EXHIBIT 4.1
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Depositor
and
KEYCORP REAL ESTATE CAPITAL MARKETS, INC.
Master Servicer No. 1
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Master Servicer No. 2
and
MIDLAND LOAN SERVICES, INC.
Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION
Trustee and Custodian
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2007
-----------------------
$2,435,364,704 (approximate)
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.................................................
Section 1.02 Certain Adjustments to the Principal
Distributions on the Certificates.............................
ARTICLE II
CONVEYANCE OF TRUST MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Trust Mortgage Loans............................
Section 2.02 Acceptance of the Trust Fund by Trustee;
Receipt of the Mortgage Files by the Custodian................
Section 2.03 Mortgage Loan Seller's Repurchase or
Substitution of Trust Mortgage Loans for
Document Defects and Breaches of
Representations and Warranties................................
Section 2.04 Representations and Warranties of Depositor...................
Section 2.05 Acceptance of REMIC I, Grantor Trust Y and
Grantor Trust Z by Trustee....................................
Section 2.06 Execution, Authentication and Delivery of Class
R-I Certificates; Issuance of REMIC I Regular
Interests.....................................................
Section 2.07 Conveyance of REMIC I Regular Interests;
Acceptance of REMIC II by Trustee.............................
Section 2.08 Execution, Authentication and Delivery of REMIC
II Regular Certificates and Class R-II
Certificates..................................................
Section 2.09 Execution, Authentication and Delivery of Class
Y Certificates................................................
Section 2.10 Execution, Authentication and Delivery of Class
Z Certificates................................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Mortgage Loans..........................
Section 3.02 Collection of Mortgage Loan Payments..........................
Section 3.03 Collection of Taxes, Assessments and Similar
Items; Servicing Accounts; Reserve Accounts...................
Section 3.04 Collection Accounts, Interest Reserve Account,
Additional Interest Accounts, Distribution
Account, Gain-on-Sale Reserve Account and Loan
Combination Custodial Accounts................................
Section 3.05 Permitted Withdrawals From the Collection
Accounts, the Interest Reserve Account, the
Additional Interest Accounts, the Gain-on-Sale
Reserve Account, the Distribution Account and
the Loan Combination Custodial Accounts.......................
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
Accounts, the Gain-on-Sale Reserve Account and
the REO Accounts..............................................
Section 3.07 Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage...............................
Section 3.08 Enforcement of Alienation Clauses.............................
Section 3.09 Realization Upon Defaulted Mortgage Loans;
Required Appraisals...........................................
Section 3.10 Trustee and Custodian to Cooperate; Release of
Mortgage Files................................................
Section 3.11 Servicing Compensation........................................
Section 3.12 Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.......................
Section 3.13 Annual Statement as to Compliance.............................
Section 3.14 Reports on Assessment of Compliance with
Servicing Criteria; Registered Public
Accounting Firm Attestation Reports...........................
Section 3.15 Access to Certain Information.................................
Section 3.16 Title to REO Property; REO Accounts...........................
Section 3.17 Management of REO Property....................................
Section 3.18 Resolution of Defaulted Mortgage Loans and REO
Properties....................................................
Section 3.19 Additional Obligations of the Master Servicers................
Section 3.20 Modifications, Waivers, Amendments and Consents...............
Section 3.21 Transfer of Servicing Between the Master
Servicers and the Special Servicer; Record
Keeping.......................................................
Section 3.22 Sub-Servicing Agreements......................................
Section 3.23 Representations and Warranties of the Master
Servicers and the Special Servicer............................
Section 3.24 Sub-Servicing Agreement Representation and
Warranty......................................................
Section 3.25 Designation of Controlling Class Representative...............
Section 3.26 Application of Default Charges................................
Section 3.27 Controlling Class Representative Contact with
Servicer......................................................
Section 3.28 Certain Matters Regarding the Loan Combinations...............
Section 3.29 Matters Relating to Certain Mortgage Loans....................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.................................................
Section 4.02 Statements to Certificateholders..............................
Section 4.03 P&I Advances; Reimbursement of P&I Advances and
Servicing Advances............................................
Section 4.04 Allocation of Realized Losses and Additional
Trust Fund Expenses...........................................
Section 4.05 Calculations..................................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates..............................................
Section 5.02 Registration of Transfer and Exchange of
Certificates..................................................
Section 5.03 Book-Entry Certificates.......................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen
Certificates..................................................
Section 5.05 Persons Deemed Owners.........................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS, THE SPECIAL SERVICER AND THE
CONTROLLING CLASS REPRESENTATIVE
Section 6.01 Liability of Depositor, Master Servicers and
Special Servicer..............................................
Section 6.02 Merger, Consolidation or Conversion of
Depositor or Master Servicers or Special
Servicer......................................................
Section 6.03 Limitation on Liability of the Depositor, the
Master Servicers, the Special Servicer and
Others........................................................
Section 6.04 Resignation of Master Servicers and the Special
Servicer......................................................
Section 6.05 Rights of Depositor and Trustee in Respect of
Master Servicers and the Special Servicer.....................
Section 6.06 Depositor, Master Servicers and Special
Servicer to Cooperate with Trustee............................
Section 6.07 Depositor, Special Servicer and Trustee to
Cooperate with Master Servicer................................
Section 6.08 Depositor, Master Servicers and Trustee to
Cooperate with Special Servicer...............................
Section 6.09 Designation of Special Servicer by the
Controlling Class.............................................
Section 6.10 Either Master Servicer or Special Servicer as
Owner of a Certificate........................................
Section 6.11 The Controlling Class Representative..........................
Section 6.12 Certain Matters with Respect to the MezzCap
Loan Combination..............................................
Section 6.13 Certain Matters with Respect to the Farallon
Portfolio Loan Combination....................................
Section 6.14 Certain Matters with Respect to the
Georgia-Alabama Retail Portfolio Loan
Combination...................................................
Section 6.15 Certain Matters with Respect to the
Securitization of any Non-Trust Loan..........................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.............................................
Section 7.02 Trustee to Act; Appointment of Successor......................
Section 7.03 Notification to Certificateholders............................
Section 7.04 Waiver of Events of Default...................................
Section 7.05 Additional Remedies of Trustee Upon Event of
Default.......................................................
ARTICLE VIII
CONCERNING THE TRUSTEE, THE CUSTODIAN AND THE FISCAL AGENT
Section 8.01 Duties of Trustee and Custodian...............................
Section 8.02 Certain Matters Affecting Trustee and Custodian...............
Section 8.03 Trustee, Custodian and Fiscal Agent Not Liable
for Validity or Sufficiency of Certificates or
Mortgage Loans................................................
Section 8.04 Trustee, Custodian and Fiscal Agent May Own
Certificates..................................................
Section 8.05 Fees and Expenses of Trustee and Custodian;
Indemnification of and by the Trustee and
Custodian.....................................................
Section 8.06 Eligibility Requirements for Trustee and
Custodian.....................................................
Section 8.07 Resignation and Removal of Trustee and
Custodian.....................................................
Section 8.08 Successor Trustee and Custodian...............................
Section 8.09 Merger or Consolidation of Trustee or Custodian...............
Section 8.10 Appointment of Co-Trustee or Separate Trustee.................
Section 8.11 [RESERVED]....................................................
Section 8.12 Appointment of Authenticating Agents..........................
Section 8.13 Access to Certain Information.................................
Section 8.14 Appointment of REMIC Administrators...........................
Section 8.15 Representations, Warranties and Covenants of
the Trustee and the Custodian.................................
Section 8.16 Reports to the Commission.....................................
Section 8.17 Maintenance of Mortgage File..................................
Section 8.18 Appointment of Fiscal Agent...................................
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of
All Trust Mortgage Loans......................................
Section 9.02 Additional Termination Requirements...........................
Section 9.03 Non-Trust Loans...............................................
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 REMIC Administration..........................................
Section 10.02 Grantor Trust Administration..................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.....................................................
Section 11.02 Recordation of Agreement; Counterparts........................
Section 11.03 Limitation on Rights of Certificateholders....................
Section 11.04 Governing Law; Waiver of Trial By Jury........................
Section 11.05 Notices.......................................................
Section 11.06 Severability of Provisions....................................
Section 11.07 Grant of a Security Interest..................................
Section 11.08 Xxxxxx Act....................................................
Section 11.09 Successors and Assigns; Beneficiaries.........................
Section 11.10 Article and Section Headings..................................
Section 11.11 Notices to Rating Agencies....................................
Section 11.12 Complete Agreement............................................
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 Class A-SB Planned Principal Balances
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
Schedule VII List of Merrill Trust Mortgage Loans With Late Payment Charges
Due Prior to Expiration of Their Payment Date Grace Periods
Exhibit No. Exhibit Description
------------- ---------------------------------------------------------------
A-1 Form of Class X-0, X-0, X-XX, X-0 and A-1A Certificates
A-2 [RESERVED]
A-3 Form of Class X Certificate
A-4 Form of Class AM, AJ, AM-A, AJ-A, B, C, D, E and F Certificates
A-5 Form of Class G, H, J and K Certificates
A-6 Form of Class L, M, N, P, Q, S and T Certificates
A-7 Form of Class R-I and R-II Certificates
A-8 Form of Class Y and Z Certificates
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
I-2 Form of Information Request from Prospective Investor
J Form of Exchange Act Reportable Event Notification
K Form of S&P 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 the Master Servicers 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
Q Broker Strip Loans
POOLING AND SERVICING AGREEMENT
This Pooling and Servicing Agreement is dated and effective
as of August 1, 2007, among XXXXXXX XXXXX MORTGAGE INVESTORS, INC., as
Depositor, KEYCORP REAL ESTATE CAPITAL MARKETS, INC., as Master
Servicer No. 1, XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Master
Servicer No. 2, MIDLAND LOAN SERVICES, INC., as Special Servicer, and
LASALLE BANK NATIONAL ASSOCIATION, as Trustee and Custodian.
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 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
REMIC II Regular Certificates 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 Sequential Pay Certificates; (ii) the Original Class Principal Balance
or Original Notional Amount for each Class of Sequential Pay Certificates; (iii)
the corresponding REMIC I Regular Interest (the "Corresponding REMIC I Regular
Interest") for each Class of REMIC II Regular Certificates; and (iv) the initial
REMIC I Principal Balance of each such Corresponding REMIC I Regular Interest.
Original Class
Class Principal Balance or Corresponding REMIC I Initial REMIC I
Designation Original Notional Amount Regular Interest Principal Balance
--------------- ------------------------ --------------------- -----------------
Class A-1 $37,260,000 LA-1 $37,260,000
Class A-2 $122,485,000 LA-2 $122,485,000
Class A-SB $72,676,000 LA-SB $72,676,000
Class A-3 $655,815,000 LA-3 $655,815,000
Class AM $126,891,000 XXX $126,891,000
Class AJ $109,443,000 LAJ $109,443,000
Class A-1A $816,519,000 LA-1A $816,519,000
Class AM-A $116,645,000 XXX-A $116,645,000
Class AJ-A $100,607,000 LAJ-A $100,607,000
Class B $12,177,000 LB $12,177,000
Class C $39,575,000 LC $39,575,000
Class D $27,398,000 LD $27,398,000
Class E $9,132,000 LE $9,132,000
Class F $18,266,000 LF $18,266,000
Class G $21,309,000 LG $21,309,000
Class H $33,486,000 LH $33,486,000
Class J $24,354,000 LJ $24,354,000
Class K $15,221,000 LK $15,221,000
Class L $15,221,000 LL $15,221,000
Class M $9,133,000 LM $9,133,000
Class N $3,044,000 LN $3,044,000
Class P $3,044,000 LP $3,044,000
Class Q $6,089,000 LQ $6,089,000
Class S $3,044,000 LS $3,044,000
Class T $36,530,703 LT $36,530,703
Class X $2,435,364,703(1) N/A $2,435,364,703(1)
------
(1) Original Notional Amount.
The Farallon Portfolio Trust Mortgage Loan is part of a group of
loans comprised of that Farallon Portfolio Trust Mortgage Loan and various other
mortgage loans, namely the Farallon Portfolio Non-Trust Loans, that are secured
by the same Mortgage encumbering the Farallon Portfolio Mortgaged Property. The
Farallon Portfolio Trust Mortgage Loan and the Farallon Portfolio Non-Trust
Loans collectively constitute a Loan Combination. The Farallon Portfolio A-Note
Trust Loan and the Farallon Portfolio A-Note Non-Trust Loans are collectively
referred to herein as the Farallon Portfolio Senior Loans. The Farallon
Portfolio B-Note Trust Loan and the Farallon Portfolio B-Note Non-Trust Loans
are collectively referred to herein as the Farallon Portfolio Junior Loans. The
relative rights of the holders of the Farallon Portfolio Trust Mortgage Loan and
the holders of the Farallon Portfolio Non-Trust Loans are set forth in the
Farallon Portfolio Intercreditor Agreement. As and to the extent provided in the
Farallon Portfolio Intercreditor Agreement, the Farallon Portfolio A-Note
Non-Trust Loans are equal in priority in respect of payment with the Farallon
Portfolio A-Note Trust Loans and the Farallon Portfolio B-Note Non-Trust Loans
are junior in priority in respect of payment to the Farallon Portfolio Senior
Loans and equal in priority in respect of payment to the Farallon Portfolio
B-Note Trust Loans.
The Georgia-Alabama Retail Portfolio Trust Mortgage Loan is part of
a group of loans comprised of that Georgia-Alabama Retail Portfolio Trust
Mortgage Loan and two other mortgage loans, namely the Georgia-Alabama Retail
Portfolio A-Note Non-Trust Loan and the Georgia-Alabama Retail Portfolio B-Note
Non-Trust Loan, that are secured by the same Mortgage encumbering the
Georgia-Alabama Retail Portfolio Mortgaged Property. The Georgia-Alabama Retail
Portfolio Trust Mortgage Loan, the Georgia-Alabama Retail Portfolio A-Note
Non-Trust Loan and the Georgia-Alabama Retail Portfolio B-Note Non-Trust Loan
collectively constitute a Loan Combination. The Georgia-Alabama Retail Portfolio
A-Note Trust Mortgage Loan and the Georgia-Alabama A-Note Non-Trust Loan are
collectively referred to herein as the Georgia-Alabama Retail Portfolio Senior
Loans. The Georgia-Alabama Retail Portfolio B-Note Trust Mortgage Loan and the
Georgia-Alabama B-Note Non-Trust Loan are collectively referred to herein as the
Georgia-Alabama Retail Portfolio Junior Loans. The relative rights of the holder
of the Georgia-Alabama Retail Portfolio Trust Mortgage Loan, the holder of the
Georgia-Alabama Retail Portfolio A-Note Non-Trust Loan and the holder of the
Georgia-Alabama Retail Portfolio B-Note Non-Trust Loan are set forth in the
Georgia-Alabama Retail Portfolio Intercreditor Agreement. As and to the extent
provided in the Georgia-Alabama Retail Portfolio Intercreditor Agreement, the
Georgia-Alabama Retail Portfolio A-Note Non-Trust Loan is equal in priority in
respect of payment with the Georgia-Alabama Retail Portfolio A-Note Trust Loan
and the Georgia-Alabama Retail Portfolio B-Note Non-Trust Mortgage Loan is
junior in priority in respect of payment with the Georgia-Alabama Retail
Portfolio Senior Loans.
The Executive Hills Portfolio A-Note Trust Mortgage Loan is a 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. The above
Executive Hills Portfolio A-Note Trust Mortgage Loan and the related B-Note
Non-Trust Loan collectively constitute a Loan Combination. The relative rights
of the holders of the Executive Hills Portfolio 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, the related B-Note Non-Trust
Loan is subordinate in right of payment and in other respects to the Executive
Hills Portfolio A-Note Trust Mortgage Loan.
The Peninsula Xxxxxxx Hills A-Note Trust Mortgage Loan is a 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. The above
Peninsula Xxxxxxx Hills A-Note Trust Mortgage Loan and the related B-Note
Non-Trust Loan collectively constitute a Loan Combination. The relative rights
of the holders of the Peninsula Xxxxxxx Hills 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, the related B-Note Non-Trust
Loan is subordinate in right of payment and in other respects to the Peninsula
Xxxxxxx Hills A-Note Trust Mortgage Loan.
The Timbercreek Apartments Trust Mortgage Loan is a 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. The above Timbercreek
Apartments Trust Mortgage Loan and the related B-Note Non-Trust Loan
collectively constitute a Loan Combination. The relative rights of the holders
of the Timbercreek Apartments 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, the related B-Note Non-Trust Loan is
subordinate in right of payment and in other respects to the Timbercreek
Apartments Trust Mortgage Loan.
As and to the extent provided herein, the Non-Trust Loans (other
than the Georgia-Alabama Retail Portfolio 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
Georgia-Alabama Retail Portfolio Loan Combination will not be serviced and
administered in accordance with this Agreement but rather, serviced and
administered pursuant to the Other Pooling and Servicing Agreement.
The portion of the Trust Fund consisting of (i) the Additional
Interest on any Trust Converting Loan and related amounts held from time to time
in the Collection Accounts and/or the Trust Converting Loan Additional Interest
Account that represent Additional Interest on any Trust Converting Loan shall be
treated as a grantor trust for federal income tax purposes, and such grantor
trust will be designated as "Grantor Trust Y" and (ii) the Additional Interest
on any ARD Loan and related amounts held from time to time in the Collection
Accounts, the Trust ARD Loan Additional Interest Account that represent
Additional Interest on any ARD Loan and related amounts held from time to time
in the Collection Accounts shall be treated as a grantor trust for federal
income tax purposes, and such grantor trust will be designated as "Grantor Trust
Z." As provided herein, the Trustee shall take all actions reasonably necessary
to ensure that each of the respective portions of the Trust Fund consisting of
Grantor Trust Y and Grantor Trust Z maintains its status as a "grantor trust"
under federal income tax law and is not treated as part of REMIC I or REMIC II.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicers, the Special Servicer, the Trustee and the
Custodian agree as follows:
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.
"A-Note Non-Trust Mortgage Loan": The Farallon Portfolio A-Note
Non-Trust Loan and the Georgia-Alabama Retail Portfolio A-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 an A-Note Non-Trust Loan and/or B-Note Non-Trust Loan, which A-Note
Non-Trust Loan and/or B-Note Non-Trust Loan will not be included in the Trust
Fund. The Timbercreek Apartments Trust Mortgage Loan, the Farallon Portfolio
A-Note Trust Mortgage Loan, the Georgia-Alabama Retail Portfolio A-Note Trust
Mortgage Loan, the Executive Hills Portfolio A-Note Trust Mortgage Loan and the
Peninsula Xxxxxxx Hills 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.
"Accrued Certificate Interest": With respect to any Class of
Sequential Pay Certificates for any Distribution Date, one month's interest at
the Pass-Through Rate applicable to such Class of Certificates 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.
"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 Component for any Distribution Date,
shall be deemed to accrue during the calendar month preceding the month in which
such Distribution Date occurs.
"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 relating to terrorism or acts of
war.
"Additional Interest": (i) With respect to any 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. For purposes of this
Agreement, Additional Interest on an ARD Loan or any successor REO Loan with
respect thereto shall be deemed not to constitute principal or any portion
thereof and shall not be added to the unpaid principal balance or Stated
Principal Balance of such ARD Loan or successor REO Loan, notwithstanding that
the terms of the related 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; and (ii) with respect to any Trust Converting Loan after the
related conversion date, the additional interest rate that may accrue with
respect to any such Mortgage Loan at the related Additional Interest Rate as a
result of the conversion of such Mortgage Loan from bearing interest at a fixed
rate to bearing interest at a floating rate.
"Additional Interest Accounts": Each of (i) the Trust Converting
Loan Additional Interest Account and (ii) the Trust ARD Loan Additional Interest
Account.
"Additional Interest Rate": (i) With respect to any 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; (ii) with respect to any Trust Converting Loan, the
excess, if any, in the per annum rate at which such Mortgage Loan accrues
interest over the initial fixed rate for such Mortgage Loan, as a result of the
conversion of the Mortgage Loan from bearing interest at a fixed rate to bearing
interest at a floating rate.
"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) 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.
"Additional Yield and Prepayment Amount": With respect to any Class
of Sequential Pay Certificates for any Distribution Date on which distributions
of principal are being made with respect to that Class of Certificates 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
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 REMIC II Regular 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 REMIC II
Regular Certificates 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 REMIC II Regular Certificates on such Distribution Date (or,
for so long as any of the Class AJ and the Class AJ-A Certificates are
outstanding, principal distributable on the subject Class of REMIC II Regular
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 any of the Class AJ and the Class AJ-A 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": With respect to any Serviced Mortgage
Loan, any related 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 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 Georgia-Alabama Retail
Portfolio Trust Mortgage Loan or any successor Trust REO Loan with respect
thereto, any appraisal obtained in accordance with the Other 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 such 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 such 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
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" (as defined under the Other Pooling and Servicing Agreement) with
respect to the Georgia-Alabama Retail Portfolio Loan Combination shall be
calculated and allocated between the Mortgage Loans comprising the related Loan
Combination by the Georgia-Alabama Retail Portfolio Servicer pursuant to the
Other Pooling and Servicing Agreement. Any Appraisal Reduction Amount with
respect to the Farallon Portfolio Loan Combination shall be allocated first to
the Farallon Portfolio Junior Loans on a pro rata basis, and then, to the
Farallon Portfolio Senior Loans on a pro rata basis. Any Appraisal Reduction
Amount with respect to each Loan Combination other than the Georgia-Alabama
Retail Portfolio Loan Combination and the Farallon Portfolio 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.
"Appraised Value": With respect to each Mortgaged Property and 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
Georgia-Alabama Retail Portfolio Servicer with respect to the Georgia-Alabama
Retail Portfolio Trust Mortgage Loan in accordance with the Other Pooling and
Servicing Agreement (upon which Master Servicer No. 2, the Special Servicer and
the Trustee 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.
"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.
"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 respective Collection Accounts for such Distribution
Date pursuant to Section 3.19(a) in connection with Prepayment Interest
Shortfalls and Casualty/Condemnation Interest Shortfalls, (iv) the Interest
Deposit Amount for the first Distribution Date 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) Additional Interest (which is separately distributed
to the holders of the Class X and Class Y Certificates, as applicable), (v) 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 3.04(c),
and (vi) any amounts deposited in a Master Servicer's Collection Account or the
Distribution Account in error.
"B-Note Loan Holder": The 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, any 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(s) on the same
Mortgaged Property(ies) 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).
"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).
"Broker Strip Interest": With respect to each Broker Strip Loan,
interest accrued on the principal balance of such Mortgage Loan at the Broker
Strip Rate for such Mortgage Loan.
"Broker Strip Loans": The Mortgage Loans listed on Exhibit Q hereto.
"Broker Strip Payee": With respect to any Broker Strip Loan, the
"Broker Strip Payee" specified on Exhibit Q hereto with respect to such Mortgage
Loan.
"Broker Strip Rate": With respect to each Broker Strip Loan, the
"Broker Strip Rate" specified on Exhibit Q hereto with respect to such Mortgage
Loan.
"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 Cleveland, Ohio and Kansas City, Missouri with
respect to Master Servicer Xx. 0, Xxx Xxxxxxxxx, Xxxxxxxxxx with respect to
Master Servicer Xx. 0 xxx Xxxxxxxx Xxxx, Xxxxxx 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
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
Trust Administration 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
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.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the ML-CFC Commercial Mortgage Trust
2007-8, Commercial Mortgage Pass-Through Certificates, Series 2007-8, as
executed by the Certificate Registrar and authenticated and delivered hereunder
by the Authenticating Agent.
"Certificate Factor": With respect to any Class of REMIC II Regular
Certificates, 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 Original Notional Amount, as applicable, of
such Class of REMIC II Regular Certificates and the denominator of which is the
Original Class Principal Balance or Original Notional Amount, as the case may
be, of such Class of REMIC II Regular Certificates.
"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,
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-SB,
Class A-3 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-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-SB Certificate": Any one of the Certificates with a "Class
A-SB" 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-SB Planned Principal Balance": With respect to any
Distribution Date, the targeted Class Principal Balance of the Class A-SB
Certificates for such date set forth on Schedule IV attached hereto.
"Class AJ Certificate": Any one of the Certificates with a "Class
AJ" 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 AJ-A Certificate": Any one of the Certificates with a "Class
AJ-A" 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 AM Certificate": Any one of the Certificates with a "Class
AM" 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 AM-A Certificate": Any one of the Certificates with a "Class
AM-A" 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 B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "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-4
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-5
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-5
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-6
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-6
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-6
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-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class Principal Balance": The aggregate principal balance of any
Class of Sequential Pay Certificates outstanding from time to time. As of the
Closing Date, the Class Principal Balance of each Class of Sequential Pay
Certificates 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 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 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 shall not
constitute distributions of principal and shall not result in reduction of the
related Class Principal Balance.
"Class Q Certificate": Any one of the Certificates with a "Class Q"
designation on the face thereof, substantially in the form of Exhibit A-6
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-7
attached hereto, and evidencing the sole class of "residual interests" in 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-7
attached hereto, and evidencing the sole class of "residual interests" in REMIC
II for purposes of the REMIC Provisions.
"Class S Certificate": Any one of the Certificates with a "Class S"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class T Certificate": Any one of the Certificates with a "Class T"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" 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-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class X Component": Any of the components of the Class X
Certificates listed in the following table.
Class Designation
Class X of Corresponding
Component Certificates
--------- ----------------
X-X-0 X-0
X-X-0 X-0
X-X-XX A-SB
X-A-3 A-3
X-AM AM
X-AJ AJ
X-A-1A A-1A
X-AM-A AM-A
X-AJ-A AJ-A
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
X-S S
X-T T
"Class X Notional Amount": With respect to the Class X Certificates
and 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 Weighted Average Net
Mortgage Pass-Through Rate for such Distribution Date, minus (ii) the
Pass-Through Rate for the Corresponding Certificates 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-8
attached hereto, and evidencing a proportionate interest in Grantor Trust Y.
"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": August 28, 2007.
"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 existing association or organization as may exist whose
principal membership consists of servicers, trustees, certificateholders,
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
whose principal purpose is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" will 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": The monthly 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 approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Bond Level File": The monthly data file 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 securities transactions generally.
"CMSA Collateral Summary File": The monthly data file 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 securities transactions generally.
"CMSA Comparative Financial Status Report": The monthly 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 securities transactions
generally.
"CMSA Delinquent Loan Status Report": The monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Delinquent Loan Status Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Financial File": The monthly data file 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 generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": The monthly 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 securities transactions
generally.
"CMSA Investor Reporting Package": The collection of data files and
reports specified by the CMSA from time to time as the "CMSA Investor Reporting
Package" available on the CMSA Website. As of the Closing Date, the CMSA
Investor Reporting Package contains seven electronic files ((1) CMSA Loan Setup
File, (2) CMSA Loan Periodic Update File, (3) CMSA Property File, (4) CMSA Bond
Level File, (5) CMSA Collateral Summary File, (6) CMSA Financial File and (7)
CMSA Special Servicer Loan File) and eight supplemental reports ((1) CMSA
Servicer Watch List, (2) CMSA Delinquent Loan Status Report, (3) CMSA REO Status
Report, (4) CMSA Comparative Financial Status Report, (5) CMSA Historical Loan
Modification and Corrected Mortgage Loan Report, (6) CMSA Loan Level Reserve/LOC
Report, (7) CMSA Total Loan Report and (8) CMSA Advance Recovery Report). In
addition, the CMSA Investor Reporting Package shall include the CMSA Operating
Statement Analysis Report and the CMSA NOI Adjustment Worksheet. The CMSA
Investor Reporting Package shall, after the Closing Date, include such changes
to the data files, supplemental reports, and operating statement reports as may
from time to time be recommended by the CMSA for commercial mortgage backed
securities transaction generally. Which party deems what is acceptable is
different by file or report as defined within each individual data file or
report definition. For purposes of the applicable Master Servicer's production
of the CMSA Loan Setup File, CMSA Property File, CMSA Operating Statement
Analysis Report, Comparative Financial Status Report or any other data file or
report that is required to state at contribution, at securitization, or
allocation information for any period prior to the Cut-off Date, the applicable
Master Servicer may conclusively rely (without independent verification), absent
manifest error, on information provided to it by the Mortgage Loan Sellers,
Underwriters or by the Mortgagors or (x) in the case of such a data file or
report produced by the Master Servicer, by the Special Servicer (if other than
the applicable Master Servicer or an Affiliate thereof) and (y) in the case of
such a data file or report produced by the Special Servicer, by the applicable
Master Servicer (if other than the Special Servicer or an Affiliate thereof).
"CMSA Loan Level Reserve/LOC Report": The monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Level Reserve 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 securities transactions
generally.
"CMSA Loan Periodic Update File": The monthly data file
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. Each CMSA Loan Periodic Update File prepared by a Master
Servicer shall be accompanied by a CMSA Advance Recovery Report and all
references herein to "CMSA Loan Periodic Update File" shall be construed
accordingly.
"CMSA Loan Setup File": The data file 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 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 securities transactions generally.
"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": The monthly data file 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 securities transactions.
"CMSA REO Status Report": The monthly report substantially in the
form of, and containing the information called for in, the downloadable form of
the "REO Status Report" available as of the Closing Date on the CMSA Website, or
in such other form for the presentation of such information and containing such
additional information as may from time to time be recommended 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 final form for the presentation of such information and containing
such additional information as may from time to time be promulgated as
recommended by the CMSA for commercial mortgage-backed securities transactions
generally.
"CMSA Special Servicer Loan File": The monthly data file
substantially in the form of, and containing the information called for in, the
downloadable form of the "Special Servicer Loan File" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be 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 recommended 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 data
file and 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 KeyCorp, "KeyCorp Real Estate Capital
Markets, Inc., 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 2007-8, Commercial Mortgage Pass-Through Certificates,
Series 2007-8," and in the case of Xxxxx, "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 2007-8, Commercial Mortgage Pass-Through Certificates,
Series 2007-8."
"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 Countrywide Trust Mortgage Loans, the KeyBank
Mortgage Loans and/or the Xxxxxxx Trust Mortgage Loans, as applicable.
"Commission": The United States Securities and Exchange Commission
or any successor agency.
"Component Notional Amount": With respect to each Class X Component
and 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(a).
"Converting Loan": The Mortgage Loans secured by the Mortgaged
Properties identified on the Mortgage Loan Schedule as Action Apartments, 000
Xxxxxxxx Xxx, 0000 Xxxxxxxxxx Apts and 000 Xxxxxxx Xxxxxx that have (a) a
maturity date that is 30 years after the Mortgage Loan origination (except
Action Apartments, which has a maturity date that is 25 years after the Mortgage
Loan origination); (b) a fixed interest rate for the first 10 years of the
Mortgage Loan term, followed by an adjustable interest rate period, during which
period, the interest rate will adjust, based on a specified index, every six
months, provided that during the adjustable interest rate period, the interest
may adjust to a rate that is lower than the initial fixed interest rate, without
any floor; (c) voluntary prepayment (with respect to certain Mortgage Loans,
after a lockout period, as specified in the related mortgage loan documents)
with a Yield Maintenance Charge (except with respect to 000 Xxxxxxxx Xxx and
1607 Greenfield Apts, for which voluntary prepayment may occur with a prepayment
premium that reduces over the Prepayment Premium Period); and (d) open
prepayment following the fixed interest rate period.
"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 X. XxXxxxx Xx.,
Xxxxxxx, XX 00000, Attn: Global Securities and Trust Services - ML-CFC 2007-8,
Commercial Mortgage Pass-Through Certificates, Series 2007-8.
"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."
"Corresponding Certificates": With respect to any REMIC I Regular
Interest, the Class of Sequential Pay Certificates for which such REMIC I
Regular Interest is the Corresponding REMIC I Regular Interest. 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 any Class X Component, the REMIC I Regular Interest that, with
the replacement of "L" with "X" 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 August 28, 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": LaSalle Bank National Association or its successor in
interest, or any successor custodian appointed as herein provided.
"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 August 2007; or, with respect to any Mortgage Loan that has its
first Due Date in October 2007, August 1, 2007.
"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 Mortgage Loan
(other than any B-Note Non-Trust 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 (other than any B-Note Non-Trust 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 Georgia-Alabama Retail Portfolio Trust Mortgage Loan, the
Georgia-Alabama Retail Portfolio Servicer) (following the Closing Date), to (y)
twelve times the amount of the Periodic Payment in effect for such Mortgage Loan
(other than any B-Note Non-Trust Loan) as of such date of determination.
"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 securities within the meaning of Treasury Regulations
Section 1.860G-2(a)(8)(i) 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 Trust Mortgage Loan, the then outstanding
principal balance of such Mortgage Loan, and (ii) in the case of 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 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": The eighth day of each month, or if such
eighth day is not a Business Day, the Business Day immediately succeeding,
commencing in September 2007.
"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), 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 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 (directly or
indirectly, other than through a U.S. corporation) are (or are permitted to be
under the applicable partnership agreement) Disqualified Non-United States Tax
Persons.
"Distributable Certificate Interest": With respect to any Class of
REMIC II Regular Certificates for any Distribution Date, the Accrued Certificate
Interest in respect of such Class of Certificates 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 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 for such Distribution Date; provided
that, if the aggregate Class Principal Balance of the Sequential Pay
Certificates 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 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 REMIC II Regular Certificates
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 REMIC II Regular Certificates 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 2007-8, Commercial
Mortgage Pass-Through Certificates, Series 2007-8."
"Distribution Date": With respect to any Determination Date, the
fourth Business Day following such Determination Date.
"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 "AA-" by Fitch and S&P
(or "A-" by Fitch or S&P, respectively, provided the short-term unsecured debt
obligations of such institution or trust company are rated at least "F-1" by
Fitch or "A-1" by S&P, respectively) (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 "F-1"
by Fitch and "A-1" by S&P (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) an account or accounts maintained with PNC so long as PNC has a
long-term unsecured debt rating of at least "A" and a short-term rating of at
least "F-1" by Fitch and "A-1" from S&P, (iii) an account or accounts maintained
with Xxxxx so long as Xxxxx Fargo & Company has ratings meeting the criteria set
forth in clause (i) above and subject to the provision in such clause (i)
(provided that, following a downgrade, withdrawal or suspension of each Rating
Agency's rating set forth above, the subject account(s) shall promptly (and in
any case within not more than 30 calendar days) be moved to one or more
segregated trust accounts in the trust department of such institution or to an
account at another institution that complies with the above requirements), (iv)
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, (v) 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, or (vi) an account or accounts maintained with
KeyBank National Association so long as KeyBank National Association has a
long-term unsecured debt rating of at least "A-" from Fitch and "A" from S&P and
a short-term rating of at least "F-1" from Fitch and "A-1" from S&P.
"Empirian Portfolio Pool Two Trust Mortgage Loan": The Trust
Mortgage Loan securing the related Mortgaged Property identified on the Mortgage
Loan Schedule as Empirian Portfolio Pool Two.
"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 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 a
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).
"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-SB, Class A-3, Class AM, Class AJ, Class
A-1A, Class AM-A, Class AJ-A, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J and Class K Certificates.
"Executive Hills Portfolio A-Note Trust Mortgage Loan": The loan
that is (a) part of the Trust Fund, (b) has been designated as "Note A" with an
unpaid principal balance of $99,000,000 as of the Cut-off Date and (c) is
secured by the same mortgage encumbering the Executive Hills Portfolio Mortgaged
Property.
"Executive Hills Portfolio B-Note Non-Trust Loan": The loan that is
(a) not part of the Trust Fund, (b) has been designated as "Note B" with an
unpaid principal balance of $11,100,000 as of the Cut-off Date and (c) is
secured by the same mortgage encumbering the Executive Hills Portfolio Mortgaged
Property.
"Executive Hills Portfolio Controlling Party": (A)The holder of the
Executive Hills Portfolio B-Note Non-Trust Loan, but only if and for so long as
(i) it has an unpaid principal balance, net of the portion of any Appraisal
Reduction Amount with respect to the Executive Hills Portfolio Loan Combination
allocable to the Executive Hills Portfolio B-Note Non-Trust Loan, equal to or
greater than 25% of its unpaid principal balance (without taking into account
any Appraisal Reduction Amount) or (ii) not more than 50% of the principal
balance of the Executive Hills Portfolio B-Note Non-Trust Loan is held by the
related Mortgagor of its affiliates; or
(B) the Controlling Class Representative if (i) the unpaid principal
balance of the Executive Hills Portfolio B-Note Non-Trust Loan, net of the
portion of any Appraisal Reduction Amount with respect to the Executive Hills
Portfolio Loan Combination allocable to the Executive Hills Portfolio B-Note
Non-Trust Loan, is less than 25% of its unpaid principal balance (without taking
into account any Appraisal Reduction Amount), or (ii) more than 50% of the
principal balance of the Executive Hills Portfolio B-Note Non-Trust Loan is held
by the related Mortgagor or its affiliates.
"Executive Hills Portfolio Intercreditor Agreement": The
intercreditor and servicing agreement by and between the holders of the
Executive Hills Portfolio A-Note Trust Mortgage Loan and the Executive Hills
Portfolio B-Note Non-Trust Loan. Following the inclusion of the Executive Hills
Portfolio A-Note Trust Mortgage Loan in the Trust Fund, the trust, acting
through the trustee, will be the holder of that mortgage loan and a party to the
Executive Hills Portfolio Intercreditor Agreement.
"Executive Hills Portfolio Loan Combination": Collectively, the
Executive Hills Portfolio A-Note Trust Mortgage Loan and the Executive Hills
Portfolio B-Note Non-Trust Loan.
"Executive Hills Portfolio Mortgaged Property": The Mortgaged
Property identified on Schedule I to this Agreement as Executive Hills
Portfolio.
"Exemption": Department of Labor Prohibited Transaction Exemption
("PTE") 90-29 (as amended by PTE 97-2007-5), as it 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, (ii) any Person
directly or indirectly, through one or more intermediaries, controlling,
controlled by or under common control with MLPF&S, 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.
"Farallon Portfolio A-Note Non-Trust Loan": The loans that are (a)
not part of the Trust Fund, (b) has been designated in Exhibit D to the Farallon
Portfolio Intercreditor Agreement as a "Fixed Rate Five Year Note A" and "Fixed
Rate Ten Year Note A" with an aggregate unpaid principal balance of $883,775,000
as of the Cut-off Date and (c) are secured by the same mortgage encumbering the
Farallon Portfolio Mortgaged Property.
"Farallon Portfolio A-Note Trust Loan": The loans that are (a) part
of the Trust Fund, (b) has been designated in Exhibit D to the Farallon
Portfolio Intercreditor Agreement as a "Fixed Rate Seven Year Note A" and "Fixed
Rate Ten Year Note A" with an aggregate unpaid principal balance of $116,225,000
as of the Cut-off Date and (c) are secured by the same mortgage encumbering the
Farallon Portfolio Mortgaged Property.
"Farallon Portfolio B-Note Non-Trust Loan": The loans that are (a)
not part of the Trust Fund, (b) has been designated in Exhibit D to the Farallon
Portfolio Intercreditor Agreement as a "Fixed Rate Five Year Note B" and "Fixed
Rate Ten Year Note B" with an aggregate unpaid principal balance of $441,725,000
as of the Cut-off Date and (c) are secured by the same mortgage encumbering the
Farallon Portfolio Mortgaged Property.
"Farallon Portfolio B-Note Trust Loan": The loans that are (a) part
of the Trust Fund, (b) has been designated in Exhibit D to the Farallon
Portfolio Intercreditor Agreement as a "Fixed Rate Seven Year Note B" and "Fixed
Rate Ten Year Note B" with an aggregate unpaid principal balance of $133,775,000
as of the Cut-off Date and (c) are secured by the same mortgage encumbering the
Farallon Portfolio Mortgaged Property.
"Farallon Portfolio Controlling Party": The "Controlling Holder" as
defined in the Farallon Portfolio Intercreditor Agreement.
"Farallon Portfolio Intercreditor Agreement": The intercreditor and
servicing agreement by and between the holders of the Farallon Portfolio Trust
Mortgage Loan and the Farallon Portfolio Non-Trust Loans. Following the
inclusion of the Farallon Portfolio Trust Mortgage Loan in the Trust Fund, the
trust, acting through the trustee, will be the holder of that mortgage loan and
a party to the Farallon Portfolio Intercreditor Agreement.
"Farallon Portfolio Junior Loans": Collectively, the Farallon
Portfolio B-Note Trust Loans and the Farallon Portfolio B-Note Non-Trust Loans.
"Farallon Portfolio Loan Combination": Collectively, the Farallon
Portfolio Trust Mortgage Loan and the Farallon Portfolio Non-Trust Loans.
"Farallon Portfolio Major Action": Any "Major Action" set forth in
the Farallon Portfolio Intercreditor Agreement.
"Farallon Portfolio Mortgaged Property": The Mortgaged Property
identified on Schedule I to this Agreement as Farallon Portfolio.
"Farallon Portfolio Non-Trust Loan Servicer": Any servicer under a
pooling and servicing (or similar) agreement that governs a securitization
containing any Farallon Portfolio Non-Trust Loan.
"Farallon Portfolio Non-Trust Loans": Collectively, the Farallon
Portfolio A-Note Non-Trust Loans and the Farallon Portfolio B-Note Non Trust
Loans.
"Farallon Portfolio Senior Loans": Collectively, the Farallon
Portfolio A-Note Trust Loans and the Farallon Portfolio A-Note Non-Trust Loans.
"Farallon Portfolio Trust Mortgage Loan": Collectively, the Farallon
Portfolio A-Note Trust Loans and the Farallon Portfolio B-Note Trust Loans.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage 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 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
Non-Trust Noteholder (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 Georgia-Alabama Retail Portfolio Servicer pursuant to the Other Pooling
and Servicing Agreement with respect to the Georgia-Alabama Retail Portfolio
Trust Mortgage Loan or any related 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.
"FNMA": Federal National Mortgage Association or any successor.
"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.
"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 Georgia-Alabama Retail
Portfolio Trust Mortgage Loan or any related REO Property, to the
Georgia-Alabama Retail Portfolio 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 "LaSalle Bank National Association, as Trustee, in trust
for the registered holders of ML-CFC Commercial Mortgage Trust 2007-8,
Commercial Mortgage Pass-Through Certificates, Series 2007-8, Gain-on-Sale
Reserve Account."
"Georgia-Alabama Retail Portfolio A-1/A-2 Intercreditor Agreement":
The co-lender agreement by and between the holder of the Georgia-Alabama Retail
Portfolio Trust Mortgage Loan and the holder of the Georgia-Alabama Retail
Portfolio A-Note Non-Trust Loan. Following the inclusion of the Georgia-Alabama
Retail Portfolio Trust Mortgage Loan in the Trust Fund, the Trust, acting
through the Trustee, will be the holder of that Mortgage Loan and bound by the
Georgia-Alabama Retail Portfolio A-1/A-2 Intercreditor Agreement.
"Georgia Alabama Retail Portfolio A/B Intercreditor Agreement": The
co-lender agreement by and between the holder of the Georgia Alabama Retail
Portfolio Senior Loans, the holder of the Georgia-Alabama Retail Portfolio
B-Note Trust Mortgage Loan and the holder of the Georgia Alabama Retail
Portfolio B-Note Non Trust Loan. Following the inclusion of the Georgia Alabama
Retail Portfolio Trust Mortgage Loan in the Trust Fund, the Trust, acting
through the Trustee will be the holder of that Mortgage Loan and bound by the
Georgia Alabama Retail Portfolio A/B Intercreditor Agreement.
"Georgia-Alabama Retail Portfolio A-Note Trust Loan": The loan that
is (a) a part of the Trust Fund, (b) has been designated under the
Georgia-Alabama Retail Portfolio Intercreditor Agreement as "Note A-2," with an
aggregate unpaid principal balance of $32,939,772.15 as of the Cut-off Date and
(c) is secured by the same mortgages encumbering the Georgia-Alabama Retail
Portfolio Mortgaged Properties.
"Georgia-Alabama Retail Portfolio A-Note Non-Trust Loan": The loan
that is (a) not part of the Trust Fund, (b) has been designated under the
Georgia-Alabama Retail Portfolio Intercreditor Agreement as "Note A-1," with an
aggregate unpaid principal balance of $32,939,772.15 as of the Cut-off Date and
(c) is secured by the same mortgages encumbering the Georgia-Alabama Retail
Portfolio Mortgaged Properties.
"Georgia-Alabama Retail Portfolio B-Note Non-Trust Loan": The loan
that is (a) not part of the Trust Fund, (b) has been designated under the
Georgia-Alabama Retail Portfolio Intercreditor Agreement as "Note B-1," with an
aggregate unpaid principal balance of $6,987,224.40 as of the Cut-off Date, (c)
is secured by the same mortgages encumbering the Georgia-Alabama Retail
Portfolio Mortgaged Properties and (d) is subordinate in right of payment and
other respects to the Georgia-Alabama Retail Portfolio Senior Loans and pari
passu in right of payment and other respects to the Georgia-Alabama Retail
Portfolio B-Note Trust Mortgage Loan to the extent set forth in the
Georgia-Alabama Retail Portfolio A/B Intercreditor Agreement.
"Georgia-Alabama Retail Portfolio B-Note Trust Mortgage Loan": The
loan that is (a) part of the Trust Fund, (b) has been designated under the
Georgia-Alabama Retail Portfolio Intercreditor Agreement as "Note B-2," with an
aggregate unpaid principal balance of $6,987,224.40 as of the Cut-off Date, (c)
is secured by the same mortgages encumbering the Georgia-Alabama Retail
Portfolio Mortgaged Properties and (d) is subordinate in right of payment and
other respects to the Georgia-Alabama Retail Portfolio Senior Loans and pari
passu in right of payment and other respects to the Georgia-Alabama Retail
Portfolio B-Note Non-Trust Loan to the extent set forth in the Georgia-Alabama
Retail Portfolio A/B Intercreditor Agreement.
"Georgia-Alabama Retail Portfolio Companion Loans": The
Georgia-Alabama Retail Portfolio A-Note Non-Trust Loan and the Georgia-Alabama
Retail Portfolio B-Note Non-Trust Loan.
"Georgia-Alabama Retail Portfolio Controlling Party": With
respect to the Georgia-Alabama Retail Portfolio Loan Combination:
(i) the holder of more than 50% of the principal balance of the
Georgia-Alabama Retail Portfolio B-Note Trust Mortgage Loan and the holder
of more than 50% of the principal balance of the Georgia-Alabama Retail
Portfolio B-Note Non-Trust Mortgage Loan, collectively (and excluding any
principal balance held by the related borrower or certain borrower related
parties), but only if and for so long as the Georgia-Alabama Retail
Portfolio Junior Loans together have an unpaid principal balance, net of
the portion of any Appraisal Reduction Amount with respect to the
Georgia-Alabama Retail Portfolio Loan Combination allocable to the
Georgia-Alabama Retail Portfolio Junior Loans, equal to or greater than
25% of their total unpaid principal balance (without taking into account
any Appraisal Reduction Amount); or
(ii) if the unpaid principal balance of the Georgia-Alabama Retail
Portfolio Junior Loans, net of the portion of any Appraisal Reduction
Amount with respect to the Georgia-Alabama Retail Portfolio Loan
Combination allocable to the Georgia-Alabama Retail Portfolio Junior
Loans, is less than 25% of their total unpaid principal balance (without
taking into account any Appraisal Reduction Amount), the Controlling Class
Representative.
"Georgia Alabama Retail Portfolio Intercreditor
Agreements": Collectively, the Georgia Alabama Retail Portfolio A-1/A-2
Intercreditor Agreement and the Georgia Alabama Retail Portfolio A/B
Intercreditor Agreement.
"Georgia-Alabama Retail Portfolio Junior Loans":
Collectively, the Georgia-Alabama Retail Portfolio B-Note Trust
Mortgage Loan and the Georgia-Alabama Retail Portfolio B-Note Non-Trust
Loan.
"Georgia-Alabama Retail Portfolio Loan Combination": Collectively,
the Georgia-Alabama Retail Portfolio Trust Mortgage Loan, the Georgia-Alabama
Retail Portfolio A-Note Non-Trust Loan and the Georgia-Alabama Retail Portfolio
B-Note Non-Trust Loan.
"Georgia-Alabama Retail Portfolio Mortgaged Properties": The
Mortgaged Properties identified on Schedule I to this Agreement as
Georgia-Alabama Retail Portfolio.
"Georgia-Alabama Retail Portfolio Non-Trust Loans": Collectively,
the Georgia-Alabama A-Note Non-Trust Loan and the Georgia-Alabama Retail
Portfolio B-Note Non-Trust Loan.
"Georgia-Alabama Retail Portfolio Senior Loans": Collectively, the
Georgia-Alabama Retail Portfolio Trust Mortgage Loan and the Georgia-Alabama
Retail Portfolio A-Note Non-Trust Loan.
"Georgia-Alabama Retail Portfolio Servicer": The master servicer
under the Other Pooling and Servicing Agreement.
"Georgia-Alabama Retail Portfolio Servicing Fee Rate": The primary
servicing fee rate payable to the Georgia-Alabama Retail Portfolio Servicer
pursuant to the Other Pooling and Servicing Agreement, which for the avoidance
of doubt, shall equal 0.01% per annum with respect to such Trust Mortgage Loan.
"Georgia-Alabama Retail Portfolio Trust Mortgage Loan":
Collectively, the Georgia-Alabama Retail Portfolio A-Note Trust Mortgage Loan
and the Georgia Alabama Retail Portfolio B-Note Trust Mortgage Loan.
"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": Any of Grantor Trust Y and Grantor Trust Z.
"Grantor Trust Provisions": Subpart E of Part I of Subchapter J of
the Code (including Treasury Regulations thereunder) and Treasury Regulations
Section 301.7701-4(c).
"Grantor Trust Y": That certain "grantor trust" (within the meaning
of the Grantor Trust Provisions), the assets of which consist of any Additional
Interest with respect to the Trust Converting Loan and any successor Trust REO
Loans accruing during its adjustable interest rate period and amounts held from
time to time in the Collection Accounts and/or the Trust Converting Loan
Additional Interest Account.
"Grantor Trust Y Assets": The segregated pool of assets comprising
Grantor Trust Y.
"Grantor Trust Z": That certain "grantor trust" (within the meaning
of the Grantor Trust Provisions), the assets of which consist of any 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 Trust ARD Loan Additional Interest
Account.
"Grantor Trust Z Assets": The segregated pool of assets comprising
Grantor Trust Z.
"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.
"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, the Custodian, 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, the Custodian, 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, the Custodian, 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, the
Custodian, 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, the Custodian, 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.
"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 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 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 Report": As defined in Section 8.16.
"Initial Purchaser": Each of MLPF&S, Countrywide Securities
Corporation and KeyBanc Capital Markets Inc.
"Institutional Accredited Investor": 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,
the calendar month immediately preceding the calendar month in which such
Distribution Date occurs.
"Interest Deposit Amount": With respect to the Mortgage Loan known
as Townsgate Shopping Center, shall be $12,504.04, which represents the
aggregate amount of interest that would have accrued at the related Mortgage
Rate on the Stated Principal Balance as of the Cut-off Date of such Mortgage
Loan had such Mortgage Loan been originated on August 1, 2007, from and
including August 1, 2007 through but excluding September 1, 2007.
"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 "LaSalle Bank National Association, as Trustee, on behalf of and in
trust for the registered holders of ML-CFC Commercial Mortgage Trust 2007-8,
Commercial Mortgage Pass-Through Certificates, Series 2007-8."
"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
(unless the related Distribution Date is the final Distribution Date), 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 Accounts and the Gain-on-Sale Reserve Account, the
related Trustee Investment Period.
"KeyBank": KeyBank National Association, a national banking
association, or its successor in interest.
"KeyBank Mortgage Loan Purchase Agreement": That certain mortgage
loan purchase agreement, dated as of August 28, 2007, between the Depositor and
KeyBank and relating to the transfer of the KeyBank Trust Mortgage Loans to the
Depositor.
"KeyBank Trust Mortgage Loans": Each Trust Mortgage Loan transferred
and assigned to the Depositor pursuant to the KeyBank Mortgage Loan Purchase
Agreement.
"KeyCorp": KeyCorp Real Estate Capital Markets, Inc.
"LaSalle": LaSalle Bank National 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 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 the any Mortgage Loan that is part of a Loan
Combination 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 (or in the case of a Serviced Loan Combination or related REO Property,
collected on behalf of the Trust and/or related Non-Trust Noteholder) 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 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 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 any Mortgage
Loan that is part of a Loan Combination by the related Non-Trust Noteholder or
other party pursuant to the related Loan Combination Intercreditor Agreement or
securitization servicing 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 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.
"Loan Combination": Collectively, each A-Note Trust Mortgage Loan,
B-Note Trust Loan and the related A-Note Non-Trust Loan and/or the related
B-Note Non-Trust Loan. The term "Loan Combination" shall include any successor
REO Loan with respect to the applicable Mortgage Loans comprising such Loan
Combination.
"Loan Combination Controlling Party": With respect to the related
Loan Combination, the Farallon Portfolio Controlling Party, the Georgia-Alabama
Retail Portfolio Controlling Party, the Peninsula Xxxxxxx Hills Controlling
Party, the Timbercreek Apartments Controlling Party and the Executive Hills
Portfolio Controlling Party.
"Loan Combination Custodial Account": With respect to any Serviced
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
substantially as follows: in the case of the KeyCorp, "Keycorp Real Estate
Capital Markets, Inc., 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 2007-8, Commercial Mortgage Pass-Through Certificates,
Series 2007-8, and [name of the related Non-Trust Noteholder(s)], as their
interests may appear," and in the case of Xxxxx, "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 2007-8, Commercial Mortgage Pass-Through Certificates,
Series 2007-8, and [name of the related Non-Trust Noteholder(s)], as their
interests may appear." Any such account shall be an Eligible Account or a
sub-account of an Eligible Account.
"Loan Combination Intercreditor Agreement": With respect to each
Loan Combination, each 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 Serviced 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 "Midland Loan Services, Inc., as Special Servicer for LaSalle Bank
National Association, as Trustee in trust for registered holders of ML-CFC
Commercial Mortgage Trust 2007-8, Commercial Mortgage Pass-Through Certificates,
Series 2007-8, and [name of the related Non-Trust Noteholder(s)], as their
interests may appear."
"Loan Combination REO Property": With respect to each Serviced 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 Serviced Loan Combination.
"Loan Group": Either Loan Group 1 or Loan Group 2.
"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.
"Master Servicer": With respect to the Xxxxxxx Trust Mortgage Loans
and the KeyBank Trust Mortgage Loans, Master Servicer No. 1 and with respect to
the Countrywide Trust Mortgage Loans, Master Servicer No. 2.
"Master Servicer Indemnification Agreement": With respect to the
initial Master Servicer No. 1, that certain Master Servicer Indemnification
Agreement, dated as of August 17, 2007, between such Master Servicer, the
Depositor, the Underwriters and the Initial Purchasers; and with respect to the
initial Master Servicer No. 2, that certain Master Servicer Indemnification
Agreement, dated as of August 17, 2007, between such Master Servicer, the
Depositor, the Underwriters and the Initial Purchasers.
"Master Servicer No. 1": KeyCorp or any successor Master Servicer
thereto appointed as herein provided.
"Master Servicer No. 2": Xxxxx or any successor Master Servicer
thereto appointed as herein provided.
"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 (other 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 (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
Custodian, (F) the Special Servicer, (G) any Servicing Representative of
such Master Servicer that constitutes a Servicer contemplated by Item
1108(a)(3) of Regulation AB or (H) 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
applicable 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).
"Master Servicing Fee Rate": With respect to each Serviced Trust
Mortgage Loan, the per annum rate equal to the sum of the rates set forth under
the columns "Master Servicing Fee Rate", "Primary Servicing Fee Rate" and
"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. With respect to the
Georgia-Alabama Retail Portfolio Trust Mortgage Loan, the "Master Servicing Fee
Rate" for such Trust Mortgage Loan shall equal 0.01% per annum. With respect to
each Non-Trust Loan related to any Countrywide Trust Mortgage Loan, the "Master
Servicing Fee Rate" for Master Servicer No. 2 for such Mortgage Loans shall
equal 0.01% per annum.
"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) the Custodian;
(viii) any Servicing Representative that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB;
(ix) any originator of Trust Mortgage Loans contemplated by Item
1110(b) of Regulation AB; and
(x) any other party contemplated by Item 1100(d)(1) of Regulation AB
relating to the Subject Securitization Transaction.
"Merrill Mortgage Loan Purchase Agreement": That certain mortgage
loan purchase agreement, dated as of August 28, 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.
"MezzCap B-Note Non-Trust Mortgage Loan" means the Timbercreek
Apartments B-Note Non-Trust Loan.
"MezzCap Intercreditor Agreement" means the Timbercreek Apartments
Intercreditor Agreement.
"MezzCap Loan Combination" means the Timbercreek Apartments Loan
Combination.
"MezzCap Trust Mortgage Loan" means the Timbercreek Apartments Trust
Mortgage Loan.
"Midland": Midland Loan Services, Inc., a Delaware corporation, or
its successor in interest.
"MIN": The mortgage identification number for any MERS Mortgage
Loan.
"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.
"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.
"Mortgage File": With respect to (a) any Serviced Trust Mortgage
Loan and, in the case of any Trust Mortgage Loan that is part of a Serviced Loan
Combination, also with respect to the related Non-Trust Loan(s), collectively
the following documents (which, in the case of a Serviced Loan Combination,
except for the Mortgage Notes referred to in clause (a)(i) of this definition
and any modifications thereof referred to in clause (a)(vi) of this definition,
relate to the entire Serviced 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 2007-8, Commercial Mortgage
Pass-Through Certificates, Series 2007-8, or in blank, and (B) in the case
of a Serviced 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, 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 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 2007-8, Commercial Mortgage Pass-Through
Certificates, Series 2007-8 (or, in the case of a Serviced Loan
Combination, in favor of LaSalle Bank National Association, as Trustee for
the registered holders of ML-CFC Commercial Mortgage Trust 2007-8,
Commercial Mortgage Pass-Through Certificates, Series 2007-8, and in its
capacity as lead lender on behalf of the holder of the related Non-Trust
Loan(s)), or in blank; provided that, if the related Mortgage has been
recorded in the name of MERS or its designee, no assignment of Mortgage,
Assignment of Leases or other recorded document in favor of the Trustee
will be required to be prepared or delivered and instead, the Mortgage
Loan Seller shall take all actions as are necessary to cause the Trustee
to be shown as, and shall deliver evidence of any such transfers to the
Master Servicers and the Special Servicer, and the Trustee shall take all
actions necessary to confirm that it is shown as, the owner of the related
Mortgage on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS;
(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 2007-8, Commercial Mortgage Pass-Through Certificates,
Series 2007-8 (or, in the case of a Serviced Loan Combination, in favor of
LaSalle Bank National Association, as trustee for the registered holders
of ML-CFC Commercial Mortgage Trust 2007-8, Commercial Mortgage
Pass-Through Certificates, Series 2007-8, and in its capacity as lead
lender on behalf of the holder of the related Non-Trust Loan(s)), or in
blank;
(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 2007-8, Commercial Mortgage
Pass-Through Certificates, Series 2007-8, as assignee (or, in the case of
a Serviced Loan Combination, in favor of LaSalle Bank National
Association, as trustee for the registered holders of ML-CFC Commercial
Mortgage Trust 2007-8, Commercial Mortgage Pass-Through Certificates,
Series 2007-8, and in its capacity as lead lender on behalf of the holder
of the related Non-Trust Loan(s)), or in blank; provided, if the related
Mortgage Loan has been recorded in the name of MERS or its designee, no
UCC Financing Statement in favor of the Trustee will be required to be
prepared or delivered and instead, the Mortgage Loan Seller shall take all
actions as are necessary to cause the Trustee, on behalf of the
Certificateholders, to be shown as, and shall deliver evidence of any such
transfers to the Master Servicers and the Special Servicer, and the
Trustee shall take all actions necessary to confirm that it is shown as,
the secured party on the related UCC Financing Statements on the records
of MERS for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS;
(ix) an original or a copy of any Ground Lease and any related
ground lessor estoppel or any guaranty;
(x) an original or 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 Custodian but rather to the
applicable Master Servicer), in each case relating to such Serviced Trust
Mortgage Loan;
(xii) 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 Georgia-Alabama Retail Portfolio 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 2007-8, Commercial Mortgage
Pass-Through Certificates, Series 2007-8, or in blank;
(ii) an executed copy of the Georgia-Alabama Retail Portfolio
Intercreditor Agreements; and
(iii) an executed copy of the Other Pooling and Servicing Agreement;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Custodian, 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 Custodian for
documents described in clause (a)(vi) of this definition, shall be deemed to
include only such documents to the extent the Custodian has actual knowledge of
their existence.
To the extent that the custodian with respect to the Georgia-Alabama
Retail Portfolio Loan Combination is also acting as Custodian under this
Agreement, the Custodian shall be obligated to provide any Person entitled to
copies of "Mortgage Files" under this Agreement with copies of the documents
composing the "mortgage file" under the Other Pooling and Servicing Agreement
upon request as if the Custodian were maintaining such documents as a "Mortgage
File" under this Agreement.
"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, the Merrill Mortgage Loan Purchase Agreement and the
KeyBank Mortgage Loan Purchase Agreement.
"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) the related Mortgage Loan Seller and, if different, the related
originator;
(xii) whether such Trust Mortgage Loan is insured by an
environmental policy;
(xiii) whether such Trust Mortgage Loan is cross-defaulted or
cross-collateralized with any other Trust Mortgage Loan;
(xiv) whether such Trust Mortgage Loan is a Defeasance Loan;
(xv) whether the Trust Mortgage Loan is secured by a letter of
credit;
(xvi) whether payments on such Trust Mortgage Loan are made to a
lock-box;
(xvii) the amount of any Reserve Funds escrowed in respect of each
Trust Mortgage Loan;
(xviii) the number of days of any grace period permitted in respect
of any Periodic Payment due under such Trust Mortgage Loan;
(xix) the property type of the related Mortgaged Property as
reported in the rent roll;
(xx) the original principal balance of such Trust Mortgage Loan;
(xxi) the interest accrual basis of such Trust Mortgage Loan;
(xxii) the primary servicing fee rate, if any, for such Trust
Mortgage Loan; and
(xxiii) the applicable Loan Group to which the Trust Mortgage Loan
belongs.
"Mortgage Loan Seller": Each of Countrywide, MLMLI and KeyBank.
"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 Georgia-Alabama Retail Portfolio Trust Mortgage Loan, any
modification thereof pursuant to the Other 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 Collection
Period, exceeds (b) the aggregate amount deposited by the applicable Master
Servicer in its Collection Account 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 Accounts 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 Accounts 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.
Notwithstanding the foregoing, if the subject Distribution Date
occurs during January, except during a leap year, or February of any year
subsequent to 2007 (unless, in either case, the related Distribution Date is the
final Distribution Date), 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 (or
February, if the related Distribution Date is the final Distribution Date), 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 Trust Administration Fee Rate, and
the applicable Master Servicing Fee Rate (and Broker Strip Rate, if any) and,
with respect to the Georgia-Alabama Retail Portfolio Trust Mortgage Loan or any
successor Trust REO Loan with respect thereto, the Georgia-Alabama Retail
Portfolio 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 Serviced 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 applicable,
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 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 Person 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, any such Person 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 recoverability determination made by the
applicable Master Servicer and the applicable Master Servicer, the Trustee and
any Fiscal Agent shall be entitled to conclusively rely on any recoverability
determination made by the Special Servicer and shall be required to act in
accordance with any determination that any P&I Advance constitutes a
Nonrecoverable P&I Advance; provided that, no party may reverse any
determination 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
Mortgage Loan or 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 such recoverability determination, such Person will be entitled
to consider (among other things) only 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) 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, any such Person 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. 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 recoverability determination made by the applicable
Master Servicer and the applicable Master Servicer, the Trustee and any Fiscal
Agent shall be entitled to conclusively rely on any recoverability determination
made by the Special Servicer and shall be required to act in accordance with any
determination that any Servicing Advance constitutes a Nonrecoverable P&I
Advance; provided that, no party may reverse any determination 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 G, Class H, Class J, Class K, Class L, Class
M, Class N, Class P, Class Q, Class S, Class T, Class Y, Class Z, Class R-I or
Class R-II Certificate.
"Non-Trust Loan" Any Farallon Portfolio Non-Trust Loan,
Georgia-Alabama Retail Portfolio Non-Trust Loan or any B-Note Non-Trust Loan.
"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 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 Grantor Trust Y 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).
"Original Class Principal Balance": With respect to any Class of
Sequential Pay Certificates, the initial Class Principal Balance thereof as of
the Closing Date, in each case as specified in the Preliminary Statement.
"Original Notional Amount": $2,435,364,703, the total original
notional amount of the Class X Certificates.
"Other Pooling and Servicing Agreement": That certain pooling and
servicing agreement establishing the trust fund into which the Georgia-Alabama
Retail Portfolio A-Note Non-Trust Loan has been deposited, dated as of June 1,
2007 among the Depositor, Midland Loan Services, Inc., as master servicer no. 1
and special servicer, Wachovia Bank, National Association, as master servicer
no. 2, and LaSalle Bank National Association, as trustee and custodian.
"Other Securitization": A securitization of the Georgia-Alabama
Retail Portfolio A-Note Non-Trust Loan or any other Non-Trust Loan.
"Other Securitization Pooling and Servicing Agreement": The pooling
and servicing agreement for any Other Securitization.
"Other Trustee": Any trustee under any Other Securitization.
"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": With respect to:
(i) the Class A-1 Certificates for any Distribution Date, a per
annum rate equal to 4.622%;
(ii) the Class A-2 Certificates for any Distribution Date, a per
annum rate equal to (a) the Weighted Average Net Mortgage Pass-Through
Rate for such Distribution Date less (b) 0.037%;
(iii) the Class A-SB Certificates for any Distribution Date, a per
annum rate equal to (a) the Weighted Average Net Mortgage Pass-Through
Rate for such Distribution Date less (b) 0.067%;
(iv) the Class A-3 Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
(v) the Class AM Certificates for any Distribution Date, a per annum
rate equal to the Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(vi) the Class AJ Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
(vii) the Class A-1A Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
(viii) the Class AM-A Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
(ix) with respect to the Class AJ-A Certificates, a per annum rate
equal to the Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(x) the Class B Certificates for any Distribution Date, a per annum
rate equal to the Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xi) the Class C Certificates for any Distribution Date, a per annum
rate equal to the Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xii) the Class D Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
(xiii) the Class E Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
(xiv) the Class F Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
(xv) the Class G Certificates for any Distribution Date, a per annum
rate equal to the Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xvi) the Class H Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
(xvii) the Class J Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
(xviii) the Class K Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date;
(xix) the Class L Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 5.169% and (b) the Weighted Average
Net Mortgage Pass-Through Rate for such Distribution Date;
(xx) the Class M Certificates for any Distribution Date, a per annum
rate equal to the lesser of (a) 5.169% and (b) the Weighted Average Net
Mortgage Pass-Through Rate for such Distribution Date;
(xxi) the Class N Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 5.169% and (b) the Weighted Average
Net Mortgage Pass-Through Rate for such Distribution Date;
(xxii) the Class P Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 5.169% and (b) the Weighted Average
Net Mortgage Pass-Through Rate for such Distribution Date;
(xxiii) the Class Q Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 5.169% and (b) the Weighted Average
Net Mortgage Pass-Through Rate for such Distribution Date;
(xxiv) the Class S Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 5.169% and (b) the Weighted Average
Net Mortgage Pass-Through Rate for such Distribution Date;
(xxv) the Class T Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 5.169% and (b) the Weighted Average
Net Mortgage Pass-Through Rate for such Distribution Date; and
(xxvi) 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).
"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.
"Peninsula Xxxxxxx Hills A-Note Trust Mortgage Loan": The loan that
is (a) part of the Trust Fund, (b) has been designated as "Note A" with an
unpaid principal balance of $79,300,000 as of the Cut-off Date and (c) is
secured by the same mortgage encumbering the Peninsula Xxxxxxx Hills Mortgaged
Property.
"Peninsula Xxxxxxx Hills B-Note Non-Trust Loan": The loan that is
(a) not part of the Trust Fund, (b) has been designated as "Note B" with an
unpaid principal balance of $60,700,000 as of the Cut-off Date and (c) is
secured by the same mortgage encumbering the Peninsula Xxxxxxx Hills Mortgaged
Property.
"Peninsula Xxxxxxx Hills Borrower": The Mortgagor under the
Peninsula Xxxxxxx Hills Loan Combination.
"Peninsula Xxxxxxx Hills Controlling Party": (A) The holder of more
than 50% of the principal balance of the Peninsula Xxxxxxx Hills B-Note
Non-Trust Loan (excluding any principal balance held by the related borrower or
certain borrower related parties), but only if and for so long as it has an
unpaid principal balance, net of the portion of any Appraisal Reduction Amount
with respect to the Peninsula Xxxxxxx Hills Loan Combination allocable to the
Peninsula Xxxxxxx Hills B-Note Non-Trust Loan, equal to or greater than 25% of
its unpaid principal balance (without taking into account any Appraisal
Reduction Amount); or
(B) if the unpaid principal balance of the Peninsula Xxxxxxx Hills
B-Note Non-Trust Loan, net of the portion of any Appraisal Reduction Amount with
respect to the Peninsula Xxxxxxx Hills Loan Combination allocable to the
Peninsula Xxxxxxx Hills B-Note Non-Trust Loan, is less than 25% of its unpaid
principal balance (without taking into account any Appraisal Reduction Amount),
the Controlling Class Representative.
"Peninsula Xxxxxxx Hills Intercreditor Agreement": The intercreditor
and servicing agreement by and between the holders of the Peninsula Xxxxxxx
Hills Trust Mortgage Loan and the Peninsula Xxxxxxx Hills B-Note Non-Trust Loan.
Following the inclusion of the Peninsula Xxxxxxx Hills A-Note Trust Mortgage
Loan in the Trust Fund, the trust, acting through the trustee, will be the
holder of that mortgage loan and a party to the Peninsula Xxxxxxx Hills
Intercreditor Agreement.
"Peninsula Xxxxxxx Hills Loan Combination": Collectively, the
Peninsula Xxxxxxx Hills A-Note Trust Mortgage Loan and the Peninsula Xxxxxxx
Hills B-Note Non-Trust Loan.
"Peninsula Xxxxxxx Hills Mortgaged Property": The Mortgaged Property
identified on Schedule I to this Agreement as Peninsula Xxxxxxx Hills.
"Percentage Interest": With respect to any REMIC II Regular
Certificate or 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
Georgia-Alabama Retail Portfolio Trust Mortgage Loan, by the Georgia-Alabama
Retail Portfolio Servicer pursuant to the Other Pooling and Servicing Agreement.
"Permitted Investments": U.S. government securities and AAA rated
obligations, including:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof (having original maturities of not more
than 365 days), provided that those obligations are backed by the full
faith and credit of the United States;
(ii) repurchase agreements or obligations with respect to any
security described in the preceding bullet (having original maturities of
not more than 365 days), provided that (a) the short-term deposit or debt
obligations of the party agreeing to repurchase the subject security are
rated F1+ by Fitch and A-1+ by S&P, and (b) if it is a long term deposit
or debt obligation (which in the case of S&P means in excess of three
months), the long-term debt obligations of which are rated AA+ by Fitch
and AAA by S&P;
(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), (a) the
short-term obligations of which are rated F1+ by Fitch and A-1+ by S&P,
and (b) if it is a long term obligation (which in the case of S&P means in
excess of three months), the long-term debt obligations of which are rated
AA+ by Fitch and AAA by S&P;
(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
commercial paper (a) is rated F1+ by Fitch and A-1+ by S&P, and (b) if it
is a long term obligation (which in the case of S&P means in excess of
three months), the long-term debt obligations of which are rated AA+ by
Fitch and AAA by S&P;
(v) money market funds which are rated in one of the four highest
applicable rating categories of a nationally recognized statistical rating
organization (AA+ by Fitch and AAAm or AAAm-G by S&P); and
(vi) any other obligation or security acceptable to each applicable
rating agency for the related offered certificates, evidence of which
acceptability will be provided in writing by each of those Rating Agencies
to, among others, the Trustee;
provided that (1) no investment described above may 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 above may be purchased at a price
greater than par if such investment may be prepaid or called at a price less
than its purchase price prior to stated maturity. In addition, "Permitted
Investments" (i) shall exclude any security with the S&P's "r" symbol attached
to the rating; and (ii) must be limited to those instruments that have a
predetermined fixed dollar of principal due at maturity that cannot vary or
change. All investments must mature or be redeemable upon the option of the
holder thereof on or prior to the Business Day preceding the day before the date
such amounts are required to be remitted out of the applicable account.
"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 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.
"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.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Certificateholder": As to any taxable year of
REMIC I or REMIC II, the Holder of Certificates holding the largest Percentage
Interest of the related Class of Residual Certificates.
"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.
"PNC": PNC Bank, National Association, a national banking
association, or its successor in interest.
"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 "Midland
Loan Services, Inc., as Special Servicer, for LaSalle Bank National Association,
as Trustee in trust for the registered holders of ML-CFC Commercial Mortgage
Trust 2007-8, Commercial Mortgage Pass-Through Certificates, Series 2007-8."
"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) the Trust Converting Loan is paid in
full on the first payment date when no prepayment charge is due, (iii) no Trust
Mortgage Loan will otherwise be paid prior to maturity and (iv) 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) the
Georgia-Alabama Retail Portfolio 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 Georgia-Alabama Retail Portfolio Servicing Fee Rate 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
Georgia-Alabama Retail Portfolio 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
Trust Administration 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); and (b)
the Georgia-Alabama Retail Portfolio Trust Mortgage Loan, if the Georgia-Alabama
Retail Portfolio Trust Mortgage Loan 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 Georgia-Alabama
Retail Portfolio 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 Trust Administration 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.
"Prepayment Premium Period": The time period over which the
prepayment premium percentage of any Converting Loan is reduced with respect to
voluntary 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 sole 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 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 Special Servicer (or, in the case of the Georgia-Alabama Retail
Portfolio Trust Mortgage Loan, by the Georgia-Alabama Retail Portfolio 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 Special Servicer (or, in
the case of the Georgia-Alabama Retail Portfolio Trust Mortgage Loan, by the
Georgia-Alabama Retail Portfolio 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 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 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 Certificateholder, 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 applicable.
"Proposed Plan": As defined in Section 3.17(a)(iii).
"Prospectus": The prospectus dated May 10, 2007, as supplemented by
the Prospectus Supplement, relating to the Registered Certificates.
"Prospectus Supplement": The final prospectus supplement dated
August 17, 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 (or, in the case of
any Trust Mortgage Loan for which the Due Date occurs on a day other than the
first calendar day of the month, the Due Date occurring in the month in which
such Collection Period ends), (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 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": 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 S&P (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), that has a claims paying ability rated no lower than two rating
categories (without regard to pluses or minuses (in the case of Fitch or S&P) or
numerical designations) below the rating assigned to the then highest rated
outstanding Certificate, but in no event lower than "A-" by Fitch (if rated by
Fitch, or if not rated by Fitch, "A:1X" by A.M. Best) and S&P (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 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 August
2049.
"Rating Agency": Any of Fitch or S&P.
"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 Georgia-Alabama Retail Portfolio 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 Georgia-Alabama Retail
Portfolio 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 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 Serviced 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 Serviced
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 Georgia-Alabama Retail Portfolio Trust Mortgage Loan, by the
Georgia-Alabama Retail Portfolio Servicer pursuant to the Other 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 Georgia-Alabama Retail Portfolio Trust Mortgage Loan, by the
Georgia-Alabama Retail Portfolio Servicer pursuant to the Other 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 X-0, Xxxxx X-0, Class A-SB,
Class A-3, Class AM, Class AJ, Class A-1A, Class AM-A, Class AJ-A, Class B,
Class C, Class D, Class E or Class F Certificate.
"Regular Certificate": Any REMIC II Regular 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 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" means 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
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, all
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 Georgia-Alabama Retail Portfolio Trust Mortgage Loan, the rights of
the holder thereof with respect to any related Georgia-Alabama Retail Portfolio
REO Property under the Other 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; (v) the rights of the mortgagee under all Insurance Policies
with respect to the Trust Mortgage Loans and (vi) the Interest Deposit Amount;
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 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 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 Regular Certificate": Any Class A-1, Class A-2, Class
A-SB, Class A-3, Class AM, Class AJ, Class A-1A, Class AM-A, Class AJ-A, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class P, Class Q, Class S, Class T or Class X 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 Georgia-Alabama Retail Portfolio Mortgaged
Property, pursuant to the Other 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 Georgia-Alabama Retail Portfolio
Mortgaged Property, pursuant to the Other Pooling and Servicing Agreement.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan (or, if a Serviced Loan Combination is
involved, any of the multiple Mortgage Loans comprising the subject Serviced
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 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 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 Georgia-Alabama Retail
Portfolio Trust Mortgage Loan, net of the Georgia-Alabama Retail Portfolio
Servicing Fee Rate) to but not including the Due Date in the Collection Period
of receipt (exclusive of any portion thereof that constitutes Additional
Interest); second, as a recovery of principal of such REO Loan to the extent of
its entire unpaid principal balance; and third, 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 Serviced 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 imminent default of a Mortgage Loan; and with respect to a
Serviced Loan Combination, the related Loan Combination REO Property; provided
that the Georgia-Alabama Retail Portfolio Mortgaged Property shall constitute an
REO Property if acquired under the Other 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 Georgia-Alabama Retail Portfolio 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).
"Representing Party": As defined in Section 8.15.
"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 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
(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 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, (iii) the Custodian, any officer
thereof, and (iv) any Fiscal Agent, any officer thereof.
"Restricted Servicer Reports": Collectively, to the extent not filed
with the Commission, the CMSA Servicer Watch List, 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 registered in the name of the Depository or
its nominee, in definitive, fully registered form without interest coupons, and
each of which certificates has a Rule 144A CUSIP number.
"S&P": Standard & Poor's Ratings Services, a Division of The
XxXxxx-Xxxx Companies, Inc., or its successor in interest. If neither such
Rating Agency nor any successor remains in existence, "S&P" shall be deemed to
refer to such other nationally recognized statistical rating 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 S&P herein referenced shall be deemed
to refer to the equivalent ratings of the party so designated.
"Xxxxxxxx-Xxxxx Certification": As defined in Section 8.16(a)(iii).
"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, by the Georgia-Alabama Retail Portfolio Servicer pursuant to the Other
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 X-0, Xxxxx X-0, Class A-SB, Class
A-3, Class A-1A or Class X Certificate.
"Sequential Pay Certificate": Any Class X-0, Xxxxx X-0, Class A-SB,
Class A-3, Class AM, Class AJ, Class A-1A, Class AM-A, Class AJ-A, 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 S, Class T or Class Q Certificate.
"Serviced Loan Combination": Each Loan Combination other than the
Georgia-Alabama Retail Portfolio Loan Combination.
"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 Georgia-Alabama Retail Portfolio 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.
"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 Georgia-Alabama Retail Portfolio
Trust Mortgage Loan, the Master Servicing Fee and the Georgia-Alabama Retail
Portfolio Servicing Fee Rate.
"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; (iv) the
Custodian and (v) any other party hereto, in addition to the Master Servicers,
the Special Servicer, the Trustee and the Custodian, 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 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 to the
transactions contemplated hereby; (ii) the ownership of any Certificate 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 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 of $20,000,000 or more 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, a principal balance that is equal to or greater than 5% or more of
the aggregate outstanding principal balance of the Mortgage Pool at the time of
determination or (2) 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.
"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 Mortgagor with respect to the Farallon Portfolio Trust
Mortgage Loan and the Empirian Portfolio Pool Two Trust Mortgage Loan are
Significant Obligors with respect to the Mortgage Pool.
"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 evidencing a $1,000
denomination.
"Sole Certificate Owner": As defined in Section 9.01.
"Special Servicer": Midland Loan Services, Inc., or any successor in
interest thereto, or any successor special servicer appointed as herein
provided.
"Special Servicer Indemnification Agreement": With respect to the
initial Special Servicer, that certain Master Servicer and Special Servicer
Indemnification Agreement, dated as of August 17, 2007, between the initial
Special Servicer, 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 (other 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];
(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) the
Special 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 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 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) an original of any letter of credit relating to the Trust
Mortgage Loan (which letter of credit shall not be delivered in original
form to the Custodian but rather to the applicable Master Servicer);
provided that whenever the term "Specially Designated Mortgage Loan Documents"
is used to refer to documents actually received by the Custodian, such term,
with respect to any receipt or certification by the Custodian for documents
described in clauses (iv) and (v) of this definition, shall be deemed to include
such documents only to the extent the Custodian has actual knowledge of their
existence; and provided, further, that the only Specially Designated Mortgage
Loan Document with respect to the Georgia-Alabama Retail Portfolio 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
(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;
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 Serviced 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.
The Georgia-Alabama Retail Portfolio Loan Combination will be
considered a "specially serviced mortgage loan" under and in accordance with the
related Other Pooling and Servicing Agreement.
"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,
Massachusetts, Illinois, Delaware 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) 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), without regard to any change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, 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
Georgia-Alabama Retail Portfolio Loan Combination, by the Georgia-Alabama Retail
Portfolio Servicer pursuant to the Other 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 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.
The Stated Principal Balance with respect to each A-Note Non-Trust
Loan and B-Note Non-Trust Loan shall be (1) the Cut-off Date Balance of such
Mortgage Loan, as permanently reduced on each monthly remittance date under the
related Loan Combination Intercreditor Agreement to not less than zero, by (2)
the sum of (A) any amounts received during the related Collection Period that
are allocable as principal of such Non-Trust Loan or any successor REO Loan with
respect thereto and (B) any Realized Losses incurred with respect to such
Non-Trust Loan or any successor REO Loan during the related Collection Period
that represent a loss of principal with respect thereto (including as a result
of a Deficient Valuation).
"Subject Securitization Transaction": The commercial mortgage
securitization transaction contemplated by this Agreement.
"Subordinated Certificate": Any Class AM, Class AM-A, Class AJ,
Class AJ-A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class P, Class Q, Class S, Class T, 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 either (x) such entity's activities relate only to 5%
or less of the Mortgage Loans, by balance or (y) the applicable party hereto
takes responsibility for the activities of such Sub-Servicer, sub-contractor,
vendor, agent or other Person as permitted under Regulation AB).
"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).
"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 Grantor Trust Y 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.
"Timbercreek Apartments B-Note Non-Trust Loan": The Mortgage Loan,
other than the Timbercreek Apartments Trust Mortgage Loan, that is secured by
the same Mortgage encumbering the Timbercreek Apartments Mortgaged Property as
the Timbercreek Apartments Trust Mortgage Loan, and that is subordinate, to the
extent set forth in the related Loan Combination Intercreditor Agreement, in
right of payment and in other respects to the Timbercreek Apartments Trust
Mortgage Loan.
"Timbercreek Apartments Controlling Party" means the Controlling
Class Representative.
"Timbercreek Apartments Intercreditor Agreement": The Intercreditor
and Servicing Agreement, dated June 6, 2007, between the Trust as holder of the
Timbercreek Apartments Trust Mortgage Loan and the holder of the Timbercreek
Apartments B-Note Non-Trust Loan.
"Timbercreek Apartments Loan Combination": Collectively, the
Timbercreek Apartments Trust Mortgage Loan and the Timbercreek Apartments B-Note
Non-Trust Loan. The term "Timbercreek Apartments Loan Combination" shall include
any successor REO Loans with respect to the Timbercreek Apartments Trust
Mortgage Loan and the Timbercreek Apartments B-Note Non-Trust Loan.
"Timbercreek Apartments Mortgaged Property": The Mortgaged Property
identified on the Mortgage Loan Schedule as Timbercreek Apartments.
"Timbercreek Apartments Trust Mortgage Loan": The Trust Mortgage
Loan that is secured by the Timbercreek Apartments Mortgaged Property and
included in the Trust Fund.
"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.
"Trust Administration 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 Trust Administration 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).
"Trust Administration Fee Rate": .00085% per annum.
"Trust ARD Loan": Any Trust Mortgage Loan that is an ARD Loan.
"Trust ARD Loan 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)(ii) with respect to the
Trust ARD Loans, which shall be entitled "LaSalle Bank National Association, as
Trustee, in trust for the registered holders of ML-CFC Commercial Mortgage Trust
2007-8, Commercial Mortgage Pass-Through Certificates, Series 2007-8, Trust ARD
Loan Additional Interest Account." The Trust ARD Loan Additional Interest
Account shall not be an asset of either REMIC I or REMIC II.
"Trust Balloon Loan": Any Trust Mortgage Loan that is a Balloon
Loan.
"Trust Converting Loan": The Trust Mortgage Loan that is a
Converting Loan.
"Trust Converting Loan 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)(i) with
respect to the Trust Converting Loan, which shall be entitled "Trustee, in trust
for the registered holders of ML-CFC Commercial Mortgage Trust 2007-8,
Commercial Mortgage Pass-Through Certificates, Series 2007-8, Trust Converting
Loan Additional Interest Account." The Trust Converting Loan Additional Interest
Account shall not be an asset of either REMIC I or REMIC II.
"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 Y Assets and (iii) the Grantor Trust Z Assets.
"Trust Mortgage Loan": Each Mortgage Loan, including the Farallon
Portfolio Trust Mortgage Loan, the Georgia-Alabama Retail Portfolio Trust
Mortgage Loan, the Executive Hills Trust Mortgage Loan, the Peninsula Xxxxxxx
Hills Trust Mortgage Loan and the Timbercreek Apartments 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 REO Loan": Any REO Loan that succeeded a Trust Mortgage Loan.
"Trust Required Appraisal Mortgage Loan": Any Trust Mortgage Loan or
Trust REO Loan that is a Required Appraisal Mortgage Loan.
"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, co-trustee or separate
trustee appointed or designated by the Trustee hereunder.
"Trustee Indemnification Agreement": With respect to the initial
Trustee, that certain Trustee Indemnification Agreement, dated as of August 17,
2007, between the initial Trustee, 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 (other 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];
(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];
(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.
"Underwriter": Each of MLPF&S, Countrywide Securities, Banc of
America Securities LLC, Bear, Xxxxxxx & Co. Inc. and KeyBanc Capital Markets
Inc., 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": Any "United States person" 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 Servicer Reports": Collectively, the CMSA Delinquent
Loan Status Report, the CMSA Historical Loan Modification and Corrected Mortgage
Loan Report, the CMSA Historical Liquidation Report, 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 Servicer 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. Ninety-eight percent (98%) of the Voting
Rights shall be allocated among the Class X-0, Xxxxx X-0, Class A-SB, Class A-3,
Class AM, Class AJ, Class A-1A, Class AM-A, Class AJ-A, 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 S, Class T 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 Class Y, Class Z and 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.
"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 (without regard to the Additional
Interest distributable to, and excluding amounts payable to, the Class Y or
Class Z Certificates), 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).
"Xxxxx": Xxxxx Fargo Bank, National Association.
"WHFIT": A "Widely Held Fixed Investment Trust" as that term is
defined in Treasury Regulations Section 1.671-5(b)(22) or successor provisions.
"WHFIT Regulations": Treasury Regulations Section 1.671-5, as
amended.
"WHMT": A "Widely Held Mortgage Trust" as that term is defined in
Treasury Regulations Section 1.671-5(b)(23).
"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 (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%.
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.
(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 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, with respect to the Georgia-Alabama Retail
Portfolio Trust Mortgage Loan, 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 Other Pooling and Servicing Agreement) in respect of the
Georgia-Alabama Retail Portfolio Trust Mortgage Loan, any successor Trust REO
Loan with respect thereto or the Georgia-Alabama Retail Portfolio Mortgaged
Property.
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 2007-8" 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) the
rights of the Depositor under Sections 2, 3, 8, 10, 11, 12, 13, 14, 15, 17, 18,
20 and 21 of each Mortgage Loan Purchase Agreement, (iii) the rights of the
Depositor under each Loan Combination Intercreditor Agreement, (iv) the Interest
Deposit Amount and (v) 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
related "A Note Holder," "Note A Holder" or "Lead Lender," (or similar term) as
the case may be, 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 "A Note Holder" or "Lead Lender" (or similar term) as the case
may be, under each Loan Combination Intercreditor Agreement for each Serviced
Loan Combination. With respect to the Georgia-Alabama Retail Portfolio Loan
Combination, the Georgia-Alabama Retail Portfolio Servicer shall service such
Georgia-Alabama Retail Portfolio Loan Combination under and in accordance with
the Other Pooling and Servicing Agreement. The applicable Master Servicer shall
therefore, have limited duties with respect to the servicing of the
Georgia-Alabama Retail Portfolio Trust Mortgage Loan as further specified
herein. 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 Custodian (with a copy to the
applicable Master Servicer and the Special Servicer), before the Closing Date,
the Mortgage File for each Trust Mortgage Loan so assigned. The Special Servicer
may request the applicable Master Servicer to deliver a copy of the Servicing
File for any Trust Mortgage Loan (other than a Specially Serviced Mortgage Loan)
if such Master Servicer shall not have granted the Special Servicer electronic
access to such Servicing Files. 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 Custodian, the Trustee, any Fiscal Agent, 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 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 thereon (except with respect to any Mortgage File document recorded
in the name of MERS or its designee), 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 Custodian 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 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 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 (except with respect to any
Mortgage File document recorded in the name of MERS or its designee), 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 (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 Custodian 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 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 45 days following the Closing Date;
provided that, during such time, the applicable Mortgage Loan Seller shall
execute any documents requested by the applicable Master Servicer or the Special
Servicer with respect to such MERS Mortgage Loan that, in the reasonable
discretion of the applicable 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 Countrywide Trust Mortgage Loans, the KeyBank Trust Mortgage Loans and
the Merrill 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 (other than any Mortgage Loan with respect to which the Mortgage File
documents were recorded in the name of MERS or its designee), promptly (and in
any event within 180 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 communications, credit underwriting or 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.
(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; Receipt of the
Mortgage Files by the Custodian.
(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 the Custodian, 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 the Custodian 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
Serviced Loan Combination relates to the corresponding Non-Trust Loan, the
Custodian shall also hold such Mortgage File in trust for the use and benefit of
the related Non-Trust Noteholder(s). The Custodian hereby certifies to each of
the Depositor, the Trustee, 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
Custodian will review the Mortgage Files and certify (in a certificate
substantially in the form of Exhibit C) to each of the Depositor, the Trustee,
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) and (a)(vii), and to the extent
provided in the related Mortgage File and actually known by a Responsible
Officer of the 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 (v) and
(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 Custodian as part of the
Mortgage File indicating otherwise, the Custodian 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 national forms and in recordable form and will be filed
in the state of incorporation or organization of the related Mortgagor 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 Custodian 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 Custodian 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 the 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 Custodian 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 Seller's 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 any duty of the Master Servicers or the Special
Servicer to monitor the receipt of the Custodian's certification as contemplated
by Section 2.02(a)) 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 Custodian, the Trustee, the Master Servicers or the Special Servicer 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, 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 the
applicable 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 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 Grantor Trust to
fail to qualify as a grantor trust under Grantor Trust Provisions or 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. 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 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;
(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 and (iv) if
the Mortgage related to the Mortgage Loan to be repurchased or substituted has
been recorded in the name of MERS or its designee, the applicable Master
Servicer shall use commercially reasonable efforts (and the Trustee shall
cooperate with such efforts of such Master Servicer) to reflect the release of
such Mortgage on the records of MERS; 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 Custodian 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.
(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.
(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.
Section 2.05 Acceptance of REMIC I, Grantor Trust Y and Grantor
Trust Z by Trustee.
The Trustee acknowledges the assignment to it of the Trust Mortgage
Loans and the other property comprising REMIC I, the Additional Interest and the
other property comprising Grantor Trust Y and Grantor Trust Z, as applicable,
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; in the case of Grantor Trust Y, all present and future holders of the
Class Y Certificates; in the case of 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, 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 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
Regular Certificates and Class R-II Certificates.
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests, 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 Regular Certificates and Class R-II
Certificates in authorized denominations, evidencing the entire beneficial
ownership of REMIC II. The rights of the holders of the respective Classes of
REMIC II Regular Certificates and Class R-II Certificates, to receive
distributions from the proceeds of REMIC II in respect of their REMIC II Regular
Certificates and Class R-II Certificates and all ownership interests evidenced
or constituted by the respective Classes of REMIC II Regular Certificates and
Class R-II Certificates in such distributions, shall be as set forth in this
Agreement.
Section 2.09 Execution, Authentication and Delivery of Class Y
Certificates.
Concurrently with the assignment to it of the related Additional
Interest and the other assets of Grantor Trust Y and in exchange therefor, the
Certificate Registrar, pursuant to the written 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 Y
Certificates.
Section 2.10 Execution, Authentication and Delivery of Class Z
Certificates.
Concurrently with the assignment to it of the related Additional
Interest and the other assets of Grantor Trust Z and in exchange therefor, the
Certificate Registrar, pursuant to the written 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.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Mortgage Loans.
(a) Master Servicer No. 1 shall service and administer the Xxxxxxx
Trust Mortgage Loans and the KeyBank Trust Mortgage Loans (inclusive of the
related Serviced Loan Combinations, the Trust Mortgage Loans of which are
Xxxxxxx Trust Mortgage Loans or KeyBank Trust Mortgage Loans, respectively).
Master Servicer No. 2 shall service and administer the Countrywide Trust
Mortgage Loans (inclusive of the related Serviced Loan Combinations, the Trust
Mortgage Loans of which are Countrywide Trust Mortgage Loans but exclusive of
the Georgia-Alabama Retail Portfolio Trust Mortgage Loan), in the case of each
of Master Servicer No. 1 and Master Servicer No. 2, pursuant to this Agreement
on behalf of the Trustee, for the benefit of the Certificateholders (or, in the
case of any Serviced 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 Serviced 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) and Section 6.11, 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 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 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 applicable Master Servicer's or the Special
Servicer's as applicable, representative capacity; 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, the Special
Servicer and the Custodian 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, except as set forth herein, 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, if applicable, of a Non-Trust
Noteholder or its designee to purchase the related Trust Mortgage Loan in
accordance with the related Loan Combination Intercreditor Agreement.
(g) With respect to any Serviced Loan Combination, 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 Serviced 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 Serviced Loan
Combination or (ii) if expressly provided for in or pursuant to the related Loan
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 Serviced 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 Serviced Loan Combination, 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
Serviced Loan Combination, the applicable Master Servicer and, if applicable,
the Special Servicer shall continue to service and administer such Serviced Loan
Combination and/or any related Loan Combination REO Property, for the benefit of
the respective holders of such Serviced Loan Combination, under this Agreement
as if such Serviced 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 Serviced 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 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 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. Notwithstanding any of the foregoing, in the
case of the Xxxxxxx Trust Mortgage Loans identified on Schedule VII, neither
Master Servicer nor the Special Servicer shall take any enforcement action with
respect to the failure of a Mortgagor to make any payment of a late payment
charge or demand payment of a late payment charge from a Mortgagor, in each case
prior to the expiration of the grace period for Periodic Payments, if any, set
forth in the related Mortgage Loan documents.
(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 Serviced
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, 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 applicable, 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 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 or
any Converting Loan after the related date of conversion of the mortgage
interest rate to a floating rate, 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 applicable, 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 accrued and unpaid interest at the related Mortgage
Rate (net of the Master Servicing Fee Rate) on such 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; third, as a recovery of principal of such
Mortgage Loan up to its entire unpaid principal balance, to the extent such
amounts have not been previously advanced; and fourth, with respect to any ARD
Loan after its Anticipated Repayment Date or any Converting Loan after the
related date of conversion of the mortgage interest rate to a floating rate, 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 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.
(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 respect to non-Specially
Serviced Mortgage Loans, or the Special Servicer, with respect to Specially
Serviced Mortgage Loans shall, to the extent the Mortgage Loan documents provide
for any discretion, 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.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
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 Serviced Loan Combination, if the related
Servicing Account includes funds with respect to any Non-Trust Loan, then the
applicable Master Servicer shall transfer such funds to the applicable Loan
Combination Custodial Account. 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 applicable, for any such Servicing Advance (provided that any interest
thereon may only be withdrawn from the applicable 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 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 REMIC I, REMIC II or any Grantor
Trust. 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
one Business Day 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 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 Servicers' 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, to the extent reasonably practicable, not less
than 10 Business Days' and in any event not less than five 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 as may be required on an urgent or emergency basis, as determined by
the Special Servicer. 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 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 applicable Master Servicer to whom the Special Servicer has given
timely 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 a 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 the applicable 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 a 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 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 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. Notwithstanding the foregoing, the
applicable Master Servicer shall have the right to make its own determination
that any portion of any Servicing Advance is a Nonrecoverable Servicing Advance.
No more frequently than once per calendar month, the Special
Servicer may require an applicable Master Servicer to reimburse the Special
Servicer for any Servicing Advance made by the Special Servicer, subject to the
terms and provisions set forth below. 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.
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 in accordance with the Servicing Standard that such
Servicing Advance, although not characterized by the Special Servicer as a
Nonrecoverable Servicing Advance, is in fact 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 Serviced 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 Non-Trust Noteholder and/or payments having then been
received from the related Non-Trust Noteholder 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 applicable, 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 either has made a Nonrecoverable Servicing Advance or that any proposed
Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance,
shall be made in accordance with the Servicing Standard and shall be evidenced
by an Officer's Certificate delivered promptly to the Trustee, any Fiscal Agent,
the Depositor and, in the case of a Serviced 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
Serviced 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 Serviced Loan Combination, if the
related Reserve Account includes funds with respect to any Non-Trust Loan, then
the applicable Master Servicer shall transfer such funds to the applicable Loan
Combination Custodial Account. 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, 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 not prohibited under the related Mortgage Loan
documents, (iii) during an event of default under the related 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 unless not permitted by the related Mortgage
Loan documents. The Reserve Accounts shall not be considered part of the
segregated pool of assets comprising REMIC I, REMIC II or any Grantor Trust.
Consistent with the Servicing Standard, either 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 Serviced 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 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 Mortgage Loan and, to the extent
such failure materially and adversely affects the Mortgage Loan, 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.
Section 3.04 Collection Accounts, Interest Reserve Account,
Additional Interest Accounts, Distribution Account, Gain-on-Sale Reserve Account
and Loan Combination Custodial Accounts.
(a) Each Master Servicer shall establish and maintain one or more
accounts (collectively, 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 its 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);
(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 Other Pooling and
Servicing Agreement and/or the Georgia-Alabama Retail Portfolio
Intercreditor Agreements with respect to the Georgia-Alabama Retail
Portfolio Trust Mortgage Loan or any Georgia-Alabama Retail Portfolio REO
Property.
provided that, in the case of a Trust Mortgage Loan that is part of a Serviced
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 servicing compensation pursuant to Section
3.11, 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, upon which the Master Servicers may conclusively rely. The
Collection Accounts shall be maintained as 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 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 3:00 p.m. (or 4:00 p.m. with
respect to any unscheduled principal payment on an KeyBank Trust Mortgage Loan
received on the related Due Date) (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 such
Master Servicer's 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 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.
(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 pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the Interest Reserve Account.
(d) Additional Interest Accounts.
(i) The Trust Converting Loan Additional Interest Account. Prior to
any Collection Period during which Additional Interest is received on the
Trust Converting Loan, and upon notification from either Master Servicer
or the Special Servicer pursuant to Section 3.02(d), the Trustee shall
establish and maintain the Trust Converting Loan Additional Interest
Account in trust for the benefit of the Class Y Certificateholders. The
Trust Converting Loan 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 Trust
Converting Loan Additional Interest Account an amount equal to any
Additional Interest received on the Trust Converting Loan serviced thereby
and any successor Trust REO Loans with respect thereto during the
applicable Collection Period. The Trustee shall also deposit into the
Trust Converting Loan Additional Interest Account any amounts required to
be deposited pursuant to Section 3.06 in connection with losses incurred
with respect to Permitted Investments of funds held in the Trust
Converting Loan Additional Interest Account.
Following the distribution of Additional Interest on the Trust
Converting Loan to Holders of Class Y Certificates on the first Distribution
Date after which the Trust Converting Loan is no longer outstanding or any
successor Trust REO Loans with respect thereto, the Trustee shall terminate the
Trust Converting Loan Additional Interest Account.
(ii) The Trust ARD Loan Additional Interest Account. Prior to any
Collection Period during which Additional Interest is received on the
Trust ARD 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 Trust ARD Loan Additional Interest Account in trust for
the benefit of the Class Z Certificateholders, as applicable. The Trust
ARD Loan 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 Trust ARD Loan
Additional Interest Account an amount equal to any Additional Interest
received on the Trust ARD Loans serviced thereby and any successor Trust
REO Loans with respect thereto during the applicable Collection Period.
The Trustee shall also deposit into the Trust ARD Loan Additional Interest
Account any amounts required to be deposited pursuant to Section 3.06 in
connection with losses incurred with respect to Permitted Investments of
funds held in the Trust ARD Loan Additional Interest Account.
Following the distribution of Additional Interest on the ARD Loans
to Holders of Class Z Certificates on the first Distribution Date after which
there are no longer any Trust ARD 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 Trust ARD Loan 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.
Upon the liquidation of a Trust Specially Serviced Mortgage Loan or
the disposition of any REO Property in accordance with Section 3.09 or Section
3.18 or the liquidation of the Georgia-Alabama Retail Portfolio Trust Mortgage
Loan or the disposition of any Georgia-Alabama Retail Portfolio REO Property in
accordance with the Other Pooling and Servicing Agreement and/or the
Georgia-Alabama Retail Portfolio Intercreditor Agreements, the Special Servicer
(or, in the case of the Georgia-Alabama Retail Portfolio Trust Mortgage Loan or
any Georgia-Alabama Retail Portfolio REO Property, the Georgia-Alabama Retail
Portfolio Servicer), 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) [Reserved.]
(g) Notwithstanding that any of the Interest Reserve Account, the
Additional Interest Accounts 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
Accounts, 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.
(h) The applicable Master Servicer shall establish and maintain, or
cause to be established and maintained, one or more separate accounts for each
Serviced Loan Combination (collectively, as to each Serviced 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 Serviced Loan Combination;
(ii) all payments on account of interest, including Penalty
Interest, on such Serviced Loan Combination;
(iii) all Prepayment Premiums, Yield Maintenance Charges and late
payment charges on such Serviced 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
Serviced 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 Serviced Loan Combination
and together with any amounts representing recoveries of Workout-Delayed
Reimbursement Amounts or Nonrecoverable Advances in respect of such
Serviced 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
Serviced Loan Combination specifically to cover items for which a
Servicing Advance has been made; and
(ix) any amounts representing a reimbursement, payment and/or
contribution due and owing to a party other than the Trust from 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.
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 certificate of a Servicing
Officer of the Special Servicer describing the item and amount, upon which the
Master Servicers may conclusively rely. 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
Serviced 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 the applicable Master Servicer's 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 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
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 Accounts and the Additional Interest Accounts may be invested
only in Permitted Investments in accordance with the provisions of Section 3.06.
Each Master Servicer shall give written notice to the Trustee, the Special
Servicer and the Rating Agencies of the location of the 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 Trustee, the Master Servicers, the Special Servicer
and the Rating Agencies of any new location of the Distribution Account prior to
any change thereof.
Section 3.05 Permitted Withdrawals From the Collection Accounts, the
Interest Reserve Account, the Additional Interest Accounts, the Gain-on-Sale
Reserve Account, the Distribution Account and the Loan Combination Custodial
Accounts.
(a) Each Master Servicer may, from time to time, make withdrawals
from their respective Collection Accounts 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);
(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 Serviced 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 Georgia-Alabama Retail Portfolio Trust
Mortgage Loan, net of servicing fees accrued at the related
Georgia-Alabama Retail Portfolio Servicing Fee Rate) 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 Serviced 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 Serviced Loan Combination
and any successor Trust REO Loan with respect thereto), and to pay the
Broker Strip Interest to the Broker Strip Payees, such Master Servicer's,
Excess Servicing Strip holder's and Broker Strip Payee'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 Serviced 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, 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 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, the Special
Servicer's and such Master Servicer's respective rights to reimbursement
pursuant to this clause (vi) with respect to any Servicing Advance (other
than a Nonrecoverable Servicing Advance, which is reimbursable pursuant to
clause (vii) below) being limited 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, 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 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 (including with respect to any
Nonrecoverable Advance with respect to a Loan Combination as contemplated
in Section 3.05(e) (viii)(C)), 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 (including with respect to any Nonrecoverable Advance with respect
to a Loan Combination as contemplated in Section 3.05(e) (viii)(C)),
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,
the Special Servicer or itself, 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, 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(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 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;
(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 Serviced 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 such Master Servicer and/or the Special
Servicer (and which amounts shall no longer be payable hereunder) if such
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 Serviced 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 Accounts 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 Georgia-Alabama
Retail Portfolio Servicer or any other party under the Other Pooling and
Servicing Agreement, any amount payable by the Trust, in its capacity as
holder of the Georgia-Alabama Retail Portfolio Trust Mortgage Loan,
pursuant to the terms of the Georgia-Alabama Retail Portfolio
Intercreditor Agreements;
(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)-(xxii) above and
such records shall be sufficient to determine the amounts attributable to REMIC
I.
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 therefore 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)-(xxii) above. Each Master Servicer may conclusively rely on such
Officer's Certificate.
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 (unless not
prohibited from doing so under the related Loan Combination Intercreditor
Agreement); and provided, further, that to the extent 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 Georgia-Alabama Retail Portfolio Servicer or any other party
under the Other Pooling and Servicing Agreement in accordance with Section
3.05(a)(xviii), Master Servicer No. 2 may request a written statement from a
responsible officer of the Georgia-Alabama Retail Portfolio Servicer and/or any
other party under the Other Pooling and Servicing Agreement, 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 Georgia-Alabama Retail
Portfolio Intercreditor Agreements pursuant to which such party believes it is
entitled to reimbursement; provided that Master Servicer No. 2 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 Georgia-Alabama Retail Portfolio Intercreditor Agreements); and
provided, further, that to the extent such a written statement from the
Georgia-Alabama Retail Portfolio Servicer or any other party under the Other
Pooling and Servicing Agreement is received by Master Servicer No. 2; Master
Servicer No. 2 (unless it also acting as the Georgia-Alabama Retail Portfolio
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 the Trustee 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 and the Custodian respective portions of the
Trust Administration 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;
(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 (or February, if such Distribution Date is the final Distribution
Date), 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 Accounts 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 Serviced 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 Serviced 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 Serviced 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, 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 Serviced 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 and cure payments 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 (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 Serviced 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 Serviced 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 Serviced 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 Serviced 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 Serviced 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 Serviced Loan Combination, if 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) [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 Serviced 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 3:00 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 Serviced 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 Accounts 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.
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, use commercially
reasonable efforts to seek payment from the related Non-Trust Noteholder 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 Serviced 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 Non-Trust Noteholder.
(f) In addition, the Trustee may from time to time, make withdrawals
from the Gain-on-Sale Reserve Account, the Additional Interest Accounts 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 Accounts 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 Accounts and the Interest Reserve Account, respectively, for any
Investment Period.
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 Accounts, the
Gain-on-Sale Reserve Account and the REO Accounts.
(a) Each Master Servicer may direct in writing (pursuant to a
standing instruction or otherwise) any depository institution maintaining a
Servicing Account, a Reserve Account, its 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 (pursuant to a
standing instruction or otherwise) any depository institution maintaining an REO
Account (also, for purposes of this Section 3.06, an "Investment Account"), and
the Trustee may direct in writing (pursuant to a standing instruction or
otherwise) any depository institution maintaining the Distribution Account, the
Gain-on-Sale Reserve Account, the Additional Interest Accounts and the Interest
Reserve 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 (with respect to
Permitted Investments of amounts in the Distribution Account, the Gain-on-Sale
Reserve Account, the Additional Interest Accounts and the Interest Reserve
Account) (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 (in the case of the
Distribution Account, the Gain-on-Sale Reserve Account, the Additional Interest
Accounts and the Interest Reserve 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 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
directs the investment of funds in the Distribution Account, the Gain-on-Sale
Reserve Account, the Additional Interest Accounts and the Interest Reserve
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 (in the case of the Distribution
Account, the Gain-on-Sale Reserve Account, the Additional Interest Accounts and
the Interest Reserve 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 to the extent that (i) 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 or (ii) the loss
results from the bankruptcy or insolvency of the depository institution or trust
company that holds such Investment Account so long as such depository
institution or trust company satisfies the qualifications set forth in the
definition of Eligible Account and is not the party or an affiliate of the party
maintaining the account).
(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 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 provided, further that, if and to the extent that a
Mortgage so permits, the applicable Master Servicer shall use reasonable efforts
(but shall not be required to institute any enforcement proceeding) 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 naming as an additional insured) the Trustee or the applicable Master
Servicer on behalf of the Trustee (and, in the case of a Serviced 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 Administered REO Loan, as applicable, and in
any 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 in any such case
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 the 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, such
approval to be deemed granted if not rejected within 10 Business Days after its
receipt of the applicable Master Servicer's or the Special Servicer's request
for such approval and all reasonably requested information. 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 any 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 Serviced 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 Serviced 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
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit.
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 subject to and in accordance with the requirements otherwise
set forth in the prior paragraph. 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 Serviced 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 Mortgage Loans
and/or REO Properties relating to Serviced Mortgage Loans 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 Trustee and the Certificateholders (and, in the case of a Serviced
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 commercially reasonable in the mortgage servicing industry and in an
amount not less than the greater of (X) $20,000,000 and (Y) an amount
(determined by reference to the size of its servicing portfolio of commercial
mortgage loans) as would either permit it to be a qualified FNMA or FHLMC
(whichever is greater) seller-servicer of multifamily mortgage loans. 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 commercially reasonable in the mortgage servicing
industry and in an amount not less than the greater of (X) $20,000,000 and (Y)
an amount (determined by reference to the size of its servicing portfolio of
commercial mortgage loans) as would either permit it to be a qualified FNMA or
FHLMC (whichever is greater) seller-servicer of multifamily mortgage loans. 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.
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 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.
(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 Serviced 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 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 Serviced 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 Serviced 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 Serviced
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) The Master Servicers (with respect to Serviced Mortgage Loans
that are not Specially Serviced Mortgage Loans) and the Special Servicer (with
respect to Specially Serviced 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 either 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
Section 6.12; provided that:
(i) subject to the related Mortgage Loan documents and applicable
law, neither of the Master Servicers 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 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; 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, either Master Servicer or the
Special Servicer, subject to Section 6.11 and Section 6.12 may waive such
requirement without Rating Agency approval in accordance with the
Servicing Standard; if the affected Serviced Trust Mortgage Loan is a
Significant Mortgage Loan, then, subject to the related Mortgage Loan
documents and applicable law, neither of the Master Servicers 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 Trust Mortgage Loan until it has received
written confirmation from each Rating Agency that such action would not
result in an Adverse Rating Event;
(ii) subject to the related Mortgage Loan documents and applicable
law, neither Master 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 under any Serviced 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 and Section 6.11 and 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 be subject to the
limitation to 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);
(iii) subject to the related Mortgage Loan documents and applicable
law, neither Master 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 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 and Section 6.11 and Section 6.12 (as
applicable), 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 be subject to the limitation to 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 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, neither of the Master Servicers 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" 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,
neither of the Master Servicers nor the Special Servicer shall be
obligated to cover or assume any such costs or expenses); and
(v) neither of the Master Servicers nor the Special Servicer shall
(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 from the related Mortgagor in respect of such
assumption shall be promptly remitted by such Master 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 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 either 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 Serviced 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 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.
(b) Notwithstanding any other provisions of this Section 3.08,
either Master Servicer with respect to Serviced Mortgage Loans that are not
Specially Serviced Mortgage Loans (without the Special Servicer's or the
Controlling Class Representative's consent (and with respect to a Loan
Combination, subject to delivering prior notice to 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 applicable, 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), Section 6.11 and 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 Serviced Loan Combination, 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 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 or
other Specially Serviced 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 Serviced Loan Combination, at the expense of the related Non-Trust
Noteholder(s)), have an appraisal performed (upon which such party shall be
entitled to rely) 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. Promptly following the receipt of, and based on, a Required
Appraisal (or update), the Master Servicer shall determine (or, if applicable,
re-determine), and report to the applicable Master Servicer and the Trustee, the
then-applicable Appraisal Reduction Amount, if any, with respect to the related
Required Appraisal Loan, and the other parties hereto shall be entitled to
conclusively rely on such determination (or re-determination) by the Master
Servicer. 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 Section 3.03, 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 Serviced 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
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Certificateholders (and, in the case of a Loan Combination Mortgaged Property,
the related 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 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 either REMIC I or REMIC II under the REMIC
Provisions or cause either 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 Mortgaged Property, 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 related
Non-Trust Noteholder(s)) 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)) 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 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 Serviced 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 Serviced 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 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 Serviced 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 and include a request in
the form of Exhibit D-1 attached hereto for the related Mortgage File. Upon
receipt of such notice and request the Trustee shall cause the Custodian to
release, the related Mortgage File to the applicable Master Servicer and shall
deliver to such Master Servicer any requested release or discharge, duly
executed. If the related Mortgage has been recorded in the name of MERS or its
designee, the applicable Master Servicer or a Sub-Servicer at its direction,
shall take all necessary action to reflect the release of such Mortgage on the
MERS(R) System, provided that a third party has paid any and all costs
associated therewith. 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 but the parties
hereto may condition delivery thereof upon the payment of any such expenses by a
third party.
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 and shall request
delivery to it of the original Mortgage Note.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any 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 Custodian, 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 the Custodian to release, such Mortgage
File (or portion thereof) (and, in the case of a Non-Trust Loan, the applicable
Master Servicer shall request (and shall use commercially reasonably efforts to
cause) 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 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 Custodian to the applicable Master Servicer or the
Special Servicer, as the case may be.
(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 Serviced 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 mortgage loan comprised by the
Georgia-Alabama Retail Portfolio Trust Mortgage Loan and each Specially Serviced
Mortgage Loan) and each REO Loan in respect of which it is the applicable Master
Servicer. 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, condemnation 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 either Master Servicer's right to receive the Excess
Servicing Strip.
Notwithstanding anything herein to the contrary, either Master
Servicer (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 Xxxxx or KeyCorp 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 Xxxxx or KeyCorp, as the case
may be, the primary servicing fee rate, if any, for such Mortgage Loan or REO
Loan. Xxxxx or KeyCorp, 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 Xxxxx and KeyCorp 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, the
Custodian, 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 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 the applicable Master Servicer 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. Each Master Servicer shall pay the Excess Servicing Strip to the
holder of the Excess Servicing Strip (i.e., Xxxxx or KeyCorp, 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 Xxxxx or KeyCorp, as the case
may be, hereunder (subject to reduction as provided above and in the next
paragraph).
In the event that Xxxxx or KeyCorp, 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 Xxxxx or KeyCorp, as the case may be, under this
Agreement.
In respect of each Broker Strip Loan, the applicable Master Servicer
shall, on a monthly basis, by the last day of the month following the month in
which the applicable Master Servicer collected any related Broker Strip
Interest, remit to the applicable Broker Strip Payee the amount of the Broker
Strip Interest so collected.
(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) 50% of any and all assumption application fees, assumption
fees, modification fees, substitution fees, extension fees, consent fees,
release fees, waiver fees, defeasance 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 the
applicable Master Servicer 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
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 the 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 Serviced Loan Combination, out of the related Loan 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 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
within (i) 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, within such further period
that will not end beyond the date that is 120 days following the end of the
initial time period (which is 90 days) provided for such repurchase or
replacement; or the purchase of any Trust Mortgage Loan or related 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 Non-Trust Noteholder pursuant to the related
Loan Combination Intercreditor Agreement unless the purchase price with respect
thereto includes the Principal Recovery Fee (provided that, if the subject Loan
Combination Intercreditor Agreement provides that a Principal Recovery Fee is
payable if and to the extent such fee is payable under this Agreement (or words
of similar import), then such Principal Recovery Fee shall be payable hereunder
if such purchase occurs after the expiration of 90 days from the date the right
to purchase arises under such Loan Combination Intercreditor Agreement and if
such fee is actually paid), or by a 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 (provided that, if the subject mezzanine
intercreditor agreement provides that a Principal Recovery Fee is payable if and
to the extent such fee is payable under this Agreement (or words of similar
import), then such Principal Recovery Fee shall be payable hereunder if such
purchase occurs after the expiration of 90 days from the date the right to
purchase arises under such mezzanine intercreditor agreement and if such fee is
actually paid, provided, further, that with respect to any future mezzanine
debt, to the extent not prohibited by the related loan documents, the applicable
Master Servicer or Special Servicer, as applicable, shall require that the
related mezzanine intercreditor agreement provide that (if a purchase option is
provided to the holder of the future mezzanine debt) in the event of a purchase
of a Mortgage Loan by the related mezzanine lender on a date that is more than
90 days following the date that the related option becomes exercisable, such
mezzanine lender shall be required to pay a Principal Recovery Fee equal to the
amount that the Special Servicer would otherwise be entitled to under this
Agreement with respect to a liquidation of such Mortgage Loan (provided,
however, that such Principal Recovery Fee shall in all circumstances be payable
by the related mezzanine lender and shall not, under any circumstance, by
payable out of the Trust)); 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 Serviced Loan Combination (including, without
limitation, any successor REO Loans comprising same) shall be paid from the
collections received on such Serviced 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.
(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)) assumption application fees collected with respect to Specially
Serviced Mortgage Loans and (ii) one-hundred percent (100%) of any assumption
fee, substitution fees or 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)) 50% of all assumption application fees, assumption fees,
substitution fees, 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 that is a 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.
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 Serviced 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 October 2007, the Special Servicer shall prepare and deliver
or cause to be delivered to the applicable Master Servicer the 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
3:00 p.m. New York City time on the second Business Day prior to each
Distribution Date beginning in September 2007, the CMSA Loan Periodic Update
File with respect to the subject Distribution Date. 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 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 October 2007 will be based solely upon
information generated from actual collections received by the Master Servicers
and from information the 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 Mortgage Loans with respect to the period
prior to the Closing Date). If any Mortgage Loan Seller fails to deliver to the
applicable Master Servicer the information required by such Master Servicer to
prepare its initial CMSA Loan Periodic Update File, such Master Servicer shall
notify the Depositor and the Trustee of such failure. On or before 4:00 p.m.,
New York City time, on each P&I Advance Date beginning in November 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 Total Loan Report; (v) a CMSA REO
Status Report; (vi) a CMSA Servicer Watch List; (vii) a CMSA Property File;
(viii) a CMSA Loan Setup File (with respect to the initial P&I Advance Date
only); (ix) a CMSA Financial File; (x) a CMSA Loan Level Reserve/LOC Report and
(xi) a CMSA Advance Recovery 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. 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." 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. Master Servicer No. 2 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 Other Pooling and Servicing Agreement, if
such date is at least one Business Day prior to the date when the Master
Servicer's report is due above) from the Georgia-Alabama Retail Portfolio
Servicer with respect to the Georgia-Alabama Retail Portfolio Trust Mortgage
Loan.
(d) The Special Servicer will 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 set forth in Section 3.12(c)
in an electronic format reasonably acceptable to the Special Servicer, each
Master Servicer and the Trustee. Without limiting the generality of the
foregoing, not later than 2:00 p.m. (New York City time) on the Business Day
following each Determination Date, beginning in October 2007, the Special
Servicer shall prepare and deliver or cause to be delivered to the related
Master Servicer (on a computer readable medium reasonably acceptable to the
Master Servicer and the Special Servicer) the CMSA Special Servicer Loan File
with respect to the Specially Serviced Mortgage Loans and REO Properties. 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) or by a Georgia-Alabama Retail Portfolio Servicer pursuant to the Other
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 a Georgia-Alabama Retail Portfolio
Servicer pursuant to the Other 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 received by
a Georgia-Alabama Retail Portfolio Servicer, 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 a Georgia-Alabama Retail Portfolio
Servicer's failure to provide any information or report required to be provided
to the holder of the Georgia-Alabama Retail Portfolio Trust Mortgage Loan
pursuant to the Other 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 a Georgia-Alabama Retail Portfolio Servicer.
Commencing with respect to the calendar quarter ended December 30,
2007, the Special Servicer, in the case of any Specially Serviced Mortgage Loan,
and the applicable Master Servicer, in the case of each Serviced Mortgage Loan
that is a 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 Serviced 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 that it is
servicing. 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 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 Serviced
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 Serviced Loan
Combination, the related Non-Trust Noteholder(s)) a CMSA NOI Adjustment
Worksheet 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 or refusal 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
Special Servicer so fails or refuses because such disclosure, in the reasonable
belief of such Master Servicer or 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, such Master Servicer or the Special Servicer.
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 October 2007, such Master Servicer or the Special 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 of 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, 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 Serviced 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 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 (or a securitization
trust of a securitized Non-Trust Loan that is part of a Serviced Loan
Combination that is subject to the reporting requirements of the Exchange Act)
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 reasonable efforts to cause such Designated Sub-Servicer to deliver),
on or before March 15 of the subject year), to the Trustee (to whom delivery
shall be in XXXXX-compatible format (e.g., Microsoft Word or Microsoft Excel),
the Depositor, each Non-Trust Noteholder (or, if a Non-Trust Loan that is part
of a Serviced Loan Combination is deposited into another commercial mortgage
securitization that is subject to the reporting requirements of the Exchange Act
(and for so long as such securitization is subject to the reporting requirements
of the Exchange Act), the trustee of each other securitization), 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 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 (or a securitization trust
of a securitized Non-Trust Loan that is part of a Serviced Loan Combination that
is subject to the reporting requirements of the Exchange Act) 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 (or a securitization trust of a securitized Non-Trust Loan that is
part of a Serviced Loan Combination that is subject to the reporting
requirements of the Exchange Act), the party hereto that retained or engaged
such Servicing Representative shall so notify the Trustee (unless such party is
the Trustee) and the Depositor (or a securitization trust of a securitized
Non-Trust Loan that is part of a Serviced Loan Combination that is subject to
the reporting requirements of the Exchange Act) 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 Sub-Servicing Function Participant is a Designated Sub-Servicer,
then the applicable Master Servicer's sole duty shall be to use 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 (or a securitization
trust of a securitized Non-Trust Loan that is part of a Serviced Loan
Combination that is subject to the reporting requirements of the Exchange Act)
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 Sub-Servicing Function Participant is a Designated Sub-Servicer,
then the applicable Master Servicer's sole duty shall be to use reasonable
efforts to cause such Designated Sub-Servicer to deliver), on or before March 15
of the subject year), at its own expense, to the Trustee (to whom delivery shall
be in XXXXX-compatible format (e.g., Microsoft Word or Microsoft Excel), the
Depositor, each Non-Trust Noteholder (or, if a Non-Trust Loan that is part of a
Serviced Loan Combination is deposited into another commercial mortgage
securitization that is subject to the reporting requirements of the Exchange Act
(and for so long as such securitization is subject to the reporting requirements
of the Exchange Act), and the trustee of each other securitization) 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 Sub-Servicing Function Participant
is a Designated Sub-Servicer, then the applicable Master Servicer's sole duty
shall be to use 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 (or a securitization trust
of a securitized Non-Trust Loan that is part of a Serviced Loan Combination that
is subject to the reporting requirements of the Exchange Act) 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 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 fax
notice which, in the case of email transmission, shall be forwarded to all of
the following e-mail addresses: (1) in the case of the initial Master Servicer
No. 1, Xxxxx_X_Xxxxxxx@XxxXxxx.xxx, Xxxx_X_Xxxxx@xxxxxxx.xxx and
Xxx_Xxxxx@xxxxxxx.xxx; (2) in the case of Master Servicer No. 2,
xxx.xxxxxxxxxx@xxxxxxxxxx.xxx; and (3) in the case of the initial Special
Servicer, xxxxxxxxxx@xxxxxxxxx.xxx and xxxxxxxxxxxx@xxxxxxxxx.xxx, or such other
e-mail address(es) 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 (or a securitization
trust of a securitized Non-Trust Loan that is part of a Serviced Loan
Combination that is subject to the reporting requirements of the Exchange Act),
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 (or a securitization trust of a securitized Non-Trust Loan that is
part of a Serviced Loan Combination that is subject to the reporting
requirements of the Exchange Act) 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 in the case of the Trustee, to the extent
those items are in their 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 in either case having
certified to the applicable 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
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 the Master Servicers since the Closing Date
pursuant to Section 3.12(c), (c) all Officer's Certificates delivered by the
Master Servicers or the Special Servicer since the Closing Date pursuant to
Section 3.13, (d) all accountants' reports delivered to the Master Servicers 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 the applicable 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 the applicable 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 either 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) with respect to the Georgia-Alabama Retail
Portfolio Servicing Trust Mortgage Loan, and any reports, statements, documents
and other written information delivered under this Agreement to Master Servicing
No. 2 for the Trust on behalf of the Trustee, or to the Trustee, as holder of
the Georgia-Alabama Retail Portfolio Trust Mortgage Loan. Copies of any and all
of the foregoing items will be available from the Trustee, 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
Serviced Loan Combination, the related Non-Trust Noteholder(s) (or, if a
Non-Trust Loan that is part of a Serviced Loan Combination is deposited into
another commercial mortgage securitization that is subject to the reporting
requirements of the Exchange Act (and for so long as such securitization is
subject to the reporting requirements of the Exchange Act), the trustee of each
other securitization)) 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 Serviced
Loan Combination, the related Non-Trust Noteholder(s) (or, if a Non-Trust Loan
that is part of a Serviced Loan Combination is deposited into another commercial
mortgage securitization that is subject to the reporting requirements of the
Exchange Act (and for so long as such securitization is subject to the reporting
requirements of the Exchange Act), the trustee of each other securitization)),
in connection with providing access to or copies of any items in accordance with
this Agreement, either Master Servicer, the Special Servicer or the Trustee, as
applicable, shall require: (a) in the case of Certificate Owners,
Certificateholders and the Controlling Class Representative (and in the case of
a Serviced Loan Combination, the related Non-Trust Noteholder(s) (or, if a
Non-Trust Loan that is part of a Serviced Loan Combination is deposited into
another commercial mortgage securitization that is subject to the reporting
requirements of the Exchange Act (and for so long as such securitization is
subject to the reporting requirements of the Exchange Act), the trustee of each
other securitization)), 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, the applicable Master Servicer, the
Special Servicer or the Trustee, as applicable, and which may provide
indemnification for such 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
Serviced Loan Combination, the related Non-Trust Noteholder(s) (or, if a
Non-Trust Loan that is part of a Serviced Loan Combination is deposited into
another commercial mortgage securitization that is subject to the reporting
requirements of the Exchange Act (and for so long as such securitization is
subject to the reporting requirements of the Exchange Act), the trustee of each
other securitization)) 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
reasonably acceptable to the Trustee, either Master Servicer or the Special
Servicer, as applicable, and which may provide indemnification for the subject
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 Serviced Loan Combination, the
related Non-Trust Noteholder(s) (or, if a Non-Trust Loan that is part of a
Serviced Loan Combination is deposited into another commercial mortgage
securitization that is subject to the reporting requirements of the Exchange Act
(and for so long as such securitization is subject to the reporting requirements
of the Exchange Act), the trustee of each other securitization)), 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 the 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 Servicer Reports, the CMSA Loan
Periodic Update File, the CMSA Loan Setup File, the CMSA Bond Level File and the
CMSA Collateral Summary File, 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 (i) the Restricted Servicer Reports and (ii)
the CMSA Property File to any Privileged Person via 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 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 the 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 the 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 the 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 the 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 Serviced Loan Combination, the related
Non-Trust Noteholder(s) (or, if a Non-Trust Loan that is part of a Serviced Loan
Combination is deposited into another commercial mortgage securitization that is
subject to the reporting requirements of the Exchange Act (and for so long as
such securitization is subject to the reporting requirements of the Exchange
Act), the trustee of each other securitization)) 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
2007-8, Commercial Mortgage Pass-Through Certificates, Series
2007-8, 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 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 member-managed limited liability company, with the Special Servicer
acting on behalf of the Trust as member-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 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. In the case of the Trust Fund's beneficial interest in any REO Property
acquired by the trustee under the Other Pooling and Servicing Agreement, the
Special Servicer shall coordinate with the special servicer under the Other
Pooling and Servicing Agreement with respect to any REO Extension on behalf of
the Trust Fund.
(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 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
Mortgaged Property may be Directly Operated by the Special Servicer as REO
Property (other than performing any construction work on such REO Property
or selling all or any portion of such REO Property to customers in the
ordinary course of a trade or business);
(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 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 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))
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;
(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.
(a) 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.
(c) 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 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
Loan that is part of a Serviced 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 Serviced 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 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 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 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 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 it 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, 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 with 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 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 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 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 notice from the applicable Master Servicer 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 Trust Defaulted Mortgage Loan or
related Administered REO Property.
(o) Pursuant to the terms of the Farallon Portfolio Loan Combination
Intercreditor Agreement, the Farallon Portfolio Controlling Party (other than if
it is an Affiliate of the related Mortgagor) may, within 60 days of the fair
value determination being made with respect to the subject Trust Defaulted
Mortgage Loan, at its option and subject to the terms of such agreement,
purchase the subject Trust Mortgage Loan at the Option Price (provided, however,
that the Option Price for the Farallon Portfolio A-Note Trust Loan shall not be
less than the Purchase Price in respect of such Farallon Portfolio A-Note Trust
Loan for so long as the Farallon Portfolio Junior Loans are not reduced to zero
by any related Appraisal Reduction Amount or Realized Loss) prior to the
Plurality Subordinate Certificateholder or the Special Servicer, or any assignee
of the foregoing, in accordance with the terms and conditions of this Section
3.18. Pursuant to the terms of the Georgia-Alabama Retail Portfolio
Intercreditor Agreements, the holders of the Georgia-Alabama Retail Portfolio
Junior Loans may, at their option and subject to the terms of such agreement,
purchase the Trust Mortgage Loan prior to the Option Holder at the price
determined under the Georgia-Alabama Retail Portfolio Intercreditor Agreement.
Pursuant to the terms of the Peninsula Xxxxxxx Hills Intercreditor Agreement,
the holder of the Peninsula Xxxxxxx Hills B-Note Non-Trust Loan may, at its
option and subject to the terms of such agreement, purchase the Trust Mortgage
Loan prior to the Option Holder at the price determined under the Peninsula
Xxxxxxx Hills 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 and 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 voluntary
Principal Prepayment during the most recently ended Collection Period (other
than Principal Prepayments made on any Specially Serviced Mortgage Loans or made
out of Insurance Proceeds or Liquidation Proceeds, other than
Casualty/Condemnation Principal Prepayments and other than subsequent to a
material default) 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 on the portion of the Mortgage Pool for
which it is the Master Servicer 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.
(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.
(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 Serviced
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, Section 6.11 and
Section 6.12 (and, in the case of a Serviced 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, such 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 Section 6.12 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 be subject to the limitation to 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).
(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 Grantor Trust Y or Grantor
Trust Z under the Code as a "grantor trust".
(c) The Special Servicer, on behalf of the Trust Fund, may agree or
consent to (or permit either Serviced 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 Serviced 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 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 Serviced 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
be subject to the limitation to 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 a
pending or threatened immaterial condemnation, 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,
Section 6.11 and Section 6.12 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, non-disturbance 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 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 Grantor Trust Y or Grantor Trust Z,
(y) would be consistent with the Servicing Standard.
(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 Special Servicer shall notify each
other, the Trustee, the Controlling Class Representative and, in the case of a
Serviced 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 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 (including each
Specially Serviced Mortgage Loan) that provides for defeasance and is to be
defeased in accordance with its terms pursuant to a mortgagor's exercise of its
rights to defease such Serviced Mortgage Loan, 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 and
may be 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 the
Master Servicers are not 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 and is not required
from S&P so long as such Master Servicer delivers to S&P 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
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 Serviced 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 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
Serviced Loan Combination, the Serviced 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 Serviced Loan Combination, if applicable).
(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 pursuant to Section 3.26 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 of 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 on a
present value basis than would liquidation should prove to be wrong or
incorrect, so long as the analysis and determination were made on a reasonable
basis by the Special Servicer and/or the subject Master Servicer, and consistent
with the Servicing Standard.
Section 3.21 Transfer of Servicing Between the Master Servicers and
the Special Servicer; Record Keeping.
(a) Upon 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 Serviced 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) 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.
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 Serviced 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 Serviced 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, the Controlling Class
Representative and, if applicable, the related Loan Combination Controlling
Party, 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;
(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 Serviced Loan Combination is involved, the Asset
Status Report shall be in respect of the entire Serviced Loan Combination and
shall also contain any additional information required to be contained in such
Asset Status Report pursuant to the related Loan Combination Agreement.
With respect to any Mortgage Loan (excluding any Mortgage Loan that
is part of a Serviced Loan Combination (as to 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,
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 Serviced Loan Combination (as to 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
Serviced Loan Combination (as to 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, if applicable, the related
Non-Trust Noteholder) 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, if applicable, the related Non-Trust Noteholder)
pursuant to the Servicing Standard.
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
Serviced Loan Combination (as to 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 of the Serviced Loan Combinations, the review
and approval of Asset Status Reports shall be conducted in accordance with the
provisions of the related Loan Combination Intercreditor Agreement.
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 (or in the case
of any Loan Combination, the related Loan Combination Controlling Party) 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 a Serviced Loan Combination, the related Loan Combination
Controlling Party, if any) 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, the Custodian 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
and 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
Sub-Servicer instead of the applicable Master Servicer); (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 Serviced 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 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, without the prior
consent of the applicable Master 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 that requires the prior
consent of the applicable Master Servicer or the Special Servicer 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 a Master Servicer or the Special 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 Serviced 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 (other
than with respect to Designated Sub-Servicers as of the Closing Date and whether
they constitute an Additional Item 1123 Servicer with respect to the Trust Fund
as of the Closing Date) or a Sub-Servicing Function Participant. Notwithstanding
the foregoing, the Master Servicers and the Special Servicer may enter into
arrangements with Servicing Representatives (in addition to the Designated
Sub-Servicers) to perform particular services (e.g., inspections) on a
loan-by-loan basis that would not cause such Servicing Representatives to be
Additional Item 1123 Servicers. 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.
(c) The Master Servicers and the Special Servicer, for the benefit
of the Trustee and the Certificateholders and, in the case of a Serviced Loan
Combination, also for the benefit of the related Non-Trust Noteholder(s), shall
(at no expense to the Trustee, the Certificateholders, the subject Serviced 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 or KeyCorp 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 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 of 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 the Master Servicers
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, the Custodian, 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 corporation duly
organized and validly existing under the laws of Ohio, and, in the case of
Master Servicer No. 2, it is a national banking association duly organized
and validly existing under the laws of the 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 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 the 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.
(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, the Custodian, 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 Delaware 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 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 Anthracite
Capital Inc. and no further notice shall be required for such appointment to be
effective.
(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 or a Loan Combination Controlling
Party by a Mortgagor with respect to this Agreement or any particular Mortgage
Loan, the Controlling Class Representative or the applicable Loan Combination
Controlling Party 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 or the applicable Loan
Combination Controlling Party, as the case may be, 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
or applicable Loan Combination Controlling Party, as the case may be) 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 or the applicable Loan Combination Controlling Party. This
provision shall survive the termination of this Agreement and the termination or
resignation of the Controlling Class Representative.
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
Georgia-Alabama Retail Portfolio 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 Other Pooling and Servicing Agreement
and/or the Georgia-Alabama Retail Portfolio Intercreditor Agreements) 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.
(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 Serviced 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 under a Serviced Loan Combination 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. 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) In the event the Special Servicer, in connection with a
modification, waiver or amendment in respect of a Trust Mortgage Loan that is
part of a Serviced Loan Combination, modifies, waives or amends the terms
thereof such that (i) the Stated Principal Balance is decreased, (ii) the
Mortgage Rate is reduced, (iii) payments of interest or principal are waived,
reduced or deferred or (iv) any other adjustment is made to any of the terms of
such Mortgage Loan, all payments made in respect of such Mortgage Loan shall be
applied as though such modification, waiver or amendment did not occur, with the
payment terms of such Mortgage Loan remaining the same as they are on the
related Cut-Off Date, and the related Non-Trust Loans that are junior thereto
shall bear (to the extent possible) the full economic effect of all waivers,
reductions or deferrals of amounts due on such Trust Mortgage Loan attributable
to such modification, waiver or amendment, in each case only to the extent
permitted by the related Loan Combination Intercreditor Agreement.
(b) 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 an applicable Non-Trust Noteholder under a Serviced Loan Combination,
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.
(c) In connection with any purchase of a Trust Mortgage Loan that is
part of a Serviced 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 Custodial
Account, as applicable; 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 Custodian 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.
(d) 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.
(e) 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, also hereby acknowledge
the right of the Non-Trust Noteholder (if the Non-Trust Noteholder is a
Controlling Party) with respect to each of the Serviced Loan Combinations to
cure certain events of default by the Mortgagor with respect to the related
Serviced Loan Combination and to be reimbursed for any amounts advanced in
connection with any such cure, in each case pursuant to and subject to the
terms, conditions and limitations set forth in the related Loan Combination
Intercreditor Agreement. The Trustee, the applicable Master Servicer and the
Special Servicer hereby agree, as provided in and subject to the terms,
conditions and limitations set forth in the related Loan Combination
Intercreditor Agreement, not to treat any such default by the subject Mortgagor
that is so cured by a Non-Trust Noteholder as a default for the purposes
specified in the related Loan Combination Intercreditor Agreement.
(f) To the extent not otherwise expressly provided for herein, the
Special Servicer shall provide to each Non-Trust Noteholder (other than any
Non-Trust Noteholder that is an Affiliate of the related Mortgagor) or its
designee, with respect to the related Non-Trust Loan or any related Loan
Combination REO Property related to a Serviced Loan Combination, 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 Trust
Mortgage Loan or the related Loan Combination REO Property related to a Serviced
Loan Combination, and on a concurrent basis. The Trustee and the Special
Servicer shall each provide or make available to each Non-Trust Noteholder
(other than any Non-Trust Noteholder that is an Affiliate of the related
Mortgagor) or its designee, with respect to the related Non-Trust Loan or any
related Loan Combination REO Property related to a Serviced Loan Combination,
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
Trust Mortgage Loan or the related Loan Combination REO Property related to a
Serviced Loan Combination, and on a concurrent basis. In addition, the Trustee,
the applicable Master Servicer or the Special Servicer, as applicable, shall,
upon receipt of a written request, provide to a Non-Trust Noteholder 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
Non-Trust Loan or any Loan Combination REO Property related to a Serviced Loan
Combination, to the extent such documents and information are in its possession.
Notwithstanding the foregoing, none of the Trustee, the Master Servicers or the
Special Servicer shall be required to deliver to any Non-Trust Noteholder or its
designee any particular report, document or other information pursuant to this
Section 3.28(f) 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 Non-Trust Noteholder pursuant to any other section of this Agreement.
(g) The applicable Master Servicer shall make remittances to each
Non-Trust Noteholder under a Serviced Loan Combination of payments due to it
within the time period set forth in the related Loan Combination Intercreditor
Agreement.
Section 3.29 Matters Relating to Certain Mortgage Loans.
(a) With respect to the Georgia-Alabama Retail Portfolio Loan
Combination and the $224,090 reserve amount that was established by Countrywide
in connection with the payment of renewal premiums, such reserve amount shall be
retained by Countrywide in the Countrywide Mortgage Loan Purchase Agreement and
shall not be additional collateral for the related Trust Mortgage Loan.
(b) With respect to any Converting Loan, Master Servicer No. 2 shall
waive any Prepayment Premium that is payable on or after the related Stated
Maturity Date (i.e. the first adjustment date) in connection with any prepayment
made by the related Mortgagor on or after such date.
(c) With respect to the Mortgage Loan known as Chadron Avenue
Apartments, Master Servicer No. 2 shall waive any Prepayment Premium that is
payable on or after February 8, 2017 in connection with any prepayment made by
the related Mortgagor on or after such date. With respect to the Mortgage Loan
known as Bear Creek Villas, Master Servicer No. 2 shall waive any Prepayment
Premium that is payable on or after May 8, 2017 in connection with any
prepayment made by the related Mortgagor on or after such date.
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) (X) to make distributions of interest to the Holders of the
Class A-1, Class A-2, Class A-SB and Class A-3 Certificates, in an amount
equal to, and pro rata as among those Classes of Senior Certificates in
accordance with, all Distributable Certificate Interest in respect of each
such Class of Senior Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates; (Y)
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 (Z)
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 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 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, up to an amount equal to, and pro rata as among such
Classes of Senior Certificates in accordance with, the Distributable
Certificate Interest in respect of each such Class of Senior Certificates
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-SB Certificates, until the related Class Principal Balance is
reduced to the Class A-SB Planned Principal Balance for such Distribution
Date, second, to the Holders of the Class A-1 Certificates, until the
related Class Principal Balance is reduced to zero, third, to the Holders
of the Class A-2 Certificates until the related Class Principal Balance is
reduced to zero, fourth, to the Holders of the Class A-SB Certificates
until the related Class Principal Balance (after taking into account any
distributions of principal made with respect to the Class A-SB
Certificates on such Distribution Date pursuant to subclause first of this
clause (ii)) is reduced to zero, and fifth, to the Holders of the Class
A-3 Certificates until the related Class Principal Balance 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 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-SB and Class A-3 Certificates 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-SB and Class A-3 Certificates 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 AM-A, Class AJ, Class AJ-A, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class P, Class Q, Class S and Class T Certificates has previously
been reduced to zero, then distributions of principal will be made to the
Holders of the Class X-0, Xxxxx X-0, Class A-SB, Class A-3 and Class A-1A
Certificates pursuant to this clause (ii) up to an amount equal to, and
pro rata as among such Classes of Senior Certificates 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-SB Certificates, until the related
Class Principal Balance (after taking into account any distributions of
principal made with respect to the Class A-SB Certificates on such
Distribution Date pursuant to the immediately preceding clause (ii)) is
reduced to the Class A-SB Planned Principal Balance for such Distribution
Date, second, to the Holders of the Class A-1 Certificates until the
related Class Principal Balance (after taking into account any
distributions of principal with respect to the Class A-1 Certificates on
such Distribution Date pursuant to the immediately preceding clause (ii))
is reduced to zero, third, to the Holders of the Class A-2 Certificates
until the related Class Principal Balance (after taking into account any
distributions of principal with respect to the Class A-2 Certificates on
such Distribution Date pursuant to the preceding clause (ii)) is reduced
to zero, fourth, to the Holders of the Class A-SB Certificates, until the
related Class Principal Balance (after taking into account any
distributions of principal made with respect to the Class A-SB
Certificates on such Distribution Date pursuant to the preceding clause
(ii) and/or subclause first of this clause (iii)) is reduced to zero, and
fifth, to the Holders of the Class A-3 Certificates until the related
Class Principal Balance (after taking 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
are reduced to zero, in that order, in an aggregate amount for subclauses
first through fifth above (not to exceed the aggregate of the Class
Principal Balances of those Classes of Certificates outstanding
immediately prior to such Distribution Date, reduced by any distributions
of principal made with respect to those Classes of Certificates 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 A1-A 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-SB and Class A-3 Certificates 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-SB and Class A-3 Certificates on such
Distribution Date pursuant to clause (ii) above;
(v) to make distributions to the Holders of the Class X-0, Xxxxx
X-0, Class A-SB, Class A-3 and Class A-1A Certificates 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 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; and concurrently, to make distributions of interest to the Holders
of the Class AM-A Certificates, from the Loan Group 2 Available
Distribution Amount in an amount equal to all Distributable Certificate
Interest in respect of the Class AM-A 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 such Class of Certificates 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 Certificates, up to an amount equal to, and pro rata as
among such Classes of Certificates in accordance with, the Distributable
Certificate Interest in respect of each such Class of Certificates for
such Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates, if any;
(vii) after the Class Principal Balances of the Class X-0, Xxxxx
X-0, Class A-SB, Class A-3 and Class A-1A Certificates have been reduced
to zero, to make distributions of principal, to the Holders of the Class
AM Certificates, until the related Class Principal Balance is reduced to
zero (not to exceed the Class Principal Balance of such Class of
Certificates 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 AM-A Certificates, in an amount (not to exceed
the Class Principal Balance of the Class AM-A 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 (vi) is less than the Principal Distribution
Amount for such Distribution Date, then the Holders of the Class AM
Certificates shall have a prior right, relative to the Holders of the
Class AM-A Certificates, to receive their distributions of principal
pursuant to this clause (vii) out of the remaining portion of the Loan
Group 1 Available Distribution Amount for such Distribution Date and the
Holders of the Class AM-A Certificates shall have a prior right, relative
to the Holders of the Class AM Certificates to receive their distributions
of principal pursuant to this clause (vii) out of the remaining portion of
the Loan Group 2 Available 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));
(viii) to make distributions to the Holders of the Class AM and
Class AM-A Certificates, pro rata, in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class AM and Class AM-A Certificates and not previously reimbursed;
(ix) to make distributions of interest to the Holders of the Class
AJ 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; and concurrently, to make distributions of interest to the Holders
of the Class AJ-A Certificates, from the Loan Group 2 Available
Distribution Amount in an amount equal to all Distributable Certificate
Interest in respect of the Class AJ-A 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 such Class of Certificates 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 Certificates, up to an amount equal to, and pro rata as
among such Classes of Certificates in accordance with, the Distributable
Certificate Interest in respect of each such Class of Certificates for
such Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates, if any;
(x) after the Class Principal Balances of the Class AM and Class
AM-A Certificates have been reduced to zero, to make distributions of
principal, to the Holders of the Class AJ Certificates, until the related
Class Principal Balance is reduced to zero (not to exceed the Class
Principal Balance of such Class of Certificates 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 AJ-A Certificates,
in an amount (not to exceed the Class Principal Balance of the Class AJ-A
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 (ix) is less than the Principal Distribution Amount for such
Distribution Date, then the Holders of the Class AJ Certificates shall
have a prior right, relative to the Holders of the Class AJ-A
Certificates, to receive their distributions of principal pursuant to this
clause (x) out of the remaining portion of the Loan Group 1 Available
Distribution Amount for such Distribution Date and the Holders of the
Class AJ-A Certificates shall have a prior right, relative to the Holders
of the Class AJ Certificates to receive their distributions of principal
pursuant to this clause (x) out of the remaining portion of the Loan Group
2 Available 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 and Class
AJ-A Certificates, pro rata, in an amount equal to and in reimbursement
of, all Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class AJ and Class AJ-A Certificates 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 Balances of the Class AJ and Class
AJ-A Certificates have 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 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;
(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 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 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 pursuant to any prior clause of this Section
4.01(a));
(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 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 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 Holders of any other Class of
Sequential Pay Certificates 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 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 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;
(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 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 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 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;
(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 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 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 of interest to the Holders of the Class
S Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class S Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(lv) after the Class Principal Balance of the Class Q Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class S Certificates, in an amount (not to exceed the Class
Principal Balance of the Class S 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 pursuant to any prior clause of this Section
4.01(a));
(lvi) to make distributions to the Holders of the Class S
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 S Certificates and not previously reimbursed;
(lvii) to make distributions of interest to the Holders of the Class
T Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class T Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(lviii) after the Class Principal Balance of the Class S
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class T Certificates, in an amount (not to exceed
the Class Principal Balance of the Class T 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 pursuant to any prior clause of this Section
4.01(a));
(lix) to make distributions to the Holders of the Class T
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 T Certificates and not previously reimbursed;
(lx) 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 on
such Distribution Date pursuant to clauses (i) through (lix) above; and
(lxi) 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 I Certificates on such Distribution Date
pursuant to clauses (i) through (lx) above.
Distributions in reimbursement of Realized Losses and Additional
Trust Fund Expenses previously allocated to a Class of Sequential Pay
Certificate shall not constitute distributions of principal and shall not result
in reduction of the related Class Principal Balance.
(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 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) 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 (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
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 in respect of Realized Losses and/or
Additional Trust Fund Expenses previously allocated thereto).
On each Distribution Date, the Trustee shall withdraw from the Trust
Converting Loan Additional Interest Account any amounts that represent
Additional Interest actually collected during the related Collection Period on
the Trust Converting Loan and any successor Trust REO Loan with respect thereto
and shall distribute such amounts among the Holders of the Class Y Certificates
pro rata in accordance with their respective Percentage Interests of such Class.
On each Distribution Date, the Trustee shall withdraw from the Trust
ARD Loans Additional Interest Account any amounts that represent Additional
Interest actually collected during the related Collection Period on the Trust
ARD Loans and any successor Trust REO Loans with respect thereto and shall
distribute such amounts among the Holders of the Class Z Certificates pro rata
in accordance with their respective Percentage Interests of such Class.
(c) 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.
(d) 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.
(e) 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.
(f) 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 (without giving effect to the proviso in the
definition of "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 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.
(g) 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-8IMY) 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.
(h) All distributions of interest, principal and reimbursements of
previously allocated Realized Losses and Additional Trust Fund Expenses made in
respect of any Class of Sequential Pay 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 relative
Class X Strip Rates, shall be deemed to have first been distributed from REMIC I
to REMIC II in respect of such Component's Corresponding REMIC I Regular
Interest. In each case, if such distribution on any such Class of REMIC II
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, 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.
(i) 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 (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. 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.
(j) 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 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 (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 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.
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
Trustee, 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 allocable to Distributable
Certificate Interest;
(iii) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular 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 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;
(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 for
such Distribution Date;
(xix) any unpaid Distributable Certificate Interest in respect of
each Class of Regular Certificates after giving effect to the
distributions made on such Distribution Date;
(xx) the Pass-Through Rate for each Class of Regular Certificates
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 or Original Notional Amount, as
applicable, of each Class of Regular Certificates, outstanding immediately
before and immediately after such Distribution Date, separately
identifying any reduction therein due to the allocation of Realized Losses
and Additional Trust Fund Expenses on such Distribution Date;
(xxv) the Certificate Factor for each Class of Regular Certificates
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;
(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, the Class Z Certificates, the Class R-I
Certificates and the Class R-II Certificates, respectively, on such
Distribution Date;
(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; and
In the case of information to be furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a basis for
information to be furnished pursuant to clauses (x) through (xvii), (xxviii),
(xxxiii) and (xxxv) 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), (ii), (iii), (iv), (vi), (xix) and (xx) 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 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 3:00 p.m. (New York City time) on each P&I Advance
Date, each Master Servicer shall (i) apply amounts in its 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 a
Collection Account 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 such 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 4:00 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 the facsimile number set forth in Section 11.05 (or such
alternative number provided by such Master Servicer to the Trustee in writing)
as soon as possible, but in any event before 5:00 p.m. (New York City time) on
such 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
Georgia-Alabama Retail Portfolio Trust Mortgage Loan, net of servicing fee
accrued at the Georgia-Alabama Retail Portfolio Servicing Fee Rate), 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 (in
the case of each Master Servicer, to the extent it is the applicable Master
Servicer) 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
Georgia-Alabama Retail Portfolio Trust Mortgage Loan, by the Georgia-Alabama
Retail Portfolio Servicer pursuant to the Other 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
Georgia-Alabama Retail Portfolio Trust Mortgage Loan, by the Georgia-Alabama
Retail Portfolio Servicer pursuant to the Other 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 Georgia-Alabama Retail Portfolio Trust Mortgage Loan, net of
servicing fee accrued at the Georgia-Alabama Retail Portfolio Servicing Fee
Rate) 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 Georgia-Alabama Retail Portfolio Trust Mortgage Loan, the Georgia-Alabama
Retail Portfolio Servicer has determined that an Appraisal Reduction Amount
exists under the Other 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 Trust Mortgage Loan that is part of a Serviced Loan
Combination 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 Serviced Loan Combination that is allocable, in accordance with the
definition of "Appraisal Reduction Amount," to such 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
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. Notwithstanding the
foregoing, the applicable Master Servicer shall have the right to make its own
subsequent determination that any portion of any such previously made or
proposed P&I Advance is a Nonrecoverable P&I 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.
If Master Servicer No. 1 or any Farallon Portfolio Non-Trust Loan
Servicer (in connection with any P&I Advance made by the Farallon Portfolio
Non-Trust Loan Servicer in respect of any related Non-Trust Loan) determines
that a proposed P&I Advance, if made, or any outstanding P&I Advance previously
made, would be, or is, as applicable, a Nonrecoverable Advance, such servicer
shall provide the other servicers written notice of such determination within 2
Business Days after such determination was made. Once notice of such
determination has been delivered by Master Servicer No. 1 or Master Servicer No.
1 receives written notice of such determination by any Farallon Portfolio
Non-Trust Loan Servicer, none of the applicable Master Servicer, the Trustee or
the Fiscal Agent, the Farallon Portfolio Non-Trust Loan Servicer or any other
party to a pooling and servicing agreement governing a securitization for any
related Non-Trust Loan shall make any additional P&I Advances with respect to
the Farallon Portfolio Loan Combination until Master Servicer No. 1 has
consulted with such Farallon Portfolio Non-Trust Loan Servicer and they agree
that circumstances with respect to the Farallon Portfolio Loan Combination have
changed such that a proposed future P&I Advance would not be a Nonrecoverable
Advance.
If Master Servicer No. 2 or the Georgia-Alabama Retail Portfolio
Servicer (in connection with any back-up P&I Advance made by the Georgia-Alabama
Retail Portfolio Servicer) determines that a proposed P&I Advance, if made, or
any outstanding P&I Advance previously made, would be, or is, as applicable, a
Nonrecoverable Advance, such servicer shall provide the other servicers written
notice of such determination within 2 Business Days after such determination was
made. Once notice of such determination has been delivered by Master Servicer
No. 2 or Master Servicer No. 2 receives written notice of such determination by
the Georgia-Alabama Retail Portfolio Servicer, none of Master Servicer No. 2,
the Trustee or the Fiscal Agent, the Georgia-Alabama Retail Portfolio Servicer
or any other party to the Other Pooling and Servicing Agreement shall make any
additional P&I Advances with respect to the Georgia-Alabama Retail Portfolio
Loan Combination until Master Servicer No. 2 has consulted with the
Georgia-Alabama Retail Portfolio Servicer and they agree that circumstances with
respect to the Georgia-Alabama Retail Portfolio Loan Combination have changed
such that a proposed future P&I Advance would not be a Nonrecoverable 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 Master
Servicer's 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 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). 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 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 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 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 T, Class S, 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 and Class B Certificates, in that order; then the
Class AJ Certificates and Class AJ-A Certificates (on a pro rata and pari passu
basis); then the Class AM Certificates and Class AM-A Certificates (on a pro
rata and pari passu basis), in each case until the respective Class Principal
Balances thereof are reduced to zero; and then, pro rata (based on remaining
Class Principal Balances) to the Class X-0, Xxxxx X-0, Class A-SB, Class A-3 and
Class A-1A Certificates, until the respective Class Principal Balances thereof
are reduced to zero. Any allocation of Realized Losses and Additional Trust Fund
Expenses to a Class of Sequential Pay Certificates 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 as of the Distribution Date on which the
aggregate of the Class Principal Balances of the Sequential Pay Certificates 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 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 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 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
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 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.
If the Class Principal Balance of any Class of Sequential Pay
Certificates is reduced on any Distribution Date pursuant to the first paragraph
of Section 4.04(a), then the REMIC I Principal Balance of its Corresponding
REMIC I Regular Interest shall be deemed to have first been reduced by the exact
same amount.
To the extent the Class Principal Balance of a Class of Sequential
Pay Certificates is increased pursuant to the second paragraph of Section
4.04(a), the REMIC I Principal Balance of its Corresponding REMIC I Regular
Interest shall be increased by the exact same amount.
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.
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, 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 (other than any portion
of which is represented by a Definitive Certificate) 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 Residual
Certificates, the Class Y Certificates and the Class Z 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 shall have no minimum denomination and shall be
represented by a single Definitive Certificate. The Class Z Certificates shall
have no minimum denomination and shall 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 the
Trustee, any other bank or trust company to act as Certificate Registrar under
such conditions as the predecessor Certificate Registrar may prescribe, provided
that the predecessor Certificate Registrar shall not be relieved of any of its
duties or responsibilities hereunder by reason of such appointment. If the
Trustee resigns or is removed in accordance with the terms hereof, the successor
certificate administrator shall immediately succeed to its duties as Certificate
Registrar. The Depositor, the Trustee, the Certificate Registrar (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 R-I, Class R-II, Class Y or Class Z 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 R-I, Class R-II, Class Y or Class Z
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
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
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.
Conversely, notwithstanding the foregoing, any interest in a
Definitive Certificate with respect to any Class of Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to: (a) a
Qualified Institutional Buyer that takes delivery in the form of a beneficial
interest in the Rule 144A Global Certificate for such Class of Certificates,
provided that the Certificate Owner desiring to effect such transfer (i)
complies with the requirements for Transfers of interests in such Rule 144A
Global Certificate set forth in the third paragraph of this Section 5.02(b) and
(ii) delivers or causes to be delivered to the Certificate Registrar and the
Trustee (A) a certificate from such Certificate Owner confirming its ownership
of the interests in the Definitive Certificate 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
to direct the Trustee to 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 the subject Definitive Certificate to be transferred; or (b)
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 fifth paragraph of this Section
5.02(b) and (ii) delivers or causes to be delivered to the Certificate Registrar
and the Trustee (A) a certificate from such Certificate Owner confirming its
ownership of the interests in the Definitive Certificate 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 fifth
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, as transfer agent for the Depository, to
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 the interests in the subject Definitive Certificate 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, increase the denomination of the Rule 144A Global Certificate or
Regulation S Global Certificate, as applicable, for such Class of Certificates,
by the denomination of the beneficial interest in such Class of Certificates
specified in such orders and instructions and cancel the related Definitive
Certificate.
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 ERISA or the Code or any other federal, state, local or foreign law
("Similar Law") that is substantially similar to Section 406 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
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. 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.
(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 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.
(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 (other than any portion of
which is represented by a Definitive Certificate) 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 G,
Class H, Class J, Class K, Class L, Class M, Class N, Class P, Class Q, Class S
and Class T 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 G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class S
and Class T 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 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 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.
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 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 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, the Trustee and the Custodian and any
Affiliate, shareholder, 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 reasonably and in good faith 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 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 applicable
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 the applicable 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 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
Depositor to indemnification hereunder, whereupon the applicable 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 the
applicable 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 the applicable 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 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 Trustee to
indemnification hereunder, whereupon the applicable 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 the applicable
Master Servicer or the Special Servicer, as the case may be, shall not affect
any rights that the Trustee may have to indemnification under this Agreement or
otherwise, unless the applicable 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 Custodian 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
Custodian to indemnification hereunder, whereupon the applicable 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 the
applicable Master Servicer or the Special Servicer, as the case may be, shall
not affect any rights that the Custodian may have to indemnification under this
Agreement or otherwise, unless the applicable 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 agrees to indemnify the Master Servicers, the Special
Servicer, the Trustee, the Custodian and any Affiliate, director, shareholder,
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, negligence or negligent disregard of the Depositor in
the performance of the Depositor's obligations and duties under this Agreement.
Each Master Servicer, the Special Servicer, the Custodian 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, the Custodian and the Depositor and any Affiliate, director,
shareholder, 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, Custodian, 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 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 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.
The Custodian agrees to indemnify the Master Servicers, the Special
Servicer, the Trustee, the Depositor and any Affiliate, director, shareholder,
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 Custodian in the performance of the
Custodian's obligations and duties under this Agreement or the negligent
disregard by the Custodian of its duties and obligations hereunder. The
applicable Master Servicer, the Special Servicer, the Depositor or the Trustee,
as applicable, shall immediately notify the Custodian 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 Custodian 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 the Custodian shall not affect any rights that any of the
foregoing Persons may have to indemnification under this Agreement or otherwise,
unless the Custodian's defense of such claim is materially prejudiced thereby.
The indemnification provided herein shall survive the termination of this
Agreement.
Notwithstanding anything herein to the contrary, no indemnifying
party shall be liable under this Section 6.03 for any settlement or compromise
or consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification could be
sought under this Section 6.03, effected without its written consent, unless (i)
at any time an indemnified party shall have in writing requested the
indemnifying party to reimburse such indemnified party for fees and expenses of
counsel for which the indemnifying party is obligated under this Section 6.03,
(ii) such settlement is entered into more than 30 days after receipt by the
indemnifying party of the aforesaid request, (iii) the indemnifying party shall
not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iv) such settlement or compromise or consent
does not include an express statement as to, or an express admission of, fault,
culpability or negligence on the part of the indemnifying party or an agent
thereof.
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
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 Master Servicer nor the Special Servicer shall be
permitted to resign except as contemplated above in this Section 6.04.
Consistent with the foregoing, neither Master Servicer 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 the Master Servicers and the Special Servicer hereunder;
provided, however, that neither Master Servicer nor the Special Servicer shall
be relieved of any of its obligations hereunder by virtue of such performance by
the Depositor or its designee and, provided, further, that the Depositor may not
exercise any right pursuant to Section 7.01 to terminate 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.
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 Serviced 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 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 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, the
subject 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 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 Trust Mortgage Loans and any
Administered REO Properties (other than the Loan Combinations that are not
Serviced Loan Combinations (and any related Loan Combination REO Property), and,
in the case of a Serviced Loan Combination, only to the extent the related Loan
Combination Intercreditor Agreement gives the right to approve the following
actions to the related Non-Trust Noteholder), 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 Trust Mortgage Loans and any REO Properties (other than the Loan
Combinations) that are not Serviced Loan Combinations (and any related Loan
Combination REO Property), and, in the case of a Serviced Loan Combination, only
to the extent the related Loan Combination Intercreditor Agreement gives the
right to approve the following actions to the related Non-Trust Noteholder) 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 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 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 or any related intercreditor agreement, 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 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 have adverse tax
consequences for the Trust Fund, (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.
Section 6.12 Certain Matters with Respect to the MezzCap Loan
Combination
Pursuant to the terms of the MezzCap Intercreditor Agreement, it is
contemplated that the Mortgagor under the MezzCap Trust Mortgage Loan and the
MezzCap B-Note Non-Trust Mortgage Loan will remit payments on the related
MezzCap Trust Mortgage Loan to the applicable Master Servicer hereunder, and for
the MezzCap B-Note Non-Trust Mortgage Loan that has been securitized or if it is
securitized in the future, the related Mortgagor will remit payments on the
related MezzCap B-Note Non-Trust Mortgage Loan directly to the servicer for such
securitization; provided, however, that under certain default or trigger events
identified in the MezzCap Intercreditor Agreement, the Mortgagor under the
MezzCap B-Note Non-Trust Mortgage Loan (even after the MezzCap B-Note Non-Trust
Mortgage Loan has been securitized) will be required to remit payments on such
MezzCap B-Note Non-Trust Mortgage Loan directly to the applicable Master
Servicer under this Agreement.
Section 6.13 Certain Matters with Respect to the Farallon Portfolio
Loan Combination
(a) If Master Servicer No. 1 or any Farallon Portfolio Non-Trust
Loan Servicer (in connection with any P&I Advance made by the Farallon Portfolio
Non-Trust Loan Servicer in respect of any related Non-Trust Loan) determines
that a proposed P&I Advance, if made, or any outstanding P&I Advance previously
made, would be, or is, as applicable, a Nonrecoverable Advance, such servicer
shall provide the other servicers written notice of such determination within 2
Business Days after such determination was made. Once notice of such
determination has been delivered by Master Servicer No. 1 or Master Servicer No.
1 receives written notice of such determination by any Farallon Portfolio
Non-Trust Loan Servicer, none of the applicable Master Servicer, the Trustee or
the Fiscal Agent, the Farallon Portfolio Non-Trust Loan Servicer or any other
party to a pooling and servicing agreement governing a securitization for any
related Non-Trust Loan shall make any additional P&I Advances with respect to
the Farallon Portfolio Loan Combination until Master Servicer No. 1 has
consulted with such Farallon Portfolio Non-Trust Loan Servicer and they agree
that circumstances with respect to the Farallon Portfolio Loan Combination have
changed such that a proposed future P&I Advance would not be a Nonrecoverable
Advance.
(b) In the event the holder of a Farallon Portfolio Non-Trust Loan
is responsible for its proportionate share of any Nonrecoverable Advances (or,
pursuant to the Farallon Portfolio Intercreditor Agreement, any other portion of
a Nonrecoverable Advance) (and advance interest thereon) or other fee or expense
pursuant to the Farallon Portfolio Intercreditor Agreement, and that in the
event that the funds received with respect to the Farallon Portfolio Loan
Combination are insufficient to cover such amounts, (x) each Farallon Portfolio
Non-Trust Loan Servicer will be required to reimburse Master Servicer No. 1, the
Special Servicer or Trustee, as applicable, out of general funds in the
collection account (or equivalent account) established under a pooling and
servicing agreement governing a securitization for any related Non-Trust Loan,
and (y) Master Servicer No. 1, Special Servicer or Trustee, as applicable may
reimburse itself from the Trust Fund's Collection Account and each Farallon
Portfolio Non-Trust Loan Servicer will be required to reimburse the Trust Fund
out of general funds in the collection account (or equivalent account)
established under a pooling and servicing agreement governing a securitization
for any related Non-Trust Loan.
(c) Each of Master Servicer No. 1 and the Special Servicer shall be
indemnified against any claims, losses, penalties, fines, forfeitures, legal
fees and related costs, judgments and any other costs, liabilities, fees and
expenses, incurred in connection with this Agreement and any pooling and
servicing agreement governing a securitization for any related Non-Trust Loan
that relate solely to its servicing of the Farallon Portfolio Loan Combination,
as applicable, and the Farallon Portfolio Non-Trust Loan Servicer will be
required to reimburse Master Servicer No. 1, the Special Servicer or Trustee, as
applicable, out of general funds in the collection account (or equivalent
account) established under the related pooling and servicing agreement governing
a securitization for any related Non-Trust Loan.
(d) Master Servicer No. 1 agrees that it shall remit all payments
received (or advanced) with respect to each Farallon Portfolio Non-Trust Loan,
net of its Master Servicing Fee and any other applicable fees and reimbursements
payable to Master Servicer No. 1, the Special Servicer and the Trustee, to the
holder of each Farallon Portfolio Non-Trust Loan not later than 3:00 p.m. (New
York City time) two Business Days prior to the related "remittance date" for the
securitization containing the related Non-Trust Loan.
(e) Each of Master Servicer No. 1 and the Special Servicer
acknowledges that upon the securitization of any Farallon Portfolio Non-Trust
Loan, the trustee under the related pooling and servicing agreement that governs
the securitization of such Non-Trust Loan will be the owner of the related
Farallon Portfolio Non-Trust Loan and that, pursuant to each such pooling and
servicing agreement, each Farallon Portfolio Non-Trust Loan Servicer will be
entitled to enforce the rights of the trustee under each such pooling and
servicing agreement with respect to the Farallon Portfolio Non-Trust Loans under
this Agreement. Under this Agreement, the servicing duties of each of Master
Servicer No. 1 and the Special Servicer shall include the duty to service the
Farallon Portfolio Non-Trust Loans on behalf of the related trustee under the
any other pooling and servicing agreement (on behalf of the related subsequent
certificateholders) in accordance with the terms and provisions of this
Agreement.
(f) Master Servicer No. 1 and the Special Servicer each hereby agree
that, prior to taking any Farallon Portfolio Loan Major Action 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 Farallon
Portfolio Controlling Party as and to the extent required by the Farallon
Portfolio Intercreditor Agreement and any other party permitted to consult on
any such Farallon Portfolio Loan Major Action as set forth in the Farallon
Portfolio Intercreditor Agreement.
(g) Notwithstanding anything herein to the contrary, Master Servicer
No. 1 or the Special Servicer may ignore and act without regard to any advice,
direction or objection from or by the Farallon Portfolio Controlling Party as
contemplated by the foregoing provisions, that Master Servicer No. 1 or such
Special Servicer, as the case may be, has determined, in its reasonable, good
faith judgment, will require or cause Master Servicer No. 1 or the Special
Servicer or the Trustee to take any action or refrain from taking any action
which would violate any law of any applicable jurisdiction, be inconsistent with
the Servicing Standard or violate the REMIC Provisions or violate any other
provisions of the Agreement, the Mortgage Loan documents, or any provisions of
the Farallon Portfolio Intercreditor Agreement.
(h) If there are any conflicts between this Section 6.13 and any of
the Mortgage Loan documents relating to the Farallon Portfolio Loan Combination
or between this Section 6.13 and the Farallon Portfolio Loan Intercreditor
Agreement, then such Mortgage Loan documents or such Farallon Portfolio Loan
Intercreditor Agreement shall control.
Section 6.14 Certain Matters with Respect to the Georgia-Alabama
Retail Portfolio Loan Combination
(a) If Master Servicer No. 2 or the Georgia-Alabama Retail Portfolio
Servicer (in connection with any back-up P&I Advance made by the Georgia-Alabama
Retail Portfolio Servicer) determines that a proposed P&I Advance, if made, or
any outstanding P&I Advance previously made, would be, or is, as applicable, a
Nonrecoverable Advance, such servicer shall provide the other servicers written
notice of such determination within 2 Business Days after such determination was
made. Once notice of such determination has been delivered by Master Servicer
No. 2 or Master Servicer No. 2 receives written notice of such determination by
the Georgia-Alabama Retail Portfolio Servicer, none of Master Servicer No. 2,
the Trustee or the Fiscal Agent, the Georgia-Alabama Retail Portfolio Servicer
or any other party to the Other Pooling and Servicing Agreement shall make any
additional P&I Advances with respect to the Georgia-Alabama Retail Portfolio
Loan Combination until Master Servicer No. 2 has consulted with the
Georgia-Alabama Retail Portfolio Servicer and they agree that circumstances with
respect to the Georgia-Alabama Retail Portfolio Loan Combination have changed
such that a proposed future P&I Advance would not be a Nonrecoverable Advance.
(b) In the event Georgia-Alabama Retail Portfolio Servicer is
responsible for its proportionate share of any Nonrecoverable Advances (or,
pursuant to the Georgia-Alabama Retail Portfolio Intercreditor Agreements, any
other portion of a Nonrecoverable Advance) (and advance interest thereon) or
other fee or expense pursuant to Georgia-Alabama Retail Portfolio Intercreditor
Agreements, and that in the event that the funds received with respect to the
Georgia-Alabama Retail Portfolio Loan Combination are insufficient to cover such
amounts, (x) the applicable Master Servicer or the Special Servicer will be
required to reimburse the Georgia-Alabama Retail Portfolio Servicer or the Other
Trustee, as applicable, out of general funds in the Collection Account.
(c) With respect to the Georgia-Alabama Retail Portfolio Loan
Combination and the related Trust Mortgage Loan, the parties to this Agreement
shall have no obligation or authority to supervise any party to the Other
Pooling and Servicing Agreement (but this statement shall not be construed to
relieve any party to this Agreement of any liability it may otherwise have in
its capacity as a party to the Other Pooling and Servicing Agreement). With
respect to the Georgia-Alabama Portfolio Trust Mortgage Loan, Master Servicer
No. 2, on behalf of the Trust, shall have the right, on behalf of the Trust, to
consent (or withhold consent) to any modification of such Other Pooling and
Servicing Agreement that would affect the timing of remittances, reimbursements
and reports to the Trust, as holder of the Georgia-Alabama Portfolio Trust
Mortgage Loan.
(d) If there are any conflicts between this Section 6.14 and any of
the Mortgage Loan documents relating to the Georgia-Alabama Retail Portfolio
Loan Combination or between this Section 6.14 and the Georgia-Alabama Retail
Portfolio Intercreditor Agreements, then such Mortgage Loan documents or such
Georgia-Alabama Retail Portfolio Intercreditor Agreements shall control. The
parties hereto recognize and acknowledge the respective rights of the holders of
the Georgia-Alabama Retail Portfolio Companion Loans under the Georgia-Alabama
Retail Portfolio Intercreditor Agreements.
Section 6.15 Certain Matters with Respect to the Securitization of
any Non-Trust Loan.
In connection with the securitization of any Non-Trust Loan:
(i) if such Non-Trust Loan is part of a Serviced Loan Combination,
the applicable Master Servicer and Special Servicer shall be required to
deliver the reports, certifications and other materials delivered by the
applicable Master Servicer or the Special Servicer pursuant to Section
8.16 as the parties to the Other Securitization may require in order to
comply with their obligations under the Other Securitization Pooling and
Servicing Agreement, the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934, as amended, subject to the terms and
conditions of the related intercreditor agreement, including without
limitation, that (A) the holder of the related Non-Trust Loan shall pay or
cause to be paid any and all reasonable out-of-pocket expenses incurred by
the applicable Master Servicer and the Special Servicer in connection with
the provision and/or review of such disclosure, opinion of counsel and
indemnification agreement; (B) the holder of the related Non-Trust Loan
shall have invoked its rights under this sentence by means of a notice
delivered to the applicable Master Servicer and the Special Servicer
within a reasonable period prior to the date when the relevant securities
to be issued in the Other Securitization are first offered publicly; and
(C) the applicable Master Servicer or the Special Servicer shall not be
required to provide any such disclosure, opinion of counsel or
indemnification agreement unless the holder of the related Non-Trust Loan
(together with such other loans included in such securitization for which
the applicable Master Servicer or the Special Servicer is the applicable
master servicer, primary servicer or the special servicer, as the case may
be) constitutes 20% or more of the cut-off date balance of the Other
Securitization and shall not be required to address items other than Items
under Regulation AB covered by the related Master Servicer Indemnification
Agreement or Special Servicer Indemnification Agreement; and
(ii) each master servicer and special servicer under the Other
Pooling and Servicing Agreement shall be a third party beneficiary of this
Agreement with respect to all provisions herein expressly relating to
compensation, reimbursement or indemnification of such master servicer or
special servicer, as the case may be, and the provisions regarding
coordination of Advances.
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 a 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 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 five 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
(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 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), 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
(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) Any of Fitch or S&P 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 S&P, as the
case may be, within 60 days thereof) and, in the case of either clauses
(1) or (2), cited servicing concerns with either Master Servicer or the
Special Servicer, as the case may be, as the sole or a material factor in
such rating action; or
(xi) the Master Servicer or the Special Servicer is removed from
S&P's Select Servicer List as a U.S. Commercial Mortgage Master Servicer
or a U.S. Commercial Mortgage Special Servicer, as the case may be, and is
not reinstated within 60 days after its removal therefrom; or
(xii) 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 Servicers and the Special Servicer each shall,
if terminated pursuant to this Section 7.01(b), continue to be entitled to
receive all amounts accrued or owing to it under this Agreement on or prior to
the date of such termination, whether in respect of Advances or otherwise, and
it (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. With respect to the Farallon Portfolio Loan Combination, if an Event
of Default has occurred (A) with respect to the applicable Master Servicer that
affects a Non-Trust Noteholder and any Certificateholder, and the Master
Servicer is not otherwise terminated under this Agreement, then the Farallon
Portfolio Controlling Party shall be entitled to direct the Trustee to appoint a
sub-servicer solely with respect to the Mortgage Loan (or if the Mortgage Loan
is currently being sub-serviced, to replace the current sub-servicer, but only
if such original sub-servicer is in default under the related sub-servicing
agreement); and (B) the appointment (or replacement) of a sub-servicer with
respect to the Mortgage Loan, as contemplated in clause (A) above, will in any
event be subject to Rating Agency Confirmation. 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 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
terminated Master Servicer's or Special Servicer's, as the case may be,
functions hereunder, and shall cooperate with the Trustee in effecting the
termination of such Master Servicer's or Special Servicer's, as the case may be,
responsibilities and rights hereunder, 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 a 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), (xi) or (xii) 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 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 the sum
of one basis point and the related Excess Servicing Strip Rate (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).
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.
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, including 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 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, the 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), (xi) or (xii) 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 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.
ARTICLE VIII
CONCERNING THE TRUSTEE, THE CUSTODIAN AND THE FISCAL AGENT
Section 8.01 Duties of Trustee and Custodian
(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. The Trustee and the Custodian shall be liable
only to the extent of the respective obligations specifically imposed upon and
undertaken by the Trustee and the Custodian.
(b) The Trustee and the Custodian, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee or the Custodian, as the case may be, 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 or the
Custodian, as the case may be, shall take such action as it deems appropriate to
have the instrument corrected. None of the Trustee or the Custodian shall 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 or the Custodian, as the case may be, in good faith, pursuant to this
Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee or the Custodian 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 or the Custodian, as the case may be, such
party 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 such parties and conforming to the requirements of
this Agreement;
(ii) None of the Trustee or the Custodian shall be personally liable
for an error of judgment made in good faith by a Responsible Officer or
Responsible Officers thereof, unless it shall be proved that such party
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 any trust or power conferred upon the Trustee, under this
Agreement; and
(iv) The protections, immunities and indemnities afforded to the
Trustee hereunder shall also be available to it in its capacity as
Certificate Registrar, Authenticating Agent and REMIC Administrator.
Section 8.02 Certain Matters Affecting Trustee and Custodian.
Except as otherwise provided in Section 8.01 and Article X:
(i) the Trustee and the Custodian may, in the absence of bad faith
or negligence on the part of each such party, 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, and neither of the
Trustee or the Trustee shall be under any obligation 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 or the
Certificateholder, as the case may be, 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, none of the
Trustee or the Custodian shall 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) none of the Trustee and the Custodian shall 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 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,
and the Trustee may 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) none of the Trustee and the Custodian shall 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) and the Custodian (in the case of the Trustee) or the Depositor;
and
(viii) none of the Trustee or 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 the 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 or the Custodian, as the case may be, 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 or the Custodian, as the case may be, be
deemed to be conclusively proved and established by an Officer's Certificate
delivered to the Trustee or the Custodian, as applicable and such certificate,
in the absence of negligence or bad faith on the part of the Trustee or the
Custodian, as the case may be, shall be full warrant to the Trustee or the
Custodian for any action taken, suffered or omitted by it under the provisions
of this Agreement upon the faith thereof.
Section 8.03 Trustee, Custodian and Fiscal Agent Not Liable for
Validity or Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than
the statements attributed to the Trustee or the Custodian 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 none of the Trustee, the Custodian or any Fiscal Agent assumes any
responsibility for their correctness. Except as set forth in Section 8.15, the
Trustee and the Custodian make no representations as to the validity or
sufficiency of this Agreement or of any Certificate (other than as to the
signature of the Trustee set forth thereon) or of any Mortgage Loan or related
document or of MERS or the MERS System. None of the Trustee, the Custodian or
any Fiscal Agent shall be accountable for the use or application by the
Depositor of any of the Certificates issued to it or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the assignment of the Trust Mortgage Loans to the Trust Fund, or
any funds deposited in or withdrawn from a Collection Account or any other
account by or on behalf of the Depositor, either Master Servicer or the Special
Servicer. None of the Trustee, the Custodian or any Fiscal Agent shall 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 or the Custodian, as the case may be, in good faith, pursuant to this
Agreement.
Section 8.04 Trustee, Custodian and Fiscal Agent May Own
Certificates.
The Trustee, the Custodian or any Fiscal Agent or any agent of the
Trustee, the Custodian 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 and Custodian;
Indemnification of and by the Trustee and Custodian.
(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 the Trustee and the Custodian all earned but unpaid Trust Administration 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 and
the Custodian in the exercise and performance of any of the powers and duties
specified hereunder and, in the case of the Trustee, the execution of the trusts
hereby created. Except as contemplated by Section 3.06, the Trust Administration
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
and the Custodian's sole compensation for such services to be rendered by it.
(b) The Trustee and the Custodian (whether in their individual
capacities or their capacities as Trustee or Custodian, as the case may be) and
any director, officer, employee, affiliate, agent or "control" person within the
meaning of the Securities Act of 1933, as amended, of the Trustee and the
Custodian 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 Master Servicer or the Special
Servicer taken on behalf of the Trustee, 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 none of the Trustee, or the
Custodian or 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 or the Custodian's, as the
case may be, 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 or the Custodian 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 and Custodian.
The Trustee and the Custodian 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 (or, in the case
of the Custodian, of at least $10,000,000) 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. Each of the Trustee and the Trustee shall also be an
entity with a long term unsecured debt rating of at least "A+" from Fitch and
S&P, 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 or the Custodian shall cease to be
eligible in accordance with the provisions of this Section, the Trustee or the
Custodian, as applicable, shall resign immediately in the manner and with the
effect specified in Section 8.07; provided that if any of the Trustee or the
Custodian shall cease to be so eligible because its combined capital and surplus
is no longer at least $100,000,000 (or, in the case of the Custodian, of at
least $10,000,000) or, in the case of the Trustee, its long-term unsecured debt
rating no longer conforms to the requirements of the immediately preceding
paragraph, and if the Trustee or the Custodian, as applicable, 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 or the
Custodian'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 or the Custodian, as
applicable, 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 or
the Custodian's continuing in such capacity. The bank, trust company,
corporation or association serving as Trustee or the Custodian 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.
Section 8.07 Resignation and Removal of Trustee and Custodian.
(a) The Trustee and the Custodian may at any time resign and, in the
case of the Trustee, 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, certificate administrator
or custodian, as the case may be, 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 or Custodian, as the case
may be and to the successor trustee, certificate administrator or custodian, as
the case may be. 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 or the Custodian, as the case may be,
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 a Master
Servicer, or if at any time the Trustee or the Custodian, as the case may be,
shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or
a receiver of the Trustee or the Custodian, as the case may be, or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or the Custodian 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 or the Custodian, as the case may be, and
appoint a successor trustee, certificate administrator or custodian, 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 or
the Custodian so removed and to the successor trustee, certificate administrator
or custodian, as applicable. 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 or the Custodian and appoint a
successor trustee, certificate administrator or custodian, as the case may be,
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 or
Custodian, as the case may be, so removed and one complete set to the successor
so appointed. A copy of such instrument shall be delivered to the Depositor, the
Special Servicer and the remaining Certificateholders by the successor so
appointed.
(d) In the event that the Trustee or the Custodian is terminated or
removed pursuant to this Section 8.07, all of such party's 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, in the case of the Trustee, without
limitation, P&I Advances and accrued interest thereon) accrued or owing to it
under this Agreement, with respect to periods prior to the date of such
termination or removal and no termination without cause shall be effective until
the payment of such amounts to the Trustee or Custodian, as the case may be).
(e) Any resignation or removal of the Trustee or the Custodian and
appointment of a successor, pursuant to any of the provisions of this Section
8.07 shall not become effective until acceptance of appointment by such
successor, as provided in Section 8.08.
Section 8.08 Successor Trustee and Custodian.
(a) Any successor trustee, certificate administrator or custodian
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, certificate administrator or custodian, as the case may be, an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee or Custodian, as the case may be, shall
become effective and such successor trustee, certificate administrator or
custodian, as the case may be, 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, certificate administrator or custodian herein. The predecessor
custodian shall deliver to the successor custodian all Mortgage Files and
related documents and statements held by it hereunder, and the Depositor, the
Master Servicers, the Special Servicer and the predecessor Trustee and Custodian
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 their
successor all such rights, powers, duties and obligations, and to enable the
successor to perform its obligations hereunder. Any and all costs and expenses
associated with transferring the duties of a Trustee or Custodian that has
resigned or been removed or terminated, as contemplated by Section 8.07, to a
successor, including those associated with transfer of the Mortgage Files and
other documents and statements held by a predecessor Custodian, to a successor
Custodian, as contemplated by Section 8.08(a) shall be paid by: (i) the
predecessor Trustee or Custodian, as the case may be, if such predecessor
Trustee or Custodian, as the case may be, 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 or
Custodian, as the case may be, 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 Custodian, as the case may be, 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 Custodian, as the case may be, or such subject Certificateholders, as
applicable, shall remain liable to the Trust for such costs and expenses).
(b) No successor trustee, certificate administrator or custodian, as
the case may be, shall accept appointment as provided in this Section 8.08,
unless at the time of such acceptance such successor trustee, certificate
administrator or custodian, as the case may be, 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,
certificate administrator or custodian, as the case may be, as provided in this
Section 8.08, such successor shall mail notice of the succession of such
trustee, certificate administrator or custodian hereunder to the Depositor, the
Certificateholders and each Non-Trust Noteholder.
Section 8.09 Merger or Consolidation of Trustee or Custodian.
Any entity into which the Trustee or Custodian 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 or Custodian shall be a
party, or any entity succeeding to the corporate trust business of the Trustee
or Custodian, shall be the successor of the Trustee or Custodian, as the case
may be, hereunder, provided such entity shall be eligible under the provisions
of Section 8.06 and, in the case of a successor Trustee, the Rating Agencies
have provided confirmation pursuant to Section 8.06, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the applicable Master Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees, jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity, such
title to the Trust Fund, or any part thereof, and, subject to the other
provisions of this Section 8.10, such powers, duties, obligations, rights and
trusts as such Master Servicer and the Trustee may consider necessary or
desirable. If the applicable Master Servicer shall not have joined in such
appointment within 15 days after the receipt by it of a request to do so, or in
case an Event of Default in respect of such Master Servicer shall have occurred
and be continuing, the Trustee alone shall have the power to make such
appointment. 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.
Section 8.11 [RESERVED]
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 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 and the Custodian 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 or the Custodian, as applicable. Upon request and with the
consent of the Depositor and at the cost of the requesting Party, the Trustee or
the Custodian, as applicable, 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 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 the
Trustee and the Custodian.
Each of the Trustee and the Custodian (each such party, with respect
to the representations made as to itself, the "Representing Party") hereby
represent 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 Representing Party 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 Representing
Party, and the performance and compliance with the terms of this Agreement by
the Representing Party, will not violate the Representing Party'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 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 Representing Party, enforceable against each such Person 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 Representing Party 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 Representing Party's good faith reasonable judgment, is likely to affect
materially and adversely the ability of any such party to perform its
obligations under this Agreement.
(f) No litigation is pending or, to the best of the Representing
Party's knowledge, threatened against the Representing Party that, if determined
adversely to the Representing Party, would prohibit the Representing Party from
entering into this Agreement or, in such Person's good faith reasonable
judgment, is likely to materially and adversely affect the ability of the
Representing Party 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 Representing Party, of or compliance by any such party 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
Serviced 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;
(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 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.
Form 10-K requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports) and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Trustee that the Depositor has filed all such required reports
during the preceding 12 months and that it has been subject to such filing
requirement for the past 90 days. The Depositor shall notify the Trustee in
writing, no later than the 15th calendar day of March during any year in which
the Trust is required to file a Form 10-K if the answer to the questions should
be "no" ; provided, however, that if the failure of the Depositor to have filed
such required reports arises in connection with the securitization contemplated
by this Agreement, the Trustee shall be deemed to have notice of such failure
(only with respect to Exchange Act reports prepared or required to be prepared
and filed by the Trustee) without being notified by the Depositor; provided,
further, that in connection with the delivery of any notice contemplated by this
sentence, the Depositor may instruct the Trustee that such notice shall be
effective for a period (not to exceed 12 months) from the date of such notice,
in which case no further notice from the Depositor shall be required during such
specified period. The Trustee shall be entitled to rely on such representations
in preparing, executing and/or filing any Form 10-K.
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 prepared and filed by the Trustee with the Commission with respect to
the Trust. The Trustee shall post each such report on its internet website as
soon as reasonably practicable after the filing thereof with the Commission. In
addition, the Trustee shall, free of charge, upon request, deliver to any
Certificateholder, Certificate Owner or party identified as a prospective
Certificateholder or Certificate Owner copies of all Subsequent Exchange Act
Reports that are filed with the Commission with respect to the Trust. Any
request contemplated by the prior sentence shall be made to LaSalle Bank
National Association, 000 X. XxXxxxx Xx., Xxxxxxx, XX 00000, Attn: Global
Securities and Trust Services - ML-CFC 2007-8, Commercial Mortgage Pass-Through
Certificates, Series 2007-8 (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 and each party hereto shall cause any Sub-Servicing
Function Participant retained or engaged by it to deliver (but if the related
Sub-Servicing Function Participant is a Designated Sub-Servicer, then the
applicable Master Servicer's sole duty shall be to use reasonable efforts to
cause such Designated Sub-Servicer to deliver) a certification (each, a
"Performance Certification") to the Person who signs the Xxxxxxxx-Xxxxx
Certification (including, with respect to any securitization trust of a
securitized Non-Trust Loan that is part of a Serviced Loan Combination that is
subject to the reporting requirements of the Exchange Act, the person who signs
a Xxxxxxxx-Xxxxx Certification for each such trust) (the "Certifying Person"),
to the Depositor (and, if a Non-Trust Loan that is part of a Serviced Loan
Combination is deposited into another commercial mortgage securitization that is
subject to the reporting requirements of the Exchange Act (and for so long as
such securitization is subject to the reporting requirements of the Exchange
Act), the trustee of each other securitization except in the case of the
Trustee) 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 (and of the Depositor of any such other securitization trust relating
to such securitized Non-Trust Loan) (the Certifying Person and the Depositor,
collectively, the "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 Serviced Loan
Combination, the position of the Trust and the related Non-Trust Noteholder(s)
(or, if a Non-Trust Loan that is part of a Serviced Loan Combination is
deposited into another commercial mortgage securitization that is subject to the
reporting requirements of the Exchange Act (and for so long as such
securitization is subject to the reporting requirements of the Exchange Act),
the position of each other securitization trust)) 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 Serviced Loan
Combination, the interest of the Trust and the related Non-Trust Noteholder(s)
(or, if a Non-Trust Loan that is part of a Serviced Loan Combination is
deposited into another commercial mortgage securitization that is subject to the
reporting requirements of the Exchange Act (and for so long as such
securitization is subject to the reporting requirements of the Exchange Act),
the interests of each other securitization trust)) 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 (and,
solely with respect to a Non-Trust Loan that is part of a Serviced Loan
Combination, if such Non-Trust Loan is deposited into a commercial mortgage
securitization that is subject to the reporting requirements of the Exchange
Act, for so long as such securitization is subject to the reporting requirements
of the Exchange Act), 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 (and, if a Non-Trust Loan that is part of a Serviced
Loan Combination is deposited into another commercial mortgage securitization
that is subject to the reporting requirements of the Exchange Act (and for so
long as such securitization is subject to the reporting requirements of the
Exchange Act), the trustee of each other securitization) 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 as set forth in or pursuant to the definition of
such term herein. Each of the Master Servicers and Special Servicer shall
provide such notice of any Exchange Act Reportable Event to the Trustee and the
Depositor (and, if a Non-Trust Loan that is part of a Serviced Loan Combination
is deposited into another commercial mortgage securitization that is subject to
the reporting requirements of the Exchange Act (and for so long as such
securitization is subject to the reporting requirements of the Exchange Act),
the trustee of each other securitization) in both form and substance in
XXXXX-compatible format, (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 (with respect to the Trust or the securitization trust of
any securitized Non-Trust Loan that is part of a Serviced Loan Combination),
(ii) no later than March 15 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 (or any year in which any securitization trust of a
securitized Non-Trust Loan that is part of a Serviced Loan Combination that is
subject to the reporting requirements of the Exchange Act will file a 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 (with respect to the Trust or the securitization trust of any
securitized Non-Trust Loan that is part of a Serviced Loan Combination).
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 the case may be. Upon
becoming aware of any Form 8-K Required Information, the Trustee shall promptly
notify the Depositor (and for so long as such securitization is subject to the
reporting requirements of the Exchange Act, the depositor of each other
securitization) 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. The Depositor will be responsible for
any reasonable additional fees or expenses assessed or incurred by the Trustee
in connection with including any additional information required to be included
on the applicable Exchange Act Reports that are not included in Form 10-K
Required Information, Form 10-D Required Information or Form 8-K Required
Information, as applicable.
Upon reasonable request of the Depositor or the Trustee (and for so
long as such securitization is subject to the reporting requirements of the
Exchange Act, the depositor or trustee of each other securitization), 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 (and, if a Non-Trust Loan that is part
of a Serviced Loan Combination is deposited into another commercial mortgage
securitization that is subject to the reporting requirements of the Exchange Act
(and for so long as such securitization is subject to the reporting requirements
of the Exchange Act), the trustee of each other securitization) 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, Special Servicer
or Trustee appoints a Servicing Representative (excluding any Designated
Sub-Servicer) that constitutes a Servicer contemplated by Item 1108(a)(2) of
Regulation AB in respect of the Subject Securitization Transaction, then such
Master Servicer, Special Servicer or Trustee, as the case may be, shall cause
such Servicing Representative, in connection with its acceptance of such
appointment, to provide the Depositor and the Trustee (and, if a Non-Trust Loan
that is part of a Serviced Loan Combination is deposited into another commercial
mortgage securitization that is subject to the reporting requirements of the
Exchange Act (and for so long as such securitization is subject to the reporting
requirements of the Exchange Act), the trustee of each other securitization)
with such information regarding itself, its business and operations and its
servicing experience and practices, as is required to be reported by the
Depositor (or the depositor of any securitization trust of a securitized
Non-Trust Loan that is part of a Serviced Loan Combination that is subject to
the reporting requirements of the Exchange Act) 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 (or a securitization trust of a
securitized Non-Trust Loan that is part of a Serviced Loan Combination that is
subject to the reporting requirements of the Exchange Act).
It is hereby acknowledged that the related Mortgagor under each of
the Empirian Portfolio Pool Two Trust Mortgage Loan and the Farallon Portfolio
Trust Mortgage Loan is a Significant Obligor, and, accordingly, Item 6 of Form
10-D and Item 1112(b) of Form 10-K provide for the inclusion of updated net
operating income of the Mortgagor, as required by Item 1112(b) of Regulation AB,
on each Form 10-D to be filed by the Trust with respect to a Distribution Date
immediately following the date in which each financial statement of the
Significant Obligor is required to be delivered to the lender under the related
Mortgage Loan documents, or on each Form 10-K filed by the Trust, as applicable.
Upon receipt of the updated net operating income information, the applicable
Master Servicer shall update the following columns of the CMSA Loan Periodic
Update File for the applicable Distribution Date: BB, BP, BT and BU
(corresponding fields 54, 68, 72 and 73).
If the Trustee has not received financial information satisfactory
to comply with Item 6 of Form 10-D or Item 1112(b) of Form 10-K, as the case may
be, by the Distribution Date on which the financial statement should be filed,
it shall include the following statement with respect to Item 6 on the related
Form 10-D or Item 1112(b) on the related Form 10-K: "The information required
for this [Item 6][Item 1112(b)] rests with a person or entity which is not
affiliated with the registrant. Oral and written requests have been made on
behalf of the registrant, to the extent required under the related pooling and
servicing agreement, to obtain the information required for this [Item 6][Item
1112(b)], and the registrant has been unable to obtain such information to
include on this [Form 10-D][Form 10-K] by the related filing deadline. The
information is therefore being omitted herefrom in reliance on Rule 12b-21 under
the Securities Exchange Act of 1934, as amended."
(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 20 of the applicable
calendar year in which the filing of any Annual Report on Form 10-K is to be
made with respect to the Trust as contemplated by Section 8.16(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
email 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. 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 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 (and,
if a Non-Trust Loan that is part of a Serviced Loan Combination is deposited
into another commercial mortgage securitization that is subject to the reporting
requirements of the Exchange Act (and for so long as such securitization is
subject to the reporting requirements of the Exchange Act), the trustee of each
other securitization), no later than March 15 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 (or prior to
April 1 of the first year in which the securitization trust of any securitized
Non-Trust Loan that is part of a Serviced Loan Combination has filed a Form 15
in accordance with the related pooling and servicing agreement), 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 (or the depositor of any
securitization trust of a securitized Non-Trust Loan that is part of a Serviced
Loan Combination that is subject to the reporting requirements of the Exchange
Act) 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; provided that this subsection (j) shall not apply to
the initial Master Servicer No. 2 and the subject matter of this sentence,
insofar as it relates to the initial Master Servicer No. 2, shall be covered by
the applicable Master Servicer Indemnification Agreement.
(k) Each Master Servicer, the Special Servicer, and the Trustee
shall each indemnify the Depositor (or the depositor of any securitization trust
of a securitized Non-Trust Loan that is part of a Serviced Loan Combination that
is subject to the reporting requirements of the Exchange Act) and its Affiliates
for, and hold the Depositor (or the depositor of any securitization trust of a
securitized Non-Trust Loan that is part of a Serviced Loan Combination that is
subject to the reporting requirements of the Exchange Act) 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 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 Loan Noteholder (or, if a Non-Trust Loan that
is part of a Serviced Loan Combination is deposited into another commercial
mortgage securitization that is subject to the reporting requirements of the
Exchange Act (and for so long as such securitization is subject to the reporting
requirements of the Exchange Act), the trustee of each other securitization);
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, notwithstanding any contrary provision in
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 by either facsimile to
(000) 000-0000 or via email to xxxxx_xxxxxxx@xx.xxx or to such other facsimile
number, 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
Custodian 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 Custodian, 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 "AA-" from
Fitch and S&P (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 "AA-" by
Fitch and S&P, 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
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.
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 applicable Master Servicer, 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 Custodian 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), the Master Servicers and the Special Servicer may at its
option elect to purchase all of the Trust Mortgage Loans and each REO Property
remaining in the Trust Fund as contemplated by clause (i) (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, either Master
Servicer or the Plurality Subordinate Certificateholder shall give notice of its
election to purchase 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 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 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
(without giving effect to the proviso in the definition of "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.
Following the date on which the aggregate Certificate Principal
Balance of the Class X-0, Xxxxx X-0, Class A-SB, Class A-3, Class AM, Class AJ,
Class A-1A, Class AM-A, Class AJ-A, Class B, Class C, Class D, Class E, Class F,
Class G, Class H and Class J 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 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
Serviced 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 Serviced 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.
Solely for federal income tax purposes, the Sole Certificate Owner shall be
deemed to have purchased the assets of REMIC I for an amount equal to the
remaining Class Principal Balance of its Certificates, plus accrued, unpaid
interest with respect thereto, and the Trustee shall credit such amounts against
amounts distributable in respect of such Certificates and the Corresponding
REMIC I Regular Interests. Any transfer of Trust Mortgage Loans pursuant to this
paragraph 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 (without giving effect to the
proviso in the definition of "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 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 either 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) 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-Trust 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.
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 REMIC II Regular Certificates are hereby designated as "regular
interests" (within the meaning of Section 860G(a)(1) of the Code) in REMIC II.
The Class R-I Certificates and 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 I and REMIC II, respectively. 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 and the REMIC
II Regular Certificates 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 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
(h) and (i) 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 REMIC Administrator 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, "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 the REMIC Administrator shall 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
either 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 could occur with
respect to such action. In addition, prior to taking any action with respect to
REMIC I or REMIC II, or causing either 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 either 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 of 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 either 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 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; (v) the Depositor, if such tax
arises out of or results from a breach by the Depositor under this Section
10.02, or (vi) the Trust Fund, excluding the portion thereof constituting
Grantor Trust Y and Grantor Trust Z, 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.
(k) Following the Startup Day, none of the Trustee, the Master
Servicers, and the Special Servicer shall accept any contributions of assets to
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 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 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) either 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 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,
either Master Servicer 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 Grantor Trust Y and
Grantor Trust Z for tax return preparation purposes, as a "grantor trust" under
the Code and shall treat (i) the Additional Interest, the Trust Converting
Additional Interest Accounts and amounts held from time to time in the Trust
Converting Additional Interest Account as separate assets of Grantor Trust Y and
(ii) the ARD Loan Additional Interest, the ARD Loan Additional Interest Account
and amounts held from time to time in the ARD Loan Additional Interest Account
as assets of Grantor Trust Z, as applicable, and in each case (clauses (i) and
(ii) above) not of REMIC I or REMIC II, as permitted by Treasury Regulations
Section 1.860G-2(i)(1). The Class Y Certificates are hereby designated as
representing an undivided beneficial interest in the Trust Converting Loan
Additional Interest payable on the Trust Converting Loans and proceeds thereof.
The Class Z Certificates are hereby designated as representing an undivided
beneficial interest in ARD Loan Additional Interest payable on the Trust ARD
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 Grantor Trust Y and Grantor Trust Z (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 the REMIC Administrator shall file when due all of the Tax Returns in
respect of Grantor Trust Y and Grantor Trust Z as may be applicable under the
Grantor Trust Provisions. 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 Grantor Trust Y
and Grantor Trust Z 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 compliance with the
administration and reporting duties under the Grantor Trust Provisions, 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 Y Certificates and (ii) the Holders of the Class
Z Certificates, on the cash or accrual method of accounting, as applicable, such
information as to their respective portions of the income and expenses of
Grantor Trust Y or Grantor Trust Z, as the case may be, as may be required under
the Code, and shall perform on behalf of Grantor Trust Y and Grantor Trust Z 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, and to administer, each of Grantor Trust Y and
Grantor Trust Z as a "grantor trust" under the Grantor Trust Provisions (and the
Depositor, 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 Depositor's, the
Trustee's, either Master Servicer's or the Special Servicer's possession or
control). None of the REMIC Administrator, the Masters Servicers, the Special
Servicer or the Trustee shall knowingly take (or cause either of Grantor Trust Y
or Grantor Trust Z 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 either of Grantor Trust Y or Grantor Trust Z 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 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 either of Grantor Trust
Y or Grantor Trust Z 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 either of Grantor Trust Y or Grantor Trust Z so as to take
advantage of variations in the market so as to improve the rate of return of
Holders of the Class Y Certificates or Class Z Certificates, as the case may be.
(f) If any tax is imposed on either of Grantor Trust Y or Grantor
Trust Z, 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 Grantor Trust Y or Grantor Trust Z, as
the case may be, in all other instances.
(g) As of the Closing Date, neither Grantor Trust Y nor Grantor
Trust Z shall be treated as a WHFIT that is a WHMT. The Depositor shall notify
the Trustee if any Class Y Certificate or Class Z Certificate is held by a
nominee or other "middleman," within the meaning of the WHFIT Regulations in
which event the Trustee will report as required under the WHFIT Regulations to
the extent such information as is reasonably necessary to enable the Trustee to
do so, and is not in its possession, is provided to the Trustee on a timely
basis. The Trustee shall have no obligation to monitor whether a grantor trust
has become a WHFIT following the Closing Date, and shall report under the WHFIT
Regulations only to the extent it receives written notice of the same. The
Trustee shall be entitled to rely on the first sentence of this paragraph and
shall be entitled to indemnification in accordance with the terms of this
Agreement in the event that the Internal Revenue Service makes a determination
that the first sentence of this paragraph is incorrect.
The Trustee, in its discretion, shall report required WHFIT
information using either the cash or accrual method, except to the extent the
WHFIT Regulations specifically require a different method. The Trustee shall be
under no obligation to determine whether any Certificateholder uses the cash or
accrual method. The Trustee shall make available (via its website) WHFIT
information to certificate holders annually. In addition, the Trustee shall not
be responsible or liable for providing subsequently amended, revised or updated
information to any Certificateholder, unless requested by the Certificateholder.
The Trustee shall not be liable for failure to meet the reporting
requirements of the WHFIT Regulations nor for any penalties thereunder if such
failure is due to: (i) the lack of reasonably necessary information being
provided to the Trustee that is not in its possession, (ii) incomplete,
inaccurate or untimely information being provided to the Trustee or (iii) the
inability of the Trustee, after good faith efforts, to alter its existing
information reporting systems to capture information necessary to fully comply
with the WHFIT Regulations for the 2007 calendar year. Absent receipt of
information regarding any sale of Certificates, including the price, amount of
proceeds and date of sale from the beneficial owner thereof or the Depositor,
the Trustee may assume there is no secondary market trading of WHFIT interests.
To the extent required by the WHFIT Regulations, the Trustee shall
use reasonable efforts to publish on an appropriate website the CUSIPs for the
Certificates that represent ownership of a WHFIT. The CUSIPs so published will
represent the Rule 144A CUSIPs. The Trustee shall make reasonable good faith
efforts to keep the website accurate and updated to the extent CUSIPs have been
received. Absent the receipt of a CUSIP, the Trustee will use a reasonable
identifier number in lieu of a CUSIP. The Trustee shall not be liable for
investor reporting delays that result from the receipt of inaccurate or untimely
CUSIP information.
The Trustee shall be entitled to additional reasonable compensation
for changes in reporting required in respect of the WHFIT Regulations that arise
as a result of (i) the failure of the Depositor to timely inform the Trustee of
the designation of the grantor trust as a WHFIT, (ii) the grantor trust becoming
a WHFIT after the Closing Date (if compensation is not already provided for this
contingency) or (iii) a change in the WHFIT Regulations or a change in
interpretation of the WHFIT Regulations by the IRS or the Depositor or its
counsel, if such change requires, in the Trustee's sole and reasonable good
faith discretion, a material increase in the Trustee's reporting obligations in
respect of the related grantor trust.
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 Grantor
Trust Provisions or the REMIC Provisions if the Grantor Trust Provisions or the
REMIC Provisions are amended or clarified such that any such requirement may be
relaxed or eliminated, (v) to 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 to facilitate administration of and reporting duties with respect to each
Grantor Trust in accordance with the Grantor Trust Provisions; 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 (viii) 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 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 Grantor
Trust Y or Grantor Trust Z or cause either of REMIC I or REMIC II to fail to
qualify as a REMIC or either of Grantor Trust Y or Grantor Trust Z 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 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 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.
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) and also by facsimile
transmission 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 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;
(ii) in the case of Master Servicer Xx. 0, XxxXxxx Xxxx Xxxxxx
Xxxxxxx Xxxxxxx, Inc., 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx
00000, Facsimile: (000) 000-0000, Attention: Xxxxx Xxxxxxx with a copy to
KeyBank National Association, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000,
Facsimile: (000) 000-0000, Attention: Xxxxxx X. Xxxxx; and with an
additional copy to Polsinelli Xxxxxxx Xxxxxxxx Suelthaus PC, 000 X. 00xx
Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000, Facsimile: (816)
753-1536, Attention: Xxxxx Xxxxxxx;
(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 94111), facsimile
number: (000) 000-0000;
(iv) in the case of the Special Servicer, Midland Loan Services,
Inc., 10851 Xxxxxx, Building 00, 0xx Xxxxx, Xxxxxxxx Xxxx, Xxxxxx 00000,
Attention: President, facsimile no. (000) 000-0000, with a copy to Dechert
LLP, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxx
X. Xxxx, facsimile no. (000) 000-0000; provided that any communication
addressed to Midland shall also be transmitted by facsimile transmission
to the facsimile numbers indicated above;
(v) in the case of the Trustee, LaSalle Bank National Association,
000 X. XxXxxxx Xx., Xxxxxxx, XX 00000, Attn: Global Securities and Trust
Services - ML-CFC 2007-8, Commercial Mortgage Pass-Through Certificates,
Series 2007-8, facsimile number: (000) 000-0000;
(vi) in the case of the Custodian, LaSalle Bank National
Association, 000 X. XxXxxxx Xx., Xxxxxxx, XX 00000, Attn: Global
Securities and Trust Services Group - ML-CFC 2007-8, Commercial Mortgage
Pass-Through Certificates, Series 2007-8, facsimile number: (312)
904-1085;
(vii) 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, facsimile No.: 000-000-0000, with a copy Director of CMBS
Securitizations, facsimile number: (000) 000-0000, 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, facsimile number
(000) 000-000-0000;
(B) Countrywide Securities Corporation, 0000 Xxxx Xxxxxxx -
XXXX-000, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxxxx;
(C) Banc of America Securities LLC, 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xx.
Xxxxxxx X. Xxxxx, Esq., facsimile number (000) 000-0000, with a copy
to Xxxx X. Xxxxxxx, Esq., 000 Xxxxx Xxxxx Xxxxxx, 30th Floor,
NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000;
(D) Bear, Xxxxxxx & Co. Inc., 000 Xxxxxxx Xxx., Xxx Xxxx, XX
00000, Attention: CMBS Trading Desk, Telecopy No. (000) 000-0000,
with a copy to Bear, Xxxxxxx & Co. Inc., 000 Xxxxxxx Xxx., Xxx Xxxx,
XX 00000, Attention: Xxxxxx X. Xxxxxxxxx Xx., Esq., Telecopy No.:
(000) 000-0000; and
(E) KeyBanc Capital Markets Inc. 000 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxx 00000, Attention: Xxxxxx Xxxxxxxx, Re: ML-CFC Commercial
Mortgage Trust 2007-7, Commercial Mortgage Pass-Through
Certificates, Series 2007-8, facsimile number (000) 000-0000, with a
copy to KeyBank National Association, 000 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxx, 00000, Attention: Xxxxxxx X. Xxxxxxxx, facsimile number (216)
689-5681, and with an additional copy to Polsinelli Xxxxxxx Xxxxxxxx
Suelthaus PC, 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx,
Xxxxxxxx 00000, Attention: Xxxxx Xxxxxxx, facsimile number: (816)
753-1536;
(viii) in the case of the Rating Agencies,
(A) Fitch, Inc., Commercial Mortgage Backed Securities, Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Surveillance, facsimile number: (000) 000-0000, Re: ML-CFC
Commercial Mortgage Trust 2007-8, Commercial Mortgage Pass-Through
Certificates, Series 2007-8; and
(B) Standard & Poor's Ratings Services, 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, Attention: CMBS Surveillance Group,
facsimile number: (000) 000-0000, Re: ML-CFC Commercial Mortgage
Trust 2007-8, Commercial Mortgage Pass-Through Certificates, Series
2007-8; and
(ix) in the case of the initial Controlling Class Representative,
Anthracite Capital, Inc., 00 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxx Xxxx and Xxxxxx Xxxxxx, telecopy number:
(000) 000-0000.
or as to each such Person such other address as may hereafter be furnished by
such Person to the parties hereto in writing. Any communication required or
permitted to be delivered to a Certificateholder shall be deemed to have been
duly given when mailed first class, postage prepaid, to the address of such
Holder as shown in the Certificate Register.
Section 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.07 Grant of a Security Interest.
The Depositor and the Trustee agree that it is their intent that the
conveyance of the Depositor's right, title and interest in and to the Trust
Mortgage Loans pursuant to this Agreement shall constitute a sale and not a
pledge of security for a loan. If such conveyance is deemed to be a pledge of
security for a loan, however, the Depositor 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 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. This Agreement may not be amended in any manner that would adversely
affect the rights of any third party beneficiary hereof without its consent. 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;
(v) any change in the location of the Distribution Account;
(vi) any change in lien priority of any Trust Mortgage Loan;
(vii) the final payment to any Class of Certificateholders;
(viii) any sale or disposition of any Trust Mortgage Loan or REO
Property; and
(ix) any such other information as reasonably requested by the
Rating Agencies.
(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; and
(ii) any change in the location of the Collection Account maintained
by it.
(c) The Special Servicer shall furnish each Rating Agency and the
Controlling Class Representative (and, with respect to a Serviced 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 Serviced 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 Custodian, 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 Certificates, to the extent such
party possesses such information, as such Rating Agency shall reasonably
request.
(g) The applicable Master Servicer shall use reasonable efforts to
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 or not provided to any Rating Agency as 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.
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, Chief Officer in
Charge of Commercial
Securitization
KEYCORP REAL ESTATE CAPITAL
MARKETS, INC.
Master Servicer No. 1
By: /s/ Xxxxx Xxxxxxx
------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
Master Servicer No. 2
By: /s/ Xxxxxxx X.X. Xxxxxxxxx
---------------------------
Name: Xxxxxxx X.X. Xxxxxxxxx
Title: Vice President
MIDLAND LOAN SERVICES, INC.
Special Servicer
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION
Trustee and Custodian
By: /s/ Xxxxxxxx X. Xxxxx
----------------------
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 27th day of August, 2007, before me, a notary public in and
for said State, personally appeared Xxxxx X. Xxxxxxx, known to me to be a
Executive Vice President, Chief Officer in Charge of Commercial 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/ Xxxxx Xxx
-------------
Notary Public
STATE OF MISSOURI )
) ss.:
COUNTY OF XXXXXXX )
On the 28th day of August, 2007, before me, a notary public in and
for said State, personally appeared Xxxxx Xxxxxxx, known to me to be a Senior
Vice President of KEYCORP REAL ESTATE CAPITAL MARKETS, 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/ Xxxxxxxx Xxxxx
------------------
Notary Public
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On August 22, 2007, before me, Xxxx Xxxxxx, Notary Public,
personally appeared Kristian X.X. Xxxxxxxxx, personally known to me (or proved
to me no the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument the
person, or the entity upon which the person acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxx X. Xxxxxx
------------------
Notary Public
STATE OF KANSAS )
) ss.:
COUNTY OF XXXXXXX )
On the 23th day of August, 2007, before me, a notary public in and
for said State, personally appeared, Xxxxxxxx X. Xxxxxx, known to me to be a
Senior Vice President of MIDLAND LOAN SERVICES, 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 Xxxxxx
----------------
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the 23 day of August, 2007, before me, a notary public in and for
said State, personally appeared Xxxxxxxx X. Xxxxx, known to me to be a AVP of
LASALLE BANK NATIONAL ASSOCIATION, one of the entities that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such entity, and acknowledged to me that such entity executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X'Xxxx
----------------
Notary Public
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Loan # Loan Group Property Name Loan / Property Originator
------- ---------- ------------------------------------------------ --------------- ----------
1 2 Empirian Multifamily Portfolio Pool 2 Loan MLML
1.01 2 Centre Lake III Property MLML
1.02 0 Xxxxxx Xxx Property MLML
1.03 2 Jupiter Cove I Property MLML
1.04 2 Thymewood I Property MLML
1.05 2 Bel Aire Property MLML
1.06 2 Redan Village Property MLML
1.07 2 Dogwood Xxxx Property MLML
1.08 2 Rivers End Property MLML
1.09 2 Astorwood Property MLML
1.1 0 Xxxx Xxxxx Property MLML
1.11 2 Pine Barrens Property MLML
1.12 2 Ridgewood - Indiana Property MLML
1.13 2 Summit Center Property MLML
1.14 0 Xxxxxxxx Xxxxxxx Xxxxxxxx XXXX
0.00 0 Xxxxxxxxxxx - Xxxxxxx Property MLML
1.16 2 Clearview Property MLML
1.17 2 Apple Ridge Property MLML
1.18 2 Xxxxxxxx Court Property MLML
1.19 2 Cedarwood Property MLML
1.2 2 Amberwood Property MLML
1.21 2 Shadetree Property MLML
1.22 2 Heathmoore - Indianapolis Property MLML
1.23 2 Harvest Grove Property MLML
1.24 2 Ridgewood - Ohio Property MLML
1.25 2 The Xxxxxxx - Ohio Property MLML
1.26 2 Amhurst Property MLML
1.27 2 Waterbury - Michigan Property MLML
1.28 2 Pine Xxxxxxx I Property MLML
1.29 2 Elmtree Park Property MLML
1.3 2 Sherbrook Property MLML
1.31 2 Heronwood Property MLML
1.32 2 Windrush (FL) Property MLML
1.33 2 Willowood Property MLML
1.34 2 Valleyfield - Pennsylvania Property MLML
1.35 2 Bridgepoint I Property MLML
1.36 2 Willow Lakes Property MLML
1.37 2 Shadow Trace Property MLML
1.38 2 Xxxxx Pines Property MLML
1.39 2 Hillcrest Villas Property MLML
1.4 2 Greentree Property MLML
1.41 2 Waterbury - Ohio Property MLML
1.42 2 Forsythia Court Property MLML
1.43 2 Greenglen Property MLML
1.44 2 Meadowood - Ohio Property MLML
1.45 2 Oakwood Village Property MLML
1.46 2 Deerwood Property MLML
1.47 2 Spring Gate Property MLML
1.48 2 Woodcrest I Property MLML
1.49 2 Iris Xxxx Property MLML
1.5 2 Lakeshore I Property MLML
1.51 2 Ashgrove Property MLML
1.52 2 Stillwater Property MLML
1.53 2 Springbrook Property MLML
1.54 2 Heathmoore - Evansville Property MLML
1.55 2 Lindendale Property MLML
1.56 0 Xxxxxxx Xxxxxx Property MLML
1.57 2 Silver Forest Property MLML
1.58 2 Charing Cross Property MLML
1.59 2 Hatcherway Property MLML
1.6 2 Stonehenge Property MLML
1.61 2 Waterbury - Georgia Property MLML
1.62 2 Longwood Property MLML
1.63 2 Woodbine Property MLML
1.64 2 Mulberry Property MLML
1.65 2 Cedargate - Kentucky Property MLML
1.66 2 Willow Run Property MLML
1.67 2 Cedargate - Indiana Property MLML
1.68 2 Hillside Manor Property MLML
1.69 0 Xxxxxxxxx Xxxxx Property MLML
1.7 2 Northwood Property MLML
1.71 2 Slate Run Property MLML
1.72 2 Parkville Property MLML
1.73 2 Xxxxxxxx Property MLML
2 2 Farallon Portfolio Loan MLML
2 2 Farallon Portfolio Loan MLML
2 2 Farallon Portfolio Loan MLML
2.001 2 Portside Property MLML
2.002 2 Shadow Hills Property MLML
2.003 2 CV-Jacksonville Property MLML
2.004 2 Western Hills Property MLML
2.005 2 Siesta Lago Property MLML
2.006 2 Hunter Ridge Property MLML
2.007 2 Camelot Property MLML
2.008 2 Wikiup Property MLML
2.009 0 Xxxxxxx Xxxx Property MLML
2.01 2 Lamplighter Village Property MLML
2.011 2 Chalet North Property MLML
2.012 0 Xxxxxxx Xxxx Xxxxxx Xxxxxxx Property MLML
2.013 2 Shadowood Property MLML
2.014 2 Southwind Village Property MLML
2.015 2 The Xxxxxxx Property MLML
2.016 2 Landmark Village Property MLML
2.017 2 Crescentwood Village Property MLML
2.018 2 Stone Mountain Property XXXX
0.000 0 Xxxxxx Xxxxxxx Property MLML
2.02 2 Village North Property MLML
2.021 0 Xxxxxxx Xxxxxx Xxxxxxx Property XXXX
0.000 0 Xxxxxxxxx (Xxxxxxxx Xxxxx) Property MLML
2.023 2 Foxhall Village Property MLML
2.024 2 New Twin Lakes Property MLML
2.025 2 Xxxxxx Crossing Property MLML
2.026 2 Saddlebrook Property XXXX
0.000 0 Xxxxxxxx Xxxxxxx Property XXXX
0.000 0 Xxxxxxxxxxxx Xxxxxxx Property XXXX
0.000 0 Xxxxxxxxxx Xxxxxxx Property MLML
2.03 2 Green Spring Valley Property MLML
2.031 2 Villa West (UT) Property MLML
2.032 2 Villa West (CO) Property MLML
2.033 2 Torrey Hills Property MLML
2.034 2 Springdale Lake Property MLML
2.035 2 Brookside Village - TX Property MLML
2.036 2 Columbia Heights Property MLML
2.037 2 Encantada Property MLML
2.038 2 Woodlands of Kennesaw Property XXXX
0.000 0 Xxxxxxxx Xxxxxxx Property MLML
2.04 2 Oakwood Forest Property MLML
2.041 2 Broadmore Property MLML
2.042 2 Oak Park Village (FL) Property MLML
2.043 2 Xxxxx Winds Property MLML
2.044 2 Evergreen Village - IA Property MLML
2.045 2 Xxxxxx Village Property MLML
2.046 2 Riverside (UT) Property MLML
2.047 2 Easy Living Property MLML
2.048 2 Southfork Property MLML
2.049 2 Cloverleaf Property MLML
2.05 2 Golden Valley Property MLML
2.051 2 Riverdale Property MLML
2.052 2 Friendly Village - GA Property MLML
2.053 2 Smoke Creek Property MLML
2.054 2 Xxxxxx Village Property MLML
2.055 2 Valley View - Danboro Property MLML
2.056 2 Colonial Gardens Property MLML
2.057 2 Evergreen Village - UT Property MLML
2.058 2 Summit Oaks Property MLML
2.059 2 Stoneybrook Property MLML
2.06 2 Pedaler's Pond Property MLML
2.061 2 Burntwood Property MLML
2.062 2 Country Club Crossing Property MLML
2.063 2 Sunset Vista Property MLML
2.064 2 Spring Valley Village Property XXXX
0.000 0 Xxxxx Xxxxxxxxx Xxxxxxx Property MLML
2.066 2 Mallard Lake Property MLML
2.067 2 Sundown Property XXXX
0.000 0 Xxxxx Xxxxx Xxxxx Property MLML
2.069 2 Twin Pines Property MLML
2.07 2 Inspiration Valley Property MLML
2.071 2 Highland Acres Property MLML
2.072 2 Oak Ridge Property XXXX
0.000 0 Xxxxxxxxxx Xxxxxx Xxxxxxx Property MLML
2.074 2 River Oaks Property XXXX
0.000 0 Xxxxxxxxx Xxxxxxx Property MLML
2.076 2 Brookside Property MLML
2.077 2 Eagle Ridge Property MLML
2.078 2 Cedar Xxxxx Property MLML
2.079 2 Marnelle Property MLML
2.08 2 Maple Manor Property MLML
2.081 2 Arlington Lakeside Property MLML
2.082 2 Royal Crest Property MLML
2.083 2 Forest Creek Property MLML
2.084 2 Four Seasons Property XXXX
0.000 0 Xxxxxxxxxx Xxxxx Property MLML
2.086 2 Highland Property MLML
2.087 2 Valley Verde Property MLML
2.088 2 Chalet City Property XXXX
0.000 0 Xxxxxxxxxx Xxxxxxx Property XXXX
0.00 0 Xxxxxxxxx Xxxxxxx Property MLML
2.091 2 Creekside Property MLML
2.092 2 Eastview Property MLML
2.093 2 Viking Villa Property XXXX
0.000 0 Xxxxxxxx Xxxxxxx Property MLML
2.095 2 Terrace Heights Property MLML
2.096 2 Falcon Farms Property MLML
2.097 2 Forest Park Property MLML
2.098 2 Quail Run Property MLML
2.099 2 Sheridan Property MLML
2.1 2 Huguenot Estates Property MLML
2.101 2 Countryside (CO) Property MLML
2.102 2 Silver Creek Property MLML
2.103 2 Havenwood Property MLML
2.104 2 Northland Property MLML
2.105 2 Xxxxx Trace Property XXXX
0.000 0 Xxxxxxxx Xxxxx XXX Property MLML
2.107 2 Enchanted Village Property MLML
2.108 2 Seascape Property MLML
2.109 2 Golden Triangle Property MLML
2.11 2 Meadowood Property MLML
2.111 2 Meadowbrook Property MLML
2.112 2 Tallview Terrace Property XXXX
0.000 0 Xxxxxxx Xxxxxx Xxxxxxx Property MLML
2.114 2 Whitney Property MLML
2.115 2 Five Seasons Davenport Property MLML
2.116 2 Valley View - Honey Brook Property MLML
2.117 2 Village Park Property MLML
2.118 2 Countryside Village (TN) Property MLML
2.119 2 Mobile Gardens Property MLML
2.12 0 Xxxxxxxx Xxxxx Xxxx Xxxxxxxx XXXX
0.000 0 Xxxxxxx Xxxxxxx Property MLML
2.122 2 Loveland Property MLML
2.123 0 Xxxxxx Xxxx Xxxxxxxx XXXX
0.000 0 Xxxxxx Xxxxx Property MLML
2.125 2 Rolling Hills Property MLML
2.126 2 Deerpointe Property MLML
2.127 2 Cypress Shores Property MLML
2.128 2 Oasis Property MLML
2.129 2 Tanglewood Property MLML
2.13 2 Villa Property MLML
2.131 2 Castle Acres Property MLML
2.132 2 Dynamic Property MLML
2.133 2 Big Country Property MLML
2.134 0 Xxxxxxxx Xxxxx Xxxxxxx Property MLML
2.135 2 Northern Hills Property MLML
2.136 2 Sunny Acres Property MLML
2.137 2 Lakewood - TX Property MLML
2.138 2 Westlake Property MLML
2.139 2 Mesquite Xxxxxxx Property MLML
2.14 0 Xxxxx Xxxxxxx Property MLML
2.141 2 Xxxxxxx Manor Property MLML
2.142 2 Country Club Manor Property XXXX
0.000 0 Xxxxxxxx Xxxxxxx Property MLML
2.144 2 Deerhurst Property MLML
2.145 2 Aledo Property MLML
2.146 2 President's Park Property MLML
2.147 2 Woodlake Property MLML
2.148 2 Silver Leaf Property MLML
2.149 2 Dynamic II Property MLML
2.15 0 Xxxxxxxx Xxxxxx Property MLML
2.151 2 Twin Oaks Property MLML
2.152 2 Washingtonville Manor Property MLML
2.153 2 Brookside Village -PA Property MLML
2.154 2 Westview Property MLML
2.155 2 Sunset Country Property MLML
2.156 2 Westmoor Property MLML
2.157 2 The Towneship at Xxxxxxx Property MLML
2.158 2 Eagle Creek Property MLML
2.159 2 Mesquite Ridge Property MLML
2.16 2 Oak Park Village (TX) Property XXXX
0.000 0 Xxxxxxxxxx Xxxxxxx Property MLML
2.162 2 Xxxxxxxxx Property MLML
2.163 2 Shady Hills Property MLML
2.164 2 Cimmaron Village Property MLML
2.165 2 Birchwood Farms Property MLML
2.166 2 Xxxxxxx Crossing Property MLML
2.167 2 Pleasant Grove (CO) Property XXXX
0.000 0 Xxxxxx Xxxxx Xxxxxxx Property XXXX
0.000 0 Xxxxxxxxxx Xxxxxxx Property MLML
2.17 0 Xxxxxxxx Xxxxxxx Property MLML
2.171 2 Hampton Acres Property MLML
2.172 2 Meridian Sooner Property MLML
2.173 2 Mesquite Green Property MLML
2.174 2 El Lago Property MLML
2.175 2 Moosic Heights Property MLML
2.176 2 Golden Rule Property MLML
2.177 2 Amber Village Property MLML
2.178 2 Riverchase Property MLML
2.179 2 Hidden Hills Property MLML
2.18 2 The Woodlands Property MLML
2.181 2 Blue Valley Property MLML
2.182 2 Autumn Forest Property MLML
2.183 2 Valley View - Ephrata Property MLML
2.184 2 Cowboy Property MLML
2.185 2 Lakeside - GA Property MLML
2.186 2 Sunnyside Property MLML
2.187 2 Trailmont Property MLML
2.188 2 Timberland Property MLML
2.189 2 Xxxxxx Falls Property MLML
2.19 2 Terrace Property MLML
2.191 2 Lakeside - IA Property MLML
2.192 2 Siesta Manor Property MLML
2.193 0 Xxxxxxx Xxxxxxx Property MLML
2.194 2 Riverside (KS) Property MLML
2.195 2 Xxxxxxxx Creek Property MLML
2.196 2 Prairie Village Property MLML
2.197 2 Willow Terrace Property MLML
2.198 2 Countryside (KS) Property MLML
2.199 2 Highview Property MLML
2.2 2 Green Valley Village Property MLML
2.201 2 Crestview - OK Property MLML
2.202 0 Xxxxx Xxxx Xxxxxxxx XXXX
0.000 0 Xxxxxxx Xxxx Property MLML
2.204 2 Xxxxxxxxxx Village Property MLML
2.205 2 Xxxxxxxxxx Village Property MLML
2.206 2 The Pines Property XXXX
0.000 0 Xxxxxxxxx (Xxxxxxx Xxxxxxx) Property MLML
2.208 2 Park Plaza Property MLML
2.209 2 Belaire Property MLML
2.21 2 Pine Hills Property MLML
2.211 2 Commerce Heights Property MLML
2.212 2 Oak Xxxx Property XXXX
0.000 0 Xxxxxxxxx Xxxxxxx Property MLML
2.214 2 Xxxxxxxx @ Creekside Property MLML
2.215 2 Xxxxxx Xxxxx Property XXXX
0.000 0 Xxxxxxxx Xxxxx Property MLML
2.217 2 Shady Creek Property MLML
2.218 2 Xxxxxx Xxxx Property MLML
2.219 2 Willow Springs Property MLML
2.22 2 Seamist Property XXXX
0.000 0 Xxxxxxxx Xxxx Xxxxxxx Property XXXX
0.000 0 Xxxxxx Xxxx Xxxxxxx Property MLML
2.223 2 Xxxxxx View MHC Property MLML
2.224 2 Carsons Property XXXX
0.000 0 Xxxx Xxxxxxx Xxxxxxx Property MLML
2.226 2 Redwood Village Property MLML
2.227 2 Birch Xxxxxxx Property MLML
2.228 2 Terrace II Property MLML
2.229 2 Englewood Village Property MLML
2.23 2 Eastern Villa Property MLML
2.231 2 El Xxxxxxxx Property MLML
2.232 2 Chambersburg I & II Property XXXX
0.000 0 Xxxxx Xxxxxxx Property MLML
2.234 2 Oakwood Lake Village Property MLML
2.235 2 Valley View - Ephrata II Property MLML
2.236 2 Oak Grove Property XXXX
0.000 0 Xxxxx Xxxxx, XX Property MLML
2.238 0 Xxxxxxxx / Xxxxxxxxx Property MLML
2.239 2 Xxxxx Manor MHC Property MLML
2.24 2 Hidden Oaks Property MLML
2.241 2 Plainview Property MLML
2.242 2 Rockview Heights Property MLML
2.243 2 West Cloud Commons Property XXXX
0.000 0 Xxxxxxx Xxxxxxx Property MLML
2.245 2 Sunset Village Property MLML
2.246 2 Countryside (OK) Property MLML
2.247 2 Chelsea Property MLML
2.248 2 Xxxxxxx Courts Property MLML
2.249 2 El Lago II Property MLML
2.25 2 Xxxx Acres Property MLML
2.251 2 Shadow Mountain Property MLML
2.252 2 Pine Haven MHP Property MLML
2.253 2 Collingwood MHP Property MLML
2.254 2 Mountaintop Property MLML
2.255 2 Whispering Hills Property MLML
2.256 2 Mulberry Heights Property MLML
2.257 2 Zoppe's Property MLML
2.258 2 Shawnee Hills Property MLML
2.259 2 Pleasant Grove (NC) Property XXXX
0.00 0 Xxxx Xxxxxx Xxxxxxx Property MLML
2.261 2 Monroe Valley Property MLML
2.262 0 Xx Xxxxxx Xxxxxxxx XXXX
0.000 0 Xxxxxxxxx - XX Property MLML
2.264 2 Sherwood Acres Property MLML
2.265 2 Xxxx Ranch Property MLML
2.266 2 Glenview Property MLML
2.267 2 Xxxxx Hollow Property MLML
2.268 2 Audora Property MLML
2.269 2 Green Acres Property MLML
2.27 2 Sunset 77 Property MLML
2.271 2 Hidden Acres Property MLML
2.272 2 Park X'Xxxxxxx Property MLML
2.273 2 Sleepy Hollow Property MLML
2.274 0 Xxxxxxxx Xxxxxx Property MLML
3 1 Executive Hills Portfolio Loan Key
3.01 1 0000 Xxxx Xxxxxxx Property Key
3.02 1 Building C Property Key
3.03 1 Building D Property Key
3.04 1 0000 Xxxxxxx Xxxxxxxxx Property Key
3.05 1 Building 37 Property Key
3.06 1 Buildings 49 & 49A Property Key
3.07 1 Building A Property Key
3.08 1 Building 54 Property Key
3.09 1 El Monte Building Property Key
4 1 Peninsula Xxxxxxx Hills Loan CRF
5 1 U-Haul SAC 12 & 13 Loan MLML
5.01 1 U-Haul Center Hayden Road Property MLML
5.02 1 U-Haul Ctr Broward Property MLML
5.03 1 U-Haul Ctr Covina Property MLML
5.04 1 U-Haul Center Old Natl Hwy Property MLML
5.05 1 U-Haul Center Of Vacaville Property MLML
5.06 1 U-Haul Of Hyannis Property MLML
5.07 1 U-Haul Ct Of Tigard Property MLML
5.08 0 X-Xxxx Xxx Xx X Xxxxxxxx Xxxxx Property MLML
5.09 1 U-Haul Ctr Tulane Property MLML
5.1 1 U-Haul Xxxxx Blvd Property MLML
5.11 1 U-Haul Center Goldenrod Property MLML
5.12 1 U-Haul Storage Worcester Property MLML
5.13 1 U-Haul Mechanicsburg Property MLML
5.14 1 U-Haul Center Grissom Road Property MLML
5.15 0 X-Xxxx Xxxxxxx Xxxx Property MLML
5.16 1 U-Haul Ctr Savannah Property MLML
5.17 1 U-Haul Center I-10 West Property MLML
6 2 Towers at University Town Center Loan Key
7 1 The Georgia-Alabama Retail Portfolio Loan CRF
7.01 1 Metro Atlanta Comm Prop 8115 Property CRF
7.02 0 Xxxxxxx Xxxx Center Property CRF
7.03 1 Stone Mill Center Property CRF
7.04 1 Bouldercrest & 285 Property CRF
7.05 1 South Peachtree Center Property CRF
7.06 1 Xxxxxx Mill Center Property CRF
7.07 1 Skyview Center Property CRF
7.08 1 Six Flags Center Property CRF
7.09 1 Sylvan Property Property CRF
7.1 1 Flat Shoals Convenience Center Property CRF
7.11 0 Xxxxx Xxxxxxx Xxxxxx Property CRF
7.12 0 Xxxxx Xxxx & Xxxxxxx 000 Property CRF
7.13 1 Metro Atlanta Comm Prop 8159 Property CRF
7.14 1 Excell In 11 Property CRF
7.15 1 Hall Creek Center Property CRF
7.16 1 Annistown Center Property CRF
7.17 1 Xxxxxx Center Property CRF
7.18 1 Burnt Hickory Center Property CRF
7.19 1 Xxxxxx Center Property CRF
7.2 1 Excell In 14 Property CRF
7.21 0 Xxxxx Xxxxxx Xxxxxx Property CRF
7.22 0 Xxxxxxx 000 Xxxxxx Property CRF
7.23 1 Xxxxxx Chapel Center Property CRF
7.24 1 Excell In 16 Property CRF
7.25 0 Xxxx Xxxxxx Center Property CRF
7.26 1 Snapfinger Center Property CRF
7.27 1 Excell In 05 Property CRF
7.28 1 Xxxxxxx Xxxx Center Property CRF
7.29 1 Excell Out Town Properties Property CRF
7.3 1 Excell Out Town Properties Property CRF
7.31 1 Excell Out Town Properties Property CRF
7.32 1 Lakeridge Village Center Property CRF
7.33 1 Locust Grove Center Property CRF
7.34 1 Big A Center Property CRF
7.35 1 Highway 369 Center Property CRF
7.36 1 Excell In 07 Property CRF
7.37 1 Excell In 10 Property CRF
7.38 1 Excell In 12 Property CRF
7.39 1 Excell In 15 Property CRF
7.4 1 Noah's Ark Property CRF
7.41 0 Xxxxxxx Xxxxx Xxxxxx Xxxxxxxx XXX
0.00 0 Xxxxx Xxxxxxx Comm Prop 0040 Property CRF
7.43 1 North Georgia Comm Prop 0042 Property CRF
7.44 1 North Georgia Comm Prop 0039 Property CRF
7.45 1 North Georgia Comm Prop 0022 Property CRF
7.46 1 Excell In 03 Property CRF
7.47 1 Excell In 04 Property CRF
7.48 1 Mount Xxxxxx Property CRF
7.49 1 North Georgia Comm Prop 0029 Property CRF
7.5 1 Excell Out Town Properties Property CRF
7.51 1 Northwest Georgia Comm Prop 8769 Property CRF
7.52 1 Metro Atlanta Comm Prop 8165 Property CRF
7.53 1 Excell In 09 Property CRF
7.54 1 Metro Atlanta Comm Prop 8102 Property CRF
7.55 1 Metro Atlanta Comm Prop 0518 Property CRF
7.56 1 Northwest Georgia Comm Prop 8754 Property CRF
7.57 1 Excell In 13 Property CRF
7.58 1 Excell In 08 Property CRF
7.59 0 Xxxxxxxxx Xxxxxx Center Property CRF
7.6 1 Northwest Georgia Comm Prop 0058 Property CRF
7.61 1 Northwest Georgia Comm Prop 0051 Property CRF
7.62 1 Northwest Georgia Comm Prop 8785 Property CRF
8 1 Xxxxxxx Corporate Center I & II Loan Key
2 Xxxx Apartment Portfolio Crossed CRF
9 2 Park at Lakeside Apartments Loan CRF
10 2 Evergreen Pointe Apartments Loan CRF
11 2 Xxxxxxx Park Apartments Loan CRF
12 2 Skyline Village MHP Loan CRF
13 1 Hilltop Plaza Loan CRF
14 1 Lincoln Town Center Loan Key
15 1 Pride Drive Business Center Loan CRF
16 2 The Haven Apartments Loan MLML
17 1 Hollister Business Park Loan Key
18 1 DoubleTree Grand Junction Loan CRF
19 2 Xxxxxxxx Park Apartments Homes Loan CRF
20 1 The Lumberyard Shopping Center Loan CRF
21 2 Summer Crest Apartments Loan CRF
22 1 Galena Junction Loan Key
23 0 Xxxxxxxxxx Xxx Apartments Loan CRF
24 1 Capitol Shopping Center Loan MLML
25 1 Santa Clarita Plaza Loan MLML
26 1 Acworth Crossing Shopping Center Loan CRF
27 1 Sparks Mercantile Loan Key
28 1 Residence Inn Carlsbad Loan CRF
29 1 CVS Distribution Facility Loan MLML
30 1 Pacific Asian Plaza Loan MLML
31 1 Austell Wal-Mart Loan CRF
32 1 Edgewater in Denver Loan CRF
33 1 South Hills Plaza Loan CRF
34 2 Oakleigh Apartments Loan CRF
35 1 Bridgeway Tech Center I Loan MLML
36 1 Solita Soho Hotel Loan MLML
37 1 Legacy Oaks at Spring Hill Loan CRF
38 1 HCP Tranche II Loan CRF
38.01 1 Xxxxxx LTAC Property CRF
38.02 1 Southlake - Baylor Family Health Center Property CRF
39 1 Gladstone WI, NC, MO Loan CRF
39.01 1 Xxxxx Co Property CRF
39.02 1 Elster Electricity Property CRF
39.03 1 Workflow Mgmt Property CRF
40 1 Perceptive Software Building Loan Key
41 1 Raymour and Xxxxxxxx Showroom Loan Key
42 2 Stonebridge Apartments Loan CRF
43 1 Southridge Plaza Loan CRF
44 1 Celebration at Six Forks Loan CRF
45 2 Chadron Avenue Apartments Loan CRF
46 1 Alexander Village at Brier Creek Loan CRF
47 1 Hilton Garden Inn - Columbus Loan CRF
48 1 Portland Harbor Hotel Loan CRF
49 1 Mapleridge Shopping Center Loan CRF
50 1 Xxxxxx & Xxxxxxx Building Loan MLML
51 1 Lancaster Courtyard by Marriott Loan MLML
52 2 201 Xxxxxxxxxxxx Lofts Loan CRF
53 1 Xxxx Portfolio Loan CRF
53.01 1 00000 Xxxxxxxxx Xxxxxxx Property CRF
53.02 1 0000 X Xxx Xxxx Xxxxxxxxx Property CRF
53.03 1 4245 South Xxxxxx Property CRF
53.04 1 0000 XX 0000 Property CRF
53.05 1 0000 Xxxxxxxx Xx Property CRF
54 1 Interlochen Village Loan CRF
55 2 Plaza Apartments Loan CRF
56 2 PKL Multifamily Portfolio Loan CRF
56.01 2 Heritage Park Apartments Property CRF
56.02 2 North Road Townhomes Property CRF
56.03 2 Countryshire Townhomes Property CRF
56.04 2 Crystal Commons Property CRF
56.05 2 Heritage Park Townhomes Property CRF
57 2 Eagles Landing Apartments Loan CRF
58 1 Calabasas Self Storage Loan CRF
59 1 Corsica Square Loan Key
60 1 Federal Way Crossings II Loan MLML
61 1 Casino Self Storage - Moorpark Loan MLML
62 1 El Pueblito Shopping Center Loan MLML
63 1 Xxxxxxx'x Creek Crossing Loan MLML
64 1 Independence Park Drive MOB I & III Loan Key
65 0 Xxxx Xxxxxx Xxxxxx Loan CRF
66 2 Sterling MHP Loan CRF
67 1 Xxxxxx Industrial Loan CRF
68 2 Edge Lake Apartments Loan CRF
69 1 Holiday Inn Buffalo Niagra International Airport Loan CRF
70 2 Brooklyn Apartments Loan CRF
71 1 ShopKo Sandy, UT Loan Key
72 1 Oxnard Self Storage Loan Key
73 1 Bank of Xxxxxxx Tower Loan CRF
74 1 ShopKo Boise, ID Loan Key
75 2 Airway MHP Loan CRF
76 1 198 & 000 Xxxx Xxxxxx Loan MLML
77 1 Storage 2000 - Xxxxxxxx Loan CRF
78 1 Douglasville Day Center Loan CRF
79 1 Walgreens - Tarzana Loan CRF
80 1 Bandera Trails Center Loan CRF
81 2 Bennington Xxxxx Apartments Loan CRF
82 1 Panevino Italian Restaurant & Delicatessen Loan Key
83 1 Madison Self Storage Brookhaven Loan CRF
84 1 Storage 2000 - Spotsylvania Loan CRF
85 2 Cumberland Green Apartments Loan Key
86 1 Xxxxxx Xxxx Building Loan CRF
87 2 Sevilla Apartments Loan CRF
88 2 Pine Court Apartments III Loan CRF
89 1 Mooresville Town Square Loan CRF
90 1 Piano Works Building Loan CRF
91 1 Raleigh Eastgate Shopping Center Loan CRF
92 2 Kingswood Apartments Loan Key
93 1 JoAnn's Center Loan CRF
94 1 Staybridge Suites - Brownsville Loan CRF
95 1 Grandview Plaza Loan CRF
96 1 Walgreens - Folsom Loan CRF
97 1 Luxe at Xxxxxxxx Apartments Loan Key
98 1 Blue Family Holdings Loan Key
99 2 Timbercreek Apartments Loan Key
100 1 HK Systems Loan CRF
101 1 Pomona Shopping Center Loan CRF
102 2 0000 Xxx Xxxxxx Loan CRF
103 2 Regency Apartments - Xxxxxx City Loan CRF
104 1 Sequoia Plaza Simi Valley Loan CRF
105 2 Turtle Cove Apartments Loan CRF
106 1 CitiCentre Office Building Loan CRF
107 1 School Street Retail Loan CRF
108 1 221 North Brand Boulevard Loan CRF
109 1 535 X. Xxxxxx Loan CRF
110 2 Emerick Manor Apartments Loan CRF
111 1 Best Buy Loan CRF
112 0 Xxxx Xxxxxx Retail Loan CRF
112.01 1 0000 Xxxx Xxxxxx Retail Property CRF
112.02 1 00000 Xxxx Xxxx. Property CRF
112.03 1 0000 Xxxx Xxxxxx Retail Property CRF
113 1 000 Xxxxxxxxx Xxxxx Loan CRF
114 1 A Alpha Mini Storage Loan Key
115 2 Hunter's Ridge Apts Loan CRF
116 1 Fairfield Inn Charlotte Loan CRF
117 1 PKL Commercial Portfolio Loan CRF
117.01 1 Crystal Commons Office Property CRF
117.02 1 1901 Lac Deville Boulevard Property CRF
117.03 1 2101 Lac Deville Boulevard Property CRF
117.04 1 000 Xxxxxx Xxxxxx Property CRF
118 1 AEgis and Madison Loan Key
119 1 Whitemarsh Center Loan CRF
120 1 Ives Dairy Warehouse Loan CRF
000 0 Xxxxxx Xxxxxx Retail Loan XXX
000 0 Xxxx Xxxx - Xxxxxx Loan CRF
000 0 Xxxxx Xxxx Retail Loan CRF
124 1 Xxxx Drug - Hillsborough Loan CRF
125 1 Walgreens Xxxxxxxx City Loan MLML
126 1 CVS West Hempstead Loan MLML
127 1 0000 Xxxx Xxxxx Xxxxxx Loan MLML
128 1 Xxxxxxxx Marketplace Loan CRF
129 1 0000 Xxxxx Xxxxxxxx Xx. Retail Loan CRF
130 1 Deer Creek Xxxxx Buildings 4S and 7S Loan Key
131 1 Security Storage - North MacArthur Loan CRF
132 1 Storage 2000 - Xxxxx Loan CRF
133 1 Creekstone Village Shopping Center Loan XXXX
000 0 Xxxxxx Xxxxx Loan CRF
135 1 Shops at Vista del Bosque Loan CRF
136 1 Xxxxxx Plaza Loan CRF
137 1 Xxxxxxx St Apts Loan CRF
138 1 2247 North Milwaukee Loan CRF
139 1 Las Vegas Watersports Loan Key
140 1 Xxxxx Professional Center Loan Xxx
000 0 Xxxxxxxxx - Xxxx Xxxxx Loan CRF
142 1 0000 Xxxxxxx Xxx Retail Loan CRF
143 1 Bissonnet Retail Center Loan CRF
144 1 Auto Zone and Xxxxxxx Strip Loan Key
145 1 Lakepointe Office Loan CRF
146 1 Paramount Self Storage Loan Key
147 1 0000 Xxxx Xxxx Xxxx Loan CRF
148 2 Woodview Apartments Loan Key
149 1 FedEx Moline Loan CRF
150 1 Security Storage - Xxxxxx Loan CRF
000 0 Xxxxxxx Xxxxxx Apartments Loan CRF
152 2 1544 Placentia Ave. Apts. Loan CRF
153 1 XxXxxxxxx Place Loan Key
154 1 The Pointe at Xxxx Bridge Loan CRF
155 1 Shops at Airport Freeway Loan CRF
156 1 Encino Retail Loan CRF
157 1 St. Xxxxxxxx Square Shopping Center Loan Key
158 1 Security Storage -South Penn Loan CRF
159 2 South Land Park Apts Loan CRF
160 2 586 Xxxx St. Loan CRF
161 1 7111 & 0000 Xxxxxxx Xxx. Loan CRF
162 1 Xxxxxxxx Gallery Loan Key
163 1 Security Storage - Xxxxxx Loan CRF
164 1 2400 Bissonnet Loan CRF
165 2 Blackstone 222 Loan CRF
166 1 Security Storage - Memorial @ Santa Fe Loan CRF
167 1 Security Storage - North Penn Loan CRF
168 1 Townsgate Shopping Center Loan XXX
000 0 Xxxxxxxxxx Xxxxx Retail Loan CRF
170 1 Silverado Ranch Retail Loan CRF
171 2 Swansonian Apartments Loan CRF
172 1 Pinnacle Park Plaza Loan CRF
173 1 0000 Xxxxx Xxx Industrial Loan CRF
174 1 Riverdale Retail Loan CRF
175 1 Xxxxxx Commons Retail Loan CRF
176 1 Lowes Ground Lease Loan CRF
177 1 Cobblestone Square Loan CRF
178 1 Kimmel Shoppes Loan CRF
179 1 PetCo - Modesto Loan CRF
180 2 Skyridge MHP Loan CRF
181 1 Boca Raton Athletic Club Plaza Loan CRF
182 1 Commerce Park Center Loan CRF
183 1 Apublix Self Storage Loan CRF
184 1 Winder Georgia Retail Loan CRF
185 2 Xxxxxxx Mobile Manor Loan CRF
186 1 Lake Sahara Office Building Loan Key
187 1 Jewel Plaza Loan CRF
188 1 Midtown Phoenix Shopping Center Loan CRF
189 1 0000 Xxxxxxxx Xxxx Retail Loan CRF
190 2 El Xxxxx MCH Loan CRF
191 1 Action Apartments Loan CRF
192 1 Trenton Crossroads Loan CRF
193 2 Saticoy Street Apartments Loan CRF
194 1 000 Xxxx Xxxx Xx Xxxxxx Loan CRF
195 1 Machesney Park Loan CRF
196 1 Xxxxxx Parkway Office Loan CRF
197 2 Marengo Apartments Loan CRF
198 2 000 Xxxxxxxx Xxx. Loan CRF
199 1 1400 Edgewater Apartments Loan CRF
200 1 Xxxxxx Plaza Conroe Loan CRF
201 2 Twin Oaks Loan CRF
202 1 Xxxxxxx Medical Office Loan CRF
203 2 Bear Creek Villas Loan CRF
204 1 State Farm Building Loan CRF
205 1 Gateway Office Plaza Loan CRF
206 1 Crossover Mini Storage Loan CRF
207 1 Xxxxxxxx Creek Inline Retail Loan XXX
000 0 Xxxxxxxxxxx Xxxxxxxx Xxxx Loan CRF
209 2 Red Curb - 1558 & 1643 206th Loan CRF
210 2 1607 Greenfield Apts Loan CRF
211 1 2517 Santa Fe Industrial Loan CRF
212 1 Alamitos Plaza Loan CRF
213 2 000 Xxxxxxx Xxxxxx Loan CRF
214 2 Red Curb - 1527 204th Loan CRF
215 2 Red Curb - 219th Loan CRF
216 2 Batavia Apartments Loan CRF
217 2 Red Curb - 1531 204th Loan CRF
218 2 0000 Xxxx Xxxxxxxx Xxxxxxxxx Loan CRF
Property
Loan # Type Street Address City
------- -------------------- ------------------------------------------------------------ --------------------
1 Multifamily Various Various
1.01 Multifamily 00000 Xxxxxxxxx 0xx Xxxxxx Xxxxx
1.02 Multifamily 00000 Xxxxxxxxx 00xx Xxxxxxx Xxxxxx Xxxxx
1.03 Multifamily 17825-18985 Xxxxxx Avenue Jupiter
1.04 Multifamily 00000 XX 00xx Xxxxxx Hialeah
1.05 Multifamily 00000 XX 000xx Xxxxxx Xxxxxx Xxx
1.06 Multifamily 0000 Xxxxx Xxxx Decatur
1.07 Multifamily 0000 Xxxxxxxx Xxxxx Xxxxxxxxxxxx
1.08 Multifamily 0000 Xxxxxxx Xxxx Xxxxxxxxxxxx
1.09 Multifamily 0000 Xxxxxxxxx Xxxxxxxxx Xxxxx Stuart
1.1 Multifamily 7693 Xxxxxx Xxxx Sarasota
1.11 Multifamily 00000 Xxxxx Xxxx Jacksonville
1.12 Multifamily 0000 Xxxxxxxxx Xxxxx Elkhart
1.13 Multifamily 0000 Xxxxxx Xxxx Xxxx Xxxx Xxxxx
1.14 Multifamily 0000 Xxxxxxx Xxxxx Xxxxxxxxxxxx
1.15 Multifamily 0000 Xxxxxxxxx Xxxxxxx Xxxxxxx
1.16 Multifamily 000-X Xxxxxxxxx Xxxxx Xxxxxxxxx
1.17 Multifamily 000 Xxxxxxxxx Xxxx Xxxxxxxxxxx
1.18 Multifamily 000 Xxxx Xxxxxx Xxxx Coraopolis
1.19 Multifamily 000 Xxxxxx Xxxxx Xxxxxxxxx
1.2 Multifamily 0000 X Xxxxxxxxx Xxxxxx Cartersville
1.21 Multifamily 0000 Xxxxxxxxx Xxx Xxxx Xxxxxxx
1.22 Multifamily 0000 Xxxxxxxxx Xxxxx Indianapolis
1.23 Multifamily 0000 Xxxxxxxxxxx Xxxx Gahanna
1.24 Multifamily 0000 Xxxxxx Xxx Xxxx Xxxxxxxx
1.25 Multifamily 000 Xxxxxxx Xxxx Xxxxx Xxxxxxxxxxxx
1.26 Multifamily 0000 Xxxxxx Xxxxx Xxxxxx
1.27 Multifamily 000 Xxxxxxxxx Xxxxx Xxxxxxxx
1.28 Multifamily 00000 Xxxx Xxxxxxx Xxxxx Xxxx Xxxxx
1.29 Multifamily 00000 Xxxxxxx Xxxx Xxxxx Xxxxxxxxxxxx
1.3 Multifamily 000 Xxxxxxxxx Xxxxx Xxxxxxx
1.31 Multifamily 00000 Xxxxxxxxx Xxxx XX Xxxx Xxxxx
1.32 Multifamily 00000 Xxxxxxxx Xxxxx Xxxx Xxxxx
1.33 Multifamily 0000 Xxxxx Xxxx Wooster
1.34 Multifamily 0000 Xxxxxxxxxx Xxxx Xxxxxxxxxxx
1.35 Multifamily 0000 Xxxxxxxx Xxxx Xxxxxxxxxxxx
1.36 Multifamily 0000 Xxxxxxxxx Xxxx Xxxxxxxxxxx
1.37 Multifamily 000 Xxxxx Xxxxxxx Stone Mountain
1.38 Multifamily 0000 Xxxxxxxxx Xxxx Xxxxxx
1.39 Multifamily 000 Xxxxxxxx Xxxxx Xxxxxxxxx
1.4 Multifamily 000 Xxxxxxxxx Xxxxxx Thomasville
1.41 Multifamily 0000 Xx.Xxxxxx Xxxxxxx Xxxx Xxxxxxxxxx
1.42 Multifamily 0000 Xxxxxx Xxxxxx Xxxxxxxxxx
1.43 Multifamily 000 Xxxx Xxxx Xxx Dayton
1.44 Multifamily 0000 Xxxxxx Xxxxx Columbus
1.45 Multifamily 000 Xxxxxx Xxxxx Augusta
1.46 Multifamily 000 Xx. Xxxxx Xxxx Eustis
1.47 Multifamily 0000 Xxxxxx Xxxx Xxxxx Xxxxxx Xxxx
1.48 Multifamily 000 Xxxxxxxxx Xxxxxx Warner Robins
1.49 Multifamily 000 Xxxx Xxxx Xxxxx XX Xxxxxxx
1.5 Multifamily 0000 Xxxxxxxxx Xxxxx Xx. Oglethorpe
1.51 Multifamily 0 Xxxxxxxx Xxxxx Xxxxxxxx
1.52 Multifamily 0000 Xxxxxx Xxxxxx Savannah
1.53 Multifamily 000 Xxxxxxxxxxx Xxxxx Xxxxxxxx
1.54 Multifamily 0000 Xxxxx Xxxxx Xxxxx Xxxx Xxxxxxxxxx
1.55 Multifamily 0000 Xxxxxxxxxx Xxxxx Columbus
1.56 Multifamily 000 Xxxxx Xxxxxxxxx-Xxxxxxxxxx Xxxx Xxxxxxxxx
1.57 Multifamily 0000 Xxxxxxxxx 00xx Xxxxxx Ocala
1.58 Multifamily 0000 Xxxxx Xxxx Xxxxxx Bowling Green
1.59 Multifamily 000 Xxxxxxx Xxxxxx Xxxxxxxx
1.6 Multifamily 0000 Xxxxxx Xxxxx Dayton
1.61 Multifamily 0000 Xxxxxxx Xxxxxxx Xxxx Athens
1.62 Multifamily 000 Xxxxxx Xxxxxxx Xxxxx Xxxxxxxxx
1.63 Multifamily 0000 Xxxxxx Xxxxx Xxxxxxxx Xxxxx
1.64 Multifamily 0000 Xxxx Xxxx Xxxxxxxx
1.65 Multifamily 000 Xxxxxxx Xxxxxxxxx Xxxxxxxxxxx
1.66 Multifamily 000 Xxxxxxxxx Xxxx Xxxxxxxxxxxx
1.67 Multifamily 000 Xxxxxxxxx Xxxxx Xxxxxxxx City
1.68 Multifamily 000 Xxxxxx Xxxx Xxxxxxxx
1.69 Multifamily 000 Xxxxxxxxx Xxxxx Xxxxxxxxxx
1.7 Multifamily 00000 XX 00xx Xxxxx Belleview
1.71 Multifamily 0000 Xxxxxxx Xxxxx Xxxxxxx
1.72 Multifamily 0000 Xxxxxxx Xxxxx Englewood
1.73 Multifamily 00 Xxxxxxxx Xxxxx Xxxxxx
2 Manufactured Housing Various Various
2 Manufactured Housing Various Various
2 Manufactured Housing Various Various
2.001 Manufactured Housing 00000 Xxxxx Xxxxxxxxx Xxxxxxxxxxxx
2.002 Manufactured Housing 0000 Xxxxxxxxxxxx Xxxx Xxxxxxx
2.003 Manufactured Housing 00000 Xxxxx Xxxxxxxxx Xxxxxxxxxxxx
2.004 Manufactured Housing 00000 XX 0xx Xxxxx Davie
2.005 Manufactured Housing 0000 Xxxxxx Xxxx Xxxxx Kissimmee
2.006 Manufactured Housing 000 Xxxx Xxxx Xxxxxxxxx
2.007 Manufactured Housing 000 Xxxxx Xxxxxxx 00 Xxxxx Xxxx Xxxx
2.008 Manufactured Housing 0000 Xxxx 00xx Xxxxxx Xxxxxxxxx
2.009 Manufactured Housing 0000 Xxxx Xxxxxxx Xxxx Xxxx Xxxxxxx
2.01 Manufactured Housing 0000 Xxxxxx Xxxxxxx Xxxx Xxxxxxxx
2.011 Manufactured Housing 0000 Xxxxxx Xxxxx Xxxxxx
2.012 Manufactured Housing 0000 Xxxxx 0000 Xxxx Xxxx Xxxx Xxxx
2.013 Manufactured Housing 0000 Xxxxx Xxxxx Xxxx Acworth
2.014 Manufactured Housing 000 Xxxxxxxx Xxxxxx Xxxxxx
2.015 Manufactured Housing 00000 Xxxx 00xx Xxxxxx Xxxxxx
2.016 Manufactured Housing 000 Xxxx Xxxxx Xxxxxxxx
2.017 Manufactured Housing 00000 Xxxxx Xxxxxxxxxxxx Xxxxx Xxxxx
2.018 Manufactured Housing 000 Xxxxxx Xxxx Xxxxx Xxxxx Xxxxxxxx
2.019 Manufactured Housing 7330 Lands End Lane Liverpool
2.02 Manufactured Housing 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxxx
2.021 Manufactured Housing 0000 Xxxxxxx Xxxx Xxxxx Xxxx Xxxxxx Xxxx
2.022 Manufactured Housing 0000 Xxxxxxx 00 Xxxxxxxxx
2.023 Manufactured Housing 0000 Xxxxxxxx Xxxx Xxxxxxx
2.024 Manufactured Housing 00 Xxxxxx Xxxxx Xxxxxxxxxxxx
2.025 Manufactured Housing 000 Xxxxxxxxx Xxxxxxx Xxxxxxxxxxx
2.026 Manufactured Housing 0000 Xxxx Xxxxxxxxxxx Xxxxx Xxxxx Xxxxxxxxxx
2.027 Manufactured Housing 0000 Xxxx 00xx Xxxxxx Xxxxxxxx
2.028 Manufactured Housing 00000 Xxxxx Xxxxxx Xxxx Golden
2.029 Manufactured Housing 000 Xxxxxxxxxx Xxxx Xxxx Xxxxxxxx
2.03 Manufactured Housing 0000 Xxxxxxxxx Xxxx Xxxxxxx
2.031 Manufactured Housing 0000 Xxxxx 0000 Xxxx Xxxx Jordan
2.032 Manufactured Housing 0000 X Xxxxxx Xxxxxxx
2.033 Manufactured Housing 0000 Xxxxxx Xxxx Xxxxx
2.034 Manufactured Housing 0 Xxxxxxxxxx Xxxxx Xxxxxx
2.035 Manufactured Housing 00000 Xxxxxxx Xxxx Xxxxxx
2.036 Manufactured Housing 0000 Xxxxxxxxxx Xxxx Xxxxx Xxxxx
2.037 Manufactured Housing 0000 Xxxxxx Xxxxx Xxx Xxxxxx
2.038 Manufactured Housing 0000 Xxxx Xxxxxxx Xxxxx Xxxxxxxx
2.039 Manufactured Housing 0000 Xxxxx Xxxx Xxxxx Xxxxxx
2.04 Manufactured Housing 0000 X XX Xxxxxxx 00 Xxxxxxxxxx
2.041 Manufactured Housing 148 Broadmore Goshen
2.042 Manufactured Housing 0000 Xxxxxxxxx 00xx Xxxxxx Xxxxxxxxxxx
2.043 Manufactured Housing 0000 Xxxxx Xxxxxx Corpus Christi
2.044 Manufactured Housing 0000 Xxxxxxx 00 Xxxxx Xxxxx Xxxx
2.045 Manufactured Housing 0000 000xx Xxxxxx Xxxxxxxxxxxx
2.046 Manufactured Housing 0000 Xxxx Xxxx Xxxxx Xxxx Xxxx Xxxxxx Xxxx
2.047 Manufactured Housing 0000 Xxxx Xxxxxx Lawrence
2.048 Manufactured Housing 0000 Xxxxxx Xxxx Xxxxxx
2.049 Manufactured Housing 0000 00xx Xxxxxx Xxxxxx
2.05 Manufactured Housing 0000 Xxxxxx Xxxxxxx Xxxxxxxxxxxx
2.051 Manufactured Housing 0000 Xxxxx 0000 Xxxx Xxxxxxxxx
2.052 Manufactured Housing 0 Xxxxxxxx Xxxx Xxxxxxxxxxxxx
2.053 Manufactured Housing 0000 Xxxxxxxxxx Xxxxxxx Xxxxxxxxxx
2.054 Manufactured Housing 000 00xx Xxxxxx Xxxxxx
2.055 Manufactured Housing 0000 Xxxxxx Xxxx Xxxxxxx
2.056 Manufactured Housing 0000 Xxxxxx Xxxxx Xxxxxxxxx Xxxxxxxxx
2.057 Manufactured Housing 0000 Xxxxx Xxxxxxx 00 Xxxxxxxx View
2.058 Manufactured Housing 0000 Xxxxxx Xxxx Xxxx Xxxx Xxxxx
2.059 Manufactured Housing 000 Xxxxx 00xx Xxxxxx Xxxxxxx
2.06 Manufactured Housing 0000 Xxxxxxxx Xxxx Xxxxxxxxx Xxxx Xxxxx
2.061 Manufactured Housing 0000 Xxxxx Xxxx 00xx Xxxxxx Xxxxxxxx Xxxx
2.062 Manufactured Housing 0000 Xxxxxxx Xxxxxxxxx Altoona
2.063 Manufactured Housing 0000 Xxxx Xxxxxx Xxxxx Xxxxx Magna
2.064 Manufactured Housing 36 Hopf Drive Nanuet
2.065 Manufactured Housing 0000 Xxxx Xxxxx Xxxxx Xxxxxxxxx
2.066 Manufactured Housing 0000 Xxxxxxx 000 Xxxxxxx Xxxxx
2.067 Manufactured Housing 0000 Xxxx 000 Xxxxx Xxxxxxxxxx
2.068 Manufactured Housing 0000 Xxxxx Xxxxx Xxxxx Raleigh
2.069 Manufactured Housing 0000 Xxxx Xxxxxx Xxxxxx Goshen
2.07 Manufactured Housing 0000 Xxxx 00xx Xxxxxx Arvada
2.071 Manufactured Housing 0000 Xxxxxx Xxxx Xxxx Xxxxxxxxxx
2.072 Manufactured Housing 0000 Xxxxxx Xxxx 00 Xxxxxxx
2.073 Manufactured Housing 0000 Xxxxx Xxxxxxxxxx Xxxxxxxxx Xxxxx
2.074 Manufactured Housing 0000 Xxxxxxxxxx Xxxxxx City
2.075 Manufactured Housing 0000 Xxxxxx Xxxxx Xxxxx Xxxxx Xxxx
2.076 Manufactured Housing 0000 Xxxxxxx Xxxx Xxxx Jordan
2.077 Manufactured Housing 000 Xxxxxxxx Xxxxxxx Xxxxxxxxxx
2.078 Manufactured Housing 0000 Xxxxxx Xxxx Xxxxxxxx
2.079 Manufactured Housing 0000 Xxxxxxx 00 Xxxx Xxxxxxxxxxxx
2.08 Manufactured Housing 00 Xxxxxxxx Xxxxxx Xxxxxx
2.081 Manufactured Housing 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxx
2.082 Manufactured Housing 0000 Xxxx Xxxxx Xxxx Xxx Xxxxxx
2.083 Manufactured Housing 000 Xxxx Xxxxxxxxx Xxxx Xxxxxxx
2.084 Manufactured Housing 000 Xxxxxx Xxxxx Xxxxxxxxxxxx
2.085 Manufactured Housing 0000 00xx Xxxxxx Xxxxx
2.086 Manufactured Housing 0000 Xxxxx Xxxx Xxxxxxx
2.087 Manufactured Housing 0000 Xxxx Xxxxxx Xxx Xxxxxx
2.088 Manufactured Housing 000 Xxxxxx Xxxx Xxxxxxx
2.089 Manufactured Housing 000 X. Xxxxxx Xxxx Xxxx Xxx 000 Xxx Xxxxxx
2.09 Manufactured Housing 0000 Xxxxxxxxx Xxxxx Xxxxxx
2.091 Manufactured Housing 0000 Xxxxxxx 000X Xxxxxxxxxx
2.092 Manufactured Housing 000 Xx Xxxxxx Xxxx Xxxxxxxx
2.093 Manufactured Housing 000 Xxxx 000 Xxxxx Xxxxx
2.094 Manufactured Housing 0000 Xxxx 00xx Xxxxxx Xxxxxxxxx
2.095 Manufactured Housing 0000 Xxxx Road Dubuque
2.096 Manufactured Housing 0000 000xx Xxxxxx Xxxxx Xxxx Xxxxx
2.097 Manufactured Housing 000 Xxxxxxx Xxxx Xxxxxxxxxx
2.098 Manufactured Housing 000 Xxxxx Xxxx Xxxxxx Xxxxxxxx
2.099 Manufactured Housing 0000 Xxxxx Xxxxxxxx Xxxxxx
2.1 Manufactured Housing 00-0 Xxxxxx Xxxxxx Xxxx Xxxxxx
2.101 Manufactured Housing 0000 0xx Xxxxxx Xxxxxxx
2.102 Manufactured Housing 0000 Xxxxx Xxxxxxx Xxxxxx Davenport
2.103 Manufactured Housing 000 Xxxxxxxxx Xxxxx Xxxxxxx Xxxxx
2.104 Manufactured Housing 00000 Xxxxx Xxxxxxx Xxxxxx Xxxxxx Xxxx
2.105 Manufactured Housing 0000 Xxxxxxx Xxxxx Xxx Xxxxxx
2.106 Manufactured Housing 00 Xxxx Xxxxx Xxxxx Xxxxx Tooele
2.107 Manufactured Housing 000 Xxxxxxxxxx Xxxxx Xxxxx
2.108 Manufactured Housing 0000 Xxx Xxxxxxxxxxx Xxxx Corpus Christi
2.109 Manufactured Housing 000 Xxxxx Xxxxxxx Xxxx Coppell
2.11 Manufactured Housing 0000 Xxxxxxxxx Xxxxx Xxxx Xxxxxx
2.111 Manufactured Housing 00000 Xxxx Xxxxxxx 00 Xxxxxx
2.112 Manufactured Housing 0000 Xxxxx Xxxxxx Xxxxxx Xxxxx Xxxx
2.113 Manufactured Housing 0000 Xxxx Xxxxxxx Xxx Xxxx Xxxxxx Xxxx
2.114 Manufactured Housing 0000 XX 00xx Xxxxxx Xxxxxxxxxxx
2.115 Manufactured Housing 0000 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx
2.116 Manufactured Housing 0 Xxxx Xxxx Xxxxx Xxxxx
2.117 Manufactured Housing 000 Xxxxx Xxxxx Xxxx Xxxxxxxxxx
2.118 Manufactured Housing 000 Xxxxx Xxxx Xxxxxxxx
2.119 Manufactured Housing 0000 Xxxxx Xxxxxxx Xxxxxxxxx Xxxxxx
2.12 Manufactured Housing 0000 Xxxxxxxxx Xxxx Xxxxxxx
2.121 Manufactured Housing 00000 Xxxxx Xxxxx Xx Xxxx
2.122 Manufactured Housing 0000 Xxxxxxxx Xxxxxx Xxxxxxxx
2.123 Manufactured Housing 000 Xxxx Xxxxx Xxxxx Keller
2.124 Manufactured Housing 0000 Xxxxxx Xxxx Tyler
2.125 Manufactured Housing 0000 Xxxxx Xxxx Xxxx Xxxx Xxxxxx
2.126 Manufactured Housing 0000 000xx Xxxxxx Xxxxxxxxxxxx
2.127 Manufactured Housing 000 Xxxx Xxxxxx Winter Haven
2.128 Manufactured Housing 0000 Xxxxx Xxxxxxx Xxxxxx Pueblo
2.129 Manufactured Housing 000 Xxxx Xxxx Xxxxxxxxxx
2.13 Manufactured Housing 0000 Xxxxxxx Xxxxx Xxxxx
2.131 Manufactured Housing 0000 Xxxx XX Xxxxxxx 50 O'Fallon
2.132 Manufactured Housing 0000 Xxxxxxx Xxxxx DeSoto
2.133 Manufactured Housing 0000 Xxxxx Xxxxxxx Xxx Cheyenne
2.134 Manufactured Housing 0000 Xxxx Xxxxxxxx Xxxx Xxxxxxx
2.135 Manufactured Housing 0000 X. Xxxxx Xxxxx Xxxx Xxxxxxxxxx
2.136 Manufactured Housing 000 Xxxxxx Xxxx Xxxxxxxx
2.137 Manufactured Housing 0000 Xxxxx Xxxxx Xxxxx Xxxx
2.138 Manufactured Housing 0000 XX 00xx Xxxxxx Xxxxxxxx Xxxx
2.139 Manufactured Housing 00000 Xxxxxxx Xxxx Xxxxxx
2.14 Manufactured Housing 0000 Xxxxxxxx Xxxxx XX Xxxxx Xxxxxx
2.141 Manufactured Housing 000 Xxxxxxx Xxxxx Xxxxxxxxxx Haven
2.142 Manufactured Housing 0000 Xxxxx Xxxxx Imperial
2.143 Manufactured Housing 00 Xxxx Xxxxxx Xxxxx Xxxxxxxxxx
2.144 Manufactured Housing 0000 Xxxxxxxx Xxxx Xxxxxxx
2.145 Manufactured Housing 000 Xxxx Xxxxx Xxxxxx Aledo
2.146 Manufactured Housing 000 Xxxxxxxx Xxxxxx Xxxxx Xxxxx
2.147 Manufactured Housing 0000 Xxxxxxx Xxxx Xxxx Xxxxxxxxxx
2.148 Manufactured Housing 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxxx
2.149 Manufactured Housing 0000 Xxxx Xxxxxxxxxxx Xxxx DeSoto
2.15 Manufactured Housing 0000 000xx Xxxxxx Xxxxxxxxxxxx
2.151 Manufactured Housing 0000 Xxxx XxxXxxxxx Xxxx Xxxxxxx
2.152 Manufactured Housing 0 Xxxx Xxxxxx Xxxxxxxxxxxxxxx
2.153 Manufactured Housing 000 Xxxxxxx Xxxxx Berwick
2.154 Manufactured Housing 0000 Xxxx Xxxxxx Xxxx Xxxxxxxx
2.155 Manufactured Housing 0000 Xxx Xxxxx Xxxxxxx Xxxx Pueblo
2.156 Manufactured Housing 0000 Xxxxx Xxxxxxx Xxxx Xxxxxxxx Xxxx
2.157 Manufactured Housing 0000 Xxxxx Xxxxxxx Xxxxxxx
2.158 Manufactured Housing 00000 XX Xxxxxxx 000 Tyler
2.159 Manufactured Housing 00000 Xxxxxxx Xxxx Xxxxxx
2.16 Manufactured Housing 000 Xxxx Xxxx Xxxxxxx
0.000 Xxxxxxxxxxxx Housing 0000 Xxxxxxxx Xxx Xxxxxxxxxxxx
2.162 Manufactured Housing 0000 Xxxxx 0xx Xxxxxx Laramie
2.163 Manufactured Housing 0000 Xxxxxxxxx Xxxx Xxxxxxxxx
2.164 Manufactured Housing 000 Xxxx Xxxxxxx Xxxx Cheyenne
2.165 Manufactured Housing 0000 Xxxxxxxxx Xxxxx Birch Run
2.166 Manufactured Housing 0000 Xxxx Xxxxx Xxxxxx Xxxxxxx
2.167 Manufactured Housing 000 Xxxx Xxxxxx Xxxx Xxxx Xxxxxxx
2.168 Manufactured Housing 000 Xxxxxxx Xxxxx Xxxxx
2.169 Manufactured Housing 000 Xxxx Xxxxx Xxxxxx Temple
2.17 Manufactured Housing 00 Xxxxxxx Xxxxxx Xxxxxxxx
2.171 Manufactured Housing 0000 Xxxxx Xxxxxxx Xxxx DeSoto
2.172 Manufactured Housing 0000 XX 00xx Xxxxxx Xxxxxxxx Xxxx
2.173 Manufactured Housing 000 Xxxxx Xxxx Xxxx Xxxx Xxxxxx
2.174 Manufactured Housing 0000 Xxxxxx Xxxxxx Xxxx Xxxxx
2.175 Manufactured Housing 000 0xx Xxxxxx Xxxxx
2.176 Manufactured Housing 0000 Xxxxx XxxXxxxxx Xxxxxxxxx Xxxxxxxx Xxxx
2.177 Manufactured Housing 00000 Xxxxxxxx Xxxx Xxxxxx
2.178 Manufactured Housing 0000 Xxxxxx Xxxxx Xxxxxxxxx Xxxxxxxxx
2.179 Manufactured Housing One Sequoia Drive Casper
2.18 Manufactured Housing 0000 X. Xxxxxxxx Xxxxxxx
2.181 Manufactured Housing 000 Xxxxx Xxxx Xxxxxxxxx
2.182 Manufactured Housing 0000 Xxxx Xxxxxxxx Xxxxx Browns Summit
2.183 Manufactured Housing 00 Xxxxxx Xxxxx Ephrata
2.184 Manufactured Housing 000 Xxxxxx Xxxx Xxxxxxxxx
2.185 Manufactured Housing 0000 Xxxxxxxx Xxx Xxxxxx Xxxxxxx
2.186 Manufactured Housing 0000 Xxxx Xxxxx Xxxx Xxxxxxxxxx
2.187 Manufactured Housing 0000 Xxxxxxxxx Xxxx Xxxxxxxxxxxxxx
2.188 Manufactured Housing 00000 XX 00xx Xxxxxx Choctaw
2.189 Manufactured Housing 0000 Xxxxxxx Xxxx Xxxxxx
2.19 Manufactured Housing 000 Xxxxx Xxxxxx Xxxxxx
2.191 Manufactured Housing 00000 000xx Xxxxxx Xxxxxxxxx
2.192 Manufactured Housing 00 Xxx Xxxxxxx Xxxxx Xxxxxx
2.193 Manufactured Housing 0000 X. 00xx Xxxxxx Xxxxx Xxxxxx
2.194 Manufactured Housing 000 Xxxxx Xxxxxx Xxxxxxxx
2.195 Manufactured Housing 000 Xxxx 00xx Xxxxxx X Xxxx Xxxx
2.196 Manufactured Housing 0000 Xxxx Xxxxxxxx Salina
2.197 Manufactured Housing 0000 Xxxxxx Xxxxxxxxx Xxxx Xxxx Xxxxx
2.198 Manufactured Housing 0000 Xxxxxxxxxxx Xxxx Xxxx
2.199 Manufactured Housing 0000 Xxxxx Xxxxxxx Xxxxxxx Xxxxxxxx
2.2 Manufactured Housing 0000 Xxxxxxxxx Xxxx Casper
2.201 Manufactured Housing 0000 Xxxx 0xx Xxxxxx Xxxxxxxxxx
2.202 Manufactured Housing 0000 Xxxxxxx 0 Xxxxxxxx Xxxx
2.203 Manufactured Housing 0000 Xxxx 0xx Xxxxxx Xxxxxxxxxxxx
2.204 Manufactured Housing 0000 Xxxx Xxxx Xxxxx Xxxx Xxxxx Xxxxxxx
2.205 Manufactured Housing 0000 Xxxxxxx Xxxx Xxxxxxxx Xxxx
2.206 Manufactured Housing 0000 Xxx 00 Xxxxxx
2.207 Manufactured Housing 000 Xxxxx Xxxxxxxxx Xxxx Xxxxxxxxx
2.208 Manufactured Housing 0000 Xxxxxxxx Xxxxxx Xxxxxxxx
2.209 Manufactured Housing 0000 Xxxxxxxxxxx Xxxxxx Pocatello
2.21 Manufactured Housing 000 Xxxxx Xxxxxxxx Xxxxxxxx
2.211 Manufactured Housing 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxx Xxxx
2.212 Manufactured Housing 0000 Xxxxx Xxxxxxxxx Xxxx Xxxxxxxxxxxx
2.213 Manufactured Housing 000 Xxxxxx Xxxxxx Xxxxxxxxxx
2.214 Manufactured Housing 0000 Xxxxxxx 000X Xxxxxxxxxx
2.215 Manufactured Housing 0000 Xxxxxx Xxxxxx Xxxxxxxx
2.216 Manufactured Housing 0000 Xxxxxxxxx Xxxxx Xxxx Topeka
2.217 Manufactured Housing 00000 Xxxxxxx Xxxx Xxxxxx
2.218 Manufactured Housing 0000 Xxxxxx Xxxx Xxxx Xxxxxxxxxxxx
2.219 Manufactured Housing 0000 Xxx Xxxx Xxxxxx Xxxx Xxxxx
2.22 Manufactured Housing 000 X Xxxxxxxxx Xxxx Xxxxxx Xxxxxxx
2.221 Manufactured Housing 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxxx
2.222 Manufactured Housing 000 Xxxx 00xx Xxxxxx Xxxxx Xxxxxxx
2.223 Manufactured Housing 0000 Xxxx Xxxxxxxx Xxxxx Xxxx Xxxxxx Xxxx
2.224 Manufactured Housing 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxxxxx
2.225 Manufactured Housing 0000 XXX Xxxx 323 Tyler
2.226 Manufactured Housing 0000 Xxxx 0000 Xxxxx Xxxx Xxxxxx Xxxx
2.227 Manufactured Housing 000 Xxxxx Xxxx Xxxxxxxx Xxxxxxx
2.228 Manufactured Housing 000 Xxxxx Xxxxxx Xxxxx Casper
2.229 Manufactured Housing 0000 XxXxxx Xxxxxx Cheyenne
2.23 Manufactured Housing 000 Xxxxx Xxxxx Xxxxxxxxxx
2.231 Manufactured Housing 0000 Xxxxx Xxxxxx Xxxxxxx
2.232 Manufactured Housing 0000 Xxxxxxxxxxxx Xxxxxx Xxxxxxxxxxxx
2.233 Manufactured Housing 0000 Xxxxx Xxxxxx Xxxxxxx Xxxxx Xxxxxxx
2.234 Manufactured Housing 00 Xxxxxxx Xxxx Tunkhannock
2.235 Manufactured Housing 75 Xxxxxx Xxxx Ephrata
2.236 Manufactured Housing 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxx
2.237 Manufactured Housing 000 Xxxxx Xxxxx Salina
2.238 Manufactured Housing 000 Xxxxxxxx Xxxxxxxxxx
2.239 Manufactured Housing 00 Xxxxx Xxxxxx Xxxxxx
2.24 Manufactured Housing 0000 Xxxx Xxx Xxxx Xxxx Xxxxx
2.241 Manufactured Housing 0000 Xxxxxx Xxxxx Casper
2.242 Manufactured Housing 000 Xxxxxxxx Xxxx Xxxxxx
2.243 Manufactured Housing 0000 Xxxx Xxxxx Xxxxxx Salina
2.244 Manufactured Housing 0000 Xxxxxxxxxx Xxxx Xxxxxxxxxx
2.245 Manufactured Housing 0000 Xxx Xxxxxxx Xxxx Xxxx Xxxxxxxxxxx
2.246 Manufactured Housing 0000 Xxxxx Xxxxxxx Xxxxxxxxxx
2.247 Manufactured Housing 000 Xxxxx Xxxxxx Xxxxxx Xxxxx
2.248 Manufactured Housing 0 Xxxxx Xxxxxx Xxxxx Xxxxx
2.249 Manufactured Housing 0000 Xxxxxx Xxxxxx Xxxx Xxxxx
2.25 Manufactured Housing 000 Xxxx 00xx Xxxxxx Xxxxx Xxxxxxx
2.251 Manufactured Housing 1601 EFM 1417 Xxxxxxx
2.252 Manufactured Housing 000 Xxxx Xxxxx Xxxxxx Blossvale
2.253 Manufactured Housing 000 Xxxxxxxx Xxxx Xxxxxxxxxx
2.254 Manufactured Housing 00 Xxxxxxxxxxx Xxxx Narvon
2.255 Manufactured Housing 000 Xxxx 0xx Xxxxxx Xxxx Xxxxxx
2.256 Manufactured Housing 0000 Xxxxxxxxx Xxxxxx Xxxx Xxxxx
2.257 Manufactured Housing 0000 Xxxxxxx 000X Xxxxxxxxxx
2.258 Manufactured Housing 0000 XX 00xx Xxxxxx Xxxxxx
2.259 Manufactured Housing 0000 Xxxxxxx-Xxxxxxxx Xxxx Fuquay-Varina
2.26 Manufactured Housing 0000 Xxxx Xxx Xxxxxx Xxxxxxxxx
2.261 Manufactured Housing 00 Xxx Xxxxx Xxxx Xxxxxxxxx
2.262 Manufactured Housing 0000 Xxxxxx Xxxxxxx Xxxxxxx
2.263 Manufactured Housing Xxxxxxx Xxxxxx Xxxx & Xxxxx 000 Xxxxxx
2.264 Manufactured Housing 0000 Xxxx 00xx Xxxxxx Xxxxx Xxxxxxx
2.265 Manufactured Housing 0000 Xxxxxxxxxxxx Xxxx Xxxxx Xxxxxxx
2.266 Manufactured Housing 0000 Xxxxx Xxxxxxx Xxxxxxxxx Xxxxxxx Xxxx
2.267 Manufactured Housing 000 Xxxxx Xxxxxxx Xxxxx Xxxxxxx Xxxx
2.268 Manufactured Housing 0000 Xxxxx Xxxxxx Xxxxxxx
2.269 Manufactured Housing 0000 Xxxxxxxx Xxxxx Xxxx Xxxxxxxxxxxx
2.27 Manufactured Housing 000 Xxxxx XX Xxxxxxx 00 Xxxxxxxx
2.271 Manufactured Housing 0000 Xxxxxxxxxx Xxxx Xxxxxx
2.272 Manufactured Housing 000 Xxxxx 0 Gansevoort
2.273 Manufactured Housing 0000 Xxxxx Xxxx Xxxxxxx
2.274 Manufactured Housing 0000 Xxxx 00xx Xxxxxx Xxxxx Xxxxxxx
3 Office Various Various
3.01 Xxxxxx 0000 & 0000 Xxxx Xxxxxxx Xxxxxx Xxxx
3.02 Xxxxxx 000 Xxxx 000xx Xxxxxx Xxxxxx Xxxx
3.03 Xxxxxx 00000 Xxxxxx Xxxx Xxxxxx Xxxx
3.04 Office 0000 Xxxxxxx Xxxxxxxxx Xxxxxxxx Xxxx
3.05 Office 0000 Xxxxxxx Xxxxxxxxx Xxxxxxxx Xxxx
3.06 Office 0000-0000 Xxxxxxx Xxxxxxxxx Xxxxxxxx Xxxx
3.07 Xxxxxx 00000 Xxxxxx Xxxx Xxxxxx Xxxx
3.08 Office 0000 Xxxxxxx Xxxxxxxxx Xxxxxxxx Xxxx
3.09 Xxxxxx 00000 Xx Xxxxx Xxxxxxxx Xxxx
4 Hospitality 9882 Santa Xxxxxx Boulevard Xxxxxxx Hills
5 Self Storage Various Various
5.01 Self Storage 00000 Xxxxx 00xx Xxxxxx Xxxxxxxxxx
5.02 Self Storage 0000 Xxxx Xxxxxxx Xxxxxxxxx Xxxx Xxxxxxxxxx
5.03 Self Storage 0000 Xxxxx Xxxxx Xxxxxx Covina
5.04 Self Storage 0000 Xxx Xxxxxxxx Xxxxxxx Xxxxxxx Xxxx
5.05 Self Storage 0000 Xxxx Xxxxx Xxxxx Xxx Xxxxxxxxx
5.06 Self Storage 000 Xxxxxxx Xxx Xxxxxxx
5.07 Self Storage 00000 Xx Xxxxxxx Xxx Tigard
5.08 Self Storage 0000 Xxxxxxxxx Xxx Xxxxx Xxxxxxxx Xxxxx
5.09 Self Storage 0000 Xxxxxx Xxxxxx Xxx Xxxxxxx
5.1 Self Storage 0000 Xxxxx Xxxxxxxxx Xxxxxxx
5.11 Self Storage 000 Xxxxx Xxxxxxxxx Xxxx Xxxxxxx
5.12 Self Storage 000 Xxxxxxxxxx Xxxxxx Xxxxxxxxx
5.13 Self Storage 0000 Xxx Xxxxxxxxxx Xxxxxxxxxxxxx
5.14 Self Storage 0000 Xxxxxxx Xxxx San Antonio
5.15 Self Storage 000 Xxxx Xxxxxxx Xxxx Xx Xxxxx
5.16 Self Storage 8810 Abercorn Expressway Savannah
5.17 Self Storage 00000 Xxx Xxxx Xxxx Xxxxxxx
6 Multifamily 0000 Xxxxxxxx Xxxx Xxxxxxxxxxx
7 Retail Various Various
7.01 Retail 000 Xxxxx Xxxx Xxxxxxxxx Xxxxxxx
7.02 Retail 0000 Xxxxxxx Xxxx Marietta
7.03 Retail 0000 Xxxxxxx 00 Xxxxxxxxxxxx
7.04 Retail 0000 Xxxxxxxxxxxx Xxxx Xxxxxxx
7.05 Retail 0000 Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx Norcross
7.06 Retail 000 Xxxxxx Xxxx Xxxx Xxxxxxxxx
7.07 Retail 0000 Xxxxxxx Xxxxx Xxxxxx Xxxxxxx
7.08 Retail 0000 Xxxxxx Xxxxxx Xxxx Xxxxxxx
7.09 Retail 000 Xxxxxxxxx Xxxx Xxxx Xxxxx
7.1 Retail 0000 Xxxx Xxxxxx Xxxx Xxxxx Xxxx
7.11 Retail 0000 Xxxxxxx 00 Xxxxx Xxxxxxx Xxxx
7.12 Retail 0000 Xxxxx Xxxx Xxxx Xxxxxxxxxxx
7.13 Retail 0000 Xxxx Xxxxx Xxxxxxx Xxxx Xxxxx
7.14 Retail 0000 Xxxxxxx Xxxx Xxxxxxx
7.15 Retail 5775 Xxxx Xxxxxx Boulevard Flowery Branch
7.16 Retail 0000 Xxxxxxxxx Xxxx Xxxxxxxxxx
7.17 Retail 0000 Xxxxxx Xxxxxx Xxxx Xxxxxxxxxx
7.18 Retail 0000 Xxxxxxx 00 (Xxxxxxxx) Xxxxxxxxxxxx
7.19 Retail 000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxx
7.2 Retail 000 Xxxxxxxxx Xxxxx Xxxxxxx
7.21 Retail 0000 Xxxxx Xxxxxx Xxxx Xxxxxxx
7.22 Retail 000 Xxxxxxxx Xxxxxxx Xxxxxx
0.00 Retail 0000 Xxxxxx Xxxxxx Xxxx Xxxxxxx
7.24 Retail 000 Xxxxxxxxxx Xxxxxx Xxxxxxx
7.25 Retail 000 Xxxx Xxxxxx Xxxxxxxxx Xxxxxxx
7.26 Retail 0000 Xxxxxxxxxx Xxxxx Xxxxx Xxxxxxx
7.27 Retail 0000 Xxx Xxxxxxxx Xxxxxxx Xxxxxxx Xxxx
7.28 Retail 0000 Xxxxxxx Xxxx Xxxx Xxxxxxxxxx
7.29 Retail 0000 Xxxx Xxxx Xxxxxx Dothan
7.3 Retail 0000 Xxxx Xxxxx Xxxxxx Dothan
7.31 Retail 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxxxxxx
7.32 Retail 0000 Xxxxxxx 000 Xxxxxxxxx
7.33 Retail 0000 Xxxxxxx 00 Xxxxxx Xxxxx
7.34 Retail 0000 Xxxxxxx 0 Xxxxxxxxxxxx
7.35 Retail 0000 Xxxxxx Xxxxxx Xxxx Cumming
7.36 Retail 0000 Xxxxxx Xxxxx Xxxxxxx
7.37 Retail 0000 Xxxx Xxxx Xxxxxxxx
7.38 Retail 000 Xxxxxxxx X Xxxxxx Xxxxxxx
7.39 Retail 000 Xxxx Xxxxxxx Marietta
7.4 Retail 0000 Xxxx'x Xxx Xxxx Xxxxxxxxx
7.41 Retail 0000 Xxxxxxx Xxxxxx Xxxxxxxxxxxx
7.42 Retail 000 Xxxxx Xxxxxxx 000 Cumming
7.43 Retail 000 Xxxxxxxxx Xxxxxxx Xxxxxxxxxxx
7.44 Retail 0000 Xxxxxxxxxx Xxxxxxx Canton
7.45 Retail 0000 Xxxxxx Xxxxxxx Ball Ground
7.46 Retail 000 Xxxxxxx Xxxxxxx Kennesaw
7.47 Retail 0000 Xxxxx Xxxxx Xxxxx Xxxx Xxxxxxx
7.48 Retail 0000 Xx. Xxxxxx Xxxx Gainesville
7.49 Retail 0000 Xxxxx Xxxxx Xxxx Xxxxxxxxx
7.5 Retail 000 Xxxx Xxxxxxx Xxxxxx Dublin
7.51 Retail 0000 Xxxxxxxxxxx Xxxxxxx Ringgold
7.52 Retail 0000 Xxxxxx Xxxxx Xxxx Marietta
7.53 Retail 000 Xxxxxx X Xxxxxx Xxxxxxxxx Xxxxxxx
7.54 Retail 0000 Xxxxx Xxxxxxxxx Xxxx Xxxxxxxx
7.55 Retail 000 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxx
7.56 Retail 000 Xxxxxx XxXxxx Xxxxxxxxx Rome
7.57 Retail 0000 Xxxxx Xx Xxxx Xxxxxxx
7.58 Retail 000 Xxxxxxxx Xxxxxx Xxxxxxx
7.59 Retail 0000 Xxxxxxxxx Xxxxxx Austell
7.6 Retail 0000 Xxxxxxx 000 Xxxxxxxxx White
7.61 Retail 0000 Xxxxxxxxxxx Xxxxxxx Xxxxxxxxxxx
7.62 Retail 000 Xxxxx Xxxx Xxxxxx Xxxxxxxxx
8 Office 2901 & 0000 Xxxxxxx Xxxxxxxxx Xxxxxxxxx
Multifamily Various Houston
9 Multifamily 00000 Xxxxx Xxxxxx Xxxxx Xxxxxxx
10 Multifamily 0000 Xxxxxxxx Xxxxx Xxxxxxx
11 Multifamily 4701 & 0000 Xxxxxxxxx Xxxx Xxxxxx
12 Manufactured Housing 0000 Xxxxxxx Xxxxxxxxx Xxxxx Xxxxx Heights
13 Retail 0000-0000 Xxxxxx Xxxxx Xxxx Xxxxxxxx Xxxxxxx
14 Retail 000 Xxxxx Xxxxxxx 00 Lincoln
15 Industrial 000-000 Xxxxx Xxxxx Xxxxxxx
00 Multifamily 0000 Xxxxxxxx Xxxxx Xxxx Xxx Xxxxxxx
17 Office 0000-0000 Xxxxxxxxx Xxxxxx Goleta
18 Hospitality 000 Xxxxxxx Xxxxx Xxxxx Xxxxxxxx
19 Multifamily 0000 Xxxxxxxx Xxxxx Bowling Green
20 Retail 701-1031 Xxxxx Xxxxx Xxxxxxx 000 Encinitas
21 Multifamily 00 Xxxxxxxxx Xxx Xxxxxxxxxx
22 Retail 18100-18500 Wedge Parkway Reno
23 Multifamily 000 Xxxxxxxxxx Xxx Xxxxxxxx
24 Retail 000 Xxxxxxx Xxxxxx Augusta
25 Retail 26811-26896 Xxxxxxx Xxxxxx Xxxx Xxxxx Xxxxxxx
00 Retail 0000 Xxxx Xxxxxxx XX Acworth
27 Retail 0000-0000 Xxxxx XxXxxxxx Xxxxxxxxx Sparks
28 Hospitality 0000 Xxxxxxx Xxxxxx Carlsbad
29 Industrial 000 Xxxxxxxxx Xxxx Xxxxxxxxxxxxxx
30 Retail 0000 Xxxxxx Xxxxxxxx Xxxx Xxx Xxxxx
31 Retail 1133 East West Connector Austell
32 Retail 1711, 1725, 1901, 1911 & 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx
33 Retail 1410-1432 Azusa Avenue West Covina
34 Multifamily 00000 Xxxxxxx Xxxx Xxxxx Xxxxx
35 Office 0000 Xxxxxxx Xxxx Xxxxxxxxx Xxxxxxx
36 Hospitality 000 Xxxxx Xxxxxx Xxx Xxxx
37 Multifamily 000 Xx Xxx Xxxxx Mobile
38 Office Various Various
38.01 Office 0000 Xxxxx Xxxxxxx Xxxx Xxxxxx
38.02 Office 000 Xxxx Xxxxxxxxx Xxxxxxxxx Southlake
39 Industrial Various Various
39.01 Industrial X00X00000 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxx
39.02 Industrial 000 Xxxxx Xxxxxx Xxxx Raleigh
39.03 Industrial 0000 Xxxxxx Xxxxxxx Hazelwood
40 Office 00000 Xxxx 00xx Xxxxxxx Shawnee
41 Retail 0000 Xxxxxxxxxxx Xxxx Xxxxxxxxxxx
42 Multifamily 0000 Xxxxxx Xxxxxxxx Xxxxx Xxxxxxxxxxxx
43 Retail 000 Xxxx Xxxxxxx Xxxxxx Xxxxx Xxxxxx
44 Retail 0000 Xxx Xxxxx Xxxx Raleigh
45 Multifamily 14030 & 00000 Xxxxxxx Xxxxxx Xxxxxxxxx
46 Retail 0000 Xxxxxxxxx Xxxxx Durham
47 Hospitality 0000 Xxxxxxxxx Xxxxx Xxxx Columbus
48 Hospitality 000 Xxxx Xxxxxx Xxxxxxxx
49 Retail 2501-2515 White Bear Avenue Maplewood
50 Mixed Use 0000-0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx
51 Hospitality 0000 Xxxxxxxxxxx Xxxxx Xxxxxxxxx
52 Multifamily 000 Xxxxx Xxxxxxxxxxxx Xxxxxx Xxx Xxxxxxx
53 Various Various Various
53.01 Retail 00000 Xxxxxxxxx Xxxxxxx Xxxxx Xxxx
53.02 Retail 0000 Xxxx Xxx Xxxx Xxxxxxxxx Xxxxxxx
53.03 Retail 0000 Xxxxx Xxxxxx Xxxxxxxxx
53.04 Retail 0000 XX 0000 Xxxxxxx
53.05 Industrial 0000 Xxxxxxxx Xxxxx Xxxxxxx
54 Retail 0000 Xxxxxxxxx Xxxxxxx Norcross
55 Multifamily 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxxxxxx
56 Multifamily Various Various
56.01 Multifamily 0000-0000 Xxxxxxxx Xxxx Xxxxx Xxxxxxx
56.02 Multifamily 000-000 Xxxxx Xxxx Xxxxxxxxxxx
56.03 Multifamily 00-00 Xxxxxxx Xxxxxx Xxxxx
56.04 Multifamily 00-00 Xxxxxxx Xxxxxxx Xxxxx Xxxxx
56.05 Multifamily 0000-0000 Xxxxxxxx Xxxx Xxxxx Xxxxxxx
57 Multifamily 00000 Xxxxx Xxxxxx Xxxxxxx
58 Self Storage 0000 Xxxxxx Xxxxx Xxxx Xxxxxxxxx Xxxxx
59 Retail Xxxxxxxxx 000xx Xxxxxx & Xxxxxxxxx 000xx Xxxxxx Xxxxx
00 Retail SWC South 348 Street & SR 000 Xxxxxxx Xxx
61 Self Storage 000 Xxxx Xxx Xxxxxxx Xxxxxx Xxxxxxxx
62 Retail 000 Xxxxxxx Xxxxxxx Xxxxxxxxxxxxx
63 Retail 0000 Xxxxxx Xxxx Xxxxxxx
64 Xxxxxx 0000 & 0000 Xxxxxxxxxxxx Xxxx Xxxxx Xxxxxxxx
00 Retail 3416, 3426, 3428, 3436, 3448 and 0000 Xxxx Xxxxxx Xxxx Antioch
66 Manufactured Housing 0 Xxxxxx Xxxxxxxxx Xxxxxxxx
67 Industrial 45,47, & 00 Xxxxxxxxxxxx Xxxxx and 52 & 00 Xxxxxxx Xxxx Xxxx Xxxxx and Derry
68 Multifamily 0000 XXXX Xxxx 1 Seabrook
69 Hospitality 0000 Xxxxxxx Xxxxxx Cheektowaga
70 Multifamily 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx
71 Retail 0000 Xxxx 0000 Xxxxx Xxxxx
72 Self Storage 0000 Xxxx 0xx Xxxxxx Oxnard
73 Office 0000 Xxxxx Xxxxxx Everett
74 Retail 0000 Xxxx Xxxxxxxx Xxxxxx Boise
75 Manufactured Housing 0000 Xxxxx Xxxxxx Xxxxxx Xxx Lawn
76 Office 198 & 000 Xxxx Xxxxxx Xxxxxxxx
77 Self Storage 000 Xxxxxxxxxxxxx Xxxx Xxxxxxxx
78 Retail 0000 Xxxxxx Xxxx Xxxx Xxxxxxxxxxxx
79 Retail 00000 Xxxxxxx Xxxxxxxxx Tarzana
80 Retail 11868 Bandera Road San Antonio
81 Multifamily 000 Xxxxxxxxx Xxxxx Xxxx
82 Retail 000 Xxx Xxxxxxx Xxxxxx Xxx Xxxxx
83 Self Storage 0000 Xxxxxxxxx Xxxx Xxxxxxxx
84 Self Storage 0000 Xxxxxxxx Xxxxx Xxxxxxxxxxxxxx
85 Multifamily 00 Xxxxx Xxxxx Xxxxxx Millville
86 Office 0000 Xxxxx Xxxx Xxxx Xxxxxxx
87 Multifamily 0000 Xxxxxxxx Xxxxx College Station
88 Multifamily 000-000 Xxxx Xxxx Xxxxxx Xxxxxxxx
89 Retail 000-000 Xxxxxxxxxx Xx. Xxxxxxxxxxx
90 Mixed Use 333 and 000 Xxxx Xxxxxxxxxx Xxxxxx Xxxx Xxxxxxxxx
91 Retail 0000 Xxxx Xxxxxx Xxxx Raleigh
92 Multifamily 0000 Xxxxx Xxxx Xxxxxx
93 Retail 7225 & 0000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxxxx
94 Hospitality 2900 Xxxxx Xxxxx Boulevard Brownsville
95 Retail 0000-0000 Xxxx Xxxxxxxxx Xxxx Glendale
96 Retail 0000 Xxxxx Xxxxxx Xxxxxx
97 Multifamily 00000 Xxxxxxxx Xxxxxx Xxx Xxxxxxx
98 Mixed Use 000-000 Xxxxxxxxx Xxxxx and 0000 Xxxxx Xxxxxxxx Xxxxxxx Huntsville
99 Multifamily 000 Xxxxxxx Xxxxx Xxxxxxxxxxx
100 Industrial 000 Xxxxx 0000 Xxxx Xxxx Xxxx Xxxx
101 Retail 2218 - 0000 Xxxxx Xxxxx Xxxxxx Xxxxxx
102 Multifamily 0000 Xxx Xxxxxx Xxxxxxxx
103 Multifamily 0000 Xxxxxxx Xxxx Xxxxxx Xxxx
104 Retail 0000-0000 Xxxxxxx Xxxxxx Simi Valley
105 Multifamily 0000 Xxxxx 0xx Xxxxxx Xxxxxxxxxx
000 Xxxxxx 000 Xxxxxxxxx 000xx Xxxxxx Xxxxx
107 Retail 000 Xxxxxxx 00 Xxxxx Xxxxxxxxx
108 Mixed Use 000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxxxx
109 Office 000 Xxxxx Xxxxxx Xxxx Xxxxxx
000 Multifamily 0000-0000 Xxxxxxx Xxxx Xxxxxxxxxxxx Xxxxxxx
111 Retail 0000 Xxxx 00xx Xxxxxx Xxxxx Xxxxx
112 Various Various Various
112.01 Mixed Use 2802 - 00 Xxxx Xxxxxx Santa Xxxxxx
112.02 Mixed Use 00000 Xxxx Xxxx Xxxxxxxxx Xxx Xxxxxxx
112.03 Retail 0000 Xxxx Xxxxxx Santa Xxxxxx
113 Mixed Use 000 Xxxxxxxxx Xxxxx Xxxxxxxx Xxxx
114 Self Storage 0000 Xxxxx Xxxx Xxxxx Xxxxxxxxx Smyrna
115 Multifamily 000 Xxxxxxxx Xxxxxxxxx Alamogordo
116 Hospitality 0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxx
117 Office Various Various
117.01 Office 0000-0000 Xxxxxxx Xxxx Gates
117.02 Office 1901 Lac DeVille Boulevard Brighton
117.03 Xxxxxx 0000 Xxx XxXxxxx Xxxxxxxxx Brighton
117.04 Office 000 Xxxxxx Xxxxxx Xxxxxxxxx
118 Office 000 Xxxxxxxxx Xxxxx Xxxxxxxxx and 000 Xxxx Xxxxx Xxxxxxxxx Xxxxxxxxxx
119 Retail 000 Xxxxx Xxxxx & 000 Xxxxxxxxx Xxxx Savannah
120 Industrial 20198-20268 Xxxxxxxxx 00xx Xxxxx Xxxxx Xxxxx Xxxxx
121 Retail 00000 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxx
122 Retail 0000 Xxxxxxxx Xxxxxx Xxxxxx
000 Retail 000 Xxxx Xxxxx Xxxx Xxxx
124 Retail 000 XX Xxxxxxx 00 Xxxx Xxxxxxxxxxxx
125 Retail 000 Xxxxxxx Xxxx Xxxxxxxx Xxxx
126 Retail 000 Xxxxxxxxx Xxxxxx Xxxx Xxxxxxxxx
127 Retail 0000 Xxxx Xxxxx Xxxxxx Xxx Xxxxxxx
128 Retail 0000 Xxxxxx Xxxx Xxxxxxxx
129 Retail 0000 Xxxxx Xxxxxxxx Xxxxxx Xxx Xxxxxxx
130 Retail 0000 Xxxx 000xx Xxxxxx and 00000 Xxxxxxx Xxxxxx Xxxxxxxx Xxxx
131 Self Storage 00000 Xxxxx XxxXxxxxx Xxxxxxxx Xxxx
132 Self Storage 000 Xxxx Xxxxxx Xxxxx Xxxxx
133 Retail 00000 Xxxxxxx 00 Xxxxxxxxx
134 Retail 0000 Xxxxxxx Xxxxxx Oceanside
135 Retail 0000 Xxxxx Xxxxxxxxx XX Albuquerque
136 Retail 10060-10080 Arrow Route Rancho Cucamonga
137 Multifamily 00000 Xxxxxxx Xxxxxx Xxx Xxxxxxx
138 Retail 0000 Xxxxx Xxxxxxxxx Xxxxxxx
139 Mixed Use 000 Xxxx Xxxx Xxxx Xxxxxxx Henderson
140 Office 6885 & 0000 Xxxxx Xxxxxxx Xxxxxx
141 Land 000 Xxxx Xxxxx Xxxxxxxxx Xxxx Xxxxx
142 Retail 0000 Xxxxxxx Xxxxxx Santa Xxxxxx
143 Retail 0000 Xxxxxxx 0 Xxxxx Xxxxxxx
144 Retail 0000 Xxxxx Xxxxxxx Xxxxxxxxx Dallas
145 Office 11614 Bee Caves Road Austin
146 Self Storage 0000 Xxxx Xxxxxxxxx Xxxxxx Paramount
147 Industrial 0000 Xxxx Xxxx Xxxx Edina
148 Multifamily 000 Xxxxx Xxxxxxxxxx Xxxx Media
149 Industrial 0000 00xx Xxxxxx Xxxxx Xxxxxx
150 Self Storage 0000 Xxxxx Xxxxx Xx Xxxxxx
000 Multifamily 0000 Xxxxxxx Xxxxxx Xxxx Xxxxx
152 Multifamily 0000 Xxxxxxxxx Xxxxxx Xxxxxxx Xxxxx
153 Retail 23250-23300 Lorain Road North Olmsted
154 Retail 0000 Xxxx Xxxxxx Xxxxxxx Athens
155 Retail 0000 Xxxx Xxxxxxx Xxxxxxx Irving
156 Retail 00000 Xxxxxxx Xxxxxxxxx Xxxxxx
157 Retail 0000 Xxxxx Xxxxxxxx Xxxx Mobile
158 Self Storage 0000 Xxxxx Xxxxxxxxxxxx Xxxxxxxx Xxxx
159 Multifamily 0000 Xxxxx Xxxx Xxxx Xxxxx Xxxxxxxxxx
160 Multifamily 000 Xxxx Xxxxxx and 000 Xxxx 000xx Xxxxxx Xxxxxxxx
161 Office 7111 & 0000 Xxxxxxx Xxxxxx Riverside
162 Retail 0000 Xxxxxxxx Xxxx Xxxxxxxxxx
163 Self Storage 0000 00xx Xxxxxx Xxxxx Xxxx Xxxxxx
164 Retail 0000-0000 Xxxxxxxxx Xxxxxxx
165 Multifamily 000 Xxxxxx Xxxxxx Xxxxxxx
166 Self Storage 00000 Xxxxx Xxxxx Xx Xxxxxx Xxxxxxxx Xxxx
167 Self Storage 00000 Xxxxx Xxxxxxxxxxxx Xxxxxx Xxxxxxxx Xxxx
168 Retail 0000 Xxxx Xxx Xxxxxxx Xxxxxx Simi Valley
169 Retail 00000 Xxxxxxx 000 Xxxx Xxxxxx
170 Retail 0000 Xxxxx Xxxxxxx Xxxxxx Xxx Xxxxx
171 Multifamily 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxx
172 Retail 4390 Dallas Fort Worth Turnpike Dallas
173 Industrial 1515 - 0000 Xxxxx Xxxxxx Xxxxx Xxxxx
174 Retail 000 Xxxx Xxxxxxxxx Xxxx Xxxxxxxxx
000 Retail 0000 Xxxxxx Xxxx Xxxxxxxxxx
176 Land 0000 Xxxxx Xxxxxxxx Xxxxxxxxx Xxxxxxxxx
000 Retail 0000 Xxxx Xxx Xxxx Xxxxxxxx
178 Retail 000 Xxxxxx Xxxx Xxxxxxxxx
000 Retail 0000 Xxxxxxxxx Xxxxxx Modesto
180 Manufactured Housing 00000 Xxxxxxxxx 00xx Xxxxxx Xxxxxxxxx
181 Retail 0000 Xxxxxx Xxxx Xxxx Xxxxx
182 Industrial 00000 Xxxxxxxx Xxxx Xxxxx Xxxx Xxxxxxx
183 Self Storage 0000 Xxxxx Xxxxxx Xxxx Xxxxxxxx Xxxx
184 Retail 000 Xxxx Xxx Xxxxxx Xxxxxx
185 Manufactured Housing 000 Xxx Xxxxxx Xxxxxxxxxx
186 Office 0000 Xxxx Xxxxxx Xxxxxx Xxx Xxxxx
187 Retail 0000 Xxxxx Xxxx Xxxxxx Xxxxx Xxx
188 Retail 000 Xxxx Xxxxxx Xxxxxx Xxxx Xxxxxxx
189 Retail 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx
000 Manufactured Housing 0000 Xxxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxx
000 Mixed Use 000 XX 00xx Xxxxxx Xxxxxxx
192 Retail 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxx
000 Multifamily 00000 Xxxxxxx Xxxxxx Xxx Xxxx
000 Xxxxxx 000 Xxxx Xxxx Xxxx Xxxxxxxxx
000 Retail 0000-0000 Xxxx Xxxx Xxxx Xxxxxxxxx Xxxx
196 Office 1850 & 0000 Xxxxxx Xxxxxxx Xxxxxx
197 Multifamily 000 Xxxxx Xxxxxxx Xxxxxx Pasadena
198 Multifamily 000 Xxxxxxxx Xxxxxx Xxxxxxxx
199 Mixed Use 0000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxxx
200 Retail 0000 Xxxx Xxxxx Xxxxxx Xxxxxx
201 Multifamily 0000 00xx Xxxxxx XX Seattle
202 Office 000 Xxxxxxx Xxxx Xxxxxxxxx
000 Multifamily 0000-0000 000xx Xxxxx Xxxxxxxxx Xxxxxxx
204 Retail 00000 Xxxxxxx 00 Xxxxxxx
000 Xxxxxx 0000 Xxxx Xxxxx Xxx Xxxxxxx Conroe
206 Self Storage 0000 Xxxxxxxxx Xxxx Xxxxxxxxxxxx
207 Retail 0000 Xxxxx Xxxxxx Xxxxxxxxx Visalia
208 Office 0000 Xxxxx Xxxxxx Xxxx Xxx Xxxxx
209 Multifamily 0000 Xxxx 000xx Xxxxxx Xxx Xxxxxxx
210 Multifamily 0000 Xxxxxxxxxx Xxxxxx Westwood
211 Industrial 0000 Xxxxx Xxxxx Xx Xxxxxx Xxxxx
212 Retail 0000 Xxxxxxxx Xxxxxx Xxxx Xxxxx
213 Multifamily 000 Xxxxxxx Xxxxxx Xxxxxxxx
214 Multifamily 0000 000xx Xxxxxx Xxxxxxxx
215 Multifamily 0000 Xxxx 000xx Xxxxxx Torrance
216 Multifamily 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxx
217 Multifamily 0000 000xx Xxxxxx Xxxxxxxx
218 Multifamily 0000 Xxxx Xxxxxxxx Xxxxxxxxx Torrance
Cut-Off Date Original Monthly P&I Debt Annual P&I Debt
Loan # County State Zip Code Balance ($) Balance ($) Service ($) Service ($)
------- ---------------- ------- --------------- ------------ ----------- ---------------- ---------------
1 Various Various Various 335,000,000 335,000,000 1,972,347.73 23,668,172.76
1.01 Xxxxx-Xxxx XX 00000 17,200,000 17,200,000
1.02 Xxxxx-Xxxx XX 00000 17,170,000 17,170,000
1.03 Xxxx Xxxxx XX 00000 12,800,000 12,800,000
1.04 Xxxxx-Xxxx XX 00000 11,400,000 11,400,000
1.05 Xxxxx-Xxxx XX 00000 8,680,000 8,680,000
1.06 XxXxxx XX 00000 7,200,000 7,200,000
1.07 Xxxxxx XX 00000 6,676,000 6,676,000
1.08 Xxxxx XX 00000 6,410,000 6,410,000
1.09 Xxxxxx XX 00000 6,390,000 6,390,000
1.1 Xxxxxxx XX 00000 6,240,000 6,240,000
1.11 Xxxxx XX 00000 6,160,000 6,160,000
1.12 Xxxxxxx XX 00000 5,840,000 5,840,000
1.13 Xxxx Xxxxx XX 00000 5,760,000 5,760,000
1.14 Xxxxxxx XX 00000 5,760,000 5,760,000
1.15 XxXxxx XX 00000 5,700,000 5,700,000
1.16 Xxxxxxx XX 00000 5,700,000 5,700,000
1.17 Xxxxxxxx XX 00000 5,600,000 5,600,000
1.18 Xxxxxxxxx XX 00000 5,480,000 5,480,000
1.19 Xxxxxxx XX 00000 5,400,000 5,400,000
1.2 Xxxxxx XX 00000 5,360,000 5,360,000
1.21 Xxxx Xxxxx XX 00000 5,200,000 5,200,000
1.22 Xxxxxx XX 00000 5,200,000 5,200,000
1.23 Xxxxxxxx XX 00000 5,190,000 5,190,000
1.24 Xxxxxxxx XX 00000 5,100,000 5,100,000
1.25 Xxxxxxxxx XX 00000 4,660,000 4,660,000
1.26 Xxxxxxxxxx XX 00000 4,520,000 4,520,000
1.27 Xxxxx XX 00000 4,400,000 4,400,000
1.28 Xxx XX 00000 4,380,000 4,380,000
1.29 Xxxxxx XX 00000 4,240,000 4,240,000
1.3 Xxxxxxxxx XX 00000 4,240,000 4,240,000
1.31 Xxx XX 00000 4,190,000 4,190,000
1.32 Xxx XX 00000 4,150,000 4,150,000
1.33 Xxxxx XX 00000 4,050,000 4,050,000
1.34 Xxxxxxxxx XX 00000 4,000,000 4,000,000
1.35 Xxxxx XX 00000 3,980,000 3,980,000
1.36 Xxxxxxxxxxx XX 00000 3,970,000 3,970,000
1.37 XxXxxx XX 00000 3,840,000 3,840,000
1.38 Xxxxx Xxxx XX 00000 3,770,000 3,770,000
1.39 Xxxxxxxx XX 00000 3,730,000 3,730,000
1.4 Xxxxxx XX 00000 3,600,000 3,600,000
1.41 Xxxxxxxx XX 00000 3,560,000 3,560,000
1.42 Xxxxxxxxx XX 00000 3,470,000 3,470,000
1.43 Xxxxxxxxxx XX 00000 3,410,000 3,410,000
1.44 Xxxxxxxx XX 00000 3,320,000 3,320,000
1.45 Xxxxxxxx XX 00000 3,280,000 3,280,000
1.46 Xxxx XX 00000 3,270,000 3,270,000
1.47 Xxx XX 00000 3,269,000 3,269,000
1.48 Xxxxxxx XX 00000 3,230,000 3,230,000
1.49 Xxxxxxxx XX 00000 3,200,000 3,200,000
1.5 Xxxxxxx XX 00000 3,160,000 3,160,000
1.51 Xxxxxx XX 00000 3,100,000 3,100,000
1.52 Xxxxxxx XX 00000 3,010,000 3,010,000
1.53 Xxxxxxxx XX 00000 3,000,000 3,000,000
1.54 Xxxxxxxxxxx XX 00000 2,960,000 2,960,000
1.55 Franklin OH 43204 2,920,000 2,920,000
1.56 Richland OH 44906 2,800,000 2,800,000
1.57 Marion FL 34470 2,745,000 2,745,000
1.58 Wood OH 43402 2,730,000 2,730,000
1.59 Ware GA 31501 2,700,000 2,700,000
1.6 Montgomery OH 45424 2,680,000 2,680,000
1.61 Clarke GA 30605 2,640,000 2,640,000
1.62 Fayette KY 40517 2,620,000 2,620,000
1.63 Summit OH 44221 2,600,000 2,600,000
1.64 Franklin OH 43026 2,550,000 2,550,000
1.65 Shelby KY 40065 2,440,000 2,440,000
1.66 Hopkins KY 42431 2,380,000 2,380,000
1.67 La Porte IN 46360 2,260,000 2,260,000
1.68 Sumter GA 31709 2,240,000 2,240,000
1.69 Vanderburgh IN 47715 2,230,000 2,230,000
1.7 Marion FL 34420 2,160,000 2,160,000
1.71 Boone IN 46052 2,160,000 2,160,000
1.72 Montgomery OH 45322 1,940,000 1,940,000
1.73 Tipton IN 46072 1,630,000 1,630,000
2 Various Various Various 250,000,000 250,000,000 1,379,082.91 16,548,994.92
2 Various Various Various 200,000,000 200,000,000 1,105,218.33 13,262,619.96
2 Various Various Various 50,000,000 50,000,000 273,864.58 3,286,374.96
2.001 Duval FL 32250 6,448,746 6,448,746
2.002 Orange FL 32825 4,623,294 4,623,294
2.003 Duval FL 32246 4,316,090 4,316,090
2.004 Broward FL 33325 3,810,854 3,810,854
2.005 Osceola FL 34746 3,650,904 3,650,904
2.006 Clayton GA 30238 3,541,733 3,541,733
2.007 Davis UT 84054 3,399,556 3,399,556
2.008 Adams CO 80640 3,121,549 3,121,549
2.009 Larimer CO 80528 3,068,232 3,068,232
2.01 Cobb GA 30064 2,895,589 2,895,589
2.011 Orange FL 32703 2,768,645 2,768,645
2.012 Salt Lake UT 84117 2,654,395 2,654,395
2.013 Cherokee GA 30102 2,611,235 2,611,235
2.014 Collier FL 34104 2,552,840 2,552,840
2.015 Arapahoe CO 80011 2,458,902 2,458,902
2.016 Fayette GA 30213 2,342,114 2,342,114
2.017 Salt Lake UT 84070 2,160,584 2,160,584
2.018 Gwinnett GA 30087 2,031,101 2,031,101
2.019 Onondaga NY 13090 1,981,593 1,981,593
2.02 Denton TX 75057 1,967,629 1,967,629
2.021 Salt Lake UT 84119 1,956,204 1,956,204
2.022 Clayton GA 30296 1,938,432 1,938,432
2.023 Wake NC 27616 1,853,380 1,853,380
2.024 Sullivan NY 12721 1,847,033 1,847,033
2.025 Berkeley SC 29483 1,838,147 1,838,147
2.026 Dorchester SC 29420 1,796,255 1,796,255
2.027 Adams CO 80229 1,774,992 1,774,992
2.028 Jefferson CO 80401 1,675,659 1,675,659
2.029 Cobb GA 30126 1,662,964 1,662,964
2.03 Wake NC 27603 1,635,036 1,635,036
2.031 Salt Lake UT 84088 1,600,762 1,600,762
2.032 Weld CO 80631 1,579,181 1,579,181
2.033 Genesee MI 48507 1,575,373 1,575,373
2.034 Cass MO 64012 1,552,523 1,552,523
2.035 Dallas TX 75253 1,509,362 1,509,362
2.036 Grand Forks ND 58201 1,495,398 1,495,398
2.037 Dona Ana NM 88001 1,487,782 1,487,782
2.038 Cobb GA 30152 1,487,782 1,487,782
2.039 Davis UT 84041 1,483,973 1,483,973
2.04 Guilford NC 27405 1,454,776 1,454,776
2.041 Elkhart IN 46528 1,453,507 1,453,507
2.042 Alachua FL 32608 1,447,160 1,447,160
2.043 Nueces TX 78415 1,444,621 1,444,621
2.044 Woodbury IA 51108 1,437,004 1,437,004
2.045 Duval FL 32244 1,410,346 1,410,346
2.046 Salt Lake UT 84119 1,409,076 1,409,076
2.047 Douglas KS 66046 1,376,071 1,376,071
2.048 Denton TX 76207 1,367,185 1,367,185
2.049 Rock Island IL 61265 1,348,143 1,348,143
2.05 Douglas GA 30134 1,345,605 1,345,605
2.051 Weber UT 84405 1,320,216 1,320,216
2.052 Gwinnett GA 30043 1,307,521 1,307,521
2.053 Gwinnett GA 30039 1,307,521 1,307,521
2.054 Linn IA 52302 1,301,174 1,301,174
2.055 Bucks PA 18810 1,301,174 1,301,174
2.056 Riley KS 66502 1,288,480 1,288,480
2.057 Weber UT 84404 1,268,169 1,268,169
2.058 Tarrant TX 76120 1,263,091 1,263,091
2.059 Weld CO 80631 1,247,223 1,247,223
2.06 Polk FL 33859 1,221,200 1,221,200
2.061 Cleveland OK 73135 1,218,661 1,218,661
2.062 Polk IA 50009 1,218,661 1,218,661
2.063 Salt Lake UT 84044 1,217,391 1,217,391
2.064 Rockland NY 10954 1,216,122 1,216,122
2.065 Tarrant TX 76001 1,211,044 1,211,044
2.066 Madison IL 62040 1,211,044 1,211,044
2.067 Davis UT 84015 1,205,966 1,205,966
2.068 Wake NC 27604 1,195,811 1,195,811
2.069 Elkhart IN 46528 1,194,541 1,194,541
2.07 Jefferson CO 80002 1,192,003 1,192,003
2.071 Denton TX 75056 1,190,733 1,190,733
2.072 Elkhart IN 46516 1,188,194 1,188,194
2.073 Webber UT 84404 1,180,578 1,180,578
2.074 Wyandotte KS 66111 1,178,039 1,178,039
2.075 Dakota NE 68776 1,175,500 1,175,500
2.076 Salt Lake UT 84088 1,158,997 1,158,997
2.077 Denton TX 75056 1,136,147 1,136,147
2.078 Black Hawk IA 50701 1,129,800 1,129,800
2.079 Fayette GA 30214 1,129,800 1,129,800
2.08 Lackawanna PA 18517 1,127,261 1,127,261
2.081 Tarrant TX 76012 1,108,220 1,108,220
2.082 Los Alamos NM 87544 1,100,603 1,100,603
2.083 Elkhart IN 46517 1,100,603 1,100,603
2.084 Fayette GA 30214 1,094,256 1,094,256
2.085 Collin TX 75074 1,079,023 1,079,023
2.086 Elkhart IN 46514 1,066,328 1,066,328
2.087 Dona Ana NM 88005 1,054,903 1,054,903
2.088 Tarrant TX 76036 1,053,634 1,053,634
2.089 Polk IA 50320 1,046,017 1,046,017
2.09 Shawnee KS 66609 1,026,976 1,026,976
2.091 Dallas TX 75159 1,025,706 1,025,706
2.092 Campbell WY 82716 1,025,706 1,025,706
2.093 Weber UT 84404 1,005,395 1,005,395
2.094 Scott IA 52804 993,335 993,335
2.095 Dubuque IA 52001 992,066 992,066
2.096 Rock Island IL 61275 985,084 985,084
2.097 Warren NY 12804 977,467 977,467
2.098 Dallas TX 75141 963,504 963,504
2.099 Jefferson CO 80002 960,965 960,965
2.1 Orange NY 12771 959,695 959,695
2.101 Weld CO 80631 944,462 944,462
2.102 Scott IA 52806 928,594 928,594
2.103 Broward FL 33064 911,457 911,457
2.104 Clay MO 64156 903,840 903,840
2.105 Polk IA 50320 896,223 896,223
2.106 Tooele UT 84074 896,223 896,223
2.107 Madison IL 62002 889,559 889,559
2.108 Nueces TX 78417 882,260 882,260
2.109 Dallas TX 75019 877,182 877,182
2.11 Shawnee KS 66608 875,912 875,912
2.111 Pueblo CO 81001 868,296 868,296
2.112 Woodbury IA 51105 867,026 867,026
2.113 Salt Lake UT 84128 865,757 865,757
2.114 Alachua FL 32653 860,679 860,679
2.115 Scott IA 52806 856,871 856,871
2.116 Chester PA 19344 853,063 853,063
2.117 Guilford NC 27406 842,907 842,907
2.118 Maury TN 38401 833,069 833,069
2.119 Adams CO 80221 830,213 830,213
2.12 Orange FL 32822 817,518 817,518
2.121 El Paso TX 79928 816,249 816,249
2.122 Larimer CO 80538 812,440 812,440
2.123 Tarrant TX 76248 807,363 807,363
2.124 Smith TX 75703 801,016 801,016
2.125 Dallas TX 75253 794,668 794,668
2.126 Duval FL 32210 792,129 792,129
2.127 Polk FL 33881 784,513 784,513
2.128 Pueblo CO 81005 783,243 783,243
2.129 Walker TX 77340 764,202 764,202
2.13 Genesee MI 48507 762,932 762,932
2.131 Saint Clair IL 62269 755,316 755,316
2.132 Dallas TX 75115 754,046 754,046
2.133 Laramie WY 82007 751,507 751,507
2.134 Orange FL 32809 746,430 746,430
2.135 Washington AR 72764 741,352 741,352
2.136 Somerset PA 15501 732,466 732,466
2.137 Rockwall TX 75189 724,849 724,849
2.138 Canadian OK 73127 721,041 721,041
2.139 Dallas TX 75253 721,041 721,041
2.14 Linn IA 52404 715,963 715,963
2.141 Schuylkill PA 17972 710,885 710,885
2.142 Jefferson MO 63052 700,730 700,730
2.143 Westmoreland PA 15601 694,383 694,383
2.144 Wake NC 27591 684,227 684,227
2.145 Parker TX 76008 682,958 682,958
2.146 Grand Forks ND 58201 660,108 660,108
2.147 Guilford NC 27405 658,838 658,838
2.148 Tarrant TX 76063 658,838 658,838
2.149 Dallas TX 75115 656,300 656,300
2.15 Duval FL 32210 648,683 648,683
2.151 Sedgwick KS 67217 644,875 644,875
2.152 Orange NY 10992 641,066 641,066
2.153 Columbia PA 17815 634,719 634,719
2.154 Campbell WY 82716 629,641 629,641
2.155 Peublo CO 81005 623,294 623,294
2.156 Oklahoma OK 73169 619,486 619,486
2.157 Sedgwick KS 67216 615,678 615,678
2.158 Smith TX 75708 600,444 600,444
2.159 Dallas TX 75253 599,175 599,175
2.16 Dallas TX 75019 597,905 597,905
2.161 Douglas GA 30134 596,636 596,636
2.162 Albany WY 82072 591,558 591,558
2.163 Davidson TN 37207 583,942 583,942
2.164 Laramie WY 82007 582,672 582,672
2.165 Saginaw MI 48415 578,864 578,864
2.166 Kaufman TX 75160 575,056 575,056
2.167 Larimer CO 80525 568,708 568,708
2.168 Weber UT 84404 568,708 568,708
2.169 Bell TX 76501 564,900 564,900
2.17 Ulster NY 12417 563,631 563,631
2.171 Dallas TX 75115 558,553 558,553
2.172 Oklahoma OK 73135 550,936 550,936
2.173 Dallas TX 75253 545,858 545,858
2.174 Tarrant TX 76119 544,589 544,589
2.175 Luzerne PA 18641 516,661 516,661
2.176 Oklahoma OK 73128 515,392 515,392
2.177 Dallas TX 75253 510,949 510,949
2.178 Riley KS 66502 506,506 506,506
2.179 Natrona WY 82604 498,889 498,889
2.18 Sedgwick KS 67217 497,620 497,620
2.181 Riley KS 66502 493,811 493,811
2.182 Guilford NC 27214 486,195 486,195
2.183 Lancaster PA 17522 484,925 484,925
2.184 Bannock ID 83204 483,656 483,656
2.185 Douglas GA 30122 469,692 469,692
2.186 Montgomery PA 19403 456,998 456,998
2.187 Davidson TN 37072 451,920 451,920
2.188 Oklahoma OK 73020 449,381 449,381
2.189 Denton TX 76208 448,112 448,112
2.19 Natrona WY 82609 444,303 444,303
2.191 Scott IA 52804 444,303 444,303
2.192 Jefferson MO 63026 441,130 441,130
2.193 Jasper IA 50208 439,226 439,226
2.194 Douglas KS 66044 435,417 435,417
2.195 Sedgwick KS 67219 429,070 429,070
2.196 Saline KS 67401 427,801 427,801
2.197 Tarrant TX 76119 426,055 426,055
2.198 Ellis KS 67601 425,262 425,262
2.199 Campbell WY 83718 423,992 423,992
2.2 Natrona WY 82604 423,992 423,992
2.201 Payne OK 74074 408,759 408,759
2.202 Adams CO 80022 397,334 397,334
2.203 Washington AR 72704 392,256 392,256
2.204 Jefferson MO 63051 389,718 389,718
2.205 Canadian OK 73127 387,179 387,179
2.206 Charleston SC 29456 387,179 387,179
2.207 Clayton GA 30274 380,831 380,831
2.208 Campbell WY 82718 378,293 378,293
2.209 Bannock ID 83201 377,023 377,023
2.21 Douglas KS 66044 370,676 370,676
2.211 Adams CO 80022 366,868 366,868
2.212 Washington AR 72704 364,329 364,329
2.213 Dallas TX 75159 355,443 355,443
2.214 Dallas TX 75159 351,634 351,634
2.215 Douglas KS 66046 346,557 346,557
2.216 Shawnee KS 66608 326,246 326,246
2.217 Dallas TX 75253 321,168 321,168
2.218 Duval FL 32222 318,629 318,629
2.219 Tarrant TX 76119 311,330 311,330
2.22 Nueces TX 78406 311,012 311,012
2.221 Columbia PA 18603 300,857 300,857
2.222 Sedgwick KS 67219 298,318 298,318
2.223 Salt Lake UT 84128 297,049 297,049
2.224 Franklin PA 17201 291,971 291,971
2.225 Smith TX 75708 289,432 289,432
2.226 Salt Lake UT 84119 275,468 275,468
2.227 Saratoga NY 12866 274,199 274,199
2.228 Natrona WY 82609 267,851 267,851
2.229 Laramie WY 82001 264,043 264,043
2.23 Payne OK 74074 261,504 261,504
2.231 Sedgwick KS 67217 255,157 255,157
2.232 Franklin PA 17202 242,463 242,463
2.233 Orange FL 32839 239,924 239,924
2.234 Wyoming PA 18657 233,577 233,577
2.235 Lancaster PA 17522 233,577 233,577
2.236 Madison IL 62035 231,038 231,038
2.237 Saline KS 67401 228,499 228,499
2.238 Payne OK 74074 220,882 220,882
2.239 Jefferson MO 63010 220,882 220,882
2.24 Tarrant TX 76119 218,819 218,819
2.241 Natrona WY 82601 218,343 218,343
2.242 Jefferson MO 63010 217,074 217,074
2.243 Saline KS 67401 213,266 213,266
2.244 Guilford NC 27405 211,996 211,996
2.245 Cooke TX 76240 210,727 210,727
2.246 Payne OK 74074 210,727 210,727
2.247 Bradford PA 18840 210,727 210,727
2.248 Chester PA 17202 210,727 210,727
2.249 Tarrant TX 76119 204,221 204,221
2.25 Sedgwick KS 67216 203,110 203,110
2.251 Grayson TX 75090 201,841 201,841
2.252 Oneida NY 13308 201,206 201,206
2.253 Chemung NY 14845 194,065 194,065
2.254 Lancaster PA 17555 190,416 190,416
2.255 Rock Island IL 61240 185,338 185,338
2.256 Tarrant TX 76119 184,386 184,386
2.257 Dallas TX 75159 170,105 170,105
2.258 Shawnee KS 66619 166,296 166,296
2.259 Wake NC 27526 159,949 159,949
2.26 Sedgwick KS 67060 138,369 138,369
2.261 Lebanon PA 17038 135,830 135,830
2.262 Grayson TX 75090 124,405 124,405
2.263 Bradford PA 18840 121,866 121,866
2.264 Sedgwick KS 67216 115,519 115,519
2.265 Jefferson MO 63051 112,980 112,980
2.266 Oklahoma OK 73130 106,633 106,633
2.267 Oklahoma OK 73110 85,052 85,052
2.268 Sedgwick KS 67217 67,280 67,280
2.269 Franklin PA 17201 62,202 62,202
2.27 Butler KS 67039 60,933 60,933
2.271 Jefferson MO 63010 59,029 59,029
2.272 Saratoga NY 12831 58,394 58,394
2.273 Sedgwick KS 67209 52,047 52,047
2.274 Sedgwick KS 67217 24,119 24,119
3 Various Various Various 99,900,000 99,900,000 581,720.65 6,980,647.80
3.01 Jackson MO 64114 25,689,000 25,689,000
3.02 Jackson MO 64131 20,551,000 20,551,000
3.03 Jackson MO 64131 13,558,000 13,558,000
3.04 Johnson KS 66211 12,488,000 12,488,000
3.05 Johnson KS 66210 7,635,000 7,635,000
3.06 Johnson KS 66211 6,351,000 6,351,000
3.07 Jackson MO 64131 5,352,000 5,352,000
3.08 Johnson KS 66211 4,781,000 4,781,000
3.09 Johnson KS 66211 3,495,000 3,495,000
4 Los Angeles CA 90210 79,300,000 79,300,000 417,170.10 5,006,041.20
5 Various Various Various 74,934,080 75,000,000 438,823.78 5,265,885.36
5.01 Maricopa AZ 85260 8,359,646 8,367,000
5.02 Broward FL 33312 6,925,907 6,932,000
5.03 Los Angeles CA 91722 6,869,956 6,876,000
5.04 Fulton GA 30349 5,371,275 5,376,000
5.05 Solano CA 95688 4,986,613 4,991,000
5.06 Barnstable MA 2601 4,800,777 4,805,000
5.07 Washington OR 97223 4,654,905 4,659,000
5.08 Tarrant TX 76180 4,388,140 4,392,000
5.09 Orleans LA 70119 4,196,309 4,200,000
5.1 Saint Tammany LA 70458 3,915,555 3,919,000
5.11 Orange FL 32807 3,427,984 3,431,000
5.12 Worcester MA 1604 3,409,001 3,412,000
5.13 Cumberland PA 17055 3,212,174 3,215,000
5.14 Bexar TX 78238 3,170,211 3,173,000
5.15 Orange CA 90631 3,057,310 3,060,000
5.16 Chatham GA 31406 2,622,693 2,625,000
5.17 Harris TX 77043 1,565,623 1,567,000
6 Prince George's MD 20782 56,835,903 57,000,000 329,745.40 3,956,944.80
7 Various Various Various 39,926,997 40,000,000 265,812.48 3,189,749.76
7.01 Fulton GA 30305 961,717 963,475
7.02 Cobb GA 30060 957,775 959,526
7.03 Bartow GA 30121 934,126 935,834
7.04 Dekalb GA 30316 871,063 872,656
7.05 Gwinnett GA 30071 863,180 864,758
7.06 Cherokee GA 30188 859,238 860,810
7.07 Douglas GA 30122 847,414 848,964
7.08 Cobb GA 30168 843,473 845,015
7.09 Fulton GA 30344 843,473 845,015
7.1 Fulton GA 30291 831,648 833,169
7.11 Clayton GA 30349 831,648 833,169
7.12 Clayton GA 30281 827,707 829,220
7.13 Fulton GA 30344 823,765 825,272
7.14 Fulton GA 30328 800,117 801,580
7.15 Hall GA 30542 800,117 801,580
7.16 Gwinnett GA 30039 788,292 789,734
7.17 Gwinnett GA 30039 788,292 789,734
7.18 Douglas GA 30134 784,351 785,785
7.19 Elbert GA 30635 752,819 754,196
7.2 Fulton GA 30324 744,936 746,298
7.21 Rockdale GA 30012 740,995 742,350
7.22 Paulding GA 30132 729,170 730,504
7.23 Dekalb GA 30034 713,405 714,709
7.24 Fulton GA 30315 697,638 698,914
7.25 Fulton GA 30312 693,697 694,966
7.26 Dekalb GA 30035 693,697 694,966
7.27 Fulton GA 30349 673,990 675,222
7.28 Gwinnett GA 30039 673,990 675,222
7.29 Houston AL 36302 670,048 671,274
7.3 Houston AL 36301 670,048 671,274
7.31 Baldwin GA 31061 666,107 667,325
7.32 Clayton GA 30296 650,341 651,530
7.33 Henry GA 30248 642,458 643,633
7.34 Douglas GA 30135 634,575 635,736
7.35 Forsyth GA 30044 634,575 635,736
7.36 Fulton GA 30324 610,926 612,044
7.37 Cobb GA 30067 603,043 604,146
7.38 Fulton GA 30311 603,043 604,146
7.39 Cobb GA 30060 603,043 604,146
7.4 Clayton GA 30236 595,161 596,249
7.41 Douglas GA 30134 591,219 592,300
7.42 Dawson GA 30534 579,395 580,454
7.43 Forsyth GA 31031 579,395 580,454
7.44 Cherokee GA 30114 571,512 572,557
7.45 Cherokee GA 30107 567,570 568,608
7.46 Cobb GA 30144 555,746 556,762
7.47 Dekalb GA 30033 547,863 548,865
7.48 Hall GA 30506 547,863 548,865
7.49 Cherokee GA 30189 508,448 509,378
7.5 Laurens GA 31021 496,624 497,532
7.51 Catoosa GA 30736 465,092 465,943
7.52 Cobb GA 30067 453,268 454,097
7.53 Fulton GA 30310 449,326 450,148
7.54 Dekalb GA 30341 429,619 430,405
7.55 Dekalb GA 30317 409,912 410,662
7.56 Floyd GA 30161 394145.8346 394866.5
7.57 Fulton GA 30306 382321.4545 383020.5
7.58 Fulton GA 30316 358672.6945 359328.5
7.59 Cobb GA 30168 338965.7272 339585.5
7.6 Bartow GA 30164 287726.4143 288252.5
7.61 Bartow GA 30103 248311.9806 248766
7.62 Walker GA 30728 208897.5469 209279.5
8 Placer CA 95661 36000000 36000000 165523.5 1986282
Harris TX 77042 31500000 31500000 186233.75 2234805
9 Harris TX 77042 23500000 23500000 138936.29 1667235.48
10 Harris TX 77042 8000000 8000000 47297.46 567569.52
11 Collin TX 75287 30000000 30000000 166448.52 1997382.24
12 Dakota MN 55076 25000000 25000000 120517.36 1446208.32
13 Cuyahoga OH 44113 24600000 24600000 143558.92 1722707.04
14 Placer CA 95648 24100000 24100000 112503.49 1350041.88
15 Tangipahoa LA 70401 23500000 23500000 145918.47 1751021.64
16 Bexar TX 78251 23000000 23000000 110739.57 1328874.84
17 Santa Barbara CA 93117 23000000 23000000 109317.08 1311805
18 Mesa CO 81506 22000000 22000000 134885.97 1618631.64
19 Warren KY 42104 22000000 22000000 126329.44 1515953.28
20 San Diego CA 92024 21500000 21500000 127276.82 1527321.84
21 Greenville SC 29615 19805000 19805000 99333.08 1191996.96
22 Washoe NV 89511 19660000 19660000 91943.27 1103319.24
23 Monroe NY 14623 19650000 19650000 113799.76 1365597.12
24 Kennebec ME 04330 19600000 19600000 96710.76 1160529.12
25 Los Angeles CA 91350 19500000 19500000 106129.83 1273557.96
26 Cobb GA 30101 19200000 19200000 113502.33 1362027.96
27 Washoe NV 89431 19045000 19045000 89067.12 1068805.44
28 San Diego CA 92008 19000000 19000000 110758.17 1329098.04
29 Spotsylvania VA 22408 18700000 18700000 97672.44 1172069.28
30 Clark NV 89146 18350000 18350000 102996 1235952
31 Cobb GA 30106 17950000 17950000 97455.34 1169464.08
32 Jefferson CO 80214 17600000 17600000 86335.33 1036023.96
33 Los Angeles CA 91791 17200000 17200000 104675.91 1256110.92
34 East Baton Rouge LA 70810 15471261.14 15500000 92333.26 1107999.12
35 Suffolk VA 23435 15200000 15200000 89949.22 1079390.64
36 New York NY 10013 15000000 15000000 94731.3 1136775.6
37 Mobile AL 36608 15000000 15000000 91977.44 1103729.28
38 Various TX Various 14930000 14930000 74376.28 892515.36
38.01 Denton TX 76208 7560000 7560000
38.02 Tarrant TX 76092 7370000 7370000
39 Various Various Various 14240000 14240000 86385.66 1036627.92
39.01 Waukesha WI 53051 6940000 6940000
39.02 Wake NC 27610 4940000 4940000
39.03 St. Louis MO 63042 2360000 2360000
40 Johnson KS 66226 14200000 14200000 83138.17 997658.04
41 Suffolk NY 11735 13900000 13900000 86127.85 1033534.2
42 Marion IN 46226 13800000 13800000 72371.42 868457.04
43 Travis TX 78745 13800000 13800000 75287.59 903451.08
44 Wake NC 27615 13370000 13370000 78875.1 946501.2
45 Los Angeles CA 90250 13250000 13250000 66568.37 798820.44
46 Durham NC 27601 13150000 13150000 82167.94 986015.28
47 Franklin OH 43202 13000000 13000000 77858.01 934296.12
48 Cumberland ME 4101 12740276.38 12750000 79002.16 948025.92
49 Ramsey MN 55109 12100000 12100000 65407.67 784892.04
50 Cook IL 60614 12000000 12000000 80844.99 970139.88
51 Lancaster PA 17601 12000000 12000000 75493.38 905920.56
52 Los Angeles CA 90004 11700000 11700000 63954.3 767451.6
53 Various TX Various 11500000 11500000 83054.39 996652.68
53.01 Fort Bend TX 77479 4080000 4080000
53.02 Harris TX 77546 2055000 2055000
53.03 Tarrant TX 76015 2025000 2025000
53.04 Harris TX 77070 1695000 1695000
53.05 Harris TX 77074 1645000 1645000
54 Gwinnett GA 30092 11200000 11200000 53327.56 639930.72
55 Duval FL 32277 11120000 11120000 54962.76 659553.12
56 Monroe NY Various 11080000 11080000 64589.5 775074
56.01 Monroe NY 14580 3150000 3150000
56.02 Monroe NY 14546 2260000 2260000
56.03 Monroe NY 14624 1920000 1920000
56.04 Monroe NY 14624 1900000 1900000
56.05 Monroe NY 14580 1850000 1850000
57 Harris TX 77034 11000000 11000000 65569.15 786829.8
58 Los Angeles CA 91301 11000000 11000000 68733.64 824803.68
59 Dade FL 33187 10670000 10670000 49809.63 597715.56
60 King WA 98003 10500000 10500000 65375.91 784510.92
61 Ventura CA 93021 10500000 10500000 67587.12 811045.44
62 Gwinnett GA 30045 10000000 10000000 62871.77 754461.24
63 Suffolk City VA 23435 10000000 10000000 58135.13 697621.56
64 Henrico VA 23233 9900000 9900000 59037.63 708451.56
65 Contra Costa CA 94531 9600000 9600000 45953.33 551439.96
66 Polk FL 33815 9430000 9430000 50013.05 600156.6
67 Rockingham NH 03079 and 03038 9250000 9250000 56455.45 677465.4
68 Harris TX 77586 9000000 9000000 42700 512400
69 Erie NY 14225 8962340.236 9000000 56728.4 680740.8
70 Baltimore City MD 21225 8800000 8800000 52224.17 626690.04
71 Salt Lake UT 84093 8800000 8800000 43540.44 522485.28
72 Ventura CA 93030 8425000 8425000 50349.75 604197
73 Snohomish WA 98201 8350000 8350000 49350.72 592208.64
74 Ada ID 83704 8280000 8280000 40967.6 491611.2
75 Cook IL 60453 8235831.58 8250000 50957.75 611493
76 Androscoggin ME 4240 7150000 7150000 44676.87 536122.44
77 Stafford VA 22554 7100000 7100000 41208.43 494501.16
78 Douglas GA 30135 6900000 6900000 30924.46 371093.52
79 Los Angeles CA 91356 6870000 6870000 38895.61 466747.32
80 Bexar TX 78203 6850000 6850000 40236.22 482834.64
81 Wake NC 27511 6800000 6800000 41647.89 499774.68
82 Clark NV 89119 6774318.38 6800000 40246.3 482955.6
83 Dekalb GA 30346 6720000 6720000 38977.36 467728.32
84 Spotsylvania VA 22401 6500000 6500000 37726.03 452712.36
85 Cumberland NJ 08332 6494781.33 6500000 39473.67 473684.04
86 Harris TX 77057 6274979.37 6300000 36365.85 436390.2
87 Brazos TX 77840 6145160.09 6156000 37583.83 451005.96
88 Henrico VA 23220 6095449.32 6100000 38115.93 457391.16
89 Iredell NC 28117 6067230.63 6070000 36389.08 436668.96
90 Monroe NY 14445 6000000 6000000 35703.45 428441.4
91 Wake NC 27609 6000000 6000000 35205.18 422462.16
92 Denton TX 76207 5875000 5875000 36326.36 435916.32
93 Pima AZ 85710 5850000 5850000 33528.31 402339.72
94 Cameron TX 78256 5775000 5775000 37687.16 452245.92
95 Maricopa AZ 85301 5700000 5700000 32974.54 395694.48
96 Sacramento CA 95630 5480000 5480000 26556.69 318680.28
97 Los Angeles CA 90049 5407000 5407000 31006.36 372076.32
98 Madison AL 35806 5400000 5400000 45801.99 549623.88
99 Spartanburg SC 29301 5317000 5317000 32496 389952
100 Salt Lake UT 84104 5300000 5300000 25325.17 303902.04
101 Los Angeles CA 91765 5300000 5300000 32254.79 387057.48
102 Cook IL 60201 5296165.67 5300000 33499.61 401995.32
103 Carson City NV 89706 5186149.61 5190000 32497.75 389973
104 Ventura CA 93063 5180000 5180000 28808.95 345707.4
105 Ellis TX 76065 5000000 5000000 30412.87 364954.44
106 Miami-Dade FL 33169 4865896 4865896 28008.48 336101.76
107 Madison MS 39157 4840000 4840000 29267.65 351211.8
108 Los Angeles CA 91203 4750000 4750000 27298.07 327576.84
109 Pima AZ 85711 4720000 4720000 29895.72 358748.64
110 Cuyahoga OH 44128 4700000 4700000 27577.39 330928.68
111 Minnehaha SD 57105 4650000 4650000 26929.71 323156.52
112 Los Angeles CA Various 4596472.62 4600000 28442.77 341313.24
112.01 Los Angeles CA 90405 2303354.876 2305122.494
112.02 Los Angeles CA 90064 1238693.067 1239643.653
112.03 Los Angeles CA 90405 1054424.677 1055233.853
113 Ventura CA 91320 4305000 4305000 23561.5 282738
114 Cobb GA 30080 4300000 4300000 26252.51 315030.12
115 Otero NM 88310 4290000 4290000 26749.99 320999.88
116 Mecklenburg NC 28273 4242465.38 4250000 25864.69 310376.28
117 Monroe NY Various 4200000 4200000 24483.39 293800.68
117.01 Monroe NY 14625 1600000 1600000
117.02 Monroe NY 14618 1050000 1050000
117.03 Monroe NY 14618 950000 950000
117.04 Monroe NY 14535 600000 600000
118 Madison AL 35805 4100000 4100000 34775.59 417307.08
119 Chatham GA 31410 3996552.36 4000000 23597.64 283171.68
120 Miami-Dade FL 33179 3900000 3900000 23232.24 278786.88
121 Los Angeles CA 90716 3877930.65 3880000 22149.42 265793.04
122 Durham NC 27703 3820000 3820000 22074.56 264894.72
123 Washoe NV 89502 3752569.18 3760000 21704.07 260448.84
124 Orange NC 27278 3720000 3720000 21496.69 257960.28
125 Frederick VA 22655 3500000 3500000 20774.04 249288.48
126 Nassau NY 11552 3400000 3400000 16960.71 203528.52
127 Los Angeles CA 90020 3400000 3400000 21752.59 261031.08
128 Shasta CA 96007 3350000 3350000 16915.64 202987.68
129 Los Angeles CA 90010 3310000 3310000 20283.46 243401.52
130 Johnson KS 66213 3300000 3300000 19132.31 229587.72
131 Oklahoma OK 73142 3164290.76 3170000 19148.65 229783.8
132 Lexington SC 29033 3100000 3100000 18031.72 216380.64
133 St. Tammany LA 70433 3050000 3050000 18539.96 222479.52
134 San Diego CA 92054 3025000 3025000 17431.46 209177.52
135 Bernalillo NM 87102 3000000 3000000 17774.9 213298.8
136 San Bernardino CA 91730 3000000 3000000 17659.95 211919.4
137 Los Angeles CA 90049 2997500.37 3000000 17947.96 215375.52
138 Cook IL 60601 2997340.2 3000000 17488.13 209857.56
139 Clark NV 89015 2991790.89 3000000 17774.9 213298.8
140 Orange CA 92618 2952000 2952000 17566.1 210793.2
141 Los Angeles CA 90802 2920000 2920000 17151.79 205821.48
142 Los Angeles CA 90403 2890000 2890000 17709.73 212516.76
143 Fort Bend TX 77083 2880000 2880000 17399.64 208795.68
144 Dallas TX 75217 2858000 2858000 17356.27 208275.24
145 Travis TX 78738 2850000 2850000 17068.87 204826.44
146 Los Angeles CA 90723 2840564.96 2850000 23865.54 286386.48
147 Hennepin MN 55439 2800000 2800000 16877.53 202530.36
148 Delaware PA 19063 2797460.18 2800000 16162.6 193951.2
149 Rock Island IL 61265 2725000 2725000 16006.38 192076.56
150 Oklahoma OK 73003 2705119.23 2710000 16369.98 196439.76
151 Los Angeles CA 90805 2700000 2700000 12581.25 150975
152 Orange CA 92663 2695309.93 2700000 16589.26 199071.12
153 Cuyahoga OH 44070 2693000 2693000 16389.08 196668.96
154 Oconee GA 30605 2680000 2680000 16658.41 199900.92
155 Tarrant TX 75062 2635000 2635000 15730.46 188765.52
156 Los Angeles CA 91316 2625000 2625000 15895.13 190741.56
157 Mobile AL 36617 2589984.34 2600000 15239.03 182868.36
158 Cleveland OK 73159 2555389.38 2560000 15463.89 185566.68
159 Sacramento CA 95831 2545580.56 2550000 15684.21 188210.52
160 Kings NY 11201 2542874.95 2550000 14962.2 179546.4
161 Riverside CA 92504 2495784.49 2500000 15572.23 186866.76
162 Greenville SC 29607 2475000 2475000 15271.21 183254.52
163 Oklahoma OK 73072 2465551.47 2470000 14920.24 179042.88
164 Harris TX 77005 2400000 2400000 14792.83 177513.96
165 King WA 98102 2392979.58 2400000 13777.9 165334.8
166 Oklahoma OK 73102 2375713.56 2380000 14376.59 172519.08
167 Oklahoma OK 73102 2335785.61 2340000 14134.97 169619.64
168 Ventura CA 93065 2327000 2327000 14342.88 172114.56
169 Denton TX 76227 2300000 2300000 14251.37 171016.44
170 Clark NV 89052 2300000 2300000 11925.5 143106
171 King WA 98102 2300000 2300000 11789.1 141469.2
172 Dallas TX 75211 2265649.18 2270000 13304.84 159658.08
173 Santa Clara CA 95050 2126206.74 2130000 12935.22 155222.64
174 Weber UT 84405 2075000 2075000 10073.26 120879.12
175 New Hanover NC 28403 2058000 2058000 12399.78 148797.36
176 Wayne NC 27534 2050000 2050000 12106.88 145282.56
177 Maricopa AZ 85225 2050000 2050000 11989.3 143871.6
178 Knox IN 47591 2000000 2000000 11862.73 142352.76
179 Stanislaus CA 95350 2000000 2000000 12392.5 148710
180 Clark WA 98660 1994307.79 2000000 11633.37 139600.44
181 Palm Beach FL 33487 1950000 1950000 11553.69 138644.28
182 Butler OH 45069 1885147.46 1890000 11526.65 138319.8
183 Oklahoma OK 73135 1873593.47 1875000 11691.43 140297.16
184 Barrow GA 30680 1860000 1860000 11139.68 133676.16
185 Monterey CA 93927 1850000 1850000 9325.8 111909.6
186 Clark NV 89117 1796714.28 1800000 10803.48 129641.76
187 Orange CA 92701 1750000 1750000 10616.22 127394.64
188 Maricopa AZ 85012 1750000 1750000 10537.18 126446.16
189 Los Angeles CA 90723 1710000 1710000 10819.61 129835.32
190 Polk FL 33815 1700000 1700000 9016.14 108193.68
191 King WA 98115 1695340.31 1700000 10921.97 131063.64
192 Hidalgo TX 78539 1693282.4 1700000 11046.84 132562.08
193 Los Angeles CA 91405 1650000 1650000 7996.08 95952.96
194 Lake IL 60015 1648755.4 1650000 10266.89 123202.68
195 Winnebago IL 61115 1595580.87 1600000 9439.05 113268.6
196 Tarrant TX 76248 1476518.57 1480000 9374.08 112488.96
197 Los Angeles CA 91101 1400000 1400000 7039.57 84474.84
198 Kings NY 11238 1397644.734 1400000 8729.6 104755.2
199 Cook IL 60660 1397369.44 1400000 8286 99432
200 Montgomery TX 77301 1376380.19 1380000 8336.01 100032.12
201 King WA 98105 1300000 1300000 7903.14 94837.68
202 Davidson TN 37211 1296678.2 1300000 7945.23 95342.76
203 King WA 98052 1247793.93 1250000 7623.45 91481.4
204 Snohomish WA 98037 1196904.28 1200000 7302.97 87635.64
205 Montgomery TX 77304 1176763.55 1180000 6983.92 83807.04
206 Washington AR 72701 1121964.07 1125000 7289.71 87476.52
207 Tulare CA 93277 1105000 1105000 6782.13 81385.56
208 Clark NV 89130 1089065.27 1100000 9341.96 112103.52
209 Los Angeles CA 90501 1047902.24 1050000 6027.83 72333.96
210 Los Angeles CA 90025 997407.91 1000000 6072.87 72874.44
211 San Diego CA 92083 996210.69 1000000 6640.03 79680.36
212 Los Angeles CA 90813 898482.42 900000 5606 67272
213 Kings NY 11222 848000 848000 5387.08 64644.96
214 Los Angeles CA 90501 818361.7463 820000 4707.45 56489.4
215 Los Angeles CA 90501 786425.68 788000 4523.74 54284.88
216 Orange CA 92868 698789.58 700000 4310.02 51720.24
217 Los Angeles CA 90501 688621.47 690000 3961.15 47533.8
218 Los Angeles CA 90501 494011.05 495000 2841.69 34100.28
Net
Interest Primary Master Trustee and Sub Servicin Admin. Mortgage
Loan # Rate % Servicing Fee Servicing Fee Paying Agent Fee Fee Rate Fee % Rate % Accrual Type Term
------- -------- ------------- ------------- ---------------- ------------ ------- -------- ------------ ----
1 5.8315 0.010 0.010 0.00085 0.02085 5.81065 Actual/360 120
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.1
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.2
1.21
1.22
1.23
1.24
1.25
1.26
1.27
1.28
1.29
1.3
1.31
1.32
1.33
1.34
1.35
1.36
1.37
1.38
1.39
1.4
1.41
1.42
1.43
1.44
1.45
1.46
1.47
1.48
1.49
1.5
1.51
1.52
1.53
1.54
1.55
1.56
1.57
1.58
1.59
1.6
1.61
1.62
1.63
1.64
1.65
1.66
1.67
1.68
1.69
1.7
1.71
1.72
1.73
2 6.5111 0.010 0.010 0.00085 0.02085 6.49023 Actual/360 91.2
2 6.5226 0.010 0.010 0.00085 0.02085 6.50175 Actual/360 84
2 6.4650 0.010 0.010 0.00085 0.02085 6.44415 Actual/360 120
2.001
2.002
2.003
2.004
2.005
2.006
2.007
2.008
2.009
2.01
2.011
2.012
2.013
2.014
2.015
2.016
2.017
2.018
2.019
2.02
2.021
2.022
2.023
2.024
2.025
2.026
2.027
2.028
2.029
2.03
2.031
2.032
2.033
2.034
2.035
2.036
2.037
2.038
2.039
2.04
2.041
2.042
2.043
2.044
2.045
2.046
2.047
2.048
2.049
2.05
2.051
2.052
2.053
2.054
2.055
2.056
2.057
2.058
2.059
2.06
2.061
2.062
2.063
2.064
2.065
2.066
2.067
2.068
2.069
2.07
2.071
2.072
2.073
2.074
2.075
2.076
2.077
2.078
2.079
2.08
2.081
2.082
2.083
2.084
2.085
2.086
2.087
2.088
2.089
2.09
2.091
2.092
2.093
2.094
2.095
2.096
2.097
2.098
2.099
2.1
2.101
2.102
2.103
2.104
2.105
2.106
2.107
2.108
2.109
2.11
2.111
2.112
2.113
2.114
2.115
2.116
2.117
2.118
2.119
2.12
2.121
2.122
2.123
2.124
2.125
2.126
2.127
2.128
2.129
2.13
2.131
2.132
2.133
2.134
2.135
2.136
2.137
2.138
2.139
2.14
2.141
2.142
2.143
2.144
2.145
2.146
2.147
2.148
2.149
2.15
2.151
2.152
2.153
2.154
2.155
2.156
2.157
2.158
2.159
2.16
2.161
2.162
2.163
2.164
2.165
2.166
2.167
2.168
2.169
2.17
2.171
2.172
2.173
2.174
2.175
2.176
2.177
2.178
2.179
2.18
2.181
2.182
2.183
2.184
2.185
2.186
2.187
2.188
2.189
2.19
2.191
2.192
2.193
2.194
2.195
2.196
2.197
2.198
2.199
2.2
2.201
2.202
2.203
2.204
2.205
2.206
2.207
2.208
2.209
2.21
2.211
2.212
2.213
2.214
2.215
2.216
2.217
2.218
2.219
2.22
2.221
2.222
2.223
2.224
2.225
2.226
2.227
2.228
2.229
2.23
2.231
2.232
2.233
2.234
2.235
2.236
2.237
2.238
2.239
2.24
2.241
2.242
2.243
2.244
2.245
2.246
2.247
2.248
2.249
2.25
2.251
2.252
2.253
2.254
2.255
2.256
2.257
2.258
2.259
2.26
2.261
2.262
2.263
2.264
2.265
2.266
2.267
2.268
2.269
2.27
2.271
2.272
2.273
2.274
3 5.7300 0.030 0.020 0.00085 0.05085 5.67915 Actual/360 120
3.01
3.02
3.03
3.04
3.05
3.06
3.07
3.08
3.09
4 6.2093 0.010 0.010 0.00085 0.02085 6.18845 Actual/360 84
5 5.7740 0.010 0.010 0.00085 0.02085 5.75315 Actual/360 120
5.01
5.02
5.03
5.04
5.05
5.06
5.07
5.08
5.09
5.1
5.11
5.12
5.13
5.14
5.15
5.16
5.17
6 5.6700 0.030 0.020 0.00085 0.05085 5.61915 Actual/360 120
7 6.7700 0.010 0.010 0.00085 0.02085 6.74915 Actual/360 120
7.01
7.02
7.03
7.04
7.05
7.06
7.07
7.08
7.09
7.1
7.11
7.12
7.13
7.14
7.15
7.16
7.17
7.18
7.19
7.2
7.21
7.22
7.23
7.24
7.25
7.26
7.27
7.28
7.29
7.3
7.31
7.32
7.33
7.34
7.35
7.36
7.37
7.38
7.39
7.4
7.41
7.42
7.43
7.44
7.45
7.46
7.47
7.48
7.49
7.5
7.51
7.52
7.53
7.54
7.55
7.56
7.57
7.58
7.59
7.6
7.61
7.62
8 5.427 0.03 0.02 0.00085 0.05085 5.37615 Actual/360 84
5.87 0.01 0.01 0.00085 0.02085 5.84915 Actual/360 120
9 5.87 0.01 0.01 0.00085 0.04 0.06085 5.80915 Actual/360 120
10 5.87 0.01 0.01 0.00085 0.04 0.06085 5.80915 Actual/360 120
11 5.11 0.01 0.01 0.00085 0.04 0.06085 5.04915 Actual/360 120
12 5.69 0.01 0.01 0.00085 0.02085 5.66915 Actual/360 84
13 5.75 0.01 0.01 0.00085 0.02085 5.72915 Actual/360 120
14 5.51 0.03 0.02 0.00085 0.05085 5.45915 Actual/360 120
15 6.33 0.01 0.01 0.00085 0.02085 6.30915 Actual/360 120
16 5.683 0.01 0.00085 0.015 0.02585 5.65715 Actual/360 120
17 5.61 0.03 0.02 0.00085 0.05085 5.55915 Actual/360 120
18 6.21 0.01 0.01 0.00085 0.02085 6.18915 Actual/360 120
19 6.06 0.01 0.00085 0.05 0.06085 5.99915 Actual/360 120
20 5.882 0.01 0.01 0.00085 0.02085 5.86115 Actual/360 120
21 5.92 0.01 0.01 0.00085 0.02085 5.89915 Actual/360 60
22 5.52 0.03 0.02 0.00085 0.05085 5.46915 Actual/360 120
23 5.68 0.01 0.01 0.00085 0.02085 5.65915 Actual/360 120
24 5.824 0.01 0.01 0.00085 0.02085 5.80315 Actual/360 120
25 6.424 0.01 0.01 0.00085 0.02085 6.40315 Actual/360 120
26 6.31 0.01 0.01 0.00085 0.02085 6.28915 Actual/360 120
27 5.52 0.03 0.02 0.00085 0.05085 5.46915 Actual/360 120
28 5.74 0.01 0.01 0.00085 0.02085 5.71915 Actual/360 120
29 6.165 0.01 0.01 0.00085 0.02085 6.14415 Actual/360 120
30 5.867 0.01 0.01 0.00085 0.02085 5.84615 Actual/360 120
31 5.59 0.01 0.01 0.00085 0.02085 5.56915 Actual/360 120
32 5.79 0.01 0.01 0.00085 0.02085 5.76915 Actual/360 120
33 6.14 0.01 0.01 0.00085 0.02085 6.11915 Actual/360 120
34 5.94 0.01 0.01 0.00085 0.02085 5.91915 Actual/360 120
35 6.319 0.01 0.00085 0.04 0.05085 6.26815 Actual/360 120
36 6.492 0.01 0.01 0.00085 0.02085 6.47115 Actual/360 120
37 6.211 0.01 0.01 0.00085 0.02085 6.19015 Actual/360 120
38 5.88 0.01 0.01 0.00085 0.02085 5.85915 Actual/360 120
38.01
38.02
39 6.11 0.01 0.01 0.00085 0.02085 6.08915 Actual/360 120
39.01
39.02
39.03
40 5.78 0.03 0.02 0.00085 0.05085 5.72915 Actual/360 120
41 6.31 0.03 0.02 0.00085 0.05085 6.25915 Actual/360 120
42 6.19 0.01 0.01 0.00085 0.02085 6.16915 Actual/360 120
43 5.63 0.01 0.01 0.00085 0.02085 5.60915 Actual/360 120
44 5.85 0.01 0.01 0.00085 0.02085 5.82915 Actual/360 120
45 5.93 0.01 0.01 0.00085 0.02085 5.90915 Actual/360 120
46 6.39 0.01 0.01 0.00085 0.02085 6.36915 Actual/360 120
47 5.99 0.01 0.01 0.00085 0.02085 5.96915 Actual/360 120
48 6.31 0.01 0.01 0.00085 0.02085 6.28915 Actual/360 120
49 5.554 0.01 0.01 0.00085 0.02085 5.53315 Actual/360 120
50 6.476 0.01 0.01 0.00085 0.02085 6.45515 Actual/360 120
51 6.455 0.01 0.01 0.00085 0.02085 6.43415 Actual/360 120
52 5.646 0.01 0.01 0.00085 0.02085 5.62515 Actual/360 120
53 6.1 0.01 0.01 0.00085 0.02085 6.07915 Actual/360 120
53.01
53.02
53.03
53.04
53.05
54 5.62 0.01 0.01 0.00085 0.02085 5.59915 Actual/360 120
55 5.834 0.01 0.01 0.00085 0.05 0.07085 5.76315 Actual/360 60
56 5.74 0.01 0.01 0.00085 0.02085 5.71915 Actual/360 120
56.01
56.02
56.03
56.04
56.05
57 5.946 0.01 0.01 0.00085 0.04 0.06085 5.88515 Actual/360 115
58 6.39 0.01 0.01 0.00085 0.02085 6.36915 Actual/360 120
59 5.51 0.03 0.02 0.00085 0.05085 5.45915 Actual/360 120
60 6.356 0.01 0.01 0.00085 0.02085 6.33515 Actual/360 120
61 6.676 0.01 0.01 0.00085 0.02085 6.65515 Actual/360 120
62 6.449 0.01 0.01 0.00085 0.02085 6.42815 Actual/360 120
63 5.715 0.01 0.00085 0.08 0.09085 5.62415 Actual/360 120
64 5.95 0.03 0.02 0.00085 0.05085 5.89915 Actual/360 120
65 5.65 0.01 0.01 0.00085 0.02085 5.62915 Actual/360 120
66 6.26 0.01 0.01 0.00085 0.02085 6.23915 Actual/360 60
67 6.167 0.01 0.01 0.00085 0.02085 6.14615 Actual/360 120
68 5.6 0.01 0.01 0.00085 0.02085 5.57915 Actual/360 84
69 5.77 0.01 0.01 0.00085 0.02085 5.74915 Actual/360 108
70 5.905 0.01 0.01 0.00085 0.02085 5.88415 Actual/360 120
71 5.84 0.03 0.02 0.00085 0.05085 5.78915 Actual/360 120
72 5.97 0.03 0.02 0.00085 0.05085 5.91915 Actual/360 120
73 5.867 0.01 0.01 0.00085 0.02085 5.84615 Actual/360 120
74 5.84 0.03 0.02 0.00085 0.05085 5.78915 Actual/360 120
75 6.28 0.01 0.01 0.00085 0.02085 6.25915 Actual/360 120
76 6.39 0.01 0.01 0.00085 0.02085 6.36915 Actual/360 120
77 5.7 0.01 0.01 0.00085 0.02085 5.67915 Actual/360 120
78 5.29 0.01 0.01 0.00085 0.02085 5.26915 Actual/360 120
79 5.94 0.01 0.01 0.00085 0.02085 5.91915 Actual/360 120
80 5.81 0.01 0.01 0.00085 0.05 0.07085 5.73915 Actual/360 120
81 6.2 0.01 0.01 0.00085 0.02085 6.17915 Actual/360 120
82 5.88 0.03 0.02 0.00085 0.05 0.10085 5.77915 Actual/360 120
83 5.694 0.01 0.01 0.00085 0.02085 5.67315 Actual/360 120
84 5.7 0.01 0.01 0.00085 0.02085 5.67915 Actual/360 120
85 6.12 0.03 0.02 0.00085 0.05085 6.06915 Actual/360 60
86 5.65 0.01 0.01 0.00085 0.02085 5.62915 Actual/360 120
87 6.17 0.01 0.01 0.00085 0.02085 6.14915 Actual/360 120
88 6.39 0.01 0.01 0.00085 0.02085 6.36915 Actual/360 120
89 6.432 0.01 0.01 0.00085 0.02085 6.41115 Actual/360 120
90 5.93 0.01 0.01 0.00085 0.02085 5.90915 Actual/360 120
91 5.8 0.01 0.01 0.00085 0.02085 5.77915 Actual/360 120
92 6.29 0.03 0.02 0.00085 0.05085 6.23915 Actual/360 120
93 5.585 0.01 0.01 0.00085 0.02085 5.56415 Actual/360 120
94 6.81 0.01 0.01 0.00085 0.02085 6.78915 Actual/360 120
95 5.67 0.01 0.01 0.00085 0.02085 5.64915 Actual/360 120
96 5.72 0.01 0.01 0.00085 0.02085 5.69915 Actual/360 120
97 5.59 0.03 0.02 0.00085 0.05085 5.53915 Actual/360 120
98 6.08 0.03 0.02 0.00085 0.05085 6.02915 Actual/360 180
99 6.18 0.03 0.02 0.00085 0.05085 6.12915 Actual/360 120
100 5.64 0.01 0.01 0.00085 0.02085 5.61915 Actual/360 120
101 6.14 0.01 0.01 0.00085 0.02085 6.11915 Actual/360 120
102 6.5 0.01 0.01 0.00085 0.02085 6.47915 Actual/360 120
103 6.41 0.01 0.01 0.00085 0.02085 6.38915 Actual/360 120
104 5.79 0.01 0.01 0.00085 0.02085 5.76915 Actual/360 120
105 6.135 0.01 0.01 0.00085 0.02085 6.11415 Actual/360 120
106 5.735 0.01 0.01 0.00085 0.02085 5.71415 Actual/360 120
107 6.08 0.01 0.01 0.00085 0.02085 6.05915 Actual/360 120
108 6.067 0.01 0.01 0.00085 0.02085 6.04615 Actual/360 120
109 6.52 0.01 0.01 0.00085 0.02085 6.49915 Actual/360 120
110 5.8 0.01 0.01 0.00085 0.02085 5.77915 Actual/360 120
111 5.68 0.01 0.01 0.00085 0.06 0.08085 5.59915 Actual/360 120
112 6.29 0.01 0.01 0.00085 0.02085 6.26915 Actual/360 120
112.01
112.02
112.03
113 6.46 0.01 0.01 0.00085 0.02085 6.43915 Actual/360 120
114 6.17 0.03 0.02 0.00085 0.05085 6.11915 Actual/360 120
115 6.37 0.01 0.01 0.00085 0.02085 6.34915 Actual/360 120
116 6.14 0.01 0.01 0.00085 0.02085 6.11915 Actual/360 120
117 5.74 0.01 0.01 0.00085 0.02085 5.71915 Actual/360 120
117.01
117.02
117.03
117.04
118 6.08 0.03 0.02 0.00085 0.05085 6.02915 Actual/360 180
119 5.85 0.01 0.01 0.00085 0.02085 5.82915 Actual/360 120
120 5.94 0.01 0.01 0.00085 0.02085 5.91915 Actual/360 60
121 6.01 0.01 0.01 0.00085 0.02085 5.98915 Actual/360 120
122 5.66 0.01 0.01 0.00085 0.02085 5.63915 Actual/360 120
123 5.65 0.01 0.01 0.00085 0.02085 5.62915 Actual/360 120
124 5.66 0.01 0.01 0.00085 0.02085 5.63915 Actual/360 120
125 6.345 0.01 0.01 0.00085 0.02085 6.32415 Actual/360 120
126 5.888 0.01 0.01 0.00085 0.02085 5.86715 Actual/360 120
127 6.617 0.01 0.01 0.00085 0.02085 6.59615 Actual/360 120
128 5.96 0.01 0.01 0.00085 0.02085 5.93915 Actual/360 120
129 6.205 0.01 0.01 0.00085 0.02085 6.18415 Actual/360 120
130 5.69 0.03 0.02 0.00085 0.05 0.10085 5.58915 Actual/360 120
131 6.07 0.01 0.01 0.00085 0.02085 6.04915 Actual/360 120
132 5.72 0.01 0.01 0.00085 0.02085 5.69915 Actual/360 120
133 6.554 0.01 0.01 0.00085 0.02085 6.53315 Actual/360 120
134 6.09 0.01 0.01 0.00085 0.02085 6.06915 Actual/360 120
135 5.89 0.01 0.01 0.00085 0.02085 5.86915 Actual/360 120
136 5.83 0.01 0.01 0.00085 0.02085 5.80915 Actual/360 120
137 5.98 0.01 0.01 0.00085 0.02085 5.95915 Actual/360 120
138 5.74 0.01 0.01 0.00085 0.02085 5.71915 Actual/360 120
139 5.89 0.03 0.02 0.00085 0.05 0.10085 5.78915 Actual/360 120
140 5.93 0.03 0.02 0.00085 0.05 0.10085 5.82915 Actual/360 120
141 5.81 0.01 0.01 0.00085 0.05 0.07085 5.73915 Actual/360 120
142 6.205 0.01 0.01 0.00085 0.02085 6.18415 Actual/360 120
143 6.5 0.01 0.01 0.00085 0.02085 6.47915 Actual/360 120
144 6.12 0.03 0.02 0.00085 0.05085 6.06915 Actual/360 120
145 5.99 0.01 0.01 0.00085 0.02085 5.96915 Actual/360 120
146 5.88 0.03 0.02 0.00085 0.05085 5.82915 Actual/360 180
147 6.05 0.01 0.01 0.00085 0.02085 6.02915 Actual/360 120
148 5.65 0.03 0.02 0.00085 0.05085 5.59915 Actual/360 120
149 5.81 0.01 0.01 0.00085 0.02085 5.78915 Actual/360 120
150 6.07 0.01 0.01 0.00085 0.02085 6.04915 Actual/360 120
151 5.5 0.01 0.01 0.00085 0.02085 5.47915 Actual/360 120
152 6.23 0.01 0.01 0.00085 0.02085 6.20915 Actual/360 120
153 6.14 0.03 0.02 0.00085 0.05085 6.08915 Actual/360 120
154 6.34 0.01 0.01 0.00085 0.02085 6.31915 Actual/360 120
155 5.96 0.01 0.01 0.00085 0.02085 5.93915 Actual/360 120
156 6.52 0.01 0.01 0.00085 0.02085 6.49915 Actual/360 120
157 5.79 0.03 0.02 0.00085 0.05085 5.73915 Actual/360 120
158 6.07 0.01 0.01 0.00085 0.02085 6.04915 Actual/360 120
159 6.24 0.01 0.01 0.00085 0.02085 6.21915 Actual/360 120
160 5.8 0.01 0.01 0.00085 0.02085 5.77915 Actual/360 120
161 6.36 0.01 0.01 0.00085 0.02085 6.33915 Actual/360 120
162 6.27 0.03 0.02 0.00085 0.05085 6.21915 Actual/360 120
163 6.07 0.01 0.01 0.00085 0.02085 6.04915 Actual/360 120
164 6.26 0.01 0.01 0.00085 0.02085 6.23915 Actual/360 120
165 5.6 0.01 0.01 0.00085 0.02085 5.57915 Actual/360 120
166 6.07 0.01 0.01 0.00085 0.02085 6.04915 Actual/360 120
167 6.07 0.01 0.01 0.00085 0.02085 6.04915 Actual/360 120
168 6.26 0.01 0.01 0.00085 0.02085 6.23915 Actual/360 120
169 6.31 0.01 0.01 0.00085 0.06 0.08085 6.22915 Actual/360 120
170 6.12 0.01 0.01 0.00085 0.02085 6.09915 Actual/360 120
171 6.05 0.01 0.01 0.00085 0.02085 6.02915 Actual/360 120
172 5.79 0.01 0.01 0.00085 0.02085 5.76915 Actual/360 120
173 6.12 0.01 0.01 0.00085 0.02085 6.09915 Actual/360 120
174 5.73 0.01 0.01 0.00085 0.02085 5.70915 Actual/360 120
175 6.33 0.01 0.01 0.00085 0.02085 6.30915 Actual/360 120
176 5.86 0.01 0.01 0.00085 0.02085 5.83915 Actual/360 120
177 5.77 0.01 0.01 0.00085 0.02085 5.74915 Actual/360 120
178 5.9 0.01 0.01 0.00085 0.02085 5.87915 Actual/360 120
179 6.31 0.01 0.01 0.00085 0.02085 6.28915 Actual/360 120
180 5.72 0.01 0.01 0.00085 0.05 0.07085 5.64915 Actual/360 120
181 5.89 0.01 0.01 0.00085 0.02085 5.86915 Actual/360 120
182 6.16 0.01 0.01 0.00085 0.02085 6.13915 Actual/360 120
183 6.37 0.01 0.01 0.00085 0.02085 6.34915 Actual/360 120
184 5.99 0.01 0.01 0.00085 0.02085 5.96915 Actual/360 120
185 5.95 0.01 0.01 0.00085 0.02085 5.92915 Actual/360 60
186 6.01 0.03 0.02 0.00085 0.05085 5.95915 Actual/360 120
187 6.11 0.01 0.01 0.00085 0.02085 6.08915 Actual/360 120
188 6.04 0.01 0.01 0.00085 0.02085 6.01915 Actual/360 120
189 6.51 0.01 0.01 0.00085 0.02085 6.48915 Actual/360 120
190 6.26 0.01 0.01 0.00085 0.02085 6.23915 Actual/360 60
191 5.97 0.01 0.01 0.00085 0.02085 5.94915 Actual/360 300
192 6.09 0.01 0.01 0.00085 0.02085 6.06915 Actual/360 120
193 5.72 0.01 0.01 0.00085 0.02085 5.69915 Actual/360 120
194 6.35 0.01 0.01 0.00085 0.02085 6.32915 Actual/360 120
195 5.85 0.01 0.01 0.00085 0.02085 5.82915 Actual/360 120
196 6.52 0.01 0.01 0.00085 0.02085 6.49915 Actual/360 120
197 5.935 0.01 0.01 0.00085 0.02085 5.91415 Actual/360 120
198 6.37 0.01 0.01 0.00085 0.02085 6.34915 Actual/360 360
199 5.88 0.01 0.01 0.00085 0.02085 5.85915 Actual/360 120
200 6.07 0.01 0.01 0.00085 0.02085 6.04915 Actual/360 120
201 6.13 0.01 0.01 0.00085 0.02085 6.10915 Actual/360 120
202 6.18 0.01 0.01 0.00085 0.02085 6.15915 Actual/360 120
203 6.16 0.01 0.01 0.00085 0.02085 6.13915 Actual/360 120
204 6.14 0.01 0.01 0.00085 0.02085 6.11915 Actual/360 120
205 5.88 0.01 0.01 0.00085 0.05 0.07085 5.80915 Actual/360 120
206 6.06 0.01 0.01 0.00085 0.02085 6.03915 Actual/360 120
207 6.22 0.01 0.01 0.00085 0.02085 6.19915 Actual/360 120
208 6.1 0.01 0.01 0.00085 0.02085 6.07915 Actual/360 120
209 5.6 0.01 0.01 0.00085 0.02085 5.57915 Actual/360 120
210 6.12 0.01 0.01 0.00085 0.02085 6.09915 Actual/360 360
211 6.32 0.01 0.01 0.00085 0.02085 6.29915 Actual/360 120
212 6.36 0.01 0.01 0.00085 0.02085 6.33915 Actual/360 120
213 6.18 0.01 0.01 0.00085 0.02085 6.15915 Actual/360 360
214 5.6 0.01 0.01 0.00085 0.02085 5.57915 Actual/360 120
215 5.6 0.01 0.01 0.00085 0.02085 5.57915 Actual/360 120
216 6.25 0.01 0.01 0.00085 0.02085 6.22915 Actual/360 120
217 5.6 0.01 0.01 0.00085 0.02085 5.57915 Actual/360 120
218 5.6 0.01 0.01 0.00085 0.02085 5.57915 Actual/360 120
Monthly
Payment Maturity/ Amort
Loan # Date Rem. Term ARD Date Term Rem. Amort Title Type ARD Loan
------- ------- --------- ------------------- ----- ---------- ---------- --------
1 8 118 6/8/2017 360 360 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
1.09 Fee
1.1 Fee
1.11 Fee
1.12 Fee
1.13 Fee
1.14 Fee
1.15 Fee
1.16 Fee
1.17 Fee
1.18 Fee
1.19 Fee
1.2 Fee
1.21 Fee
1.22 Fee
1.23 Fee
1.24 Fee
1.25 Fee
1.26 Fee
1.27 Fee
1.28 Fee
1.29 Fee
1.3 Fee
1.31 Fee
1.32 Fee
1.33 Fee
1.34 Fee
1.35 Fee
1.36 Fee
1.37 Fee
1.38 Fee
1.39 Fee
1.4 Fee
1.41 Fee
1.42 Fee
1.43 Fee
1.44 Fee
1.45 Fee
1.46 Fee
1.47 Fee
1.48 Fee
1.49 Fee
1.5 Fee
1.51 Fee
1.52 Fee
1.53 Fee
1.54 Fee
1.55 Fee
1.56 Fee
1.57 Fee
1.58 Fee
1.59 Fee
1.6 Fee
1.61 Fee
1.62 Fee
1.63 Fee
1.64 Fee
1.65 Fee
1.66 Fee
1.67 Fee
1.68 Fee
1.69 Fee
1.7 Fee
1.71 Fee
1.72 Fee
1.73 Fee
2 1 91.2 8/1/2014 - 8/1/2017 0 0 Fee/Leasehold
2 1 84 8/1/2014 0 0 Fee/Leasehold
2 1 120 8/1/2017 0 0 Fee/Leasehold
2.001 Fee
2.002 Fee
2.003 Fee
2.004 Fee
2.005 Fee
2.006 Fee
2.007 Fee
2.008 Fee
2.009 Fee
2.01 Fee
2.011 Fee
2.012 Fee
2.013 Fee
2.014 Fee
2.015 Fee
2.016 Fee
2.017 Fee
2.018 Fee
2.019 Fee
2.02 Fee
2.021 Fee
2.022 Fee
2.023 Fee
2.024 Fee
2.025 Fee
2.026 Fee
2.027 Fee
2.028 Fee
2.029 Fee
2.03 Fee
2.031 Fee
2.032 Fee
2.033 Fee
2.034 Fee
2.035 Fee
2.036 Fee
2.037 Fee
2.038 Fee
2.039 Fee
2.04 Fee
2.041 Fee
2.042 Fee
2.043 Fee
2.044 Fee
2.045 Fee
2.046 Fee
2.047 Fee
2.048 Fee
2.049 Fee
2.05 Fee
2.051 Fee
2.052 Fee
2.053 Fee
2.054 Fee
2.055 Fee
2.056 Fee
2.057 Fee
2.058 Fee
2.059 Fee
2.06 Fee
2.061 Fee
2.062 Fee
2.063 Fee
2.064 Fee
2.065 Fee
2.066 Fee
2.067 Fee
2.068 Fee
2.069 Fee
2.07 Fee
2.071 Fee
2.072 Fee
2.073 Fee
2.074 Fee
2.075 Fee
2.076 Fee
2.077 Fee
2.078 Fee
2.079 Fee
2.08 Fee
2.081 Fee
2.082 Fee
2.083 Fee
2.084 Fee
2.085 Fee
2.086 Fee
2.087 Fee
2.088 Fee
2.089 Fee
2.09 Fee
2.091 Fee
2.092 Fee
2.093 Fee
2.094 Fee
2.095 Fee
2.096 Fee
2.097 Fee
2.098 Fee
2.099 Fee
2.1 Fee
2.101 Fee
2.102 Fee
2.103 Fee
2.104 Fee
2.105 Fee
2.106 Fee
2.107 Fee
2.108 Fee
2.109 Fee
2.11 Fee
2.111 Fee
2.112 Fee
2.113 Fee
2.114 Fee
2.115 Fee
2.116 Fee
2.117 Fee
2.118 Fee
2.119 Fee
2.12 Fee
2.121 Fee
2.122 Fee
2.123 Fee
2.124 Fee
2.125 Fee
2.126 Fee
2.127 Fee
2.128 Fee
2.129 Fee
2.13 Fee
2.131 Fee
2.132 Fee
2.133 Fee
2.134 Fee
2.135 Fee
2.136 Fee
2.137 Fee
2.138 Fee
2.139 Fee
2.14 Fee
2.141 Fee
2.142 Fee
2.143 Fee
2.144 Fee
2.145 Fee
2.146 Fee
2.147 Fee
2.148 Fee
2.149 Fee
2.15 Fee
2.151 Fee
2.152 Fee
2.153 Fee
2.154 Fee
2.155 Fee
2.156 Fee
2.157 Fee
2.158 Fee
2.159 Fee
2.16 Fee
2.161 Fee
2.162 Fee
2.163 Fee
2.164 Fee
2.165 Leasehold
2.166 Fee
2.167 Fee
2.168 Fee
2.169 Fee
2.17 Fee
2.171 Fee
2.172 Fee
2.173 Fee
2.174 Fee
2.175 Fee
2.176 Fee
2.177 Fee
2.178 Fee
2.179 Fee
2.18 Fee
2.181 Fee
2.182 Fee
2.183 Fee
2.184 Fee
2.185 Fee
2.186 Fee
2.187 Fee
2.188 Fee
2.189 Fee
2.19 Fee
2.191 Fee
2.192 Fee
2.193 Fee
2.194 Fee
2.195 Fee
2.196 Fee
2.197 Fee
2.198 Fee
2.199 Fee
2.2 Fee
2.201 Fee
2.202 Fee
2.203 Fee
2.204 Fee
2.205 Fee
2.206 Fee
2.207 Fee
2.208 Fee
2.209 Fee
2.21 Fee
2.211 Fee
2.212 Fee
2.213 Fee
2.214 Fee
2.215 Fee
2.216 Fee
2.217 Fee
2.218 Fee
2.219 Fee
2.22 Fee
2.221 Fee
2.222 Fee
2.223 Fee
2.224 Fee
2.225 Fee
2.226 Fee
2.227 Fee
2.228 Fee
2.229 Fee
2.23 Fee
2.231 Fee
2.232 Fee
2.233 Fee
2.234 Fee
2.235 Fee
2.236 Fee
2.237 Fee
2.238 Fee
2.239 Fee
2.24 Fee
2.241 Fee
2.242 Fee
2.243 Fee
2.244 Fee
2.245 Fee
2.246 Fee
2.247 Fee
2.248 Fee
2.249 Fee
2.25 Fee
2.251 Fee
2.252 Fee
2.253 Fee
2.254 Fee
2.255 Fee
2.256 Fee
2.257 Fee
2.258 Fee
2.259 Fee
2.26 Fee
2.261 Fee
2.262 Fee
2.263 Fee
2.264 Fee
2.265 Fee
2.266 Fee
2.267 Fee
2.268 Fee
2.269 Fee
2.27 Fee
2.271 Fee
2.272 Fee
2.273 Fee
2.274 Fee
3 1 119 7/1/2017 360 360 Fee/Leasehold
3.01 Fee
3.02 Fee
3.03 Fee/Leasehold
3.04 Fee
3.05 Fee
3.06 Fee
3.07 Fee
3.08 Fee
3.09 Fee
4 8 84 8/8/2014 0 0 Fee
5 8 119 7/8/2017 360 359 Fee Yes
5.01 Fee
5.02 Fee
5.03 Fee
5.04 Fee
5.05 Fee
5.06 Fee
5.07 Fee
5.08 Fee
5.09 Fee
5.1 Fee
5.11 Fee
5.12 Fee
5.13 Fee
5.14 Fee
5.15 Fee
5.16 Fee
5.17 Fee
6 1 117 5/1/2017 360 357 Fee
7 8 118 6/8/2017 336 334 Fee
7.01 Fee
7.02 Fee
7.03 Fee
7.04 Fee
7.05 Fee
7.06 Fee
7.07 Fee
7.08 Fee
7.09 Fee
7.1 Fee
7.11 Fee
7.12 Fee
7.13 Fee
7.14 Fee
7.15 Fee
7.16 Fee
7.17 Fee
7.18 Fee
7.19 Fee
7.2 Fee
7.21 Fee
7.22 Fee
7.23 Fee
7.24 Fee
7.25 Fee
7.26 Fee
7.27 Fee
7.28 Fee
7.29 Fee
7.3 Fee
7.31 Fee
7.32 Fee
7.33 Fee
7.34 Fee
7.35 Fee
7.36 Fee
7.37 Fee
7.38 Fee
7.39 Fee
7.4 Fee
7.41 Fee
7.42 Fee
7.43 Fee
7.44 Fee
7.45 Fee
7.46 Fee
7.47 Fee
7.48 Fee
7.49 Fee
7.5 Fee
7.51 Fee
7.52 Fee
7.53 Fee
7.54 Fee
7.55 Fee
7.56 Fee
7.57 Fee
7.58 Fee
7.59 Fee
7.6 Fee
7.61 Fee
7.62 Fee
8 1 82 41791 0 0 Fee
8 111 42682 360 360 Fee
9 8 111 42682 360 360 Fee
10 8 111 42682 360 360 Fee
11 8 117 42863 420 420 Fee
12 8 82 41798 0 0 Fee
13 8 119 42924 360 360 Fee
14 1 119 42917 0 0 Fee
15 8 120 42955 360 360 Fee
16 8 120 42955 0 0 Fee
17 1 120 42948 0 0 Fee
18 8 120 42955 360 360 Fee
19 8 118 42894 420 420 Fee
20 8 118 42894 360 360 Fee
21 8 54 40947 0 0 Fee
22 1 119 42917 0 0 Fee
23 8 120 42955 360 360 Fee
24 5 115 42799 0 0 Fee
25 8 120 42955 0 0 Fee
26 8 120 42955 420 420 Fee
27 1 119 42917 0 0 Fee
28 8 120 42955 360 360 Leasehold
29 8 119 42924 0 0 Fee
30 8 119 42924 420 420 Fee
31 8 119 7/8/2017 420 420 Fee
32 8 117 42863 0 0 Fee
33 8 120 8/8/2017 360 360 Fee
34 8 118 6/8/2017 360 358 Fee
35 8 120 42955 420 420 Fee
36 8 120 42955 360 360 Fee
37 8 120 42955 360 360 Leasehold
38 8 118 42894 0 0 Fee
38.01 Fee
38.02 Fee
39 8 118 42894 360 360 Fee
39.01 Fee
39.02 Fee
39.03 Fee
40 1 117 42856 360 360 Leasehold
41 1 120 42948 360 360 Fee Yes
42 8 118 42894 0 0 Fee
43 8 115 42802 420 420 Fee
44 8 118 42894 360 360 Fee
45 8 118 6/8/2017 0 0 Fee
46 8 120 42955 360 360 Fee
47 8 117 42863 360 360 Fee
48 8 119 42924 360 359 Leasehold
49 8 116 4/8/2017 420 420 Fee
50 8 120 42955 300 300 Fee
51 8 120 42955 360 360 Fee
52 8 118 42894 420 420 Fee
53 8 120 42955 240 240 Fee
53.01 Fee
53.02 Fee
53.03 Fee
53.04 Fee
53.05 Fee
54 8 117 42863 0 0 Fee
55 8 57 41037 0 0 Fee
56 8 119 42924 360 360 Fee
56.01 Fee
56.02 Fee
56.03 Fee
56.04 Fee
56.05 Fee
57 8 111 11/8/2016 360 360 Fee
58 8 119 42924 360 360 Fee
59 1 119 42917 0 0 Fee
60 8 120 42955 360 360 Fee
61 8 120 42955 360 360 Fee
62 8 120 42955 360 360 Fee
63 8 120 42955 360 360 Fee
64 1 120 42948 360 360 Fee Yes
65 8 117 42863 0 0 Leasehold
66 8 58 41068 0 0 Fee
67 8 120 42955 360 360 Fee
68 8 81 41767 0 0 Fee
69 8 105 42498 300 297 Fee
70 8 117 42863 360 360 Fee
71 1 116 42826 0 0 Fee
72 1 119 42917 360 360 Fee
73 8 120 42955 360 360 Fee
74 1 116 42826 0 0 Fee
75 8 118 42894 360 358 Fee
76 8 120 42955 360 360 Fee
77 8 118 42894 360 360 Fee
78 8 117 42863 0 0 Fee
79 8 120 42955 420 420 Fee
80 8 118 42894 360 360 Fee
81 8 119 42924 360 360 Fee
82 1 116 42826 360 356 Fee Yes
83 8 118 42894 360 360 Fee
84 8 118 42894 360 360 Fee
85 1 59 41091 360 359 Fee
86 8 116 42833 360 356 Fee
87 8 118 42894 360 358 Fee
88 8 119 42924 360 359 Fee
89 8 119 42924 420 419 Fee
90 8 118 42894 360 360 Fee
91 8 118 42894 360 360 Fee
92 1 120 42948 360 360 Fee
93 8 119 7/8/2017 360 360 Fee
94 8 120 42955 360 360 Fee
95 8 117 42863 360 360 Fee
96 8 117 42863 0 0 Fee
97 1 120 42948 360 360 Fee
98 1 180 44774 180 180 Fee
99 1 119 42917 360 360 Fee
100 8 118 42894 0 0 Fee
101 8 119 7/8/2017 360 360 Fee
102 8 119 7/8/2017 360 359 Fee
103 8 119 7/8/2017 360 359 Fee
104 8 118 42894 420 420 Fee
105 8 118 42894 360 360 Fee
106 8 118 42894 372 372 Fee
107 8 119 42924 360 360 Fee
108 8 120 8/8/2017 420 420 Fee
109 8 120 42955 360 360 Fee
110 8 116 42833 360 360 Fee
111 8 117 42863 360 360 Fee
112 8 119 7/8/2017 360 359 Fee
112.01 Fee
112.02 Fee
112.03 Fee
113 8 119 7/8/2017 0 0 Fee
114 1 120 42948 360 360 Fee
115 8 119 42924 360 360 Fee
116 8 118 42894 360 358 Fee
117 8 119 42924 360 360 Fee
117.01 Fee
117.02 Fee
117.03 Fee
117.04 Fee
118 1 180 44774 180 180 Fee
119 8 119 7/8/2017 360 359 Fee
120 8 58 41068 360 360 Fee
121 8 119 42924 420 419 Fee
122 8 118 6/8/2017 360 360 Fee
123 8 118 42894 360 358 Fee
124 8 118 6/8/2017 360 360 Fee
125 8 120 42955 420 420 Fee
126 8 120 42955 0 0 Fee
127 8 120 42955 360 360 Fee
128 8 118 6/8/2017 0 0 Fee
129 8 120 42955 360 360 Fee
130 1 119 42917 360 360 Fee
131 8 118 6/8/2017 360 358 Fee
132 8 118 6/8/2017 360 360 Fee
133 8 120 42955 420 420 Fee
134 8 120 42955 420 420 Fee
135 8 118 6/8/2017 360 360 Fee
136 8 117 5/8/2017 360 360 Fee
137 8 119 42924 360 359 Fee
138 8 119 42924 360 359 Fee
139 1 117 42856 360 357 Fee Yes
140 1 119 42917 360 360 Leasehold
141 8 119 42924 360 360 Fee
142 8 120 42955 360 360 Fee
143 8 120 42955 420 420 Fee
144 1 119 42917 360 360 Fee
145 8 118 6/8/2017 360 360 Fee
146 1 179 44743 180 179 Fee
147 8 119 7/8/2017 360 360 Fee
148 1 119 42917 360 359 Fee
149 8 119 42924 360 360 Fee
150 8 118 42894 360 358 Fee
151 8 117 42863 0 0 Fee
152 8 118 42894 360 358 Fee
153 1 120 42948 360 360 Fee Yes
154 8 120 42955 360 360 Fee
155 8 118 42894 360 360 Fee
156 8 120 42955 420 420 Fee
157 1 116 42826 360 356 Fee
158 8 118 42894 360 358 Fee
159 8 118 42894 360 358 Fee
160 8 117 42863 360 357 Fee
161 8 118 42894 360 358 Fee
162 1 120 42948 360 360 Fee
163 8 118 42894 360 358 Fee
164 8 119 42924 360 360 Fee
165 8 117 5/8/2017 360 357 Fee
166 8 118 42894 360 358 Fee
167 8 118 42894 360 358 Fee
168 8 120 8/8/2017 360 360 Fee
169 8 120 42955 360 360 Fee
170 8 119 7/8/2017 0 0 Fee
171 8 119 7/8/2017 0 0 Fee
172 8 118 42894 360 358 Fee
173 8 118 42894 360 358 Fee
174 8 118 42894 0 0 Fee
175 8 120 42955 396 396 Fee
176 8 119 7/8/2017 360 360 Fee
177 8 118 42894 360 360 Fee
178 8 118 42894 360 360 Fee
179 8 120 42955 360 360 Fee
180 8 117 42863 360 357 Fee
181 8 118 6/8/2017 360 360 Fee
182 8 117 42863 360 357 Fee
183 8 119 7/8/2017 360 359 Fee
184 8 118 42894 360 360 Fee
185 8 58 41068 0 0 Fee
186 1 118 42887 360 358 Fee
187 8 119 42924 360 360 Fee
188 8 118 6/8/2017 360 360 Fee
189 8 120 8/8/2017 360 360 Fee
190 8 58 6/8/2012 0 0 Fee
191 8 298 48373 300 298 Fee Hybrid
192 8 117 5/8/2017 300 297 Fee
193 8 118 42894 0 0 Fee
194 8 119 42924 360 359 Fee
195 8 117 42863 360 357 Fee
196 8 117 42863 360 357 Fee
197 8 118 42894 0 0 Fee
198 8 358 50199 360 358 Fee Hybrid
199 8 118 42894 360 358 Fee
200 8 117 5/8/2017 360 357 Fee
201 8 118 42894 360 360 Fee
202 8 117 5/8/2017 360 357 Fee
203 8 118 6/8/2017 360 358 Fee
204 8 117 5/8/2017 360 357 Fee
205 8 117 5/8/2017 360 357 Fee
206 8 118 6/8/2017 300 298 Fee
207 8 119 42924 360 360 Fee
208 8 117 5/8/2017 180 177 Fee
209 8 118 42894 360 358 Fee
210 8 357 50168 360 357 Fee Hybrid
211 8 117 42863 300 297 Fee
212 8 118 6/8/2017 360 358 Fee
213 8 357 50168 324 324 Fee Hybrid
214 8 118 42894 360 358 Fee
215 8 118 42894 360 358 Fee
216 8 118 6/8/2017 360 358 Fee
217 8 118 42894 360 358 Fee
218 8 118 42894 360 358 Fee
ARD Environmental Cross
Loan # Step Up Insurance Defaulted
------- ---------------------------------------------------------------------------- ------------- ---------
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
1.09 No
1.1 No
1.11 No
1.12 No
1.13 No
1.14 No
1.15 No
1.16 No
1.17 No
1.18 No
1.19 No
1.2 No
1.21 No
1.22 No
1.23 No
1.24 No
1.25 No
1.26 No
1.27 No
1.28 No
1.29 No
1.3 No
1.31 No
1.32 No
1.33 No
1.34 No
1.35 No
1.36 No
1.37 No
1.38 No
1.39 No
1.4 No
1.41 No
1.42 No
1.43 No
1.44 No
1.45 No
1.46 No
1.47 No
1.48 No
1.49 No
1.5 No
1.51 No
1.52 No
1.53 No
1.54 No
1.55 No
1.56 No
1.57 No
1.58 No
1.59 No
1.6 No
1.61 No
1.62 No
1.63 No
1.64 No
1.65 No
1.66 No
1.67 No
1.68 No
1.69 No
1.7 No
1.71 No
1.72 No
1.73 No
2 No
2 No
2 No 0
2.001 No
2.002 No
2.003 No
2.004 No
2.005 No
2.006 No
2.007 No
2.008 No
2.009 No
2.01 No
2.011 No
2.012 No
2.013 No
2.014 No
2.015 No
2.016 No
2.017 No
2.018 No
2.019 No
2.02 No
2.021 No
2.022 No
2.023 No
2.024 No
2.025 No
2.026 No
2.027 No
2.028 No
2.029 No
2.03 No
2.031 No
2.032 No
2.033 No
2.034 No
2.035 No
2.036 No
2.037 No
2.038 No
2.039 No
2.04 No
2.041 No
2.042 No
2.043 No
2.044 No
2.045 No
2.046 No
2.047 No
2.048 No
2.049 No
2.05 No
2.051 No
2.052 No
2.053 No
2.054 No
2.055 No
2.056 No
2.057 No
2.058 No
2.059 No
2.06 No
2.061 No
2.062 No
2.063 No
2.064 No
2.065 No
2.066 No
2.067 No
2.068 No
2.069 No
2.07 No
2.071 No
2.072 No
2.073 No
2.074 No
2.075 No
2.076 No
2.077 No
2.078 No
2.079 No
2.08 No
2.081 No
2.082 No
2.083 No
2.084 No
2.085 No
2.086 No
2.087 No
2.088 No
2.089 No
2.09 No
2.091 No
2.092 No
2.093 No
2.094 No
2.095 No
2.096 No
2.097 No
2.098 No
2.099 No
2.1 No
2.101 No
2.102 No
2.103 No
2.104 No
2.105 No
2.106 No
2.107 No
2.108 No
2.109 No
2.11 No
2.111 No
2.112 No
2.113 No
2.114 No
2.115 No
2.116 No
2.117 No
2.118 No
2.119 No
2.12 No
2.121 No
2.122 No
2.123 No
2.124 No
2.125 No
2.126 No
2.127 No
2.128 No
2.129 No
2.13 No
2.131 No
2.132 No
2.133 No
2.134 No
2.135 No
2.136 No
2.137 No
2.138 No
2.139 No
2.14 No
2.141 No
2.142 No
2.143 No
2.144 No
2.145 No
2.146 No
2.147 No
2.148 No
2.149 No
2.15 No
2.151 No
2.152 No
2.153 No
2.154 No
2.155 No
2.156 No
2.157 No
2.158 No
2.159 No
2.16 No
2.161 No
2.162 No
2.163 No
2.164 No
2.165 No
2.166 No
2.167 No
2.168 No
2.169 No
2.17 No
2.171 No
2.172 No
2.173 No
2.174 No
2.175 No
2.176 No
2.177 No
2.178 No
2.179 No
2.18 No
2.181 No
2.182 No
2.183 No
2.184 No
2.185 No
2.186 No
2.187 No
2.188 No
2.189 No
2.19 No
2.191 No
2.192 No
2.193 No
2.194 No
2.195 No
2.196 No
2.197 No
2.198 No
2.199 No
2.2 No
2.201 No
2.202 No
2.203 No
2.204 No
2.205 No
2.206 No
2.207 No
2.208 No
2.209 No
2.21 No
2.211 No
2.212 No
2.213 No
2.214 No
2.215 No
2.216 No
2.217 No
2.218 No
2.219 No
2.22 No
2.221 No
2.222 No
2.223 No
2.224 No
2.225 No
2.226 No
2.227 No
2.228 No
2.229 No
2.23 No
2.231 No
2.232 No
2.233 No
2.234 No
2.235 No
2.236 No
2.237 No
2.238 No
2.239 No
2.24 No
2.241 No
2.242 No
2.243 No
2.244 No
2.245 No
2.246 No
2.247 No
2.248 No
2.249 No
2.25 No
2.251 No
2.252 No
2.253 No
2.254 No
2.255 No
2.256 No
2.257 No
2.258 No
2.259 No
2.26 No
2.261 No
2.262 No
2.263 No
2.264 No
2.265 No
2.266 No
2.267 No
2.268 No
2.269 No
2.27 No
2.271 No
2.272 No
2.273 No
2.274 No
3 No
3.01 No
3.02 No
3.03 No
3.04 No
3.05 No
3.06 No
3.07 No
3.08 No
3.09 No
4 No
5 Greater of Initial interest rate plus 2% or the Treasury plus 2% No
5.01 No
5.02 No
5.03 No
5.04 No
5.05 No
5.06 No
5.07 No
5.08 No
5.09 No
5.1 No
5.11 No
5.12 No
5.13 No
5.14 No
5.15 No
5.16 No
5.17 No
6 No
7 No
7.01 No
7.02 No
7.03 No
7.04 No
7.05 No
7.06 No
7.07 No
7.08 No
7.09 No
7.1 No
7.11 No
7.12 No
7.13 No
7.14 No
7.15 No
7.16 No
7.17 No
7.18 No
7.19 No
7.2 No
7.21 No
7.22 No
7.23 No
7.24 No
7.25 No
7.26 No
7.27 No
7.28 No
7.29 No
7.3 No
7.31 No
7.32 No
7.33 No
7.34 No
7.35 No
7.36 No
7.37 No
7.38 No
7.39 No
7.4 No
7.41 No
7.42 No
7.43 No
7.44 No
7.45 No
7.46 No
7.47 No
7.48 No
7.49 No
7.5 No
7.51 No
7.52 No
7.53 No
7.54 No
7.55 No
7.56 No
7.57 No
7.58 No
7.59 No
7.6 No
7.61 No
7.62 No
8 No
No Yes
9 No Yes
10 No Yes
11 No
12 No
13 No
14 No
15 No
16 No
17 No
18 No
19 No
20 No
21 No
22 No
23 No
24 No
25 No
26 No
27 No
28 No
29 No
30 No
31 No
32 No
33 No
34 No
35 No
36 No
37 No
38 No
38.01 No
38.02 No
39 No
39.01 No
39.02 No
39.03 No
40 No
41 Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%. No
42 No
43 No
44 No
45 No
46 No
47 No
48 No
49 No
50 No
51 No
52 No
53 No
53.01 No
53.02 No
53.03 No
53.04 No
53.05 No
54 No
55 No
56 No
56.01 No
56.02 No
56.03 No
56.04 No
56.05 No
57 No
58 No
59 No
60 No
61 No
62 No
63 No
64 Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%. No
65 No
66 No
67 No
68 No
69 No
70 No
71 No
72 No
73 No
74 No
75 No
76 No
77 No
78 No
79 No
80 No
81 No
82 Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%. No
83 No
84 No
85 No
86 No
87 No
88 No
89 No
90 No
91 No
92 No
93 No
94 No
95 No
96 No
97 No
98 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
112.01 No
112.02 No
112.03 No
113 No
114 No
115 No
116 No
117 No
117.01 No
117.02 No
117.03 No
117.04 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 No
138 No
139 Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%. No
140 No
141 No
142 No
143 No
144 No
145 No
146 No
147 No
148 No
149 No
150 No
151 No
152 No
153 Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%. No
154 No
155 No
156 No
157 No
158 No
159 No
160 No
161 No
162 No
163 No
164 No
165 No
166 No
167 No
168 No
169 No
170 No
171 No
172 No
173 No
174 No
175 No
176 No
177 No
178 No
179 No
180 No
181 No
182 No
183 No
184 No
185 No
186 No
187 No
188 No
189 No
190 No
191 No
192 No
193 No
194 No
195 No
196 No
197 No
198 No
199 No
200 No
201 No
202 No
203 No
204 No
205 No
206 No
207 No
208 No
209 No
210 No
211 No
212 No
213 No
214 No
215 No
216 No
217 No
218 No
Partial Upfront Upfront
Cross Defeasance Letter of Lockbox Holdback Engineering Capex
Loan # Collateralized Allowed Credit Type Amount Reserve ($) Reserve ($)
------- -------------- ---------- --------- ------------------------------- -------- ----------- -----------
1 Yes Hard 413,533
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.1
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.2
1.21
1.22
1.23
1.24
1.25
1.26
1.27
1.28
1.29
1.3
1.31
1.32
1.33
1.34
1.35
1.36
1.37
1.38
1.39
1.4
1.41
1.42
1.43
1.44
1.45
1.46
1.47
1.48
1.49
1.5
1.51
1.52
1.53
1.54
1.55
1.56
1.57
1.58
1.59
1.6
1.61
1.62
1.63
1.64
1.65
1.66
1.67
1.68
1.69
1.7
1.71
1.72
1.73
2 Yes Hard 536,646 2,238,167
2 0 0
2 0 0 0
2.001
2.002
2.003
2.004
2.005
2.006
2.007
2.008
2.009
2.01
2.011
2.012
2.013
2.014
2.015
2.016
2.017
2.018
2.019
2.02
2.021
2.022
2.023
2.024
2.025
2.026
2.027
2.028
2.029
2.03
2.031
2.032
2.033
2.034
2.035
2.036
2.037
2.038
2.039
2.04
2.041
2.042
2.043
2.044
2.045
2.046
2.047
2.048
2.049
2.05
2.051
2.052
2.053
2.054
2.055
2.056
2.057
2.058
2.059
2.06
2.061
2.062
2.063
2.064
2.065
2.066
2.067
2.068
2.069
2.07
2.071
2.072
2.073
2.074
2.075
2.076
2.077
2.078
2.079
2.08
2.081
2.082
2.083
2.084
2.085
2.086
2.087
2.088
2.089
2.09
2.091
2.092
2.093
2.094
2.095
2.096
2.097
2.098
2.099
2.1
2.101
2.102
2.103
2.104
2.105
2.106
2.107
2.108
2.109
2.11
2.111
2.112
2.113
2.114
2.115
2.116
2.117
2.118
2.119
2.12
2.121
2.122
2.123
2.124
2.125
2.126
2.127
2.128
2.129
2.13
2.131
2.132
2.133
2.134
2.135
2.136
2.137
2.138
2.139
2.14
2.141
2.142
2.143
2.144
2.145
2.146
2.147
2.148
2.149
2.15
2.151
2.152
2.153
2.154
2.155
2.156
2.157
2.158
2.159
2.16
2.161
2.162
2.163
2.164
2.165
2.166
2.167
2.168
2.169
2.17
2.171
2.172
2.173
2.174
2.175
2.176
2.177
2.178
2.179
2.18
2.181
2.182
2.183
2.184
2.185
2.186
2.187
2.188
2.189
2.19
2.191
2.192
2.193
2.194
2.195
2.196
2.197
2.198
2.199
2.2
2.201
2.202
2.203
2.204
2.205
2.206
2.207
2.208
2.209
2.21
2.211
2.212
2.213
2.214
2.215
2.216
2.217
2.218
2.219
2.22
2.221
2.222
2.223
2.224
2.225
2.226
2.227
2.228
2.229
2.23
2.231
2.232
2.233
2.234
2.235
2.236
2.237
2.238
2.239
2.24
2.241
2.242
2.243
2.244
2.245
2.246
2.247
2.248
2.249
2.25
2.251
2.252
2.253
2.254
2.255
2.256
2.257
2.258
2.259
2.26
2.261
2.262
2.263
2.264
2.265
2.266
2.267
2.268
2.269
2.27
2.271
2.272
2.273
2.274
3
3.01
3.02
3.03
3.04
3.05
3.06
3.07
3.08
3.09
4 Hard
5 Yes Soft 438,400 72,110
5.01
5.02
5.03
5.04
5.05
5.06
5.07
5.08
5.09
5.1
5.11
5.12
5.13
5.14
5.15
5.16
5.17
6
7 Yes None at Closing, Springing Hard
7.01
7.02
7.03
7.04
7.05
7.06
7.07
7.08
7.09
7.1
7.11
7.12
7.13
7.14
7.15
7.16
7.17
7.18
7.19
7.2
7.21
7.22
7.23
7.24
7.25
7.26
7.27
7.28
7.29
7.3
7.31
7.32
7.33
7.34
7.35
7.36
7.37
7.38
7.39
7.4
7.41
7.42
7.43
7.44
7.45
7.46
7.47
7.48
7.49
7.5
7.51
7.52
7.53
7.54
7.55
7.56
7.57
7.58
7.59
7.6
7.61
7.62
8
Yes Yes Soft 256194
9 Yes Yes Soft 249944
10 Yes Yes Soft 6250
11 Soft
12
13 Hard 6375
14 None at Closing, Springing Hard
15 31875
16
17 None at Closing, Springing Soft 2331.5
18 Hard
19
20
21 119700
22 None at Closing, Springing Hard
23 145625
24 Hard 1163370
25 650000
26
27 None at Closing, Springing Hard
28 Hard
29 Hard
30
31 Hard
32 Hard
33
34
35 None at Closing, Springing Hard
36 Hard 4375
37
38 Yes
38.01
38.02
39 Yes Hard 2000 3731.98
39.01
39.02
39.03
40 None at Closing, Springing Soft
41 Hard 663
42
43 Hard 100000
44 Hard
45
46 Yes Hard
47
48
49 Hard 80000
50 19375
51
52 645.83
53 Hard 18437.5
53.01
53.02
53.03
53.04
53.05
54 None at Closing, Springing Hard 225000
55 Soft
56 1250
56.01
56.02
56.03
56.04
56.05
57 Soft
58
59 None at Closing, Springing Hard 748.5
60
61 500000
62
63 600000
64 None at Closing, Springing Soft
65 250 439
66
67 Hard
68
69
70 Soft
71 Soft at Closing, Springing Hard 14114.04
72 1104.58
73 Yes
74 Soft at Closing, Springing Hard 13581
75
76
77
78
79 Hard
80 Yes Hard 11250
81
82 None at Closing, Springing Hard 256.33
83
84
85 6347
86
87 1736000
88
89 Hard
90 Hard
91 Yes Hard
92 4375
93
94 Hard
95 Hard 10937.5
96
97
98
99 2416.67
100 Hard
101
102
103 12500
104
105
106
107 37090
108 374.71
109 None at Closing, Springing Hard 494.71
110 8437.5
111 Hard
112
112.01
112.02
112.03
113
114
115
116
117 Yes
117.01
117.02
117.03
117.04
118
119
120
121
122 Hard
123 10000
124 Hard
125 Hard 28000
126 Hard
127 550000
128
129
130
131
132
133
134
135
136 31500
137
138
139 None at Closing, Springing Hard 199.59
140 200
141
142
143
144 None at Closing, Springing Soft 195.83
145
146
147
148 1438
149
150
151
152
153 None at Closing, Springing Soft
154
155
156
157 None at Closing, Springing Soft 1385
158
159
160
161 None at Closing, Springing Hard
162 447.67
163
164
165
166
167
168
169
170 Hard
171
172
173
174
175
176
177
178
179
180
181
182 50000
183
184
185
186 238
187
188
189
190
191
192 5800
193
194
195
196
197 10000
198
199
200
201
202
203
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
Upfront Upfront Upfront Upfront Monthly Monthly Monthly Monthly
TI/LC RE Tax Ins. Other Capex Capex TI/LC TI/LC
Loan # Reserve ($) Reserve ($) Reserve ($) Reserve ($) Reserve ($) Reserve Cap ($) Reserve ($) Reserve Cap ($)
------- ----------- ----------- ----------- ----------- ----------- --------------- ----------- ---------------
1 2,661,941 1,472,067 56,563 148,958
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.1
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.2
1.21
1.22
1.23
1.24
1.25
1.26
1.27
1.28
1.29
1.3
1.31
1.32
1.33
1.34
1.35
1.36
1.37
1.38
1.39
1.4
1.41
1.42
1.43
1.44
1.45
1.46
1.47
1.48
1.49
1.5
1.51
1.52
1.53
1.54
1.55
1.56
1.57
1.58
1.59
1.6
1.61
1.62
1.63
1.64
1.65
1.66
1.67
1.68
1.69
1.7
1.71
1.72
1.73
2 6,933,000 684,275 1,370,644 238,167 2,858,250
2
2
2.001
2.002
2.003
2.004
2.005
2.006
2.007
2.008
2.009
2.01
2.011
2.012
2.013
2.014
2.015
2.016
2.017
2.018
2.019
2.02
2.021
2.022
2.023
2.024
2.025
2.026
2.027
2.028
2.029
2.03
2.031
2.032
2.033
2.034
2.035
2.036
2.037
2.038
2.039
2.04
2.041
2.042
2.043
2.044
2.045
2.046
2.047
2.048
2.049
2.05
2.051
2.052
2.053
2.054
2.055
2.056
2.057
2.058
2.059
2.06
2.061
2.062
2.063
2.064
2.065
2.066
2.067
2.068
2.069
2.07
2.071
2.072
2.073
2.074
2.075
2.076
2.077
2.078
2.079
2.08
2.081
2.082
2.083
2.084
2.085
2.086
2.087
2.088
2.089
2.09
2.091
2.092
2.093
2.094
2.095
2.096
2.097
2.098
2.099
2.1
2.101
2.102
2.103
2.104
2.105
2.106
2.107
2.108
2.109
2.11
2.111
2.112
2.113
2.114
2.115
2.116
2.117
2.118
2.119
2.12
2.121
2.122
2.123
2.124
2.125
2.126
2.127
2.128
2.129
2.13
2.131
2.132
2.133
2.134
2.135
2.136
2.137
2.138
2.139
2.14
2.141
2.142
2.143
2.144
2.145
2.146
2.147
2.148
2.149
2.15
2.151
2.152
2.153
2.154
2.155
2.156
2.157
2.158
2.159
2.16
2.161
2.162
2.163
2.164
2.165
2.166
2.167
2.168
2.169
2.17
2.171
2.172
2.173
2.174
2.175
2.176
2.177
2.178
2.179
2.18
2.181
2.182
2.183
2.184
2.185
2.186
2.187
2.188
2.189
2.19
2.191
2.192
2.193
2.194
2.195
2.196
2.197
2.198
2.199
2.2
2.201
2.202
2.203
2.204
2.205
2.206
2.207
2.208
2.209
2.21
2.211
2.212
2.213
2.214
2.215
2.216
2.217
2.218
2.219
2.22
2.221
2.222
2.223
2.224
2.225
2.226
2.227
2.228
2.229
2.23
2.231
2.232
2.233
2.234
2.235
2.236
2.237
2.238
2.239
2.24
2.241
2.242
2.243
2.244
2.245
2.246
2.247
2.248
2.249
2.25
2.251
2.252
2.253
2.254
2.255
2.256
2.257
2.258
2.259
2.26
2.261
2.262
2.263
2.264
2.265
2.266
2.267
2.268
2.269
2.27
2.271
2.272
2.273
2.274
3 64,166 710,424 2,400 64,166 2,600,000
3.01
3.02
3.03
3.04
3.05
3.06
3.07
3.08
3.09
4 456,455 265,608 176,628
5 511,000 38,804 1,005,300
5.01
5.02
5.03
5.04
5.05
5.06
5.07
5.08
5.09
5.1
5.11
5.12
5.13
5.14
5.15
5.16
5.17
6 25,000
7 224,090 1,406,694
7.01
7.02
7.03
7.04
7.05
7.06
7.07
7.08
7.09
7.1
7.11
7.12
7.13
7.14
7.15
7.16
7.17
7.18
7.19
7.2
7.21
7.22
7.23
7.24
7.25
7.26
7.27
7.28
7.29
7.3
7.31
7.32
7.33
7.34
7.35
7.36
7.37
7.38
7.39
7.4
7.41
7.42
7.43
7.44
7.45
7.46
7.47
7.48
7.49
7.5
7.51
7.52
7.53
7.54
7.55
7.56
7.57
7.58
7.59
7.6
7.61
7.62
8
565000 16437.5
9 417456.5 12333.33
10 147543.5 4104.17
11 234666.68
12 34989.69 9754 1500000 1633.33
13 22777.5 1000000 2191.29 52590.9
14
15 133113.6 44518.69 5922
16 60000
17 7640.25 59072.53 9141.56 20000 2331.5 55956 7640.25 183366
18 90532.33 15284.45 450000
19 118796.32 8911.58 5333.33
20 44295 13525
21 19805 4570.17
22 2141.08 4242.25
23 229275 11674.5 9000
24 440103 20500.24 2624 9536 343282
25 250000 109318.78 32744 1907 250000
26 148402.83 13802 138628 1486.09 35666.1 3958.33 142500
27
28 48890 20100
29
30 13439.75 21605.35 971 23333 233330
31
32 1822.21 43733.1
33 77160 25736 5780000 1507 36157 5022 120528
34 65896 214639.3 6166.67
35 7683 276604
36 32345.21 5007.03 10716
37 124105.99 52262 350000 2300
38 90000
38.01
38.02
39 1865.9 44782
39.01
39.02
39.03
40 100
41 17117.12 663 31824
42 150067.17 3283.33 118200
43 676796 43320.19 65000 1808.25 150000
44 62983.41 182000 1556.5 6218.5
45 33400 49613.08 3666.67 44000
46 69662 639.58 400000 975
47 7135.59 467800 8291.67
48 62020 23566.5 16666 18465
49 608233 1827.48
50 3100.56 1746 8731 307327
51 7795 250000
52 29750 6662.25 1000000 645.83 25000
53 133133 15757 1065000 1065.44
53.01
53.02
53.03
53.04
53.05
54 100000 78927 1112.08 4473.72 261054
55 21878 12832.3 4683.33 168600
56 185008.7 33513.69 2667 64008
56.01
56.02
56.03
56.04
56.05
57 165000 5333.33
58 731
59 5068.92
60 9160.47 708859.55 404 14533 2000 120000
61 65643.08 1354.06 500000 766
62 21856 2640 1767 63600
63 10249.23 7013.13 708350 650
64 677250
65 11861 1470.35 439 15800 1463 52667
66 11214.18 2794.67
67 33779.79 2500 90000 1774.42 63879
68 57620.68 21873.26 4680 112320
69 119157 13782 20354
70 88191.67 3628.68 6416.67
71 9375 14114.04
72 23133.17 8004.15 1104.58
73 44790 6354
74 9175 1131.75 13581
75 42154.35 631.58 1116.67 20000
76 56714.12 1025.94 50000 980 1106
77 18005.02 6512.88 864.8 31132.5
78 125000 20027.25 1674.5 27933 316.25 11385 125000
79
80 50000 14934.68 2384.42 369.4 13300 1250 90000
81 58373.21 2115.83 2791.67
82 10009.74 1754.9 256.33 9228
83 19923.04 9561.04 1575000 902.09 21650.16
84 28853.77 6259.88 915 32940
85 61644.07 6347
86 100000 26315.91 3912.66 977.33 100000
87 42938 29700 4125
88 4572.85 3815.32 106000 1116.67
89 11454.96 3366.8 313906 195.73 11744 1468 52848
90
91 21843.13 287026.2 657.17 2956.67
92 91785.35 34190.87
93 38268
94 89902 22636.67 7253
95 500000 14459.17 2952 200000 1085 3544.29 127594
96
97 9844.89 1376.81 352000 164.42
98 33021.23 71000
99 41125.61 2416.67 87000
100
101 37200 2776 512 30720
102 87551.34 16196.95
103 18943.8 1446.84 1625
104 23909.2 6408.48 680000 303.63 10930 1052.57 31892.4
105 65952.06 5846.97 2000
106 150000 61563.25 78380.78 239014 769.6 3732.56 225000
107 33000 1341.14 3100.67
108 2498.08 54678.19 2789.6 125000 2498.08
109 103430.01 30276.41 492.8 494.71 3430.01
110 33352.59 29130 2770.83
111 600.42 28820 2001.5 96072
112 18502.8 11102.22
112.01
112.02
112.03
113 15900.52 1680.5 148.43 1129.92
114 29188.17 4109.7
115 17242.02 3056.54 1833.33 88000
116 17703.17 18672 300040 4933.67 177612
117 3181.9 93985.58 5475.59 748.68 44921 3181.9 190914
117.01
117.02
117.03
117.04
118 20513.3
119 6987.03 7405 288.58 17315 961.88 57712.8
120 25491.6 10465.24 200000 779.58 1549.17 37180
121 9440.64 3142.5 125 4500 500 18000
122
123 215000 6861.68 2476.74 10000 215000
124
125 525
126 152
127 31878.54 550000 116 4184 900 55000
128 18880 624.16 131.25 7875 437.5 26250
129 23247.28 2346.48 300 18000 1000 60000
130 1666.67 2066.61 6209.52 15860 1667.67 40000
131 17857 1691.84
132 15812.86 4127.75 650.42 23415
133 2298.7 1028.8 996 47804
134 19618.35 1512.88 17403.75 89.25 5355 297.5 17850
135 1510.13 775.86 20000 76.81 902.75 30000
136 3487.02 2479.96 212
137
138 55738.76 1965.09 187.5 937.5
139 2757.65 4311.3 199.59 7185
140 1785 23952.25 200 7200 48000
141
142 26566.61 1077 100 6000 500 30000
143 11323.08 3357.09 81.91 409.54
144 30000 14579.38 1242.68 195.83 30000
145 33749.94 4994.2 269.83 1349.25 32500
146
147 22285.82 3593.7 641 15384 1854 45000
148 7631.13 2595.34 500 1438
149 39455.6 686.88 20000
150 13864.41 1651.28
151
152 8454 1226.86 520.83
153
154 176.81 4243.5 1178.75 28290
155 16916.69 1526.25 148.13 8887.8 493.75 29625
156 19245.25 1794.84 121.75 487.08 25000
157 2506 10277.7 14251.39 1385 2506 90216
158 12882.8 1425.84
159
160 3456.88 1516.69
161 9756.39 7666.5
162 2083.33 21176.31 2785.13 447.67 16116 2083.33 75000
163 17809.75 1544.22
164 18776.1 1270.5 187 872.67 40000
165
166 10206.7 1363.5
167 11060.98 1344.68
168 150.46 468.25 35000
169 35988.03 888.98 189.88 949.38 40000
170 3907.02 528.92 166216 74.58 4475 496.25 29775
171
172 40028.31 3190 60.42 302.08
173
174
175 8745 2886.24 28856.25 132.75 885.17
176
177 9835 1182.6 102.5 662.67
178 60000 19222 670.84 120 7200 60000
179 15638.36
180 11168.61 1658.16
181 33568 3812 122.92 505.42 18195
182 16677.15 920.16
183 4932.96 583.33 407.83
184 11228.52 196 131.25 821.92 49315.2
185 5733.09 133.33
186 1897 5372.47 1886.33 100000 238 1897 45528
187 16287 515
188 4720.08 619
189 19643.19 610 12960
190 11137.04 1264.68
191
192 60000 12456.65 830.84
193 13501.65 722
194
195 22087.53 810.16 104.17 5000 600 30000
196 15778.75 4191.36
197 215000 6861.68 2476.74
198 1455 5062.86 22000
199
200 4164.18 812 99.33 3576 744.08 44645
201
202 8440 119 50000 166.67 10000 1041.67
203
204 2915.79 327.16 68640 61.45 3687.5 410.42 24625
205 4289 5506.56 95.92 511.5 15000
206 1928 1142
207 24099.24 1848
208 4164.84 435.33 54687.83 124.83 462.92
209
210 4568.64 571.16 166.67
211 3013.92 376.84
212 3426.45 826.02 66.25
213 830.86 737.34
214
215
216 697.68 756
217
218
Monthly Monthly Monthly
RE Tax Ins. Other Xxxxx Xxxxx
Loan # Reserve ($) Reserve ($) Reserve ($) to Late to Default
------- ----------- ----------- ----------- ------- -----------------------------------
1 380,277 163,563 0 0
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.1
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.2
1.21
1.22
1.23
1.24
1.25
1.26
1.27
1.28
1.29
1.3
1.31
1.32
1.33
1.34
1.35
1.36
1.37
1.38
1.39
1.4
1.41
1.42
1.43
1.44
1.45
1.46
1.47
1.48
1.49
1.5
1.51
1.52
1.53
1.54
1.55
1.56
1.57
1.58
1.59
1.6
1.61
1.62
1.63
1.64
1.65
1.66
1.67
1.68
1.69
1.7
1.71
1.72
1.73
2 1,218,340 0 0
2 0 0
2 0 0
2.001
2.002
2.003
2.004
2.005
2.006
2.007
2.008
2.009
2.01
2.011
2.012
2.013
2.014
2.015
2.016
2.017
2.018
2.019
2.02
2.021
2.022
2.023
2.024
2.025
2.026
2.027
2.028
2.029
2.03
2.031
2.032
2.033
2.034
2.035
2.036
2.037
2.038
2.039
2.04
2.041
2.042
2.043
2.044
2.045
2.046
2.047
2.048
2.049
2.05
2.051
2.052
2.053
2.054
2.055
2.056
2.057
2.058
2.059
2.06
2.061
2.062
2.063
2.064
2.065
2.066
2.067
2.068
2.069
2.07
2.071
2.072
2.073
2.074
2.075
2.076
2.077
2.078
2.079
2.08
2.081
2.082
2.083
2.084
2.085
2.086
2.087
2.088
2.089
2.09
2.091
2.092
2.093
2.094
2.095
2.096
2.097
2.098
2.099
2.1
2.101
2.102
2.103
2.104
2.105
2.106
2.107
2.108
2.109
2.11
2.111
2.112
2.113
2.114
2.115
2.116
2.117
2.118
2.119
2.12
2.121
2.122
2.123
2.124
2.125
2.126
2.127
2.128
2.129
2.13
2.131
2.132
2.133
2.134
2.135
2.136
2.137
2.138
2.139
2.14
2.141
2.142
2.143
2.144
2.145
2.146
2.147
2.148
2.149
2.15
2.151
2.152
2.153
2.154
2.155
2.156
2.157
2.158
2.159
2.16
2.161
2.162
2.163
2.164
2.165
2.166
2.167
2.168
2.169
2.17
2.171
2.172
2.173
2.174
2.175
2.176
2.177
2.178
2.179
2.18
2.181
2.182
2.183
2.184
2.185
2.186
2.187
2.188
2.189
2.19
2.191
2.192
2.193
2.194
2.195
2.196
2.197
2.198
2.199
2.2
2.201
2.202
2.203
2.204
2.205
2.206
2.207
2.208
2.209
2.21
2.211
2.212
2.213
2.214
2.215
2.216
2.217
2.218
2.219
2.22
2.221
2.222
2.223
2.224
2.225
2.226
2.227
2.228
2.229
2.23
2.231
2.232
2.233
2.234
2.235
2.236
2.237
2.238
2.239
2.24
2.241
2.242
2.243
2.244
2.245
2.246
2.247
2.248
2.249
2.25
2.251
2.252
2.253
2.254
2.255
2.256
2.257
2.258
2.259
2.26
2.261
2.262
2.263
2.264
2.265
2.266
2.267
2.268
2.269
2.27
2.271
2.272
2.273
2.274
3 169,951 5 5
3.01
3.02
3.03
3.04
3.05
3.06
3.07
3.08
3.09
4 65,208 20,808 0 0
5 0 0
5.01
5.02
5.03
5.04
5.05
5.06
5.07
5.08
5.09
5.1
5.11
5.12
5.13
5.14
5.15
5.16
5.17
6 5 5
7 0 0
7.01
7.02
7.03
7.04
7.05
7.06
7.07
7.08
7.09
7.1
7.11
7.12
7.13
7.14
7.15
7.16
7.17
7.18
7.19
7.2
7.21
7.22
7.23
7.24
7.25
7.26
7.27
7.28
7.29
7.3
7.31
7.32
7.33
7.34
7.35
7.36
7.37
7.38
7.39
7.4
7.41
7.42
7.43
7.44
7.45
7.46
7.47
7.48
7.49
7.5
7.51
7.52
7.53
7.54
7.55
7.56
7.57
7.58
7.59
7.6
7.61
7.62
8 0 0
56037.1 29264.57 0 0
9 41514.2 21957.7 0 0
10 14522.9 7306.87 0 0
11 58666.67 8073.39 0 0
12 11663.23 812.83 0 0
13 44141.06 3796.25 0 0
14 0 2
15 14790.4 5152.34 0 0
16 0 5 (once during any 12 month period)
17 19690.84 3047.19 7 7
18 22633.08 0 0
19 14849.54 4455.79 0 0
20 14765 2255 0 0
21 19805 4570.17 0 0
22 0 2
23 38212.4 5837.25 0 0
24 22594.11 2562.53 3 3
25 21863.76 0 0
26 13491.17 2300.33 0 0
27 0 2
28 9778 0 0
29 0 0
30 13439.75 0 0
31 0 0
32 16336.86 1986.69 0 0
33 15432 3217 0 0
34 10982 20367.85 0 0
35 14164.15 536.29 0 0
36 16172.61 5007.03 0 0
37 11282.36 4355.17 0 0
38 15000 0 10
38.01
38.02
39 0 0
39.01
39.02
39.03
40 10 10
41 17117.12 5 5
42 16674.13 0 0
43 21660.1 2115 0 0
44 10497.23 1989.08 0 0
45 6680 4510.28 0 0
46 8707.75 639.58 0 0
47 2749.53 2378.53 0 0
48 12404 3927.75 4167 0 0
49 41156.5 1827.48 0 0
50 6881.86 3100.56 0 0
51 0 0
52 5950 1665.56 0 0
53 16641.6 1969.62 0 0
53.01
53.02
53.03
53.04
53.05
54 13155 1543.08 0 0
55 10939 12832.3 0 0
56 22414.7 2792.81 0 0
56.01
56.02
56.03
56.04
56.05
57 16287.51 9495.36 0 0
58 0 0
59 0 2
60 3002.26 3053.49 0 0
61 9377.58 1354.06 0 0
62 5464 440 0 0
63 5124.61 1001.88 0 0
64 5 5
65 2965 735.18 0 0
66 11214.18 1397.33 0 0
67 11259.93 2077.83 0 0
68 14405.17 10936.63 0 0
69 20969 3445.5 0 0
70 8819.17 5219.92 0 0
71 5 5
72 5783.29 727.65 5 5
73 7837 3177 0 0
74 5 5
75 14051.45 631.58 0 0
76 11342.82 1025.94 0 0
77 1636.82 592.08 5 0
78 4005.45 837.25 0 0
79 0 0
80 7467.34 1192.21 0 0
81 8339.03 2115.83 0 0
82 5004.87 877.45 5 5
83 4980.76 1195.13 0 0
84 2623.07 569.08 0 0
85 20548.02 5 5
86 8771.96 1304.22 0 0
87 8588 3300 0 0
88 2286.42 1907.66 0 0
89 954.58 673.36 5 0
90 35625 2555.65 0 0
91 3640.52 833.58 0 0
92 3108.26 5 5
93 9567 10 0
94 12843 4528 0 0
95 7229.58 1476 0 0
96 0 0
97 1968.98 458.94 5 5
98 4127.65 1702.75 5 5
99 5875.09 2129.31 5 5
100 0 0
101 9300 1388 0 0
102 14591.89 2313.85 0 0
103 3788.76 723.42 0 0
104 3415.6 1068.08 0 0
105 10992.01 1948.99 0 0
106 8794.75 7125.53 0 0
107 5500 0 0
108 7811.17 348.7 0 0
109 10092.14 419.83 0 0
110 11117.53 2427.5 0 0
111 0 0
112 3700.56 1233.58 0 0
112.01
112.02
112.03
113 3975.13 840.25 10 10
114 5 5
115 2873.67 1528.27 0 0
116 2529.02 1867.2 0 0
117 11122.43 782.23 0 0
117.01
117.02
117.03
117.04
118 2564.16 782.16 5 5
119 2329.01 740.5 0 0
120 3186.45 5232.62 0 0
121 1573.44 628.5 0 0
122 0 0
123 1715.42 825.58 0 0
124 0 0
125 262.5 0 0
126 0 0
127 0 0
128 3776 312.08 0 0
129 3321.04 391.08 0 0
130 688.87 887.08 5 5
131 2551 845.92 0 0
132 2258.98 375.25 5 0
133 287.34 1028.8 0 0
134 3923.67 378.22 0 0
135 1510.13 387.93 0 0
136 1743.51 619.99 0 0
137 0 0
138 8840.87 655.03 0 0
139 919.21 2155.65 5 5
140 297.5 5 5
141 0 0
142 3795.23 179.5 0 0
143 1258.12 1119.03 0 0
144 2429.9 621.34 5 5
145 4821.42 499.42 0 0
146 5 5
147 7428.61 326.7 0 0
148 3815.57 865.11 5 5
149 7891.12 0 0
150 1980.63 825.64 0 0
151 0 0
152 2818 613.43 0 0
153 5 5
154 0 0
155 2416.67 305.25 0 0
156 3849.05 897.42 0 0
157 2569.43 1583.49 5 5
158 1840.4 712.92 0 0
159 0 0
160 864.22 216.67 0 0
161 3252.13 1277.75 0 0
162 2647.04 278.51 5 5
163 2544.25 772.11 0 0
164 3755.22 635.25 0 0
165 0 0
166 1458.1 681.75 0 0
167 1580.14 672.33 0 0
168 1717.08 426.17 0 0
169 3998.67 444.49 0 0
170 651.17 264.46 0 0
171 0 0
172 5718.33 265.83 0 0
173 0 0
174 0 0
175 874.5 1443.12 0 0
176 0 0
177 2458.75 591.3 0 0
178 2402.75 335.42 0 0
179 2606.42 0 0
180 5584.31 829.08 0 0
181 4196 1906 0 0
182 3335.43 460.08 0 0
183 1644.32 583.33 0 0
184 1871.42 196 0 0
185 1911.03 133.33 0 0
186 1790.83 314.39 10 5
187 2714.5 257.5 0 0
188 1180.02 309.5 0 0
189 2806.17 308 0 0
190 2784.26 632.34 0 0
191 0 0
192 2491.33 415.42 0 0
193 2700.33 361 0 0
194 0 0
195 2454.17 405.08 0 0
196 3155.75 523.92 10 0
197 1715.42 825.58 0 0
198 485 562.54 0 0
199 0 0
200 694.03 406 0 0
201 0 0
202 2110 119 0 0
203 0 0
204 971.92 163.58 0 0
205 857.8 458.88 0 0
206 482 571 0 0
207 4016.54 249 0 0
208 1041.21 217.67 0 0
209 0 0
210 1142.16 285.58 0 0
211 1004.64 188.42 0 0
212 1142.15 413.01 0 0
213 415.43 368.67 0 0
214 0 0
215 0 0
216 232.56 84 0 0
217 0 0
218 0 0
SCHEDULE II
LIST OF MORTGAGE LOANS WITH SECURED CREDITOR ENVIRONMENTAL INSURANCE POLICIES
Loan Number Property Name
-------------------------------- -----------------------------------------------
None None.
SCHEDULE III
[RESERVED]
SCHEDULE IV
CLASS A-SB PLANNED PRINCIPAL BALANCE SCHEDULE
Principal
Distribution Balance ($)
------------- ---------------
09/2007 $72,676,000.00
10/2007 $72,676,000.00
11/2007 $72,676,000.00
12/2007 $72,676,000.00
01/2008 $72,676,000.00
02/2008 $72,676,000.00
03/2008 $72,676,000.00
04/2008 $72,676,000.00
05/2008 $72,676,000.00
06/2008 $72,676,000.00
07/2008 $72,676,000.00
08/2008 $72,676,000.00
09/2008 $72,676,000.00
10/2008 $72,676,000.00
11/2008 $72,676,000.00
12/2008 $72,676,000.00
01/2009 $72,676,000.00
02/2009 $72,676,000.00
03/2009 $72,676,000.00
04/2009 $72,676,000.00
05/2009 $72,676,000.00
06/2009 $72,676,000.00
07/2009 $72,676,000.00
08/2009 $72,676,000.00
09/2009 $72,676,000.00
10/2009 $72,676,000.00
11/2009 $72,676,000.00
12/2009 $72,676,000.00
01/2010 $72,676,000.00
02/2010 $72,676,000.00
03/2010 $72,676,000.00
04/2010 $72,676,000.00
05/2010 $72,676,000.00
06/2010 $72,676,000.00
07/2010 $72,676,000.00
08/2010 $72,676,000.00
09/2010 $72,676,000.00
10/2010 $72,676,000.00
11/2010 $72,676,000.00
12/2010 $72,676,000.00
01/2011 $72,676,000.00
02/2011 $72,676,000.00
03/2011 $72,676,000.00
04/2011 $72,676,000.00
05/2011 $72,676,000.00
06/2011 $72,676,000.00
07/2011 $72,676,000.00
08/2011 $72,676,000.00
09/2011 $72,676,000.00
10/2011 $72,676,000.00
11/2011 $72,676,000.00
12/2011 $72,676,000.00
01/2012 $72,676,000.00
02/2012 $72,676,000.00
03/2012 $72,676,000.00
04/2012 $72,676,000.00
05/2012 $72,676,000.00
06/2012 $72,675,933.37
07/2012 $71,754,276.01
08/2012 $70,781,118.59
09/2012 $69,726,101.84
10/2012 $68,500,212.09
11/2012 $67,433,343.47
12/2012 $66,195,924.40
01/2013 $65,117,082.07
02/2013 $64,032,634.17
03/2013 $62,449,239.80
04/2013 $61,350,926.53
05/2013 $60,082,918.60
06/2013 $58,972,308.38
07/2013 $57,692,338.16
08/2013 $56,569,304.58
09/2013 $55,440,435.14
10/2013 $54,142,702.63
11/2013 $53,001,222.12
12/2013 $51,691,221.74
01/2014 $50,537,000.50
02/2014 $49,376,780.88
03/2014 $47,724,590.89
04/2014 $46,549,752.54
05/2014 $45,207,302.14
06/2014 $44,019,398.17
07/2014 $42,664,220.13
08/2014 $41,463,119.69
09/2014 $40,255,736.49
10/2014 $38,881,626.93
11/2014 $37,660,825.41
12/2014 $36,273,662.70
01/2015 $35,039,304.88
02/2015 $33,798,531.01
03/2015 $32,073,203.12
04/2015 $30,817,009.45
05/2015 $29,395,417.73
06/2015 $28,125,303.81
07/2015 $26,690,170.66
08/2015 $25,405,993.34
09/2015 $24,115,140.27
10/2015 $22,659,832.35
11/2015 $21,354,702.60
12/2015 $19,885,506.52
01/2016 $18,565,953.27
02/2016 $17,239,539.85
03/2016 $15,593,048.08
04/2016 $14,251,177.67
05/2016 $12,746,244.26
06/2016 $11,410,601.68
07/2016 $9,913,548.09
08/2016 $8,563,167.11
09/2016 $7,205,760.03
10/2016 $5,687,534.12
11/2016 $4,315,164.60
12/2016 $2,782,383.35
01/2017 $1,394,897.38
02/2017 $ 191.71
03/2017 and
thereafter $ 0.00
SCHEDULE V
SUB-SERVICERS AS TO WHICH SUB-SERVICING AGREEMENTS ARE IN EFFECT ON THE
CLOSING DATE
Subservicer Property Name
-------------------------------------------- ----------------------------------
CBRE Melody of Texas, LP (LJ Melody Company) Park at Lakeside Apartments
Evergreen Pointe Apartments
Xxxxxxx Park Apartments
Plaza Apartments
Eagles Landing Apartments
The Haven Apartments
Bridgeway Tech Center I
Collateral Real Estate Capital, LLC Oakleigh Apartments
Xxxxxxxx Xxxxxxxx Xxxxxx, X.X. Bandera Trails Center
Skyridge MHP
Gateway Office Plaza
Laureate Capital LLC Xxxxxxx'x Creek Crossing
Northmarq Capital Inc. Best Buy
Walgreens - Long Beach
Providence Plaza Retail
Red Mortgage Capital, Inc. Xxxxxxxx Park Apartments Homes
SCHEDULE VI
LIST OF MORTGAGE LOANS REQUIRING
OPERATIONS AND MAINTENANCE PLANS
Mortgage Loan Seller Loan Name
-------------------------------- ----------------------------------------
Countrywide Park at Lakeside Apartments
Countrywide Hilltop Plaza Retail
Countrywide Xxxxxxxx Park Apartments
Countrywide Summercrest Apts
Countrywide Oakleigh Apartments
Countrywide Celebration at Six Forks
Countrywide Chadron Avenue Apartments
Countrywide Mapleridge Shopping Center
Countrywide 0000 Xxxxxxxx Xx
Countrywide Plaza Apartments
Countrywide Edge Lake Apartments
Countrywide Brooklyn Apartments
Countrywide Sevilla Apartments
Countrywide Raleigh Eastgate Shopping Center
Countrywide Grandview Plaza
Countrywide 0000 Xxx Xxxxxx
Countrywide 000 X. Xxxxx Xxxx. Retail
Countrywide Emerick Manor Apartments
Countrywide Main Streeet Retail
Countrywide 0000 Xxxx Xxxxxx Retail
Countrywide 0000 Xxxx Xxxxxx Retail
Countrywide 00000 Xxxx Xxxx.
Countrywide 0000 Xxxxxxx Xxx Retail
Countrywide 00000 Xxxxxxx Xx Apts
Countrywide 2247 North Milwaukee
Countrywide 0000 Xxxx Xxxx Xx.
Countrywide Orizaba Avenue Apartments
Countrywide Encino Retail
Countrywide Blackstone 222
Countrywide 2400 Bissonnet
Countrywide Townsgate Shopping Center
Countrywide El Xxxxx MHP
Countrywide 000 Xxxx Xxxx Xx Office
Countrywide 000 Xxxxxxxx Xxx.
KeyBank Blue Family Holdings
KeyBank AEgis and Madison
KeyBank Cumberland Green Apartments
KeyBank Executive Hills Portfolio
KeyBank Auto Zone
KeyBank Timbercreek Apartments
KeyBank Woodview Apartments
SCHEDULE VII
LIST OF XXXXXXX TRUST MORTGAGE LOANS
WITH LATE PAYMENT CHARGES DUE PRIOR TO EXPIRATION
OF THEIR PAYMENT DATE GRACE PERIODS
None.
EXHIBIT A-1
FORM OF CLASS X-x, X-0,
X-XX, X-0 AND A-1A CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2007-8
CLASS [A-l] [A-2] [A-SB] [A-3] AND [A-1A]
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2007-8
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
[Variable] of this Certificate as of the Closing
Date: $_______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: August 1, 2007 Class [A-l] [A-2] [A-SB] [A-3] [A-1A]
Certificates as of the Closing Date:
$_______________
Closing Date: August 28, 0000 Xxxxxxxxx unpaid principal balance of
First Distribution Date: September 14, the Mortgage Pool as of the Cut-off
2007 Date, after deducting payments of
principal due on or before such date
(the "Initial Pool Balance"):
[$2,435,364,704]
Master Servicers: KeyCorp Real Estate Trustee and Custodian: LaSalle Bank
Capital Markets, Inc. and Xxxxx Fargo National Association
Bank, National Association
Special Servicer: Midland Loan
Services, Inc.
Certificate No.: [A-1] [A-2] [A-SB] CUSIP No.: ______
[A-3] [A-1A]-___
ISIN No.:
[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 CERTIFICATE REGISTRAR, THE TRUSTEE 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, 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., KEYCORP REAL ESTATE CAPITAL MARKETS, INC. AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION, MIDLAND LOAN SERVICES, 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 the Agreement), KeyCorp Real
Estate Capital Markets, Inc. 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),
Midland Loan Services, Inc., as special servicer (the "Special Servicer", which
term includes any successor entity under the Agreement) and LaSalle Bank
National Association, as trustee and custodian (in such capacities, the
"Trustee" and "Custodian", respectively, which terms include any successor
entities 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 after the related Determination Date of any given
month (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 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
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 A-l, Class A-2, Class A-SB, Class A-3, Class AM, Class AJ,
Class A-1A, Class AM-A, Class AJ-A, Class B, Class C, Class D, Class E and Class
F 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, the Custodian and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Master Servicers, the Special Servicer, the Custodian and the
Trustee 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 (i) to maintain the
status of each of REMIC I and REMIC II as a REMIC and (ii) to maintain the
status, and facilitate the administration of, each Grantor Trust as a "grantor
trust" under federal income tax law, in the case each of clause (i) and (ii) of
this sentence 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.
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-SB] [A-3] [A-1A]
Certificates referred to in the within-mentioned Agreement.
Dated: August 28, 2007
LASALLE BANK NATIONAL ASSOCIATION, as
Authenticating Agent
By:
--------------------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto____________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of Assignor
_________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to_____________________
for the account of_______________________________________________.
Distributions made by check (such check to be made payable to_____
_______________) and all applicable statements and notices should be
mailed to __________________________________________________________
___________________________________________________________________.
This information is provided by _____________________________, the
assignee named above, or _____________________________, as its
agent.
EXHIBIT A-2
[RESERVED]
EXHIBIT A-3
FORM OF CLASS X CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2007-8
CLASS X COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-8
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 Original Class X Notional Amount of
Agreement: August 1, 2007 all the Class X Certificates as of the
Closing Date: $_______________
Closing Date: August 28, 0000 Xxxxxxxxx unpaid principal balance of
First Distribution Date: September 14, the Mortgage Pool as of the Cut-off
2007 Date, after deducting payments of
principal due on or before such date
(the "Initial Pool Balance"):
[$2,435,364,704]
Master Servicers: KeyCorp Real Estate Trustee and Custodian: LaSalle Bank
Capital Markets, Inc. and Xxxxx Fargo National Association
Bank, National Association
Special Servicer: Midland Loan
Services, Inc.
Certificate No.: X -___ CUSIP No.: __________
ISIN No.:
[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 CERTIFICATE REGISTRAR, THE TRUSTEE 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, 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., KEYCORP REAL ESTATE CAPITAL MARKETS, INC. AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION, MIDLAND LOAN SERVICES, 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 [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),
KeyCorp Real Estate Capital Markets, Inc. 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), Midland Loan Services, Inc., as special servicer (the "Special
Servicer", which term includes any successor entity under the Agreement) and
LaSalle Bank National Association, as trustee and custodian (in such capacities,
the "Trustee" and "Custodian", respectively, which terms include any successor
entities under the Agreement), 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 after the related Determination Date of any given
month (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 service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master 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
the Master Servicers, 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, the Master Servicers, 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 A-l, Class A-2, Class A-SB, Class A-3, Class AM, Class AJ,
Class A-1A, Class AM-A, Class AJ-A, Class B, Class C, Class D, Class E and Class
F 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, the Custodian and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Master Servicers, the Special Servicer, the Custodian and the
Trustee 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 (i) to maintain the
status of each of REMIC I and REMIC II as a REMIC and (ii) to maintain the
status, and facilitate the administration of, each Grantor Trust as a "grantor
trust" under federal income tax law, in the case each of clause (i) and (ii) of
this sentence 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.
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: August 28, 2007
LASALLE BANK NATIONAL ASSOCIATION, as
Authenticating Agent
By:
--------------------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto____________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of Assignor
_________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to_____________________
for the account of_______________________________________________.
Distributions made by check (such check to be made payable to_____
_______________) and all applicable statements and notices should be
mailed to __________________________________________________________
___________________________________________________________________.
This information is provided by _____________________________, the
assignee named above, or _____________________________, as its
agent.
EXHIBIT A-4
FORM OF CLASS AM, AJ, AM-A, AJ-A, B, C, D, E AND F CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2007-8
CLASS [AM] [AJ] [AM-A] [AJ-A] [B] [C] [D] [E] [F] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2007-8
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
[Variable] of this Certificate as of the Closing
Date: $_______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: August 1, 2007 Class [AM] [AJ] [AM-A] [AJ-A] [B] [C]
[D] [E] [F] Certificates as of the
Closing Date: $_______________
Closing Date: August 28, 0000 Xxxxxxxxx unpaid principal balance of
First Distribution Date: September 14, the Mortgage Pool as of the Cut-off
2007 Date, after deducting payments of
principal due on or before such date
(the "Initial Pool Balance"):
[$2,435,364,704]
Master Servicers: KeyCorp Real Estate Trustee and Custodian: LaSalle Bank
Capital Markets, Inc. and Xxxxx Fargo National Association
Bank, National Association
Special Servicer: Midland Loan
Services, Inc.
Certificate No.: [AM] [AJ] [AM-A] CUSIP No.: ______
[AJ-A] [B] [C] [D] [E] [F] -___
ISIN No.:
[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 CERTIFICATE REGISTRAR, THE TRUSTEE 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, 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., KEYCORP REAL ESTATE CAPITAL MARKETS, INC. AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION, MIDLAND LOAN SERVICES, INC., LASALLE
BANK NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [CEDE & CO.][________] is the registered owner
of the Percentage Interest evidenced by this Certificate (obtained by dividing
the principal balance of this Certificate (its "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), KeyCorp Real
Estate Capital Markets, Inc. 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),
Midland Loan Services, Inc., as special servicer (the "Special Servicer", which
term includes any successor entity under the Agreement) and LaSalle Bank
National Association, as trustee and custodian (in such capacities, the
"Trustee" and "Custodian", respectively, which terms include any successor
entities 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 after the related Determination Date of any given
month (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 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
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 A-l, Class A-2, Class A-SB, Class A-3, Class AM, Class AJ,
Class A-1A, Class AM-A, Class AJ-A, Class B, Class C, Class D, Class E and Class
F 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, the Custodian and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Master Servicers, the Special Servicer, the Custodian and the
Trustee 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 (i) to maintain the
status of each of REMIC I and REMIC II as a REMIC and (ii) to maintain the
status, and facilitate the administration of, each Grantor Trust as a "grantor
trust" under federal income tax law, in the case each of clause (i) and (ii) of
this sentence 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.
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] [AM-A] [AJ-A] [B] [C] [D] [E] [F]
Certificates referred to in the within-mentioned Agreement.
Dated: August 28, 2007
LASALLE BANK NATIONAL ASSOCIATION, as
Authenticating Agent
By:
--------------------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto____________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of Assignor
_________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to_____________________
for the account of_______________________________________________.
Distributions made by check (such check to be made payable to_____
_______________) and all applicable statements and notices should be
mailed to __________________________________________________________
___________________________________________________________________.
This information is provided by _____________________________, the
assignee named above, or _____________________________, as its
agent.
EXHIBIT X-0
XXXX XX XXXXX X, X, X, X CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2007-8
CLASS [G] [H] [J] [K] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE, SERIES
2007-8
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
[Variable] of this Certificate as of the Closing
Date: $_______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: August 1, 2007 Class [G] [H] [J] [K] Certificates as
of the Closing Date: $_______________
Closing Date: August 28, 0000 Xxxxxxxxx unpaid principal balance of
First Distribution Date: September 14, the Mortgage Pool as of the Cut-off
2007 Date, after deducting payments of
principal due on or before such date
(the "Initial Pool Balance"):
[$2,435,364,704]
Master Servicers: KeyCorp Real Estate Trustee and Custodian: LaSalle Bank
Capital Markets, Inc. and Xxxxx Fargo National Association
Bank, National Association
Special Servicer: Midland Loan
Services, Inc.
Certificate No.: [G] [H] [J] [K]-___ CUSIP No.: ______
ISIN No.:
[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 CERTIFICATE REGISTRAR, THE TRUSTEE 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., KEYCORP REAL ESTATE CAPITAL MARKETS, INC. AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION, MIDLAND LOAN SERVICES, INC., LASALLE
BANK NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [CEDE & CO.][________] is the registered owner
of the Percentage Interest evidenced by this Certificate (obtained by dividing
the principal balance of this Certificate (its "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), KeyCorp Real
Estate Capital Markets, Inc. 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),
Midland Loan Services, Inc., as special servicer (the "Special Servicer", which
term includes any successor entity under the Agreement) and LaSalle Bank
National Association, as trustee and custodian (in such capacities, the
"Trustee" and "Custodian", respectively, which terms include any successor
entities 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 after the related Determination Date of any given
month (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 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, the Custodian 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 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 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, 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 406 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 Rating Agency, 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 and Prohibited Transaction Exemption
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 Custodian, the Depositor, any Mortgage Loan Seller, the Master
Servicers, the Special Servicer, any Fiscal Agent, any SubServicer, 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.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master 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 A-l, Class A-2, Class A-SB, Class A-3, Class AM, Class AJ,
Class A-1A, Class AM-A, Class AJ-A, Class B, Class C, Class D, Class E and Class
F 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, the Custodian and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Master Servicers, the Special Servicer, the Custodian and the
Trustee 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 (i) to maintain the
status of each of REMIC I and REMIC II as a REMIC and (ii) to maintain the
status, and facilitate the administration of, each Grantor Trust as a "grantor
trust" under federal income tax law, in the case each of clause (i) and (ii) of
this sentence 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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By:
--------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [G] [H] [J] [K] Certificates referred to in
the within-mentioned Agreement.
Dated: August 28, 2007
LASALLE BANK NATIONAL ASSOCIATION, as
Authenticating Agent
By:
--------------------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto____________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of Assignor
_________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to_____________________
for the account of_______________________________________________.
Distributions made by check (such check to be made payable to_____
_______________) and all applicable statements and notices should be
mailed to __________________________________________________________
___________________________________________________________________.
This information is provided by _____________________________, the
assignee named above, or _____________________________, as its
agent.
EXHIBIT A-6
FORM OF CLASS L, M, N, P, Q, S AND T CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2007-8
CLASS [L] [M] [N] [P] [Q] [S] [T] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2007-8
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
[Variable] of this Certificate as of the Closing
Date: $_______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: August 1, 2007 Class [L] [M] [N] [P] [Q] [S] [T]
Certificates as of the Closing Date:
$______________
Closing Date: August 28, 0000 Xxxxxxxxx unpaid principal balance of
First Distribution Date: September 14, the Mortgage Pool as of the Cut-off
2007 Date, after deducting payments of
principal due on or before such date
(the "Initial Pool Balance"):
[$2,435,364,704]
Master Servicers: KeyCorp Real Estate Trustee and Custodian: LaSalle Bank
Capital Markets, Inc. and Xxxxx Fargo National Association
Bank, National Association
Special Servicer: Midland Loan
Services, Inc.
Certificate No.: [L] [M] [N] [P] [Q] CUSIP No.: ______
[S] [T]-___
ISIN No.:
[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 CERTIFICATE REGISTRAR, THE TRUSTEE 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., KEYCORP REAL ESTATE CAPITAL MARKETS, INC. AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION, MIDLAND LOAN SERVICES, INC., LASALLE
BANK NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [CEDE & CO.][________] is the registered owner
of the Percentage Interest evidenced by this Certificate (obtained by dividing
the principal balance of this Certificate (its "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), KeyCorp Real
Estate Capital Markets, Inc. 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),
Midland Loan Services, Inc., as special servicer (the "Special Servicer", which
term includes any successor entity under the Agreement) and LaSalle Bank
National Association, as trustee and custodian (in such capacities, the
"Trustee" and "Custodian", respectively, which terms include any successor
entities 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 after the related Determination Date of any given
month (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 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, the Custodian 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 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 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, 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 406 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 Rating Agency, 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 and Prohibited Transaction Exemption
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 Custodian, 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 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.
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 or 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 A-l, Class A-2, Class A-SB, Class A-3, Class AM, Class AJ,
Class A-1A, Class AM-A, Class AJ-A, Class B, Class C, Class D, Class E and Class
F 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, the Custodian and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Master Servicers, the Special Servicer, the Custodian and the
Trustee 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 , and (ii) to maintain the status, and
facilitate the administration of, each Grantor Trust as a "grantor trust" under
federal income tax law, in the case each of clause (i) and (ii) of this sentence
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.
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 [L] [M] [N] [P] [Q] [S] [T] Certificates
referred to in the within-mentioned Agreement.
Dated: August 28, 2007
LASALLE BANK NATIONAL ASSOCIATION, as
Authenticating Agent
By:
--------------------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto____________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of Assignor
_________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to_____________________
for the account of_______________________________________________.
Distributions made by check (such check to be made payable to_____
_______________) and all applicable statements and notices should be
mailed to __________________________________________________________
___________________________________________________________________.
This information is provided by _____________________________, the
assignee named above, or _____________________________, as its
agent.
EXHIBIT A-7
FORM OF CLASS R-I AND R-II CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2007-8
CLASS [R-I] [R-II] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2007-8
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 Percentage Interest evidenced by this
Agreement: August 1, 2007 Certificate in the related Class: ____%
Closing Date: August 28, 0000 Xxxxxxxxx unpaid principal balance of
First Distribution Date: September 14, the Mortgage Pool as of the Cut-off
2007 Date, after deducting payments of
principal due on or before such date
(the "Initial Pool Balance"):
[$2,435,364,704]
Master Servicers: KeyCorp Real Estate Trustee and Custodian: LaSalle Bank
Capital Markets, Inc. and Xxxxx Fargo National Association
Bank, National Association
Special Servicer: Midland Loan
Services, Inc.
Certificate No.: [R-I] [R-II]-___
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., KEYCORP REAL ESTATE CAPITAL MARKETS, INC. AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION, MIDLAND LOAN SERVICES, 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 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), KeyCorp Real Estate Capital
Markets, Inc. 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), CWCapital Asset Management
LLC, as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement) and LaSalle Bank National Association, as
trustee and custodian (in such capacities, the "Trustee" and "Custodian",
respectively, which terms include any successor entities 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 after the related Determination Date of any given
month (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.
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, the Master Servicers, the Special Servicer
and 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
that is substantially similar to Section 406 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 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 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 (directly or
indirectly, other than through a U.S. corporation) are (or are permitted to be
under the applicable partnership agreement) Disqualified Non-United States Tax
Persons.
A "Non-United States Tax Person" is any Person other than a United
States Tax Person. A "United States Tax Person" is a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision
thereof, or an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise 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 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 A-l, Class A-2, Class A-SB, Class A-3, Class AM, Class AJ,
Class A-1A, Class AM-A, Class AJ-A, Class B, Class C, Class D, Class E and Class
F 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, the Custodian and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Master Servicers, the Special Servicer, the Custodian, 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 (i) to
maintain the status of each of REMIC I and REMIC II as a REMIC and (ii) to
maintain the status, and facilitate the administration of, each Grantor Trust as
a "grantor trust" under federal income tax law, in the case each of clause (i)
and (ii) of this sentence 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 5-140l of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the 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: August 28, 2007
LASALLE BANK NATIONAL ASSOCIATION, as
Authenticating Agent
By:
--------------------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto____________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of Assignor
_________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to_____________________
for the account of_______________________________________________.
Distributions made by check (such check to be made payable to_____
_______________) and all applicable statements and notices should be
mailed to __________________________________________________________
___________________________________________________________________.
This information is provided by _____________________________, the
assignee named above, or _____________________________, as its
agent.
EXHIBIT A-8
FORM OF CLASS Y AND Z CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2007-8
CLASS [Y] [Z]COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2007-8
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 Percentage Interest evidenced by this
Agreement: August 1, 2007 Certificate in Class [Y] [Z]: ___%
Closing Date: August 28, 0000 Xxxxxxxxx unpaid principal balance of
First Distribution Date: September 14, the Mortgage Pool as of the Cut-off
2007 Date, after deducting payments of
principal due on or before such date
(the "Initial Pool Balance"):
[$2,435,364,704]
Master Servicers: KeyCorp Real Estate Trustee and Custodian: LaSalle Bank
Capital Markets, Inc. and Xxxxx Fargo National Association
Bank, National Association
Special Servicer: Midland Loan
Services, Inc.
Certificate No.: [Y] [Z]-___
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., KEYCORP REAL ESTATE CAPITAL MARKETS, INC. AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION, MIDLAND LOAN SERVICES, INC., LASALLE
BANK NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD 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 [Y] [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), KeyCorp Real Estate Capital Markets, Inc. 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), Midland Loan Services, Inc., as special servicer (the
"Special Servicer", which term includes any successor entity under the
Agreement) and LaSalle Bank National Association, as trustee and custodian (in
such capacities, the "Trustee" and "Custodian", respectively, which terms
include any successor entities 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 after the related Determination Date of any given
month (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.
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, the Master Servicers, the Special Servicer
and 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 406 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 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 A-l, Class A-2, Class A-SB, Class A-3, Class AM, Class AJ,
Class A-1A, Class AM-A, Class AJ-A, Class B, Class C, Class D, Class E and Class
F 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, the Custodian and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Master Servicers, the Special Servicer, the Custodian and the
Trustee 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 (i) to maintain the
status of each of REMIC I and REMIC II as a REMIC and (ii) to maintain the
status, and facilitate the administration of, each Grantor Trust as a "grantor
trust" under federal income tax law, in the case each of clause (i) and (ii) of
this sentence 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.
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] [Z] Certificates referred to in the
within-mentioned Agreement.
Dated: August 28, 2007
LASALLE BANK NATIONAL ASSOCIATION, as
Authenticating Agent
By:
--------------------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto____________________________________________________
____________________________________________________________________
____________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of Assignor
_________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to_____________________
for the account of_______________________________________________.
Distributions made by check (such check to be made payable to_____
_______________) and all applicable statements and notices should be
mailed to __________________________________________________________
___________________________________________________________________.
This information is provided by _____________________________, the
assignee named above, or _____________________________, as its
agent.
EXHIBIT B
FORM OF DISTRIBUTION DATE STATEMENT
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
000 X. XxXxxxx Xxxxxx Xxxxx 0000 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 12-Oct-07
USA Record Date: 31-Aug-07
Administrator: Analyst:
Xxxxxxx XxXxxxx 312.992.3773 Xxxxxxx Xxxx 714.259.6253
xxxxxxx.xxxxxxx@xxxxxxx.xxx xxxxxxx.xxxx@xxxxxxx.xxx
ABN AMRO Acct:
Reporting Package Table of Contents
--------------------------------------------------------------------------------
Issue Id: MLCFC078
Monthly Data File Name: MLCFC078_200709_3.ZIP
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Page(s)
-------
Statements to Certificateholders Page 2
Cash Reconciliation Summary Page 3
Bond Interest Reconciliation Page 4
Bond Interest Reconciliation Page 5
Bond Principal Reconciliation Page 6
Shortfall Summary Report Page 7
Asset-Backed Facts ~ 15 Month Loan Status Summary Page 8
Asset-Backed Facts ~ 15 Month Loan Payoff/Loss Summary Page 9
Mortgage Loan Characteristics Page 10
Delinquent Loan Detail Page 11
Loan Level Detail Page 12
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
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Closing Date: 28-Aug-2007
First Payment Date:
Rated Final Payment Date:
Determination Date:
--------------------------------------------------------------------------------
Trust Collection Period
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Parties to The Transaction
--------------------------------------------------------------------------------
Depositor: Xxxxxxx Xxxxx Mortgage Investors, Inc.
Master Servicer: KeyCorp Real Estate Capital Markets, Inc./
Xxxxx Fargo Bank, National Association
Rating Agency: Fitch, Inc./Standard & Poor's
Special Servicer: Midland Loan Services, Inc.
Underwriter: Banc of America Securities LLC/Bear Xxxxxxx & Co. Inc./
Countrywide Securities Corporation/KeyBanc Capital Markets, Inc./
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Information is available for this issue from the following sources
--------------------------------------------------------------------------------
LaSalle Web Site xxx.xxxxxxxx.xxx
Servicer Web Site xxx.xxxxxxx.xxx
LaSalle Factor Line 800.246.5761
--------------------------------------------------------------------------------
Page 1 of 22
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-07
------------------------------------------------------------------------------------------------------------------------------------
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
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-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 0
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 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
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-07
ABN AMRO Acct:
Bond Interest Reconciliation Detail
-----------------------------------------------------------------------------------
Accrual Pass- Accrued Total Total
-------------- Opening Through Certificate Interest Interest
Class Method Days Balance Rate Interest Additions Deductions
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
Current Remaining
Distributable Interest Period Outstanding Credit Support
Certificate Payment Shortfall Interest ---------------------
Class Interest Amount Recovery Shortfalls 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
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-07
ABN AMRO Acct:
Bond Interest Reconciliation Detail
---------------------------------------------------------------------------------------------------------
Additions
--------------------------------------------------------------------------
Prior Current Prior Interest Other
Interest Interest Interest Accrual on Prepayment Yield Interest
Class Due Date Due Date Shortfall Due Prior Shortfall Premiums Maintenance Proceeds(1)
---------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------
Deductions
--------------------------------------
Deferred & Interest Distributable Interest
Allocable Accretion Loss Certificate Payment
Class PPIS Interest Expense Interest Amount
-------------------------------------------------------------------------
(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
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-07
ABN AMRO Acct:
Bond Principal Reconciliation
-----------------------------------------------------------------------------------------------------
Accreted Principal
Int ----------------------------
Beginning Basic Extra Shortfall Pool Extra Pledged
Class Principal Principal Res Fund Loss Principal Certificate
Class Balance Payment Amt Payment Amt Release Allocation Payment Amt Def Interest
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
0.00
-----------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
Interest
Accrued
Prior Cumulative on Pool Rated Credit Support
Losses Pool Ending Losses Final ---------------------
Class Reimbursed Loss Class Balance Cls A - M Maturity Original Current(4)
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
Page 6 of 22
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-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
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-07
ABN AMRO Acct:
Asset-Backed Facts ~ 15 Month Historical Loan Status Summary
----------------------------------------------------------------------------------------------------------
Delinquency Aging Categories
--------------------------------------------------------------------------------------------
Delinq 1 Month Delinq 2 Month Delinq 3+ Month Foreclosure REO
Distribution
Date # Balance # Balance # Balance # Balance # Balance
----------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------
Special Event Categories (1)
------------------------------------------------------------
Modification 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
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-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
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-07
ABN AMRO Acct:
Mortgage Loan Characteristics
Distribution of Principal Balances
Weighted Average
Current Scheduled # of Scheduled % of ------------------------
Balances Loans Balance Balance Term Coupon PFY DSCR
------------------------------ ----- --------- ------- ---- ------ ---------
------------------------------ ----- --------- ------- ---- ------ ---------
0 0 0.00%
------------------------------ ----- --------- ------- ---- ------ ---------
Average Scheduled Balance 0
Maximum Scheduled Balance
Minimum Scheduled Balance
Distribution of Remaining Term (Fully Amortizing)
Weighted Average
Fully Amortizing # of Scheduled % of ------------------------
Mortgage Loans Loans Balance Balance Term Coupon PFY DSCR
------------------------------ ----- --------- ------- ---- ------ ---------
------------------------------ ----- --------- ------- ---- ------ ---------
0 0 0.00%
------------------------------ ----- --------- ------- ---- ------ ---------
Distribution of Mortgage Interest Rates
Weighted Average
Current Mortgage # of Scheduled % of ------------------------
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)
Weighted Average
Balloon # of Scheduled % of ------------------------
Mortgage Loans Loans Balance Balance Term Coupon PFY DSCR
------------------------------ ----- --------- ------- ---- ------ ---------
------------------------------ ----- --------- ------- ---- ------ ---------
0 0 0.00%
------------------------------ ----- --------- ------- ---- ------ ---------
Page 10 of 22
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-07
ABN AMRO Acct:
Delinquent Loan Detail
Paid Outstanding Out. Property Special
Disclosure Thru Current P&I P&I Protection Loan Status Servicer Foreclosure Bankruptcy REO
Control # Date Advance Advances** Advances Code (1) Transfer Date Date Date Date
------------- ---- ----------- ----------- ------------- --------------- ------------- ----------- ---------- ----
Total
(1) :Legend:
A. In Grace Period
B. Late Payment but < 1 month delinq
1. Delinq. 1 month
2. Delinq. 2 months
3. Delinquent 3 + months
4. Performing Matured Balloon
5. Non Performing Matured Balloon
7. Foreclosure
9. REO
** Outstanding P&I Advances include the current period P&I Advances and may
include Servicer Advances.
Page 11 of 22
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-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
B. Late Payment but < one month delinq
1. Delinquent 1 month
2. Delinquent 2 months
3. Delinquent 3+ months
4. Performing Matured Balloon
5. Non Performing Matured Ballon
7. Foreclosure
9. REO
Page 12 of 22
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-07
ABN AMRO Acct:
Realized Loss Detail
Gross Net
Proceeds Proceeds
Beginning as a % of Aggregate Net as a %
Disclosure Appraisal Appraisal Scheduled Gross Sched. Liquidation Liquidation of Sched. Realized
Period Control # Date Value Balance Proceeds Balance Expenses * Proceeds 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
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-07
ABN AMRO Acct:
Bond/Collateral Realized Loss Reconciliation
Interest
Beginning (Shortages)/
Balance of the Aggregate Prior Realized Amounts Covered by Excesses applied
Prospectus Loan at Realized Loss Loss Applied to Overcollateralization to Realized
ID Period Liquidation on Loans Certificates and other Credit Losses
A B C
====================================================================================================================================
Cumulative
Additional (Recoveries)/
Modification (Recoveries)/ Recoveries of Realized Loss
Prospectus Adjustments/Appraisal Expenses applied to Current Realized Loss Realized Losses Applied to
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 Aggregate Realized Loss on Loans - B - C - D + E instead 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
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-07
ABN AMRO Acct:
Appraisal Reduction Detail
Remaining Term
Disclosure Appraisal Scheduled AR Current P&I Note Maturity ---------------- Property Geographic
Control # Red. Date Balance Amount Advance ASER Rate Date Life Type Location
------------- --------- --------- ------ ----------- ---- ---- -------- ------ -------- -------- ----------
------------- --------- --------- ------ ----------- ---- ---- -------- ------ -------- -------- ----------
Appraisal
Disclosure -----------
Control # DSCR Value Date
------------- ---- ----- ----
------------- ---- ----- ----
Page 15 of 22
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-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
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-07
ABN AMRO Acct:
Historical Collateral Level Prepayment Report
-------------------------- ----------------------------------------------------------------- ------------------
Disclosure Payoff Initial Payoff Penalty Prepayment
Control # Period Balance Type Amount Amount Date
-------------------------- ----------------------------------------------------------------- ------------------
-------------------------- ----------------------------------------------------------------- ------------------
-------------------------- --------------------------------------------
Disclosure Maturity Property Geographic
Control # Date Type Location
-------------------------- --------------------------------------------
-------------------------- --------------------------------------------
---------------------------------
Current
Cumulative
---------------------------------
Page 17 of 22
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-07
ABN AMRO Acct:
Specially Serviced (Part I) ~ Loan Detail (End of Period)
---------- --------- -------- ------------------ ------------------------------- ------------------ ---------------
Loan Balance Remaining Term
Disclosure Servicing Status ------------------ Note Maturity --------------- Property Geo. NOI
Control # Xfer Date Code (1) Scheduled Actual Rate Date Life Type Location NOI DSCR Date
---------- --------- -------- --------- ------ ---- -------- --------------- -------- -------- --- ---- ----
------------------------------- ------------------ ------------------------------- ------------------ ---------------
(1) Legend:
A. P&I Adv - in Grace Period
B. P&I Adv - < one month delinq
1. P&I Adv - delinquent 1 month
2. P&I Adv - delinquent 2 months
3. P&I Adv - delinquent 3+ months
4. Mat. Balloon/Assumed P&I
5. Non Performing Mat. Balloon
7. Foreclosure
9. REO
Page 18 of 22
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-07
ABN AMRO Acct:
Specially Serviced Loan Detail (Part II) ~ Servicer Comments (End of Period)
----------------------- ------------------------------------------------------
Disclosure Resolution
Control # Strategy Comments
---------- ---------- ------------------------------------------------------
----------------------- ------------------------------------------------------
Page 19 of 22
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-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
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-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
ML-CFC Commercial Mortgage Trust 2007-8
Commercial Mortgage Pass-Through Certificates
Series 2007-8
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 14-Sep-07
Payment Date: 14-Sep-07
Prior Payment: N/A
Next Payment: 12-Oct-07
Record Date: 31-Aug-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
Attention: Xxxxx X. Xxxxxxx
Xxxxxxx Xxxxx Mortgage Lending, Inc.
4 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Countrywide Commercial Real Estate Finance, Inc.
0000 Xxxx Xxxxxxx XX-000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
KeyBank National Association
Xxx Xxxxx, 000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxx
KeyCorp Real Estate Capital Markets, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Xxxxx Fargo Bank, National Association
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Commercial Mortgage Servicing
Midland Loan Services, Inc.
10851 Xxxxxx, Building 82, 0xx Xxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: President
Re: ML-CFC Commercial Mortgage Trust 2007-8, Commercial Mortgage
Pass-Through Certificates, Series 2007-8
Ladies and Gentlemen:
LaSalle Bank National Association, as Custodian, 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 (i), (ii), (iv)(A), (v)
and (vii) 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
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 (iii), (iv)(B), (iv)(C), (vi) and
(viii) through (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 Custodian, the Trustee, either Master Servicer or the
Special Servicer 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, as
Custodian
By:
--------------------------------------
Name:
Title:
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--ML-CFC Commercial Mortgage
Pass-Through Certificates, Series 2007-8
Re: ML-CFC Commercial Mortgage Trust 2007-8, Commercial Mortgage
Pass-Through Certificates, Series 2007-8
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by
you as Custodian under a certain Pooling and Servicing Agreement dated as of
August 1, 2007 (the "Pooling and Servicing Agreement"), by and among Xxxxxxx
Xxxxx Mortgage Investors, Inc., as Depositor, KeyCorp Real Estate Capital
Markets, Inc. and Xxxxx Fargo Bank, National Association, as Master Servicers,
Midland Loan Services, Inc. as Special Servicer and LaSalle Bank National
Association, as Trustee and Custodian, 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:
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.
[KEYCORP REAL ESTATE CAPITAL MARKETS,
INC.]
[XXXXX FARGO BANK, NATIONAL
ASSOCIATION],
as Master Servicer
By:
--------------------------------------
Name:
Title:
EXHIBIT D-2
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
Pass-Through Certificates, Series 2007-8
Re: ML-CFC Commercial Mortgage Trust 2007-8, Commercial Mortgage
Pass-Through Certificates, Series 2007-8
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by
you as Custodian under a certain Pooling and Servicing Agreement dated as of
August 1, 2007 (the "Pooling and Servicing Agreement"), by and among Xxxxxxx
Xxxxx Mortgage Investors, Inc., as Depositor, KeyCorp Real Estate Capital
Markets, Inc. and Xxxxx Fargo Bank, National Association, as Master Servicers,
Midland Loan Services, Inc., as Special Servicer and LaSalle Bank National
Association, as Trustee and Custodian, 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:
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.
MIDLAND LOAN SERVICES, INC.
as Special Servicer
By:
--------------------------------------
Name:
Title:
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
Pass-Through Certificates, Series 2007-8
Re: ML-CFC Mortgage Trust 2007-8, Commercial Mortgage Pass-Through
Certificates, Series 2007-8, Class _____, [having an initial
aggregate [Certificate Principal Balance] [Certificate Notional
Amount] as of August 28, 2007 (the "Closing Date") of
$______________] [representing a____________% Percentage Interest in
the subject Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
______________________________ (the "Transferor") to
______________________________ (the "Transferee") of the captioned Certificates
(the "Transferred Certificates"), pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of August
1, 2007, between Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, KeyCorp
Real Estate Capital Markets, Inc. and Xxxxx Fargo Bank, National Association, as
Master Servicers, Midland Loan Services, Inc., as Special Servicer and LaSalle
Bank National Association, as Trustee and Custodian. All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby certifies, represents
and warrants to you, as Certificate Registrar, and for the benefit of the
Trustee and the Depositor, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from any and
all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action with respect
to any Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of the
Transferred Certificates under the Securities Act of 1933, as amended (the
"Securities Act"), would render the disposition of the Transferred Certificates
a violation of Section 5 of the Securities Act or any state securities laws, or
would require registration or qualification of the Transferred Certificates
pursuant to the Securities Act or any state securities laws.
Very truly yours,
-----------------------------------------
(Transferor)
By:
--------------------------------------
Name:
Title:
EXHIBIT 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
Pass-Through Certificates, Series 2007-8
Re: ML-CFC Commercial Mortgage Trust 2007-8, Commercial Mortgage
Pass-Through Certificates, Series 2007-8, Class ____, [having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of August 28, 2007 (the "Closing Date") of
$____________________] [representing a________% Percentage Interest
in the subject Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
______________________________ (the "Transferor") to
______________________________ (the "Transferee") of the captioned Certificates
(the "Transferred Certificates"), pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of August
1, 2007, between Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, KeyCorp
Real Estate Capital Markets, Inc. and Xxxxx Fargo Bank, National Association, as
Master Servicers, Midland Loan Services, Inc., as Special Servicer and LaSalle
Bank National Association, as Trustee and Custodian. All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and warrants to you, as Certificate Registrar, and for the benefit of the
Trustee and the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act of 1933, as amended (the "Securities Act"), and has completed
one of the forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the sale to it is being made in reliance
on Rule 144A. The Transferee is acquiring the Transferred Certificates for its
own account or for the account of another Qualified Institutional Buyer, and
understands that such Transferred Certificates may be resold, pledged or
transferred only (a) to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own account or for the account of
another Qualified Institutional Buyer and to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions thereon,
(c) the nature, performance and servicing of the Mortgage Loans, (d) the Pooling
and Servicing Agreement and the Trust Fund created pursuant thereto, and (e) all
related matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
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:
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.
______ Savings and Loan. The Transferee (a) is a savings and
loan association, building and loan association,
cooperative bank, homestead association or similar
institution, which is supervised and examined by a state
or federal authority having supervision over any such
institutions, or is a foreign savings and loan
association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements,
a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the
Transferred Certificates in the case of a U.S. savings
and loan association, and not more than 18 months
preceding such date of sale in the case of a foreign
savings and loan association or equivalent institution.
----------------------------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
______ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of
1934, as amended.
______ Insurance Company. The Transferee is an insurance
company whose primary and predominant business activity
is the writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject
to supervision by the insurance commissioner or a
similar official or agency of a state, U.S. territory or
the District of Columbia.
______ State or Local Plan. The Transferee is a plan
established and maintained by a state, its political
subdivisions, or any agency or instrumentality of the
state or its political subdivisions, for the benefit of
its employees.
______ ERISA Plan. The Transferee is an employee benefit plan
within the meaning of Title I of the Employee Retirement
Income Security Act of 1974.
______ Investment Advisor. The Transferee is an investment
advisor registered under the Investment Advisers Act of
1940.
______ QIB Subsidiary. All of the Transferee's equity owners
are "qualified institutional buyers" within the meaning
of Rule 144A.
______ Other. (Please supply a brief description of the entity
and a cross-reference to the paragraph and subparagraph
under subsection (a)(1) of Rule 144A pursuant to which
it qualifies. Note that registered investment companies
should complete Annex 2 rather than this Annex 1)________
___________________________________________________________
___________________________________________________________
___________________________________________________________
__________________________________________________________.
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the Transferee did
not include (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such Person is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the Transferee
used the cost of such securities to such Person, unless such Person reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of such Person, but only if such subsidiaries
are consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned, consolidated
subsidiary of another enterprise and such Person is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that
the Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one or
more sales to the Transferee may be in reliance on Rule 144A.
_____ _____ Will the Transferee be purchasing the Transferred
Yes No 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.
-----------------------------------------
(Transferee)
By:
--------------------------------------
Name:
Title:
Date:
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).
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:
IF AN ADVISER:
-----------------------------------------
(Transferee)
Date:
------------------------------------
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
Pass-Through Certificates, Series 2007-8
Re: ML-CFC Commercial Mortgage Trust 2007-8, Commercial Mortgage
Pass-Through Certificates, Series 2007-8, Class _____, [having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of August 28, 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 August
1, 2007, between Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, KeyCorp
Real Estate Capital Markets, Inc. and Xxxxx Fargo Bank, National Association, as
Master Servicers, Midland Loan Services, Inc., as Special Servicer and LaSalle
Bank National Association, as Trustee and Custodian. All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and warrants to you, as Certificate Registrar, and for the benefit of the
Trustee and the Depositor, that:
1. The Transferee is acquiring the Transferred Certificates for its
own account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or registered
or qualified under any applicable state securities laws, (b) none of the
Depositor, the Trustee or the Certificate Registrar is obligated so to register
or qualify the Class of Certificates to which the Transferred Certificates
belong, and (c) neither a Transferred Certificate nor any security issued in
exchange therefor or in lieu thereof may be resold or transferred unless it is
(i) registered pursuant to the Securities Act and registered or qualified
pursuant to any applicable state securities laws or (ii) sold or transferred in
transactions which are exempt from such registration and qualification and the
Certificate Registrar has received: (A) a certification from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit 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 1N 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 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.
Very truly yours,
-----------------------------------------
(Transferee)
By:
--------------------------------------
Name:
Title:
Nominee Acknowledgement
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
-----------------------------------------
(Nominee)
By:
--------------------------------------
Name:
Title:
EXHIBIT 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 2007-8, Commercial Mortgage
Pass-Through Certificates, Series 2007-8, Class _____, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of August 28, 2007 (the "Closing Date") of
$__________________]
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
______________________________ (the "Transferor") to
______________________________ (the "Transferee") through our respective
Depository Participants of the Transferor's beneficial ownership interest
(currently maintained on the books and records of The Depository Trust Company
("DTC") and the Depository Participants) in the captioned Certificates (the
"Transferred Certificates"), pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of August
1, 2007, between Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, KeyCorp
Real Estate Capital Markets, Inc. and Xxxxx Fargo Bank, National Association, as
Master Servicers, Midland Loan Services, Inc., as Special Servicer and LaSalle
Bank National Association, as Trustee and Custodian. All capitalized terms used
but not otherwise defined herein shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and warrants to and agrees with you, and for the benefit of the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act of 1933, as amended (the "Securities Act"), and has completed
one of the forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the Transfer to it of the Transferor's
interest in the Transferred Certificates is being made in reliance on Rule 144A.
The Transferee is acquiring such interest in the Transferred Certificates for
its own account or for the account of another Qualified Institutional Buyer.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or registered
or qualified under any applicable state securities laws, (b) none of the
Depositor, the Trustee or the Certificate Registrar is obligated so to register
or qualify the Transferred Certificates and (c) no interest in the Transferred
Certificates may be resold or transferred unless (i) such Certificates are
registered pursuant to the Securities Act and registered or qualified pursuant
any applicable state securities laws, or (ii) such interest is sold or
transferred in a transaction which is exempt from such registration and
qualification and the Transferor desiring to effect such transfer has received
(A) a certificate from such Certificate Owner's prospective transferee
substantially in the form attached as Exhibit 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.
Very truly yours,
-----------------------------------------
(Transferee)
By:
--------------------------------------
Name:
Title:
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 $__________________(2) in
securities (other than the excluded securities referred to below) as of the end
of such entity's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
______ Corporation, etc. The Transferee is a corporation (other
than a bank, savings and loan association or similar
institution), Massachusetts or similar business trust,
partnership, or any organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986,
as amended.
______ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of
which is substantially confined to banking and is
supervised by the state or territorial banking
commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth
of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached
hereto, as of a date not more than 16 months preceding
the date of sale of the Transferred Certificates in the
case of a U.S. bank, and not more than 18 months
preceding such date of sale in the case of a foreign
bank or equivalent institution.
______ Savings and Loan. The Transferee (a) is a savings and
loan association, building and loan association,
cooperative bank, homestead association or similar
institution, which is supervised and examined by a state
or federal authority having supervision over any such
institutions or is a foreign savings and loan
association 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.
-----------------------------
(2) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
______ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of
1934, as amended.
______ Insurance Company. The Transferee is an insurance
company whose primary and predominant business activity
is the writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject
to supervision by the insurance commissioner or a
similar official or agency of a state, U.S. territory or
the District of Columbia.
______ State or Local Plan. The Transferee is a plan
established and maintained by a state, its political
subdivisions, or any agency or instrumentality of the
state or its political subdivisions, for the benefit of
its employees.
______ ERISA Plan. The Transferee is an employee benefit plan
within the meaning of Title I of the Employee Retirement
Income Security Act of 1974.
______ Investment Advisor. The Transferee is an investment
advisor registered under the Investment Advisers Act of
1940, as amended.
______ QIB Subsidiary. All of the Transferee's equity owners
are "qualified institutional buyers" within the meaning
of Rule 144A.
______ Other. (Please supply a brief description of the entity
and a cross-reference to the paragraph and subparagraph
under subsection (a)(l) of Rule 144A pursuant to which
it qualifies. Note that registered investment companies
should complete Annex 2 rather than this Annex l.)
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the Transferee did
not include (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such Person is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the Transferee
used the cost of such securities to such Person, unless such Person reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of such Person, but only if such subsidiaries
are consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned, consolidated
subsidiary of another enterprise and such Person is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements made herein
because one or more Transfers to the Transferee may be in reliance on Rule 144A.
_____ _____ Will the Transferee be 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 acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a third
party that is itself a "qualified institutional buyer" within the meaning of
Rule 144A, and the "qualified institutional buyer" status of such third party
has been established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's acquisition of any interest in of
the Transferred Certificates will constitute a reaffirmation of this
certification as of the date of such acquisition. In addition, if the Transferee
is a bank or savings and loan as provided above, the Transferee agrees that it
will furnish to such parties any updated annual financial statements that become
available on or before the date of such acquisition, promptly after they become
available.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which the
Transferred Certificates were issued.
-----------------------------------------
(Transferee)
By:
--------------------------------------
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT 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).
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 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 acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a third
party that is itself a "qualified institutional buyer" within the meaning of
Rule 144A, and the "qualified institutional buyer" status of such third party
has been established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's acquisition of any interest in the
Transferred Certificates will constitute a reaffirmation of this certification
by the undersigned as of the date of such acquisition.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which the
Transferred Certificates were issued.
-----------------------------------------
(Transferee or Adviser)
By:
--------------------------------------
Name:
Title:
Date:
IF AN ADVISER:
Print Name of Transferee
-----------------------------------------
Date:
------------------------------------
EXHIBIT E-2D
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: ML-CFC Commercial Mortgage Trust 2007-8, Commercial Mortgage
Pass-Through Certificates, Series 2007-8, Class _____, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of August 28, 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 August
1, 2007, between Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, KeyCorp
Real Estate Capital Markets, Inc. and Xxxxx Fargo Bank, National Association, as
Master Servicers, Midland Loan Services, Inc., as Special Servicer and LaSalle
Bank National Association, as Trustee and Custodian. 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 (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:
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
Pass-Through Certificates, Series 2007-8
Re: ML-CFC Commercial Mortgage Trust 2007-8, Commercial Mortgage
Pass-Through Certificates, Series 2007-8 (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
August 28, 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 August 1, 2007 (the
"Pooling and Servicing Agreement"), among Xxxxxxx Xxxxx Mortgage Investors,
Inc., as depositor (the "Depositor"), KeyCorp Real Estate Capital Markets, Inc.
and Xxxxx Fargo Bank, National Association, as master servicers (the "Master
Servicers"), Midland Loan Services, Inc., as special servicer (the "Special
Servicer") and LaSalle Bank National Association, as trustee and custodian (the
"Trustee" and "Custodian"). 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
______ Except with respect to the Residual Certificates, the
Class Y Certificates or the Class Z 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 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 in reliance on Prohibited Transaction Exemption
90-29 and Prohibited Transaction Exemption 2000-55; and
such Plan (X) is an accredited investor as defined in
Rule 501(a)(1) of Regulation D of the Securities Act,
(Y) is not sponsored (within the meaning of
Section 3(16)(B) of ERISA) by the Trustee, the
Depositor, any Mortgage Loan Seller, either Master
Servicer, the Special Servicer, the Custodian, 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
on the date of the initial issuance of the Certificates,
or by any Affiliate of such Person, and (Z) such Plan
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).
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of the date first written above.
-----------------------------------------
(Transferee)
By:
--------------------------------------
Name:
Title:
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 2007-8, Commercial Mortgage
Pass-Through Certificates, Series 2007-8 (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 August 28,
2007 (the "Closing Date") of $___________]. The Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as of August 1, 2007 (the
"Pooling and Servicing Agreement"), among Xxxxxxx Xxxxx Mortgage Investors,
Inc., as depositor (the "Depositor"), KeyCorp Real Estate Capital Markets, Inc.
and Xxxxx Fargo Bank, National Association, as master servicers (the "Master
Servicers"), Midland Loan Services, Inc., as special servicer (the "Special
Servicer") and LaSalle Bank National Association, as trustee and custodian (the
"Trustee" and "Custodian"). 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
______ Except with respect to the Residual Certificates, the
Class Y Certificates or the Class Z 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 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
Ill 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 in reliance on Prohibited Transaction Exemption
90-29 and Prohibited Transaction Exemption 2000-55; and
such Plan (X) is an accredited investor as defined in
Rule 501(a)(1) of Regulation D of the Securities Act,
(Y) is not sponsored (within the meaning of
Section 3(16)(B) of ERISA) by the Trustee, the
Custodian, 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
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).
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of the date first written above.
-----------------------------------------
(Transferee)
By:
--------------------------------------
Name:
Title:
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 2007-8, Commercial Mortgage
Pass-Through Certificates, Series 2007-8 (the "Certificates"),
issued pursuant to the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of August 1, 2007, between
Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, KeyCorp Real
Estate Capital Markets, Inc. and Xxxxx Fargo Bank, National
Association, as Master Servicers, Midland Loan Services, Inc., as
Special Servicer and LaSalle Bank National Association, as Trustee
and Custodian.
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 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. The
Purchaser is a Permitted Transferee.
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 REMIC
Administrator 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 meaning of any
applicable income tax treaty between the United States and any
foreign jurisdiction) of a United States Tax Person.
[CHECK THE STATEMENT THAT APPLIES]
[ ] 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.
[ ] 9. If the Transferor does not require the safe harbor under
Treasury regulations section 1.860E-1 to apply: [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, is not a Disqualified Partnership).
OR
[ ] ii. The Purchaser is not a Disqualified Non-United States Tax
Person.
Capitalized terms used but not defined herein have the meanings
assigned thereto in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
duly executed on its behalf by its duly authorized officer this _________ day of
______________________.
By:
--------------------------------------
Name:
Title:
Personally appeared before me, known or proved to me to be the same
person who executed the foregoing instrument and to be a ___________________ of
the Purchaser, and acknowledged to me that he/she executed the same 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
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
Pass-Through Certificates, Series 2007-8
Re: ML-CFC Commercial Mortgage Trust 2007-8, Commercial Mortgage
Pass-Through Certificates, Series 2007-8 (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 Certificates"). The Certificates, including the Residual
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of August 1, 2007 (the "Pooling and Servicing Agreement"), between Xxxxxxx
Xxxxx Mortgage Investors, Inc., as Depositor, KeyCorp Real Estate Capital
Markets, Inc. and Xxxxx Fargo Bank, National Association, as Master Servicers,
Midland Loan Services, Inc., as Special Servicer and LaSalle Bank National
Association, as Trustee and Custodian. 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 be respected for United States income tax purposes (and the
Transferor may continue to be liable for United States income taxes associated
therewith) unless the Transferor has conducted such an investigation.
Very truly yours,
-----------------------------------------
(Transferor)
By:
--------------------------------------
Name:
Title:
EXHIBIT H-1
FORM OF NOTICE AND ACKNOWLEDGMENT
[Date]
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Ratings Services
a Division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the
Pooling and Servicing Agreement dated as of August 1, 2007 relating to ML-CFC
Commercial Mortgage Trust 2007-8, Commercial Mortgage Pass-Through Certificates,
Series 2007-8 (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.
Very truly yours,
LASALLE BANK NATIONAL ASSOCIATION
By:
--------------------------------------
Name
Title:
Fitch, Inc. Standard & Poor's Ratings Services
By: By:
--------------------------------- --------------------------------------
Name: Name:
Title: Title:
Date: Date:
------------------------------- ----------------------------------
EXHIBIT H-2
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
Pass-Through Certificates, Series 2007-8
Re: ML-CFC Commercial Mortgage Trust 2007-8, Commercial Mortgage
Pass-Through Certificates, Series 2007-8
Ladies & Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement
dated as of August 1, 2007 relating to ML-CFC Commercial Mortgage Trust 2007-8,
Commercial Mortgage Pass-Through Certificates, Series 2007-8 (the "Agreement"),
the undersigned hereby agrees with all the other parties to the Agreement that
the undersigned shall serve as Special Servicer under, and as defined in, the
Agreement. The undersigned hereby acknowledges that, as of the date hereof, it
is and shall be a party to the Agreement and bound thereby to the full extent
indicated therein in the capacity of Special Servicer. The undersigned hereby
makes, as of the date hereof, the representations and warranties set forth in
Section 3.23(b) of the Agreement as if it were the Special Servicer hereunder.
[Name of Proposed Special Servicer]
By:
--------------------------------------
Name:
Title:
EXHIBIT I-1
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
Pass-Through Certificates, Series 2007-8
KeyCorp Real Estate Capital Markets, Inc.
000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Xxxxx Fargo Bank, National Association
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Midland Loan Services, Inc.
10851 Xxxxxx, Building 82, 0xx Xxxxx
Xxxxxxxx Xxxx, Xxxxxx 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 2007-8 Commercial Mortgage
Pass-Through Certificates, Series 2007-8
In accordance with the Pooling and Servicing Agreement dated as of
August 1, 2007 (the "Pooling and Servicing Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as depositor (the "Depositor"), KeyCorp Real Estate
Capital Markets, Inc. and Xxxxx Fargo Bank, National Association, as master
servicers (the "Master Servicers"), Midland Loan Services, Inc., as special
servicer (the "Special Servicer") and LaSalle Bank National Association, as
trustee and custodian (the "Trustee" and "Custodian"), with respect to the
ML-CFC Commercial Mortgage Trust 2007-8, Commercial Mortgage Pass-Through
Certificates, Series 2007-8 (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.
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 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 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 2007-8, 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.
[CERTIFICATEHOLDER] [BENEFICIAL OWNER
OF A CERTIFICATE]
By:
--------------------------------------
Name:
Title:
Telephone No.:
SCHEDULE I
[DESCRIBE INFORMATION REQUESTED]
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
Pass-Through Certificates, Series 2007-8
KeyCorp Real Estate Capital Markets, Inc.
000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Xxxxx Fargo Bank, National Association
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Midland Loan Services, Inc.
10851 Xxxxxx, Building 82, 0xx Xxxxx
Xxxxxxxx Xxxx, Xxxxxx 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 2007-8 Commercial Mortgage
Pass-Through Certificates, Series 2007-8 (the "Certificates")
In accordance with the Pooling and Servicing Agreement dated as of
August 1, 2007 (the "Pooling and Servicing Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as depositor (the "Depositor"), KeyCorp Real Estate
Capital Markets, Inc. and Xxxxx Fargo Bank, National Association, as master
servicers (the "Master Servicers"), Midland Loan Services, Inc., as special
servicer (the "Special Servicer") and LaSalle Bank National Association, as
trustee and custodian (the "Trustee" and "Custodian"), with respect to the
ML-CFC Commercial Mortgage Trust 2007-8, Commercial Mortgage Pass-Through
Certificates, Series 2007-8 (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:
______ 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 Section 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 in the Certificates), 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 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 2007-8, 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.
[PROSPECTIVE PURCHASER]
By:
--------------------------------------
Name:
Title:
Telephone No.:
SCHEDULE I
[DESCRIBE INFORMATION REQUESTED]
EXHIBIT J
FORM OF EXCHANGE ACT REPORTABLE EVENT NOTIFICATION
VIA FAX: (000) 000-0000
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
fax or 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 Securitization
Re: Exchange Act Reportable Event Disclosure
Ladies and Gentlemen:
In accordance with Section 8.16 of the Pooling and Servicing
Agreement, dated as of August 1, 2007 (the "Pooling and Servicing Agreement"),
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, KeyCorp Real Estate
Capital Markets, Inc. and Xxxxx Fargo Bank, National Association, as master
servicers, Midland Loan Services, Inc., as special servicer and LaSalle Bank
National Association, as trustee and custodian, 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:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Any inquiries related to this notification should be directed to
[__________], phone number: [__________]; email address: [__________].
[NAME OF PARTY],
as [role]
By:
--------------------------------------
Name:
Title:
EXHIBIT K
FORM OF S&P 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: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: [KeyCorp Real Estate Capital Markets, Inc.] [Xxxxx Fargo Bank, National
Association] in its capacity as Master Servicer (the "Master Servicer")
under the Pooling and Servicing Agreement dated as of August 1, 2007
(the "Pooling and Servicing Agreement"), among Xxxxxxx Xxxxx Mortgage
Investors, Inc., as depositor, KeyCorp Real Estate Capital Markets,
Inc. and Xxxxx Fargo Bank, National Association as master servicers,
Midland Loan Services, Inc., as special servicer and LaSalle Bank
National Association, as trustee and custodian.
Date: ___________, 20___
Re: ML-CFC Commercial Mortgage Trust 2007-8, Commercial Mortgage
Pass-Through Certificates, Series 2007-8 -- 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
______ 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, (iv) interest-only
direct debt obligations of the Resolution Funding Corporation or (v) securities
that constitute "government securities" as defined in Section 2(a)(16) of the
Investment Company Act of 1940 as amended (15 U.S.C. 80a-1) that are listed as
"Qualified Investments for `AAA' Financings" under Paragraphs 1, 2 or 3 of "Cash
Flow Approach" in S&P's Public Finance Criteria 2000, as amended to the date of
the defeasance, and are rated `AAA' by S&P. 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 S&P 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 S&P
confirming that the organizational documents of such Defeasance Obligor were
previously approved by S&P. 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, (i) 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") or (ii) it has caused one or more principals or owners of
Defeasance Obligor reasonably acceptable to the Trust and S&P to execute and
deliver to the Trust a guaranty of limited recourse obligations in form and
substance reasonably acceptable to Lender and S&P.
7. The defeasance documents require that the defeasance collateral
be credited to an eligible account (as defined in the S&P 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 S&P Criteria). The securities
intermediary may reinvest proceeds of the defeasance collateral only in
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 (or, in
the case of an ARD Loan, on its Anticipated Repayment 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.
12. The outstanding principal balance of the Mortgage Loan
immediately before the defeasance (i) was less than $20,000,000, (ii) was less
than 5% of the aggregate certificate balance of the Certificates as of the date
of the Current Report, or (iii) 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.
[KEYCORP REAL ESTATE CAPITAL MARKETS,
INC.] [XXXXX FARGO BANK, NATIONAL
ASSOCIATION],
as Master Servicer
By:
--------------------------------------
Name:
Title:
EXHIBIT L
RELEVANT
SERVICING CRITERIA SERVICING CRITERIA
------------------------------------------------------------------------------------------------- ---------------------
Reference Criteria
------------------- ----------------------------------------------------------------------------
General Servicing Considerations
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other Trustee
triggers and events of default in accordance with the transaction Master Servicers
agreements. Special Servicer
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, Trustee
policies and procedures are instituted to monitor the third party's Master Servicers
performance and compliance with such servicing activities. Special Servicer
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up N/A
servicer for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party Master Servicers
participating in the servicing function throughout the reporting period in Special Servicer
the amount of coverage required by and otherwise in accordance with the Custodian
terms of the transaction agreements.
Cash Collection and Administration
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial Trustee
bank accounts and related bank clearing accounts no more than two business Master Servicers
days following receipt, or such other number of days specified in the Special Servicer
transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an Trustee
investor are made only by authorized personnel. Master Servicers
Special Servicer
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or Trustee
distributions, and any interest or other fees charged for such advances, Master Servicers
are made, reviewed and approved as specified in the transaction agreements. Special Servicer
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or Trustee
accounts established as a form of overcollateralization, are separately Master Servicers
maintained (e.g., with respect to commingling of cash) as set forth in the Special Servicer
transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured depositor Trustee
institution as set forth in the transaction agreements. For purposes of Master Servicers
this criterion, "federally insured depository institution" with respect to Special Servicer
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 to prevent unauthorized access. Trustee
Master Servicers
Special Servicer
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed Trustee
securities related bank accounts, including custodial accounts and related Master Servicers
bank clearing accounts. These reconciliations are (A) mathematically Special Servicer
accurate; (B) prepared within 30 calendar days after the bank statement
cut-off date, or such other number of days specified in the transaction
agreements; (C) reviewed and approved by someone other than the person who
prepared the reconciliation; and (D) contain explanations for reconciling
items. These reconciling items are resolved within 90 calendar days of
their original identification, or such other number of days specified in
the transaction agreements.
Investor Remittances and Reporting
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are Trustee
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 and remitted in accordance with Trustee
timeframes, distribution priority and other terms set forth in the
transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to Trustee
the servicer's investor records, or such other number of days specified in
the transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled Trustee
checks, or other form of payment, or custodial bank statements.
Pool Asset Administration
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the Trustee
transaction agreements or related mortgage loan documents. Master Servicers
Special Servicer
Custodian
1122(d)(4)(ii) Mortgage loans and related documents are safeguarded as required by the Trustee
transaction agreements. Master Servicers
Special Servicer
Custodian
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, Trustee
reviewed and approved in accordance with any conditions or requirements in Master Servicers
the transaction agreements. Special Servicer
Custodian
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with Master Servicers
the related mortgage loan documents are posted to the servicer's obligor Special Servicer
records maintained no more than two business days after receipt, or such
other number of days specified in the transaction agreements, and allocated
to principal, interest or other items (e.g., escrow) in accordance with the
related mortgage loan documents.
1122(d)(4)(v) The reporting servicer's records regarding the mortgage loans agree with Master Servicers
the reporting servicer's records with respect to an obligor's unpaid
principal balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans Master Servicers
(e.g., loan modifications or re-agings) are made, reviewed and approved by Special Servicer
authorized personnel in accordance with the transaction agreements and
related pool asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications Special Servicer
and deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a Master Servicers
mortgage loan is delinquent in accordance with the transaction agreements. Special Servicer
Such records are maintained on at least a monthly basis, or such other
period specified in the transaction agreements, and describe the entity's
activities in monitoring delinquent mortgage loans including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with Master Servicers
variable rates are computed based on the related mortgage loan documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow Master Servicers
accounts): (A) such funds are analyzed, in accordance with the obligor's
mortgage loan documents, on at least an annual basis, or such other period
specified in the transaction agreements; (B) interest on such funds is
paid, or credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the obligor
within 30 calendar days of full repayment of the related mortgage loans, or
such other number of days specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) Master Servicers
are made on or before the related penalty or expiration dates, as indicated
on the appropriate bills or notices for such payments, provided that such
support has been received by the servicer at least 30 calendar days prior
to these dates, or such other number of days specified in the transaction
agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on Master Servicers
behalf of an obligor are paid from the servicer's funds and not charged to
the obligor, unless the late payment was due to the obligor's error or
omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business Master Servicers
days to the obligor's records maintained by the servicer, or such other
number of days specified in the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and Master Servicers
recorded in accordance with the transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1) N/A
through (3) or Item 1115 of Regulation AB, is maintained as set forth in
the transaction agreements.
EXHIBIT M-1
FORM OF PURCHASE OPTION NOTICE
[Date]
[Purchase Option Holder]
Re: ML-CFC Commercial Mortgage Trust 2007-8 Commercial Mortgage
Pass-Through Certificates, Series 2007-8
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 August 1, 2007, by and among Xxxxxxx Xxxxx Mortgage
Investors, Inc., as Depositor, KeyCorp Real Estate Capital Markets, Inc. and
Xxxxx Fargo Bank, National Association, as Master Servicers, Midland Loan
Services, Inc., as Special Servicer and LaSalle Bank National Association, as
Trustee and Custodian. 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.]
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:
EXHIBIT M-2
FORM OF PURCHASE OPTION ASSIGNMENT BY
THE SPECIAL SERVICER
THIS ASSIGNMENT OF PURCHASE OPTION (this "Assignment") is made
effective as of [_______] by and between Midland Loan Services, Inc.
("Assignor") and [________________] ("Assignee") in connection with (i) the
Pooling and Servicing Agreement dated as of August 1, 2007 (the "Agreement"), by
and among Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, KeyCorp Real
Estate Capital Markets, Inc. and Xxxxx Fargo Bank, National Association, as
Master Servicers, Midland Loan Services, Inc., as Special Servicer and LaSalle
Bank National Association, as Trustee and Custodian, with respect to the ML-CFC
Commercial Mortgage Trust 2007-8, Series 2007-8 (the "Series 2007-8
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 2007-8
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.
IN WITNESS WHEREOF, this Assignment has been executed by the parties
as of the date first set forth above.
ASSIGNOR: MIDLAND LOAN SERVICES, INC.
By:
--------------------------------------
Name:
Title:
ASSIGNEE: [ASSIGNEE]
By:
--------------------------------------
Name:
Title:
ASSIGNEE CONTACT INFORMATION:
Address:
-------------------------
---------------------------------
---------------------------------
Telephone No.:
-------------------
Facsimile:
-----------------------
EXHIBIT M-3
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 August 1,
2007 (the "Agreement"), by and among Xxxxxxx Xxxxx Mortgage Investors, Inc., as
Depositor, KeyCorp Real Estate Capital Markets, Inc. and Xxxxx Fargo Bank,
National Association, as Master Servicers, Midland Loan Services, Inc., as
Special Servicer and LaSalle Bank National Association, as Trustee and
Custodian, with respect to the ML-CFC Commercial Mortgage Trust 2007-8,
Commercial Mortgage Pass-Through Certificates, Series 2007-8 (the "Series 2007-8
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
2007-8 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 Midland Loan Services, Inc.
in its capacity 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 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 CERTICATEHOLDER
By:
--------------------------------------
Name:
Title:
ASSIGNEE: [ASSIGNEE]
By:
--------------------------------------
Name:
Title:
ASSIGNEE CONTACT INFORMATION:
Address:
-------------------------
---------------------------------
---------------------------------
Telephone No.:
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Facsimile:
-----------------------
EXHIBIT N
[RESERVED]
EXHIBIT O
FORM OF XXXXXXXX-XXXXX CERTIFICATION
BY THE DEPOSITOR
Re: ML-CFC Commercial Mortgage Trust 2007-8 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2007-8
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 August 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:
KeyCorp Real Estate Capital Markets, Inc. and Xxxxx Fargo Bank, National
Association, as Master Servicers, Midland Loan Services, Inc., as Special
Servicer and LaSalle Bank National Association, as Trustee and Custodian.
Date:
------------------------------------
Xxxxxxx Xxxxx Mortgage Investors, Inc.
-----------------------------------------
[name of certifying individual]
[title of certifying individual]
EXHIBIT P-1
FORM OF CERTIFICATION TO BE PROVIDED BY THE MASTER SERVICER TO THE DEPOSITOR
Re: ML-CFC Commercial Mortgage Trust 2007-8 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2007-8
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 August 1, 2007 (the "Pooling and
Servicing Agreement") and relating 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 (or persons under my supervision) have reviewed the servicing
reports (the "Servicing Reports") relating to the trust fund delivered by the
Master Servicer to the Trustee covering the fiscal year 20__;
2. Based on my knowledge, (a) assuming the accuracy of the
statements required to be made in the corresponding certificate of the Special
Servicer pursuant to Section 8.16(b) of the Pooling and Servicing Agreement and
(b) assuming that the information regarding the mortgage loans, the mortgagors
or 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 lights of
the circumstances under which such statements were made, not misleading (but
only to the extent that such Mortgage Information is or shall be used by the
Master Servicer to prepare the Servicing Reports, provided, however, the Master
Servicer shall provide any information of which the Master Servicer has
knowledge, to the extent such information updates the Mortgage Information and
is 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 period covered by this report;
3. Based on my knowledge and assuming the accuracy of the statement
required to be made in the corresponding certificate of 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 is included in the Servicing Reports;
4. I am responsible for reviewing the activities performed by the
Master Servicer under the Pooling and Servicing Agreement and based upon my
knowledge and the compliance review conducted in preparing the servicer
compliance statement required 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 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 in the year to which such review applies.
5. The report on assessment of compliance with servicing criteria
and the related attestation report on assessment of compliance with servicing
criteria required to be delivered by the Master Servicer (in accordance with
Item 1122 of Regulation AB) in accordance with the Pooling and Servicing
Agreement discloses, with respect to the Master Servicer, all material instances
of noncompliance 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 certification actually provided
by the Special Servicer pursuant to Section 8.16(b) of the Pooling and Servicing
Agreement. 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 (i) upon information required to be provided by
any Sub-Servicer acting under a Sub-Servicing Agreement that the Master Servicer
entered into in connection with the issuance of the Certificates, or (ii) upon
the performance by any such Sub-Servicer of its obligations pursuant to any such
Sub-Servicing Agreement, in each case beyond the respective backup
certifications actually provided by such Sub-Servicer to the Master Servicer
with respect to the information that is the subject of such certification.
Date:
---------------------------------
By:
-----------------------------------
[Name]
[Title]
[MASTER SERVICER]
EXHIBIT P-2
FORM OF CERTIFICATION TO BE PROVIDED BY THE TRUSTEE TO THE DEPOSITOR
Re: ML-CFC Commercial Mortgage Trust 2007-8 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2007-8
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 August 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") 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, 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 Criteria and such
assessment of compliance with servicing criteria is fairly stated in all
material respects.
Date:
---------------------------------
--------------------------------------
[Name]
[Title]
[TRUSTEE]
EXHIBIT P-3
FORM OF CERTIFICATION TO BE PROVIDED
BY THE SPECIAL SERVICER TO THE DEPOSITOR
Re: ML-CFC Commercial Mortgage Trust 2007-8 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2007-8
I, [identify the certifying individual], a [title] of [Special
Servicer] (the "Special Servicer"), on behalf of [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 August 1, 2007 (the "Pooling and
Servicing Agreement") and relating 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 (or persons under my supervision) have reviewed the servicing
reports (the "Servicing Reports") relating to the trust fund, required to be
delivered by the Special Servicer, if any, to the Master Servicers and the
Trustee under the Pooling and Servicing Agreement covering the fiscal year 20__;
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 period covered by these servicing reports;
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 for inclusion in the reports to be filed by
the Trustee with the Securities and Exchange Commission pursuant to the Pooling
and Servicing Agreement 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 upon my
knowledge and the compliance review conducted in preparing the servicer
compliance statement(s) required (in accordance with Item 1123 of Regulation AB)
under the Pooling and Servicing Agreement with respect to the Special Servicer
and, except as disclosed in such compliance statement delivered by the Special
Servicer under the Pooling and Servicing Agreement, the Special Servicer has
fulfilled its obligations under the Pooling and Servicing Agreement in all
material respects in the year to which such review applies.
5. The report on assessment of compliance with servicing criteria
and the related attestation report on assessment of compliance with servicing
criteria required to be delivered by the Special Servicer (in accordance with
Item 1122 of Regulation AB) in accordance with the Pooling and Servicing
Agreement discloses, with respect to the Special Servicer, all material
instances of noncompliance with the Relevant Servicing Criteria and such
assessment of compliance with servicing criteria is fairly stated in all
material respects.
Date:
-------------------------------------
------------------------------------------
[Name]
[Title]
[SPECIAL SERVICER]
EXHIBIT Q
BROKER STRIP LOANS
Panevino Italian Restaurant & Delicatessen
Xxxx Xxxxx Xxxxx Xxxxxxxxx 0X xxx 0X
Xxx Xxxxx Watersports
Xxxxx Professional Center
