ-FL Certificates as contemplated by Section 9.01, shall pay the
Class A-2FL Net Fixed Swap Payment, if
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any, to the Class A-2FL Swap Counterparty and/or the Class AJ-FL Net Fixed Swap
Payment, if any, to the Class AJ-FL Swap Counterparty.
(c) By their acceptance of Certificates, the Holders thereof
hereby agree to authorize the Trustee to specify the 90-day liquidation period
for each of REMIC I and REMIC II, which authorization shall be binding upon all
successor Certificateholders.
SECTION 9.03 Non-Serviced Trust Mortgage Loans.
References to "REO Property" and "REO Properties" in Sections 9.01
and 9.02 shall be deemed to include the Trust's rights with respect to any REO
Property relating to the A-Note Trust Mortgage Loan and such rights shall be
taken into account in calculating the Purchase Price.
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01 REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I
and REMIC II as a REMIC under the Code and, if necessary, under applicable state
law. Such election will be made on Form 1066 or other appropriate federal or
state Tax Returns for the taxable year ending on the last day of the calendar
year in which the Certificates are issued.
(b) The REMIC I Regular Interests are hereby designated as
"regular interests" (within the meaning of Section 860G(a)(1) of the Code) in
REMIC I, and the Regular Certificates, the Class A-2FL REMIC II Regular Interest
and the Class AJ-FL REMIC II Regular Interest are hereby designated as "regular
interests" (within the meaning of Section 860G(a)(1) of the Code) in REMIC II;
provided that the Class X Certificates shall, in the case of each Class thereof,
evidence multiple "regular interests" in REMIC II. The Class R-I Certificates
are hereby designated as the single class of "residual interests" (within the
meaning of Section 860G(a)(2) of the Code) in REMIC I. The 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 REMIC II. None of the
Master Servicers, the Special Servicer, the Trustee shall (to the extent within
its control) permit the creation of any other "interests" in REMIC I and REMIC
II (within the meaning of Treasury regulation Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of
REMIC I and REMIC II within the meaning of Section 860G(a)(9) of the Code. The
"latest possible maturity date" of the REMIC I Regular Interests, the Regular
Certificates (exclusive of the Class X Certificates), the Class X Components,
the Class A-2FL REMIC II Regular Interest and the Class AJ-FL REMIC II Regular
Interest shall be the Rated Final Distribution Date.
(d) The related Plurality Residual Certificateholder as to the
applicable taxable year is hereby designated as the Tax Matters Person of each
of REMIC I and REMIC II, 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 REMIC Administrator is
hereby irrevocably appointed to act and shall act as agent and attorney-in-fact
for the Tax Matters Person for each of the REMIC I and REMIC II in the
performance of its duties as such.
(e) Except as otherwise provided in Section 3.17(a) and
subsections (i) and (j) below, the REMIC Administrator shall pay out of its own
funds any and all routine tax administration expenses of the Trust Fund incurred
with respect to each of REMIC I and REMIC II (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 Internal Revenue Service or
state tax authorities, which extraordinary expenses shall be payable or
reimbursable to the Trustee from the Trust Fund unless otherwise provided in
Section 10.01(h) or 10.01(i)).
(f) Within 30 days after the Closing Date, the REMIC Administrator
shall obtain taxpayer identification numbers for each of REMIC I and REMIC II by
preparing and filing Internal Revenue Service Forms SS-4 and shall prepare and
file with the Internal Revenue Service Form 8811,
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"Information Return for Real Estate Mortgage Investment Conduits (REMICs) and
Issuers of Collateralized Debt Obligations" for the Trust Fund. In addition, the
REMIC Administrator shall prepare, cause the Trustee to sign and file all of the
other Tax Returns in respect of REMIC I and REMIC II. The expenses of preparing
and filing such returns shall be borne by the REMIC Administrator without any
right of reimbursement therefor. The other parties hereto shall provide on a
timely basis to the REMIC Administrator or its designee such information with
respect to each of REMIC I and REMIC II as is in its possession and reasonably
requested by the REMIC Administrator to enable it to perform its obligations
under this Article. Without limiting the generality of the foregoing, the
Depositor, within 10 days following the REMIC Administrator's request therefor,
shall provide in writing to the REMIC Administrator such information as is
reasonably requested by the REMIC Administrator for tax purposes, as to the
valuations and issue prices of the Certificates, and the REMIC Administrator's
duty to perform its reporting and other tax compliance obligations under this
Article X shall be subject to the condition that it receives from the Depositor
such information possessed by the Depositor that is necessary to permit the
REMIC Administrator to perform such obligations.
(g) The REMIC Administrator shall perform on behalf of each of
REMIC I and REMIC II all reporting and other tax compliance duties that are the
responsibility of each such REMIC under the Code, the REMIC Provisions or other
compliance guidance issued by the Internal Revenue Service or, with respect to
State and Local Taxes, any state or local taxing authority. Included among such
duties, the REMIC Administrator shall provide to: (i) any Transferor of a
Residual Certificate or agent of a Non-Permitted Transferee, such information as
is necessary for the application of any tax relating to the transfer of a
Residual 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, without limitation, reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required hereunder); and (iii) the Internal Revenue
Service, the name, title, address and telephone number of the Person who will
serve as the representative of each of REMIC I and REMIC II.
(h) The REMIC Administrator shall perform its duties hereunder so
as to maintain the status of each of REMIC I and REMIC II and as a REMIC under
the REMIC Provisions (and the Trustee, the Master Servicers and the Special
Servicer shall assist the REMIC Administrator to the extent reasonably requested
by the REMIC Administrator and to the extent of information within the
Trustee's, either Master Servicer's or the Special Servicer's possession or
control). None of the REMIC Administrator, the Master Servicers, the Special
Servicer, or the Trustee shall knowingly take (or cause REMIC I or REMIC II 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 be
reasonably be expected to (i) endanger the status of REMIC I or REMIC II as a
REMIC, or (ii) except as provided in Section 3.17(a), result in the imposition
of a tax upon any of REMIC I or REMIC II (including, but not limited to, the tax
on prohibited transactions as defined in Section 860F(a)(2) of the Code or the
tax on contributions to a REMIC set forth in Section 860G(d) of the Code (any
such endangerment or imposition or, except as provided in Section 3.17(a),
imposition of a tax, an "Adverse REMIC Event")), unless the REMIC 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 REMIC
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. The REMIC Administrator shall not
take any action or fail to take any action (whether or not authorized hereunder)
as to which a Master Servicer or the Special Servicer has advised it in writing
that such Master Servicer or the Special Servicer has received or obtained an
Opinion of Counsel to the effect that an Adverse REMIC Event
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could occur with respect to such action. In addition, prior to taking any action
with respect to REMIC I or REMIC II, or causing any of REMIC I or REMIC II to
take any action, that is not expressly permitted under the terms of this
Agreement, each Master Servicer or the Special Servicer shall consult with the
REMIC Administrator or its designee, in writing, with respect to whether such
action could cause an Adverse REMIC Event to occur. Neither of the Master
Servicers nor the Special Servicer shall take any such action or cause any of
REMIC I or REMIC II to take any such action as to which the REMIC Administrator
has advised it in writing that an Adverse REMIC Event could occur, and neither
the Master Servicers nor the Special Servicer shall have any liability hereunder
for any action taken by it in accordance with the written instructions of the
REMIC Administrator. The REMIC 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 expressly permitted by this Agreement, but in no event at
the cost or expense of the Trust Fund, the Trustee or the REMIC Administrator.
At all times as may be required by the Code, the REMIC Administrator shall make
reasonable efforts to ensure that substantially all of the assets of each of
REMIC I and REMIC II 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.
(i) If any tax is imposed on any of REMIC I or REMIC II,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, any taxes on contributions
to any of REMIC I or REMIC II after the Startup Day pursuant to Section 860G(d)
of the Code, and any other tax imposed by the Code or any applicable provisions
of State or Local Tax laws (other than any tax permitted to be incurred by the
Special Servicer pursuant to Section 3.17(a)), such tax, together with all
incidental costs and expenses (including, without limitation, penalties and
reasonable attorneys' fees), shall be charged to and paid by: (i) the REMIC
Administrator, if such tax arises out of or results from a breach by the REMIC
Administrator of any of its obligations under this Article X provided that no
liability shall be imposed upon the REMIC Administrator under this clause if
another party has responsibility for payment of such tax under clauses (iii) or
(v) of this Section; (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 Article X; (iii) a Master Servicer, if such tax arises out
of or results from a breach by such Master Servicer of any of its obligations
under Article III or this Article X; (iv) the Trustee, if such tax arises out of
or results from a breach by the Trustee, of any of its respective obligations
under Article IV, Article VIII or this Article X; or (v) the Trust Fund,
excluding the portion thereof constituting ML-CFC 0000-0 Xxxxxxx Xxxxx XX,
Grantor Trust Z and Grantor Trust E, in all other instances. Any tax permitted
to be incurred by the Special Servicer pursuant to Section 3.17(a) shall be
charged to and paid by the Trust Fund. Any such amounts payable by the Trust
Fund shall be paid by the Trustee upon the written direction of the REMIC
Administrator out of amounts on deposit in the Distribution Account in reduction
of the Available Distribution Amount pursuant to Section 3.05(b).
(j) The REMIC Administrator shall, for federal income tax
purposes, maintain books and records with respect to each of REMIC I and REMIC
II on a calendar year and on an accrual basis. For yield calculations with
respect to the REMIC tax, the collateral cash flow will be assumed to be
equivalent to a single stream of cash flow that accrues from the 8th day of each
month to the 7th day of the following month.
(k) Following the Startup Day, none of the Trustee, the Master
Servicers, and the Special Servicer shall accept any contributions of assets to
any of REMIC I or REMIC II 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, the Trustee) to the effect that the inclusion
of such assets in
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such REMIC will not cause: (i) such REMIC 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 under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(l) None of the Trustee, the Master Servicers and the Special
Servicer shall consent to or, to the extent it is within the control of such
Person, permit: (i) the sale or disposition of any of the Trust Mortgage Loans
(except in connection with (A) the default or foreclosure of a Trust Mortgage
Loan, including, but not limited to, the sale or other disposition of a
Mortgaged Property acquired by deed in lieu of foreclosure, (B) the bankruptcy
of any of REMIC I or REMIC II, (C) the termination of REMIC I and REMIC II
pursuant to Article IX of this Agreement, or (D) a purchase of Trust Mortgage
Loans pursuant to or as contemplated by Article II or III of this Agreement);
(ii) the sale or disposition of any investments in the Collection Accounts, the
Distribution Account or an REO Account for gain; or (iii) the acquisition of any
assets on behalf of REMIC I or REMIC II (other than (1) a Mortgaged Property
acquired through foreclosure, deed in lieu of foreclosure or otherwise in
respect of a Trust Defaulted Mortgage Loan, (2) a Qualified Substitute Mortgage
Loan pursuant to Article II hereof and (3) Permitted Investments acquired in
connection with the investment of funds in the Collection Accounts, any Loan
Combination Custodial Account, the Distribution Account or an REO Account); in
any event unless it has received an Opinion of Counsel (at the expense of the
party seeking to cause such sale, disposition, or acquisition but in no event at
the expense of the Trust Fund, the Trustee) to the effect that such sale,
disposition, or acquisition will not cause: (x) any of REMIC I or REMIC II to
fail to qualify as a REMIC at any time that any Certificates are outstanding; or
(y) the imposition of any tax on any of REMIC I or REMIC II under the REMIC
Provisions or other applicable provisions of federal, state and local law or
ordinances.
(m) Except as permitted by Section 3.17(a), none of the Trustee,
the Master Servicers and the Special Servicer shall enter into any arrangement
by which REMIC I or REMIC II will receive a fee or other compensation for
services nor permit REMIC I or REMIC II 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 REMIC Administrator shall treat each of ML-CFC 0000-0
Xxxxxxx Xxxxx XX, Grantor Trust Z and Grantor Trust E for tax return preparation
purposes, as a "grantor trust" under the Code and shall treat (i) the ARD Loan
Additional Interest and amounts held from time to time in the Additional
Interest Account that represent Additional Interest as separate assets of the
Grantor Trust Z, (ii) the Class A-2FL Swap Agreement and payments thereunder,
the Class A-2FL Sub-Account, the Class AJ-FL Swap Agreement and payments
thereunder and the Class AJ-FL Sub-Account as separate assets of ML-CFC 0000-0
Xxxxxxx Xxxxx XX, and (iii) the Excess Servicing Strip as separate assets of
Grantor Trust E, and in clauses (i) above not of any of REMIC I or REMIC II, as
permitted by Treasury Regulations Section 1.860G-2(i)(1). The Class Z
Certificates are hereby designated as representing an undivided beneficial
interest in ARD Loan Additional Interest payable on the Trust Mortgage Loans and
proceeds thereof. The Class A-2FL Certificates are hereby designated as
representing an undivided beneficial ownership interest in the portion of ML-CFC
0000-0 Xxxxxxx Xxxxx XX related to the Class A-2FL Swap Agreement (including
payments thereunder) and the Class A-2FL Sub-Account. The Class AJ-FL
Certificates are hereby designated as representing an undivided beneficial
ownership interest in the portion of ML-CFC 0000-0 Xxxxxxx Xxxxx XX related to
the Class AJ-FL Swap Agreement (including payments thereunder) and the Class
AJ-FL Sub-Account. The holder of the Excess Servicing
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Strip is hereby designated as owning an undivided beneficial interest in the
Excess Servicing Strip payable on the Serviced Mortgage Loans and the REO Loans
and proceeds thereof.
(b) The REMIC Administrator shall pay out of its own funds any and
all routine tax administration expenses of the Trust Fund incurred with respect
to ML-CFC 0000-0 Xxxxxxx Xxxxx XX, Grantor Trust Z and Grantor Trust E (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 Internal Revenue Service or state tax authorities which
extraordinary expenses shall be payable or reimbursable to the REMIC
Administrator from the Trust Fund unless otherwise provided in Section 10.02(e)
or 10.02(f)).
(c) The REMIC Administrator shall prepare, cause the Trustee to
sign and file when due all of the Tax Returns in respect of ML-CFC 0000-0
Xxxxxxx Xxxxx XX, Grantor Trust Z and Grantor Trust E. The expenses of preparing
and filing such returns shall be borne by the REMIC Administrator without any
right of reimbursement therefor. The other parties hereto shall provide on a
timely basis to the REMIC Administrator or its designee such information with
respect to ML-CFC 0000-0 Xxxxxxx Xxxxx XX, Grantor Trust Z and Grantor Trust E
as is in its possession and reasonably requested by the REMIC Administrator to
enable it to perform its obligations under this Section 10.02. Without limiting
the generality of the foregoing, the Depositor, within 10 days following the
REMIC Administrator's request therefor, shall provide in writing to the REMIC
Administrator such information as is reasonably requested by the REMIC
Administrator for tax purposes, and the REMIC 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 REMIC
Administrator to perform such obligations.
(d) The REMIC Administrator shall furnish or cause to be furnished
to (i) the Holders of the Class Z Certificates, (ii) the Holders of the Class
A-2FL Certificates, (iii) the Holders of the Class AJ-FL Certificates, and (iv)
the holder of the Excess Servicing Strip, on the cash or accrual method of
accounting, as applicable, such information as to their respective portions of
the income and expenses of ML-CFC 0000-0 Xxxxxxx Xxxxx XX, Grantor Trust Z or
Grantor Trust E , as the case may be, as may be required under the Code, and
shall perform on behalf of ML-CFC 0000-0 Xxxxxxx Xxxxx XX, Grantor Trust Z and
Grantor Trust E 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 Internal Revenue Service or any state or local
taxing authority.
(e) The REMIC Administrator shall perform its duties hereunder so
as to maintain the status of each of ML-CFC 0000-0 Xxxxxxx Xxxxx XX, Grantor
Trust Z and Grantor Trust E as a "grantor trust" under the Grantor Trust
Provisions (and the Trustee, the Master Servicers and the Special Servicer shall
assist the REMIC Administrator to the extent reasonably requested by the REMIC
Administrator and to the extent of information within the Trustee's, either
Master Servicer's or the Special Servicer's possession or control). None of the
REMIC Administrator, the Master Servicers, the Special Servicer and the Trustee
shall knowingly take (or cause any of ML-CFC 0000-0 Xxxxxxx Xxxxx XX, Grantor
Trust Z or Grantor Trust E 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 reasonably be expected to endanger the
status of any of ML-CFC 0000-0 Xxxxxxx Xxxxx XX, Grantor Trust Z or Grantor
Trust E as a grantor trust under the Grantor Trust Provisions (any such
endangerment of grantor trust status, an "Adverse Grantor Trust Event"), unless
the REMIC 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
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REMIC 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 REMIC Administrator has
advised it in writing that the REMIC 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 any of ML-CFC 0000-0 Xxxxxxx Xxxxx XX, Grantor Trust Z or
Grantor Trust E or causing the Trust Fund to take any action that is not
expressly permitted under the terms of this Agreement, the Master Servicers and
the Special Servicer shall consult with the REMIC Administrator or its designee,
in writing, with respect to whether such action could cause an Adverse Grantor
Trust Event to occur. Neither the Master Servicers nor the Special Servicer
shall have any liability hereunder for any action taken by it in accordance with
the written instructions of the REMIC Administrator. The REMIC 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 expressly permitted by this
Agreement, but in no event at the cost or expense of the Trust Fund, the REMIC
Administrator or the Trustee. Under no circumstances may the REMIC Administrator
vary the assets of any of ML-CFC 0000-0 Xxxxxxx Xxxxx XX, Grantor Trust Z or
Grantor Trust E so as to take advantage of variations in the market so as to
improve the rate of return of Holders of the Class A-2FL Certificates, Holders
of the Class AJ-FL Certificates, or the holders of the applicable ARD Loan
Additional Interest, or the holders of the Excess Servicing Strip, as the case
may be.
(f) If any tax is imposed on any of ML-CFC 0000-0 Xxxxxxx Xxxxx
XX, Grantor Trust Z and Grantor Trust E, such tax, together with all incidental
costs and expenses (including, without limitation, penalties and reasonable
attorneys' fees), shall be charged to and paid by: (i) the REMIC Administrator,
if such tax arises out of or results from a breach by the REMIC 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) a Master
Servicer, if such tax arises out of or results from a breach by such Master
Servicer of any of its obligations under Article III or this Section 10.02; (iv)
the Trustee, if such tax arises out of or results from a breach by the Trustee,
of any of its obligations under Article IV, Article VIII or this Section 10.02;
or (v) the portion of the Trust Fund constituting ML-CFC 0000-0 Xxxxxxx Xxxxx
XX, Grantor Trust Z or Grantor Trust E, as the case may be, in all other
instances.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
(a) This Agreement may be amended from time to time by the
agreement of the Master Servicers, the Special Servicer, the Trustee and any
Fiscal Agent, without the consent of any of the Certificateholders, (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 of
this Agreement set forth 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 materially inconsistent with the existing
provisions hereof, (iv) to relax or eliminate any requirement hereunder imposed
by the REMIC Provisions if the REMIC Provisions are amended or clarified such
that any such requirement may be relaxed or eliminated, (v) to modify, eliminate
or add to the provisions of Section 5.02(d) or any other provision hereof
restricting transfer of the Residual Certificates by virtue of their being
"residual interests" in a REMIC provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is not a Permitted Transferee, (vi) to
relax or eliminate any requirement hereunder 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,
(vii) if such amendment, as evidenced by an Opinion of Counsel (at the expense
of the Trust Fund, in the case of any amendment requested by either Master
Servicer or the Special Servicer that protects or is in furtherance of the
interests of the Certificateholders, and otherwise at the expense of the party
seeking such amendment) delivered to the Master Servicers, the Special Servicer
and the Trustee, is advisable or reasonably necessary 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 REMIC I, REMIC II or any grantor trust created hereunder at
least from the effective date of such amendment, or would be necessary to avoid
the occurrence of a prohibited transaction or to reduce the incidence of any tax
that would arise from any actions taken with respect to the operation of any
such REMIC or grantor trust or (viii) to otherwise modify or delete existing
provisions of this Agreement; provided that no such amendment hereof that is
covered solely by clause (iii) or (viii) above may, as evidenced by an Opinion
of Counsel (at the expense of the Trust Fund, in the case of any amendment
requested by either Master Servicer or the Special Servicer that protects or is
in furtherance of the interests of the Certificateholders, and otherwise at the
expense of the party seeking such amendment) obtained by or delivered to the
Master Servicers, the Special Servicer and the Trustee, adversely affect in any
material respect the interests of any Certificateholder or Non-Trust Noteholder;
and provided, further, that no such amendment may adversely affect the rights
and/or interests of the Depositor without its consent; and provided, further,
that the Master Servicers, the Special Servicer and the Trustee shall have first
obtained from each Rating Agency written confirmation that such amendment will
not result in an Adverse Rating Event; and provided, further, that no such
amendment hereof that is covered by any of clauses (i) through (ix) above may
significantly change the activities of the Trust.
(b) This Agreement may also be amended from time to time by the
agreement of the Master Servicers, the Special Servicer, the Trustee and any
Fiscal Agent with the consent of the Holders
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of Certificates entitled to at least 66-2/3% of the Voting Rights for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments received or
advanced on Trust Mortgage Loans that are required to be distributed on any
Certificate without the consent of the Holder of such Certificate, (ii) as
evidenced by an Opinion of Counsel obtained by or delivered to the Master
Servicers, the Special Servicer and the Trustee, adversely affect in any
material respect the interests of the Holders of any Class of Certificates in a
manner other than as described in (i) without the consent of the Holders of all
Certificates of such Class, (iii) modify the provisions of this Section 11.01
without the consent of the Holders of all Certificates then outstanding, (iv)
modify the provisions of Section 3.20 without the consent of the Holders of
Certificates entitled to all of the Voting Rights, (v) modify the definition of
Servicing Standard or 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, (vi) significantly
change the activities of the Trust without the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights, without regard to
any Certificates held by the Depositor or any of its Affiliates or agents, (vii)
amend defined terms contained in this Agreement as they relate to Sections
2.01(c) and 2.01(d) of this Agreement or any other provision of Article II of
this Agreement that affects the document delivery or the repurchase and/or
substitution obligations of any Mortgage Loan Seller unless such Mortgage Loan
Seller shall have agreed to such amendment in writing, (viii) adversely affect,
in any material respect, the rights and/or interests of a Non-Trust Noteholder
without its consent or (ix) adversely affect the rights and/or interests of the
Depositor without its consent. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 11.01, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor 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 neither the Depositor nor any of its Affiliates is
performing servicing duties with respect to any of the Trust Mortgage Loans.
(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 Trust Fund, in the case of any amendment requested by either Master
Servicer or the Special Servicer that protects or is in furtherance of the
interests of the Certificateholders, and, otherwise, at the expense of the party
seeking such amendment) to the effect that (i) such amendment or the exercise of
any power granted to the Trustee, the subject Master Servicer or the Special
Servicer in accordance with such amendment will not result in the imposition of
a tax on REMIC I or REMIC II pursuant to the REMIC Provisions or on ML-CFC
0000-0 Xxxxxxx Xxxxx XX, Grantor Trust Z or Grantor Trust E or cause any of
REMIC I or REMIC II to fail to qualify as a REMIC or any of ML-CFC 0000-0
Xxxxxxx Xxxxx XX, Grantor Trust Z or Grantor Trust E to fail to qualify as a
grantor trust at any time that any Certificates are outstanding and (ii) such
amendment complies with the provisions of this Section 11.01.
(d) Promptly after the execution of any such amendment, the
Trustee shall send a copy thereof to each Certificateholder and each Non-Trust
Noteholder.
(e) It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
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the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) Each Master Servicer, the Special Servicer, the Trustee and
any Fiscal Agent 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 11.01(a), (b) or (c) shall be borne by the Person seeking the related
amendment, except that if either Master Servicer, the Special Servicer or the
Trustee requests any amendment of this Agreement that protects or is in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel required in connection therewith pursuant to Section
11.01(a), (b) or (c) shall be payable out of the applicable Collection Account
or the Distribution Account pursuant to Section 3.05.
(h) The Trustee shall give the Depositor reasonable prior written
notice of any amendment sought to be entered into pursuant to subsection (a) or
(b) above.
SECTION 11.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the applicable Master Servicer, if required, at the expense of the
Trust Fund or, to the extent that it benefits one or more Non-Trust Noteholders,
such Non-Trust Noteholder(s), but only upon direction accompanied by an Opinion
of Counsel (the cost of which may be paid out of the applicable Collection
Account pursuant to Section 3.05(a) or, to the extent that it benefits such
Non-Trust Noteholder(s), out of the related Loan Combination Custodial Account
pursuant to Section 3.05(e)) to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders and/or one or more
Non-Trust Noteholders; provided, however, that the Trustee shall have no
obligation or responsibility to determine whether any such recordation of this
Agreement is required.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder (except as expressly provided for herein)
shall have any right to vote or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or
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members of an association; nor shall any Certificateholder be under any
liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Trust
Mortgage Loan, unless, with respect to any suit, action or proceeding upon or
under or with respect to this Agreement, such Holder 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 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
which priority or preference is not otherwise provided for herein, or to enforce
any right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 11.04 Governing Law; Waiver of Trial By Jury
This Agreement and the Certificates 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, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws. The
parties hereunder each irrevocably waive, to the extent permitted by applicable
law, all right to trial by jury in any action, claim, suit, proceeding or
counterclaim (whether based on contract, tort or otherwise) relating to or
arising out of this Agreement or the transactions contemplated hereby.
SECTION 11.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given when sent by either certified mail (return receipt requested) or
by courier service (proof of delivery requested) to the intended recipient at
the address set forth below:
(i) in the case of the Depositor, Xxxxxxx Xxxxx Mortgage
Investors, Inc., c/o Global Commercial Real Estate, 4 World Financial
Center, 16th Floor, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx X. Xxxxxxx, with a copy to Xxxxxxx Xxxxx Mortgage Investors, Inc.,
c/o Global Commercial Real Estate, 4 World Financial Center, 16th Floor,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Director of CMBS
Securitizations, and a copy to Xxxxxxx Xxxxx Mortgage Investors, Inc., 4
World Financial Center, 12th Floor, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: General Counsel for Global Commercial Real Estate in the
Office of the General Counsel;
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(ii) in the case of Master Servicer No. 1, Wachovia Bank,
National Association, 0000 Xxxxxxxx Xxxxx, XXX0, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000, Re: ML-CFC Commercial Mortgage Trust 2007-6, Commercial
Mortgage Pass-Through Certificates, Series 2007-6, facsimile number: (704)
715-0036; provided that any communication addressed to Wachovia shall also
be transmitted by facsimile transmission to the facsimile number indicated
above (which communication shall be deemed to have been duly given when
transmitted);
(iii) in the case of Master Servicer No. 2, Xxxxx Fargo
Bank, National Association, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Commercial Mortgage Servicing, with a copy to
Xxxxxx X. Xxxxxxx, Esq., Xxxxx Fargo Bank, National Association, 000
Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000;
(iv) in the case of the Special Servicer, LNR Partners,
Inc., 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx 00000,
Attention: Xxxxx Xxxxxxx, Attention: Xxxxxx X. Xxxxxx, Esq. and Attention:
Xxxxxx Xxxxxxx, with copies to Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx LLP,
000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000, Xxxxx, Xxxxxxx 00000, Attention:
Xxxx Xxxxx, Esq.;
(v) in the case of the Trustee, LaSalle Bank National
Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, Attention: Global Securities and Trust Services -- ML-CFC
Commercial Mortgage Trust 2007-6, Commercial Mortgage Pass-Through
Certificates, Series 2007-6, facsimile number: (000) 000-0000; provided
that any communication addressed to LaSalle Bank National Association
shall also be transmitted by facsimile transmission to the facsimile
number indicated above (which communication shall be deemed to have been
duly given when transmitted);
(vi) in the case of the Underwriters,
(A) Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, c/o Global Commercial Real Estate,
4 World Financial Center, 16th Floor, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx X. Xxxxxxx, with a copy to Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, c/o Global
Commercial Real Estate, 4 World Financial
Center, 16th Floor, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Director of CMBS
Securitizations, and a copy to Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, 4 World
Financial Center, 12th Floor, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: General
Counsel for Global Commercial Real Estate in the
Office of the General Counsel, 4 World Financial
Center, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000;
(B) Countrywide Securities Corporation, 0000 Xxxx
Xxxxxxx - XXXX-000, Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxx Xxxxxxxx;
(C) Credit Suisse Securities (USA) LLC, 00 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxxx, with a copy to Xxxxx
XxXxxxxxxx, Esq., Legal Compliance Department,
at Credit Suisse Securities (USA) LLC, Xxx
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000; and
(D) Xxxxxx Xxxxxxx & Co. Incorporated, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Friend, with a copy to Xxxxxxx Xxxxxx,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000; or, as
to any party hereto, such other address as may
hereinafter be furnished by such party to the
others in writing.
(vii) in the case of the Rating Agencies,
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(A) Xxxxx'x Investors Service, Inc., 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Commercial Mortgage Surveillance; and
(B) Fitch, Inc., Commercial Mortgage Backed
Securities, Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Surveillance; and
(viii) in the case of the initial Controlling Class
Representative, American Capital Strategies, Ltd., 2 Bethesda Metro
Center, 14th floor, Xxxxxxxx, Xxxxxxxx, 00000, Attention: Xxxxxxx Xxxxxx,
facsimile number: (000) 000-0000, Re: ML-CFC Commercial Mortgage Trust
2007-6, Commercial Mortgage Pass-Through Certificates, Series 2007-6;
provided that any communication addressed to the initial Controlling Class
Representative shall also be transmitted by facsimile transmission to the
telecopy numbers indicated above (which communication shall be deemed to
have been duly given when transmitted).
or as to each such Person such other address as may hereafter be furnished by
such Person to the parties hereto in writing. Any communication required or
permitted to be delivered to a Certificateholder shall be deemed to have been
duly given when mailed first class, postage prepaid, to the address of such
Holder as shown in the Certificate Register.
SECTION 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07 Grant of a Security Interest.
The Depositor and the Trustee agree that it is their intent that the
conveyance of the Depositor's right, title and interest in and to the Trust
Mortgage Loans pursuant to this Agreement shall constitute a sale and not a
pledge of security for a loan. If such conveyance is deemed to be a pledge of
security for a loan, however, the Depositor intends that the rights and
obligations of the parties to such loan shall be established pursuant to the
terms of this Agreement. The Depositor also intends and agrees that, in such
event, the Depositor shall be deemed to have granted 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.
SECTION 11.08 Xxxxxx Act.
Any provisions required to be contained in this Agreement by Section
126 of Article 4-A of the New York Real Property Law are hereby incorporated
herein, and such provisions shall be in addition to those conferred or imposed
by this Agreement; provided, however, that to the extent that such Section 126
shall not have any effect, and if said Section 126 should at any time be
repealed or cease to apply to this Agreement or be construed by judicial
decision to be inapplicable, said Section 126 shall cease to have any further
effect upon the provisions of this Agreement. In case of a conflict between the
provisions of this Agreement and any mandatory provisions of Article 4-A of the
New York
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Real Property Law, such mandatory provisions of said Article 4-A shall prevail,
provided that if said Article 4-A shall not apply to this Agreement, should at
any time be repealed, or cease to apply to this Agreement or be construed by
judicial decision to be inapplicable, such mandatory provisions of such Article
4-A shall cease to have any further effect upon the provisions of this
Agreement.
SECTION 11.09 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. Each
of the Sub-Servicers that is a party to a Sub-Servicing Agreement in effect on
the Closing Date (or being negotiated as of the Closing Date and in effect
within 90 days thereafter) shall be a third-party beneficiary to the obligations
of a successor Master Servicer under Section 3.22, provided that the sole remedy
for any claim by a Sub-Servicer as a third party beneficiary pursuant to this
Section 11.09 shall be against a successor Master Servicer solely in its
corporate capacity and no Sub-Servicer shall have any rights or claims against
the Trust Fund or any party hereto (other than a successor Master Servicer in
its corporate capacity as set forth in this Section 11.09) as a result of any
rights conferred on such Sub-Servicer as a third party beneficiary pursuant to
this Section 11.09. Each Non-Trust Noteholder and any designee thereof acting on
behalf of or exercising the rights of such Non-Trust Noteholder shall be a third
party beneficiary to this Agreement with respect to its rights as specifically
provided for herein and under the related Loan Combination Intercreditor
Agreement. The WBCMT Series 2007-C30 Master Servicer and the WBCMT Series
2007-C30 Special Servicer shall each be a third party beneficiary to this
Agreement with respect to the rights as specifically provided for herein and
under the Xxxxx Xxxxxx Village and Stuyvesant Town Intercreditor Agreement. This
Agreement may not be amended in any manner that would adversely affect the
rights of any third party beneficiary hereof without its consent (such consent
not to be unreasonably withheld, conditioned, or delayed). No other person,
including, without limitation, any Mortgagor, shall be entitled to any benefit
or equitable right, remedy or claim under this Agreement.
SECTION 11.10 Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.11 Notices to Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating
Agency and the Controlling Class Representative (and, if affected thereby, any
Non-Trust Noteholder) 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 Trustee, either
Master Servicer or the Special Servicer;
(iv) the repurchase of Trust Mortgage Loans by any of the
Mortgage Loan Sellers pursuant to the applicable Mortgage Loan Purchase
Agreement;
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(v) any change in the location of the Distribution
Account;
(vi) the final payment to any Class of Certificateholders;
and
(vii) any sale or disposition of any Trust Mortgage Loan or
REO Property.
(b) Each Master Servicer shall promptly provide notice to each
Rating Agency (and, if affected thereby, any Non-Trust Noteholder) with respect
to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of its Collection Account;
(iii) the assumption of any Significant Mortgage Loan;
(iv) the release or substitution of any Mortgaged Property
securing a Significant Mortgage Loan;
(v) the incurrence of additional indebtedness secured by
all or a portion of the Mortgaged Property securing a Significant Mortgage
Loan; and
(vi) a change in lien priority with respect to any Trust
Mortgage Loan.
(c) The Special Servicer shall furnish each Rating Agency and the
Controlling Class Representative (and, with respect to a Loan Combination, the
related Non-Trust Noteholder(s)) with respect to a Trust Specially Serviced
Mortgage Loan such information as the Rating Agency or Controlling Class
Representative (and, with respect to a Loan Combination, the related Non-Trust
Noteholder(s)) shall reasonably request and which the Special Servicer can
reasonably provide in accordance with applicable law.
(d) To the extent applicable, each Master Servicer and the Special
Servicer shall promptly furnish to each Rating Agency copies of the following
items:
(i) each of its annual statements as to compliance
described in Section 3.13;
(ii) each of its annual independent public accountants'
servicing reports described in Section 3.14; and
(iii) any Officer's Certificate delivered by it to the
Trustee pursuant to Section 3.03(e), 4.03(c) or 3.08.
(e) The Trustee shall (i) make available to each Rating Agency and
the Controlling Class Representative, upon reasonable notice, the items
described in Section 3.15(a) and (ii) promptly deliver to each Rating Agency and
the Controlling Class Representative a copy of any notices given pursuant to
Section 7.03(a) or Section 7.03(b).
(f) Each of the Trustee, the Master Servicers and the Special
Servicer shall provide to each Rating Agency such other information with respect
to the Trust Mortgage Loans and the
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Certificates, to the extent such party possesses such information, as such
Rating Agency shall reasonably request.
(g) The applicable Master Servicer shall give each Rating Agency
at least 15 days' notice prior to any reimbursement to it of Nonrecoverable
Advances from amounts in the applicable Collection Account allocable to interest
on the Trust Mortgage Loans unless (1) such Master Servicer determines in its
sole discretion that waiting 15 days after such a notice could jeopardize such
Master Servicer's ability to recover Nonrecoverable Advances, (2) changed
circumstances or new or different information becomes known to such 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) such Master Servicer
has not timely received from the Trustee information requested by such Master
Servicer to consider in determining whether to defer reimbursement of a
Nonrecoverable Advance; provided that, if clause (1), (2) or (3) apply, such
Master Servicer shall give each Rating Agency notice of an anticipated
reimbursement to it of Nonrecoverable Advances from amounts in the applicable
Collection Account allocable to interest on the Trust Mortgage Loans as soon as
reasonably practicable in such circumstances. Neither Master Servicer shall have
any liability for any loss, liability or expense resulting from any notice
provided to any Rating Agency contemplated by the immediately preceding
sentence.
(h) Notwithstanding any provision herein to the contrary, each
Master Servicer, the Special Servicer and the Trustee shall deliver to any
Underwriter any report prepared by such party hereunder upon request.
SECTION 11.12 Complete Agreement.
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
-311-
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.
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Depositor
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
Master Servicer No. 1
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
XXXXX FARGO BANK NATIONAL ASSOCIATION
Master Servicer No. 2
By: /s/ Xxxxxxx XxXxxxx
-----------------------------------------
Name: Xxxxxxx XxXxxxx
Title: Senior Vice President
LNR PARTNERS, INC.
Special Servicer
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
POOLING AND SERVICING AGREEMENT
LASALLE BANK NATIONAL ASSOCIATION
Trustee
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
POOLING AND SERVICING AGREEMENT
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 12th day of April, 2007, before me, a notary public in and
for said State, personally appeared Xxxxx X. Xxxxxxx, known to me to be an
Executive Vice President and Chief Officer in Charge of Commercial Mortgage
Securitization of XXXXXXX XXXXX MORTGAGE INVESTORS, INC., one of the entities
that executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Valencia Love
---------------------------------------------
Notary Public
[Notarial Seal]
POOLING AND SERVICING AGREEMENT
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 9th day of April, 2007, before me, a notary public in and for
said State, personally appeared Xxxxxx X. Xxxxxxxxxx, known to me to be a Vice
Presidentof WACHOVIA BANK, NATIONAL ASSOCIATION, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxx X. Xxxxxx
---------------------------------------------
[Notarial Seal]
POOLING AND SERVICING AGREEMENT
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On the 12th day of April, 2007, before me, a notary public in and
for said State, personally appeared Xxxxxxx X. XxXxxxx, known to me to be a
Senior Vice President of XXXXX FARGO BANK NATIONAL ASSOCIATION, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxx X. Xxxxxx
---------------------------------------------
Notary Public
[Notarial Seal]
POOLING AND SERVICING AGREEMENT
STATE OF FLORIDA )
) ss.:
COUNTY OF MIAMI-DADE )
On the 12th day of April, 2007, before me, a notary public in and
for said State, personally appeared Xxxxxx X. Xxxxxx, known to me to be a Vice
President of LNR PARTNERS, INC., one of the entities that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such entity, and acknowledged to me that such entity executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxxx
---------------------------------------------
Notary Public
[Notarial Seal]
POOLING AND SERVICING AGREEMENT
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the 12th day of April, 2007, before me, a notary public in and
for said State, personally appeared Xxxxxxx X. Xxxxxxxxx, known to me to be a
Assistant Vice President of LASALLE BANK NATIONAL ASSOCIATION, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxx
---------------------------------------------
Notary Public
[Notarial Seal]
POOLING AND SERVICING AGREEMENT
SCHEDULE I
MORTGAGE LOAN SCHEDULE
MLCFC 2007-6: MORTGAGE LOAN SCHEDULE
LOAN PROPERTY LOAN / PROPERTY
LOAN # GROUP NAME PROPERTY ORIGINATOR TYPE
-------------------------------------------------------------------------------------------------------------------
1 1 MSKP Retail Portfolio - A Loan MLML Retail
1.01 1 Riverbridge Property MLML Retail
1.02 1 Orlando Square Property MLML Retail
1.03 1 Oak Grove Property MLML Retail
1.04 0 Xxxxxxxxxx Xxxxxx Property MLML Retail
1.05 1 Gateway Plaza Property MLML Retail
1.06 1 Xxxxxxx Carrousel Property MLML Retail
1.07 1 Casselberry Exchange Property MLML Retail
1.08 1 Springs Plaza Property MLML Retail
2 2 Xxxxx Xxxxxx Village and Stuyvesant Town Loan MLML Multifamily
2.01 2 Stuyvesant Town Property MLML Multifamily
2.02 2 Xxxxx Xxxxxx Village Property MLML Multifamily
3 1 Westfield Southpark Loan MLML Retail
4 1 Blackpoint Puerto Rico Retail Loan CRF Retail
4.01 1 Bayamon Oeste Property CRF Retail
4.02 1 Dorado Del Mar Property CRF Retail
4.03 1 Guaynabo - Los Jardines Property CRF Retail
4.04 1 San Xxxxxxx Property CRF Retail
4.05 1 Toa Baja - Los Dominicos Property CRF Retail
4.06 1 Caguas Community Property CRF Retail
5 1 International Place Loan MLML Office
6 1 Xxxxxxx Industrial Portfolio Loan CRF Industrial
6.01 1 Andre Property CRF Industrial
6.02 1 Foxfire Property CRF Industrial
6.03 1 Keystone Property CRF Industrial
6.04 1 American Property CRF Industrial
6.05 1 Mespa Property CRF Industrial
6.06 1 Chase Property CRF Industrial
6.07 1 Xxxxxx Property CRF Industrial
6.08 1 Juliad Property CRF Industrial
6.09 1 Enterprise Property CRF Industrial
6.1 1 Piedmont Property CRF Industrial
7 1 MSKP Retail Portfolio - B Loan MLML Retail
7.01 1 Plaza Del Mar Property MLML Retail
7.02 1 Galt Ocean Marketplace Property MLML Retail
8 1 Spring Valley Marketplace Loan MLML Retail
9 1 Doubletree Nashville Loan CRF Hospitality
10 1 5200 West Century Loan MLML Office
11 1 1001 Frontier Loan MLML Xxxxxx
00 0 Xxxxx Xxxxx Xxxxxx Loan CRF Retail
13 1 000 Xxxxxxxx Xxxxxx Loan CRF Office
14 1 Lakeside Market Loan CRF Retail
15 2 Retreat at the Park Apartments Loan CRF Multifamily
16 2 Crossings at Canton Loan CRF Multifamily
17 1 All-Space Self Storage Portfolio Loan MLML Self Storage
17.01 1 All-Space Huntington Beach Property MLML Self Storage
17.02 1 All-Space Costa Mesa Property MLML Self Storage
17.03 1 All-Space San Marcos Property MLML Self Storage
17.04 1 All-Space Garden Grove Property MLML Self Storage
18 1 Dover Center at Cool Springs Loan MLML Office
19 2 Emerald Place Loan CRF Multifamily
20 1 000 Xxxx 00xx Xxxxxx Loan MLML Retail
21 1 HEB Marketplace Loan CRF Retail
23 1 Plaza Del Sol Loan MLML Retail
24 1 Grand Blanc Town Center Loan MLML Retail
25 1 SFG Portfolio Loan MLML Various
25.01 1 FiServ/Trinity Health Building Property MLML Office
25.02 1 0000 Xxxxxxxxxx Xxxx Property XXXX Xxxxxxxxxx
00.00 0 Xxxx Xxxxx Neurological Center Property MLML Office
25.04 1 0000 Xxxxxxxxxx Xxxx Property MLML Industrial
26 1 Genesis Rubicon GSA Portfolio Loan CRF Office
26.01 1 Xxxxx Springs Property CRF Office
26.02 1 McAlester Property CRF Office
26.03 1 Hot Springs Property CRF Office
26.04 1 St. Louis Property CRF Office
26.05 1 Xxxxx Property CRF Office
26.06 1 Xxxxxxxx Property CRF Office
26.07 1 Xxxxxx Property CRF Office
26.08 1 Poteau Property CRF Office
26.09 1 Fayetteville Property CRF Office
26.1 1 Knoxville Property CRF Office
26.11 1 Chattanooga Property CRF Office
26.12 1 Xxxxxxxx Property CRF Office
27 1 Fairfield Commons Loan MLML Retail
28 1 Bayview Shops Loan CRF Retail
29 1 Towne Plaza Development Loan CRF Mixed Use
30 1 Xxxxxxxxxxx Marketplace Loan MLML Retail
31 1 Bandera Festival Shopping Center Loan CRF Retail
32 1 Xxxxxxx Inn, Chantilly Loan MLML Hospitality
33 1 Palms to Pines Shopping Complex Loan MLML Retail
34 2 Renaissance at Xxxxxx Apartments Loan MLML Multifamily
35 1 6101 Yellowstone Road Loan MLML Office
36 1 Food for Less - Fullerton Loan MLML Retail
37 1 Riverchase Medical Suites Loan MLML Office
38 1 Trabuco Hills Center II Loan MLML Retail
39 1 Fiesta Xxxxxxx Shopping Center Loan MLML Retail
40 1 Food for Less - Xxxxxxx Loan MLML Retail
41 1 JAMA Riverwalk Center Loan CRF Xxxxxx
00 0 Xxxxxxxxx Xxxxxxxxxx Xxxxx Loan MLML Office
43 2 Spanish Point Apartments Loan MLML Multifamily
44 1 Maryvale Plaza Loan MLML Retail
45 1 Blackbob Marketplace Loan CRF Retail
46 1 East Port Center Loan MLML Industrial
47 1 000 Xxxxx Xxxxxx Loan CRF Office
48 1 Fairfield Inn - La Guardia Loan CRF Hospitality
49 1 ReMax - Oak Park Loan CRF Retail
50 1 Residence Inn Loveland Loan CRF Hospitality
51 1 Alside Distribution Center Loan MLML Industrial
52 2 Bear Creek Apts - Phase I Loan CRF Multifamily
53 1 Rite Aid Portfolio - Fredricksburg Loan MLML Retail
53.01 1 Rite Aid - Xxxxxxxx Property MLML Retail
53.02 1 Rite Aid - Spotsylvania Property MLML Retail
54 2 Woodstone Apartments Loan CRF Multifamily
55 1 Trabuco Hills Center I Loan MLML Retail
56 1 Village at West Main Loan MLML Mixed Use
57 1 331 N St. NE Loan CRF Industrial
58 1 Hampton Inn - Oneonta Loan CRF Hospitality
59 1 3311 Broadway Northeast Loan MLML Industrial
60 1 Cardinal Glass Distribution Loan CRF Industrial
61 1 Hampton Inn - San Marcos Loan CRF Hospitality
62 1 Grand Creek Plaza Loan MLML Mixed Use
63 1 Hampton Inn - Daytona Beach Loan CRF Hospitality
64 1 Cheyenne Business Center Loan MLML Office
65 2 Xxxxxxx Manor Apartments Loan CRF Multifamily
66 1 340 East 2nd Street Loan MLML Office
67 1 Radisson Milwaukee North Shore Loan MLML Hospitality
68 1 Amerihost Inn & Suites Loan MLML Hospitality
69 1 Michigan Road Shoppes Loan MLML Retail
70 1 Best Western Xxxxx Gardens Loan CRF Hospitality
71 1 Shoppes at Jefferson City Loan MLML Retail
72 1 Encino Self Storage Loan CRF Self Storage
73 1 4097 Jericho East Loan MLML Retail
74 1 Mesirow Financial Building Loan CRF Office
1 La Quinta Inn McAllen & Country Inn Suites -McAllen Crossed CRF Hospitality
75 1 La Quinta Inn McAllen Loan CRF Hospitality
76 1 Country Inn Suites -McAllen Loan CRF Hospitality
77 1 Bermuda Ranch Storage Loan CRF Self Storage
78 1 Town Center Oaks Shopping Center Loan CRF Retail
79 1 Topeka Plaza Loan MLML Retail
80 1 Water Street Office Loan MLML Office
81 1 Starview Mobile Home Park Loan CRF Manufactured Housing
82 1 Coldstream Office Loan MLML Office
83 1 Virginia Beach Retail Portfolio Loan MLML Retail
83.01 1 Kemps Corner Property MLML Retail
83.02 1 Mill Dam Property MLML Retail
84 2 Creekview Apartments Loan MLML Multifamily
85 1 Hampton Inn - Elgin Loan MLML Hospitality
86 1 Downey Retail Loan MLML Retail
87 1 Riverside Corporate Center Loan MLML Industrial
88 2 Bellevue Land Apartments Loan CRF Multifamily
89 1 9600 Brookpark Road Loan MLML Retail
90 1 Lennox International, Inc Loan CRF Industrial
91 1 Blossom Centre Loan MLML Retail
92 2 Xxxxxx Crossing Loan MLML Multifamily
93 1 Xxxxxx Commons I & II Loan MLML Retail
94 1 Xxxxxx Parkway Loan MLML Industrial
95 1 Springfield Office Loan MLML Office
96 1 72 Xxxxx Court Loan MLML Office
97 1 GE Building Loan CRF Industrial
98 1 Breckenridge VIII Loan CRF Industrial
99 1 Able-Calvine Self Storage Loan CRF Self Storage
100 1 Xxxxxx Crossing Loan CRF Retail
101 1 Pioneer Center Loan CRF Mixed Use
102 1 CVS - Dade City Loan MLML Retail
103 1 8th and Washington Retail Loan CRF Retail
104 1 Comfort Suites Tech Center South Loan CRF Hospitality
105 1 800 Cypress Creek Loan CRF Office
106 2 Garden Quarter II Loan MLML Multifamily
107 1 Bomatic Building Loan CRF Industrial
108 1 Shoppes at Flight Deck Loan CRF Retail
109 1 Office Depot Plaza Loan CRF Retail
110 1 Trabuco Hills Shops Loan MLML Retail
111 1 208-212 South Xxxxxxx Drive Loan MLML Mixed Use
112 1 Statewide Self Storage Loan CRF Self Storage
113 1 Staples Waterville Maine Loan MLML Retail
114 1 Lakewood Plaza Loan MLML Retail
115 1 Kings Ridge Village Loan MLML Retail
116 1 Regent Acres Mobile Home Park Loan CRF Manufactured Housing
117 1 Cannery Shopping Center Loan CRF Retail
118 1 Madison Business Park Loan MLML Industrial
119 1 Cedar Village Retail Loan CRF Retail
120 1 Norco Gateway Center Loan MLML Retail
121 1 International Blvd. Storage Loan CRF Self Storage
122 1 Laurel Highlands Loan CRF Manufactured Housing
123 2 Terrace Villa Apts Loan CRF Multifamily
124 1 AA Self Storage Loan CRF Self Storage
125 1 Eagle Bend Marketplace Loan MLML Retail
126 1 Phoenix Medical Pavilions Loan CRF Office
127 2 Vesper Ave Apartments Loan CRF Multifamily
128 1 Airport Warehouse & Distribution Loan CRF Industrial
129 1 Rancho Simi Plaza Loan CRF Retail
130 1 Shops on Spring Cypress Loan CRF Retail
131 1 290/Xxxxx Road Loan CRF Retail
132 1 Sierra View MHC Loan CRF Manufactured Housing
133 1 601 W. Street Parking Lot - Baltimore Loan CRF Land
134 1 Shoppes of Paris Loan CRF Retail
135 1 519 11th Street - DC Office Loan CRF Mixed Use
136 1 Ameri-Guard Storage Center Loan CRF Self Storage
137 1 Xxxxxxx Shopping Center Loan CRF Retail
138 1 Acadia Shopping Center - Thibodaux Loan CRF Retail
139 2 Long Leaf MHP Loan CRF Manufactured Housing
140 1 A Better Storage Solution Loan CRF Self Storage
141 1 PNC Bank - Ground Lease Loan CRF Land
142 0 0xx Xxxxxx Xxxxxxxxx - Xxxxxxxxxx Loan CRF Xxxxxx
000 0 000 Xxxxx Xxxxxx Loan CRF Industrial
144 1 Autozone - Connellsville, PA Loan CRF Retail
145 1 Xxxxxxxxx City Crossing Phase II Loan MLML Retail
LOAN # STREET ADDRESS CITY
---------------------------------------------------------------------------------------------------------------------
1 Various Various
1.01 0000-0000 Xxxxxx Xxxx Xxxxxxxxx Xxxxxxxxxx
1.02 0000 Xxxx Xxxx Xxxx Xxxx Xxxxxxx
1.03 000 Xxxxx Xxxx 000 Xxxxx Xxxxxxxxx Xxxxxxx
1.04 0000-0000 Xxxxx Xxxxxxxxxx Xxxxx Coral Springs
1.05 000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxx
1.06 0000-0000 Xxxxxxx Xxxxx Xxxx Xxxxxxxxx
1.07 0000 Xxxxx X.X. Xxxxxxx 17/92 Casselberry
1.08 0000-0000 Xxxx Xxxxx Xxxx 434 and 000-000 Xxxxxx Xxxxxxx Xxxx Xxxxxxxx
2 110 Building Development Between 1st Avenue & Avenue C, Between 14th & East 23rd Streets New York
2.01 New York
2.02 New York
3 500 Southpark Center Strongsville
4 Various Various
4.01 X.X. Xx. 0 Xxxx Xxxxx Xxxxxxx
4.02 P.R. 693 Xxxxxx Xxxxxx
0.00 Xxxxx Xxxx Xx. 00, Xx. 3.5 Guaynabo
4.04 P.R. Xx. 000, Xx. 0.0 Xxx Xxxxxxx
4.05 Los Dominicos Avenue and Levittown Boulevard Levittown
4.06 Gautier Benitez Avenue and Xxxxxxxxx Street Caguas
5 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxxx
6 Various Various
6.01 0000 Xxxxxxx Xxxxx, Condo Unit A Upper Marlboro
6.02 15025-15027, 00000-00000 Xxxx Xxxxx Xxxxx Xxxxxxxxxx
6.03 00000 Xxxx Xxxxx Xxxxx Xxxxxxxxxx
6.04 00000-00000 Xxxx Xxxxx Xxxxx Xxxxxxxxxx
6.05 00000-00000 Xxxx Xxxxx Xxxxx Xxxxxxxxxx
6.06 00000 Xxxx Xxxxx Xxxxx Xxxxxxxxxx
6.07 00000 Xxxx Xxxxx Xxxxx Xxxxxxxxxx
6.08 115 & 000 Xxxxxx Xxxxx Xxxxxxxxxxxxxx
6.09 00000-00000 Xxxx Xxxxx Xxxxx Xxxxxxxxxx
6.1 14883-14887 Persistence Drive Woodbridge
7 Various Various
7.01 000 Xxxx Xxxxx Xxxxxx Xxxxxxxxx
7.02 0000 Xxxxx Xxxxx Xxxxxxxxx Xxxx Xxxxxxxxxx
8 0-00 Xxxxxx Xxxxxx Xxxxxxxxxxx Xxxxxx Xxxxxx
9 000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx
10 0000 Xxxx Xxxxxxx Xxxxxxxxx Xxx Xxxxxxx
11 0000 Xxxxxxxx Xxxx Xxxxxxxxxxx
12 000-000 Xxxxx Xxxxx 0 Xxxxxxx
13 000 Xxxxxxxx Xxxxxx Xxxxxx
14 0000 Xxxxxxx Xxxx Plano
15 0000 Xxxxxxxx Xxxxxx Xxxxxx
16 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxx
17 Various Various
17.01 0000 Xxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxx
17.02 0000 Xxxxxxx Xxxxxxxxx Xxxxx Xxxx
17.03 0000-0000 Xxxxx Xxxxxx San Marcos
17.04 00000 Xxxxx Xxxxxx Xxxxxx Xxxxx
18 113 & 000 Xxxxxxxx Xxxx Xxxxxxxx
19 00000 Xxxxxxxxxx Xxxxxx Bermuda Dunes
20 000 Xxxx 00xx Xxxxxx Xxx Xxxxxxx
21 0000 Xxxxxxx Xxxx Xxxx Xxxxxx
00 00000, 10960 & 00000 Xxxxxxx Xxx Xxxxxxx
24 6301-6335 Dort Highway and 0000-0000 Xxxxxxx Xxxx Grand Blanc
25 Various Various
25.01 0000 Xxxxxx Xxxxx Xxxxx Xxxx
25.02 0000 Xxxxxxxxxx Xxxx Xxxx Xxxxx
25.03 0000 Xxxx Xxxxxx Xxxx Xxxxx
25.04 0000 Xxxxxxxxxx Xxxx Xxxx Xxxxx
26 Various Various
26.01 0000 Xxxxxx Xxxxx Xxxxx Xxxxxxx
26.02 000 Xxxxx Xxxxxx Xxxx McAlester
26.03 000 Xxxxxxxxx Xxxxxxx Hot Springs
26.04 00000 Xxxx Xxxxxxxxxx Xxxxxx Florissant
26.05 0000 Xxxx Xxxxxxxxx Xxxxx Xxxxx
26.06 0000 Xxxxxxxx Xxxxxx Xxxxxxxx
26.07 0000 Xxxxxxxx Xxxxxxxxx Xxxxxx
26.08 0000 Xxxxx Xxxx Poteau
26.09 0000 Xxxxx Xxxxxx Xxxxx Xxxxxxxxxxxx
26.1 000 Xxxxxxxxxx Xxxxx Xxxxxxxxx
26.11 0000 Xxxxx Xxxxx Xxxxxxxxxxx
26.12 000 Xxxxxxxxxx Xxxx Xxxx Xxxxxxxx
27 00-00 Xxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxx
28 175 Avenue A Bayonne
29 0000 Xxxxx Xxxxxx Xxx Xxxxxxx
30 0000 Xxxxxxx Xxxxx Xxxxxxxxx Xxxxxxxx Beach
31 0000 Xxxxxxxx Xxxx San Antonio
32 3940 Centerview Drive Chantilly
33 72655-72705 Highway 111 Palm Desert
34 1600 Xxx Xxxxxxx Boulevard Xxxxxx
35 0000 Xxxxxxxxxxx Xxxx Cheyenne
36 000 Xxxx Xxxxxxxxxxxx Xxxxxx Xxxxxxxxx
37 0000 Xxxxxxx Xxxxx Xxxxxxx
00 00000 - 27855 Santa Xxxxxxxxx Parkway Mission Viejo
39 10600-10760 North Loop Drive Xxxxxxx
40 0000 Xxxxxxx Xxxxxx Xxxxxxx
41 00 Xxxxx Xxxx Xxxxxx Xxxxxxxxx
42 18699 Xxxxx 00xx Xxxxxx Xxxxxxxx
43 0000 Xxxxxxx Xxxx Xxxx Xxxxxx
00 0000-0000 West Indian School Road Phoenix
45 00000 Xxxxxxxx Xxxx Olathe
46 0000-0000 Xxxxx Xxxx 00 Xxxx Xxxxxxxxxx
47 000 Xxxxx Xxxxxx Xxxxxxx
48 00-00 Xxxxxxx Xxxxx Xxxxxxxxx Flushing
49 000-000 Xxxxxxx Xxxxxx Xxxx Xxx Xxxx
00 0000 XxXxxxxxx Xxxxxxxxx Xxxxxxxx
51 0000 Xxxx 00xx Xxxxxx Yuma
52 0000 Xxxx Xxxxx Xxxx Petoskey
53 Various Fredericksburg
53.01 0000 Xxxxxxxxxxxxx Xxxxxxx Fredericksburg
53.02 00000 Xxxxxxxxx Xxxxx Xxxxxxx Xxxxxxxxxxxxxx
54 0000 Xxxx Xxxx Xxxxxx Valdosta
55 27785, 27845 and 00000 Xxxxx Xxxxxxxxx Xxxxxxx Mission Viejo
56 000 Xxxx Xxxx Xxxxxx Xxxxxxxx
57 000 X Xxxxxx Xxxxxxxxx Xxxxxxxxxx
58 000 Xxxxx Xxxxxx Oneonta
59 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxxx
60 0000 Xxxx Xxxxxx Xxxxxx
61 000 Xxxxxxxxxx 00 Xxxxx Xxx Xxxxxx
62 000 Xxxxx Xxxxx Xxxxxx Xxxx Covina
63 1715 West International Speedway Boulevard Daytona Beach
64 0000 Xxxx Xxxxxxxx Xxxxxxxxx Cheyenne
65 0000 Xxxxxxx Xxxx Xxxxxxxx
66 000 Xxxx 0xx Xxxxxx Xxx Xxxxxxx
67 0000 Xxxxx Xxxx Xxxxxxxxxx Xxxx Xxxxxxxx
68 0000 Xxxx Xxxx Xxxxxx Xxxxxxxx
00 00xx Xxxxxx xxx Xxxxxxxx Xxxx Xxxxxxxxxxxx
00 3001 University Center Drive Tampa
71 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxx
00 00000 and 00000 Xxxxxxx Xxxxxxxxx Xxxxxx
73 0000 Xxxxxxx Xxxxxxxx Xxxx Xxxxxxxxx
74 0000 Xxxxx Xxxxxxxx Xxxxx Xxxxxxxxxxx
Various Pharr
75 4603 North Cage Boulevard Xxxxx
76 4607 North Cage Boulevard Xxxxx
77 000 Xxxx Xxxxxxxxx Xxxxx Xxxxxxxxx Xxx Xxxxx
78 2615 Xxxxxx Xxxxxx Parkway Kennesaw
79 18955-18973 Xxxxxxx Xxxxxxxxx Xxxxxxx
00 000 Xxxxx Xxxxxx Xxxxxxxxx
81 0000 Xxxxx Xxxxxxx Xxxxxx Mount Wolf
82 1501-1525 Xxxx Xxx Xxxx Xxxxxxxxx
00 Various Virginia Beach
83.01 0000 Xxxxxxxxxx Xxxxx Xxxxxxxx Beach
83.02 0000-0000 Xxxxx Xxxxx Xxxx Xxxx Xxxxxxxx Xxxxx
84 000 Xxxxx Xxxxxxx 1417 Xxxxxxx
85 000 Xxxxxxx Xxxx Xxxxx
86 0000 Xxxxxxxxx Xxxxxxxxx Downey
87 0000-0000 Xxxxx Xxxx Xxxx Belcamp
88 0000 Xxxxxxxxxxxx Xxxxxx Xxxxxxxx
89 0000 Xxxxxxxxx Xxxx Xxxxxxxx
90 000 Xxxxxxxxxxxx Xxxxx Xxxx Xxxxxxxx
91 000 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxx
92 0000 Xxxxxxx Xxxxx Xxxxx Xxxxx
93 0000-0000 000xx Xxxxxx Northwest Andover
94 000-000 Xxxxxx Xxxxxxx Xxxxxxxx Heights
95 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxxxx
96 00 Xxxxx Xxxxx Xxxxxxxx Xxxx
97 13118 Xxxxx Road Bay St. Louis
98 0000-0000 Xxxxxxxxxxxx Xxxxxxx Tampa
99 0000 Xxxxxxx Xxxx Elk Grove
100 0000 Xxxxx Xxxxx Xxxxxxxxxx Xxxxxx
101 0000 Xxxxxxxx Xxxxxx Xxxxx Xxxx Xxxxx
102 12504 South US Xxxxxxx 000 Xxxx Xxxx
103 000-000 Xxxxxxxxxx Xxxxxx and 224 & 000 0xx Xxxxxx Xxxxx Beach
104 0000 Xxxx Xxxxxx Xxxx Xxxx Xxxxxxxxx Xxxxx
105 000 Xxxx Xxxxxxx Xxxxx Xxxx Xxxx Xxxxxxxxxx
106 0000 Xxxxxxx Xxxxx Xxxxx Xxxxx
107 000 Xxxx Xxxxxxxx Xxxxx Xx. Xxxxxx
108 000 Xxx Xxxxxx Xxxx Xxxxxxxxx
000 Xxxxx 0 xxx Xxxxxx Xxxx Xxxxxx
000 00000 and 00000 Xxxxx Xxxxxxxxx Xxxxxxx Xxxxxxx Xxxxx
111 000-000 Xxxxx Xxxxxxx Xxxxx Xxxxxxx Xxxxx
112 00000 Xxxxxxx Xxxx Menifee
113 00 Xxxxxxxxxx Xxxxxxx Xxxxx Xxxxxxxxxx
114 0000 Xxxxxxx Xxxxx Xxxx Xxxxxx
115 0000 Xxxxx X.X. Xxxxxxx 00 Xxxxxxxx
116 000 Xxxxx Xxxx Etters
117 0000 Xxxxxxxxx Xxxx Xxxxxxxxxx
118 26765 & 00000 Xxxxxxx Xxxxxx Murrieta
119 0000 Xxxxx Xxxxxx Xxxxxxxxxxx
120 0000 Xxxxxx Xxxxxx Norco
121 19825 International Boulevard South Seatac
122 1001 Clubhouse Drive Donegal
123 0000 Xxxxxxxxx Xxxxxx Xxx Xxxxxxx
124 00000 Xxxx Xxxxx Xxxxxxx 000 Xxxxxxxxxx
125 22651, 22691 & 00000 Xxxx Xxxxxx Xxxxxxx Aurora
126 0000 Xxxxx 0xx Xxxxxx Xxxxxxx
127 0000 Xxxxxx Xxxxxx Van Nuys
128 1901-1923 East Fifth Street Vancouver
129 0000 Xxxx Xxx Xxxxxxx Xxxxxx Simi Valley
130 8854 Spring Cypress Road Spring
131 00000 Xxxxxxxxx Xxxxxxx Xxxxxx Village
132 00000 Xxxxxxx Xxxx Xxxxxx
133 000 X. Xxxx Xxxxxx Xxxxxxxxx
134 0000-0000 Xxxxx Xxxxxx Paris
135 000 00xx Xxxxxx Xxxxxxxxx Xxxxxxxxxx
136 0000 Xxxxxxxxxxx Xxxx New Albany
137 000 Xxxxxxx Xxxx Xxxxxxxxxx
138 000 Xxxxx Xxxxx Xxxxxxxxx Thibodaux
139 000 Xxxxxx Xxxxx Xxxxxxxxxx
140 000 Xxxxx Xxxxxxx Xxxxx Xxxx Xxxxx
141 0000 Xxxxxx Xxxxxx Xxxxxx Xxxx
142 2801 & 0000 0xx Xxxxxx & 605 & 000 00xx Xxxxxx Xxxxxxxxxx
143 000 Xxxxx Xxxxxx Xxxxx Xxxx
144 000 Xxxxxxxxxx Xxxx Xxxxxxxxxxxxx
145 000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx Xxxx
CUT-OFF DATE ORIGINAL MONTHLY P&I DEBT ANNUAL P&I DEBT
LOAN # COUNTY STATE ZIP CODE BALANCE ($) BALANCE ($) SERVICE ($) SERVICE ($)
-------------------------------------------------------------------------------------------------------------------------
1 Various FL Various 223,400,000 223,400,000 1,059,908.89 12,718,906.68
1.01 Xxxx Xxxxx XX 00000 53,000,000 53,000,000
1.02 Xxxxxx XX 00000 38,750,000 38,750,000
1.03 Xxxxxxxx XX 00000 24,000,000 24,000,000
1.04 Xxxxxxx XX 00000 23,750,000 23,750,000
1.05 Xxxxxxxx XX 00000 23,750,000 23,750,000
1.06 Xxxxxxxxx XX 00000 23,200,000 23,200,000
1.07 Xxxxxxxx XX 00000 19,750,000 19,750,000
1.08 Xxxxxxxx XX 00000 17,200,000 17,200,000
2 Xxx Xxxx XX 00000, 10010 202,272,727 202,272,727 1,102,594.26 13,231,131.12
2.01 Xxx Xxxx XX 00000, 10010 156,475,129 156,475,129
2.02 Xxx Xxxx XX 00000, 10010 45,797,599 45,797,599
3 Xxxxxxxx XX 00000 150,000,000 150,000,000 686,440.63 8,237,287.56
4 N/A PR Various 84,675,000 84,675,000 433,229.05 5,198,748.60
4.01 N/A PR 959 27,340,666 27,340,666
4.02 N/A PR 646 16,654,961 16,654,961
4.03 N/A PR 969 15,033,681 15,033,681
4.04 N/A PR 754 12,085,901 12,085,901
4.05 N/A PR 949 8,548,564 8,548,564
4.06 N/A PR 725 5,011,227 5,011,227
5 Xxxxxxxxx XX 00000 72,000,000 72,000,000 329,674.50 3,956,094.00
6 Various Various Various 63,600,000 63,600,000 310,044.70 3,720,536.40
6.01 Xxxxxx Xxxxxxx XX 00000 11,600,000 11,600,000
6.02 Xxxxxx Xxxxxxx XX 00000 8,640,000 8,640,000
6.03 Xxxxxx Xxxxxxx XX 00000 8,400,000 8,400,000
6.04 Xxxxxx Xxxxxxx XX 00000 8,180,000 8,180,000
6.05 Xxxxxx Xxxxxxx XX 00000 7,200,000 7,200,000
6.06 Xxxxxx Xxxxxxx XX 00000 6,400,000 6,400,000
6.07 Xxxxxx Xxxxxxx XX 00000 5,120,000 5,120,000
6.08 Xxxxxxxx XX 00000 3,600,000 3,600,000
6.09 Xxxxxx Xxxxxxx XX 00000 2,720,000 2,720,000
6.1 Xxxxxx Xxxxxxx XX 00000 1,740,000 1,740,000
7 Various FL Various 59,400,000 59,400,000 278,493.52 3,341,922.24
7.01 Xxxx Xxxxx XX 00000 31,450,000 31,450,000
7.02 Xxxxxxx XX 00000 27,950,000 27,950,000
8 Xxxxxxxx XX 00000 46,800,000 46,800,000 254,736.94 3,056,843.28
9 Xxxxxxxx XX 00000 42,100,000 42,100,000 215,078.38 2,580,940.56
10 Xxx Xxxxxxx XX 00000 40,000,000 40,000,000 189,574.44 2,274,893.28
11 Xxxxxxxx XX 0000 37,950,000 37,950,000 179,807.31 2,157,687.72
12 Xxxxxxx XX 0000 37,000,000 37,000,000 218,987.22 2,627,846.64
13 Xxxxxxx XX 0000 33,750,000 33,750,000 167,387.81 2,008,653.72
14 Xxxxxx XX 00000 33,425,000 33,425,000 198,983.66 2,387,803.92
15 Xxxxxx XX 00000 32,000,000 32,000,000 164,835.56 1,978,026.72
16 Xxxxx XX 00000 29,280,000 29,280,000 148,343.87 1,780,126.44
17 Various CA Various 26,975,534 27,000,000 155,921.94 1,871,063.28
17.01 Xxxxxx XX 00000 11,022,997 11,032,995
17.02 Xxxxxx XX 00000 7,668,172 7,675,127
17.03 Xxx Xxxxx XX 00000 5,819,595 5,824,873
17.04 Xxxxxx XX 00000 2,464,770 2,467,005
18 Xxxxxxxxxx XX 00000 26,000,000 26,000,000 156,083.78 1,873,005.36
19 Xxxxxxxxx XX 00000 22,800,000 22,800,000 105,082.67 1,260,992.04
20 Xxx Xxxxxxx XX 00000 22,600,000 22,600,000 126,187.42 1,514,249.04
21 Xxxxx XX 00000 21,500,000 21,500,000 99,409.88 1,192,918.56
23 Xxx Xxxxxxx XX 00000 19,700,000 19,700,000 115,602.89 1,387,234.68
24 Xxxxxxx XX 00000 19,000,000 19,000,000 88,534.72 1,062,416.64
25 Various IN Various 19,000,000 19,000,000 108,620.16 1,303,441.92
25.01 Xx Xxxxxx XX 00000 9,800,000 9,800,000
25.02 Xxxxx XX 00000 3,800,000 3,800,000
25.03 Xxxxx XX 00000 3,700,000 3,700,000
25.04 Xxxxx XX 00000 1,700,000 1,700,000
26 Various Various Various 18,000,000 18,000,000 89,060.00 1,068,720.00
26.01 Xxxxxx XX 00000 3,095,000 3,095,000
26.02 Xxxxxxxxx XX 00000 1,855,000 1,855,000
26.03 Xxxxxxx XX 00000 1,805,000 1,805,000
26.04 Xxxxx Xxxxx XX 00000 1,795,000 1,795,000
26.05 Xxxxxx XX 00000 1,700,000 1,700,000
26.06 Xxxxxxxx XX 00000 1,700,000 1,700,000
26.07 Xxxxxx XX 00000 1,505,000 1,505,000
26.08 XxXxxxx XX 00000 1,200,000 1,200,000
26.09 Xxxxxxxxxx XX 00000 925,000 925,000
26.1 Xxxx XX 00000 875,000 875,000
26.11 Xxxxxxxx XX 00000 820,000 820,000
26.12 Xxxxx XX 00000 725,000 725,000
27 Xxxxxxxxx XX 00000 18,000,000 18,000,000 99,379.45 1,192,553.40
28 Xxxxxx XX 0000 17,000,000 17,000,000 93,979.95 1,127,759.40
29 Xxx Xxxxxxx XX 00000 16,500,000 16,500,000 95,870.66 1,150,447.92
30 Xxxxxxxx Xxxxx Xxxx XX 00000 16,400,000 16,400,000 81,240.82 974,889.84
31 Xxxxx XX 00000 15,800,000 15,800,000 89,761.28 1,077,135.36
32 Xxxxxxx XX 00000 15,500,000 15,500,000 90,011.18 1,080,134.16
33 Xxxxxxxxx XX 00000 14,000,000 14,000,000 67,039.00 804,468.00
34 Xxxxxxxxx XX 00000 13,585,000 13,585,000 76,072.09 912,865.08
35 Xxxxxxx XX 00000 13,149,159 13,200,000 79,047.34 948,568.08
36 Xxxxxx XX 00000 13,079,995 13,100,000 76,178.63 914,143.56
37 Xxxxxx XX 00000 13,050,000 13,050,000 76,554.65 918,655.80
38 Xxxxxx XX 00000 13,000,000 13,000,000 62,779.17 753,350.04
39 Xx Xxxx XX 00000 12,773,127 12,800,000 78,292.23 939,506.76
40 Xxxxxx XX 00000 12,081,523 12,100,000 70,363.46 844,361.52
41 Xxxxxxxxxx XX 00000 11,985,771 12,000,000 80,052.78 960,633.36
42 Xxxxxxxx XX 00000 11,900,000 11,900,000 60,622.73 727,472.76
43 Xxxxxx XX 00000 11,200,000 11,200,000 65,004.85 780,058.20
44 Xxxxxxxx XX 00000 11,140,000 11,140,000 55,590.15 667,081.80
45 Xxxxxxx XX 00000 10,816,000 10,816,000 64,222.87 770,674.44
46 Xxxxxxx XX 00000 10,500,000 10,500,000 62,104.75 745,257.00
47 Xxxxxxxxx XX 0000 10,490,403 10,500,000 60,410.78 724,929.36
48 Xxxxxx XX 00000 10,477,346 10,500,000 63,087.88 757,054.56
49 Xxxxxxx XX 00000 10,152,000 10,152,000 46,591.62 559,099.44
50 Xxxxxxx XX 00000 10,000,000 10,000,000 58,211.26 698,535.12
51 Xxxx XX 00000 9,800,000 9,800,000 58,378.45 700,541.40
00 Xxxxx XX 00000 9,600,000 9,600,000 55,475.34 665,704.08
53 Various VA Various 9,528,292 9,550,000 55,428.24 665,138.88
53.01 Xxxxxxxx XX 00000 5,138,294 5,150,000
53.02 Xxxxxxxxxxxx XX 00000 4,389,998 4,400,000
54 Xxxxxxx XX 00000 9,400,000 9,400,000 54,082.03 648,984.36
55 Xxxxxx XX 00000 9,300,000 9,300,000 44,911.25 538,935.00
56 Xxxxxxxxxx XX 00000 9,200,000 9,200,000 54,139.57 649,674.84
00 Xxxxxxxx xx Xxxxxxxx XX 00000 8,875,180 8,880,000 50,394.53 604,734.36
58 Xxxxxx XX 00000 8,780,921 8,800,000 52,703.88 632,446.56
59 Xxxxxxxx XX 00000 8,422,678 8,430,000 49,570.70 594,848.40
60 Xxxxx Xxxxx XX 00000 8,385,000 8,385,000 41,131.92 493,583.04
61 Xxxx XX 00000 8,225,316 8,250,000 54,015.47 648,185.64
62 Xxx Xxxxxxx XX 00000 8,000,000 8,000,000 45,538.63 546,463.56
63 Xxxxxxx XX 00000 7,973,162 8,000,000 44,972.41 539,668.92
64 Xxxxxxx XX 00000 7,943,497 7,950,000 47,920.13 575,041.56
65 Xxxxxxxx Xxxx XX 00000 7,910,000 7,910,000 47,170.47 566,045.64
66 Xxx Xxxxxxx XX 00000 7,700,000 7,700,000 43,830.93 525,971.16
67 Xxxxxxxxx XX 00000 7,593,482 7,600,000 44,927.73 539,132.76
68 Xxxxxxxx XX 00000 7,583,686 7,600,000 45,815.33 549,783.96
69 Xxxxxx XX 00000 7,500,000 7,500,000 44,255.15 531,061.80
70 Xxxxxxxxxxxx XX 00000 7,477,346 7,500,000 48,782.10 585,385.20
71 Xxxx XX 00000 7,200,000 7,200,000 39,242.50 470,910.00
72 Xxx Xxxxxxx XX 00000 7,000,000 7,000,000 41,820.14 501,841.68
73 Xxxxxxx XX 00000 6,995,625 7,000,000 37,793.17 453,518.04
74 Xxxx XX 00000 6,991,081 7,000,000 36,653.25 439,839.00
Xxxxxxx XX 00000 6,982,907 7,000,000 52,717.62 632,611.44
75 Xxxxxxx XX 00000 3,840,599 3,850,000 28,994.69 347,936.28
76 Xxxxxxx XX 00000 3,142,308 3,150,000 23,722.93 284,675.16
77 Xxxxx XX 00000 6,680,000 6,680,000 33,752.93 405,035.16
78 Xxxx XX 00000 6,584,998 6,600,000 38,306.43 459,677.16
79 Xxx Xxxxxxx XX 00000 6,300,000 6,300,000 34,486.85 413,842.20
80 Xxxxx XX 00000 6,180,022 6,200,000 35,690.70 428,288.40
81 Xxxx XX 00000 5,994,433 6,000,000 34,293.55 411,522.60
82 Xxxxxxx XX 00000 5,950,000 5,950,000 34,919.38 419,032.56
83 Virginia Beach City VA Various 5,800,000 5,800,000 33,564.05 402,768.60
83.01 Xxxxxxxx Xxxxx Xxxx XX 00000 3,600,000 3,600,000
83.02 Xxxxxxxx Xxxxx Xxxx XX 00000 2,200,000 2,200,000
84 Xxxxxxx XX 00000 5,650,000 5,650,000 33,196.53 398,358.36
85 Xxxx XX 00000 5,400,000 5,400,000 31,420.37 377,044.44
86 Xxx Xxxxxxx XX 00000 5,400,000 5,400,000 31,215.12 374,581.44
87 Xxxxxxx XX 00000 5,395,553 5,400,000 32,459.10 389,509.20
88 Xxxxxxx XX 00000 5,350,000 5,350,000 31,904.17 382,850.04
89 Xxxxxxxx XX 00000 5,150,000 5,150,000 33,118.59 397,423.08
90 Xxxxxxxxx XX 00000 5,000,000 5,000,000 29,337.65 352,051.80
91 Xxxxx XX 00000 5,000,000 5,000,000 29,375.87 352,510.44
92 Xxxx XX 00000 5,000,000 5,000,000 28,798.61 345,583.32
93 Xxxxx XX 00000 4,955,699 4,960,000 29,188.29 350,259.48
94 Xxxxx Xxxxx XX 00000 4,842,399 4,850,000 27,748.72 332,984.64
95 Xxxxxx XX 00000 4,740,224 4,750,000 29,432.18 353,186.16
96 Xxxxxxx XX 00000 4,700,000 4,700,000 26,990.72 323,888.64
97 Xxxxxxx XX 00000 4,580,000 4,580,000 21,768.36 261,220.32
98 Xxxxxxxxxxxx XX 00000 4,529,000 4,529,000 27,533.33 330,399.96
99 Xxxxxxxxxx XX 00000 4,520,000 4,520,000 26,225.51 314,706.12
000 Xxxxxx XX 00000 4,200,000 4,200,000 24,323.61 291,883.32
101 Xx Xxxxxx XX 00000 4,096,575 4,100,000 24,502.55 294,030.60
000 Xxxxx XX 00000 4,050,000 4,050,000 23,786.71 285,440.52
103 Xxxxx-Xxxx XX 00000 4,000,000 4,000,000 23,342.91 280,114.92
104 Xxxxxxx XX 00000 4,000,000 4,000,000 23,284.50 279,414.00
000 Xxxxxxx XX 00000 4,000,000 4,000,000 22,963.16 275,557.92
106 Xxxx XX 00000 4,000,000 4,000,000 23,033.83 276,405.96
107 Xxxxxxxxxx XX 00000 3,992,043 4,000,000 28,726.51 344,718.12
108 Xxxxxxxxx XX 00000 3,991,519 4,000,000 24,309.60 291,715.20
000 Xxxxxx XX 00000 3,991,398 4,000,000 24,084.98 289,019.76
110 Xxxxxx XX 00000 3,950,000 3,950,000 18,881.11 226,573.32
111 Xxx Xxxxxxx XX 00000 3,897,683 3,900,000 21,449.56 257,394.72
112 Xxxxxxxxx XX 00000 3,791,234 3,800,000 21,838.97 262,067.64
113 Kennebec ME 4901 3,647,867 3,650,000 20,193.09 242,317.08
114 Xxxxxxx XX 00000 3,207,339 3,210,000 19,245.57 230,946.84
000 Xxxx XX 00000 3,197,229 3,200,000 18,841.36 226,096.32
116 Xxxx XX 00000 3,197,031 3,200,000 18,289.89 219,478.68
000 Xxx Xxxxxx XX 00000 3,189,878 3,200,000 20,150.75 241,809.00
118 Xxxxxxxxx XX 00000 3,185,000 3,185,000 15,979.94 191,759.28
000 Xxx Xxxxxxxxxx XX 00000 3,092,990 3,100,000 17,076.33 204,915.96
120 Xxxxxxxxx XX 00000 3,000,000 3,000,000 17,356.92 208,283.04
000 Xxxx XX 00000 2,993,410 3,000,000 17,813.30 213,759.60
122 Xxxxxxxxxxxx XX 00000 2,960,000 2,960,000 18,129.08 217,548.96
000 Xxxx XX 00000 2,698,351 2,700,000 14,703.48 176,441.76
124 Xxxxxxxxxx XX 00000 2,697,673 2,700,000 15,928.41 191,140.92
125 Xxxxxxxx XX 00000 2,694,068 2,700,000 16,030.24 192,362.88
126 Xxxxxxxx XX 00000 2,348,133 2,350,000 14,332.08 171,984.96
127 Xxx Xxxxxxx XX 00000 2,315,000 2,315,000 11,454.11 137,449.32
128 Xxxxx XX 00000 2,198,118 2,200,000 13,020.86 156,250.32
129 Xxxxxxx XX 00000 1,900,000 1,900,000 11,354.84 136,258.08
000 Xxxxxx XX 00000 1,900,000 1,900,000 11,112.04 133,344.48
000 Xxxxxx XX 00000 1,835,000 1,835,000 11,060.81 132,729.72
000 Xxx Xxxxxxxxxx XX 00000 1,748,488 1,750,000 10,312.80 123,753.60
133 Xxxxxxxxx Xxxx XX 00000 1,728,567 1,750,000 19,649.02 235,788.24
134 Xxxxx XX 00000 1,715,000 1,715,000 10,326.44 123,917.28
000 Xxxxxxxx xx Xxxxxxxx XX 00000 1,571,684 1,575,000 9,615.75 115,389.00
136 Xxxxx XX 00000 1,493,245 1,500,000 10,755.12 129,061.44
137 Xxxxxxxxxx XX 00000 1,398,924 1,400,000 8,647.38 103,768.56
138 Xxxxxxxxx XX 00000 1,347,097 1,350,000 8,128.68 97,544.16
139 Xxx Xxxxxxx XX 00000 1,299,022 1,300,000 8,097.56 97,170.72
000 Xxxxxxxx XX 00000 1,199,024 1,200,000 7,248.70 86,984.40
141 Xxxxxxxx XX 00000 1,060,000 1,060,000 6,457.82 77,493.84
000 Xxxxxxxxx XX 00000 1,024,192 1,025,000 6,271.16 75,253.92
000 Xxxxxxxxxx XX 00000 795,033 800,000 5,511.78 66,141.36
144 Xxxxxxx XX 00000 775,000 775,000 4,776.85 57,322.20
145 Xxxxxxxxxx XX 00000 674,461 675,000 4,108.79 49,305.48
NET MONTHLY
INTEREST PRIMARY MASTER SUB SERVICIN MORTGAGE PAYMENT
LOAN # RATE % SERVICING FEE SERVICING FEE FEE RATE RATE % ACCRUAL TYPE TERM DATE REM. TERM
-----------------------------------------------------------------------------------------------------------------------
1 5.6000 0.010 0.010 5.57910 Actual/360 120 8 119
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
2 6.4340 0.010 0.0100 6.41310 Actual/360 120 8 116
2.01
2.02
3 5.4015 0.010 0.010 5.38060 Actual/360 120 8 119
4 6.0390 0.010 0.010 6.01810 Actual/360 60 8 58
4.01
4.02
4.03
4.04
4.05
4.06
5 5.4045 0.010 0.010 5.38360 Actual/360 60 8 58
6 5.7540 0.010 0.010 5.73310 Actual/360 120 8 119
6.01
6.02
6.03
6.04
6.05
6.06
6.07
6.08
6.09
6.1
7 5.5339 0.010 0.010 5.51298 Actual/360 60 8 59
7.01
7.02
8 5.6110 0.010 0.010 5.59010 Actual/360 120 8 119
9 6.0300 0.010 0.010 6.00910 Actual/360 60 8 58
10 5.5940 0.010 0.010 5.57310 Actual/360 120 8 117
11 5.5924 0.010 0.010 5.57150 Actual/360 120 8 119
12 5.8800 0.010 0.010 5.85910 Actual/360 120 8 119
13 5.8540 0.010 0.010 5.83310 Actual/360 60 8 58
14 5.9340 0.010 0.010 5.91310 Actual/360 120 8 119
15 6.0800 0.010 0.0500 6.01910 Actual/360 120 8 118
16 5.9800 0.010 0.010 5.95910 Actual/360 60 8 59
17 5.6540 0.010 0.010 5.63310 Actual/360 120 8 119
17.01
17.02
17.03
17.04
18 6.0120 0.010 0.010 5.99110 Actual/360 120 1 113
19 5.4400 0.010 0.010 5.41910 Actual/360 120 8 119
20 5.3490 0.010 0.010 5.32810 Actual/360 120 8 118
21 5.4575 0.010 0.010 5.43660 Actual/360 120 8 118
23 5.8010 0.010 0.0900 5.70010 Actual/360 120 8 118
24 5.5000 0.010 0.0140 5.47510 Actual/360 120 8 118
25 5.5620 0.010 0.010 5.54110 Actual/360 120 8 120
25.01
25.02
25.03
25.04
26 5.8400 0.010 0.010 5.81910 Actual/360 60 8 59
26.01
26.02
26.03
26.04
26.05
26.06
26.07
26.08
26.09
26.1
26.11
26.12
27 5.7290 0.010 0.010 5.70810 Actual/360 120 8 119
28 5.2600 0.010 0.010 5.23910 Actual/360 120 8 119
29 5.7100 0.010 0.010 5.68910 Actual/360 120 8 120
30 5.8470 0.010 0.0800 5.75610 Actual/360 120 8 119
31 5.9690 0.010 0.010 5.94810 Actual/360 120 8 119
32 5.7050 0.010 0.010 5.68410 Actual/360 120 8 120
33 5.6520 0.010 0.010 5.63110 Actual/360 120 8 119
34 5.3750 0.010 0.0100 5.35410 Actual/360 60 1 38
35 5.9890 0.010 0.010 5.96810 Actual/360 120 1 116
36 6.1680 0.010 0.010 6.14710 Actual/360 120 8 118
37 5.7980 0.010 0.010 5.77710 Actual/360 120 8 120
38 5.7000 0.010 0.010 5.67910 Actual/360 120 8 116
39 6.1875 0.010 0.010 6.16660 Actual/360 120 8 118
40 6.1680 0.010 0.010 6.14710 Actual/360 120 8 118
41 6.3700 0.010 0.010 6.34910 Actual/360 120 8 119
42 6.0130 0.010 0.010 5.99210 Actual/360 120 8 119
43 5.7000 0.010 0.010 5.67910 Actual/360 120 8 118
44 5.8900 0.010 0.010 5.86910 Actual/360 120 8 120
45 5.9100 0.010 0.010 5.88910 Actual/360 120 8 120
46 5.8740 0.010 0.010 5.85310 Actual/360 120 8 118
47 5.6200 0.010 0.010 5.59910 Actual/360 120 8 119
48 6.0200 0.010 0.010 5.99910 Actual/360 120 8 118
49 5.4170 0.010 0.010 5.39610 Actual/360 120 8 119
50 5.7270 0.010 0.010 5.70610 Actual/360 120 8 118
51 5.9400 0.010 0.010 5.91910 Actual/360 120 8 120
52 5.6600 0.010 0.010 5.63910 Actual/360 120 8 117
53 5.7000 0.010 0.0500 5.63910 Actual/360 120 8 118
53.01
53.02
54 5.6200 0.010 0.010 5.59910 Actual/360 120 8 119
55 5.7000 0.010 0.010 5.67910 Actual/360 120 8 116
56 5.8270 0.010 0.010 5.80610 Actual/360 120 8 119
57 5.9600 0.010 0.010 5.93910 Actual/360 120 8 119
58 5.9900 0.010 0.010 5.96910 Actual/360 120 8 118
59 5.8200 0.010 0.010 5.79910 Actual/360 84 8 83
60 5.7900 0.010 0.010 5.76910 Actual/360 120 8 120
61 6.1700 0.010 0.010 6.14910 Actual/360 120 8 118
62 5.5230 0.010 0.010 5.50210 Actual/360 120 8 118
63 5.4100 0.010 0.010 5.38910 Actual/360 120 8 117
64 6.0500 0.010 0.010 6.02910 Actual/360 120 8 119
65 5.9500 0.010 0.010 5.92910 Actual/360 120 8 119
66 5.5230 0.010 0.010 5.50210 Actual/360 120 8 118
67 5.8690 0.010 0.010 5.84810 Actual/360 120 8 119
68 6.0510 0.010 0.010 6.03010 Actual/360 120 8 118
69 5.8520 0.010 0.010 5.83110 Actual/360 120 8 120
70 6.1000 0.010 0.010 6.07910 Actual/360 120 8 118
71 5.6220 0.010 0.010 5.60110 Actual/360 120 8 120
72 5.9670 0.010 0.010 5.94610 Actual/360 120 8 119
73 5.5440 0.010 0.010 5.52310 Actual/360 120 8 119
74 5.6150 0.010 0.010 5.59410 Actual/360 120 8 118
5.9100 0.010 0.010 0.00000 Actual/360 120 8 119
75 5.9100 0.010 0.010 5.88910 Actual/360 120 8 119
76 5.9100 0.010 0.010 5.88910 Actual/360 120 8 119
77 5.9640 0.010 0.010 5.94310 Actual/360 120 8 119
78 5.7000 0.010 0.010 5.67910 Actual/360 120 8 118
79 5.6580 0.010 0.010 5.63710 Actual/360 120 8 119
80 5.6250 0.010 0.010 5.60410 Actual/360 120 8 117
81 5.5600 0.010 0.010 5.53910 Actual/360 120 8 119
82 5.8020 0.010 0.010 5.78110 Actual/360 120 8 117
83 5.6730 0.010 0.010 5.65210 Actual/360 120 8 120
83.01
83.02
84 5.8125 0.010 0.010 5.79160 Actual/360 120 5 117
85 5.7230 0.010 0.010 5.70210 Actual/360 120 8 119
86 5.6630 0.010 0.010 5.64210 Actual/360 120 8 119
87 6.0240 0.010 0.0400 5.97310 Actual/360 180 8 179
88 5.9500 0.010 0.010 5.92910 Actual/360 120 8 119
89 5.9800 0.010 0.010 5.95910 Actual/360 120 8 120
90 5.8000 0.010 0.010 5.77910 Actual/360 120 8 119
91 5.8120 0.010 0.010 5.79110 Actual/360 120 8 120
92 5.6300 0.010 0.010 5.60910 Actual/360 120 8 117
93 5.8270 0.010 0.0700 5.74610 Actual/360 120 8 119
94 6.0290 0.010 0.0500 5.96810 Actual/360 60 8 58
95 6.3100 0.010 0.010 6.28910 Actual/360 120 8 118
96 5.7820 0.010 0.010 5.76110 Actual/360 120 8 120
97 5.6100 0.010 0.010 5.58910 Actual/360 120 8 118
98 6.1300 0.010 0.010 6.10910 Actual/360 120 8 118
99 5.6970 0.010 0.010 5.67610 Actual/360 120 8 118
100 5.6800 0.010 0.010 5.65910 Actual/360 120 8 118
101 5.9700 0.010 0.010 5.94910 Actual/360 120 8 119
102 5.8090 0.010 0.010 5.78810 Actual/360 120 1 117
103 5.7500 0.010 0.010 5.72910 Actual/360 120 8 119
104 5.7270 0.010 0.010 5.70610 Actual/360 120 8 119
105 5.6000 0.010 0.010 5.57910 Actual/360 120 8 119
106 5.6280 0.010 0.010 5.60710 Actual/360 120 8 117
107 6.0300 0.010 0.010 6.00910 Actual/360 120 8 119
108 6.1270 0.010 0.010 6.10610 Actual/360 120 8 118
109 6.0400 0.010 0.010 6.01910 Actual/360 120 8 118
110 5.6420 0.010 0.010 5.62110 Actual/360 120 8 117
111 5.6970 0.010 0.010 5.67610 Actual/360 120 8 119
112 5.6100 0.010 0.010 5.58910 Actual/360 120 8 118
113 5.7460 0.010 0.0500 5.68510 Actual/360 120 8 119
114 6.0000 0.010 0.010 5.97910 Actual/360 120 8 119
115 5.8320 0.010 0.010 5.81110 Actual/360 120 8 119
116 5.5600 0.010 0.010 5.53910 Actual/360 120 8 119
117 5.7600 0.010 0.010 5.73910 Actual/360 120 8 118
118 5.9220 0.010 0.010 5.90110 Actual/360 120 8 119
119 5.7100 0.010 0.010 0.0500 5.63910 Actual/360 120 8 117
120 5.6710 0.010 0.010 5.65010 Actual/360 120 8 118
121 5.9100 0.010 0.010 5.88910 Actual/360 120 8 118
122 6.2000 0.010 0.010 6.17910 Actual/360 60 8 56
123 5.6150 0.010 0.010 5.59410 Actual/360 120 8 119
124 5.8500 0.010 0.010 0.0500 5.77910 Actual/360 120 8 119
125 5.9090 0.010 0.010 5.88810 Actual/360 120 8 118
126 6.1600 0.010 0.010 6.13910 Actual/360 120 8 119
127 5.8400 0.010 0.010 5.81910 Actual/360 120 8 118
128 5.8800 0.010 0.010 0.0500 5.80910 Actual/360 120 8 119
129 5.9700 0.010 0.010 5.94910 Actual/360 120 8 119
130 5.7700 0.010 0.010 5.74910 Actual/360 120 8 118
131 6.0500 0.010 0.010 0.0500 5.97910 Actual/360 120 8 118
132 5.8400 0.010 0.010 5.81910 Actual/360 120 8 119
133 6.2500 0.010 0.010 6.22910 Actual/360 60 8 58
134 6.0400 0.010 0.010 6.01910 Actual/360 120 8 118
135 6.1700 0.010 0.010 6.14910 Actual/360 120 8 118
136 6.0100 0.010 0.010 5.98910 Actual/360 120 8 118
137 6.2800 0.010 0.010 6.25910 Actual/360 120 8 119
138 6.0400 0.010 0.010 0.0500 5.96910 Actual/360 120 8 118
139 6.3600 0.010 0.010 6.33910 Actual/360 120 8 119
140 6.0700 0.010 0.010 6.04910 Actual/360 120 8 119
141 6.1500 0.010 0.010 6.12910 Actual/360 120 8 118
142 6.1900 0.010 0.010 6.16910 Actual/360 120 8 119
143 7.3500 0.010 0.010 7.32910 Actual/360 180 1 171
144 6.2600 0.010 0.010 6.23910 Actual/360 120 8 119
145 6.1420 0.010 0.1000 6.03110 Actual/360 120 8 119
MATURITY/ AMORT
LOAN # ARD DATE TERM REM. AMORT TITLE TYPE ARD LOAN
----------------------------------------------------------------------
1 3/8/2017 0 0 Fee
1.01 Fee
1.02 Fee
1.03 Fee
1.04 Fee
1.05 Fee
1.06 Fee
1.07 Fee
1.08 Fee
2 12/8/2016 0 0 Fee
2.01 Fee
2.02 Fee
3 3/8/2017 0 0 Fee
4 2/8/2012 0 0 Fee
4.01 Fee
4.02 Fee
4.03 Fee
4.04 Fee
4.05 Fee
4.06 Fee
5 2/8/2012 0 0 Fee
6 3/8/2017 0 0 Fee
6.01 Fee
6.02 Fee
6.03 Fee
6.04 Fee
6.05 Fee
6.06 Fee
6.07 Fee
6.08 Fee
6.09 Fee
6.1 Fee
7 3/8/2012 0 0 Fee
7.01 Fee
7.02 Fee
8 3/8/2017 420 420 Fee
9 2/8/2012 0 0 Fee
10 1/8/2017 0 0 Fee
11 3/8/2017 0 0 Fee
12 3/8/2017 360 360 Fee
13 2/8/2012 0 0 Fee
14 3/8/2017 360 360 Fee
15 2/8/2017 0 0 Fee
16 3/8/2012 0 0 Fee
17 3/8/2017 360 359 Fee
17.01 Fee
17.02 Fee
17.03 Fee
17.04 Fee
18 9/1/2016 360 360 Fee
19 3/8/2017 0 0 Fee
20 2/8/2017 360 360 Fee
21 2/8/2017 0 0 Fee
23 2/8/2017 360 360 Fee
24 2/8/2017 0 0 Fee
25 4/8/2017 360 360 Fee
25.01 Fee
25.02 Fee
25.03 Fee
25.04 Fee
26 3/8/2012 0 0 Various
26.01 Fee
26.02 Fee
26.03 Fee
26.04 Fee
26.05 Fee
26.06 Fee
26.07 Fee
26.08 Fee
26.09 Fee
26.1 Fee
26.11 Leasehold
26.12 Fee
27 3/8/2017 420 420 Fee
28 3/8/2017 360 360 Fee
29 4/8/2017 360 360 Fee
30 3/8/2017 0 0 Fee
31 3/8/2017 420 420 Fee
32 4/8/2017 360 360 Fee
33 3/8/2017 0 0 Fee
34 6/1/2010 360 360 Fee
35 12/1/2016 360 356 Fee
36 2/8/2017 420 418 Fee
37 4/8/2017 360 360 Fee
38 12/8/2016 0 0 Fee
39 2/8/2017 360 358 Fee
40 2/8/2017 420 418 Fee
41 3/8/2017 300 299 Fee
42 3/8/2017 0 0 Leasehold
43 2/8/2017 360 360 Fee
44 4/8/2017 0 0 Fee
45 4/8/2017 360 360 Fee
46 2/8/2017 360 360 Fee
47 3/8/2017 360 359 Fee
48 2/8/2017 360 358 Fee
49 3/8/2017 0 0 Fee
50 2/8/2017 360 360 Fee
51 4/8/2017 360 360 Leasehold
52 1/8/2017 360 360 Fee
53 2/8/2017 360 358 Fee
53.01 Fee
53.02 Fee
54 3/8/2017 360 360 Fee
55 12/8/2016 0 0 Fee
56 3/8/2017 360 360 Fee
57 3/8/2017 420 419 Fee
58 2/8/2017 360 358 Fee
59 3/8/2014 360 359 Fee
60 4/8/2017 0 0 Fee
61 2/8/2017 300 298 Fee
62 2/8/2017 360 360 Fee
63 1/8/2017 360 357 Leasehold
64 3/8/2017 360 359 Fee
65 3/8/2017 360 360 Fee
66 2/8/2017 360 360 Fee
67 3/8/2017 360 359 Fee
68 2/8/2017 360 358 Fee
69 4/8/2017 360 360 Fee
70 2/8/2017 300 298 Fee
71 4/8/2017 420 420 Fee
72 3/8/2017 360 360 Fee
73 3/8/2017 420 419 Fee
74 2/8/2017 480 478 Fee Yes
3/8/2017 216 215 Fee
75 3/8/2017 216 215 Fee
76 3/8/2017 216 215 Fee
77 3/8/2017 0 0 Fee
78 2/8/2017 360 358 Fee
79 3/8/2017 420 420 Fee
80 1/8/2017 360 357 Fee
81 3/8/2017 360 359 Fee
82 1/8/2017 360 360 Leasehold
83 4/8/2017 360 360 Fee
83.01 Fee
83.02 Fee
84 1/5/2017 360 360 Fee
85 3/8/2017 360 360 Fee
86 3/8/2017 360 360 Fee
87 3/8/2022 360 359 Fee
88 3/8/2017 360 360 Fee
89 4/8/2017 300 300 Fee
90 3/8/2017 360 360 Fee
91 4/8/2017 360 360 Fee
92 1/8/2017 360 360 Fee
93 3/8/2017 360 359 Fee
94 2/8/2012 420 418 Fee
95 2/8/2017 360 358 Fee
96 4/8/2017 380 380 Fee
97 2/8/2017 0 0 Leasehold
98 2/8/2017 360 360 Fee
99 2/8/2017 360 360 Fee
100 2/8/2017 360 360 Fee
101 3/8/2017 360 359 Fee
102 1/1/2017 360 360 Fee
103 3/8/2017 360 360 Fee
104 3/8/2017 360 360 Fee
105 3/8/2017 360 360 Fee
106 1/8/2017 360 360 Fee
107 3/8/2017 240 239 Fee
108 2/8/2017 360 358 Fee
109 2/8/2017 360 358 Fee
110 1/8/2017 0 0 Fee
111 3/8/2017 420 419 Fee
112 2/8/2017 360 358 Fee
113 3/8/2017 420 419 Fee
114 3/8/2017 360 359 Fee
115 3/8/2017 360 359 Fee
116 3/8/2017 360 359 Fee
117 2/8/2017 300 298 Fee
118 3/8/2017 0 0 Fee
119 1/8/2017 420 417 Fee
120 2/8/2017 360 360 Fee
121 2/8/2017 360 358 Fee
122 12/8/2011 360 360 Fee
123 3/8/2017 420 419 Fee
124 3/8/2017 360 359 Fee
125 2/8/2017 360 358 Fee
126 3/8/2017 360 359 Fee and Leasehold
127 2/8/2017 0 0 Fee
128 3/8/2017 360 359 Fee
129 3/8/2017 360 360 Fee
130 2/8/2017 360 360 Fee
131 2/8/2017 360 360 Fee
132 3/8/2017 360 359 Fee
133 2/8/2012 120 118 Fee
134 2/8/2017 360 360 Fee
135 2/8/2017 360 358 Fee
136 2/8/2017 240 238 Fee
137 3/8/2017 360 359 Fee
138 2/8/2017 360 358 Fee
139 3/8/2017 360 359 Fee
140 3/8/2017 360 359 Fee
141 2/8/2017 360 360 Fee
142 3/8/2017 360 359 Fee
143 7/1/2021 360 351 Fee Hybrid
144 3/8/2017 360 360 Fee
145 3/8/2017 360 359 Fee
ARD ENVIRONMENTAL CROSS CROSS
LOAN # STEP UP INSURANCE DEFAULTED COLLATERALIZED
------------------------------------------------------------------------------------------------------------------------
1 No
1.01 No
1.02 No
1.03 No
1.04 No
1.05 No
1.06 No
1.07 No
1.08 No
2 No
2.01 No
2.02 No
3 No
4 No
4.01 No
4.02 No
4.03 No
4.04 No
4.05 No
4.06 No
5 No
6 No
6.01 No
6.02 No
6.03 No
6.04 No
6.05 No
6.06 No
6.07 No
6.08 No
6.09 No
6.1 No
7 No
7.01 No
7.02 Xx
0 Xx
0 Xx
00 Xx
00 Xx
12 No
13 Xx
00 Xx
00 Xx
00 Xx
00 Xx
17.01 No
17.02 No
17.03 No
17.04 Xx
00 Xx
00 Xx
00 Xx
00 Xx
23 No
24 No
25 No
25.01 No
25.02 No
25.03 No
25.04 No
26 No
26.01 No
26.02 No
26.03 No
26.04 No
26.05 No
26.06 No
26.07 No
26.08 No
26.09 No
26.1 No
26.11 No
26.12 Xx
00 Xx
00 Xx
00 Xx
00 Xx
31 No
32 No
33 No
34 No
35 Xx
00 Xx
00 Xx
00 Xx
00 Xx
00 Xx
00 Xx
00 Xx
00 Xx
00 Xx
00 No
46 No
47 No
48 No
49 Xx
00 Xx
00 Xx
00 Xx
00 Xx
53.01 No
53.02 Xx
00 Xx
00 Xx
00 Xx
00 Xx
58 No
59 Xx
00 Xx
00 Xx
00 Xx
00 Xx
00 No
65 No
66 No
67 No
68 Xx
00 Xx
00 Xx
00 Xx
00 Xx
73 No
74 Greater of (i) sum of 10-year Treasury plus 6.08% and (ii) 10.615% No
No Yes Yes
75 No Yes Yes
76 No Yes Yes
77 No
78 No
79 Xx
00 Xx
00 Xx
00 Xx
00 Xx
83.01 No
83.02 Xx
00 Xx
00 Xx
00 Xx
00 Xx
88 Xx
00 Xx
00 Xx
00 Xx
00 Xx
00 Xx
00 Xx
00 Xx
00 Xx
00 Xx
00 No
99 No
100 No
101 No
102 No
103 No
104 No
105 No
106 No
107 No
108 No
109 No
110 No
111 No
112 No
113 No
114 No
115 No
116 No
117 No
118 No
119 No
120 No
121 No
122 No
123 No
124 No
125 No
126 No
127 No
128 No
129 No
130 No
131 No
132 No
133 No
134 No
135 No
136 No
137 Xx
000 Xx
000 Xx
000 Xx
000 Xx
000 Xx
000 Xx
000 Xx
000 Xx
PARTIAL UPFRONT UPFRONT UPFRONT UPFRONT
DEFEASANCE LETTER OF LOCKBOX HOLDBACK ENGINEERING CAPEX TI/LC RE TAX
LOAN # ALLOWED CREDIT TYPE AMOUNT RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($)
-------------------------------------------------------------------------------------------------------------------------------
1 Yes Hard 661,000
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
2 Yes Hard 60,000,000 3,539,035
2.01
2.02
3 Hard
4 Yes Hard 500,000 500,000 56,235
4.01
4.02
4.03
4.04
4.05
4.06
5 Hard
6 Yes 70,125 168,781
6.01
6.02
6.03
6.04
6.05
6.06
6.07
6.08
6.09
6.1
7 Hard 165,000
7.01
7.02
8 782,712
9 Yes Hard
10 Hard 21,250 1,000,000 74,273
11 Hard 243,390 107,636
12 Hard 142,412
13 Hard 312,500 250,000 58,450
14 Hard 500,000 51,323
15
16 Soft 3,000,000 200,000
17 105,900
17.01
17.02
17.03
17.04
18 None at Closing, Springing Hard 285,500 750,000 281,413
19 500,000
20
21 150,000
23 34,063
24
25 Yes Hard 81,134
25.01
25.02
25.03
25.04
26 Yes Hard 8,250 30,500
26.01
26.02
26.03
26.04
26.05
26.06
26.07
26.08
26.09
26.1
26.11
26.12
27 None at Closing, Springing Hard 23,438
28 Soft at Closing, Springing Hard 266,585
29 2,000 600 200,000 39,630
30 Hard 66,287
31 Hard 63,128
32 Hard 54,019
33
34 Soft at Closing, Springing Hard 47,753
35 None at Closing, Springing Hard 121,750 32,152
36 Hard
37 41,283
38
39 25,000 125,000 60,892
40 Hard
41 143,675
42
43 150,000 24,608
44 141,706
45 Hard 27,306 8,275
46
47 None at Closing, Springing Hard
48 Hard 17,738
49 21,625 13,000 96,000
50 Hard
51 Soft 300,000
52 10,606
53 Yes Hard
53.01
53.02
54 90,000 32,660
55
56 1,400,000 49,431
57 Hard
58 Hard 38,773
59 Yes Hard 98,984
60 Hard
61 21,753
62 100,000
63 None at Closing, Springing Hard 47,383
64 Soft at Closing, Springing Hard 3,828
65 53,819
66 100,000
67 Soft at Closing, Springing Hard 31,336
68 Hard 21,865
69 Yes 57,907
70 None at Closing, Springing Hard 28,641 40,951
71 Soft at Closing, Springing Hard 165,000
72 7,279
73 #VALUE! 57,195 50,000 67,229
74 Hard
Yes Various 25,000
75 Yes 12,500
76 Yes Hard 12,500
77 8,788
78
79 13,489
80 14,231
81 4,125 24,585
82 150,000 15,224
83 Yes Hard 22,197
83.01
83.02
84 34,970
85 Hard 48,428
86 25,000
87 34,758
88 166,125 41,370
89 Hard 42,506
90 Hard
91 25,000 18,463
92 12,900 21,792
93
94 25,000 19,981
95 Hard 14,129
96 Hard 150,000
97 Hard
98 Hard 6,250 20,948
99 30,017
100 11,337
101 3,750 4,420
102 Hard
103 31,979
104 Hard 345,000 17,098
105 None at Closing, Springing Hard 30,496
106 17,216 13,600
107 Hard
108 30,000 11,990
109 38,750 44,911
110 100,000 8,190
111 Yes
112 6,595
113 Hard
114 44,000 8,651
115
116 10,718
117 25,436
118 4,212
119 6,003
120 3,642
121 14,782
122 5,000 10,589
123 17,444
124 6,084
125
126 4,500 40,249 150,000 3,100
127 4,130
128 14,353
129 1,400
130 4,431
131 1,096
132 6,690
133 11,407
134 15,525
135 5,076
136 9,256
137 12,250
138 7,061
139 1,238
140 7,126
141 Hard
142 3,272
143 16,053
144 Hard
145 2,134
UPFRONT UPFRONT MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY
INS. OTHER CAPEX CAPEX TI/LC TI/LC RE TAX INS. OTHER
LOAN # RESERVE ($) RESERVE ($) RESERVE ($) RESERVE CAP ($) RESERVE ($) RESERVE CAP ($) RESERVE ($) RESERVE ($) RESERVE ($)
-----------------------------------------------------------------------------------------------------------------------------------
1 17,805,000
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
2 987,198 590,000,000 234,000 3,539,035 493,599
2.01
2.02
3
4 30,912 2,870,041 10,684 56,235 30,912
4.01
4.02
4.03
4.04
4.05
4.06
5
6 20,554 4,101 147,640 16,404 590,559 36,023 10,277
6.01
6.02
6.03
6.04
6.05
6.06
6.07
6.08
6.09
6.1
7 5,800,000
7.01
7.02
8 93,227
9 56,986 36,935 8,689
10 8,912 2,274,714 6,710 100,000 18,568 8,912
11 4,822 1,581,082 3,739 224,313 53,818 4,822
12 9,764 2,045,496 28,482 4,882
13 9,296 32,944 58,450 4,648
14 6,217 3,725,616 2,018 51,323 6,217
15 21,144 210,000 3,000 11,933 6,467
16 51,631
17 23,908 3,983 11,339 4,116
17.01
17.02
17.03
17.04
18 5,581 25,583 5,581
19 3,574 36,055 3,574
20 3,234 3,002 809
21 125,000 49,337 2,930
23 220,047 3,279 6,831 163,942 23,464 2,390
24 500,000
25 6,569 3,514 20,284 3,284
25.01
25.02
25.03
25.04
26 14,000 1,278 10,105 363,762 21,187 2,664
26.01
26.02
26.03
26.04
26.05
26.06
26.07
26.08
26.09
26.1
26.11
26.12
27 24,889 1,663 19,956 7,500 180,000 31,321 1,814
28 1,275 66,647
29 875 600 200,000 13,210 875
30 14,714 2,741 16,572 2,452
31 5,247 177,584 2,404 8,012 288,423 31,564 2,623
32 50,002 14,167 10,804 5,000
33 11,484 79,116 1,022 3,000 180,000 12,143 2,297
34 15,119 4,750 9,551 5,040
35 3,363 751,079 5,507 4,167 225,000 8,038 1,682
36 990 23,755
37 8,967 1,180 10,321 996
38 9,953 1,991 47,790 1,250 30,000 12,910 1,422
39 6,410 25,000 125,000 30,446 3,205
40 1,013 24,300
41 2,060 1,665,000 1,293 1,030
42 18,750 484,756 829 29,837 3,750 225,000 1,705
43 35,817 7,500 12,304 7,959
44 8,242 1,134 3,023 109,000 15,236 1,648
45 3,621 921 1,624 8,275 1,811
46 64,114 1,315,500 904 4,167 100,000 15,957 24,581
47 658 2,468 300,000
48 9,690 11,257 2,217 2,423
49 1,250 370 13,000 2,612 96,000 14,425 1,250
50 4,071 10,453
51 10,416 1,855 22,260 2,083
52 1,604 2,000 48,000 9,442 1,604
53 55,428
53.01
53.02
54 15,408 6,250 6,532 7,704
55 4,701 241 9,700 2,500 60,000 7,593 940
56 8,757 15,000 224 8,064 4,494 1,751
57 55,000 413
58 19,807 2,000,000 7,503 362,000 2,201
59 594,848 1,752 2,264 105,000 19,797
60
61 9,027 10,877
62 5,802 560 1,868 100,000 5,258 829
63 15,794 1,557
64 5,597 415,224 1,350 8,333 500,000 3,828 1,119
65 21,000 4,963 3,500 128,537 5,382 3,500
66 5,787 703 2,871 100,000 3,368 827
67 32,919 3,768 7,834 6,584
68 21,442 6,992 6,247 2,382
69 81,060 423 10,146 9,651
70 19,378 14,320 13,650 6,459
71 3,322 417 20,020 1,757 27,500 554
72 1,620 500,000 413 14,873 3,639 540
73 4,864 325 434 50,000 13,446 1,216
74
7,892 8,187 3,437
75 4,301 4,136 1,842
76 3,591 4,052 1,595
77 2,108 890 21,360 2,929 422
78 78,244
79 2,490 273 728 5,182 1,245
80 1,311 383 4,122 4,744 656
81 2,412 996 8,195 804
82 5,328 33,000 800 28,786 2,083 225,000 5,075 1,332
83 8,182 400,000 1,124 4,167 100,000 4,439 1,636
83.01
83.02
84 17,176 3,000 8,742 2,642
85 2,285 6,613 8,071 2,285
86 8,500 249 2,083 50,000 4,066 382
87 425,000 4,345
88 23,625 4,002 3,000 110,174 4,137 2,625
89 22,256 77,517 712 10,626 7,419
90
91 1,190 2,948 2,527 150,000 4,616 1,190
92 7,264
93 15,120 459 8,031 429
94 12,876 890 2,083 75,000 9,990 1,431
95 624 2,073 4,710
96 2,305 592.00 15,660 2,435 250,000 5,138 576
97 418,837
98 44,381 350,000 1,588 6,983
99 1,327 668 24,038 4,723 663
100 609 111 555 5,669 305
101 4,140 491 1,513 4,420 2,070
102 20,420 161
103 6,279 10,660 2,093
104 2,805 6,052 935
105 4,643 375 9,000 2,083 50,000 6,099 1,548
106 4,533
107 486 361 12,989 1,935 243
108 8,541 366 21,974 855 80,000 3,997 712
109 12,278 625,000 1,128 2,633 14,970 1,364
110 4,386 236 11,346 417 20,000 2,730 548
111 130,000 5,748 100,000
112 5,021 729 25,000 3,298 717
113 1,633 299 10,764 272
114 52,786 210,000 421 1,052 50,000 2,163 4,799
115 4,387 210 1,250 75,000 3,619 1,462
116 3,559 896 3,573 1,186
117 4,239
118 25,715 2,106 793
119 1,030 149 743 25,000 1,201 515
120 177,410 119 850 51,000 911 356
121 342 566 3,696 165
122 2,190 2,647 1,095
123 13,298 750 2,907 1,108
124 5,977 489 2,028 996
125 453 10,001 408
126 3,034 310,000 418 3,100 233
127 5,103 4,130 510
128 3,860 1,868 483
129 1,309 160 9,600 533 31,955 1,400 276
130 3,177 52,500 103 711 25,590 2,215 318
131 669 250,000 98 390 25,000 548 335
132 2,221 1,115 317
133 714 1,426 357
134 1,505 120,000 200 7,200 667 24,000 5,175 502
135 595 150 280 2,538 297
136 5,403 746 17,914 1,851 416
137 270
138 780 10,400 41 206 2,354 390
139 833 217 619 83
140 1,670 616 1,781 418
141
142 2,862 262 654 818 318
143 639 1,605 319
144
145 441 196 11,750 267 88
XXXXX XXXXX
LOAN # TO LATE TO DEFAULT
---------------------------
1 0 0
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
2 0 0
2.01
2.02
3 0 0
4 0 0
4.01
4.02
4.03
4.04
4.05
4.06
5 0 0
6 0 0
6.01
6.02
6.03
6.04
6.05
6.06
6.07
6.08
6.09
6.1
7 0 0
7.01
7.02
8 0 0
9 0 0
10 0 0
11 0 0
12 0 0
13 0 0
14 10 0
15 0 0
16 0 0
17 0 0
17.01
17.02
17.03
17.04
18 5 5
19 0 0
20 0 0
21 0 0
23 0 0
24 0 0
25 0 0
25.01
25.02
25.03
25.04
26 0 0
26.01
26.02
26.03
26.04
26.05
26.06
26.07
26.08
26.09
26.1
26.11
26.12
27 0 0
28 0 0
29 0 0
30 0 0
31 0 0
32 0 0
33 0 0
34 5 5
35 5 5
36 0 0
37 0 0
38 0 0
39 0 0
40 0 0
41 0 0
42 0 0
43 0 0
44 0 0
45 0 0
46 0 0
47 0 0
48 0 0
49 0 0
50 0 0
51 0 0
52 0 0
53 0 0
53.01
53.02
54 0 0
55 0 0
56 0 0
57 0 0
58 0 0
59 0 0
60 0 0
61 0 0
62 0 0
63 0 0
64 0 0
65 0 0
66 0 0
67 0 0
68 0 0
69 0 0
70 0 0
71 0 0
72 0 0
73 0 0
74 0 0
0 0
75 0 0
76 0 0
77 0 0
78 0 0
79 0 0
80 0 0
81 0 0
82 0 0
83 0 0
83.01
83.02
84 3 3
85 0 0
86 0 0
87 0 0
88 0 0
89 0 0
90 0 0
91 0 0
92 0 0
93 0 0
94 0 0
95 0 0
96 0 0
97 0 0
98 0 0
99 0 0
100 0 0
101 0 0
102 5 5
103 0 0
104 0 0
105 0 0
106 0 0
107 0 0
108 0 0
109 0 0
110 0 0
111 0 0
112 0 0
113 0 0
114 0 0
115 0 0
116 0 0
117 0 0
118 0 0
119 0 0
120 0 0
121 0 0
122 0 0
123 5 0
124 0 0
125 0 0
126 0 0
127 0 0
128 0 0
129 0 0
130 10 0
131 0 0
132 0 0
133 0 0
134 10 0
135 0 0
136 0 0
137 0 0
138 0 0
139 0 0
140 0 0
141 0 0
142 0 0
143 10 30
144 0 0
145 0 0
SCHEDULE II
NONE.
II-1
SCHEDULE III
[RESERVED]
III-1
SCHEDULE IV
[RESERVED]
IV-1
SCHEDULE V
SUB-SERVICERS AS TO WHICH SUB-SERVICING AGREEMENTS ARE IN EFFECT ON THE CLOSING
DATE
1. Northmarq Capital, Inc.
2. Laureate Capital LLC
3. Capmark Finance Inc.
4. Keycorp Real Estate Capital Markets, Inc.
5. Red Mortgage Capital, Inc.
6. Holiday Xxxxxxxx Xxxxxx X.X.
V-1
SCHEDULE VI
LIST OF MORTGAGE LOANS REQUIRING
OPERATIONS AND MAINTENANCE PLANS
--------------------------------------------------------------------------------
MORTGAGE LOAN SELLER LOAN NAME
--------------------------------------------------------------------------------
MLML 4097 Jericho East
MLML 5200 West Century
MLML FiServ/Trinity Health Building
MLML Fort Xxxxx Neurological Center
MLML 0000 Xxxxxxxxxx Xxxx
MLML 0000 Xxxxxxxxxx Xxxx
MLML Xxxxx Xxxxxx Village and Stuyvesant Town
MLML 208-212 South Xxxxxxx Drive
MLML Kemps Corner
MLML Mill Dam
MLML 6101 Yellowstone Road
MLML Spanish Point Apartments
MLML Xxxxxx Parkway
MLML Springs Plaza
MLML Oak Grove
MLML All-Space Huntington Beach
MLML All-Space Costa Mesa
MLML All-Space Garden Grove
Countrywide 331 N St. NE
Countrywide Xxxx Blackstone Center
Countrywide Pioneer Center
Countrywide 8th and Washington Retail
Countrywide Cedar Village Retail
Countrywide International Blvd. Storage
Countrywide Rancho Simi Plaza
Countrywide Sierra View MHC
Countrywide 000 00xx Xxxxxx - XX Office
Xxxxxxxxxxx 0xx Xxxxxx Xxxxxxxxx - Xxxxxxxxxx
Countrywide Blackpoint Puerto Rico Retail
Countrywide Bayamon Oeste
Countrywide Dorado Del Mar
Countrywide Guaynabo - Los Jardines
Countrywide Toa Baja - Los Dominicos
Countrywide Caguas Community
Countrywide Doubletree Nashville
Countrywide Crossings at Canton
Countrywide Emerald Place
Countrywide Summercrest Apts
Countrywide Xxxxxxx Manor Apartments
Countrywide Town Center Oaks Shopping Center
Countrywide Starview Mobile Home Park
--------------------------------------------------------------------------------
VI-1
--------------------------------------------------------------------------------
MORTGAGE LOAN SELLER LOAN NAME
--------------------------------------------------------------------------------
Countrywide Bellevue Land Apartments
Countrywide Office Depot Plaza
Countrywide Cannery Shopping Center
Countrywide Vesper Ave Apartments
--------------------------------------------------------------------------------
VI-2
EXHIBIT A-1
FORM OF CLASS X-0, X-0, X-0, X-0 AND A-1A CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6
CLASS [A-1] [A-2][A-3] [A-4] AND [A-1A]
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2007-6
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 commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Pass-Through Rate: [___% per annum] Initial Certificate Principal Balance of this
[Variable] Certificate as of the Closing Date:
$_____________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [A-1]
April 1, 2007 [A-2] [A-3] [A-4] [A-1A] Certificates as of
the Closing Date:
$_____________
Closing Date: April 12, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or
First Distribution Date: May 14, 2007 before such date (the "Initial Pool Balance"):
$2,145,926,360
Master Servicers: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association and Xxxxx Fargo Bank, National
Association.
Special Servicer: LNR Partners, Inc. CUSIP No.: ________
Certificate No. [A-1] [A-2] [A-3] [A-4] [A-1A] ISIN No.:
A-1-1
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, IF THE PURCHASE OR HOLDING OF THIS CERTIFICATE OR SUCH INTEREST
HEREIN WOULD RESULT IN A VIOLATION OF SECTION 406 OR 407 OF ERISA OR SECTION
4975 OF THE CODE OR WOULD RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER
SECTION 4975 OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., WACHOVIA BANK, NATIONAL ASSOCIATION, XXXXX FARGO
BANK, NATIONAL ASSOCIATION, LNR PARTNERS, INC., LASALLE BANK NATIONAL
ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [CEDE & CO.][_________] is the registered owner
of the Percentage Interest evidenced by this Certificate (obtained by dividing
the principal balance of this Certificate (its "Certificate Principal Balance")
as of the Closing Date by the aggregate principal balance of all the
Certificates of the same Class as this Certificate (their "Class Principal
Balance") as of the Closing Date) in that certain beneficial ownership interest
in the Trust evidenced by all the Certificates of the same Class as this
Certificate. The Trust was created and the Certificates were issued pursuant to
a Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
between Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor",
which term includes any successor entity under
A-1-2
the Agreement), Wachovia Bank, National Association and Xxxxx Fargo Bank,
National Association, as master servicers (each, a "Master Servicer" and,
collectively, the "Master Servicers", which term includes any successor entity
under the Agreement), LNR Partners, Inc., as special servicer (the "Special
Servicer", which term includes any successor entity under the Agreement), and
LaSalle Bank National Association, as trustee (the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. In the event of any conflict between any provision of this
Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the eighth calendar day of a given month
or, if such eighth day is not a Business Day, then on the fifth Business Day
following such eighth calendar day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions no less than five (5) Business Days prior to (or, in the
case of the first such distribution, no later than) the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts, the Distribution Account
and, if
A-1-3
established, the Pool REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[FOR BOOK ENTRY CERTIFICATES:] Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicers, the Special Servicer, the
Trustee, the Certificate Registrar and any agent of any of them may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions pursuant to
the Agreement and may treat the person in whose name this Certificate is
registered as of the relevant date of determination as owner of this Certificate
for all other purposes whatsoever, and none of the Depositor, the Master
Servicers, 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 to occur 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
either Master Servicer, the Special Servicer or the Plurality Subordinate
A-1-4
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties (or, if specified in the Agreement with
respect to any REO Property, the Trust's interests therein) remaining in the
Trust and (iii) the exchange by the holder of certain remaining outstanding
Classes of Certificates (as described below) for all the Mortgage Loans and REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) in the Trust. The Agreement permits, but does not
require, either Master Servicer, the Special Servicer or the Plurality
Subordinate Certificateholder to purchase from the Trust all Mortgage Loans and
any REO Properties (or, if specified in the Agreement with respect to any REO
Property, the Trust's interests therein) remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than approximately 1.0% of the Initial
Pool Balance. In addition, following the date on which the total principal
balance of the Class X-0, Xxxxx X-0, Class A-2FL, Class X-0, Xxxxx X-0, Class
A-1A, Class AM, Class AJ, Class AJ-FL, Class B, Class C and Class D Certificates
is reduced to zero, any single Holder of each outstanding Class of Certificates
(other than the Class Y, Class Z, Class R-I and Class R-II Certificates) may,
subject to such other conditions as may be set forth in the Agreement, exchange
those Certificates for all Mortgage Loans and REO Properties (or, if specified
in the Agreement with respect to any REO Property, the Trust's interests
therein) remaining in the Trust Fund at the time of the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicers, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the Master
Servicers, the Special Servicer, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights. 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 each of REMIC I and REMIC II as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-1-5
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1] [A-2] [A-3] [A-4] [A-1A] Certificates
referred to in the within-mentioned Agreement.
Dated: April 12, 2007
LASALLE BANK NATIONAL ASSOCIATION
as Authenticating Agent
By:_____________________________________
Authorized Officer
A-1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ___________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address: _________________
____________________________________________________________________
____________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ______________________
for the account of ________________________________________________.
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices
should be mailed to ________________________________________________
___________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its
agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS X CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6
CLASS X COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-6
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 commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Pass-Through Rate: Variable Initial Certificate Notional Amount of this
Certificate as of the Closing Date:
$ ___________
Date of Pooling and Servicing Agreement: Original Class X Notional Amount of all the
April 1, 2007 Class X Certificates as of the Closing Date:
$2,145,926,359
Closing Date: April 12, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or
First Distribution Date: May 14, 2007 before such date (the "Initial Pool Balance"):
$2,145,926,360
Master Servicers: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association and Xxxxx Fargo Bank, National
Association.
Special Servicer: LNR Partners, Inc CUSIP No.:
Certificate No. X - ISIN No.:
A-2-1
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., WACHOVIA BANK, NATIONAL ASSOCIATION, XXXXX FARGO
BANK, NATIONAL ASSOCIATION, LNR PARTNERS, INC., LASALLE BANK NATIONAL
ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL
BALANCE AND DOES NOT ENTITLE THE HOLDER
A-2-2
HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF WILL BE ENTITLED TO
DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [CEDE & CO.][_________] is the registered owner
of the Percentage Interest evidenced by this Certificate (obtained by dividing
the notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Closing Date by the aggregate notional principal amount of
all the Certificates of the same Class as this Certificate (their "Class
Notional Amount") as of the Closing Date) in that certain beneficial ownership
interest in the Trust evidenced by all the Certificates of the same Class as
this Certificate. The Trust was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), between Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (the
"Depositor", which term includes any successor entity under the Agreement),
Wachovia Bank, National Association and Xxxxx Fargo Bank, National Association,
as master servicers (each, a "Master Servicer" and collectively, the "Master
Servicers", which term includes any successor entity under the Agreement), LNR
Partners, Inc., as special servicer (the "Special Servicer", which term includes
any successor entity under the Agreement), and LaSalle Bank National
Association, as trustee (the "Trustee", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound. In
the event of any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the eighth calendar day of a given month
or, if such eighth day is not a Business Day, then on the fifth Business Day
following such eighth calendar day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions no less than five (5) Business Days prior to (or, in the
case of the first such distribution, no later than) the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
A-2-3
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts, the Distribution Account
and, if established, the Pool REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with the initial issuance of the Certificates or a
Transfer of this Certificate by the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated or any of their respective Affiliates or, if this Certificate
is a Global Certificate, a Transfer of this Certificate to a successor
Depository or to the applicable Certificate Owner in accordance with Section
5.03 of the Agreement), then the Certificate Registrar shall refuse to register
such Transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
Transfer substantially in the form attached as Exhibit E-1 to the Agreement and
a certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit E-2A to the Agreement or as Exhibit E-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, either Master Servicer, the Special
Servicer, 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. If any Transferee of this Certificate does not, in
connection with the subject Transfer, deliver to the Certificate Registrar one
of the certifications described in clause (i) of the preceding sentence or the
Opinion of Counsel described in clause (ii) of the preceding sentence, then such
Transferee shall be deemed to have represented and warranted that all the
certifications set forth in either Exhibit E-2A or Exhibit E-2B attached to the
Agreement are, with respect to the subject Transfer, true and correct.
A-2-4
If this Certificate constitutes a Rule 144A Global Certificate and a
Transfer of any interest herein is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a Transfer of any interest herein by the Depositor, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or any of their respective
Affiliates), then the Certificate Owner desiring to effect such Transfer shall
be required to obtain either: (i) a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached as Exhibit E-2C to the
Agreement, or (ii) an Opinion of Counsel to the effect that such Transferee is a
Qualified Institutional Buyer and such Transfer may be made without registration
under the Securities Act. If this Certificate constitutes a Rule 144A Global
Certificate and any Transferee of an interest herein does not, in connection
with the subject Transfer, deliver to the Transferor the Opinion of Counsel or
the certification described in the preceding sentence, then such Transferee
shall be deemed to have represented and warranted that all the certifications
set forth in Exhibit E-2C attached to the Agreement are, with respect to the
subject Transfer, true and correct. No beneficial interest in the Rule 144A
Global Certificate for any Class of Book-Entry Non-Registered Certificates may
be held by any Person that is not a Qualified Institutional Buyer.
Notwithstanding the preceding paragraph, any interest in the Rule
144A Global Certificate for a Class of Book-Entry Non-Registered Certificates
may be transferred to any Non-United States Securities Person who takes delivery
in the form of a beneficial interest in the Regulation S Global Certificate for
such Class of Certificates, provided that the Certificate Owner desiring to
effect such Transfer (i) complies with the requirements for Transfers of
interests in such Regulation S Global Certificate set forth in the following
paragraph and (ii) delivers or causes to be delivered to the Certificate
Registrar and the Trustee (A) a certificate from such Certificate Owner
confirming its ownership of the beneficial interests in the subject Class of
Book-Entry Non-Registered Certificates to be transferred, (B) a copy of the
certificate to be obtained by such Certificate Owner from its prospective
Transferee in accordance with the second sentence of the following paragraph and
(C) such written orders and instructions as are required under the applicable
procedures of the Depository, Clearstream and Euroclear to direct the Trustee,
as transfer agent for the Depository, to approve the debit of the account of a
Depository Participant by a denomination of interests in such Rule 144A Global
Certificate, and approve the credit of the account of a Depository Participant
by a denomination of interests in such Regulation S Global Certificate, that is
equal to the denomination of beneficial interests in the subject Class of
Book-Entry Non-Registered Certificates to be transferred. Upon delivery to the
Certificate Registrar and the Trustee of such certifications and such orders and
instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the Rule 144A
Global Certificate in respect of the subject Class of Book-Entry Non-Registered
Certificates, and increase the denomination of the Regulation S Global
Certificate for such Class of Certificates, by the denomination of the
beneficial interest in such Class of Certificates specified in such orders and
instructions.
No beneficial interest in the Regulation S Global Certificate for
any Class of Book-Entry Non-Registered Certificates may be held by any Person
that is a United States Securities Person. Any Certificate Owner desiring to
effect any Transfer of a beneficial interest in the Regulation S Global
Certificate for any Class of Book-Entry Non-Registered Certificates shall be
required to obtain from such Certificate Owner's prospective Transferee a
certificate substantially in the form set forth in Exhibit E-2D to the Agreement
to the effect that such Transferee is not a United States Securities Person. If
any Transferee of an interest in the Regulation S Global Certificate for any
Class of Book-Entry Non-Registered Certificates does not, in connection with the
subject Transfer, deliver to the Transferor the certification described in the
preceding sentence, then such Transferee shall be deemed to
A-2-5
have represented and warranted that all the certifications set forth in Exhibit
E-2D to the Agreement are, with respect to the subject Transfer, true and
correct.
Notwithstanding the preceding paragraph, any interest in the
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred to any Qualified Institutional Buyer that takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates, provided that the Certificate Owner
desiring to effect such transfer (i) complies with the requirements for
Transfers of interests in such Rule 144A Global Certificate set forth in the
third preceding paragraph and (ii) delivers or causes to be delivered to the
Certificate Registrar and the Trustee (A) a certificate from such Certificate
Owner confirming its ownership of the beneficial interests in the subject Class
of Book-Entry Non-Registered Certificates to be transferred, (B) a copy of the
certificate or Opinion of Counsel to be obtained by such Certificate Owner from
its prospective Transferee in accordance with the first sentence of the third
preceding paragraph and (C) such written orders and instructions as are required
under the applicable procedures of the Depository, Clearstream and Euroclear to
direct the Trustee to debit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, and credit
the account of a Depository Participant by a denomination of interests in such
Rule 144A Global Certificate, that is equal to the denomination of beneficial
interests in the subject Class of Book-Entry Non-Registered Certificates to be
transferred. Upon delivery to the Certificate Registrar and the Trustee of such
certification(s) and/or Opinion of Counsel and such orders and instructions, the
Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the Regulation S Global Certificate
in respect of the subject Class of Book-Entry Non-Registered Certificates, and
increase the denomination of the Rule 144A Global Certificate for such Class of
Certificates, by the denomination of the beneficial interest in such Class of
Certificates specified in such orders and instructions.
Also notwithstanding the foregoing, any interest in a Global
Certificate with respect to any Class of Book-Entry Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
that takes delivery in the form of a Definitive Certificate of the same Class as
such Global Certificate upon delivery to the Certificate Registrar and the
Trustee of (i) such certifications and/or opinions as are contemplated by the
fourth preceding paragraph and (ii) such written orders and instructions as are
required under the applicable procedures of the Depository to direct the Trustee
to debit the account of a Depository Participant by the denomination of the
transferred interests in such Global Certificate. Upon delivery to the
Certificate Registrar and the Trustee of the certifications and/or opinions
contemplated by the fourth preceding paragraph, the Trustee, subject to and in
accordance with the applicable procedures of the Depository, shall reduce the
denomination of the subject Global Certificate by the denomination of the
transferred interests in such Global Certificate, and shall cause a Definitive
Certificate of the same Class as such Global Certificate, and in a denomination
equal to the reduction in the denomination of such Global Certificate, to be
executed, authenticated and delivered in accordance with the Agreement to the
applicable Transferee.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Countrywide Securities Corporation, the Trustee, any Fiscal Agent, the Master
Servicers, the Special
A-2-6
Servicer, the Certificate Registrar and their respective Affiliates against any
liability that may result if such Transfer is not exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code or any other federal, state, local or foreign law
("Similar Law") that is substantially similar to Section 405 or 407 of ERISA or
Section 4975 of the Code (each, a "Plan"), or (B) any Person who is directly or
indirectly purchasing this Certificate or such interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of this Certificate or such interest herein by the prospective
Transferee would result in a non-exempt violation of Section 406 or 407 of ERISA
or Section 4975 of the Code or Similar Law or would result in the imposition of
an excise tax under Section 4975 of the Code. Except in connection with the
initial issuance of the Certificates or any Transfer of this Certificate or any
interest herein by the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated or any of their respective Affiliates or, if this Certificate
constitutes a Global Certificate, any Transfer of this Certificate to a
successor Depository or to the applicable Certificate Owner in accordance with
Section 5.03 of the Agreement, the Certificate Registrar shall refuse to
register the Transfer of this Certificate unless it has received from the
prospective Transferee, and, if this Certificate constitutes a Global
Certificate, any Certificate Owner transferring an interest herein shall be
required to obtain from its prospective Transferee, one of the following: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate or such interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) a certification to the effect that the purchase and holding of
this Certificate or such interest herein by such prospective Transferee is
exempt from the prohibited transaction provisions of Sections 406 and 407 of
ERISA and the excise taxes imposed on such prohibited transactions by Section
4975 of the Code, by reason of Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) if this Certificate is rated in one of the four
highest generic rating categories by either of Xxxxx'x or Fitch, and this
Certificate or an interest herein is being acquired by or on behalf of a Plan in
reliance on Prohibited Transaction Exemption 90-29 or 2000-55, a certification
to the effect that such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not sponsored (within
the meaning of Section 3(16)(B) of ERISA) by the Trustee, the Depositor, any
Mortgage Loan Seller, either Master Servicer, the Special Servicer, any Fiscal
Agent, 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, and (Z) agrees that it will obtain from each
of its Transferees that are Plans a written representation that such Transferee,
if a Plan, satisfies the requirements of the immediately preceding clauses (X)
and (Y), together with a written agreement that such Transferee will obtain from
each of its Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately preceding clauses
(X) and (Y); or (iv) a certification of facts and an Opinion of Counsel which
otherwise establish to the reasonable satisfaction of the Trustee or such
Certificate Owner, as the case may be, that such Transfer will not result in a
violation of Section 406 or 407 of ERISA or Section 4975 of the Code or result
in the imposition of an excise tax under Section 4975 of the Code. If any
Transferee of this Certificate or any interest herein does not, in connection
with the subject Transfer, deliver to the Certificate Registrar (if this
Certificate constitutes a Definitive Certificate) or the Transferor (if this
Certificate constitutes a Global Certificate) a certification and/or Opinion of
Counsel as required by the preceding sentence, then such Transferee shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly
A-2-7
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 and 407 of ERISA and
the excise taxes imposed on such prohibited transactions by Section 4975 of the
Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[FOR BOOK ENTRY CERTIFICATES:] Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicers, the Special Servicer, the
Trustee, the Certificate Registrar and any agent of any of them may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions pursuant to
the Agreement and may treat the person in whose name this Certificate is
registered as of the relevant date of determination as owner of this Certificate
for all other purposes whatsoever, and none of the Depositor, the Master
Servicers, 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 to occur 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
either Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties (or, if specified in the Agreement with
respect to any REO Property, the Trust's interests therein) remaining in the
Trust and (iii) the exchange by the holder of certain remaining outstanding
Classes of Certificates (as described below) for all the Mortgage Loans and REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) in the Trust. The Agreement permits, but does not
require, either Master Servicer, the Special Servicer or the Plurality
Subordinate Certificateholder to purchase from the Trust all Mortgage Loans and
any REO Properties (or, if specified in the Agreement with respect to any REO
Property, the Trust's interests therein) remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than approximately 1.0% of the Initial
Pool Balance. In addition, following the date on which the total principal
balance of the Class X-0, Xxxxx X-0, Class A-2FL, Class X-0, Xxxxx X-0, Class
A-1A, Class AM, Class AJ, Class AJ-FL, Class B, Class C and Class D
A-2-8
Certificates is reduced to zero, any single Holder of each outstanding Class of
Certificates (other than the Class Y, Class Z, Class R-I and Class R-II
Certificates) may, subject to such other conditions as may be set forth in the
Agreement, exchange those Certificates for all Mortgage Loans and REO Properties
(or, if specified in the Agreement with respect to any REO Property, the Trust's
interests therein) remaining in the Trust Fund at the time of the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicers, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the Master
Servicers, the Special Servicer, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights. 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 each of REMIC I and REMIC II as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-2-9
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: ____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the
within-mentioned Agreement.
Dated: April 12, 2007
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By: ____________________________________
Authorized Officer
A-2-10
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto __________________________________________________
___________________________________________________________________
___________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address: _________________
____________________________________________________________________
____________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ______________________
for the account of ________________________________________________.
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices
should be mailed to ________________________________________________
___________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its
agent.
X-0-00
XXXXXXX X-0
FORM OF CLASS AM, AJ, B, C AND D CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6
CLASS [AM] [AJ] [B] [C] AND [D] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2007-6
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 commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Pass-Through Rate: [___% per annum] [Variable] Initial Certificate Principal Balance of this
Certificate as of the Closing Date:
$_____________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [AM]
April 1, 2007 [AJ] [B] [C] [D] Certificates as of the
Closing Date: $____________
Closing Date: April 12, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or
First Distribution Date: May 14, 2007 before such date (the "Initial Pool Balance"):
$2,145,926,360
Master Servicers: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association and Xxxxx Fargo Bank, National
Association
Special Servicer: LNR Partners, Inc. CUSIP No.: ____________
Certificate No. [AM] [AJ] [B] [C] [D] -___ ISIN No:
A-3-1
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, IF THE PURCHASE OR HOLDING OF THIS CERTIFICATE OR SUCH INTEREST
HEREIN WOULD RESULT IN A VIOLATION OF SECTION 406 OR 407 OF ERISA OR SECTION
4975 OF THE CODE OR WOULD RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER
SECTION 4975 OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., WACHOVIA BANK, NATIONAL ASSOCIATION, XXXXX FARGO
BANK, NATIONAL ASSOCIATION, LNR PARTNERS, INC., LASALLE BANK NATIONAL
ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
A-3-2
This certifies that [CEDE & CO.][_________] is the registered owner
of the Percentage Interest evidenced by this Certificate (obtained by dividing
the principal balance of this Certificate (its "Certificate Principal Balance")
as of the Closing Date by the aggregate principal balance of all the
Certificates of the same Class as this Certificate (their "Class Principal
Balance") as of the Closing Date) in that certain beneficial ownership interest
in the Trust evidenced by all the Certificates of the same Class as this
Certificate. The Trust was created and the Certificates were issued pursuant to
a Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
between Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor",
which term includes any successor entity under the Agreement), Wachovia Bank,
National Association and Xxxxx Fargo Bank, National Association, as master
servicers (each, a "Master Servicer" and collectively, the "Master Servicers",
which term includes any successor entity under the Agreement), LNR Partners,
Inc., as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement), and LaSalle Bank National Association, as
trustee (the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the eighth calendar day of a given month
or, if such eighth day is not a Business Day, then on the fifth Business Day
following such eighth calendar day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions no less than five (5) Business Days prior to (or, in the
case of the first such distribution, no later than) the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of
A-3-3
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 Collection Accounts, the Distribution Account
and, if established, the Pool REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[FOR BOOK ENTRY CERTIFICATES:] Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicers, the Special Servicer, the
Trustee, the Certificate Registrar and any agent of any of them may treat the
Person in whose name this Certificate is registered as of the related Record
Date as
A-3-4
the owner hereof for the purpose of receiving distributions pursuant to the
Agreement and may treat the person in whose name this Certificate is registered
as of the relevant date of determination as owner of this Certificate for all
other purposes whatsoever, and none of the Depositor, the Master Servicers, 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 to occur 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
either Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties (or, if specified in the Agreement with
respect to any REO Property, the Trust's interests therein) remaining in the
Trust and (iii) the exchange by the holder of certain remaining outstanding
Classes of Certificates (as described below) for all the Mortgage Loans and REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) in the Trust. The Agreement permits, but does not
require, either Master Servicer, the Special Servicer or the Plurality
Subordinate Certificateholder to purchase from the Trust all Mortgage Loans and
any REO Properties (or, if specified in the Agreement with respect to any REO
Property, the Trust's interests therein) remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than approximately 1.0% of the Initial
Pool Balance. In addition, following the date on which the total principal
balance of the Class X-0, Xxxxx X-0, Class A-2FL, Class X-0, Xxxxx X-0, Class
A-1A, Class AM, Class AJ, Class AJ-FL, Class B, Class C and Class D Certificates
is reduced to zero, any single Holder of each outstanding Class of Certificates
(other than the Class Y, Class Z, Class R-I and Class R-II Certificates) may,
subject to such other conditions as may be set forth in the Agreement, exchange
those Certificates for all Mortgage Loans and REO Properties (or, if specified
in the Agreement with respect to any REO Property, the Trust's interests
therein) remaining in the Trust Fund at the time of the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicers, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the Master
Servicers, the Special Servicer, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights. 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 each of REMIC I and REMIC II as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
A-3-5
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-3-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: ____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [AM] [AJ] [B] [C] [D] Certificates referred
to in the within-mentioned Agreement.
Dated: April 12, 2007
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By: ____________________________________
Authorized Officer
A-3-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ___________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address: _________________
____________________________________________________________________
____________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ______________________
for the account of ________________________________________________.
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices
should be mailed to ________________________________________________
____________________________________________________________________
___________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its
agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS A-2FL, AJ-FL, E, F, G AND H CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6
CLASS [A-2FL] [AJ-FL] [E] [F] [G] [H] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2007-6
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 commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Pass-Through Rate: [___% per annum] [Variable] Initial Certificate Principal Balance of this
[Floating] Certificate as of the Closing Date:
$_______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class
April 1, 2007 [A-2FL] [AJ-FL] [E] [F] [G] [H] Certificates
as of the Closing Date:
$_______________
Closing Date: April 12 2007 Aggregate unpaid principal balance of the
Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or
First Distribution Date: May 14, 2007 before such date (the "Initial Pool Balance"):
$2,145,926,360
Master Servicers: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association and Xxxxx Fargo Bank, National
Association
Special Servicer: LNR Partners, Inc. CUSIP No.: _______
Certificate No. [A-2FL] [AJ-FL] [E] [F] [G]
[H]-___ ISIN No.:
A-4-1
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., WACHOVIA BANK, NATIONAL ASSOCIATION, XXXXX FARGO
BANK, NATIONAL ASSOCIATION, LNR PARTNERS, INC., LASALLE BANK NATIONAL
ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A
A-4-2
"REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE CODE.
[FOR CLASS A-2FL AND CLASS AJ-FL CERTIFICATES:] SOLELY FOR FEDERAL INCOME TAX
PURPOSES, THIS CERTIFICATE ALSO REPRESENTS AN UNDIVIDED BENEFICIAL OWNERSHIP
INTEREST IN A GRANTOR TRUST THE ASSETS OF WHICH CONSIST PRIMARILY OF AN INTEREST
RATE SWAP AGREEMENT. THE PASS THROUGH RATE ON THIS CERTIFICATE IS BASED UPON
LIBOR AND THEREFORE IS SUBJECT TO CHANGE OVER TIME BASED UPON CHANGES IN THE
RATE OF LIBOR. IN ADDITION, THE PASS-THROUGH RATE ON THIS CLASS [A-2FL] [AJ-FL]
CERTIFICATE MAY CONVERT TO A DIFFERENT PER ANNUM RATE UNDER CERTAIN
CIRCUMSTANCES SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [CEDE & CO.][_________] is the registered owner
of the Percentage Interest evidenced by this Certificate (obtained by dividing
the principal balance of this Certificate (its "Certificate Principal Balance")
as of the Closing Date by the aggregate principal balance of all the
Certificates of the same Class as this Certificate (their "Class Principal
Balance") as of the Closing Date) in that certain beneficial ownership interest
in the Trust evidenced by all the Certificates of the same Class as this
Certificate. The Trust was created and the Certificates were issued pursuant to
a Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
between Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor",
which term includes any successor entity under the Agreement), Wachovia Bank,
National Association and Xxxxx Fargo Bank, National Association, as master
servicers (each, a "Master Servicer" and collectively, the "Master Servicers",
which term includes any successor entity under the Agreement), LNR Partners,
Inc., as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement), and LaSalle Bank National Association, as
trustee (the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the eighth calendar day of a given month
or, if such eighth day is not a Business Day, then on the fifth Business Day
following such eighth calendar day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the
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Trustee with written wiring instructions no less than five (5) Business Days
prior to (or, in the case of the first such distribution, no later than) the
Record Date for such distribution (which wiring instructions may be in the form
of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice. Also notwithstanding the foregoing, any distribution that may be made
with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts, the Distribution Account
and, if established, the Pool REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
A-4-4
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with the initial issuance of the Certificates or a
Transfer of this Certificate by the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated or any of their respective Affiliates or, if this Certificate
is a Global Certificate, a Transfer of this Certificate to a successor
Depository or to the applicable Certificate Owner in accordance with Section
5.03 of the Agreement), then the Certificate Registrar shall refuse to register
such Transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
Transfer substantially in the form attached as Exhibit E-1 to the Agreement and
a certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit E-2A to the Agreement or as Exhibit E-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, either Master Servicer, the Special
Servicer, 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. If any Transferee of this Certificate does not, in
connection with the subject Transfer, deliver to the Certificate Registrar one
of the certifications described in clause (i) of the preceding sentence or the
Opinion of Counsel described in clause (ii) of the preceding sentence, then such
Transferee shall be deemed to have represented and warranted that all the
certifications set forth in either Exhibit E-2A or Exhibit E-2B attached to the
Agreement are, with respect to the subject Transfer, true and correct.
If this Certificate constitutes a Rule 144A Global Certificate and a
Transfer of any interest herein is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a Transfer of any interest herein by the Depositor, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, or any of their respective
Affiliates), then the Certificate Owner desiring to effect such Transfer shall
be required to obtain either: (i) a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached as Exhibit E-2C to the
Agreement, or (ii) an Opinion of Counsel to the effect that such Transferee is a
Qualified Institutional Buyer and such Transfer may be made without registration
under the Securities Act. If this Certificate constitutes a Rule 144A Global
Certificate and any Transferee of an interest herein does not, in connection
with the subject Transfer, deliver to the Transferor the Opinion of Counsel or
the certification described in the preceding sentence, then such Transferee
shall be deemed to have represented and warranted that all the certifications
set forth in Exhibit E-2C attached to the Agreement are, with respect to the
subject Transfer, true and correct. No beneficial interest in the Rule 144A
Global Certificate for any Class of Book-Entry Non-Registered Certificates may
be held by any Person that is not a Qualified Institutional Buyer.
Notwithstanding the preceding paragraph, any interest in the Rule
144A Global Certificate for a Class of Book-Entry Non-Registered Certificates
may be transferred to any Non-United States Securities Person who takes delivery
in the form of a beneficial interest in the Regulation S Global Certificate for
such Class of Certificates, provided that the Certificate Owner desiring to
effect such Transfer (i) complies with the requirements for Transfers of
interests in such Regulation S Global Certificate set forth in the following
paragraph and (ii) delivers or causes to be delivered to the Certificate
Registrar and the Trustee (A) a certificate from such Certificate Owner
confirming its ownership of the beneficial interests in the subject Class of
Book-Entry Non-Registered Certificates to be transferred, (B) a copy of the
certificate to be obtained by such Certificate Owner from its prospective
Transferee in accordance with the second sentence of the following paragraph and
(C) such written
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orders and instructions as are required under the applicable procedures of the
Depository, Clearstream and Euroclear to direct the Trustee, as transfer agent
for the Depository, to approve the debit of the account of a Depository
Participant by a denomination of interests in such Rule 144A Global Certificate,
and approve the credit of the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, that is equal
to the denomination of beneficial interests in the subject Class of Book-Entry
Non-Registered Certificates to be transferred. Upon delivery to the Certificate
Registrar and the Trustee of such certifications and such orders and
instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the Rule 144A
Global Certificate in respect of the subject Class of Book-Entry Non-Registered
Certificates, and increase the denomination of the Regulation S Global
Certificate for such Class of Certificates, by the denomination of the
beneficial interest in such Class of Certificates specified in such orders and
instructions.
No beneficial interest in the Regulation S Global Certificate for
any Class of Book-Entry Non-Registered Certificates may be held by any Person
that is a United States Securities Person. Any Certificate Owner desiring to
effect any Transfer of a beneficial interest in the Regulation S Global
Certificate for any Class of Book-Entry Non-Registered Certificates shall be
required to obtain from such Certificate Owner's prospective Transferee a
certificate substantially in the form set forth in Exhibit E-2D to the Agreement
to the effect that such Transferee is not a United States Securities Person. If
any Transferee of an interest in the Regulation S Global Certificate for any
Class of Book-Entry Non-Registered Certificates does not, in connection with the
subject Transfer, deliver to the Transferor the certification described in the
preceding sentence, then such Transferee shall be deemed to have represented and
warranted that all the certifications set forth in Exhibit E-2D to the Agreement
are, with respect to the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred to any Qualified Institutional Buyer that takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates, provided that the Certificate Owner
desiring to effect such transfer (i) complies with the requirements for
Transfers of interests in such Rule 144A Global Certificate set forth in the
third preceding paragraph and (ii) delivers or causes to be delivered to the
Certificate Registrar and the Trustee (A) a certificate from such Certificate
Owner confirming its ownership of the beneficial interests in the subject Class
of Book-Entry Non-Registered Certificates to be transferred, (B) a copy of the
certificate or Opinion of Counsel to be obtained by such Certificate Owner from
its prospective Transferee in accordance with the first sentence of the third
preceding paragraph and (C) such written orders and instructions as are required
under the applicable procedures of the Depository, Clearstream and Euroclear to
direct the Trustee to debit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, and credit
the account of a Depository Participant by a denomination of interests in such
Rule 144A Global Certificate, that is equal to the denomination of beneficial
interests in the subject Class of Book-Entry Non-Registered Certificates to be
transferred. Upon delivery to the Certificate Registrar and the Trustee of such
certification(s) and/or Opinion of Counsel and such orders and instructions, the
Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the Regulation S Global Certificate
in respect of the subject Class of Book-Entry Non-Registered Certificates, and
increase the denomination of the Rule 144A Global Certificate for such Class of
Certificates, by the denomination of the beneficial interest in such Class of
Certificates specified in such orders and instructions.
A-4-6
Also notwithstanding the foregoing, any interest in a Global
Certificate with respect to any Class of Book-Entry Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
that takes delivery in the form of a Definitive Certificate of the same Class as
such Global Certificate upon delivery to the Certificate Registrar and the
Trustee of (i) such certifications and/or opinions as are contemplated by the
fourth preceding paragraph and (ii) such written orders and instructions as are
required under the applicable procedures of the Depository to direct the Trustee
to debit the account of a Depository Participant by the denomination of the
transferred interests in such Global Certificate. Upon delivery to the
Certificate Registrar and the Trustee of the certifications and/or opinions
contemplated by the fourth preceding paragraph, the Trustee, subject to and in
accordance with the applicable procedures of the Depository, shall reduce the
denomination of the subject Global Certificate by the denomination of the
transferred interests in such Global Certificate, and shall cause a Definitive
Certificate of the same Class as such Global Certificate, and in a denomination
equal to the reduction in the denomination of such Global Certificate, to be
executed, authenticated and delivered in accordance with the Agreement to the
applicable Transferee.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Countrywide Securities Corporation, the Trustee, any Fiscal Agent, the Master
Servicers, the Special Servicer, the Certificate Registrar and their respective
Affiliates against any liability that may result if such Transfer is not exempt
from the registration and/or qualification requirements of the Securities Act
and any applicable state securities laws or is not made in accordance with such
federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code or any other federal, state, local or foreign law
("Similar Law") that is substantially similar to Section 405 or 407 of ERISA or
Section 4975 of the Code (each, a "Plan"), or (B) any Person who is directly or
indirectly purchasing this Certificate or such interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of this Certificate or such interest herein by the prospective
Transferee would result in a non-exempt violation of Section 406 or 407 of ERISA
or Section 4975 of the Code or Similar Law or would result in the imposition of
an excise tax under Section 4975 of the Code. Except in connection with the
initial issuance of the Certificates or any Transfer of this Certificate or any
interest herein by the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated or any of their respective Affiliates or, if this Certificate
constitutes a Global Certificate, any Transfer of this Certificate to a
successor Depository or to the applicable Certificate Owner in accordance with
Section 5.03 of the Agreement, the Certificate Registrar shall refuse to
register the Transfer of this Certificate unless it has received from the
prospective Transferee, and, if this Certificate constitutes a Global
Certificate, any Certificate Owner transferring an interest herein shall be
required to obtain from its prospective Transferee, one of the following: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate or such interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) a certification to the effect that the purchase and holding of
this Certificate or such interest herein by such prospective Transferee is
exempt from the prohibited transaction provisions of Sections 406 and 407 of
A-4-7
ERISA and the excise taxes imposed on such prohibited transactions by Section
4975 of the Code, by reason of Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) if this Certificate is rated in one of the four
highest generic rating categories by either of Xxxxx'x or Fitch, and this
Certificate or an interest herein is being acquired by or on behalf of a Plan in
reliance on Prohibited Transaction Exemption 90-29 or 2000-55, a certification
to the effect that such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not sponsored (within
the meaning of Section 3(16)(B) of ERISA) by the Trustee, the Depositor, any
Mortgage Loan Seller, the Master Servicers, the Special Servicer, any Fiscal
Agent, 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, and (Z) agrees that it will obtain from each
of its Transferees that are Plans a written representation that such Transferee,
if a Plan, satisfies the requirements of the immediately preceding clauses (X)
and (Y), together with a written agreement that such Transferee will obtain from
each of its Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately preceding clauses
(X) and (Y); or (iv) a certification of facts and an Opinion of Counsel which
otherwise establish to the reasonable satisfaction of the Trustee or such
Certificate Owner, as the case may be, that such Transfer will not result in a
violation of Section 406 or 407 of ERISA or Section 4975 of the Code or result
in the imposition of an excise tax under Section 4975 of the Code. If any
Transferee of this Certificate or any interest herein does not, in connection
with the subject Transfer, deliver to the Certificate Registrar (if this
Certificate constitutes a Definitive Certificate) or the Transferor (if this
Certificate constitutes a Global Certificate) a certification and/or Opinion of
Counsel as required by the preceding sentence, then such Transferee shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or any
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt from the prohibited transaction
provisions of Sections 406 and 407 of ERISA and the excise taxes imposed on such
prohibited transactions by Section 4975 of the Code.
[FOR CLASS A-2FL OR CLASS AJ-FL CERTIFICATES:] For so long as a
[Class A-2FL] or [Class AJ-FL] Distribution Conversion has not occurred and
become permanent, any Transferee of this 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 eligible for the exemptive relief available under any of
Prohibited Transaction Class Exemption ("PTCE") 00-00, XXXX 00-0, XXXX 91-38,
XXXX 00-00, XXXX 96-23 or a similar exemption.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[FOR BOOK ENTRY CERTIFICATES:] Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide
A-4-8
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 Servicers, the Special Servicer, the
Trustee, the Certificate Registrar and any agent of any of them may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions pursuant to
the Agreement and may treat the person in whose name this Certificate is
registered as of the relevant date of determination as owner of this Certificate
for all other purposes whatsoever, and none of the Depositor, the Master
Servicers, 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 to occur 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
either Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties (or, if specified in the Agreement with
respect to any REO Property, the Trust's interests therein) remaining in the
Trust and (iii) the exchange by the holder of certain remaining outstanding
Classes of Certificates (as described below) for all the Mortgage Loans and REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) in the Trust. The Agreement permits, but does not
require, either Master Servicer, the Special Servicer or the Plurality
Subordinate Certificateholder to purchase from the Trust all Mortgage Loans and
any REO Properties (or, if specified in the Agreement with respect to any REO
Property, the Trust's interests therein) remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than approximately 1.0% of the Initial
Pool Balance. In addition, following the date on which the total principal
balance of the Class X-0, Xxxxx X-0, Class A-2FL, Class X-0, Xxxxx X-0, Class
A-1A, Class AM, Class AJ, Class AJ-FL, Class B, Class C and Class D Certificates
is reduced to zero, any single Holder of each outstanding Class of Certificates
(other than the Class Y, Class Z, Class R-I and Class R-II Certificates) may,
subject to such other conditions as may be set forth in the Agreement, exchange
those Certificates for all Mortgage Loans and REO Properties (or, if specified
in the Agreement with respect to any REO Property, the Trust's interests
therein) remaining in the Trust Fund at the time of the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicers, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the Master
Servicers, the Special Servicer, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights. 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 each of REMIC I and REMIC II as a REMIC, without the consent of the Holders
of any of the Certificates.
A-4-9
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-4-10
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: ____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-2FL] [AJ-FL] [E] [F] [G] [H]
Certificates referred to in the within-mentioned Agreement.
Dated: April 12, 2007
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By: ____________________________________
Authorized Officer
A-4-11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ___________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address:__________________
____________________________________________________________________
____________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ______________________
for the account of ________________________________________________.
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices
should be mailed to ________________________________________________
___________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its
agent.
X-0-00
XXXXXXX X-0
FORM OF CLASS J, K, L, M, N, P AND Q CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6
CLASS [J] [K] [L] [M] [N] [P] [Q] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2007-6
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 commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Pass-Through Rate: [___% per annum] Initial Certificate Principal Balance of this
[Variable] Certificate as of the Closing Date:
$ ______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [J]
April 1, 2007 [K] [L] [M] [N] [P] [Q] Certificates as of
the Closing Date:
$_______________
Closing Date: April 12, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or
First Distribution Date: May 14, 2007 before such date (the "Initial Pool Balance"):
$2,145,926,360
Master Servicers: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association and Xxxxx Fargo Bank, National
Association
Special Servicer: LNR Partners, Inc. CUSIP No.: ____________
Certificate No. [J] [K] [L] [M] [N] [P] [Q] __ ISIN No.:
A-5-1
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., WACHOVIA BANK, NATIONAL ASSOCIATION, XXXXX FARGO
BANK, NATIONAL ASSOCIATION, LNR PARTNERS, INC., LASALLE BANK NATIONAL
ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A
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"REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [CEDE & CO.][_________] is the registered owner
of the Percentage Interest evidenced by this Certificate (obtained by dividing
the principal balance of this Certificate (its "Certificate Principal Balance")
as of the Closing Date by the aggregate principal balance of all the
Certificates of the same Class as this Certificate (their "Class Principal
Balance") as of the Closing Date) in that certain beneficial ownership interest
in the Trust evidenced by all the Certificates of the same Class as this
Certificate. The Trust was created and the Certificates were issued pursuant to
a Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
between Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor",
which term includes any successor entity under the Agreement), Wachovia Bank,
National Association and Xxxxx Fargo Bank, National Association, as master
servicers (each, a "Master Servicer" and collectively, the "Master Servicers",
which term includes any successor entity under the Agreement), LNR Partners,
Inc., as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement), and LaSalle Bank National Association, as
trustee (the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the eighth calendar day of a given month
or, if such eighth day is not a Business Day, then on the fifth Business Day
following such eighth calendar day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions no less than five (5) Business Days prior to (or, in the
case of the first such distribution, no later than) the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this
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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 Collection Accounts, the Distribution Account
and, if established, the Pool REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with the initial issuance of the Certificates or a
Transfer of this Certificate by the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated or any of their respective Affiliates or, if this Certificate
is a Global Certificate, a Transfer of this Certificate to a successor
Depository or to the applicable Certificate Owner in accordance with Section
5.03 of the Agreement), then the Certificate Registrar shall refuse to register
such Transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
Transfer substantially in the form attached as Exhibit E-1 to the Agreement and
a certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit E-2A to the Agreement or as Exhibit E-2B
to the Agreement; or (ii) an Opinion of Counsel satisfactory to the Trustee to
the effect that such Transferee is an Institutional
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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, either Master
Servicer, the Special Servicer, 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. If any Transferee of this Certificate
does not, in connection with the subject Transfer, deliver to the Certificate
Registrar one of the certifications described in clause (i) of the preceding
sentence or the Opinion of Counsel described in clause (ii) of the preceding
sentence, then such Transferee shall be deemed to have represented and warranted
that all the certifications set forth in either Exhibit E-2A or Exhibit E-2B
attached to the Agreement are, with respect to the subject Transfer, true and
correct.
If this Certificate constitutes a Rule 144A Global Certificate and a
Transfer of any interest herein is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a Transfer of any interest herein by the Depositor, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or any of their respective
Affiliates), then the Certificate Owner desiring to effect such Transfer shall
be required to obtain either: (i) a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached as Exhibit E-2C to the
Agreement, or (ii) an Opinion of Counsel to the effect that such Transferee is a
Qualified Institutional Buyer and such Transfer may be made without registration
under the Securities Act. If this Certificate constitutes a Rule 144A Global
Certificate and any Transferee of an interest herein does not, in connection
with the subject Transfer, deliver to the Transferor the Opinion of Counsel or
the certification described in the preceding sentence, then such Transferee
shall be deemed to have represented and warranted that all the certifications
set forth in Exhibit E-2C attached to the Agreement are, with respect to the
subject Transfer, true and correct. No beneficial interest in the Rule 144A
Global Certificate for any Class of Book-Entry Non-Registered Certificates may
be held by any Person that is not a Qualified Institutional Buyer.
Notwithstanding the preceding paragraph, any interest in the Rule
144A Global Certificate for a Class of Book-Entry Non-Registered Certificates
may be transferred to any Non-United States Securities Person who takes delivery
in the form of a beneficial interest in the Regulation S Global Certificate for
such Class of Certificates, provided that the Certificate Owner desiring to
effect such Transfer (i) complies with the requirements for Transfers of
interests in such Regulation S Global Certificate set forth in the following
paragraph and (ii) delivers or causes to be delivered to the Certificate
Registrar and the Trustee (A) a certificate from such Certificate Owner
confirming its ownership of the beneficial interests in the subject Class of
Book-Entry Non-Registered Certificates to be transferred, (B) a copy of the
certificate to be obtained by such Certificate Owner from its prospective
Transferee in accordance with the second sentence of the following paragraph and
(C) such written orders and instructions as are required under the applicable
procedures of the Depository, Clearstream and Euroclear to direct the Trustee,
as transfer agent for the Depository, to approve the debit of the account of a
Depository Participant by a denomination of interests in such Rule 144A Global
Certificate, and approve the credit of the account of a Depository Participant
by a denomination of interests in such Regulation S Global Certificate, that is
equal to the denomination of beneficial interests in the subject Class of
Book-Entry Non-Registered Certificates to be transferred. Upon delivery to the
Certificate Registrar and the Trustee of such certifications and such orders and
instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the Rule 144A
Global Certificate in respect of the subject Class of Book-Entry Non-Registered
Certificates, and increase the denomination of the Regulation S Global
Certificate for such Class of
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Certificates, by the denomination of the beneficial interest in such Class of
Certificates specified in such orders and instructions.
No beneficial interest in the Regulation S Global Certificate for
any Class of Book-Entry Non-Registered Certificates may be held by any Person
that is a United States Securities Person. Any Certificate Owner desiring to
effect any Transfer of a beneficial interest in the Regulation S Global
Certificate for any Class of Book-Entry Non-Registered Certificates shall be
required to obtain from such Certificate Owner's prospective Transferee a
certificate substantially in the form set forth in Exhibit E-2D to the Agreement
to the effect that such Transferee is not a United States Securities Person. If
any Transferee of an interest in the Regulation S Global Certificate for any
Class of Book-Entry Non-Registered Certificates does not, in connection with the
subject Transfer, deliver to the Transferor the certification described in the
preceding sentence, then such Transferee shall be deemed to have represented and
warranted that all the certifications set forth in Exhibit E-2D to the Agreement
are, with respect to the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred to any Qualified Institutional Buyer that takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates, provided that the Certificate Owner
desiring to effect such transfer (i) complies with the requirements for
Transfers of interests in such Rule 144A Global Certificate set forth in the
third preceding paragraph and (ii) delivers or causes to be delivered to the
Certificate Registrar and the Trustee (A) a certificate from such Certificate
Owner confirming its ownership of the beneficial interests in the subject Class
of Book-Entry Non-Registered Certificates to be transferred, (B) a copy of the
certificate or Opinion of Counsel to be obtained by such Certificate Owner from
its prospective Transferee in accordance with the first sentence of the third
preceding paragraph and (C) such written orders and instructions as are required
under the applicable procedures of the Depository, Clearstream and Euroclear to
direct the Trustee to debit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, and credit
the account of a Depository Participant by a denomination of interests in such
Rule 144A Global Certificate, that is equal to the denomination of beneficial
interests in the subject Class of Book-Entry Non-Registered Certificates to be
transferred. Upon delivery to the Certificate Registrar and the Trustee of such
certification(s) and/or Opinion of Counsel and such orders and instructions, the
Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the Regulation S Global Certificate
in respect of the subject Class of Book-Entry Non-Registered Certificates, and
increase the denomination of the Rule 144A Global Certificate for such Class of
Certificates, by the denomination of the beneficial interest in such Class of
Certificates specified in such orders and instructions.
Also notwithstanding the foregoing, any interest in a Global
Certificate with respect to any Class of Book-Entry Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
that takes delivery in the form of a Definitive Certificate of the same Class as
such Global Certificate upon delivery to the Certificate Registrar and the
Trustee of (i) such certifications and/or opinions as are contemplated by the
fourth preceding paragraph and (ii) such written orders and instructions as are
required under the applicable procedures of the Depository to direct the Trustee
to debit the account of a Depository Participant by the denomination of the
transferred interests in such Global Certificate. Upon delivery to the
Certificate Registrar and the Trustee of the certifications and/or opinions
contemplated by the fourth preceding paragraph, the Trustee, subject to and in
accordance with the applicable procedures of the Depository, shall reduce the
denomination of the subject Global Certificate by the denomination
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of the transferred interests in such Global Certificate, and shall cause a
Definitive Certificate of the same Class as such Global Certificate, and in a
denomination equal to the reduction in the denomination of such Global
Certificate, to be executed, authenticated and delivered in accordance with the
Agreement to the applicable Transferee.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Countrywide Securities Corporation, the Trustee, any Fiscal Agent, the Master
Servicers, the Special Servicer, the Certificate Registrar and their respective
Affiliates against any liability that may result if such Transfer is not exempt
from the registration and/or qualification requirements of the Securities Act
and any applicable state securities laws or is not made in accordance with such
federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code or any other federal, state, local or foreign law
("Similar Law") that is substantially similar to Section 405 or 407 of ERISA or
Section 4975 of the Code (each, a "Plan"), or (B) any Person who is directly or
indirectly purchasing this Certificate or such interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of this Certificate or such interest herein by the prospective
Transferee would result in a non-exempt violation of Section 406 or 407 of ERISA
or Section 4975 of the Code or Similar Law or would result in the imposition of
an excise tax under Section 4975 of the Code. Except in connection with the
initial issuance of the Certificates or any Transfer of this Certificate or any
interest herein by the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated or any of their respective Affiliates or, if this Certificate
constitutes a Global Certificate, any Transfer of this Certificate to a
successor Depository or to the applicable Certificate Owner in accordance with
Section 5.03 of the Agreement, the Certificate Registrar shall refuse to
register the Transfer of this Certificate unless it has received from the
prospective Transferee, and, if this Certificate constitutes a Global
Certificate, any Certificate Owner transferring an interest herein shall be
required to obtain from its prospective Transferee, one of the following: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate or such interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) a certification to the effect that the purchase and holding of
this Certificate or such interest herein by such prospective Transferee is
exempt from the prohibited transaction provisions of Sections 406 and 407 of
ERISA and the excise taxes imposed on such prohibited transactions by Section
4975 of the Code, by reason of Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) if this Certificate is rated in one of the four
highest generic rating categories by either of Xxxxx'x or Fitch, and this
Certificate or an interest herein is being acquired by or on behalf of a Plan in
reliance on Prohibited Transaction Exemption 90-29 or 2000-55, a certification
to the effect that such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not sponsored (within
the meaning of Section 3(16)(B) of ERISA) by the Trustee, the Depositor, any
Mortgage Loan Seller, the Master Servicers, the Special Servicer, any
Sub-Servicer, any Fiscal Agent, any Exemption-Favored Party or any Mortgagor
with respect to Mortgage Loans constituting more than 5% of the aggregate
unamortized principal balance of all the Mortgage Loans determined as of the
Closing Date, or by any Affiliate of such Person, and (Z) agrees that it will
obtain from each of its Transferees that are Plans a
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written representation that such Transferee, if a Plan, satisfies the
requirements of the immediately preceding clauses (X) and (Y), together with a
written agreement that such Transferee will obtain from each of its Transferees
that are Plans a similar written representation regarding satisfaction of the
requirements of the immediately preceding clauses (X) and (Y); or (iv) a
certification of facts and an Opinion of Counsel which otherwise establish to
the reasonable satisfaction of the Trustee or such Certificate Owner, as the
case may be, that such Transfer will not result in a violation of Section 406 or
407 of ERISA or Section 4975 of the Code or result in the imposition of an
excise tax under Section 4975 of the Code. If any Transferee of this Certificate
or any interest herein does not, in connection with the subject Transfer,
deliver to the Certificate Registrar (if this Certificate constitutes a
Definitive Certificate) or the Transferor (if this Certificate constitutes a
Global Certificate) a certification and/or Opinion of Counsel as required by the
preceding sentence, then such Transferee shall be deemed to have represented and
warranted that either: (i) such Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate or any interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of this Certificate or such interest herein by such
Transferee is exempt from the prohibited transaction provisions of Sections 406
and 407 of ERISA and the excise taxes imposed on such prohibited transactions by
Section 4975 of the Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[FOR BOOK ENTRY CERTIFICATES:] Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicers, the Special Servicer, the
Trustee, the Certificate Registrar and any agent of any of them may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions pursuant to
the Agreement and may treat the person in whose name this Certificate is
registered as of the relevant date of determination as owner of this Certificate
for all other purposes whatsoever, and none of the Depositor, the Master
Servicers, 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 to occur 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
either Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any
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REO Properties (or, if specified in the Agreement with respect to any REO
Property, the Trust's interests therein) remaining in the Trust and (iii) the
exchange by the holder of certain remaining outstanding Classes of Certificates
(as described below) for all the Mortgage Loans and REO Properties (or, if
specified in the Agreement with respect to any REO Property, the Trust's
interests therein) in the Trust. The Agreement permits, but does not require,
either Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder to purchase from the Trust all Mortgage Loans and any REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) remaining therein. The exercise of such right
will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than approximately 1.0% of the Initial
Pool Balance. In addition, following the date on which the total principal
balance of the Class X-0, Xxxxx X-0, Class A-2FL, Class X-0, Xxxxx X-0, Class
A-1A, Class AM, Class AJ, Class AJ-FL, Class B, Class C and Class D Certificates
is reduced to zero, any single Holder of each outstanding Class of Certificates
(other than the Class Y, Class Z, Class R-I and Class R-II Certificates) may,
subject to such other conditions as may be set forth in the Agreement, exchange
those Certificates for all Mortgage Loans and REO Properties (or, if specified
in the Agreement with respect to any REO Property, the Trust's interests
therein) remaining in the Trust Fund at the time of the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicers, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the Master
Servicers, the Special Servicer, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights. 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 each of REMIC I and REMIC II as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: ____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [J] [K] [L] [M] [N] [P] [Q] Certificates
referred to in the within-mentioned Agreement.
Dated: April 12, 2007
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By: ____________________________________
Authorized Officer
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ___________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address: _________________
____________________________________________________________________
____________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ______________________
for the account of ________________________________________________.
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices
should be mailed to ________________________________________________
____________________________________________________________________
___________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its
agent.
X-0-00
XXXXXXX X-0
FORM OF CLASS R-I AND R-II CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6
CLASS [R-I] [R-II] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-6
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 commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this
April 1, 2007 Certificate in the related Class: _____%
Closing Date: April 12, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or
First Distribution Date: May 14, 2007 before such date (the "Initial Pool Balance"):
$2,145,926,360
Master Servicers: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association and Xxxxx Fargo Bank, National
Association
Special Servicer: LNR Partners, Inc.
Certificate No. [R-I] [R-II]
A-6-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY TO A
"QUALIFIED INSTITUTIONAL BUYER" WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., WACHOVIA BANK, NATIONAL ASSOCIATION, XXXXX FARGO
BANK, NATIONAL ASSOCIATION, LNR PARTNERS, INC., LASALLE BANK NATIONAL
ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that _______________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate (as
specified above) in that certain beneficial ownership
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interest in the Trust evidenced by all the Certificates of the same Class as
this Certificate. The Trust was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), between Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (the
"Depositor", which term includes any successor entity under the Agreement),
Wachovia Bank, National Association and Xxxxx Fargo Bank, National Association,
as master servicers (each, a "Master Servicer" and collectively, the "Master
Servicers", which term includes any successor entity under the Agreement), LNR
Partners, Inc., as special servicer (the "Special Servicer", which term includes
any successor entity under the Agreement), and LaSalle Bank National
Association, as trustee (the "Trustee", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound. In
the event of any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the eighth calendar day of a given month
or, if such eighth day is not a Business Day, then on the fifth Business Day
following such eighth calendar day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions no less than five (5) Business Days prior to (or, in the
case of the first such distribution, no later than) the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts, the Distribution Account
and, if established, the Pool REO Account 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
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authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of this Certificate is to be made without registration
under the Securities Act (other than in connection with the initial issuance of
the Certificates or a Transfer of this Certificate by the Depositor, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or any of their respective
Affiliates), then the Certificate Registrar shall refuse to register such
Transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
Transfer substantially in the form attached as Exhibit E-1 to the Agreement and
a certificate from such Certificateholder's prospective Transferee substantially
in the form attached as Exhibit E-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 Servicers, the Special Servicer,
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. If any Transferee of this Certificate does not, in connection with the
subject Transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in Exhibit E-2A attached to the Agreement are, with respect to the subject
Transfer, true and correct.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder desiring to effect a Transfer of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Countrywide
Securities Corporation, the Trustee, any Fiscal Agent, the Master Servicers, the
Special Servicer, the Certificate Registrar and their respective Affiliates
against any liability that may result if such Transfer is not exempt from the
registration and/or qualification requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities,
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Xxxxx plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, including insurance company
general accounts, that is subject to ERISA or the Code or any other federal,
state, local or foreign law that is substantially similar to Section 405 or 407
of ERISA or Section 4975 of the Code (each, a "Plan"), or (B) any Person who is
directly or indirectly purchasing this Certificate or such interest herein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan.
Except in connection with the initial issuance of the Certificates or any
Transfer of this Certificate by the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated or any of their respective Affiliates, the Certificate
Registrar shall refuse to register the Transfer of this Certificate unless it
has received from the prospective Transferee 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. If any Transferee of this Certificate or any interest
herein does not, in connection with the subject Transfer, deliver to the
Certificate Registrar a certification as required by the preceding sentence,
then such Transferee shall be deemed to have represented and warranted that such
Transferee is not a Plan and is not directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan.
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 REMIC 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 G-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its Ownership
Interest in this Certificate as a nominee, trustee or agent for any Person that
is not a Permitted Transferee, that for so long as it retains its Ownership
Interest in this Certificate, it will endeavor to remain a Permitted Transferee,
and that it has reviewed the provisions of Section 5.02(d) of the Agreement and
agrees to be bound by them. Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee, if the Certificate Registrar has actual
knowledge that the proposed Transferee is not a Permitted Transferee, the
Certificate Registrar shall not register the Transfer of an Ownership Interest
in this Certificate to such proposed Transferee. In addition, the Certificate
Registrar shall not register the transfer of an Ownership Interest in this
Certificate to any entity classified as a partnership under the Code unless at
the time of transfer, all of its beneficial owners are United States Tax
Persons.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to Transfer its Ownership Interest
herein and (y) not to Transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit G-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
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purchasing such Ownership Interest herein, agrees to give the Trustee and the
REMIC 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 REMIC Administrator the following: (a) written notification from
each Rating Agency to the effect that the modification of, addition to or
elimination of such provisions will not cause such Rating Agency to withdraw,
qualify or downgrade its then-current rating of any Class of Certificates; and
(b) an opinion of counsel, in form and substance satisfactory to the Trustee and
the REMIC Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not (i) cause either REMIC I or REMIC II to
(A) cease to qualify as a REMIC or (B) be subject to an entity-level tax caused
by the Transfer of a Residual 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 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 I or REMIC II to fail to qualify as a REMIC,
(iii) a Disqualified Non-United States Tax Person, (iv) a Disqualified
Partnership or (v) a foreign permanent establishment or fixed base (within the
meaning of any applicable income tax treaty between the United States and any
foreign jurisdiction) of a United States Tax Person.
A "Disqualified Organization" is (i) the United States, any State or
political subdivision thereof, a foreign government, an international
organization, or any agency or instrumentality of any of the foregoing, (ii) any
organization (other than certain farmers' cooperatives described in Section 521
of the Code) that is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iii) rural electric and telephone cooperatives described in
Section 1381 of the Code and (iv) any other Person so designated by the Trustee
or the REMIC Administrator based upon an opinion of counsel that the holding of
an Ownership Interest in a Residual Certificate by such Person may cause the
Trust or any Person having an Ownership Interest in any Class of Certificates
(other than such Person) to incur a liability for any federal tax imposed under
the Code that would not otherwise be imposed but for the Transfer of an
Ownership Interest in a Residual 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 Certificate, any Non-United States Tax Person or agent thereof
other than: (1) a Non-United States Tax Person that (a) holds such Residual
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 Certificate for United States federal income tax
purposes, it may incur tax liabilities in excess of any cash flows generated by
such Residual Certificate and intends to pay taxes associated with holding such
Residual 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 Certificate to it is in accordance
with the requirements of the Code and the regulations promulgated
A-6-6
thereunder and (y) such Transfer of such Residual Certificate will not be
disregarded for United States federal income tax purposes.
A "Disqualified Partnership" is any domestic entity classified as a
partnership under the Code, if any of its beneficial owners are Disqualified
Non-United States Tax Persons.
A "Non-United States Tax Person" is any Person other than a United
States Tax Person. A "United States Tax Person" is a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision
thereof, or an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of the
trust (or to the extent provided in the Treasury regulations, if the trust was
in existence on August 20, 1996 and elected to be treated as a United States
person), all within the meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicers, the Special Servicer, the
Trustee, the Certificate Registrar and any agent of any of them may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions pursuant to
the Agreement and may treat the person in whose name this Certificate is
registered as of the relevant date of determination as owner of this Certificate
for all other purposes whatsoever, and none of the Depositor, the Master
Servicers, 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 to occur 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
either Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties (or, if specified in the Agreement with
respect to any REO Property, the Trust's interests therein) remaining in the
Trust and (iii) the exchange by the holder of certain remaining outstanding
Classes of Certificates (as described below) for all the Mortgage Loans and REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) in the Trust. The Agreement permits, but does not
require, either Master Servicer, the Special Servicer or the
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Plurality Subordinate Certificateholder to purchase from the Trust all Mortgage
Loans and any REO Properties (or, if specified in the Agreement with respect to
any REO Property, the Trust's interests therein) remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than approximately 1.0% of the
Initial Pool Balance. In addition, following the date on which the total
principal balance of the Class X-0, Xxxxx X-0, Class A-2FL, Class X-0, Xxxxx
X-0, Class A-1A, Class AM, Class AJ, Class AJ-FL, Class B, Class C and Class D
Certificates is reduced to zero, any single Holder of each outstanding Class of
Certificates (other than the Class Y, Class Z, Class R-I and Class R-II
Certificates) may, subject to such other conditions as may be set forth in the
Agreement, exchange those Certificates for all Mortgage Loans and REO Properties
(or, if specified in the Agreement with respect to any REO Property, the Trust's
interests therein) remaining in the Trust Fund at the time of the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicers, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the Master
Servicers, the Special Servicer, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights. 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 each of REMIC I and REMIC II as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: ____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I] [R-II] Certificates referred to in
the within-mentioned Agreement.
Dated: April 12, 2007
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By: ____________________________________
Authorized Officer
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ___________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address: _________________
____________________________________________________________________
____________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ______________________
for the account of ________________________________________________.
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices
should be mailed to ________________________________________________
___________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its
agent.
X-0-00
XXXXXXX X-0
FORM OF CLASS Y CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6
CLASS Y COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2007-6
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 commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Pass-Through Rate: Variable Initial Certificate Notional Amount of this
Certificate as of the Closing Date:
$ _____________
Date of Pooling and Servicing Agreement: Original Notional Amount of all the Class Y
April 1, 2007 Certificates as of the Closing Date:
$ _____________
Closing Date: April 12, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or
First Distribution Date: May 14, 2007 before such date (the "Initial Pool Balance"):
$2,145,926,360
Master Servicers: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association and Xxxxx Fargo Bank, National
Association
Special Servicer: LNR Partners, Inc.
Certificate No. Y ___
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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 TO A
"QUALIFIED INSTITUTIONAL BUYER" WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., WACHOVIA BANK, NATIONAL ASSOCIATION, XXXXX FARGO
BANK, NATIONAL ASSOCIATION, LNR PARTNERS, INC., LASALLE BANK NATIONAL
ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL
BALANCE AND DOES NOT ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF
PRINCIPAL. THE HOLDER HEREOF WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST
ACCRUED AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN ON
THE CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE, WHICH AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [_________] 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
A-7-2
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
between Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor",
which term includes any successor entity under the Agreement), Wachovia Bank,
National Association and Xxxxx Fargo Bank, National Association, as master
servicers (each, a "Master Servicer" and collectively, the "Master Servicers",
which term includes any successor entity under the Agreement), LNR Partners,
Inc., as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement), and LaSalle Bank National Association, as
trustee (the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the eighth calendar day of a given month
or, if such eighth day is not a Business Day, then on the fifth Business Day
following such eighth calendar day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions no less than five (5) Business Days prior to (or, in the
case of the first such distribution, no later than) the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts, the Distribution Account
and, if established, the Pool REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
A-7-3
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of this Certificate is to be made without registration
under the Securities Act (other than in connection with the initial issuance of
the Certificates or a Transfer of this Certificate by the Depositor, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or any of their respective
Affiliates), then the Certificate Registrar shall refuse to register such
Transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
Transfer substantially in the form attached as Exhibit E-1 to the Agreement and
a certificate from such Certificateholder's prospective Transferee substantially
in the form attached as Exhibit E-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 Servicers, the Special Servicer,
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. If any Transferee of this Certificate does not, in connection with the
subject Transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in Exhibit E-2A attached to the Agreement are, with respect to the subject
Transfer, true and correct.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder desiring to effect a Transfer of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Countrywide
Securities Corporation, the Trustee, any Fiscal Agent, the Master Servicers, the
Special Servicer, the Certificate Registrar and their respective Affiliates
against any liability that may result if such Transfer is not exempt from the
registration and/or qualification requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code or any other federal, state, local or foreign law
("Similar Law") that is substantially similar to
A-7-4
Section 405 or 407 of ERISA or Section 4975 of the Code (each, a "Plan"), or (B)
any Person who is directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, if the purchase and holding of this Certificate or such
interest herein by the prospective Transferee would result in a non-exempt
violation of Section 406 or 407 of ERISA or Section 4975 of the Code or Similar
Law or would result in the imposition of an excise tax under Section 4975 of the
Code. Except in connection with the initial issuance of the Certificates or any
Transfer of this Certificate by the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated or any of their respective Affiliates, the Certificate
Registrar shall refuse to register the Transfer of this Certificate unless it
has received from the prospective Transferee, 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 of facts and an Opinion of Counsel which otherwise
establish to the reasonable satisfaction of the Trustee that such Transfer will
not result in a violation of Section 406 or 407 of ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the
Code. If any Transferee of this Certificate or any interest herein does not, in
connection with the subject Transfer, deliver to the Certificate Registrar a
certification and/or Opinion of Counsel as required by the preceding sentence,
then such Transferee shall be deemed to have represented and warranted that
either: (i) such Transferee is not a Plan and is not directly or indirectly
purchasing this Certificate or such interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) the purchase and
holding of this Certificate or such interest herein by such Transferee is exempt
from the prohibited transaction provisions of Sections 406 and 407 of ERISA and
the excise taxes imposed on such prohibited transactions by Section 4975 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 Servicers, the Special Servicer, the
Trustee, the Certificate Registrar and any agent of any of them may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions pursuant to
the Agreement and may treat the person in whose name this Certificate is
registered as of the relevant date of determination as owner of this Certificate
for all other purposes whatsoever, and none of the Depositor, the Master
Servicers, 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 to occur 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
either Master Servicer, the Special Servicer or the Plurality Subordinate
A-7-5
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties (or, if specified in the Agreement with
respect to any REO Property, the Trust's interests therein) remaining in the
Trust and (iii) the exchange by the holder of certain remaining outstanding
Classes of Certificates (as described below) for all the Mortgage Loans and REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) in the Trust. The Agreement permits, but does not
require, either Master Servicer, the Special Servicer or the Plurality
Subordinate Certificateholder to purchase from the Trust all Mortgage Loans and
any REO Properties (or, if specified in the Agreement with respect to any REO
Property, the Trust's interests therein) remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than approximately 1.0% of the Initial
Pool Balance. In addition, following the date on which the total principal
balance of the Class X-0, Xxxxx X-0, Class A-2FL, Class X-0, Xxxxx X-0, Class
A-1A, Class AM, Class AJ, Class AJ-FL, Class B, Class C and Class D Certificates
is reduced to zero, any single Holder of each outstanding Class of Certificates
(other than the Class Y, Class Z, Class R-I and Class R-II Certificates) may,
subject to such other conditions as may be set forth in the Agreement, exchange
those Certificates for all Mortgage Loans and REO Properties (or, if specified
in the Agreement with respect to any REO Property, the Trust's interests
therein) remaining in the Trust Fund at the time of the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicers, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the Master
Servicers, the Special Servicer, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights. 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 each of REMIC I and REMIC II as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-7-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: ____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class Y Certificates referred to in the
within-mentioned Agreement.
Dated: April 12, 2007
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By: ____________________________________
Authorized Officer
A-7-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ___________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address: _________________
____________________________________________________________________
____________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ______________________
for the account of ________________________________________________.
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices
should be mailed to ________________________________________________
___________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its
agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS Z CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6
CLASS Z COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-6
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 commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this
April 1, 2007 Certificate in Class Z: ___%
Closing Date: April 12, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or
First Distribution Date: May 14, 2007 before such date (the "Initial Pool Balance"):
$2,145,926,360
Master Servicers: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association, Xxxxx Fargo Bank, National
Association
Special Servicer: LNR Partners, Inc.
Certificate No. Z-___
A-8-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY TO A
"QUALIFIED INSTITUTIONAL BUYER" WITHIN THE MEANING OF RULE 144A UNDER SECURITIES
ACT IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION
AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., WACHOVIA BANK, NATIONAL ASSOCIATION, XXXXX FARGO
BANK, NATIONAL ASSOCIATION, LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD LOANS SUBJECT TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
This certifies that ________________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate (as
specified above) in that certain beneficial ownership interest in the Trust
evidenced by all the Class Z Certificates. The Trust was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), between Xxxxxxx Xxxxx Mortgage Investors,
Inc., as depositor (the "Depositor", which term includes any successor entity
under the Agreement), Wachovia Bank, National Association and Xxxxx Fargo Bank,
National Association, as master servicers (each, a "Master Servicer" and
collectively, the "Master Servicers", which term includes any successor entity
under the Agreement), LNR Partners, Inc., as special servicer (the "Special
Servicer", which term includes any successor entity under the Agreement), and
LaSalle Bank National Association, as trustee (the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. In the event of any conflict between any provision of this
Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
A-8-2
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the eighth calendar day of a given month
or, if such eighth day is not a Business Day, then on the fifth Business Day
following such eighth calendar day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions no less than five (5) Business Days prior to (or, in the
case of the first such distribution, no later than) the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Accounts, the Distribution Account
and, if established, the Pool REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
A-8-3
If a Transfer of this Certificate is to be made without registration
under the Securities Act (other than in connection with the initial issuance of
the Certificates or a Transfer of this Certificate by the Depositor, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or any of their respective
Affiliates), then the Certificate Registrar shall refuse to register such
Transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
Transfer substantially in the form attached as Exhibit E-1 to the Agreement and
a certificate from such Certificateholder's prospective Transferee substantially
in the form attached as Exhibit E-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 Servicers, the Special Servicer,
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. If any Transferee of this Certificate does not, in connection with the
subject Transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in Exhibit E-2A attached to the Agreement are, with respect to the subject
Transfer, true and correct.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder desiring to effect a Transfer of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Countrywide
Securities Corporation, the Trustee, any Fiscal Agent, the Master Servicers, the
Special Servicer, the Certificate Registrar and their respective Affiliates
against any liability that may result if such Transfer is not exempt from the
registration and/or qualification requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code or any other federal, state, local or foreign law
("Similar Law") that is substantially similar to Section 405 or 407 of ERISA or
Section 4975 of the Code (each, a "Plan"), or (B) any Person who is directly or
indirectly purchasing this Certificate or such interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of this Certificate or such interest herein by the prospective
Transferee would result in a non-exempt violation of Section 406 or 407 of ERISA
or Section 4975 of the Code or Similar Law or would result in the imposition of
an excise tax under Section 4975 of the Code. Except in connection with the
initial issuance of the Certificates or any Transfer of this Certificate by the
Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or any of their
respective Affiliates, the Certificate Registrar shall refuse to register the
Transfer of this Certificate unless it has received from the prospective
Transferee, 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
of facts and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee that such Transfer will not result in a violation of
Section 406 or
A-8-4
407 of ERISA or Section 4975 of the Code or result in the imposition of an
excise tax under Section 4975 of the Code. If any Transferee of this Certificate
or any interest herein does not, in connection with the subject Transfer,
deliver to the Certificate Registrar a certification and/or Opinion of Counsel
as required by the preceding sentence, then such Transferee shall be deemed to
have represented and warranted that either: (i) such Transferee is not a Plan
and is not directly or indirectly purchasing this Certificate or such interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) the purchase and holding of this Certificate or such interest
herein by such Transferee is exempt from the prohibited transaction provisions
of Sections 406 and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Section 4975 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 Servicers, the Special Servicer, the
Trustee, the Certificate Registrar and any agent of any of them may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions pursuant to
the Agreement and may treat the person in whose name this Certificate is
registered as of the relevant date of determination as owner of this Certificate
for all other purposes whatsoever, and none of the Depositor, the Master
Servicers, 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
either Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties (or, if specified in the Agreement with
respect to any REO Property, the Trust's interests therein) remaining in the
Trust and (iii) the exchange by the holder of certain remaining outstanding
Classes of Certificates (as described below) for all the Mortgage Loans and REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) in the Trust. The Agreement permits, but does not
require, either Master Servicer, the Special Servicer or the Plurality
Subordinate Certificateholder to purchase from the Trust all Mortgage Loans and
any REO Properties (or, if specified in the Agreement with respect to any REO
Property, the Trust's interests therein) remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than approximately 1.0% of the Initial
Pool Balance. In addition, following the date on which the total principal
balance of the Class X-0, Xxxxx X-0, Class A-2FL, Class X-0, Xxxxx X-0, Class
A-1A, Class AM, Class AJ, Class AJ-FL, Class B, Class C and Class D
A-8-5
Certificates is reduced to zero, any single Holder of each outstanding Class of
Certificates (other than the Class Y, Class Z, Class R-I and Class R-II
Certificates) may, subject to such other conditions as may be set forth in the
Agreement, exchange those Certificates for all Mortgage Loans and REO Properties
(or, if specified in the Agreement with respect to any REO Property, the Trust's
interests therein) remaining in the Trust Fund at the time of the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicers, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the Master
Servicers, the Special Servicer, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights. 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 each of REMIC I and REMIC II as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-8-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: ____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class Z Certificates referred to in the
within-mentioned Agreement.
Dated: April 12, 2007
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By: ____________________________________
Authorized Officer
A-8-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ___________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address: _________________
____________________________________________________________________
____________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ______________________
for the account of ________________________________________________.
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices
should be mailed to ________________________________________________
___________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its
agent.
A-8-8
EXHIBIT B
FORM OF DISTRIBUTION DATE STATEMENT
B-1
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
000 X. XxXxxxx Xxxxxx, Xxxxx 0000 Next Payment: 14-May-07
Xxxxxxx, XX 00000 Record Date: 30-Mar-07
USA
Administrator: ABN AMRO ACCT: Analyst:
Xxx Xxxxxxxxx 312.904.6342 REPORTING PACKAGE TABLE OF CONTENTS Xxxxxxx Xxxx 714.259.6253
xxx.xxxxxxxxx@xxxxxxx.xxx xxxxxxx.xxxx@xxxxxxx.xxx
------------------------------ ------------------------------------------------------------ -------------------------------------
Issue Id: MLCFC076 Page(s)
-------
Statements to Certificateholders Page 2 Closing Date: 11-Apr-2007
Monthly Data File Cash Reconciliation Summary Page 3
Name: MLCFC076_200704_3.ZIP Bond Interest Reconciliation Page 4 First Payment Date: 14-May-2007
------------------------------ Bond Interest Reconciliation Page 5
Bond Principal Reconciliation Page 6 Rated Final Payment Date:
Shortfall Summary Report Page 7
Asset-Backed Facts ~ 15 Month Loan Status Summary Page 8 Determination Date: 9-Apr-2007
Asset-Backed Facts ~ 15 Month Loan Payoff/Loss
Summary Page 9 -------------------------------------
Mortgage Loan Characteristics Page 10 Trust Collection Period
Delinquent Loan Detail Page 11 -------------------------------------
Loan Level Detail Page 12 3/9/2007 - 4/9/2007
Realized Loss Detail Page 13 -------------------------------------
Collateral Realized Loss Page 14
Appraisal Reduction Detail Page 15
Material Breaches Detail Page 16
Historical Collateral Prepayment Page 17
Specially Serviced (Part I) - Loan Detail Page 18
Specially Serviced (Part II) - Servicer Comments Page 19
Summary of Loan Maturity Extensions Page 20
Rating Information Page 21
Other Related Information Page 22
------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
777 PARTIES TO THE TRANSACTION
------------------------------------------------------------------------------------------------------------------------------------
Depositor: Xxxxxxx Xxxxx Mortgage Investors, Inc.
Master Servicer: Wachovia Bank, N.A./Xxxxx Fargo Bank, National Association
Rating Agency: Xxxxx'x Investors Service, Inc./Fitch Ratings
Special Servicer: LNR Partners, Inc.
Underwriter: Countrywide Securities Corporation/Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------
INFORMATION IS AVAILABLE FOR THIS ISSUE FROM THE FOLLOWING SOURCES
--------------------------------------------------------------------
LaSalle Web Site xxx.xxxxxxxx.xxx
LaSalle Factor Line 800.246.5761
--------------------------------------------------------------------
PAGE 1 OF 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
------------------------------------------------------------------------------------------------------------------------------------
ORIGINAL OPENING PRINCIPAL PRINCIPAL NEGATIVE CLOSING INTEREST INTEREST PASS-THROUGH
CLASS FACE VALUE (1) BALANCE PAYMENT ADJ. OR LOSS AMORTIZATION BALANCE PAYMENT (2) ADJUSTMENT RATE
CUSIP Next Rate(3)
------------------------------------------------------------------------------------------------------------------------------------
Total
------------------------------------------------------------------------------------------------------------------------------------
---------------------------------
Total P&I Payment
---------------------------------
Notes: (1) N denotes notional balance not included in total (2) Accrued Interest Plus/Minus Interest Adjustment Minus Deferred
Interest equals Interest Payment (3) Estimated. * Denotes Controlling Class
PAGE 2 OF 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
CASH RECONCILIATION SUMMARY
--------------------------------------------------------------------------------
INTEREST SUMMARY
--------------------------------------------------------------------------------
Current Scheduled Interest 0.00
Less Deferred Interest 0.00
Less PPIS Reducing Scheduled Int 0.00
Plus Gross Advance Interest 0.00
Less ASER Interest Adv Reduction 0.00
Less Other Interest Not Advanced 0.00
Less Other Adjustment 0.00
--------------------------------------------------------------------------------
Total 0.00
--------------------------------------------------------------------------------
UNSCHEDULED INTEREST:
--------------------------------------------------------------------------------
Prepayment Penalties 0.00
Yield Maintenance Penalties 0.00
Other Interest Proceeds 0.00
--------------------------------------------------------------------------------
Total 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Less Fee Paid To Servicer 0.00
Less Fee Strips Paid by Servicer 0.00
--------------------------------------------------------------------------------
LESS FEES & EXPENSES PAID BY/TO SERVICER
--------------------------------------------------------------------------------
Special Servicing Fees 0.00
Workout Fees 0.00
Liquidation Fees 0.00
Interest Due Serv on Advances 0.00
Non Recoverable Advances 0.00
Misc. Fees & Expenses 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Total Unscheduled Fees & Expenses 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Total Interest Due Trust 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
LESS FEES & EXPENSES PAID BY/TO TRUST
--------------------------------------------------------------------------------
Trustee Fee 0.00
Fee Strips 0.00
Misc. Fees 0.00
Interest Reserve Withholding 0.00
Plus Interest Reserve Deposit 0.00
--------------------------------------------------------------------------------
Total 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Total Interest Due Certs 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PRINCIPAL SUMMARY
--------------------------------------------------------------------------------
SCHEDULED PRINCIPAL:
--------------------------------------------------------------------------------
Current Scheduled Principal 0.00
Advanced Scheduled Principal 0.00
--------------------------------------------------------------------------------
Scheduled Principal 0.00
--------------------------------------------------------------------------------
UNSCHEDULED PRINCIPAL:
Curtailments 0.00
Prepayments in Full 0.00
Liquidation Proceeds 0.00
Repurchase Proceeds 0.00
Other Principal Proceeds 0.00
--------------------------------------------------------------------------------
Total Unscheduled Principal 0.00
--------------------------------------------------------------------------------
Remittance Principal 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Remittance P&I Due Trust 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Remittance P&I Due Certs 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
POOL BALANCE SUMMARY
--------------------------------------------------------------------------------
Balance Count
--------------------------------------------------------------------------------
Beginning Pool 0.00 0
Scheduled Principal 0.00 0
Unscheduled Principal 0.00 0
Deferred Interest 0.00
Liquidations 0.00 0
Repurchases 0.00 0
--------------------------------------------------------------------------------
Ending Pool 0.00 0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
NON-P&I SERVICING ADVANCE SUMMARY
--------------------------------------------------------------------------------
Amount
--------------------------------------------------------------------------------
Prior Outstanding 0.00
Plus Current Period 0.00
Less Recovered 0.00
Less Non Recovered 0.00
Ending Outstanding 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SERVICING FEE SUMMARY
--------------------------------------------------------------------------------
Current Servicing Fees 0.00
Plus Fees Advanced for PPIS 0.00
Less Reduction for PPIS 0.00
Plus Delinquent Servicing Fees 0.00
--------------------------------------------------------------------------------
Total Servicing Fees 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
CUMULATIVE PREPAYMENT CONSIDERATION RECEIVED
--------------------------------------------------------------------------------
Prepayment Premiums 0.00
Yield Maintenance 0.00
Other Interest 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PPIS SUMMARY
--------------------------------------------------------------------------------
Gross PPIS 0.00
Reduced by PPIE 0.00
Reduced by Shortfalls in Fees 0.00
Reduced by Other Amounts 0.00
--------------------------------------------------------------------------------
PPIS Reducing Scheduled Interest 0.00
--------------------------------------------------------------------------------
PPIS Reducing Servicing Fee 0.00
--------------------------------------------------------------------------------
PPIS Due Certificate 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ADVANCE SUMMARY (ADVANCE MADE BY SERVICER)
--------------------------------------------------------------------------------
Principal Interest
--------------------------------------------------------------------------------
Prior Outstanding 0.00 0.00
Plus Current Period 0.00 0.00
Less Recovered 0.00 0.00
Less Non Recovered 0.00 0.00
Ending Outstanding 0.00 0.00
--------------------------------------------------------------------------------
PAGE 3 OF 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
BOND INTEREST RECONCILIATION DETAIL
----------------------------------------------------------------------------------------------------------
Accrual Opening Pass-Through Accrued Total Total Distributable
Class Balance Rate Certificate Interest Interest Certificate
Interest Additions Deductions Interest
----------------
Method Days
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
--------------------------------------------------
-----------------------------------------------------------------------
Interest Current Remaining Credit
Class Payment Period Outstanding Support
Amount Shortfall Interest
Recovery Shorfalls ------------------------
Original Current (1)
-----------------------------------------------------------------------
-----------------------------------------------------------------------
------------------------------------
(1) Determined as follows: (A) the ending balance of all the classes less (B) the sum of (i) the ending balance of the class and
(ii) the ending balance of all classes which are not subordinate to the class divided by (A).
PAGE 4 OF 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
BOND INTEREST RECONCILIATION DETAIL
-----------------------------------------------------------------------------------------------------
Additions
Prior Current -------------------------------------------------------------------
Class Interest Interest Prior InteresAccrual Prepayment Yield Other
Due Date Due Date Interest Dueon Prior Premiums Maintenance Interest
Shortfall Shortfall Proceeds (1)
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-------------------------------------------------------------------
--------------------------------------------------------------------------
Deductions
Class ------------------------------------ Distributable Interest
Allocable Deferred & Interest Certificate Payment
PPIS Accretion Loss Expense Interest Amount
Interest
--------------------------------------------------------------------------
--------------------------------------------------------------------------
-----------------------------------------------------------------
(1) Other Interest Proceeds are additional interest amounts specifically allocated to the bond(s) and used in determining the
Bondholder's Distributable Interest.
PAGE 5 OF 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
BOND PRINCIPAL RECONCILIATION
---------------------------------------------------------------------------------------------------------
Accreted Principal
--------------------------
Int
Basic Extra Shortfall Pool Extra Pledged
Beginning Principal Principal Res Fund Loss Principal Certificate
Class Class Balance Payment Amt Payment Amt Release Allocation Payment Amt Def Interest
---------------------------------------------------------------------------------------------------------
0.00
-------------------------------------------------------------------------------------------------------
0.00
-------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
Interest
Prior Cumulative Accrued on Rated Credit Support
Losses Pool Ending Pool Losses Final ---------------------
Class Reimbursed Loss Class Balance Cls A - M Maturity Original Current(4)
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
(1) Extra Principal Amounts: the lessor of (i) the excess, if any, of the overcollateralization Target Amount over the
Overcollateralization Amount.
PAGE 6 OF 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
INTEREST ADJUSTMENTS SUMMARY
--------------------------------------------------------------------------------
SHORTFALL ALLOCATED TO THE BONDS:
-----------------------------------------------------
Net Prepayment Int. Shortfalls Allocated to the Bonds 0.00
Special Servicing Fees 0.00
Workout Fees 0.00
Liquidation Fees 0.00
Legal Fees 0.00
Misc. Fees & Expenses Paid by/to Servicer 0.00
Interest Paid to Servicer on Outstanding Advances 0.00
ASER Interest Advance Reduction 0.00
Interest Not Advanced (Current Period) 0.00
Recoup of Prior Advances by Servicer 0.00
Servicing Fees Paid Servicer on Loans Not Advanced 0.00
Misc. Fees & Expenses Paid by Trust 0.00
Shortfall Due to Rate Modification 0.00
Other Interest Loss 0.00
-----------
Total Shortfall Allocated to the Bonds 0.00
===========
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXCESS ALLOCATED TO THE BONDS:
-----------------------------------------------------
Other Interest Proceeds Due the Bonds 0.00
Prepayment Interest Excess Due the Bonds 0.00
Interest Income 0.00
Yield Maintenance Penalties Due the Bonds 0.00
Prepayment Penalties Due the Bonds 0.00
Recovered ASER Interest Due the Bonds 0.00
Recovered Interest Due the Bonds 0.00
ARD Excess Interest 0.00
-----------
Total Excess Allocated to the Bonds 0.00
===========
--------------------------------------------------------------------------------
AGGREGATE INTEREST ADJUSTMENT ALLOCATED TO THE BONDS
--------------------------------------------------------------------
Total Excess Allocated to the Bonds 0.00
Less Total Shortfall Allocated to the Bonds 0.00
-----------
Total Interest Adjustment to the Bonds 0.00
===========
PAGE 7 OF 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
ASSET-BACKED FACTS ~ 15 MONTH HISTORICAL LOAN STATUS SUMMARY
------------- --------------------------------------------------------------------------------------------
Delinquency Aging Categories
--------------------------------------------------------------------------------------------
Delinq 1 Month Delinq 2 Months Delinq 3+ Months Foreclosure REO
Distribution
Date # Balance # Balance # Balance # Balance # Balance
------------- --------------------------------------------------------------------------------------------
------------- --------------------------------------------------------------------------------------------
------------- -----------------------------------------------------------------
Special Event Categories (1)
-----------------------------------------------------------------
Modifications Specially Serviced Bankruptcy
Distribution
Date # Balance # Balance # Balance
------------- -----------------------------------------------------------------
------------- -----------------------------------------------------------------
(1) Note: Modification, Specially Serviced & Bankruptcy Totals are Included in the Appropriate Delinquency Aging Category
PAGE 8 OF 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
ASSET-BACKED FACTS ~ 15 MONTH HISTORICAL PAYOFF/LOSS SUMMARY
------------- --------------------------------------------------------------------------------------
Ending Pool (1) Payoffs (2) Penalties Appraisal Reduct. (2)
Distribution
Date # Balance # Balance # Amount # Balance
------------- --------------------------------------------------------------------------------------
------------- --------------------------------------------------------------------------------------
Liquidations (2) Realized Losses (2) Remaining Term Curr Weighted Avg.
Distribution
Date # Balance # Amount Life Coupon Remit
------------- --------------------------------------------------------------------------------------
------------- --------------------------------------------------------------------------------------
PAGE 9 OF 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
MORTGAGE LOAN CHARACTERISTICS
DISTRIBUTION OF PRINCIPAL BALANCES
--------------------------------------------------------------------------------
Current Scheduled # of Scheduled % of Weighted Average
Balance Loans Balance Balance -------------------------
Term Coupon PFY DSCR
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
0 0 0.00%
--------------------------------------------------------------------------------
Average Schedule Balance 0
Maximum Schedule Balance
Minimum Schedule Balance
DISTRIBUTION OF REMAINING TERM (FULLY AMORTIZING)
--------------------------------------------------------------------------------
Fully Amortizing # of Scheduled % of Weighted Average
Mortgage Loans Loans Balance Balance -------------------------
Term Coupon PFY DSCR
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
0 0 0.00%
--------------------------------------------------------------------------------
DISTRIBUTION OF MORTGAGE INTEREST RATES
--------------------------------------------------------------------------------
Current Mortgage # of Scheduled % of Weighted Average
Interest Rate Loans Balance Balance -------------------------
Term Coupon PFY DSCR
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
0 0 0.00%
--------------------------------------------------------------------------------
Minimum Mortgage Interest Rate
Maximum Mortgage Interest Rate
DISTRIBUTION OF REMAINING TERM (BALLOON)
--------------------------------------------------------------------------------
Balloon # of Scheduled % of Weighted Average
Mortgage Loans Loans Balance Balance -------------------------
Term Coupon PFY DSCR
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
0 0 0.00%
--------------------------------------------------------------------------------
PAGE 10 OF 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
DELINQUENT LOAN DETAIL
------------------------------------------------------------------------------------------------------------------------------------
Paid Outstanding Out. Property Loan Status Special
Disclosure Thru Current P&I P&I Protection Code (1) Servicer Foreclosure Bankruptcy REO
Control # Date Advance Advances** Advances Transfer Date Date Date Date
------------------------------------------------------------------------------------------------------------------------------------
TOTAL
------------------------------------------------------------------------------------------------------------------------------------
A. IN GRACE PERIOD 1. DELINQ. 1 MONTH 3. DELINQUENT 3 + MONTHS 5. NON PERFORMING MATURED BALLOON 9. REO
B. LATE PAYMENT BUT < 1 MONTH DELINQ. 2. DELINQ. 2 MONTHS 4. PERFORMING MATURED BALLOON 7. FORECLOSURE
------------------------------------------------------------------------------------------------------------------------------------
** Outstanding P&I Advances include the current period P&I Advances and may include Servicer Advances.
PAGE 11 OF 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
LOAN LEVEL DETAIL
--------------------------------------------------------------------------------------------
Operating Ending
Disclosure Property Maturity PFY Statement Geo. Principal Note
Control # Group Type Date DSCR Date Location Balance Rate
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
-------------------------------------------------------------
Loan
Disclosure Scheduled Prepayment Prepayment Xxxxxx
Xxxxxxx # X&X Amount Date Code (1)
-------------------------------------------------------------
-------------------------------------------------------------
* NOI and DSCR, if available and reportable under the terms of the trust agreement, are based on information obtained from the
related borrower, and no other party to the agreement shall be held liable for the accuracy or methodology used to determine such
figures.
------------------------------------------------------------------------------------------------------------------------------------
(1) Legend: A. In Grace Period 1. Delinquent 1 month 3. Delinquent 3+ months 5. Non Performing 9. REO
Matured Ballon
B. Late Payment but < 1 2. Delinquent 2 months 4. Performing Matured Balloon 7. Foreclosure
month delinq
------------------------------------------------------------------------------------------------------------------------------------
PAGE 12 OF 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
REALIZED LOSS DETAIL
------------------------------------------------------------------------------------------------------------------------------------
Beginning Gross Proceeds Aggregate Net Net Proceeds
Disclosure Appraisal Appraisal Scheduled Gross as a % of Liquidation Liquidation as a % of Realized
Period Control # Date Value Balance Proceeds Sched. Balance Expenses * Proceeds Sched. Balance Loss
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
CURRENT TOTAL
CUMULATIVE
------------------------------------------------------------------------------------------------------------------------------------
* Aggregate liquidation expenses also include outstanding P&I advances and unpaid servicing fees, unpaid trustee fees, etc..
PAGE 13 OF 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
BOND/COLLATERAL REALIZED LOSS RECONCILIATION
Beginning Interest (Shortages)/
Balance of the Aggregate Prior Realized Amounts Covered by Excesses applied
Loan at Realized Loss Loss Applied to Overcollateralization to Realized
Prospectus ID Period Liquidation on Loans Certificates and other Credit Losses
A B C
====================================================================================================================================
CUMULATIVE
Additional (Recoveries)/
Modification (Recoveries)/ Recoveries of Realized Loss
Adjustments/Appraisal Expenses applied to Current Realized Loss Realized Losses Applied to
Prospectus ID Reduction Adjustment Realized Losses Applied to Certificates* paid as Cash Certificate Interest
D E
====================================================================================================================================
CUMULATIVE
*In the Initial Period the Current Realized Loss Applied to Certificates will equal + E instead E Aggregate Realized Loss on Loans -
B - C - D + E of A - C - D + E
Description of Fields
---------------------
A Prior Realized Loss Applied to Certificates
B Reduction to Realized Loss applied to bonds (could represent OC, insurance policies, reserve accounts, etc)
C Amounts classified by the Master as interest adjustments from general collections on a loan with a Realized
Loss
D Adjustments that are based on principal haircut or future interest foregone due to modification
E Realized Loss Adjustments, Supplemental Recoveries or Expenses on a previously liquidated loan
Page 14 of 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
APPRAISAL REDUCTION DETAIL
------------------------- --------------------------------------------- ----------------------------------
Remaining Term
Disclosure Appraisal Scheduled AR Current P&I ASER Note Maturity ---------------
Control# Red. Date Balance Amount Advance Rate Date Life
------------------------- --------------------------------------------- ----------------------------------
--------- ---------------------------------------------
------------------------- --------------------------------------------- ----------------------------------
------------- ----------------------- ------ ----------------
Disclosure Property Geographic Appraisal
Control# Type Location DSCR Value Date
------------- ----------------------- ------ ----------------
------------- ----------------------- ------ ----------------
PAGE 15 OF 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
MATERIAL BREACHES AND MATERIAL DOCUMENT DEFECT DETAIL
------------------------------------------------- --------------------------------------------------------------------------------
Ending Material
Disclosure Principal Breach Material Breach and Material Document Defect
Control # Balance Date Description
------------------------------------------------- --------------------------------------------------------------------------------
------------------------------------------------- --------------------------------------------------------------------------------
Material breaches of pool asset representation or warranties or transaction covenants.
PAGE 16 OF 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
HISTORICAL COLLATERAL LEVEL PREPAYMENT REPORT
--------------------- ----------------------------------------------- ------------------------ ----------------------------------
Disclosure Payoff Initial Payoff Penalty Prepayment Maturity Property Geographic
Control # Period Balance Type Amount Amount Date Date Type Location
--------------------- ----------------------------------------------- ------------------------ ----------------------------------
--------------------- ----------------------------------------------- ------------------------ ----------------------------------
--------------------
CURRENT
CUMULATIVE
--------------------
PAGE 17 OF 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
SPECIALLY SERVICED (PART I) ~ LOAN DETAIL (END OF PERIOD)
--------------------------- ------------- --------------------- ------------------------------------------------
Loan Balance Remaining
Disclosure Servicing Status --------------------- ------------------
Control # Xfer Date Code(1) Schedule Actual Note Rate Maturity Date Life
--------------------------- ------------- --------------------- ------------------------------------------------
------------ ---------------------
--------------------------- ------------- --------------------- ------------------------------------------------
------------------------------------ -----------------------------------------
Property Geo. NOI
Type Location NOI DSCR Date
------------------------------------ -----------------------------------------
------------------------------------ -----------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(1) Legend: A. P&I Adv - in Grace Period 1. P&I Adv - 3. P&I Adv - delinquent 3+ months 5. Non Performing Mat. 9. REO
delinquent 1 month Balloon
B. P&I Adv - < one 2. P&I Adv - 4. Mat. Balloon/Assumed P&I 7. Foreclosure
month delinq delinquent 2 months
------------------------------------------------------------------------------------------------------------------------------------
PAGE 18 OF 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
SPECIALLY SERVICED LOAN DETAIL (PART II) ~ SERVICER COMMENTS (END OF PERIOD)
----------------------------------------------------- ----------------------------------------------------------------------------
Disclosure Resolution
Control # Strategy Comments
----------------------------------------------------- ----------------------------------------------------------------------------
----------------------------------------------------- ----------------------------------------------------------------------------
PAGE 19 OF 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
MATURITY EXTENSION SUMMARY
------------------------------------------------------------------------------------------------------------------------------------
LOANS WHICH HAVE HAD THEIR MATURITY DATES EXTENDED
Number of Loans: 0
Stated Principal Balance outstanding: 0.00
Weighted Average Extension Period: 0
LOANS IN THE PROCESS OF HAVING THEIR MATURITY DATES EXTENDED
Number of Loans: 0
Stated Principal Balance outstanding: 0.00
Weighted Average Extension Period: 0
LOANS IN THE PROCESS OF HAVING THEIR MATURITY DATES FURTHER EXTENDED
Number of Loans: 0
Cutoff Principal Balance: 0.00
Weighted Average Extension Period: 0
LOANS PAID-OFF THAT DID EXPERIENCE MATURITY DATE EXTENSIONS
Number of Loans: 0
Cutoff Principal Balance: 0.00
Weighted Average Extension Period: 0
LOANS PAID-OFF THAT DID NOT EXPERIENCE MATURITY DATE EXTENSIONS
Number of Loans: 0
Cutoff Principal Balance: 0.00
------------------------------------------------------------------------------------------------------------------------------------
PAGE 20 OF 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
RATING INFORMATION
-------------------------- --------------------------------------------------- --------------------------------------------------
ORIGINAL RATINGS RATING CHANGE/CHANGE DATE(1)
CLASS CUSIP FITCH XXXXX'X S&P FITCH XXXXX'X S&P
-------------------------- --------------------------------------------------- --------------------------------------------------
-------------------------- --------------------------------------------------- --------------------------------------------------
NR - Designates that the class was not rated by the rating agency.
(1) Changed ratings provided on this report are based on information provided by the applicable rating agency via electronic
transmission. It shall be understood that this transmission will generally have been provided to LaSalle within 30 days of the
payment date listed on this statement. Because ratings may have changed during the 30 day window, or may not be being provided
by the rating agency in an electronic format and therefore not being updated on this report, LaSalle recommends that investors
obtain current rating information directly from the rating agency.
PAGE 21 OF 22
[LOGO] LASALLE BANK ML-CFC COMMERCIAL MORTGAGE TRUST 2007-6 Statement Date: 13-Apr-07
ABN AMRO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 13-Apr-07
SERIES 2007-6 Prior Payment: N/A
Next Payment: 14-May-07
Record Date: 30-Mar-07
ABN AMRO ACCT:
LEGEND
Until this statement/report is filed with the Commission with respect to the Trust pursuant to Section 15(d) of the Securities
Exchange Act of 1934, as amended, the recipient hereof shall be deemed to keep the information contained herein confidential and
such information will not, without the prior consent of the Master Servicer or the Trustee, be disclosed by such recipient or by its
officers, directors, partners, employees, agents or representatives in any manner whatsoever, in whole or in part.
PAGE 22 OF 22
EXHIBIT C
FORM OF CUSTODIAL CERTIFICATION
[Date]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Mortgage Lending, Inc.
4 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Countrywide Commercial Real Estate Finance, Inc.
0000 Xxxx Xxxxxxx XX-000
Xxxxxxxxx, Xxxxxxxxxx 00000
Wachovia Bank, National Association
8739 Research Drive, URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Xxxxx Fargo Bank, National Association
00 Xxxxxxxx, Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
LNR Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Re: ML-CFC Commercial Mortgage Trust 2007-6,
Commercial Mortgage Pass-Through Certificates, Series 2007-6
Ladies and Gentlemen:
LaSalle Bank National Association, as Trustee, hereby certifies to the
above referenced parties that, with respect to each Mortgage Loan listed in the
Mortgage Loan Schedule, except as specifically identified in the schedule of
exceptions annexed hereto, (i) without regard to the proviso in the definition
of "Mortgage File," all documents specified in clauses (a)(i), (a)(ii),
(a)(iv)(A), (a)(v), (a)(vii) and (b)(i) through (b)(iii) of the definition of
"Mortgage File", and to the extent provided in the related Mortgage File and
actually known by a Responsible Officer of the Trustee or the Custodian to be
required or to the extent listed on the Mortgage Loan
C-1
checklist, if any, provided by the related Mortgage Loan Seller pursuant to the
related Mortgage Loan Purchase Agreement, clauses (a)(iii), (a)(iv)(B),
(a)(iv)(C), (a)(vi) and (a)(viii) through (a)(xii) of the definition of
"Mortgage File", are in its possession, (ii) all documents delivered or caused
to be delivered with respect to a Mortgage Loan by the applicable Mortgage Loan
Seller constituting the related Mortgage File have been reviewed by it and
appear regular on their face, appear to be executed and appear to relate to such
Mortgage Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule for such
Mortgage Loan with respect to the items specified in clauses (v) and (vi)(c) of
the definition of "Mortgage Loan Schedule" is correct.
None of the Trustee, the Master Servicers, 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, enforceable, in recordable form, sufficient or appropriate
for the represented purpose or that they are other than what they purport to be
on their face. Capitalized terms used herein and not otherwise defined shall
have the respective meanings assigned to them under the Pooling and Servicing
Agreement.
Respectfully,
LASALLE BANK NATIONAL ASSOCIATION
________________________________________
Name:___________________________________
Title:__________________________________
X-0
XXXXXXX X-0
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, ML-CFC Commercial Mortgage
Trust 2007-6
Re: ML-CFC Commercial Mortgage Trust 2007-6
Commercial Mortgage Pass-Through Certificates, Series 2007-6
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by you as
Trustee under a certain Pooling and Servicing Agreement dated as of April 1,
2007 (the "Pooling and Servicing Agreement"), by and among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as Depositor, Wachovia Bank, National Association and
Xxxxx Fargo Bank, National Association, as Master Servicers, LNR Partners, Inc.,
as Special Servicer, and you, as Trustee, the undersigned hereby requests a
release of the Mortgage File (or the portion thereof specified below) held by
you with respect to the following described Mortgage Loan for the reason
indicated below.
Property Name:
Property Address:
Control No.:
The Mortgage File should be delivered to the following:
________________________________________
________________________________________
________________________________________
Attn:___________________________________
Phone:__________________________________
D-1-1
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 Master Servicer hereby certifies that all amounts received in
connection with the Mortgage Loan that are required to be credited
to its Collection 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]
[XXXXX FARGO BANK, NATIONAL ASSOCIATION]
as Master Servicer
By:_____________________________________
Name______________________________
Title:____________________________
X-0-0
XXXXXXX X-0
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, ML-CFC Commercial Mortgage
Trust 2007-6
Re: ML-CFC Commercial Mortgage Trust 2007-6,
Commercial Mortgage Pass-Through Certificates, Series 2007-6
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by
you as Trustee under a certain Pooling and Servicing Agreement dated as of April
1, 2007 (the "Pooling and Servicing Agreement"), by and among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as Depositor, Wachovia Bank, National Association and
Xxxxx Fargo Bank, National Association, as Master Servicers, LNR Partners, Inc.,
as Special Servicer, and you, as Trustee, the undersigned hereby requests a
release of the Mortgage File (or the portion thereof specified below) held by
you with respect to the following described Mortgage Loan for the reason
indicated below.
Property Name:
Property Address:
Control No.:
The Mortgage File should be delivered to the following:
_____________________________________________
_____________________________________________
_____________________________________________
Attn: __________________________________
Phone:__________________________________
D-2-1
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
___ 1. Mortgage Loan is being foreclosed.
___ 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 is being foreclosed, in which case the Mortgage File (or such
portion thereof) will be returned when no longer required by us for such
purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
LNR PARTNERS, INC.
as Special Servicer
By:_____________________________________
Name______________________________
Title:____________________________
D-2-2
EXHIBIT E-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
_______________________, 200___
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, ML-CFC Commercial Mortgage
Trust 2007-6
Re: ML-CFC Commercial Mortgage Trust 2007-6, Commercial Mortgage
Pass-Through Certificates, Series 2007-6, Class _____, [having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of April 12, 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 April 1, 2007, between Xxxxxxx Xxxxx Mortgage Investors, Inc., as
Depositor, Wachovia Bank National Association, as Master Servicer No. 1, Xxxxx
Fargo Bank, National Association, as Master Servicer No. 2, LNR Partners, Inc.,
as Special Servicer and LaSalle Bank National Association, as Trustee. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, and for the benefit of the Trustee and the Depositor, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from any and
all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action with respect
to any Transferred Certificate, any
E-1-1
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: ___________________________
E-1-2
EXHIBIT E-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
_______________________, 200___
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, ML-CFC Commercial Mortgage
Trust 2007-6
Re: ML-CFC Commercial Mortgage Trust 2007-6, Commercial Mortgage
Pass-Through Certificates, Series 2007-6, Class _______, [having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of April 12, 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 April 1, 2007, between Xxxxxxx Xxxxx Mortgage Investors, Inc., as
Depositor, Wachovia Bank National Association, as Master Servicer No. 1, Xxxxx
Fargo Bank, National Association, as Master Servicer No. 2, LNR Partners, Inc.,
as Special Servicer and LaSalle Bank National Association, as Trustee. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, and for the benefit of the Trustee and the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the
"Securities Act"), and has completed one of the forms of certification to
that effect attached hereto as Annex 1 and Annex 2. The Transferee is
aware that the sale to it is being made in reliance on Rule 144A. The
Transferee is acquiring the Transferred Certificates for its own account
or for the account of another Qualified Institutional Buyer, and
understands that such Transferred Certificates may be resold, pledged or
transferred only (a) to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own account or for the account
of another Qualified Institutional Buyer and to whom notice is given that
the resale, pledge or transfer is being made in reliance on Rule 144A, or
(b) pursuant to another exemption from registration under the Securities
Act.
E-2A-1
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 Acknowledgment below.
4. Check one of the following:*
[ ] The Transferee is a U.S. Person (as defined below) 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 Trustee (or its agent) with respect to distributions to be
made on the Certificate. The Transferee has attached hereto [(i) a
duly executed IRS Form W-8BEN (or successor form), which identifies
such Transferee as the beneficial owner of the Certificate and
states that such Transferee is not a U.S. Person, (ii) IRS Form
W-8IMY (with all appropriate attachments) or (iii)] **two duly
executed copies of IRS Form W-8ECI (or successor form), which
identify such Transferee as the beneficial owner of the Certificate
and state that interest and original issue discount on the
Certificate and Permitted Investments 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, a corporation or 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, any State thereof or the District of
Columbia, including any entity treated as a corporation or partnership for
federal income tax purposes, an estate whose income is subject to United States
federal income tax regardless of its source or a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more such U.S. Persons have the authority to control all
substantial decisions of such 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).
______________________________
* Each Purchaser must include one of the two alternative certifications.
** Strike bracketed language in the case of the Class R-I and R-II
Certificates.
E-2A-2
Very truly yours,
________________________________________
(Transferee)
By: ____________________________________
Name: ____________________________
Title: ___________________________
Nominee Acknowledgment
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: ___________________________
E-2A-3
ANNEX 1 TO EXHIBIT E-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to _____________________
(the "Transferor") and ______________________________, as Certificate Registrar,
with respect to the mortgage pass-through certificates (the "Transferred
Certificates") described in the Transferee certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended,
because (i) [the Transferee] [each of the Transferee's equity owners] owned
and/or invested on a discretionary basis $______________________(1) in
securities (other than the excluded securities referred to below) as of the end
of such entity's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
_______ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
_______ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
state or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. bank, and not more than 18 months preceding
such date of sale in the case of a foreign bank or equivalent
institution.
__________________________
(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.
E-2A-4
_______ 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.
_______ 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
E-2A-5
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 Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
E-2A-6
________________________________________
(Transferee)
By:_____________________________________
Name:_____________________________
Title:____________________________
Date:_____________________________
E-2A-7
ANNEX 2 TO EXHIBIT E-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to
____________________________ (the "Transferor") and __________________________,
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).
E-2A-8
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.
________________________________________
[Transferee][Adviser]
By:_____________________________________
Name:_____________________________
Title:____________________________
Date: ____________________________
E-2A-9
IF AN ADVISER:
________________________________________
(Transferee)
Date: ____________________________
E-2A-10
EXHIBIT E-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
_______________________, 200___
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, ML-CFC Commercial Mortgage
Trust 2007-6
Re: ML-CFC Commercial Mortgage Trust 2007-6, Commercial Mortgage
Pass-Through Certificates, Series 2007-6, Class _______, [having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of April [ ], 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") 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 April 1, 2007, between Xxxxxxx Xxxxx Mortgage Investors, Inc., as
Depositor, Wachovia Bank National Association, as Master Servicer No. 1, Xxxxx
Fargo Bank, National Association, as Master Servicer No. 2, LNR Partners, Inc.,
as Special Servicer and LaSalle Bank National Association, as Trustee. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, and for the benefit of the Trustee and the Depositor, that:
1. The Transferee is acquiring the Transferred Certificates for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or registered
or qualified under any applicable state securities laws, (b) none of the
Depositor, the Trustee or the Certificate Registrar is obligated so to register
or qualify the Class of Certificates to which the Transferred Certificates
belong, and (c) neither a Transferred Certificate nor any security issued in
exchange therefor or in lieu thereof may be resold or transferred unless it is
(i) registered pursuant to the Securities Act and registered or qualified
pursuant to any applicable state securities laws or (ii) sold or transferred in
transactions which are exempt from such registration and qualification and the
Certificate Registrar has received: (A) a certification from the
Certificateholder desiring to
E-2B-1
effect such transfer substantially in the form attached as Exhibit E-1 to the
Pooling and Servicing Agreement and a certification from such
Certificateholder's prospective transferee substantially in the form attached
either as Exhibit E-2A to the Pooling and Servicing Agreement or as Exhibit E-2B
to the Pooling and Servicing Agreement; or (B) an opinion of counsel
satisfactory to the Trustee with respect to, among other things, the
availability of such exemption from registration under the Securities Act,
together with copies of the written certification(s) from the transferor and/or
transferee setting forth the facts surrounding the transfer upon which such
opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate or interest therein, except in compliance
with the provisions of Section 5.02 of the Pooling and Servicing Agreement,
which provisions it has carefully reviewed, and that each Transferred
Certificate will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS
OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE
TO (A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), OR (B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Transferred
Certificate, any interest in any Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
pledge, disposition or other transfer of any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in any Transferred Certificate or any
other similar security with any person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any interest in any
Transferred Certificate or any other similar security by means of general
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
E-2B-2
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 (as defined below) 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 Trustee (or its agent) with respect to distributions to be
made on the Certificate. The Transferee has attached hereto [(i) a
duly executed IRS Form W-8BEN (or successor form), which identifies
such Transferee as the beneficial owner of the Certificate and
states that such Transferee is not a U.S. Person, (ii) IRS Form
W-8IMY (with all appropriate attachments) or (iii)] **two duly
executed copies of IRS Form W-8ECI (or successor form), which
identify such Transferee as the beneficial owner of the Certificate
and state that interest and original issue discount on the
Certificate and Permitted Investments 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.
_________________________
* Each Purchaser must include one of the two alternative certifications.
** Strike bracketed language in the case of the Class R-I and R-II
Certificates.
E-2B-3
For this purpose, "U.S. Person" means a citizen or resident of the United
States, a corporation or 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, any State thereof or the District of
Columbia, including any entity treated as a corporation or partnership for
federal income tax purposes, an estate whose income is subject to United States
federal income tax regardless of its source or a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more such U.S. Persons have the authority to control all
substantial decisions of such 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:____________________________
E-2B-4
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:____________________________
E-2B-5
EXHIBIT E-2C
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
_______________________, 200___
________________________________________
________________________________________
________________________________________
________________________________________
(Name and Address of Transferor)
Re: ML-CFC Commercial Mortgage Trust 2007-6, Commercial Mortgage
Pass-Through Certificates, Series 2007-6, Class _______, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of April 12, 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 April 1, 2007, between Xxxxxxx Xxxxx Mortgage
Investors, Inc., as Depositor, Wachovia Bank National Association, as Master
Servicer No. 1, Xxxxx Fargo Bank, National Association, as Master Servicer No.
2, LNR Partners, Inc., as Special Servicer and LaSalle Bank National
Association, as Trustee. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to and
agrees with you, and for the benefit of the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act of 1933, as amended (the "Securities Act"), and has completed
one of the forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the Transfer to it of the Transferor's
interest in the Transferred Certificates is being made in reliance on Rule 144A.
The Transferee is acquiring such interest in the Transferred Certificates for
its own account or for the account of another Qualified Institutional Buyer.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or registered
or qualified under any applicable state securities laws, (b) none of the
Depositor, the Trustee or the Certificate Registrar is obligated so to register
or qualify the Transferred Certificates and (c) no interest in the Transferred
Certificates may be resold or transferred unless (i) such Certificates are
registered
E-2C-1
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 E-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 THAT IS
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), OR (B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. The Transferee 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.
5. Check one of the following:*
[ ] The Transferee is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or
successor form).
____________________________
* Each Purchaser must include one of the two alternative certifications.
E-2C-2
[ ] 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 Trustee (or its agent) with respect to distributions to be
made on the Certificate. The Transferee has attached hereto [(i) a
duly executed IRS Form W-8BEN (or successor form), which identifies
such Transferee as the beneficial owner of the Certificate and
states that such Transferee is not a U.S. Person, (ii) IRS Form
W-8IMY (with all appropriate attachments) or (iii)] **two duly
executed copies of IRS Form W-8ECI (or successor form), which
identify such Transferee as the beneficial owner of the Certificate
and state that interest and original issue discount on the
Certificate and Permitted Investments 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, a corporation or 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, any State thereof or the
District of Columbia, including any entity treated as a corporation or
partnership for federal income tax purposes, an estate whose income is
subject to United States federal income tax regardless of its source or a
trust if a court within the United States is able to exercise primary
supervision over the administration of such trust, and one or more such
U.S. Persons have the authority to control all substantial decisions of
such 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:____________________________
____________________________
** Strike bracketed language in the case of the Class R-I and R-II
Certificates.
E-2C-3
ANNEX 1 TO EXHIBIT E-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to
____________________________ (the "Transferor") and for the benefit of Xxxxxxx
Xxxxx Mortgage Investors, Inc. with respect to the mortgage pass-through
certificates being transferred in book-entry form (the "Transferred
Certificates") as described in the Transferee Certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity acquiring interests in the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"),
because (i) [the Transferee] [each of the Transferee's equity owners] owned
and/or invested on a discretionary basis $______________________(1) in
securities (other than the excluded securities referred to below) as of the end
of such entity's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
_______ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
_______ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
state or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. bank, and not more than 18 months preceding
such date of sale in the case of a foreign bank or equivalent
institution.
_______ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or
____________________________
(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.
E-2C-4
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.
_______ 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
E-2C-5
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 the
Yes No Transferred Certificates only for the Transferee's
own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is acquiring any interest in the Transferred Certificates
for an account other than its own, such account belongs to a third party that is
itself a "qualified institutional buyer" within the meaning of Rule 144A, and
the "qualified institutional buyer" status of such third party has been
established by the Transferee through one or more of the appropriate methods
contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's acquisition of any interest in of
the Transferred Certificates will constitute a reaffirmation of this
certification as of the date of such acquisition. In addition, if the Transferee
is a bank or savings and loan as provided above, the Transferee agrees that it
will furnish to such parties any updated annual financial statements that become
available on or before the date of such acquisition, promptly after they become
available.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which the
Transferred Certificates were issued.
E-2C-6
________________________________________
(Transferee)
By:_____________________________________
Name:_____________________________
Title:____________________________
Date: ____________________________
E-2C-7
ANNEX 2 TO EXHIBIT E-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to
____________________________ (the "Transferor") and for the benefit of Xxxxxxx
Xxxxx Mortgage Investors, Inc. 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).
E-2C-8
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
Transfers to the Transferee will be in reliance on Rule 144A.
_________ ________ Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's
own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is acquiring any interest in the Transferred Certificates
for an account other than its own, such account belongs to a third party that is
itself a "qualified institutional buyer" within the meaning of Rule 144A, and
the "qualified institutional buyer" status of such third party has been
established by the Transferee through one or more of the appropriate methods
contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's acquisition of any interest in the Transferred
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such acquisition.
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.
E-2C-9
________________________________________
(Transferee or Adviser)
By:_____________________________________
Name______________________________
Title:____________________________
Date: ____________________________
IF AN ADVISER:
Print Name of Transferee
________________________________________
Date: ____________________________
E-2C-10
EXHIBIT E-2D
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: ML-CFC Commercial Mortgage Trust 2007-6, Commercial Mortgage Pass-Through
Certificates, Series 2007-6, Class _______, having an initial aggregate
[Certificate Principal Balance] [Certificate Notional Amount] as of April
12, 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
Transferred Certificates. The Transferred Certificates were issued pursuant to
the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of April 1, 2007, between Xxxxxxx Xxxxx Mortgage Investors, Inc., as
Depositor, Wachovia Bank National Association, as Master Servicer No. 1, Xxxxx
Fargo Bank, National Association, as Master Servicer No. 2, LNR Partners, Inc.,
as Special Servicer and LaSalle Bank National Association, as Trustee. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to 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
E-2D-1
(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.
The Transferee understands that this certification is required in
connection with certain securities laws of the United States. In connection
therewith, if administrative or legal proceedings are commenced or threatened in
connection with which this certification is or would be relevant, we irrevocably
authorize you to produce this certification to any interested party in such
proceedings.
Dated: __________, _____
Very truly yours,
(Transferee)
By: ____________________________________
Name:
Title:
E-2D-2
EXHIBIT F-1
FORM I OF TRANSFEREE CERTIFICATE REGARDING ERISA MATTERS
(DEFINITIVE NON-REGISTERED CERTIFICATES)
___________________, 200__
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, ML-CFC Commercial Mortgage
Trust 2007-6
Re: ML-CFC Commercial Mortgage Trust 2007-6, Commercial Mortgage
Pass-Through Certificates, Series 2007-6 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
___________________ (the "Transferor") to __________________________________
(the "Transferee") of the Class _______ Certificates (the "Transferred
Certificates") [having an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of April 12, 2007 (the "Closing Date"), of $
______________________ ] [evidencing a ______________% interest in the Classes
to which they belong]. The Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as of April 1, 2007, between Xxxxxxx Xxxxx Mortgage
Investors, Inc., as Depositor, Wachovia Bank National Association, as Master
Servicer No. 1, Xxxxx Fargo Bank, National Association, as Master Servicer No.
2, LNR Partners, Inc., as Special Servicer and LaSalle Bank National
Association, as Trustee. Capitalized terms used but not defined herein shall
have the meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you as follows (check
the applicable paragraph):
_____ [THIS IS THE ONLY CERTIFICATION THAT CAN BE MADE IN CONNECTION
WITH THE CLASS R-I AND R-II CERTIFICATES] The Transferee (A)
is not an employee benefit plan or other retirement
arrangement, including an individual retirement account or
annuity, a Xxxxx plan or a collective investment fund or
separate account in which such plans, accounts or arrangements
are invested, including, without limitation, an insurance
company general account, that is subject to ERISA or Section
4975 of the Code (each, a "Plan"), and (B) is not directly or
indirectly purchasing the Transferred Certificates on behalf
of, as named fiduciary of, as trustee of, or with assets of a
Plan; or
_____ [NOT APPLICABLE TO TRANSFERS OF THE CLASS R-I AND R-II
CERTIFICATES] The Transferee is using funds from an insurance
company general account to acquire the Transferred
Certificates, however, the purchase and holding of such
Certificates by such Person is exempt from the prohibited
transaction provisions
F-1-1
of Sections 406 and 407 of ERISA and the excise taxes imposed
on such prohibited transactions by Section 4975 of the Code,
by reason of Sections I and III of Prohibited Transaction
Class Exemption 95-60.
_____ [NOT APPLICABLE TO TRANSFERS OF THE CLASS R-I AND R-II
CERTIFICATES] The Transferred Certificates are Investment
Grade Certificates and are being acquired by or on behalf of a
Plan; and such Plan (X) is an accredited investor as defined
in Rule 501(a)(1) of Regulation D of the Securities Act and
Prohibited Transaction Exemption 90-29 or 2000-55, (Y) is not
sponsored (within the meaning of Section 3(16)(B) of ERISA) by
the Trustee, the Depositor, any mortgage loan seller, either
Master Servicer, the Special Servicer, any Sub-Servicer, the
Swap Counterparty, any Exemption-Favored Party or any
Mortgagor with respect to Trust Mortgage Loans constituting
more than 5% of the aggregate unamortized principal balance of
all the Trust Mortgage Loans determined on the date of the
initial issuance of the Certificates, or by any Affiliate of
such Person, and (Z) agrees that it will obtain from each of
its Transferees that are Plans a written representation that
such Transferee satisfies the requirements of the immediately
preceding clauses (X) and (Y), together with a written
agreement that such Transferee will obtain from each of its
Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately
preceding clauses (X) and (Y).
_____ [REQUIRED FOR TRANSFERS OF FLOATING RATE CERTIFICATES IF THE
IMMEDIATELY PRECEDING REPRESENTATION IS CHECKED] The
Transferred Certificates are Floating Rate Certificates and
are being acquired by or on behalf of a Plan and the
Transferee represents and warrants that at least one of
Prohibited Transaction Class Exemption 84-14, 90-1, 91-38,
95-60 or 96-23 applies to the Plan's acquisition and holding
of the Transferred Certificates.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of the date first written above.
________________________________________
(Transferee)
By:_____________________________________
Name______________________________
Title:____________________________
F-1-2
EXHIBIT F-2
FORM II OF TRANSFEREE CERTIFICATE REGARDING ERISA MATTERS
(BOOK-ENTRY NON-REGISTERED CERTIFICATES)
___________________, 200__
____________________________________
____________________________________
____________________________________
____________________________________
(Name and Address of Transferor)
Re: ML-CFC Commercial Mortgage Trust 2007-6, Commercial Mortgage
Pass-Through Certificates, Series 2007-6 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
___________________ (the "Transferor") to (the "Transferee") through our
respective Depository Participants of the Transferor's beneficial ownership
interest (currently maintained on the books and records of The Depository Trust
Corporation ("DTC") and the Depository Participants) in Class ______
Certificates (the "Transferred Certificates") having an initial aggregate
[Certificate Principal Balance] [Certificate Notional Amount] as of April 12,
2007 (the "Closing Date"), of $ _____________________. The Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of April 1, 2007,
between Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, Wachovia Bank
National Association, as Master Servicer No. 1, Xxxxx Fargo Bank, National
Association, as Master Servicer No. 2, LNR Partners, Inc., as Special Servicer
and LaSalle Bank National Association, as Trustee. Capitalized terms used but
not defined herein shall have the meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you as follows (check the applicable paragraph):
_____ The Transferee (A) is not an employee benefit plan or other
retirement arrangement, including an individual retirement
account or annuity, a Xxxxx plan or a collective investment
fund or separate account in which such plans, accounts or
arrangements are invested, including, without limitation, an
insurance company general account, that is subject to ERISA or
the Code (each, a "Plan"), and (B) is not directly or
indirectly purchasing the Transferred Certificates on behalf
of, as named fiduciary of, as trustee of, or with assets of a
Plan; or
_____ The Transferee is using funds from an insurance company
general account to acquire the Transferred Certificates,
however, the purchase and holding
F-2-1
of such Certificates by such Person is exempt from the
prohibited transaction provisions of Sections 406 and 407 of
ERISA and the excise taxes imposed on such prohibited
transactions by Section 4975 of the Code, by reason of
Sections I and III of Prohibited Transaction Class Exemption
95-60.
_____ The Transferred Certificates are Investment Grade Certificates
and are being acquired by or on behalf of a Plan; and such
Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act and Prohibited
Transaction Exemption 90-29 or 2000-55, (Y) is not sponsored
(within the meaning of Section 3(16)(B) of ERISA) by the
Trustee, the Depositor, any mortgage loan seller, either
Master Servicer, the Special Servicer, any Sub-Servicer, the
Swap Counterparty, any Exemption-Favored Party or any
Mortgagor with respect to Trust Mortgage Loans constituting
more than 5% of the aggregate unamortized principal balance of
all the Trust Mortgage Loans determined on the date of the
initial issuance of the Certificates, or by any Affiliate of
such Person, and (Z) agrees that it will obtain from each of
its Transferees that are Plans a written representation that
such Transferee satisfies the requirements of the immediately
preceding clauses (X) and (Y), together with a written
agreement that such Transferee will obtain from each of its
Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately
preceding clauses (X) and (Y).
_____ [REQUIRED FOR TRANSFERS OF FLOATING RATE CERTIFICATES IF THE
IMMEDIATELY PRECEDING REPRESENTATION IS CHECKED] The
Transferred Certificates are Floating Rate Certificates and
are being acquired by or on behalf of a Plan and the
Transferee represents and warrants that at least one of
Prohibited Transaction Class Exemption 84-14, 90-1, 91-38,
95-60 or 96-23 applies to the Plan's acquisition and holding
of the Transferred Certificates.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of the date first written above.
F-2-2
________________________________________
(Transferee)
By:_____________________________________
Name______________________________
Title:____________________________
F-2-3
EXHIBIT G-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
REGARDING RESIDUAL INTEREST CERTIFICATES
TRANSFER AFFIDAVIT PURSUANT TO SECTIONS
860D(a)(6)(A) AND 860E(e)(4) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, AND
TREASURY REGULATION SECTION 1.860E-1(c)(4)
Re: ML-CFC Commercial Mortgage Trust 2007-6, Commercial Mortgage
Pass-Through Certificates, Series 2007-6 (the "Certificates"), issued
pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of April 1, 2007, between Xxxxxxx Xxxxx
Mortgage Investors, Inc., as Depositor, Wachovia Bank National
Association, as Master Servicer No. 1, Xxxxx Fargo Bank, National
Association, as Master Servicer No. 2, LNR Partners, Inc., as Special
Servicer, LaSalle Bank National Association, as Trustee.
STATE OF __________________________ )
) ss.: _____________________________
COUNTY OF ________________________ )
The undersigned declares that, to the best knowledge and belief of the
undersigned, the following representations are true, correct and complete:
1. ______________________________ (the "Purchaser"), is acquiring Class
[R-I] [R-II] Certificates representing ________________% of the residual
interest in [each of] the real estate mortgage investment conduit[s] ([each,] a
"REMIC") designated as ["REMIC I"] ["REMIC II"], [respectively], relating to the
Certificates for which an election is to be made under Section 860D of the
Internal Revenue Code of 1986, as amended (the "Code").
2. The Purchaser is not a "Disqualified Organization" (as defined
below), and the Purchaser is not acquiring the Class [R-I] [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
G-1-1
Corporation) and a majority of its board of directors is not selected by such
governmental unit. The terms "United States" and "international organization"
shall have the meanings set forth in Section 7701 of the Code.
3. The Purchaser acknowledges that Section 860E(e) of the Code would
impose a substantial tax on the transferor or, in certain circumstances, on an
agent for the transferee, with respect to any transfer of any interest in any
Class [R-I] [R-II] Certificates to a Disqualified Organization.
4. The Purchaser will not transfer the Class [R-I] [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 2 and 7 hereof are not satisfied, or to any person or entity with
respect to which the Purchaser has not (at the time of such transfer) satisfied
the requirements under the Code to conduct a reasonable investigation of the
financial condition of such person or entity (or its current beneficial owners
if such person or entity is classified as a partnership under the Code).
5. The Purchaser agrees to such amendments of the Pooling and Servicing
Agreement as may be required to further effectuate the prohibition against
transferring the Class [R-I] [R-II] Certificates to a Disqualified Organization,
an agent thereof or a person that does not satisfy the requirements of paragraph
7.
6. The Purchaser consents to the designation of the Trustee as the
agent of the Tax Matters Person of [REMIC I] [REMIC II] pursuant to Section
10.01(d) of the Pooling and Servicing Agreement.
7. No purpose of the acquisition of the Class [R-I] [R-II] Certificates
is to impede the assessment or collection of tax.
[CHOOSE BETWEEN PARAGRAPHS 8 OR 9 BELOW]
8. If the Transferor requires the safe harbor under Treasury
regulations section 1.860E-1 to apply:
i. The Purchaser historically has paid its debts as they have come due
and intends to pay its debts as they come due in the future and the
Purchaser intends to pay taxes associated with holding the Class
[R-I] [R-II] Certificates as they become due.
ii. The Purchaser understands that it may incur tax liabilities with
respect to the Class [R-I] [R-II] Certificates in excess of any cash
flows generated by such Certificates.
iii. The Purchaser is not a foreign permanent establishment or a fixed
base (within the meaning of any applicable income tax treaty between
the United States and any foreign jurisdiction) of a United States
Tax Person.
iv. The Purchaser will not cause the income from the Class [R-I] [R-II]
Certificates to be attributable to a foreign permanent establishment
or fixed base (within the
G-1-2
meaning of any applicable income tax treaty between the United
States and any foreign jurisdiction) of a United States Tax Person.
[IF PARAGRAPH 8 IS CHECKED, CHOOSE BETWEEN (v) AND (vi) BELOW]
[ ] v) In accordance with Treasury Regulations Section 1.860E-1, the
Purchaser:
a) is an "eligible corporation" as defined in Section
1.860E-1(c)(6)(i) of the Treasury regulations (i.e., a domestic C
corporation other than a corporation which is exempt from, or is not
subject to, tax under Section 11 of the Code; a Regulated Investment
Company as defined in Section 851(a) of the Code; a Real Estate
Investment Trust as defined in Section 856(a) of the Code; a REMIC
as defined in Section 860D of the Code; or an organization to which
part I of subchapter T of chapter 1 of subtitle A of the Code
applies, as to which the income of Class [R-I] [R-II] Certificates
will only be subject to taxation in the United States,
b) has, and has had in each of its two preceding fiscal years,
gross assets for financial reporting purposes (excluding any
obligation of a person related to the transferee within the meaning
of Section 1.860E-1(c)(6)(ii) of the Treasury regulations or any
other assets if a principal purpose for holding or acquiring such
asset is to satisfy this condition) in excess of $100 million and
net assets of $10 million, and
c) hereby agrees only to transfer the Certificate to another
"eligible corporation" meeting the criteria set forth in Treasury
regulations section 1.860E-1.
OR
[ ] vi) The Purchaser is a United States Tax Person and the consideration
paid to the Purchaser for accepting the Class [R-I] [R-II]
Certificates is greater than the present value of the anticipated
net federal income taxes and tax benefits ("Tax Liability Present
Value") associated with owning such Certificates, with such present
value computed using a discount rate equal to the "Federal
short-term rate" prescribed by Section 1274 of the Code as of the
date hereof or, to the extent it is not, if the Transferee has
asserted that it regularly borrows, in the ordinary course of its
trade or business, substantial funds from unrelated third parties at
a lower interest rate than such applicable federal rate and the
consideration paid to the Purchaser is greater than the Tax
Liability Present Value using such lower interest rate as the
discount rate, the transactions with the unrelated third party
lenders, the interest rate or rates, the date or dates of such
transactions, and the maturity dates or, in the case of adjustable
rate debt instruments, the relevant adjustment dates or periods,
with respect to such borrowings, are accurately stated in Exhibit A
to this letter
G-1-3
[ ] 9. If the Transferor does not require the safe harbor under Treasury
regulations section 1.860E-1 to apply: [IF PARAGRAPH 9 IS CHECKED, CHOOSE
BETWEEN (i) AND (ii) BELOW] [CHECK THE STATEMENT THAT APPLIES]
[ ] i) The Purchaser is a "United States person" as defined in Section
7701(a) of the Code and the regulations promulgated thereunder (the
Purchaser's U.S. taxpayer identification number is ______________).
The Purchaser is not classified as a partnership under the Code (or,
if so classified, all of its beneficial owners are United States
persons).
OR
[ ] ii) The Purchaser is not a United States person. However, the Purchaser:
a) conducts a trade or business within the United States and,
for purposes of Treasury regulations section 1.860G-3(a)(3), is
subject to tax under Section 882 of the Code;
b) understands that, for purposes of Treasury regulations
section 1.860E-1(c)(4)(ii), as a holder of a Class [R-I] [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] [R-II] Certificate;
c) intends to pay the taxes associated with holding a Class
[R-I] [R-II] Certificate;
d) is not classified as a partnership under the Code (or, if
so classified, all of its beneficial owners either satisfy clauses
(a), (b) and (c) of this sentence or are United States persons); and
e) has furnished the Transferor and the Trustee with an
effective IRS Form W-8ECI or successor form and will update such
form as may be required under the applicable Treasury regulations
Capitalized terms used but not defined herein have the meanings assigned
thereto in the Pooling and Servicing Agreement.
G-1-4
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly
executed on its behalf by its duly authorized officer this _______ day of
_________________________.
By: ____________________________________
Name: __________________________________
Title: _________________________________
Personally appeared before me ___________________________, 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 at his/her free act and deed and at the free act and deed of
the Purchaser.
Subscribed and sworn before me this
_________ day of ______________________,
20_____.
________________________________________
Notary Public
G-1-5
EXHIBIT G-2
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF RESIDUAL CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, ML-CFC Commercial Mortgage
Trust 2007-6
Re: ML-CFC Commercial Mortgage Trust 2007-6, Commercial Mortgage
Pass-Through Certificates, Series 2007-6 (the "Certificates"), Class
[R-I] [R-II]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_____________________________ (the "Transferor") to
_______________________________ (the "Transferee") of the above-captioned
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 April 1, 2007, between Xxxxxxx Xxxxx Mortgage Investors,
Inc., as Depositor, Wachovia Bank National Association, as Master Servicer No.
1, Xxxxx Fargo Bank, National Association, as Master Servicer No. 2, LNR
Partners, Inc., as Special Servicer and LaSalle Bank National Association, as
Trustee. All capitalized terms used but not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual 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 G-1. The Transferor does not
know or believe that any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee (or
the beneficial owners of the Transferee if it is classified as a
partnership under the Internal Revenue Code of 1986, as amended) as
contemplated by Treasury regulations section 1.860E-1(c)(4)(i) and, as a
result of that investigation, the Transferor has determined that the
Transferee has historically paid its debts as they became due and has
found no significant evidence to indicate that the Transferee will not
continue to pay its debts as they become due in the future. The Transferor
understands that the transfer of the Residual Certificates may not
G-2-1
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)
Name:_____________________________
Title:____________________________
G-2-2
EXHIBIT H-1
FORM OF NOTICE AND ACKNOWLEDGMENT
[Date]
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fitch, Inc.
Xxx Xxxxx Xxxxxx 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 April 1, 2007 relating to ML-CFC
Commercial Mortgage Trust 2007-6, Commercial Mortgage Pass-Through Certificates,
Series 2007-6 (the "Agreement"). Any term with initial capital letters not
otherwise defined in this notice has the meaning given such term 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
[name of proposed special servicer] to serve as the Special Servicer under the
Agreement.
The designation of [name of proposed special servicer] as Special
Servicer will become final if certain conditions are met and on the date you
will deliver to LaSalle Bank National Association, the trustee under the
Agreement (the "Trustee"), a written confirmation stating that the appointment
of the person designated to become the Special Servicer will not result in the
qualification, downgrading or withdrawal of the rating or ratings assigned to
one or more Classes of the Certificates.
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.
H-1-1
Very truly yours,
LASALLE BANK NATIONAL ASSOCIATION
By:_____________________________________
Name
Title:
Xxxxx'x Investors Service, Inc. Fitch, Inc.
By: _________________________ By: ________________________
Name: Name:
Title: Title:
Date:________________________ Date:_______________________
X-0-0
XXXXXXX X-0
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, ML-CFC Commercial Mortgage
Trust 2007-6
Re: ML-CFC Commercial Mortgage Trust 2007-6
Commercial Mortgage Pass-Through Certificates, Series 2007-6
Ladies & Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement
dated as of April 1, 2007 relating to ML-CFC Commercial Mortgage Trust 2007-6,
Commercial Mortgage Pass-Through Certificates, Series 2007-6 (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 as Special Servicer. The undersigned hereby makes, as of the
date hereof, the representations and warranties set forth in Section 3.23(b) of
the Agreement as if it were the Special Servicer hereunder.
[Name of Proposed Special Servicer]
________________________________________
By:_____________________________________
Name______________________________
Title:____________________________
X-0-0
XXXXXXX X-0
FORM OF INFORMATION REQUEST FROM
CERTIFICATEHOLDER OR CERTIFICATE OWNER
______________________, 200__
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services,
ML-CFC Commercial Mortgage Trust 0000-0
Xxxxxxxx Bank, National Association
8739 Research Drive, URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Xxxxx Fargo Bank, National Association
00 Xxxxxxxx, Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
LNR Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: ML-CFC Commercial Mortgage Trust 2007-6
Commercial Mortgage Pass-Through Certificates, Series 2007-6
In accordance with the Pooling and Servicing Agreement dated as of
April 1, 2007 (the "Pooling and Servicing Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as depositor (the "Depositor"), Wachovia Bank,
National Association and Xxxxx Fargo Bank, National Association, as master
servicers (each, a "Master Servicer" and collectively, the "Master Servicers"),
LNR Partners, Inc., as special servicer, and LaSalle Bank National Association,
as trustee (the "Trustee"), with respect to the ML-CFC Commercial Mortgage Trust
2007-6, Commercial Mortgage Pass-Through Certificates, Series 2007-6 (the
"Certificates"), the undersigned (the "Investor") hereby certifies and agrees as
follows:
1. The Investor is a [holder] [beneficial owner] of [$__________
aggregate [Certificate Principal Balance/Certificate Notional
Amount] of] [a ___% Percentage Interest in] the Class ____
Certificates.
I-1-1
2. The Investor is requesting access to the following information (the
"Information") solely for use in evaluating the Investor's
investment in the Certificates:
___ The information available on the Master Servicers' internet
websites pursuant to Section 3.15 of the Pooling and Servicing
Agreement.
___ The information available on the Trustee's internet website
pursuant to Sections 3.15 and 4.02 of the Pooling and
Servicing Agreement.
___ The information identified on Schedule I attached hereto
pursuant to Sections 3.15 and 4.02 of the Pooling and
Servicing Agreement.
3. In consideration of either Master Servicer's or the Trustee's
disclosure to the Investor of the Information, the Investor will
keep the Information confidential (except from such outside Persons
as are assisting it in evaluating the Information), and such
Information will not, without the prior written consent of the
applicable Master Servicer or the Trustee, as applicable, be
disclosed by the Investor or by its Affiliates, officers, directors,
partners, shareholders, members, managers, employees, agents or
representatives (collectively, the "Representatives") in any manner
whatsoever, in whole or in part; provided, that the Investor may
provide all or any part of the Information to any other Person that
holds or is contemplating the purchase of any Certificate or
interest therein, but only if such Person confirms in writing such
ownership interest or prospective ownership interest and agrees to
keep it confidential; and provided further, that the Investor may
provide all or any part of the Information to its auditors, legal
counsel and regulators; and provided further, that the Investor
shall not be obligated to keep confidential any Information that has
previously been made available on an unrestricted basis and without
a password via the Trustee's or either Master Servicer's, as
applicable, Internet Website or has previously been filed with the
Securities and Exchange Commission.
4. The Investor will not use or disclose the Information in any manner
that could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended, or that would require registration
of any Non-Registered Certificate pursuant to Section 5 of the
Securities Act.
5. The Investor hereby acknowledges and agrees that:
(a) Neither of the Master Servicers nor the Trustee will make any
representations or warranties as to the accuracy or
completeness of, and will assume no responsibility for, any
report, document or other information delivered pursuant to
this request or made available on its internet website;
(b) Neither of the Master Servicers nor the Trustee has undertaken
any obligation to verify the accuracy or completeness of any
information provided by a Mortgagor, a third party, each other
or any other Person that
I-1-2
is included in any report, document or other information
delivered pursuant to this request or made available on its
respective internet website;
(c) Any transmittal of any report, document or other information
to the Investor by either Master Servicer or the Trustee is
subject to, which transmittal may (but need not be)
accompanied by a letter containing, the following provision:
By receiving the information set forth herein, you
hereby acknowledge and agree that the United States
securities laws restrict any person who possesses
material, non-public information regarding the Trust
which issued Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2007-6, from purchasing or selling such Certificates in
circumstances where the other party to the transaction
is not also in possession of such information. You also
acknowledge and agree that such information is being
provided to you for the purposes of, and such
information may be used only in connection with,
evaluation by you or another Certificateholder,
Certificate Owner or prospective purchaser of such
Certificates or beneficial interest therein;
(d) When delivering any report, document or other information
pursuant to this request, either Master Servicer or the
Trustee may (i) indicate the source thereof and may affix
thereto any disclaimer it deems appropriate in its discretion
and (ii) contemporaneously provide such report, document or
information to the Depositor, the Trustee, any Underwriter,
any Rating Agency or Certificateholders or Certificate Owners.
6. The Investor agrees to indemnify and hold harmless the Master
Servicers, the Special Servicer, the Depositor, the Trustee and the
Trust from any damage, loss, cost or liability (including legal fees
and expenses and the cost of enforcing this indemnity) arising out
of or resulting from any unauthorized use or disclosure of the
Information by the Investor or any of its Representatives. The
Investor also acknowledges and agrees that money damages would be
both incalculable and an insufficient remedy for any breach of the
terms of this letter by the Investor or any of its Representatives
and that either Master Servicer, the Trustee or the Trust may seek
equitable relief, including injunction and specific performance, as
a remedy for any such breach. Such remedies are not the exclusive
remedies for a breach of this letter but are in addition to all
other remedies available at law or equity.
I-1-3
Capitalized terms used in this letter but not defined have the respective
meanings given to them in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Investor has caused its name to be signed hereto
by its duly authorized officer, as of the day and year written above.
[CERTIFICATEHOLDER] [BENEFICIAL
OWNER OF A CERTIFICATE]
By:_____________________________________
Name____________________________________
Title:__________________________________
Telephone No.:__________________________
I-1-4
SCHEDULE I
[DESCRIBE INFORMATION REQUESTED]
I-1-5
EXHIBIT I-2
FORM OF INFORMATION REQUEST FROM PROSPECTIVE INVESTOR
______________________, 200__
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services,
ML-CFC Commercial Mortgage Trust 0000-0
Xxxxxxxx Bank, National Association
8739 Research Drive, URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Xxxxx Fargo Bank, National Association
00 Xxxxxxxx, Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
LNR Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: ML-CFC Commercial Mortgage Trust 2007-6
Commercial Mortgage Pass-Through Certificates, Series 2007-6
(the "Certificates")
In accordance with the Pooling and Servicing Agreement dated as of April
1, 2007 (the "Pooling and Servicing Agreement"), among Xxxxxxx Xxxxx Mortgage
Investors, Inc., as depositor (the "Depositor"), Wachovia Bank, National
Association and Xxxxx Fargo Bank, National Association, as Master Servicers (the
"Master Servicers"), LNR Partners, Inc., as special servicer, and LaSalle Bank
National Association, as trustee (the "Trustee"), with respect to the ML-CFC
Commercial Mortgage Trust 2007-6, Commercial Mortgage Pass-Through Certificates,
Series 2007-6 (the "Certificates"), the undersigned (the "Investor") hereby
certifies and agrees as follows:
1. The Investor is contemplating an investment in the Class ____
Certificates.
2. The Investor is requesting access to the following information (the
"Information") solely for use in evaluating such possible investment
in the Certificates:
I-2-1
___ The information available on the Master Servicers' internet
websites pursuant to Section 3.15 of the Pooling and Servicing
Agreement.
___ The information available on the Trustee's internet website
pursuant to Sections 3.15 and 4.02 of the Pooling and
Servicing Agreement.
___ The information identified on Schedule I attached hereto
pursuant to Sections 3.15 and 4.02 of the Pooling and
Servicing Agreement.
3. In consideration of either Master Servicer's or the Trustee's
disclosure to the Investor of the Information, the Investor will
keep the Information confidential (except from such outside Persons
as are assisting it in evaluating the Information in connection with
the Investor's possible investment), and such Information will not,
without the prior written consent of either Master Servicer or the
Trustee, as applicable, be disclosed by the Investor or by its
Affiliates, officers, directors, partners, shareholders, members,
managers, employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part;
provided, that the Investor may provide all or any part of the
Information to any other Person that holds or is contemplating the
purchase of any Certificate or interest therein, but only if such
Person confirms in writing such ownership interest or prospective
ownership interest and agrees to keep it confidential; and provided
further, that the Investor may provide all or any part of the
Information to its auditors, legal counsel and regulators; and
provided further, that the Investor shall not be obligated to keep
confidential any Information that has previously been made available
on an unrestricted basis and without a password via the Trustee's or
either Master Servicer's, as applicable, Internet Website or has
previously been filed with the Securities and Exchange Commission.
4. The Investor will not use or disclose the Information in any manner
that could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended, or that would require registration
of any Non-Registered Certificate pursuant to Section 5 of the
Securities Act.
5. The Investor hereby acknowledges and agrees that:
(a) Neither of the Master Servicers nor the Trustee will make any
representations or warranties as to the accuracy or
completeness of, and will assume no responsibility for, any
report, document or other information delivered pursuant to
this request or made available on its internet website;
(b) Neither of the Master Servicers nor the Trustee has undertaken
any obligation to verify the accuracy or completeness of any
information provided by a Mortgagor, a third party, each other
or any other Person that is included in any report, document
or other information delivered
I-2-2
pursuant to this request or made available on its respective
internet website;
(c) Any transmittal of any report, document or other information
to the Investor by either Master Servicer or the Trustee is
subject to, which transmittal may (but need not be)
accompanied by a letter containing, the following provision:
By receiving the information set forth herein, you
hereby acknowledge and agree that the United States
securities laws restrict any person who possesses
material, non-public information regarding the Trust
which issued Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2007-6, from purchasing or selling such Certificates in
circumstances where the other party to the transaction
is not also in possession of such information. You also
acknowledge and agree that such information is being
provided to you for the purposes of, and such
information may be used only in connection with,
evaluation by you or another Certificateholder,
Certificate Owner or prospective purchaser of such
Certificates or beneficial interest therein;
(d) When delivering any report, document or other information
pursuant to this request, either Master Servicer or the
Trustee may (i) indicate the source thereof and may affix
thereto any disclaimer it deems appropriate in its discretion
and (ii) contemporaneously provide such report, document or
information to the Depositor, the Trustee, any Underwriter,
any Rating Agency or Certificateholders or Certificate Owners.
6. The Investor agrees to indemnify and hold harmless the Master
Servicers, the Special Servicer, the Depositor, the Trustee and the
Trust from any damage, loss, cost or liability (including legal fees
and expenses and the cost of enforcing this indemnity) arising out
of or resulting from any unauthorized use or disclosure of the
Information by the Investor or any of its Representatives. The
Investor also acknowledges and agrees that money damages would be
both incalculable and an insufficient remedy for any breach of the
terms of this letter by the Investor or any of its Representatives
and that either Master Servicer, the Trustee or the Trust may seek
equitable relief, including injunction and specific performance, as
a remedy for any such breach. Such remedies are not the exclusive
remedies for a breach of this letter but are in addition to all
other remedies available at law or equity.
Capitalized terms used in this letter but not defined have the respective
meanings given to them in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Investor has caused its name to be signed hereto
by its duly authorized officer, as of the day and year written above.
I-2-3
[PROSPECTIVE PURCHASER]
By:_____________________________________
Name______________________________
Title:____________________________
Telephone No.:____________________
I-2-4
SCHEDULE I
[DESCRIBE INFORMATION REQUESTED]
I-2-5
EXHIBIT J
FORM OF EXCHANGE ACT REPORTABLE EVENT NOTIFICATION
VIA EMAIL: XXXXX_XXXXXXX@XX.XXX
VIA TELEPHONE: 000-000-0000*
VIA OVERNIGHT MAIL:
[* IF NOTICE IS GIVEN BY TELEPHONE, SIMILAR NOTICE SHOULD ALSO BE GIVEN BY
E-MAIL]
Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor
4 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx or Director, CMBS Securitizations
Re: Exchange Act Reportable Event Disclosure
Ladies and Gentlemen:
In accordance with Section 8.16 of the Pooling and Servicing
Agreement, dated as of April 1, 2007 (the "Pooling and Servicing Agreement"),
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Wachovia Bank,
National Association and Xxxxx Fargo Bank, National Association, as master
servicers, LNR Partners, Inc., as special servicer, and LaSalle Bank National
Association, 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 Exchange Act Reportable Event:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
List of any Attachments hereto to be included in the Exchange Act Reportable
Event Disclosure:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
J-1
Any inquiries related to this notification should be directed to
[_______________], phone number: [_________]; email address: [_______________].
[NAME OF PARTY],
as [role]
By: ____________________________________
Name:
Title:
J-2
EXHIBIT K
FORM OF DEFEASANCE CERTIFICATION
FOR LOANS HAVING A PRINCIPAL BALANCE OF LESS THAN (A) $20,000,000,
AND (B) 5% OF OUTSTANDING POOL BALANCE, AND WHICH LOAN IS NOT ONE OF
THE 10 LARGEST LOANS IN THE RESPECTIVE POOL
To: [ ]
From: [Wachovia Bank, National Association] [Xxxxx Fargo Bank, National
Association], in its capacity as a Master Servicer (the "Master
Servicer") under the Pooling and Servicing Agreement dated as of April
1, 2007 (the "Pooling and Servicing Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as depositor, Wachovia Bank, National
Association and Xxxxx Fargo Bank, National Association, as master
servicers, LNR Partners, Inc., as special servicer, and LaSalle Bank
National Association, as trustee.
Date: _________, 20___
Re: ML-CFC Commercial Mortgage Trust 2007-6, Commercial Mortgage Pass-Through
Certificates, Series 2007-6 -- Mortgage Loan (the "Mortgage Loan")
heretofore secured by real property known as _______.
Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement.
THE STATEMENTS SET FORTH BELOW ARE MADE (A) TO THE BEST KNOWLEDGE OF THE
UNDERSIGNED BASED UPON DUE DILIGENCE CONSISTENT WITH THE SERVICING STANDARD
SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (THE "SERVICING STANDARD"), AND
(B) WITHOUT INTENDING TO WARRANT THE ACCURACY THEREOF OR UNDERTAKE ANY DUTY OR
STANDARD OF CARE GREATER THAN THE DUTIES OF THE MASTER SERVICER UNDER THE
POOLING AND SERVICING AGREEMENT AND THE SERVICING STANDARD.
We hereby notify you and confirm that each of the following is true,
subject to those exceptions, if any, set forth on Exhibit A hereto, which
exceptions the Master Servicer has determined, consistent with the Servicing
Standard, will have no material adverse effect on the Mortgage Loan or the
defeasance transaction:
1. The Mortgagor has consummated a defeasance of the Mortgage
Loan of the type checked below:
____ a full defeasance of the entire outstanding
principal balance ($___________) of the Mortgage
Loan; or
K-1
____ a partial defeasance of a portion ($__________) of
the Mortgage Loan that represents ___% of the entire
principal balance of the Mortgage Loan ($________);
2. The defeasance was consummated on __________, 20__.
3. The defeasance was completed in all material respects in
accordance with the conditions for defeasance specified in the
Mortgage Loan documents and in accordance with the Servicing
Standard.
4. The defeasance collateral consists only of one or more of the
following: (i) direct debt obligations of the U.S. Treasury,
(ii) direct debt obligations of the Federal National Mortgage
Association, (iii) direct debt obligations of the Federal Home
Loan Mortgage Corporation, or (iv) interest-only direct debt
obligations of the Resolution Funding Corporation. Such
defeasance collateral consists of securities that (i) if they
include a principal obligation, the principal due at maturity
cannot vary or change, (ii) provide for interest at a fixed
rate and (iii) are not subject to prepayment, call or early
redemption.
5. After the defeasance, the defeasance collateral will be owned
by an entity (the "Defeasance Obligor") that: (i) is the
original Mortgagor, (ii) is a Single-Purpose Entity (as
defined in the [ ] Criteria), (iii) is subject to restrictions
in its organizational documents substantially similar to those
contained in the organizational documents of the original
Mortgagor with respect to bankruptcy remoteness and single
purpose, (iv) has been designated as the Defeasance Obligor by
the originator of the Mortgage Loan pursuant to the terms of
the Mortgage Loan documents, or (v) has delivered a letter
from [ ] confirming that the organizational documents of such
Defeasance Obligor were previously approved by Standard &
Poor's. The Defeasance Obligor owns no assets other than
defeasance collateral and (only in the case of the original
Mortgagor) real property securing one or more Mortgage Loans
included in the pool under the Pooling and Servicing Agreement
(the "Pool").
6. If such Defeasance Obligor (together with its affiliates)
holds more than one defeased loan, it does not (together with
its affiliates) hold defeased loans aggregating more than $20
Million or more than five percent (5%) of the aggregate
certificate balance of the Certificates as of the date of the
most recent Distribution Date Statement received by the Master
Servicer (the "Current Report").
7. The defeasance documents require that the defeasance
collateral be credited to an eligible account (as defined in
the [ ] Criteria) that must be maintained as a securities
account by a securities intermediary that is at all times an
Eligible Institution (as defined in the [ ] Criteria). The
securities intermediary may reinvest proceeds of the
defeasance collateral only in
K-2
Permitted Investments (as defined in the Pooling and Servicing
Agreement).
8. The securities intermediary is obligated to pay from the
proceeds of the defeasance collateral, directly to the Master
Servicer's Collection Account, all scheduled payments on the
Mortgage Loan or, in a partial defeasance, not less than 125%
of the portion of such scheduled payments attributed to the
allocated loan amount for the real property defeased (the
"Scheduled Payments").
9. The Servicer received written confirmation from an independent
certified public accountant stating that (i) revenues from the
defeasance collateral (without taking into account any
earnings on reinvestment of such revenues) will be sufficient
to timely pay each of the Scheduled Payments including the
payment in full of the Mortgage Loan (or the allocated portion
thereof in connection with a partial defeasance) on its
Maturity Date, (ii) the revenues received in any month from
the defeasance collateral will be applied to make Scheduled
Payments within four (4) months after the date of receipt,
(iii) the defeasance collateral is not subject to prepayment,
call or early redemption, and (iv) interest income from the
defeasance collateral to the Defeasance Obligor in any tax
year will not exceed such Defeasance Obligor's interest
expense for the Mortgage Loan (or the allocated portion
thereof in a partial defeasance) for such year, other than in
the year in which the Maturity Date or Anticipated Repayment
Date will occur, when interest income will exceed interest
expense.
10. The Master Servicer received opinions of counsel that, subject
to customary qualifications and exceptions, (i) the defeasance
will not cause the Trust to fail to qualify as a REMIC for
purpose of the Internal Revenue Code, (ii) the agreements
executed by the Mortgagor and the Defeasance Obligor in
connection with the defeasance are enforceable against them in
accordance with their terms, and (iii) the Trustee will have a
perfected, first priority security interest in the defeasance
collateral.
11. The agreements executed in connection with the defeasance (i)
prohibit subordinate liens against the defeasance collateral,
(ii) provide for payment from sources other than the
defeasance collateral of all fees and expenses of the
securities intermediary for administering the defeasance and
the securities account and all fees and expenses of
maintaining the existence of the Defeasance Obligor, (iii)
permit release of surplus defeasance collateral and earnings
on reinvestment to the Defeasance Obligor only after the
Mortgage Loan has been paid in full, (iv) include
representations and/or covenants of the Mortgagor and/or
securities intermediary substantially as set forth on Exhibit
B hereto, (v) provide for survival of such representations;
and (vi) do not permit waiver of such representations and
covenants.
K-3
12. The outstanding principal balance of the Mortgage Loan
immediately before the defeasance was less than $20,000,000
and less than 5% of the aggregate certificate balance of the
Certificates as of the date of the Current Report. The
Mortgage Loan is not one of the ten (10) largest loans in the
Mortgage Pool.
13. Copies of all material agreements, instruments, organizational
documents, opinions of counsel, accountant's report and other
items delivered in connection with the defeasance will be
provided to you upon request.
14. The individual executing this notice is an authorized officer
or a servicing officer of the Master Servicer.
IN WITNESS WHEREOF, the Master Servicer has caused this notice to be
executed as of the date captioned above.
[WACHOVIA BANK, NATIONAL ASSOCIATION]
[XXXXX FARGO BANK NATIONAL ASSOCIATION]
as Master Servicer
By:_____________________________________
Name:
Title:
K-4
EXHIBIT L
RELEVENT SERVICING CRITERIA
--------------------------------------------------------------------------------
RELEVANT
SERVICING
SERVICING CRITERIA CRITERIA
--------------------------------------------------------------------------------
REFERENCE CRITERIA
--------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
--------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted Trustee
to monitor any performance or other Master Servicers
triggers and events of default in Special Servicer
accordance with the transaction
agreements.
--------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities Trustee
are outsourced to third parties, Master Servicers
policies and procedures are instituted Special Servicer
to monitor the third party's
performance and compliance with such
servicing activities.
--------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction N/A
agreements to maintain a back-up
servicer for the mortgage loans are
maintained.
--------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and Master Servicers
omissions policy is in effect on the Special Servicer
party participating in the servicing Custodian
function throughout the 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 Trustee
deposited into the appropriate Master Servicers
custodial bank accounts and related Special Servicer
bank clearing accounts no more than two
business days following receipt, or
such other number of days specified in
the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on Trustee
behalf of an obligor or to an investor Master Servicers
are made only by authorized personnel. Special Servicer
--------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees Master Servicers
regarding collections, cash flows or Special Servicer
distributions, and any interest or Trustee
other fees charged for such advances,
are made, reviewed and approved as
specified in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the Trustee
transaction, such as cash reserve Master Servicers
accounts or accounts established as a Special Servicer
form of overcollateralization, are
separately maintained (e.g., with
respect to commingling of cash) as set
forth in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at Trustee
a federally insured depository Master Servicers
institution as set forth in the Special Servicer
transaction agreements. For purposes of
this criterion, "federally insured
depository institution" with respect to
a foreign financial institution means a
foreign financial institution that
meets the requirements of Rule
13k-1(b)(1) under the Securities
Exchange Act.
--------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as Trustee
to prevent unauthorized access. Master Servicers
Special Servicer
--------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a Trustee
monthly basis for all asset-backed Master Servicers
securities related bank accounts, Special Servicer
including custodial accounts and
related bank clearing accounts. These
reconciliations 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
--------------------------------------------------------------------------------
L-1
--------------------------------------------------------------------------------
RELEVANT
SERVICING
SERVICING CRITERIA CRITERIA
--------------------------------------------------------------------------------
REFERENCE CRITERIA
--------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those Trustee
to be filed with the Commission, are
maintained in accordance with the
transaction agreements and applicable
Commission requirements. Specifically,
such reports (A) are prepared in
accordance with timeframes and other
terms set forth in the transaction
agreements; (B) provide information
calculated in accordance with the
terms specified in the transaction
agreements; (C) are filed with the
Commission as required by its rules
and regulations; and (D) agree with
investors' or the trustee's records as
to the total unpaid principal balance
and number of mortgage loans serviced
by the Reporting Servicer.
--------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated Trustee
and remitted in accordance with
timeframes, distribution priority and
other terms set forth in the
transaction agreements.
--------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are Trustee
posted within two business days to
the servicer's investor records, or
such other number of days specified in
the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the Trustee
investor reports agree with cancelled
checks, or other form of payment, or
custodial bank statements.
--------------------------------------------------------------------------------
POOL ASSET ADMINISTRATION
--------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage Trustee
loans is maintained as required by the Master Servicers
transaction agreements or related Special Servicer
mortgage loan documents. Custodian
--------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loans and related documents Trustee
are safeguarded as required by the Master Servicers
transaction agreements Special Servicer
Custodian
--------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or Trustee
substitutions to the asset pool are Master Servicers
made, reviewed and approved in Special Servicer
accordance with any conditions or
requirements in the transaction
agreements.
--------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including Master Servicers
any payoffs, made in accordance with Special Servicer
the related mortgage loan documents
are posted to the 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 Master Servicers
regarding the mortgage loans agree
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 Master Servicers
status of an obligor's mortgage loans Special Servicer
(e.g., loan modifications or
re-agings) are made, 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 Special Servicer
(e.g., forbearance plans,
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 Master Servicers
are maintained during the period a Special Servicer
mortgage loan is delinquent in
accordance with the 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 Master Servicers
of return for mortgage loans with
variable rates are computed based on
the related mortgage loan documents.
--------------------------------------------------------------------------------
L-2
--------------------------------------------------------------------------------
RELEVANT
SERVICING
SERVICING CRITERIA CRITERIA
--------------------------------------------------------------------------------
REFERENCE CRITERIA
--------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for Master Servicers
an obligor (such as escrow 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 Master Servicers
(such as tax or insurance 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 Master Servicers
connection with any payment to be 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 Master Servicers
obligor are posted within two 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 Master Servicers
uncollectible accounts are recognized
and recorded in accordance with the
transaction agreements.
--------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other N/A
support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation
AB, is maintained as set forth in the
transaction agreements.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
X-0
XXXXXXX X-0
FORM OF PURCHASE OPTION NOTICE
[Date]
[Purchase Option Holder]
Re: ML-CFC Commercial Mortgage Trust 2007-6
Commercial Mortgage Pass-Through Certificates, Series 2007-6
Ladies and Gentlemen:
You are the holder of an assignable option (the "Purchase Option")
to purchase Mortgage Loan number ___ from the Trust Fund, pursuant to Section
3.18 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") dated as of April 1, 2007, by and among Xxxxxxx Xxxxx Mortgage
Investors, Inc., as depositor, Wachovia Bank, National Association and Xxxxx
Fargo Bank, National Association, as master servicers, LNR Partners, Inc., as
special servicer, and LaSalle Bank National Association, as trustee. Capitalized
terms used herein and not otherwise defined shall have the meaning set forth in
the Pooling and Servicing Agreement.
This notice is to inform you that the exercise of your Purchase
Option in respect of Mortgage Loan number ___, pursuant to your Purchase Option
Notice dated , a copy of which is attached hereto, is effective. Pursuant to
Section 3.18 of the Pooling and Servicing Agreement and your Purchase Option
Notice, closing of [your] [ 's] acquisition of Mortgage Loan number shall occur
within ten (10) Business Days of your receipt of this notice, at the place and
in the manner described below.
[Describe closing mechanics. Describe documents or instruments
required to be prepared by Purchase Option Holder in connection with assignment
and release of the related Mortgage Loan.]
Upon payment of the Option Price, Mortgage Loan number and the
related Mortgaged Property will be released and the related Mortgage Loan File
will be delivered to [you] [ ] or at [your] [_________'s] direction.
Drafts of such instruments of transfer or assignment, in each case
without recourse, reasonably necessary to vest in [you] or [ ] the ownership of
Mortgage Loan number , together with [describe other documents or instruments
reasonably required to consummate the purchase] should be delivered to [ ] for
review as soon as is practicable.
[Provide Special Servicer contact information.]
M-1-1
Please acknowledge receipt of this letter by signing the enclosed
copy and return it to my attention.
Sincerely, ____________________________
By: ____________________________
Name: ____________________________
Title: ____________________________
Purchase Option Holder's Acknowledgment
By: ____________________________
Name: ____________________________
Title: ____________________________
Date: ____________________________
X-0-0
XXXXXXX X-0
FORM OF PURCHASE OPTION ASSIGNMENT BY
THE SPECIAL SERVICER
THIS ASSIGNMENT OF PURCHASE OPTION (this "Assignment") is made effective
as of [________] by and between LNR Partners, Inc. ("Assignor") and
[_______________] ("Assignee") in connection with (i) the Pooling and Servicing
Agreement dated as of April 1, 2007 (the "Agreement"), by and among Xxxxxxx
Xxxxx Mortgage Investors, Inc., as Depositor, Wachovia Bank, National
Association and Xxxxx Fargo Bank, National Association, as Master Servicers,
Assignor as Special Servicer, and LaSalle Bank National Association, as Trustee
(the "Trustee"), with respect to the ML-CFC Commercial Mortgage Trust 2007-6,
Series 2007-6 (the "Series 2007-6 Securitization"), and (ii) the transfer of the
Loan (defined below) to Assignee.
Capitalized terms used but not otherwise defined in this Assignment shall
have the respective meanings assigned to them in the Agreement.
1. The Trust is the owner of a Mortgage Loan in the original principal
amount of $[________] that is included in the Series 2007-6 Securitization and
is secured by the Mortgaged Property commonly known as
[___________________________] (the "Loan"). The Loan is a Defaulted Mortgage
Loan under the Agreement and is being serviced and administered by Assignor in
its capacity as Special Servicer.
2. Assignor, (i) pursuant to Section 3.18(c) of the Agreement, is the
deemed assignee of the Purchase Option with respect to such Loan [for a 15-day
period], (ii) pursuant to Section 3.18(c) of the Agreement, has the
unconditional right to assign the Purchase Option to a third party, and (iii)
has given all notices, if any, required to be given to any Person in order to
assign the Purchase Option and for the assignee thereof to exercise the Purchase
Option and purchase the Loan pursuant thereto.
3. Assignee intends to purchase the Loan in compliance with the
Agreement and has requested that Assignor assign the Purchase Option to
Assignee, and Assignor desires to assign the Purchase Option to Assignee,
pursuant to the terms and conditions of this Assignment.
NOW THEREFORE, the parties agree as follows:
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Assignor hereby assigns, transfers and conveys to
Assignee all of Assignor's right, title and interest in and to the Purchase
Option with respect to the Loan under Section 3.18 of the Agreement without any
representation or warranty of any kind whatsoever.
This Assignment is being executed by Assignee and Assignor and shall be
binding upon Assignee, Assignor and the respective permitted successors and
assigns of each of them, for the uses and purposes set forth above and shall be
effective as of the date set forth above. This Assignment may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument. Nothing in this
Assignment shall be deemed to create or imply any right or benefit in any person
other than Assignee, Assignor or their respective permitted successors and
assigns.
M-2-1
IN WITNESS WHEREOF, this Assignment has been executed by the parties as of
the date first set forth above.
ASSIGNOR: LNR PARTNERS, INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
ASSIGNEE: [ASSIGNEE]
By:_____________________________________
Name:___________________________________
Title:__________________________________
ASSIGNEE CONTACT INFORMATION:
Address:________________________________
________________________________________
________________________________________
Telephone No.:__________________________
Facsimile:______________________________
X-0-0
XXXXXXX X-0
FORM OF PURCHASE OPTION ASSIGNMENT
BY PLURALITY SUBORDINATE CERTIFICATEHOLDER
THIS ASSIGNMENT OF PURCHASE OPTION (this "Assignment") is made effective
as of [________] by and between Plurality Subordinate Certificateholder(s)
("Assignor") and [_______________] ("Assignee") in connection with (i) the
Pooling and Servicing Agreement dated as of April 1, 2007 (the "Agreement"), by
and among Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, Wachovia Bank,
National Assocaition and Xxxxx Fargo Bank, National Association, as Master
Servicers, LNR Partners, Inc., as Special Servicer, and LaSalle Bank National
Association, as Trustee, with respect to the ML-CFC Commercial Mortgage Trust
2007-6, Commercial Mortgage Pass-Through Certificates, Series 2007-6 (the
"Series 2007-6 Securitization"), and (ii) the transfer of the Loan (defined
below) to Assignee.
Capitalized terms used but not otherwise defined in this Assignment shall
have the respective meanings assigned to them in the Agreement.
1. The Trust is the owner of a Mortgage Loan in the original principal
amount of $[________] that is included in the Series 2007-6
Securitization and is secured by the Mortgaged Property commonly
known as [___________________________] (the "Loan"). The Loan is a
Defaulted Mortgage Loan under the Agreement and is being serviced
and administered by LNR Partners, Inc. as Special Servicer.
2. Assignor (i) is the Plurality Subordinate Certificateholder under
the Agreement, (ii) pursuant to Section 3.18(c) of the Agreement,
holds a Purchase Option with respect to the Loan, (iii) pursuant to
Section 3.18 of the Agreement, has the unconditional right to assign
the Purchase Option to a third party, and (iv) has given all
notices, if any, required to be given to any Person in order to
assign the Purchase Option and for the assignee thereof to exercise
the Purchase Option and purchase the Loan pursuant thereto.
3. Assignee intends to purchase the Loan in compliance with the
Agreement and has requested that Assignor assign the Purchase Option
to Assignee, and Assignor desires to assign the Purchase Option to
Assignee, pursuant to the terms and conditions of this Assignment.
NOW THEREFORE, the parties agree as follows:
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Assignor hereby assigns, transfers and conveys to
Assignee all of Assignor's right, title and interest in and to the Purchase
Option with respect to the Loan under Section 3.18 of the Agreement without any
representation or warranty of any kind whatsoever.
This Assignment is being executed by Assignee and Assignor and shall be
binding upon Assignee, Assignor and the respective permitted successors and
assigns of each of them, for the uses and purposes set forth above and shall be
effective as of the date set forth above. This Assignment may be executed in any
number of counterparts, each of which shall be deemed to
M-3-1
be an original, but all of which together shall constitute one and the same
instrument. Nothing in this Assignment shall be deemed to create or imply any
right or benefit in any person other than Assignee, Assignor or their respective
permitted successors and assigns.
IN WITNESS WHEREOF, this Assignment has been executed by the parties as of
the date first set forth above.
ASSIGNOR: PLURALITY SUBORDINATE
CERTIFICATEHOLDER
By:
Name:___________________________________
Title:__________________________________
ASSIGNEE: [ASSIGNEE]
By:_____________________________________
Name:___________________________________
Title:__________________________________
ASSIGNEE CONTACT INFORMATION:
Address:________________________________
________________________________________
________________________________________
Telephone No.:__________________________
Facsimile:______________________________
M-3-2
EXHIBIT N
[RESERVED]
N-1
EXHIBIT O
FORM OF XXXXXXXX-XXXXX CERTIFICATION
BY THE DEPOSITOR
Re: ML-CFC Commercial Mortgage Trust 2007-6 (the "Trust"), Commercial Mortgage
Pass-Through Certificates, Series 2007-6
I, [identify the certifying individual], certify that (capitalized terms
used herein but not defined shall have the meanings assigned to such terms in
the Pooling and Servicing Agreement, dated as April 1, 2007 (the "Pooling and
Servicing Agreement"), and relating to the Trust:
1. I have reviewed this annual report on Form 10-K, and all reports on
Form 10-D required to be filed in respect of the period covered by this annual
report on Form 10-K of the Trust (the "Exchange Act Periodic Reports");
2. Based on my knowledge, the Exchange Act Periodic 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 this report;;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period covered by
this report is included in the Exchange Act Periodic Reports;
4. Based on my knowledge and the servicer compliance statement(s)
required in this report under Item 1123 of Regulation AB, and except as
disclosed in the Exchange Act Periodic Reports, each Master Servicer and the
Special Servicer have fulfilled their obligations under the Pooling and
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
assessment of compliance with servicing criteria for asset-backed securities
required to be included in this 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 this report, except as otherwise disclosed in this report. Any
material instances of noncompliance described in such reports have been
disclosed in this report on Form 10-K.
In giving the certifications set forth above, I have reasonably relied on
information provided to me by the following unaffiliated parties: Wachovia Bank,
National Association and Xxxxx Fargo Bank, National Association, as Master
Servicers, LNR Partners, Inc., as Special Servicer, and LaSalle Bank National
Association, as Trustee.
O-1
Date: _________________________
Xxxxxxx Xxxxx Mortgage Investors, Inc.
________________________________
[name of certifying individual]
[title of certifying individual]
X-0
XXXXXXX X-0
FORM OF CERTIFICATION TO BE PROVIDED
BY THE MASTER SERVICERS TO THE DEPOSITOR
Re: ML-CFC Commercial Mortgage Trust 2007-6 (the "Trust"), Commercial Mortgage
Pass-Through Certificates, Series 2007-6 (the "Certificates")
I, [identify the certifying individual], a [title] of [Master
Servicer] (the "Master Servicer"), on behalf of [Master Servicer], certify to
Xxxxxxx Xxxxx Mortgage Investors, Inc. and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification in delivering the Xxxxxxxx-Xxxxx Certification required by the
pooling and servicing agreement, dated as of April 1, 2007 (the "Pooling and
Servicing Agreement") and relating to the Trust and the Certificates
(capitalized terms used herein but not defined shall have the meanings assigned
to such terms in the Pooling and Servicing Agreement), that:
1. I (or persons under my supervision) have reviewed the servicing reports
(the "Servicing Reports") relating to the Trust delivered by the Master
Servicer to the Trustee pursuant to the Pooling and Servicing Agreement
during the fiscal year 20__ (the "Fiscal Year");
2. Based on my knowledge (and assuming (a) the accuracy of the statements
required to be made in the corresponding Performance Certification
delivered by the Special Servicer pursuant to Section 8.16(b) of the
Pooling and Servicing Agreement and (b) that the information regarding the
Mortgage Loans, the Mortgagors and the Mortgaged Properties in the
Prospectus Supplement (the "Mortgage Information") does not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statement made, in the light of the circumstances
under which such statements were made, not misleading (but only to the
extent that such Mortgage Information was used by the Master Servicer to
prepare the Servicing Report; provided, however, the Master Servicer has
provided any additional information of which it had actual knowledge to
the extent such information updated the Mortgage Information and was
required to be provided by the Master Servicer pursuant to the Pooling and
Servicing Agreement)), the servicing information in the Servicing 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 Fiscal Year;
3. Based on my knowledge (and assuming the accuracy of the statements
required to be made in the corresponding Performance Certification
delivered by the Special Servicer pursuant to Section 8.16(b) of the
Pooling and Servicing Agreement), all servicing information required to be
provided to the Trustee by the Master Servicer under the Pooling and
Servicing Agreement for inclusion in the reports to be filed by the
Trustee with the Securities and Exchange Commission pursuant to the
Pooling and Servicing Agreement with respect to the Fiscal Year is
included in the Servicing Reports;
4. I am responsible for reviewing the activities performed by the Master
Servicer under the
P-1-1
Pooling and Servicing Agreement and based on my knowledge and the
compliance review conducted in preparing the servicer compliance statement
required in accordance with item 1123 of Regulation AB under the Pooling
and Servicing Agreement with respect to the Master Servicer, and except as
disclosed in such servicer compliance statement delivered by the Master
Servicer under the Pooling and Servicing Agreement, the Master Servicer
has fulfilled its obligations under the Pooling and Servicing Agreement in
all material respects during the Fiscal Year.
5. The Master Servicer's report on assessment of compliance with servicing
criteria and the related attestation report on assessment of compliance
with servicing criteria required to be delivered by the Master Servicer
(in accordance with Item 1122 of Regulation AB) in accordance with the
Pooling and Servicing Agreement discloses all material instances of
noncompliance by the Master Servicer with the Relevant Servicing Criteria.
In addition, notwithstanding the foregoing certifications under clauses
(2) and (3) above, the Master Servicer does not make any certification under
such clauses (2) and (3) above with respect to the information in the Servicing
Reports referred to in such clauses (2) and (3) above that is in turn dependent
upon information provided by the Special Servicer under the Pooling and
Servicing Agreement beyond the corresponding Performance Certification actually
provided by the Special Servicer. Further, notwithstanding the foregoing
certifications, the Master Servicer does not make any certification under the
foregoing clauses (1) through (5) that is in turn dependent upon: (i)
information required to be provided by any Sub-Servicer that is a Designated
Sub-Servicer, or the performance by any such Sub-Servicer of its obligations
pursuant to the related Sub-Servicing Agreement, in each case beyond the
respective corresponding backup certifications actually provided by such
Sub-Servicer to the Master Servicer with respect to the information that is the
subject of such certification.
Date: __________________________________
________________________________________
[Name]
[Title]
[MASTER SERVICER]
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATION TO BE PROVIDED
BY THE TRUSTEE TO THE DEPOSITOR
Re: ML-CFC Commercial Mortgage Trust 2007-6 (the "Trust"),
Commercial Mortgage Pass-Through Certificates, Series 2007-6
I, [identify the certifying individual], a [title] of [Trustee],
certify to Xxxxxxx Xxxxx Mortgage Investors, Inc. and its officers, directors
and affiliates, and with the knowledge and intent that they will rely upon this
certification in delivering the Xxxxxxxx-Xxxxx Certification required by the
pooling and servicing agreement, dated as April 1, 2007 (the "Pooling and
Servicing Agreement") and related to the Trust and the captioned commercial
mortgage pass-through certificates (capitalized terms used herein but not
defined shall have the meanings assigned to such terms in the Pooling and
Servicing Agreement), that:
1. I have reviewed the annual report on Form 10-K for the fiscal year 20__
(the "Annual Form 10-K Report"), and all reports on Form 10-D required to
be filed in respect of periods covered by the annual report on Form 10-K,
of the Trust (the "Exchange Act Periodic Reports");
2. Based on my knowledge, and (with respect to information provided by either
Master Servicer or the Special Servicer, as the case may be) assuming the
accuracy of the statements made in the corresponding certifications of the
Master Servicers and the Special Servicer pursuant to Section 8.16(b) of
the Pooling and Servicing Agreement, (i) the information relating to
LaSalle Bank National Association ("LaSalle Bank") or the Trustee, (ii)
the information relating to distributions on, or calculations performed by
the Trustee with respect to, the Certificates (including such information
contained in the distribution reports filed with the Exchange Act Periodic
Reports) and (iii) any other information prepared by LaSalle Bank, in each
case as contained in the 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 the Annual Form 10-K Report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided (i) to the Trustee by the Master
Servicers and the Special Servicer under the Pooling and Servicing
Agreement and (ii) by the Trustee under the Pooling and Servicing
Agreement, in each case for inclusion in the Exchange Act Periodic Reports
is included in such reports; and
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 by the Trustee in accordance with the
Pooling and Servicing Agreement discloses, with respect to the Trustee,
all material instances of noncompliance with the Relevant Servicing
P-2-1
Criteria and such assessment of compliance with servicing criteria is
fairly stated in all material respects.
Date: __________________________________
________________________________________
[Name]
[Title]
[TRUSTEE]
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATION TO BE PROVIDED
BY THE SPECIAL SERVICER TO THE DEPOSITOR
Re: ML-CFC Commercial Mortgage Trust 2007-6 (the "Trust"), Commercial Mortgage
Pass-Through Certificates, Series 2007-6 (the "Certificates")
I, [identify the certifying individual], a [title] of [Special
Servicer] (the "Special Servicer"), on behalf of the Special Servicer, certify
to Xxxxxxx Xxxxx Mortgage Investors, Inc. and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification in delivering the Xxxxxxxx-Xxxxx Certification required by the
pooling and servicing agreement, dated as of April 1, 2007 (the "Pooling and
Servicing Agreement") and relating to the Trust and the Certificates
(capitalized terms used herein but not defined shall have the meanings assigned
to such terms in the Pooling and Servicing Agreement), that:
1. I (or persons under my supervision) have reviewed the servicing reports
(the "Servicing Reports") relating to the Trust delivered by the Special
Servicer to the Master Servicers and the Trustee pursuant to the Pooling
and Servicing Agreement during the fiscal year 20__ (the "Fiscal Year");
2. Based on my knowledge, the servicing information in the Servicing 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 Fiscal Year;
3. Based on my knowledge, the servicing information required to be provided
to the Master Servicers and the Trustee by the Special Servicer under the
Pooling and Servicing Agreement with respect to the Fiscal Year is
included in the Servicing Reports;
4. I am responsible for reviewing the activities performed by the Special
Servicer under the Pooling and Servicing Agreement and based on my
knowledge and the compliance review conducted in preparing the servicer
compliance statement required under the Pooling and Servicing Agreement
with respect to the Special Servicer, and except as disclosed in such
servicer compliance statement delivered by the Special Servicer under the
Pooling and Servicing Agreement, the Special Servicer has fulfilled its
obligations under the Pooling and Servicing Agreement in all material
respects during the Fiscal Year; and
5. The Special Servicer's report on assessment of compliance with servicing
criteria and the related attestation report on assessment of compliance
with servicing criteria required under the Pooling and Servicing Agreement
discloses all material instances of noncompliance by the Special Servicer
with the Relevant Servicing Criteria.
P-3-1
[TO BE DELETED OR MODIFIED TO REFLECT THE ABSENCE OF ANY UNAFFILIATED
PARTY OR SUB-SERVICER: In addition, I have, in giving the certifications above,
reasonably relied on information provided to me by [______________] (each, an
unaffiliated party) and, notwithstanding the foregoing certifications, neither I
nor the Special Servicer makes any certification under the foregoing clauses (1)
through (5) that is in turn dependent upon: (i) information required to be
provided by any Sub-Servicer acting under a Sub-Servicing Agreement or (ii) the
performance by any such Sub-Servicer of its obligations pursuant to any such
Sub-Servicing Agreement.]
Date: __________________________________
________________________________________
[Name]
[Title]
[SPECIAL SERVICER]
P-3-2
