EXECUTION COPY
STRUCTURED ASSET SECURITIES CORPORATION II,
Depositor
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Master Servicer
and
CENTERLINE SERVICING INC.,
as Special Servicer
and
XXXXX FARGO BANK, N.A.,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated as of July 11, 2007
----------
$2,091,678,319
TIAA Seasoned Commercial Mortgage Trust 2007-C4
Commercial Mortgage Pass-Through Certificates,
Series 2007-C4
TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN ADJUSTMENTS TO THE
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES
SECTION 1.01. Defined Terms................................................................. 5
SECTION 1.02. General Interpretive Principles............................................... 84
SECTION 1.03. Certain Adjustments to the Principal Distributions on the Certificates........ 84
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Creation of Trust; Conveyance of Mortgage Loans............................... 88
SECTION 2.02. Acceptance of Trust Fund by Trustee........................................... 91
SECTION 2.03. Repurchase of Mortgage Loans for Document Defects and Breaches of
Representations and Warranties............................................. 92
SECTION 2.04. Representations, Warranties and Covenants of the Depositor.................... 98
SECTION 2.05. Acceptance of Grantor Trust Assets by Trustee; Issuance of the Class V
Certificates............................................................... 100
SECTION 2.06. Acceptance of Loan REMICs by Trustee; Execution, Authentication and Delivery
of Class R-LR Certificates; Creation of Loan REMIC Regular Interests....... 100
SECTION 2.07. Conveyance of Loan REMIC Regular Interests.................................... 101
SECTION 2.08. Execution, Authentication and Delivery of Class R-I Certificates; Creation of
REMIC I Regular Interests.................................................. 101
SECTION 2.09. Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by Trustee.... 101
SECTION 2.10. Execution, Authentication and Delivery of Class R-II Certificates; Creation of
REMIC II Regular Interests................................................. 102
SECTION 2.11. Conveyance of REMIC II Regular Interests; Acceptance of REMIC III by Trustee.. 102
SECTION 2.12. Execution, Authentication and Delivery of REMIC III Certificates.............. 102
SECTION 2.13. Acceptance of Loss of Value Reserve Fund by Trustee........................... 102
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.......................................... 103
SECTION 3.02. Collection of Mortgage Loan Payments.......................................... 000
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XXXXXXX 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts;
Reserve Accounts........................................................... 106
SECTION 3.04. Custodial Account, Defeasance Deposit Account, Collection Account, Excess
Liquidation Proceeds Account and Loss of Value Reserve Fund................ 108
SECTION 3.05. Permitted Withdrawals From the Custodial Account, the Collection Account and
the Excess Liquidation Proceeds Account.................................... 112
SECTION 3.06. Investment of Funds in the Collection Account, the Servicing Accounts, the
Reserve Accounts, the Defeasance Deposit Account, the Custodial Account,
the REO Account and the Excess Liquidation Proceeds Account................ 118
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage;
Environmental Insurance.................................................... 120
SECTION 3.08. Enforcement of Alienation Clauses............................................. 124
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required Appraisals; Appraisal
Reduction Calculation...................................................... 129
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage Files................. 133
SECTION 3.11. Servicing Compensation; Payment of Expenses; Certain Matters Regarding
Servicing Advances......................................................... 134
SECTION 3.12. Property Inspections; Collection of Financial Statements; Delivery of Certain
Reports.................................................................... 141
SECTION 3.13. Annual Statement as to Compliance............................................. 144
SECTION 3.14. Reports on Assessment of Compliance with Servicing Criteria; Registered Public
Accounting Firm Attestation Reports........................................ 145
SECTION 3.15. Access to Certain Information................................................. 148
SECTION 3.16. Title to REO Property; REO Account............................................ 149
SECTION 3.17. Management of REO Property.................................................... 151
SECTION 3.18. Sale of Mortgage Loans and REO Properties..................................... 154
SECTION 3.19. Additional Obligations of the Master Servicer and Special Servicer;
Obligations to Notify Ground Lessors and Hospitality Franchisors; the
Special Servicer's Right to Request the Master Servicer to Make Servicing
Advance.................................................................... 158
SECTION 3.20. Modifications, Waivers, Amendments and Consents; Defeasance................... 160
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special Servicer; Record
Keeping.................................................................... 169
SECTION 3.22. Sub-Servicing Agreements...................................................... 171
SECTION 3.23. Representations and Warranties of the Master Servicer......................... 174
SECTION 3.24. Representations and Warranties of the Special Servicer........................ 176
SECTION 3.25. Application of Default Charges................................................ 177
SECTION 3.26. Defense of Litigation......................................................... 178
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions................................................................. 181
SECTION 4.02. Statements to Certificateholders and Others................................... 190
SECTION 4.03. P&I Advances With Respect to the Mortgage Pool................................ 198
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SECTION 4.04. Allocations of Realized Losses and Additional Trust Fund Expenses............. 201
SECTION 4.05. Various Reinstatement Amounts................................................. 202
SECTION 4.06. Calculations.................................................................. 203
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.............................................................. 204
SECTION 5.02. Registration of Transfer and Exchange of Certificates......................... 204
SECTION 5.03. Book-Entry Certificates....................................................... 212
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates............................. 214
SECTION 5.05. Persons Deemed Owners......................................................... 214
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE
CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special Servicer.................. 215
SECTION 6.02. Continued Qualification and Compliance of Master Servicer; Merger,
Consolidation or Conversion of Depositor, Master Servicer or Special
Servicer................................................................... 215
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer and Special Servicer.... 216
SECTION 6.04. Resignation of Master Servicer and the Special Servicer....................... 217
SECTION 6.05. Rights of Depositor and Trustee in Respect of the Master Servicer and the
Special Servicer........................................................... 217
SECTION 6.06. Depositor, Master Servicer and Special Servicer to Cooperate with Trustee..... 218
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate with Master Servicer..... 218
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with Special Servicer..... 218
SECTION 6.09. Designation of Special Servicer and Controlling Class Representative;
Replacement of Special Servicer by the Controlling Class and Others........ 218
SECTION 6.10. Master Servicer or Special Servicer as Owner of a Certificate................. 220
SECTION 6.11. Certain Powers of the Controlling Class Representative........................ 221
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default............................................................. 225
SECTION 7.02. Trustee to Act; Appointment of Successor...................................... 229
SECTION 7.03. Notification to Certificateholders and Others................................. 230
SECTION 7.04. Waiver of Events of Default................................................... 231
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.......................... 231
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee............................................................. 232
SECTION 8.02. Certain Matters Affecting Trustee............................................. 233
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans............................................. 234
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates................................. 234
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by Trustee............... 235
SECTION 8.06. Eligibility Requirements for Trustee.......................................... 236
SECTION 8.07. Resignation and Removal of Trustee............................................ 236
SECTION 8.08. Successor Trustee............................................................. 238
SECTION 8.09. Merger or Consolidation of Trustee and Fiscal Agent........................... 239
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee................................. 239
SECTION 8.11. Appointment of Custodians..................................................... 240
SECTION 8.12. Appointment of Authenticating Agents.......................................... 240
SECTION 8.13. Appointment of Tax Administrators............................................. 241
SECTION 8.14. Access to Certain Information................................................. 242
SECTION 8.15. Reports to the Securities and Exchange Commission and Related Reports......... 244
SECTION 8.16. Representations and Warranties of Trustee..................................... 252
SECTION 8.17. Appointment of a Fiscal Agent................................................. 253
SECTION 8.18. Representations and Warranties of Fiscal Agent................................ 254
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans.............. 256
SECTION 9.02. Additional Termination Requirements........................................... 259
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration.......................................................... 261
SECTION 10.02. Grantor Trust Administration.................................................. 264
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment..................................................................... 267
SECTION 11.02. Recordation of Agreement; Counterparts........................................ 269
SECTION 11.03. Limitation on Rights of Certificateholders.................................... 269
SECTION 11.04. Governing Law; Consent to Jurisdiction........................................ 270
SECTION 11.05. Notices....................................................................... 270
SECTION 11.06. Severability of Provisions.................................................... 271
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SECTION 11.07. Grant of a Security Interest.................................................. 271
SECTION 11.08. Xxxxxx Act.................................................................... 272
SECTION 11.09. Successors and Assigns; Beneficiaries......................................... 272
SECTION 11.10. Article and Section Headings.................................................. 272
SECTION 11.11. Notices to Rating Agencies.................................................... 273
SECTION 11.12. Complete Agreement............................................................ 274
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SCHEDULES AND EXHIBITS
Schedule No. Schedule Description
------------ --------------------
I Mortgage Loan Schedule
II Schedule of Environmentally Insured Mortgage Loans
III Schedule of Exceptions to Mortgage File Delivery
IV Schedule of Mortgage Loans Secured by a Hospitality Property or Nursing Facility
V Schedule of Early Defeasance Mortgage Loans
VI Schedule of Additional Mortgage Loan Origination Documents
VII Schedule of Additional Section 2.03 Documents
VIII Schedule related to Centerline Naming Convention
Exhibit No. Exhibit Description
----------- -------------------
A-1 Form of Class [A-1] [A-2] [A-3] [A-1A] Certificate
A-2 Form of Class [X] Certificate
A-3 Form of Class [A-J] [B] [C] [D] [E] [F] Certificate
A-4 Form of Class [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S] [T] Certificate
A-5 Form of Class [R-I] [R-II] [R-III] [R-LR] Certificate
A-6 Form of Class V Certificate
B Form of Distribution Date Statement
C Form of Custodial Certification
D-1 Form of Master Servicer Request for Release
D-2 Form of Special Servicer Request for Release
E Form of Loan Payoff Notification Report
F-1 Form of Transferor Certificate for Transfers of Definitive Non-Registered Certificates
F-2A Form I of Transferee Certificate for Transfers of Definitive Non-Registered Certificates
F-2B Form II of Transferee Certificate for Transfers of Definitive Non-Registered Certificates
F-2C Form of Transferee Certificate for Transfers of Interests in Rule 144A Global Certificates
F-2D Form of Transferee Certificate for Transfers of Interests in Regulation S Global Certificates
G-1 Form I of Transferee Certificate in Connection with ERISA (Definitive Non-Registered Certificates)
G-2 Form II of Transferee Certificate in Connection with ERISA (Book-Entry Non-Registered Certificates)
H-1 Form of Transfer Affidavit and Agreement regarding Residual Interest Certificates
H-2 Form of Transferor Certificate regarding Residual Interest Certificates
I-1 Form of Notice and Acknowledgment
I-2 Form of Acknowledgment of Proposed Special Servicer
J Form of UCC-1 Financing Statement Schedule
K Sub-Servicers in respect of which Sub-Servicing Agreements are in effect or
being negotiated as of the Closing Date
L-1 Form of Information Request/Investor Certification for Website Access from Certificate [Holder] [Owner]
L-2 Form of Information Request/Investor Certification for Website Access from Prospective Investor
M Form of Defeasance Certification
N Form of Seller Notification
O Form of Controlling Class Representative Confidentiality Agreement
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Exhibit No. Exhibit Description
----------- -------------------
P Form of Trustee Backup Certification
Q Form of Master Servicer Backup Certification
R Form of Special Servicer Backup Certification
S Relevant Servicing Criteria Matrix
T Form of Exchange Act Reportable Event Notification
U Form of Master Servicer Certification
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This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of July 11, 2007, among STRUCTURED ASSET SECURITIES CORPORATION II,
as Depositor, WACHOVIA BANK, NATIONAL ASSOCIATION, as Master Servicer,
CENTERLINE SERVICING INC., as Special Servicer, and XXXXX FARGO BANK, N.A., as
Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, which are to be issued
hereunder in multiple Classes and which in the aggregate will evidence the
entire beneficial ownership interest in the Trust Fund.
As provided herein, the Trustee will elect to treat each Early
Defeasance Mortgage Loan, if any, as the primary asset of a separate REMIC for
federal income tax purposes, and each such REMIC will be designated as a "Loan
REMIC". The Class R-LR Certificates (if issued in accordance with Section 2.06)
will represent the sole class of "residual interests" in each and every Loan
REMIC, if any, for purposes of the REMIC Provisions under federal income tax
law. A separate Loan REMIC Regular Interest will, on the Closing Date, be issued
with respect to, and will thereafter relate to, each Early Defeasance Mortgage
Loan, if any, included in a Loan REMIC. Each Loan REMIC Regular Interest, if
any, issued with respect to, and relating to, an Early Defeasance Mortgage Loan
in a Loan REMIC, shall also relate to any successor REO Mortgage Loan with
respect to such Early Defeasance Mortgage Loan. Each Loan REMIC Regular
Interest, if any, shall: (i) bear a numeric designation that is the same as the
loan number for the related Early Defeasance Mortgage Loan set forth on the
Mortgage Loan Schedule; (ii) accrue interest at the related per annum rate
described in the definition of "Loan REMIC Remittance Rate"; and (iii) have an
initial Uncertificated Principal Balance equal to the Cut-off Date Balance of
the related Early Defeasance Mortgage Loan. The Legal Final Distribution Date of
each Loan REMIC Regular Interest, if any, is the Distribution Date immediately
following the third anniversary of the end of the remaining amortization term
(as determined as of the Closing Date) of the related Early Defeasance Mortgage
Loan. None of the Loan REMIC Regular Interests (if issued in accordance with
Section 2.06) will be certificated. Notwithstanding the foregoing, however, if
the Trust Fund does not include Early Defeasance Mortgage Loans, then (i) there
will be no Loan REMICs, (ii) neither the Class R-LR Certificates nor any Loan
REMIC Regular Interests will be issued and (iii) the provisions of Section
2.06(b) will apply.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Mortgage Loans (exclusive of the Early
Defeasance Mortgage Loans, if any, and exclusive of any collections of
Additional Interest on the ARD Mortgage Loans, if any, after their respective
Anticipated Repayment Dates), any Loan REMIC Regular Interests and certain other
related assets subject to this Agreement as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as "REMIC I".
The Class R-I Certificates will represent the sole class of "residual interests"
in REMIC I for purposes of the REMIC Provisions under federal income tax law. A
separate REMIC I Regular Interest will, on the Closing Date, be issued with
respect to, and will thereafter relate to, each other Mortgage Loan included in
REMIC I and each Loan REMIC Regular Interest, if any, included in REMIC I. Each
REMIC I Regular Interest issued with respect to, and relating to, a Mortgage
Loan in REMIC I, shall also relate to any successor REO Mortgage Loan with
respect to such Mortgage Loan. Each REMIC I Regular Interest issued with respect
to, and relating to, any Loan REMIC Regular Interest, shall also relate to the
Early Defeasance Mortgage Loan and any successor REO Mortgage Loan corresponding
to such Loan REMIC Regular Interest. Each REMIC I Regular Interest shall: (i)
bear a numeric designation that is the same as the loan number for the related
Mortgage Loan set
forth on the Mortgage Loan Schedule; (ii) accrue interest at a per annum rate
described in the definition of "REMIC I Remittance Rate"; and (iii) have an
initial Uncertificated Principal Balance equal to the Cut-off Date Balance of
the related Mortgage Loan. The Legal Final Distribution Date of each of the
REMIC I Regular Interests is the Distribution Date immediately following the
third anniversary of the end of the remaining amortization term (as determined
as of the Closing Date) of the related Mortgage Loan. None of the REMIC I
Regular Interests will be certificated.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II". The Class R-II Certificates will represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. The Legal Final Distribution Date for each REMIC
II Regular Interest is the latest Rated Final Distribution Date. None of the
REMIC II Regular Interests will be certificated. Each REMIC II Regular Interest
shall accrue interest at a per annum rate described in the definition of "REMIC
II Remittance Rate." The following table sets forth the designation, the initial
Uncertificated Principal Balance and the Corresponding Class of Principal
Balance Certificates for each of the REMIC II Regular Interests.
REMIC II REGULAR INTERESTS
Initial Uncertificated Corresponding Class of Principal
Designation Principal Balance Balance Certificates
----------- ---------------------- --------------------------------
A-1 $550,000,000 X-0
X-0 $324,720,000 A-2
A-3 $686,028,000 A-3
A-1A $112,562,000 A-1A
A-J $227,500,000 A-J
B $ 10,460,000 B
C $ 28,760,000 C
D $ 18,300,000 D
E $ 5,230,000 E
F $ 15,690,000 F
G $ 20,910,000 G
H $ 13,070,000 H
J $ 23,540,000 J
K $ 7,840,000 K
L $ 7,840,000 L
M $ 7,850,000 M
N $ 2,610,000 N
P $ 7,850,000 P
Q $ 2,610,000 Q
S $ 2,610,000 S
T $ 15,698,319 T
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC III". The Class R-III Certificates will evidence the sole
class of "residual interests" in REMIC III for purposes of the REMIC Provisions
under federal income
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tax law. For federal income tax purposes, each Class of the Regular Interest
Certificates (exclusive of the Class X Certificates) and each Class X REMIC III
Component will be designated as a separate "regular interest" in REMIC III. The
Legal Final Distribution Date for each Class of Regular Interest Certificates
(exclusive of the Class X Certificates) and each Class X REMIC III Component is
the latest Rated Final Distribution Date. Each Class of Regular Interest
Certificates and each Class X REMIC III Component will accrue interest at the
per annum rate described in the definition of "Pass-Through Rate." The following
table sets forth the Class designation and original Class Principal Balance for
each Class of the Regular Interest Certificates.
REGULAR INTEREST CERTIFICATES
Class Original Class
Designation Principal Balance
----------- -----------------
Class A-1 $550,000,000
Class A-2 $324,720,000
Class A-3 $686,028,000
Class A-1A $112,562,000
Class A-J $227,500,000
Class B $ 10,460,000
Class C $ 28,760,000
Class D $ 18,300,000
Class E $ 5,230,000
Class F $ 15,690,000
Class G $ 20,910,000
Class H $ 13,070,000
Class J $ 23,540,000
Class K $ 7,840,000
Class L $ 7,840,000
Class M $ 7,850,000
Class N $ 2,610,000
Class P $ 7,850,000
Class Q $ 2,610,000
Class S $ 2,610,000
Class T $ 15,698,319
Class X (1)
----------
(1) The Class X Certificates will not have a Class Principal Balance and will
not entitle their Holders to receive distributions of principal. The Class
X Certificates will have a Class Notional Amount which will be equal to the
aggregate of the Component Notional Amounts of the Class X REMIC III
Components from time to time. As more specifically provided herein,
interest in respect of the Class X Certificates will consist of the
aggregate amount of interest accrued on the respective Component Notional
Amounts of the Class X REMIC III Components from time to time.
As provided herein, the Trustee shall take all actions necessary to
ensure that the portion of the Trust Fund consisting of the Grantor Trust
Assets, if any, maintains its status as a grantor trust under the Code. The
Class V Certificates (if issued in accordance with Section 2.05) will represent
the
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entire beneficial ownership of the Grantor Trust Assets. Notwithstanding the
foregoing, however, if the Trust Fund does not include ARD Mortgage Loans, then
there will be no Grantor Trusts, the Class V Certificates will not be issued and
the provisions of Section 2.05(b) will apply.
The Initial Pool Balance will be $2,091,678,319.
Capitalized terms used but not otherwise defined in this Preliminary
Statement have the respective meanings assigned thereto in Section 1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the Trustee hereby
agree, in each case, as follows:
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN ADJUSTMENTS TO THE PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, unless the context otherwise requires:
"30/360 Basis" shall mean the accrual of interest calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"Acceptable Insurance Default" shall mean, with respect to any
Mortgage Loan, any default under the related loan documents resulting from (a)
the exclusion of acts of terrorism from coverage under the related all risk
casualty insurance policy maintained on the subject Mortgaged Property and (b)
the related Mortgagor's failure to obtain insurance that specifically covers
acts of terrorism, but only if the Special Servicer has determined, in its
reasonable judgment in accordance with the Servicing Standard (subject to
Section 6.11 if and as applicable), that (i) such insurance is not available at
commercially reasonable rates and the subject hazards are not commonly insured
against at the time for real properties similar to the subject Mortgaged
Property and located in and around the region in which the subject Mortgaged
Property is located, or (ii) such insurance is not available at any rate.
Subject to the Servicing Standard, in making any of the determinations under and
in accordance with subclause (i) or (ii) of this definition, the Special
Servicer shall be entitled to reasonably rely on the opinion of an insurance
consultant.
"Accrued Certificate Interest" shall mean the interest accrued from
time to time with respect to any Class of Regular Interest Certificates, the
amount of which interest shall equal: (a) in the case of a Class of Principal
Balance Certificates for any Interest Accrual Period, one-twelfth of the product
of (i) the annual Pass-Through Rate applicable to such Class of Certificates for
such Interest Accrual Period, multiplied by (ii) the Class Principal Balance of
such Class of Certificates outstanding immediately prior to the related
Distribution Date; and (b) in the case of the Class X Certificates for any
Interest Accrual Period, the aggregate amount of Accrued Component Interest with
respect to all of the Class X REMIC III Components for such Interest Accrual
Period. The Regular Interest Certificates shall accrue interest on a 30/360
Basis.
"Accrued Component Interest" shall mean the interest accrued from time
to time with respect to any Class X REMIC III Component, the amount of which
interest shall equal, for any Interest Accrual Period, one-twelfth of the
product of (i) the annual Pass-Through Rate applicable to such Class X REMIC III
Component for such Interest Accrual Period, multiplied by (ii) the Component
Notional Amount of such Class X REMIC III Component outstanding immediately
prior to the related Distribution Date. Each Class X REMIC III Component shall
accrue interest on a 30/360 Basis.
"Acquisition Date" shall mean, with respect to any REO Property, the
first day on which such REO Property or any interest therein is considered to be
acquired by the Trust Fund within the meaning of Treasury regulations section
1.856-6(b)(1), which shall be the first day on which the Trust
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Fund is treated as the owner of such REO Property or an interest therein for
federal income tax purposes.
"Additional Information" shall have the meaning assigned thereto in
Section 4.02(a).
"Additional Interest" shall mean, with respect to any ARD Mortgage
Loan after its Anticipated Repayment Date, subject to Section 2.05(b), all
interest accrued on the principal balance of such ARD Mortgage Loan at the
Additional Interest Rate and, if so provided in the related loan documents,
compounded at the related Mortgage Rate (the payment of which interest shall,
under the terms of such ARD Mortgage Loan, be deferred until the entire
outstanding principal balance thereof has been paid). For purposes of this
Agreement, Additional Interest on an ARD Mortgage Loan or any successor REO
Mortgage Loan with respect thereto shall be deemed not to constitute principal
or any portion thereof and shall not be added to the unpaid principal balance or
Stated Principal Balance of such ARD Mortgage Loan or any successor REO Mortgage
Loan with respect thereto, notwithstanding that the terms of the related loan
documents so permit. To the extent that any Additional Interest is not paid on a
current basis, it shall, for purposes of this Agreement, be deemed to be
deferred interest (regardless of whether it is added to principal outstanding
with respect to the related ARD Mortgage Loan in accordance with the related
loan documents).
"Additional Interest Rate" shall mean, with respect to any ARD
Mortgage Loan after its Anticipated Repayment Date, subject to Section 2.05(b),
the incremental increase in the Mortgage Rate for such loan resulting from the
passage of such Anticipated Repayment Date.
"Additional Item 1123 Servicer" shall mean any Additional Servicer
that meets any of the criteria in Item 1108(a)(2)(i) through (iii) of Regulation
AB with respect to the Subject Securitization Transaction.
"Additional Servicer" shall mean any Servicer, other than the Master
Servicer, the Special Servicer and the Trustee.
"Additional Trust Fund Expense" shall mean any expense that: (i) is
incurred with respect to the Trust Fund or any particular asset therein; (ii) is
not paid by or on behalf of any Mortgagor and is not covered by a
nonreimbursable payment by any party hereto; (iii) is not otherwise included in
the calculation of a Realized Loss in respect of any particular Mortgage Loan or
REO Mortgage Loan; and (iv) would result or has resulted, as the case may be, in
the Holders of Regular Interest Certificates receiving less than the full amount
of principal and/or Distributable Certificate Interest to which they are
entitled on any Distribution Date.
"Adjusted Principal Distribution Amount" shall mean, for any
Distribution Date, an amount equal to (a) the Principal Distribution Amount for
such Distribution Date, plus (b) all amounts to be added to such Principal
Distribution Amount pursuant to Section 1.03(c) for such Distribution Date,
minus (c) all amounts to be subtracted from such Principal Distribution Amount
pursuant to Section 1.03(b) for such Distribution Date.
"Adjusted REMIC II Remittance Rate" shall mean, with respect to any
REMIC II Regular Interest, for any Interest Accrual Period, an annual rate equal
to the annual Pass-Through Rate in effect during such Interest Accrual Period
for the Class of Principal Balance Certificates as to which such REMIC II
Regular Interest is the Corresponding REMIC II Regular Interest.
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"Administrative Cost Rate" shall mean, with respect to any Mortgage
Loan (or any successor REO Mortgage Loan with respect thereto), the
corresponding rate per annum specified as the "Administrative Cost Rate" on the
Mortgage Loan Schedule, which, for each Mortgage Loan (or any successor REO
Mortgage Loan with respect thereto), is equal to the sum of the related Master
Servicing Fee Rate and the Trustee Fee Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event" shall mean, subject to Section 2.05(b),
any endangerment to the status of the Grantor Trust as a grantor trust under the
Grantor Trust Provisions or any imposition of a tax on the Grantor Trust or any
of its assets or transactions.
"Adverse Rating Event" shall mean, with respect to any Class of
Certificates, as of any date of determination, the qualification, downgrade or
withdrawal of any rating then assigned to such Class of Certificates by either
Rating Agency.
"Adverse REMIC Event" shall mean, with respect to any REMIC Pool, any
endangerment of the status of such REMIC Pool as a REMIC under the REMIC
Provisions or, except as permitted by Section 3.17(a), any imposition of a tax
on such REMIC Pool or any of its assets or transactions (including the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code, the tax on
prohibited contributions set forth in Section 860G(d) of the Code and/or the tax
on "net income from foreclosure property" as defined in Section 860G(c) of the
Code).
"Affiliate" shall mean, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control," when used with
respect to any specified Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" shall mean this Pooling and Servicing Agreement, together
with all amendments hereof and supplements hereto.
"Annual Assessment Report" shall have the meaning assigned thereto in
Section 3.14.
"Annual Attestation Report" shall have the meaning assigned thereto in
Section 3.14.
"Annual Statement of Compliance" shall have the meaning assigned
thereto in Section 3.13.
"Anticipated Repayment Date" shall mean, with respect to any ARD
Mortgage Loan, subject to Section 2.05(b), the date specified in the related
loan documents after which the Mortgage Rate for such ARD Mortgage Loan will
increase as specified in the related Mortgage Note.
"Appraisal Reduction Amount" shall mean, with respect to any Required
Appraisal Loan, an amount (calculated by the Special Servicer initially as of
the related Determination Date immediately following the later of the date on
which the subject Mortgage Loan became a Required Appraisal Loan and the date on
which the applicable Required Appraisal was obtained, and thereafter annually on
the
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related Determination Date in the same calendar month as each anniversary of
such date for so long as the subject Mortgage Loan or REO Mortgage Loan, as
applicable, remains a Required Appraisal Loan) equal to the excess, if any, of:
(a) the sum of, without duplication, (i) the Stated Principal Balance of such
Required Appraisal Loan, (ii) to the extent not previously advanced by or on
behalf of the Master Servicer, the Trustee or a Fiscal Agent, all accrued and
unpaid interest on such Required Appraisal Loan through the most recent Due Date
prior to the date of calculation (exclusive of any portion thereof that
represents Additional Interest and/or Default Interest), (iii) all accrued and
unpaid Special Servicing Fees, Liquidation Fees and Workout Fees in respect of
such Required Appraisal Loan, (iv) all related unreimbursed Advances made by or
on behalf of (plus all accrued interest on such Advances payable to) the Master
Servicer and/or any other party hereto with respect to such Required Appraisal
Loan, (v) any other unpaid items that could become Additional Trust Fund
Expenses in respect of such Required Appraisal Loan, and (vi) all currently due
and unpaid real estate taxes and assessments, insurance premiums and, if
applicable, ground rents, and any unfunded improvement or other applicable
reserves, in respect of the related Mortgaged Property or REO Property, as the
case may be (in each case, net of any amounts escrowed with the Master Servicer
or the Special Servicer for such items); over (b) the Required Appraisal Value.
Notwithstanding the foregoing, if (i) any Mortgage Loan becomes a Required
Appraisal Loan, (ii) either (A) no Required Appraisal or update thereof has been
obtained or conducted, as applicable, with respect to the related Mortgaged
Property during the 12-month period prior to the date such Mortgage Loan became
a Required Appraisal Loan or (B) there shall have occurred since the date of the
most recent Required Appraisal or update thereof a material change in the
circumstances surrounding the related Mortgaged Property that would, in the
Special Servicer's reasonable judgment, materially affect the value of the
related Mortgaged Property, and (iii) no Required Appraisal is obtained or
conducted, as applicable, in accordance with Section 3.09(a), within 60 days
after such Mortgage Loan became a Required Appraisal Loan or, in the case of an
event referred to in clause (ii) of the definition of "Required Appraisal Loan",
within 120 days of the subject delinquency, then (x) until such Required
Appraisal or update is obtained or conducted, as applicable, in accordance with
Section 3.09(a), the Appraisal Reduction Amount for such Required Appraisal Loan
shall equal 25% of the Stated Principal Balance of such Required Appraisal Loan,
and (y) upon receipt or performance, as applicable, in accordance with Section
3.09(a), of such Required Appraisal or update thereof by the Special Servicer,
the Appraisal Reduction Amount for such Required Appraisal Loan shall be
recalculated in accordance with the preceding sentence of this definition. For
purposes of this definition, each Required Appraisal Loan that is part of a
Cross-Collateralized Group shall be treated separately for the purposes of
calculating any Appraisal Reduction Amount.
Each Appraisal Reduction Amount shall be reduced to zero as of the
date the subject Mortgage Loan ceases to be a Required Appraisal Loan, and no
Appraisal Reduction Amount shall exist as to any Mortgage Loan (or any successor
REO Mortgage Loan with respect thereto) after it has been paid in full,
liquidated, repurchased or otherwise disposed of.
"Appraised Value" shall mean, with respect to each Mortgaged Property
or REO Property, the appraised value thereof based upon the most recent
appraisal or update thereof prepared by an Independent Appraiser that is
contained in the related Servicing File or, in the case of any such property
with or that had, as the case may be, an allocated loan amount of, or securing a
Mortgage Loan or relating to an REO Mortgage Loan, as the case may be, with a
Stated Principal Balance of, less than $2,000,000, either (a) the most recent
appraisal or update thereof that is contained in the related Servicing File or
(b) the most recent "desktop" value estimate performed by the Special Servicer
that is contained in the related Servicing File.
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"ARD Mortgage Loan" shall mean, subject to Section 2.05(b), any
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) that
provides that if the unamortized principal balance thereof is not repaid by a
date certain set forth in the related loan documents, such Mortgage Loan (or
successor REO Mortgage Loan) will accrue additional interest at the rate
specified in the related Mortgage Note and the related Mortgagor is required to
apply certain excess monthly cash flow generated by the related Mortgaged
Property to the repayment of the outstanding principal balance on such Mortgage
Loan. If none of the Mortgage Loans are reflected on the Mortgage Loan Schedule
as being ARD Mortgage Loans, then Section 2.05(b) shall apply.
"Assignment of Leases" shall mean, with respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar document or
instrument executed by the Mortgagor in connection with the origination of the
related Mortgage Loan(s).
"Assumed Monthly Payment" shall mean: (a) with respect to any Balloon
Mortgage Loan delinquent in respect of its Balloon Payment, for each Due Date
coinciding with or following its then Maturity Date as of which such Mortgage
Loan remains outstanding and part of the Trust Fund (provided that such Mortgage
Loan was not paid in full, and no other Liquidation Event occurred in respect
thereof, before the end of the related Collection Period in which such Maturity
Date occurs), the scheduled monthly payment of principal and/or interest deemed
to be due in respect of such Mortgage Loan on such Due Date equal to the amount
that would have been due in respect thereof on such Due Date if such Mortgage
Loan had been required to continue to accrue interest (other than Default
Interest and Additional Interest) in accordance with its terms, and to pay
principal in accordance with the amortization schedule (if any), in effect
immediately prior to, and without regard to the occurrence of, such Maturity
Date; and (b) with respect to any REO Mortgage Loan, for any Due Date as of
which the related REO Property (or any interest therein) remains part of the
Trust Fund, the scheduled monthly payment of principal and/or interest deemed to
be due in respect thereof on such Due Date equal to the Monthly Payment (or, in
the case of a Balloon Mortgage Loan described in clause (a) of this definition,
the Assumed Monthly Payment) that was due (or deemed due) in respect of the
related Mortgage Loan on the last Due Date prior to the related Mortgaged
Property becoming an REO Property.
"ASTM" shall mean the American Society for Testing and Materials.
"Authenticating Agent" shall mean any authenticating agent appointed
pursuant to Section 8.12 (or, in the absence of any such appointment, the
Trustee).
"Available Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to:
(a) the sum, without duplication, of (i) the aggregate amount of all
payments and other collections on or with respect to the Mortgage Loans and
any REO Properties (including Loss of Value Payments) that (A) were
Received by the Trust as of the end of the related Collection Period and
(B) are on deposit in the Collection Account as of 12:00 noon (New York
City time) on such Distribution Date, (ii) the aggregate amount of any P&I
Advances made by the Master Servicer, the Trustee and/or a Fiscal Agent
with respect to the Mortgage Pool for distribution on the Certificates on
such Distribution Date pursuant to Section 4.03, (iii) the aggregate amount
deposited by the Master Servicer in the Collection Account for such
Distribution Date pursuant to Section 3.19(a) in connection with Prepayment
Interest Shortfalls on the Mortgage Pool, (iv) to the extent not included
in the amount described in clause (a)(i) of
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this definition, the aggregate amount transferred from the Excess
Liquidation Proceeds Account to the Collection Account pursuant to Section
3.05(d) in respect of such Distribution Date, and (v) to the extent not
included in the amount described in clause (a)(i) of this definition, if
such Distribution Date is the Final Distribution Date, the aggregate amount
transferred from the Loss of Value Reserve Fund to the Collection Account
pursuant to Section 3.05(e) in respect of such Distribution Date; net of
(b) the portion of the aggregate amount described in clause (a) of
this definition that represents one or more of the following--(i) scheduled
Monthly Payments that are due on a Due Date following the end of the
related Collection Period (or, in the case of a scheduled Monthly Payment
that is due on a Due Date in the same month as such Distribution Date but
subsequent to the end of the related Collection Period, following the end
of the calendar month in which such Distribution Date occurs), (ii) any
amounts payable or reimbursable to any Person from the Collection Account
pursuant to clauses (ii) through (v) and (vii) of Section 3.05(b), (iii)
Prepayment Consideration and/or Additional Interest, and (iv) amounts
deposited in the Collection Account in error;
provided that the Available Distribution Amount for the Final Distribution Date
shall consist of all amounts on deposit in the Collection Account as of the time
distributions are to be made to Certificateholders on the Final Distribution
Date, exclusive of any portion of such amounts that are payable or reimbursable
to any Person from the Collection Account pursuant to clauses (ii) through (v)
and (viii) of Section 3.05(b), that were deposited in the Collection Account in
error or that represent Prepayment Consideration and/or Additional Interest.
"Balloon Mortgage Loan" shall mean any Mortgage Loan that by its
original terms or by virtue of any modification entered into as of the Closing
Date provides for an amortization schedule extending beyond its Stated Maturity
Date and as to which, in accordance with such terms, the Scheduled Payment due
on its Stated Maturity Date is significantly larger than the Scheduled Payment
due on the Due Date next preceding its Stated Maturity Date.
"Balloon Payment" shall mean, with respect to any Balloon Mortgage
Loan as of any date of determination, the payment, other than any regularly
scheduled monthly payment, due with respect to such Mortgage Loan at maturity.
"Bid Allocation" shall mean, with respect to the Master Servicer or
any Sub-Servicer and the proceeds of any bid pursuant to Section 7.01(c), the
amount of such proceeds (net of any expenses incurred in connection with such
bid and the transfer of servicing), multiplied by a fraction equal to (a) the
Servicer Fee Amount for the Master Servicer or such Sub-Servicer, as the case
may be, as of such date of determination, over (b) the aggregate of the Servicer
Fee Amounts for the Master Servicer and all of the Sub-Servicers as of such date
of determination.
"Book-Entry Certificate" shall mean any Certificate registered in the
name of the Depository or its nominee.
"Book-Entry Non-Registered Certificate" shall mean any Non-Registered
Certificate that constitutes a Book-Entry Certificate.
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"Book-Entry Subordinate Certificate" shall mean any Subordinate
Certificate that constitutes a Book-Entry Certificate.
"Breach" shall have the meaning assigned thereto in Section 2.03(a).
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions in New York, New York or in any of the cities
in which the Corporate Trust Office of the Trustee, the Primary Servicing Office
of the Master Servicer or the Primary Servicing Office of the Special Servicer
are located, are authorized or obligated by law or executive order to remain
closed.
"Cash-Based Permitted Purchase" shall mean any Permitted Purchase
other than in connection with the exchange of all the Certificates for all the
Mortgage Loans and REO Properties pursuant to Section 9.01.
"Centerline" shall mean Centerline Servicing Inc. or its successors in
interest.
"Centerline Naming Convention" shall have the meaning assigned thereto
on Schedule VIII.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate" shall mean any one of the TIAA Seasoned Commercial
Mortgage Trust 2007-C4, Commercial Mortgage Pass-Through Certificates, Series
2007-C4, as executed by the Certificate Registrar and authenticated and
delivered hereunder by the Authenticating Agent.
"Certificate Factor" shall mean, with respect to any Class of Regular
Interest Certificates, as of any date of determination, a fraction, expressed as
a decimal carried to six places, the numerator of which is the then current
Class Principal Balance or Class Notional Amount, as the case may be, of such
Class of Regular Interest Certificates, and the denominator of which is the
Original Class Principal Balance or Original Class Notional Amount, as the case
may be, of such Class of Regular Interest Certificates.
"Certificate Notional Amount" shall mean, with respect to any Class X
Certificate, as of any date of determination, the then notional amount of such
Certificate equal to the product of (a) the then Certificate Factor for the
Class X Certificates, multiplied by (b) the amount specified on the face of such
Certificate as the initial Certificate Notional Amount thereof.
"Certificate Owner" shall mean, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Certificate as
reflected on the books of the Depository or on the books of a Depository
Participant or on the books of an indirect participating brokerage firm for
which a Depository Participant acts as agent.
"Certificate Principal Balance" shall mean, with respect to any
Principal Balance Certificate, as of any date of determination, the then
outstanding principal balance of such Certificate equal to the product of (a)
the then Certificate Factor for the Class of Principal Balance Certificates to
which such Certificate belongs, multiplied by (b) the amount specified on the
face of such Certificate as the initial Certificate Principal Balance thereof.
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"Certificate Register" shall mean the register maintained pursuant to
Section 5.02.
"Certificate Registrar" shall mean the registrar appointed pursuant to
Section 5.02.
"Certificateholder" shall mean the Person in whose name a Certificate
is registered in the Certificate Register, except that: (i) neither a
Disqualified Organization nor a Disqualified Non-United States Tax Person shall
be Holder of a Residual Interest Certificate for any purpose hereof; and (ii)
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement that relates to the rights and/or obligations of any of the
Depositor, the Master Servicer, the Special Servicer, any Fiscal Agent or the
Trustee in its respective capacity as such, any Certificate registered in the
name of the Depositor, the Master Servicer, the Special Servicer, any Fiscal
Agent or the Trustee, as the case may be, or any Certificate registered in the
name of any of its Affiliates, shall be deemed not to be outstanding, and the
Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent, approval or waiver that relates to it has been obtained
(provided that the provisions of this clause (ii) are not intended to limit the
rights of the Controlling Class Representative (which may be an Affiliate of the
Special Servicer) as are specifically set forth in this Agreement with respect
to any consent, approval or waiver required or permitted to be made by the
Controlling Class Representative or any rights under Section 6.09 with respect
to any election, removal or replacement of the Special Servicer or the
Controlling Class Representative). The Certificate Registrar shall be entitled
to request and rely upon a certificate of the Depositor, the Master Servicer or
the Special Servicer in determining whether a Certificate is registered in the
name of an Affiliate of such Person. All references herein to
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided, however, that the
parties hereto shall be required to recognize as a "Certificateholder" only the
Person in whose name a Certificate is registered in the Certificate Register.
"Certificateholder Reports" shall mean, collectively, the Distribution
Date Statement, the Mortgage Pool Data Update Report, the Loan Payoff
Notification Report, the CMSA Investor Reporting Package.
"Certifying Officer" shall have the meaning assigned thereto in
Section 8.15(d).
"Certifying Party" shall have the meaning assigned thereto in Section
8.15(d).
"Class" shall mean, collectively, all of the Certificates bearing the
same alphabetic or alphanumeric, as applicable, class designation or all of the
Holders of Certificates bearing the same alphabetic or alphanumeric, as
applicable, class designation, as the context may require.
"Class A Certificate" shall mean any of the Class X-0, Xxxxx X-0,
Class A-3, Class A-1A and Class A-J Certificates.
"Class A-1 Certificate" shall mean any one of the Certificates with a
"Class A-1" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
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"Class A-1A Certificate" shall mean any one of the Certificates with a
"Class A-1A" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-2 Certificate" shall mean any one of the Certificates with a
"Class A-2" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-3 Certificate" shall mean any one of the Certificates with a
"Class A-3" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-J Certificate" shall mean any one of the Certificates with a
"Class A-J" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class B Certificate" shall mean any one of the Certificates with a
"Class B" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class B Through T Certificate" shall mean any Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class P, Class Q, Class S or Class T Certificate.
"Class C Certificate" shall mean any one of the Certificates with a
"Class C" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class D Certificate" shall mean any one of the Certificates with a
"Class D" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class E Certificate" shall mean any one of the Certificates with a
"Class E" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class F Certificate" shall mean any one of the Certificates with a
"Class F" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class G Certificate" shall mean any one of the Certificates with a
"Class G" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class H Certificate" shall mean any of the Certificates with a "Class
H" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
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"Class J Certificate" shall mean any one of the Certificates with a
"Class J" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class K Certificate" shall mean any of the Certificates with a "Class
K" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class L Certificate" shall mean any of the Certificates with a "Class
L" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class M Certificate" shall mean any of the Certificates with a "Class
M" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class N Certificate" shall mean any of the Certificates with a "Class
N" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Notional Amount" shall mean the aggregate hypothetical or
notional amount on which the Class X Certificates accrue or are deemed to accrue
interest from time to time. As of any date of determination, the Class Notional
Amount of the Class X Certificates shall equal the then aggregate of the
Component Notional Amounts of all the Class X REMIC III Components.
"Class P Certificate" shall mean any of the Certificates with a "Class
P" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Principal Balance" shall mean the aggregate principal balance
outstanding from time to time of any Class of Principal Balance Certificates. As
of the Closing Date, the Class Principal Balance of each Class of Principal
Balance Certificates shall equal the Original Class Principal Balance thereof.
On each Distribution Date, the Class Principal Balance of each Class of
Principal Balance Certificates shall be reduced by the amount of any
distributions of principal made thereon on such Distribution Date pursuant to
Section 4.01 or 9.01, as applicable, and shall be further reduced (subject to
Section 4.05) by the amount of any Realized Losses and Additional Trust Fund
Expenses deemed allocated thereto on such Distribution Date pursuant to Section
4.04. On each Distribution Date, the Class Principal Balance of each Class of
Principal Balance Certificates shall be increased by the related Class Principal
Reinstatement Amount, if any, for such Distribution Date.
"Class Principal Reinstatement Amount" shall have the meaning assigned
thereto in Section 4.05(a).
"Class Q Certificate" shall mean any of the Certificates with a "Class
Q" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
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"Class R-I Certificate" shall mean any of the Certificates with a
"Class R-I" designation on the face thereof, substantially in the form of
Exhibit A-5 attached hereto, and evidencing a portion of the sole class of
"residual interests" in REMIC I for purposes of the REMIC Provisions.
"Class R-II Certificate" shall mean any of the Certificates with a
"Class R-II" designation on the face thereof, substantially in the form of
Exhibit A-5 attached hereto, and evidencing a portion of the sole class of
"residual interests" in REMIC II for purposes of the REMIC Provisions.
"Class R-III Certificate" shall mean any of the Certificates with a
"Class R-III" designation on the face thereof, substantially in the form of
Exhibit A-5 attached hereto, and evidencing a portion of the sole class of
"residual interests" in REMIC III for purposes of the REMIC Provisions.
"Class R-LR Certificate" shall mean, subject to Section 2.06(b), any
of the Certificates with a "Class R-LR" designation on the face thereof,
substantially in the form of Exhibit A-5 attached hereto, and evidencing a
portion of the sole class of "residual interests" in each Loan REMIC for
purposes of the REMIC Provisions.
"Class S Certificate" shall mean any of the Certificates with a "Class
S" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class T Certificate" shall mean any of the Certificates with a "Class
T" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class V Certificate" shall mean, subject to Section 2.05(b), any of
the Certificates with a "Class V" designation on the face thereof, substantially
in the form of Exhibit A-6 attached hereto, and evidencing a pro rata undivided
interest in the Grantor Trust Assets.
"Class V Sub-Account" shall mean, subject to Section 2.05(b), a
sub-account of the Collection Account established pursuant to Section 3.04(b),
which sub-account shall constitute an asset of the Trust Fund and the Grantor
Trust, but not an asset of any REMIC Pool.
"Class X Certificate" shall mean any one of the Certificates with a
"Class X" designation on the face thereof, substantially in the form of Exhibit
A-2 attached hereto, and evidencing a portion of multiple separate "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class X REMIC III Component" shall mean any of the multiple separate
"regular interests" in REMIC III evidenced by the Class X Certificates, each of
which: (i) relates to its Corresponding REMIC II Regular Interest; (ii) accrues
interest at its Pass-Through Rate in effect from time to time; and (iii) has a
separate Component Notional Amount on which such Class X REMIC III Component
accrues interest from time to time. The Class X REMIC III Components shall have
the following alphabetic and alphanumeric designations: X-A-1; X-A-2; X-A-3;
X-A-1A; X-A-J; X-B; X-C; X-D; X-E; X-F; X-G; X-H; X-J; X-K; X-L; X-M; X-N; X-P;
X-Q; X-S; and X-T.
"Clearstream" shall mean Clearstream Banking, Luxembourg or any
successor thereto.
"Closing Date" shall mean August 9, 2007.
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"CMSA" shall mean the Commercial Mortgage Securities Association, or
any association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry, which is the principal such association or organization in the
commercial mortgage loan securitization industry and one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be selected
by the Master Servicer and reasonably acceptable to the Trustee, the Special
Servicer and the Controlling Class Representative.
"CMSA Advance Recovery Report" shall mean a report (prepared by the
Master Servicer) substantially in the form of, and containing the information
called for in, the downloadable form of the "Advance Recovery Report" available
as of the Closing Date on the CMSA Website, or such other form for the
presentation of such information as may from time to time be approved by the
CMSA for commercial mortgage securities transactions generally.
"CMSA Appraisal Reduction Template" shall mean a report (prepared by
the Special Servicer) substantially in the form of, and containing the
information called for in, the downloadable form of the "Appraisal Reduction
Template" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be approved by the CMSA for commercial
mortgage securities transactions generally.
"CMSA Bond Level File" shall mean the monthly report (prepared by the
Trustee) substantially in the form of, and containing the information called for
in, the downloadable form of the "Bond Level File" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Collateral Summary File" shall mean the report (prepared by the
Trustee) substantially in the form of, and containing the information called for
in, the downloadable form of the "Collateral Summary File" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Comparative Financial Status Report" shall mean a report
(prepared by the Master Servicer) substantially in the form of, and containing
the information called for in, the downloadable form of the "Comparative
Financial Status Report" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally. In connection with preparing the CMSA Comparative Financial Status
Report, the Master Servicer shall process (a) interim financial statements
beginning with interim financial statements for the first fiscal
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quarter ending on or after March 31, 2008, and (b) annual financial statements
beginning with annual financial statements for the first fiscal year ending on
or after December 31, 2007.
"CMSA Delinquent Loan Status Report" shall mean a report (prepared by
the Master Servicer) substantially in the form of, and containing the
information called for in, the downloadable form of the "Delinquent Loan Status
Report" available as of the Closing Date on the CMSA Website, or such other form
for the presentation of such information and containing such additional
information as may from time to time be approved by the CMSA for commercial
mortgage securities transactions generally.
"CMSA Financial File" shall mean a report (prepared by the Master
Servicer) substantially in the form of, and containing the information called
for in, the downloadable form of the "Financial File" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Historical Bond/Collateral Realized Loss Reconciliation
Template" shall mean a report (prepared by the Trustee) substantially in the
form of, and containing the information called for in, the downloadable form of
the "Historical Bond/Collateral Realized Loss Reconciliation Template" available
as of the Closing Date on the CMSA Website, or such other form for the
presentation of such information and containing such additional information as
may from time to time be approved by the CMSA for commercial mortgage securities
transactions generally.
"CMSA Historical Liquidation Loss Template" shall mean a report
(prepared by the Trustee) substantially in the form of, and containing the
information called for in, the downloadable form of the "Historical Liquidation
Loss Template" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan Report"
shall mean a report (prepared by the Master Servicer) substantially in the form
of, and containing the information called for in, the downloadable form of the
"Historical Loan Modification and Corrected Mortgage Loan Report" available as
of the Closing Date on the CMSA Website, or such other form for the presentation
of such information and containing such additional information as may from time
to time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Interest Shortfall Reconciliation Template" shall mean a report
(prepared by the Trustee) substantially in the form of, and containing the
information called for in, the downloadable form of the "Interest Shortfall
Reconciliation Template" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
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"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following seven data files: (i) CMSA Loan Setup File, (ii)
CMSA Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA
Financial File, (v) CMSA Special Servicer Loan File, (vi) CMSA Bond Level
File, and (vii) CMSA Collateral Summary File;
(b) the following ten supplemental reports: (i) CMSA Servicer Watch
List, (ii) CMSA Delinquent Loan Status Report, (iii) CMSA REO Status
Report, (iv) CMSA Comparative Financial Status Report, (v) CMSA Historical
Loan Modification and Corrected Mortgage Loan Report, (vi) CMSA Loan Level
Reserve/LOC Report, (vii) CMSA Total Loan Report, (viii) CMSA Advance
Recovery Report, (ix) CMSA Operating Statement Analysis Report, and (x)
CMSA NOI Adjustment Worksheet;
(c) the following six templates: (i) CMSA Appraisal Reduction
Template, (ii) CMSA Servicer Realized Loss Template, (iii) CMSA
Reconciliation of Funds Template, (iv) CMSA Historical Bond/Collateral
Realized Loss Reconciliation Template, (v) CMSA Historical Liquidation Loss
Template, and (vi) CMSA Interest Shortfall Reconciliation Template; and
(d) such other files, reports or templates as the CMSA may approve
from time to time as being part of the CMSA Investor Reporting Package for
commercial mortgage securitization trusts generally and as are reasonably
acceptable to the Master Servicer, Special Servicer or Trustee (whichever
party is required to complete the subject file, report or template).
"CMSA Loan Level Reserve/LOC Report" shall mean the monthly report
(prepared by the Master Servicer) substantially in the form of, and containing
the information called for in, the downloadable form of the "Loan Level
Reserve/LOC Report" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Loan Periodic Update File" shall mean the monthly report
(prepared by the Master Servicer) substantially in the form of, and containing
the information called for in, the downloadable form of the "Loan Periodic
Update File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be approved by the CMSA for commercial
mortgage securities transactions generally.
"CMSA Loan Setup File" shall mean the report (prepared by the Master
Servicer) substantially in the form of, and containing the information called
for in, the downloadable form of the "Loan Setup File" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA NOI Adjustment Worksheet" shall mean a report prepared by the
Master Servicer with respect to all the Performing Mortgage Loans, and by the
Special Servicer with respect to Specially Serviced Mortgage Loans and, if they
relate to REO Properties, REO Mortgage Loans, which report shall be
substantially in the form of, and contain the information called for in, the
downloadable form of the "NOI Adjustment Worksheet" available as of the Closing
Date on the CMSA Website, or
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such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Operating Statement Analysis Report" shall mean a report
(prepared by the Master Servicer, in the case of a Performing Mortgage Loan, and
by the Special Servicer, in the case of a Specially Serviced Mortgage Loan)
substantially in the form of, and containing the information called for in, the
downloadable form of the "Operating Statement Analysis Report" available as of
the Closing Date on the CMSA Website or in such other form for the presentation
of such information and containing such additional information as may from time
to time be approved by the CMSA for commercial mortgage-backed securities
transactions generally.
"CMSA Property File" shall mean a report (prepared by the Master
Servicer) substantially in the form of, and containing the information called
for in, the downloadable form of the "Property File" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Reconciliation of Funds Template" shall mean a report (prepared
by the Trustee) substantially in the form of, and containing the information
called for in, the downloadable form of the "Reconciliation of Funds Template"
available as of the Closing Date on the CMSA Website, or such other form for the
presentation of such information and containing such additional information as
may from time to time be approved by the CMSA for commercial mortgage securities
transactions generally.
"CMSA REO Status Report" shall mean a report (prepared by the Master
Servicer) substantially in the form of, and containing the information called
for in, the downloadable form of the "REO Status Report" available as of the
Closing Date on the CMSA Website, or in such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Servicer Realized Loss Template" shall mean a report (prepared
by the Master Servicer, in the case of a Performing Mortgage Loan, and by the
Special Servicer, in the case of a Specially Serviced Mortgage Loan)
substantially in the form of, and containing the information called for in, the
downloadable form of the "Servicer Realized Loss Template" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Servicer Watch List" shall mean a report (prepared by the Master
Servicer) substantially in the form of, and containing the information called
for in, the downloadable form of the "Servicer Watch List" available as of the
Closing Date on the CMSA Website, or in such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Special Servicer Loan File" shall mean the report (prepared by
the Special Servicer) 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
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may from time to time be approved by the CMSA for commercial mortgage securities
transactions generally.
"CMSA Total Loan Report" shall mean the monthly report (prepared by
the Master Servicer) substantially in the form of, and containing the
information called for in, the downloadable form of the "Total Loan Report"
available as of the Closing Date on the CMSA Website, or such other form for the
presentation of such information and containing such additional information as
may from time to time be approved by the CMSA for commercial mortgage securities
transactions generally.
"CMSA Website" shall mean the CMSA's Website located at "xxx.xxxx.xxx"
or such other primary website as the CMSA may establish for dissemination of its
report forms.
"Code" shall mean the Internal Revenue Code of 1986 and regulations
promulgated thereunder, including temporary regulations and proposed regulations
to the extent that, by reason of their proposed effective date, could, as of the
date of any determination or opinion as to the tax consequences of any action or
proposed action or transaction, be applied to the Certificates.
"Collection Account" shall mean the segregated account or accounts
created and maintained by the Trustee pursuant to Section 3.04(b), which shall
be entitled "Xxxxx Fargo Bank, N.A. [OR NAME OF ANY SUCCESSOR TRUSTEE] as
Trustee, in trust for the registered holders of TIAA Seasoned Commercial
Mortgage Trust 2007-C4, Commercial Mortgage Pass-Through Certificates, Series
2007-C4".
"Collection Period" shall mean, with respect to any Distribution Date
or Master Servicer Remittance Date, the period commencing on the day immediately
following the Determination Date in the calendar month preceding the month in
which such Distribution Date or Master Servicer Remittance Date, as the case may
be, occurs (or, in the case of each of the initial Distribution Date and the
initial Master Servicer Remittance Date, commencing immediately following the
Cut-off Date) and ending on and including the Determination Date in the calendar
month in which such Distribution Date or Master Servicer Remittance Date, as the
case may be, occurs.
"Commission" shall mean the United States Securities and Exchange
Commission or any successor agency.
"Component Notional Amount" shall mean the notional amount on which
any Class X REMIC III Component accrues interest, which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
its Corresponding REMIC II Regular Interest outstanding from time to time.
"Condemnation Proceeds" shall mean all cash amounts Received by the
Trust in connection with the taking of all or a part of a Mortgaged Property or
REO Property by exercise of the power of eminent domain or condemnation,
subject, however, to the rights of any tenants and ground lessors, as the case
may be, and the terms of the related Mortgage.
"Controlling Class" shall mean, as of any date of determination, the
then most subordinate (based on the payment priorities set forth in Sections
4.01(a) and 4.01(b)) outstanding Class of Principal Balance Certificates that
has a Class Principal Balance that is at least equal to 25% of the Original
Class Principal Balance of such Class; provided that if no Class of Principal
Balance
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Certificates has as of such date of determination a Class Principal Balance that
is at least equal to 25% of its Original Class Principal Balance, then the
Controlling Class shall be the then most subordinate (based on the payment
priorities set forth in Sections 4.01(a) and 4.01(b)) outstanding Class of
Principal Balance Certificates that has a Class Principal Balance greater than
zero; and provided, further, that, for purposes of determining, and exercising
the rights of, the Controlling Class, all of the Senior Class A Certificates
shall be deemed to constitute a single Class of Certificates. The Trustee shall
notify the other parties hereto of any change of which it has knowledge in the
Class of Certificates that constitutes the Controlling Class pursuant to this
definition.
"Controlling Class Certificateholder" shall mean any Holder of a
Certificate of the Controlling Class.
"Controlling Class Representative" shall have the meaning assigned
thereto in Section 6.09(b).
"Controlling Class Representative Confirmation" shall have the meaning
assigned thereto in Section 6.09(b).
"Corporate Trust Office" shall mean the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located at 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Services (CMBS) --
TIAA Seasoned Commercial Mortgage Trust 2007-C4.
"Corrected Mortgage Loan" shall mean any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be such in accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by reason of a
Liquidation Event occurring in respect of such Mortgage Loan or the related
Mortgaged Property's becoming an REO Property).
"Corresponding Class of Principal Balance Certificates" shall mean,
with respect to any REMIC II Regular Interest, the Class designated as such in
the Preliminary Statement hereto.
"Corresponding REMIC II Regular Interest" shall mean: (a) with respect
to any Class of Principal Balance Certificates, each REMIC II Regular Interest
that has an alphabetic or alphanumeric, as applicable, designation that is the
same as the alphabetic or alphanumeric, as the case may be, designation for such
Class of Principal Balance Certificates; and (b) with respect to any Class X
REMIC III Component, the REMIC II Regular Interest that has an alphabetic or
alphanumeric, as applicable, designation that, when preceded by "X-", is the
same as the alphabetic or alphanumeric, as the case may be, designation for such
Class X REMIC III Component.
"Covered Costs" shall mean, with respect to any Mortgage Loan and any
related costs and expenses that the Mortgage Loan Seller is otherwise required
to pay pursuant to the Mortgage Loan Purchase Agreement, (i) if such Mortgage
Loan has an original principal balance equal to or less than $10,000,000, the
entire amount of such costs and expenses, but only in the event such costs and
expenses exceed a threshold of $10,000, and (ii) if such Mortgage Loan has an
original principal balance greater than $10,000,000, the entire amount of such
costs and expenses, but only in the event such costs and expenses exceed a
threshold of $25,000. In the case of each of clauses (i) and (ii) above in this
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definition, in the event the subject costs and expenses do not exceed the
required threshold stated in the subject clause, the "Covered Costs" shall be
$0.
"Cross-Collateralized Group" shall mean any group of
Cross-Collateralized Mortgage Loans.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan that
is cross-defaulted and cross-collateralized with any other Mortgage Loan.
"Custodial Account" shall mean the segregated account or accounts
created and maintained by the Master Servicer pursuant to Section 3.04(a) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "Wachovia Bank, National Association [OR THE NAME OF ANY SUCCESSOR
MASTER SERVICER], as Master Servicer, on behalf of Xxxxx Fargo Bank, N.A. [OR
THE NAME OF ANY SUCCESSOR TRUSTEE], as Trustee, in trust for the registered
holders of TIAA Seasoned Commercial Mortgage Trust 2007-C4, Commercial Mortgage
Pass-Through Certificates, Series 2007-C4, Custodial Account".
"Custodian" shall mean a Person who is at any time appointed by the
Trustee pursuant to Section 8.11 as a document custodian for some or all of the
Mortgage Files, which Person shall not be the Depositor, the Mortgage Loan
Seller or an Affiliate of the Depositor or the Mortgage Loan Seller. If no such
custodian has been appointed, or if such custodian has been so appointed but the
Trustee shall have terminated such appointment, then the Trustee shall be the
Custodian.
"Cut-off Date" shall mean July 11, 2007.
"Cut-off Date Balance" shall mean, with respect to any Mortgage Loan,
the outstanding principal balance of such Mortgage Loan as of the Cut-off Date,
net of all unpaid payments of principal due in respect thereof on or before such
date.
"Default Charges" shall mean Default Interest and/or late payment
charges that are paid or payable, as the context may require, to the Trust in
respect of any Mortgage Loan or any successor REO Mortgage Loan with respect
thereto.
"Default Interest" shall mean, with respect to any Mortgage Loan (or
any successor REO Mortgage Loan with respect thereto), any amounts collected
thereon (other than late payment charges and Prepayment Consideration) that
represent penalty interest (arising out of a default) in excess of (i) interest
accrued on the principal balance of such Mortgage Loan (or any successor REO
Mortgage Loan with respect thereto), at the related Mortgage Rate (net of any
applicable Additional Interest Rate included as part of such Mortgage Rate), and
(ii) in the case of an ARD Mortgage Loan (or any successor REO Mortgage Loan
with respect thereto) after the related Anticipated Repayment Date, any
Additional Interest.
"Defaulting Party" shall have the meaning assigned thereto in Section
7.01(b).
"Defeasance Certificate" shall have the meaning assigned thereto in
Section 3.20(k).
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"Defeasance Collateral" shall mean, with respect to any Defeasance
Mortgage Loan, the Government Securities required or permitted to be pledged in
lieu of prepayment pursuant to the terms thereof in order to obtain a release of
the related Mortgaged Property.
"Defeasance Deposit Account" shall have the meaning assigned thereto
in Section 3.04(a).
"Defeasance Mortgage Loan" shall mean any Mortgage Loan that permits
the related Mortgagor to pledge Defeasance Collateral to the holder of such
Mortgage Loan in connection with obtaining the release of all or any portion of
the related Mortgaged Property (or permits the holder of such Mortgage Loan to
require the related Mortgagor to pledge Defeasance Collateral to the holder of
such Mortgage Loan in lieu of prepayment).
"Definitive Certificate" shall have the meaning assigned thereto in
Section 5.03(a).
"Definitive Non-Registered Certificate" shall mean any Non-Registered
Certificate that has been issued as a Definitive Certificate.
"Definitive Subordinate Certificate" shall mean any Subordinate
Certificate that has been issued as a Definitive Certificate.
"Depositor" shall mean SASCO II.
"Depository" shall mean The Depository Trust Company or any successor
Depository hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depository for purposes of registering those Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act.
"Depository Participant" shall mean a broker, dealer, bank or other
financial institution or other Person for whom from time to time the Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date" shall mean the 11th calendar day of each month
(or, if such 11th day is not a Business Day, the Business Day immediately
following), commencing in August 2007.
"Directly Operate" shall mean, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale or lease, the performance of any construction work thereon or any use of
such REO Property in a trade or business conducted by REMIC I (or, if held
thereby, any related Loan REMIC) other than through an Independent Contractor;
provided, however, that the Trustee (or the Special Servicer or any Sub-Servicer
on behalf of the Trustee) shall not be considered to Directly Operate an REO
Property solely because the Trustee (or the Special Servicer or any Sub-Servicer
on behalf of the Trustee) establishes rental terms, chooses tenants, enters into
or renews leases, deals with taxes and insurance, or makes decisions as to
repairs or capital expenditures with respect to such REO Property.
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"Discount Rate" shall mean, with respect to any prepaid Mortgage Loan
or REO Mortgage Loan, for purposes of allocating any Prepayment Consideration
Received by the Trust with respect thereto among the respective Classes of the
YM Principal Balance Certificates, a rate which, when compounded monthly, is
equivalent to the Yield Maintenance Treasury Rate, when compounded
semi-annually.
"Disqualified Non-United States Tax Person" shall mean, with respect
to any Residual Interest Certificate, any Non-United States Tax Person or agent
thereof other than: (1) a Non-United States Tax Person that (a) holds such
Residual Interest Certificate and, for purposes of Treasury regulations section
1.860G-3(a)(3), is subject to tax under Section 882 of the Code, (b) certifies
that it understands that, for purposes of Treasury regulations section
1.860E-1(c)(4)(ii), as a holder of such Residual Interest Certificate for United
States federal income tax purposes, it may incur tax liabilities in excess of
any cash flows generated by such Residual Interest Certificate and intends to
pay taxes associated with holding such Residual Interest Certificate, and (c)
has furnished the Transferor and the Trustee with an effective IRS Form W-8ECI
or successor form and has agreed to update such form as required under the
applicable Treasury regulations; or (2) a Non-United States Tax Person that has
delivered to the Transferor, the Trustee and the Certificate Registrar an
opinion of nationally recognized tax counsel to the effect that (x) the Transfer
of such Residual Interest Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and (y) such
Transfer of such Residual Interest Certificate will not be disregarded for
United States federal income tax purposes.
"Disqualified Organization" shall mean any of the following: (i) the
United States, any State or any political subdivision thereof, any foreign
government, international organization, or any agency or instrumentality of any
of the foregoing; (ii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) that is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business income); (iii) rural electric and
telephone cooperatives described in Section 1381 of the Code; or (iv) any other
Person so designated by the Trustee or the Tax Administrator based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Interest Certificate by such Person may cause the Trust or any Person having an
Ownership Interest in any Class of Certificates, other than such Person, to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Interest Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"Disqualified Partnership" shall mean any domestic entity classified
as a partnership under the Code if any of its beneficial owners are Disqualified
Non-United States Tax Persons or as to which the partnership agreement does not
prohibit transfers of partnership interests to Disqualified Non-United States
Tax Persons.
"Distributable Certificate Interest" shall mean, with respect to any
Class of Regular Interest Certificates for any Distribution Date, subject to
Section 4.05(b), an amount of interest equal to (a) the amount of Accrued
Certificate Interest in respect of such Class of Certificates for the related
Interest Accrual Period, reduced (to not less than zero) by (b) that portion, if
any, of the Net Aggregate Prepayment Interest Shortfall for such Distribution
Date allocated to such Class of Certificates as provided below. For purposes of
the foregoing, the Net Aggregate Prepayment Interest Shortfall, if any, for each
Distribution Date shall be allocated to each Class of Regular Interest
Certificates in an amount
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equal to the lesser of (A) the amount of Accrued Certificate Interest with
respect to the subject Class of Regular Interest Certificates for the related
Interest Accrual Period and (B) the product of (1) the entire amount of such Net
Aggregate Prepayment Interest Shortfall, multiplied by (2) a fraction, the
numerator of which is equal to the amount of Accrued Certificate Interest with
respect to the subject Class of Regular Interest Certificates for the related
Interest Accrual Period, and the denominator of which is equal to the aggregate
amount of Accrued Certificate Interest with respect to all the Classes of
Regular Interest Certificates for the related Interest Accrual Period.
"Distributable Component Interest" shall mean, with respect to any
Class X REMIC III Component for any Distribution Date, subject to Section
4.05(b), an amount of interest equal to (a) the amount of Accrued Component
Interest in respect of such Class X REMIC III Component for the related Interest
Accrual Period, reduced (to not less than zero) by (b) the product of (i) the
entire portion of any Net Aggregate Prepayment Interest Shortfall for such
Distribution Date that was allocated to the Class X Certificates in accordance
with the definition of "Distributable Certificate Interest," multiplied by (ii)
a fraction, the numerator of which is the amount of any Accrued Component
Interest in respect of such Class X REMIC III Component for the related Interest
Accrual Period, and the denominator of which is the amount of the Accrued
Certificate Interest in respect of the Class X Certificates for the related
Interest Accrual Period.
"Distribution Date" shall mean the date each month, commencing in
August 2007, on which, among other things, the Trustee is to make distributions
on the Certificates, which date shall be the fourth Business Day following the
Determination Date in such calendar month.
"Distribution Date Statement" shall have the meaning assigned thereto
in Section 4.02(a).
"Document Defect" shall have the meaning assigned thereto in Section
2.03(a).
"Due Date" shall mean: (i) with respect to any Mortgage Loan on or
prior to its Stated Maturity Date, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on such Mortgage Loan is scheduled
to be first due; (ii) with respect to any Mortgage Loan after its Stated
Maturity Date, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on such Mortgage Loan had been scheduled to be first
due; and (iii) with respect to any REO Mortgage Loan, the day of the month set
forth in the related Mortgage Note on which each Monthly Payment on the related
Mortgage Loan had been scheduled to be first due.
"Early Defeasance Mortgage Loan" shall mean, subject to Section
2.06(b), any Mortgage Loan that provides the related Mortgagor with the option
to defease such Mortgage Loan in its entirety prior to the second anniversary of
the Closing Date. The Early Defeasance Mortgage Loans, if any, are identified on
Schedule V hereto. If Schedule V hereto does not identify any Mortgage Loan as
an Early Defeasance Mortgage Loan, then Section 2.06(b) shall apply.
"XXXXX" shall mean the Commission's Electronic Data Gathering,
Analysis and Retrieval system.
"Eligible Account" shall mean any of: (i) an account maintained with a
federal or state chartered depository institution or trust company, (A) the
long-term deposit or unsecured debt obligations of which are rated at least
"AA-" (or, if such depository institution or trust company has short-term
unsecured debt obligations rated at least "A-1" by S&P, at least "A-") by S&P
and at least
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"AA-" by Fitch (or, in the case of either Rating Agency, such lower rating as
will not result in an Adverse Rating Event with respect to any Class of
Certificates that is rated by such Rating Agency, as evidenced in writing by
such Rating Agency, but in no event shall any such rating be lower than "A-" by
each of S&P and Fitch) at any time funds are on deposit therein (if such funds
are to be held for more than 30 days), or (B) the short-term deposits of which
are rated at least "A-1" by S&P and at least "F-1" by Fitch (or, in the case of
either Rating Agency, such lower rating as will not result in an Adverse Rating
Event with respect to any Class of Certificates that is rated by such Rating
Agency, as evidenced in writing by such Rating Agency, but in no event shall any
such rating be lower than "A-" by each of S&P and Fitch) at any time funds are
on deposit therein (if such funds are to be held for 30 days or less); or (ii) a
segregated trust account maintained with the trust department of a federal or
state chartered depository institution or trust company acting in its fiduciary
capacity (which may be the Trustee), which has a combined capital and surplus of
at least $50,000,000, has long-term deposit or unsecured debt obligations that
are rated at least investment grade by each Rating Agency, is subject to
supervision or examination by federal or state authority and, in the case of a
state chartered depository institution or trust company, is subject to
regulations regarding fiduciary funds on deposit therein substantially similar
to 12 CFR Section 9.10(b); or (iii) any other account, the use of which would
not, in and of itself, either (A) cause an Adverse Rating Event with respect to
any Class of Certificates that, in any event, is rated by either Rating Agency,
as evidenced in writing by such Rating Agency or (B) be inconsistent with the
requirements of FASB 140 or any interpretations with respect thereto applicable
to such accounts.
"Enhancement/Support Provider" shall mean 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" shall mean 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.
"Environmental Insurance Policy" shall mean, with respect to any
Mortgaged Property or REO Property, any insurance policy covering pollution
conditions and/or other environmental conditions that is maintained from time to
time in respect of such Mortgaged Property or REO Property, as the case may be,
for the benefit of, among others, the Trustee on behalf of the
Certificateholders.
"Environmentally Insured Mortgage Loans" shall mean the Mortgage Loans
identified on Schedule II hereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Payment" shall mean any payment received by the Master
Servicer or the Special Servicer for the account of any Mortgagor for
application toward the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and other items for which an escrow has
been created in respect of the related Mortgaged Property.
"Euroclear" shall mean The Euroclear System or any successor.
"Event of Default" shall have the meaning assigned thereto in Section
7.01(a).
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"Excess Defeasance Deposit Proceeds" shall mean, with respect to an
Early Defeasance Mortgage Loan for which the related Mortgagor has exercised its
option to defease such Mortgage Loan prior to the second anniversary of the
Closing Date, subject to Section 2.06(b), the excess, if any, of any cash amount
tendered by such Mortgagor in order to purchase Defeasance Collateral or other
permitted collateral for purposes of defeasing such Mortgage Loan in accordance
with the related loan documents, over an amount equal to, with respect to such
Mortgage Loan, the aggregate of the amounts specified in clauses (a) through (e)
of the definition of "Purchase Price" in this Agreement.
"Excess Liquidation Proceeds" shall mean the excess, if any, of (a)
the Net Liquidation Proceeds from the sale or liquidation of a Specially
Serviced Mortgage Loan or an REO Property, net of (i) interest on any related
Advances, (ii) any related Servicing Advances and (iii) any Liquidation Fee
and/or unpaid Special Servicing Fee payable from such Net Liquidation Proceeds,
over (b) the amount needed to pay off the subject Mortgage Loan or the related
REO Mortgage Loan, as applicable, in full.
"Excess Liquidation Proceeds Account" shall mean the segregated
account or accounts (or the segregated sub-account of the Collection Account)
created and maintained by the Trustee pursuant to Section 3.04(d) in trust for
the Certificateholders, which shall be entitled "Xxxxx Fargo Bank, N.A. [OR THE
NAME OF ANY SUCCESSOR TRUSTEE], as Trustee, in trust for the registered holders
of TIAA Seasoned Commercial Mortgage Trust 2007-C4, Commercial Mortgage
Pass-Through Certificates, Series 0000-X0".
"Xxxxxxxx Xxx" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Act Reportable Event" shall mean: (a) with respect to the
Trustee or, if and to the extent specifically applicable thereto or to its
duties on behalf of the Trustee, any Servicing Representative or other agent of
the Trustee or any Trustee Appointee, a Trustee Reportable Event; (b) with
respect to the Master Servicer or, if and to the extent specifically applicable
thereto or to its duties on behalf of the Master Servicer, any Servicing
Representative or other agent of the Master Servicer, a Master Servicer
Reportable Event; and (c) with respect to 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 or other agent of the Special Servicer, a
Special Servicer Reportable Event.
"Exchange Act Reporting Year" shall mean each of: (a) the Trust's
fiscal year 2007; (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); and (c) solely in
the case of the Trust's fiscal year 2008, in the event that the Depositor
provides written notice to the parties hereto, as contemplated by Section
8.15(c), that it has elected to treat the Trust's fiscal year 2008 as an
Exchange Act Reporting Year.
"Exchange Act Reports" shall have the meaning assigned thereto in
Section 8.15(a).
"Exemption-Favored Party" shall mean any of (i) Xxxxxx Brothers, (ii)
any Person directly or indirectly, through one or more intermediaries,
controlling, controlled by or under common control with Xxxxxx Brothers, and
(iii) any member of any underwriting syndicate or selling group of
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which any Person described in clauses (i) and (ii) is a manager or co-manager
with respect to a Class of Investment Grade Certificates.
"Xxxxxx Mae" shall mean the Federal National Mortgage Association or
any successor.
"FASB 140" shall mean the Financial Accounting Standards Board's
Statement No. 140, entitled "Accounting for Transfers and Servicing of Financial
Assets and Extinguishment of Liabilities", issued in September 2002.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation or any
successor.
"Final Distribution Date" shall mean the Distribution Date on which
the final distribution is to be made with respect to the Certificates in
connection with a termination of the Trust Fund pursuant to Article IX.
"Final Recovery Determination" shall mean a determination by the
Special Servicer with respect to any Specially Serviced Mortgage Loan or REO
Property that there has been a recovery of all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries that the Special
Servicer has determined, in accordance with the Servicing Standard, will be
ultimately recoverable; provided that the term "Final Recovery Determination"
shall not apply to (i) a Specially Serviced Mortgage Loan that was paid in full,
or (ii) a Specially Serviced Mortgage Loan or REO Property, as the case may be,
that was the subject of a Permitted Purchase.
"Fiscal Agent" shall mean any fiscal agent appointed by the Trustee as
provided in Section 8.17.
"Fitch" shall mean Fitch Ratings, Inc. or its successors in interest.
If neither such rating agency nor any successor remains in existence, "Fitch"
shall be deemed to refer to such other nationally recognized statistical rating
agency or other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, any Fiscal Agent, the Master Servicer
and the Special Servicer, and specific ratings of Fitch Ratings, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"Form 8-K" shall mean 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 Required Information" shall mean 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.
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"Form 10-D" shall mean 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 Required Information" shall mean 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" shall mean 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 Required Information" shall mean 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.
"FV Bid" shall have the meaning assigned thereto in Section 3.18(d).
"FV Price" shall have the meaning assigned thereto in Section 3.18(c).
"GAAP" shall mean generally accepted accounting principles in the
United States of America.
"Global Certificate" shall mean, 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.
"Government Securities" shall mean "Government Securities" as defined
in Section 2(a)(16) of the Investment Company Act of 1940, excluding any such
securities that are not acceptable to either Rating Agency as Defeasance
Collateral.
"Grantor Trust" shall mean, subject to Section 2.05(b), that certain
"grantor trust" (within the meaning of the Grantor Trust Provisions) consisting
of the Grantor Trust Assets.
"Grantor Trust Assets" shall mean, subject to Section 2.05(b), any
collections of Additional Interest Received by the Trust with respect to any ARD
Mortgage Loans and any successor REO Mortgage Loans with respect thereto.
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"Grantor Trust Provisions" shall mean Subpart E of Part 1 of
Subchapter J of the Code, including Treasury regulations section
301.7701-4(c)(2).
"Ground Lease" shall mean, with respect to any Mortgage Loan for which
the related Mortgagor has a leasehold interest in the related Mortgaged
Property, the lease agreement(s) (including any lease agreement with respect to
a master space lease) creating such leasehold interest.
"Group 1 Mortgage Loan" shall mean any Mortgage Loan that is
identified on the Mortgage Loan Schedule as belonging to Loan Group No. 1.
"Group 2 Mortgage Loan" shall mean any Mortgage Loan that is
identified on the Mortgage Loan Schedule as belonging to Loan Group No. 2.
"Hazardous Materials" shall mean any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including those so identified
pursuant to CERCLA or any other federal, state or local environmental related
laws and regulations now existing or hereafter enacted, and specifically
including asbestos and asbestos-containing materials, polychlorinated biphenyls,
radon gas, petroleum and petroleum products and urea formaldehyde.
"Holder" shall mean a Certificateholder.
"HUD-Approved Servicer" shall mean a servicer that is a mortgagee
approved by the Secretary of Housing and Urban Development pursuant to Sections
203 and 211 of the National Housing Act.
"Independent" shall mean, when used with respect to any specified
Person, any such Person who (i) is in fact independent of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Controlling
Class Representative and any and all Affiliates thereof, (ii) does not have any
direct financial interest in or any material indirect financial interest in any
of the Depositor, the Mortgage Loan Seller, the Master Servicer, the Special
Servicer, the Controlling Class Representative or any Affiliate thereof, and
(iii) is not connected with the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Controlling Class Representative or any
Affiliate thereof as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions; provided, however,
that a Person shall not fail to be Independent of the Depositor, the Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the Controlling Class
Representative or any Affiliate thereof merely because such Person is the
beneficial owner of 1% or less of any class of securities issued by the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Controlling Class Representative or any Affiliate thereof, as the case may
be; provided that such ownership constitutes less than 1% of the total assets
owned by such Person.
"Independent Appraiser" shall mean an Independent professional real
estate appraiser who (i) is a member in good standing of the Appraisal
Institute, (ii) if the state in which the subject Mortgaged Property is located
certifies or licenses appraisers, is certified or licensed in such state, and
(iii) has a minimum of five years experience in the subject property type and
market.
"Independent Contractor" shall mean: (a) any Person that would be an
"independent contractor" with respect to REMIC I (or, solely for purposes of an
Early Defeasance Mortgage Loan or any corresponding REO Property, any related
Loan REMIC) within the meaning of Section 856(d)(3) of
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the Code if such REMIC Pool were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by any
Person that owns, directly or indirectly, 35 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Master
Servicer, the Special Servicer, the Trustee or the Trust Fund, delivered to the
Trustee), provided that (i) such REMIC Pool does not receive or derive any
income from such Person and (ii) the relationship between such Person and such
REMIC Pool is at arm's length, all within the meaning of Treasury regulations
section 1.856-4(b)(5); or (b) any other Person upon receipt by the Trustee of an
Opinion of Counsel, which shall be at no expense to the Master Servicer, the
Special Servicer, the Trustee or the Trust Fund, to the effect that the taking
of any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor, will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code for purposes of Section 860D(a) of the Code, or cause any income
realized in respect of such REO Property to fail to qualify as Rents from Real
Property, due to such Person's failure to be treated as an Independent
Contractor.
"Initial Bidder" shall have the meaning assigned thereto in Section
3.18(d).
"Initial Pool Balance" shall mean the aggregate of the Cut-off Date
Balances of all the Mortgage Loans.
"Initial Resolution Period" shall have the meaning assigned thereto in
the Mortgage Loan Purchase Agreement.
"Institutional Accredited Investor" or "IAI" shall mean an "accredited
investor" as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a)
under the Securities Act or any entity in which all of the equity owners come
within such paragraphs.
"Insurance Policy" shall mean, with respect to any Mortgage Loan, any
hazard insurance policy, flood insurance policy, title policy, Environmental
Insurance Policy or other insurance policy that is maintained from time to time
in respect of such Mortgage Loan or the related Mortgaged Property.
"Insurance Proceeds" shall mean the proceeds paid under any Insurance
Policy, to the extent such proceeds are not applied to the restoration of the
related Mortgaged Property, released to the Mortgagor, or any tenants or ground
lessors, as the case may be, pursuant to the terms of the related Mortgage or
lease, in accordance with the Servicing Standard.
"Insured Environmental Event" shall have the meaning assigned thereto
in Section 3.07(d).
"Interest Accrual Basis" shall mean the basis on which interest
accrues in respect of any Mortgage Loan, any REO Mortgage Loan, any Loan REMIC
Regular Interest, any REMIC I Regular Interest, any REMIC II Regular Interest,
any Class of Regular Interest Certificates or any Class X REMIC III Component,
in each case consisting of one of the following: (i) a 360-day year consisting
of twelve 30-day months; (ii) actual number of days elapsed in a 360-day year;
(iii) actual number of days elapsed in a 365-day year; or (iv) actual number of
days elapsed in an actual calendar year (taking account of leap year).
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"Interest Accrual Period" shall mean, with respect to any Distribution
Date, the period commencing on the 10th calendar day of the month immediately
preceding the month in which such Distribution Date occurs and ending on the 9th
calendar day of the month in which such Distribution Date occurs.
"Interested Person" shall mean the Depositor, the Master Servicer, the
Special Servicer, the Trustee, any Fiscal Agent, any Certificateholder, the
Mortgage Loan Seller, or any Affiliate of any such Person.
"Investment Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Investment Grade Certificate" shall mean, as of any date of
determination, a Certificate that is rated in one of the four highest generic
rating categories by at least one Rating Agency.
"Investment Period" shall mean: (a) with respect to any investment of
funds in any Master Servicer Account (other than the Custodial Account) or the
REO Account, the period that ends at the close of business (New York City time)
on each Determination Date and commences immediately following the end of the
prior such period (or, in the case of the first such period, commences on the
Closing Date); (b) with respect to any investment of funds in the Custodial
Account or the Excess Liquidation Proceeds Account, the period that ends at the
close of business (New York City time) on the Business Day prior to each Master
Servicer Remittance Date and commences immediately following the end of the
prior such period (or, in the case of the first such period, commences on the
Closing Date); and (c) with respect to any investment of funds in the Collection
Account, the period that ends at the close of business (New York City time) on
each Master Servicer Remittance Date and commences immediately following the end
of the prior such period (or, in the case of the first such period, commences on
the Closing Date); provided that, if and to the extent that the depository
institution maintaining the REO Account, the Custodial Account or a Trustee
Account is the obligor on any investment of funds in such Investment Account,
and if such funds are to be transferred to another Investment Account or
distributed to Certificateholders on the Business Day following the end of any
particular Investment Period (determined without regard to this proviso) for
such investment, then such Investment Period shall be deemed extended through
such time on such next succeeding Business Day when such transfer or
distribution is to occur.
"IRS" shall mean the Internal Revenue Service or any successor agency.
"Late Collections" shall mean: (a) with respect to any Mortgage Loan,
all amounts Received by the Trust in connection therewith during any related
Collection Period, whether as payments, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds or otherwise, which represent late collections of
the principal and/or interest portions of a Monthly Payment (other than a
Balloon Payment) or an Assumed Monthly Payment in respect of such Mortgage Loan
due or deemed due on a Due Date in a previous related Collection Period, or on a
Due Date coinciding with or preceding the Cut-off Date, and not previously
recovered; and (b) with respect to any REO Mortgage Loan, all amounts Received
by the Trust in connection with the related REO Property during any related
Collection Period, whether as Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, REO Revenues or otherwise, which represent late
collections of the principal and/or interest portions of a Monthly Payment
(other than a Balloon Payment) or an Assumed Monthly Payment in respect of the
predecessor Mortgage Loan, or the principal and/or interest portions of an
Assumed Monthly Payment
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in respect of such REO Mortgage Loan, due or deemed due on a Due Date in a
previous related Collection Period and not previously recovered.
"LBHI" shall mean Xxxxxx Brothers Holdings Inc. or its successors in
interest.
"Legal Final Distribution Date" shall mean, with respect to any Loan
REMIC Regular Interest, any REMIC I Regular Interest, any REMIC II Regular
Interest, any Class of Regular Interest Certificates (exclusive of the Class X
Certificates) or any particular Class X REMIC III Component, the "latest
possible maturity date" thereof, calculated solely for purposes of satisfying
Treasury regulations section 1.860G-1(a)(4)(iii).
"Xxxxxx Brothers" shall mean Xxxxxx Brothers Inc. or its successors in
interest.
"Liquidation Event" shall mean: (a) with respect to any Mortgage Loan,
any of the following events--(i) such Mortgage Loan is paid in full, (ii) a
Final Recovery Determination is made with respect to such Mortgage Loan, or
(iii) such Mortgage Loan is the subject of a Permitted Purchase; and (b) with
respect to any REO Property (and the related REO Mortgage Loan(s)), any of the
following events--(i) a Final Recovery Determination is made with respect to
such REO Property, or (ii) such REO Property is the subject of a Permitted
Purchase.
"Liquidation Expenses" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses due and owing (but not otherwise
covered by Servicing Advances) in connection with the liquidation of any
Specially Serviced Mortgage Loan pursuant to Section 3.09 or in connection with
the sale of a Specially Serviced Mortgage Loan or an REO Property in accordance
with Section 3.18, or in connection with the final payoff of a Corrected
Mortgage Loan (including legal fees and expenses, committee or referee fees and,
if applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee" shall mean the fee designated as such in, and
payable to the Special Servicer in connection with certain specified events in
respect of a Specially Serviced Mortgage Loan or an REO Property pursuant to,
Section 3.11(c).
"Liquidation Fee Rate" shall mean, with respect to each Specially
Serviced Mortgage Loan or REO Property as to which a Liquidation Fee is payable,
1.0%.
"Liquidation Proceeds" shall mean all cash amounts (other than
Insurance Proceeds, Condemnation Proceeds and REO Revenues) Received by the
Trust in connection with: (i) the full or partial liquidation of a Mortgaged
Property or other collateral constituting security for a defaulted Mortgage
Loan, through trustee's sale, foreclosure sale, REO Disposition or otherwise,
exclusive of any portion thereof required to be released to the related
Mortgagor in accordance with applicable law and the terms and conditions of the
related Mortgage Note and Mortgage; (ii) the realization upon any deficiency
judgment obtained against a Mortgagor; (iii) a Permitted Purchase; or (iv)
except for purposes of Section 3.11(c), the transfer of any Loss of Value
Payments from the Loss of Value Reserve Fund, or the deposit of any other
payments contemplated by Section 2.03(d), in any event to the Custodial Account.
"Loan Group" shall mean either of Loan Group No. 1 or Loan Group No.
2.
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"Loan Group No. 1" shall mean, collectively, all of the Mortgage Loans
that are Group 1 Mortgage Loans and any successor REO Mortgage Loans with
respect thereto.
"Loan Group No. 2" shall mean, collectively, all of the Mortgage Loans
that are Group 2 Mortgage Loans and any successor REO Mortgage Loans with
respect thereto.
"Loan Payoff Notification Report" shall mean a report containing
substantially the information described in Exhibit E attached hereto, and
setting forth for each Mortgage Loan as to which written notice of anticipated
payoff has been received by the Master Servicer as of the related Determination
Date preceding the delivery of such report, among other things, the loan number,
the property name, the ending scheduled loan balance for the related Collection
Period ending on such Determination Date, the expected date of payment, the
expected related Distribution Date and the estimated amount of the Prepayment
Consideration due (if any).
"Loan REMIC" shall mean, with respect to any Early Defeasance Mortgage
Loan, subject to Section 2.06(b), the segregated pool of assets, as to which a
separate REMIC election is to be made, consisting of: (i) such Mortgage Loan
(for so long as it is subject to this Agreement) and all payments under and
proceeds of such Mortgage Loan Received by the Trust after the Closing Date
(other than scheduled payments of interest and principal due on or before the
Cut-off Date), together with all documents included in the related Mortgage
File; (ii) any REO Property acquired in respect of such Mortgage Loan (for so
long as it is subject to this Agreement) and all income and proceeds therefrom;
(iii) such funds or assets as from time to time are deposited in the Custodial
Account, the Collection Account and, if established, the REO Account with
respect to such Mortgage Loan or any related REO Property; and (iv) insofar as
they relate to such Mortgage Loan or any related REO Property, the rights of the
Depositor under the Mortgage Loan Purchase Agreement; provided that none of the
Loan REMICs shall include (x) any collections of Additional Interest or (y) the
Loss of Value Reserve Fund or any amounts on deposit therein.
"Loan REMIC Interest" shall mean, subject to Section 2.06(b), either a
Loan REMIC Regular Interest or a Loan REMIC Residual Interest.
"Loan REMIC Regular Interest" shall mean, subject to Section 2.06(b),
the uncertificated "regular interest" within the meaning of Section 860G(a)(1)
of the Code, in a Loan REMIC.
"Loan REMIC Remittance Rate" shall mean, with respect to any Loan
REMIC Regular Interest, a rate per annum that is, for any Interest Accrual
Period, equal to (i) the Mortgage Rate in effect for the corresponding Mortgage
Loan as of the Closing Date (without regard to any modifications, extensions,
waivers or amendments of such corresponding Mortgage Loan subsequent to the
Closing Date), minus (ii) the sum of (A) the Master Servicing Fee Rate for such
corresponding Mortgage Loan (or any successor REO Mortgage Loan with respect
thereto), plus (B) the Trustee Fee Rate.
"Loan REMIC Residual Interest" shall mean, subject to Section 2.06(b),
the sole uncertificated "residual interest", within the meaning of Section
860G(a)(2) of the Code, in each Loan REMIC.
"Lockout Period" shall mean, with respect to any Mortgage Loan that
prohibits the Mortgagor from prepaying such loan until a date specified in the
related Mortgage Note or other loan document, the period from the Closing Date
until such specified date.
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"Loss of Value Payment" shall have the meaning assigned thereto under
Section 2.03(e).
"Loss of Value Reserve Fund" shall mean the account or accounts
created and maintained by the Trustee pursuant to Section 3.04(e), which shall
be entitled "Xxxxx Fargo Bank, N.A. [OR THE NAME OF ANY SUCCESSOR TRUSTEE], as
Trustee, in trust for the registered holders of TIAA Seasoned Commercial
Mortgage Trust 2007-C4, Commercial Mortgage Pass-Through Certificates, Series
2007-C4, Loss of Value Reserve Fund". The Loss of Value Reserve Fund shall be
designated as an "outside reserve fund" (within the meaning of Treasury
regulations section 1.860G-2(h)), pursuant to Section 2.05(b). The Loss of Value
Reserve Fund will be part of the Trust Fund but not part of the Grantor Trust
(if created hereunder taking into account Section 2.05(b)) or any REMIC Pool.
"Loss Reimbursement Amount" shall mean:
(a) with respect to any Loan REMIC Regular Interest, for any
Distribution Date, the excess, if any, of (i) the total amount of all
reductions, if any, made in the related Uncertificated Principal Balance
(without any corresponding deemed distribution of principal) on all prior
Distribution Dates, if any, pursuant to Section 4.04(d), over (ii) the
total amount reimbursed to REMIC I with respect to any Loss Reimbursement
Amount for such Loan REMIC Regular Interest on all prior Distribution
Dates, if any, pursuant to Section 4.01(n);
(b) with respect to any REMIC I Regular Interest, for any Distribution
Date, the excess, if any, of (i) the total amount of all reductions, if
any, made in the related Uncertificated Principal Balance (without any
corresponding deemed distribution of principal) on all prior Distribution
Dates, if any, pursuant to Section 4.04(c), over (ii) the total amount
reimbursed to REMIC II with respect to any Loss Reimbursement Amount for
such REMIC I Regular Interest on all prior Distribution Dates, if any,
pursuant to Section 4.01(m);
(c) with respect to any REMIC II Regular Interest, for any
Distribution Date, the excess, if any, of (i) the total amount of all
reductions, if any, made in the related Uncertificated Principal Balance
(without any corresponding deemed distribution of principal) on all prior
Distribution Dates, if any, pursuant to Section 4.04(b), over (ii) the sum
of (A) the total amount reimbursed to REMIC III with respect to any Loss
Reimbursement Amount for such REMIC II Regular Interest on all prior
Distribution Dates, if any, pursuant to Section 4.01(l), plus (B) the total
amount reinstated to the Uncertificated Principal Balance of such REMIC II
Regular Interest on all prior Distribution Dates, if any, pursuant to
Section 4.05(c); and
(d) with respect to any Class of Principal Balance Certificates, for
any Distribution Date, the excess, if any, of (i) the total amount of all
reductions, if any, made in the related Class Principal Balance (without
any corresponding distribution of principal) on all prior Distribution
Dates, if any, pursuant to Section 4.04(a), over (ii) the sum of (A) the
total amount of such reductions reimbursed to the Holders of such Class of
Certificates with respect to any related Loss Reimbursement Amount on all
prior Distribution Dates, if any, pursuant to Section 4.01(a) or Section
4.01(b), as applicable, plus (B) the total amount of such reductions
reinstated to the Class Principal Balance of such Class of Certificates on
all prior Distribution Dates, if any, pursuant to Section 4.05(a).
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"Majority Controlling Class Certificateholder(s)" shall mean any
single Holder or group of Holders (or any single Certificate Owner or group of
Certificate Owners) of Certificates evidencing a majority of the Voting Rights
allocated to the Controlling Class.
"Master Servicer" shall mean Wachovia, in its capacity as master
servicer hereunder, or any successor master servicer appointed as herein
provided.
"Master Servicer Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Master Servicer Backup Certification" shall have the meaning assigned
thereto in Section 8.15(h).
"Master Servicer Certification" shall have the meaning assigned
thereto in Section 2.01(d).
"Master Servicer Indemnification Agreement" shall mean the Master
Servicer Indemnification Agreement dated as of August 2, 2007, between the
initial Master Servicer, the Depositor, Xxxxxx Brothers and Xxxxxx Xxxxxxx.
"Master Servicer Remittance Amount" shall mean, with respect to any
Master Servicer Remittance Date, an amount equal to: (a) the aggregate amount of
all payments and other collections on or with respect to the Mortgage Loans and
any related REO Properties (including Loss of Value Payments) that (i) were
Received by the Trust as of the close of business on the immediately preceding
Determination Date and (ii) are on deposit or are required to be on deposit in
the Custodial Account as of 12:00 noon (New York City time) on such Master
Servicer Remittance Date, including any such payments and other collections
transferred or required to be transferred to the Custodial Account from the REO
Account (if established), net of (b) the portion of the aggregate amount
described in clause (a) of this definition that represents one or more of the
following--(i) scheduled Monthly Payments that are due on a Due Date following
the end of the related Collection Period (or, in the case of a scheduled Monthly
Payment that is due on a Due Date in the same month as such Master Servicer
Remittance Date but subsequent to the end of the related Collection Period,
following the end of the calendar month in which such Master Servicer Remittance
Date occurs), (ii) any amount payable or reimbursable to any Person from the
Custodial Account pursuant to clauses (ii) through (xvi) of Section 3.05(a),
(iii) any Excess Liquidation Proceeds and (iv) any amounts deposited in the
Custodial Account in error.
"Master Servicer Remittance Date" shall mean the date each month,
commencing in August 2007, on which, among other things, the Master Servicer is
required to (i) make P&I Advances and (ii) transfer the Master Servicer
Remittance Amount and any Excess Liquidation Proceeds to the Trustee, which date
shall be the Business Day immediately preceding the Distribution Date in such
month.
"Master Servicer Reportable Event" shall mean 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 Master Servicer or any
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Servicer retained or engaged by the Master Servicer is a party to such
agreement or has entered into such agreement on behalf of the Trust (ITEM
1.01 ON FORM 8-K);
(ii) the termination of a definitive agreement that is material to the
Subject Securitization Transaction (otherwise than by expiration of the
agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), but only if the Master
Servicer or any Servicer retained or engaged by the 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)
the Master Servicer or (B) any Servicing Representative of the Master
Servicer that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB (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 Master Servicer or (B) any Servicing
Representative of the Master Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB (ITEM 1.03(b) ON FORM
8-K);
(v) any resignation, removal, replacement or substitution of (A) the
Master Servicer or (B) any Servicing Representative of the 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 the 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 the Master Servicer or any Servicer
retained or engaged by the Master Servicer, with respect to the Subject
Securitization Transaction (other than disclosure required or expressly
permitted pursuant to this Agreement) that is required to be disclosed by
Regulation FD (17 C.F.R. Sections 243.100 through 243.103) (ITEM 7.01 ON
FORM 8-K);
(viii) any other information of importance to Certificateholders
(determined by the Master 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, (B) the Master
Servicer has determined, in accordance with the Servicing Standard, is
reasonably likely to have an adverse effect on payments to the Holders of
any Class of Registered Certificates or a material adverse effect on
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payments to the Holders of any Class of Non-Registered Certificates, and
(C) is directly related to a 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 the Master Servicer is
controlling the subject litigation or if the subject Material Litigant is
(A) the Master Servicer or (B) any Servicing Representative of the Master
Servicer that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB (ITEM 2 ON FORM 10-D AND GENERAL INSTRUCTION J TO FORM 10-K);
(x) to the extent not otherwise disclosed in the Prospectus Supplement
or previously included in a report delivered by the Master Servicer to the
Trustee and the Depositor in accordance with Section 8.15(b), whether the
Master Servicer has become an affiliate (as defined in Rule 405 of the
Securities Act) of any of (A) the Trustee, (B) the Special Servicer or (C)
any Servicing Representative of the Master Servicer that constitutes a
Servicer contemplated by Item 1108(a)(3) of Regulation AB (GENERAL
INSTRUCTION J TO FORM 10-K); and
(xii) to the extent not otherwise disclosed in the Prospectus
Supplement or arising out of an action by the Master Servicer in its
capacity as Master Servicer under this Agreement, 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
Mortgage Loan Seller or the Trust, on the one hand, and the Master Servicer
or any Servicing Representative of the Master Servicer, on the other hand
(GENERAL INSTRUCTION J TO FORM 10-K).
"Master Servicing Fee" shall mean, with respect to each Mortgage Loan
(and any successor REO Mortgage Loan with respect thereto), the fee designated
as such and payable to the Master Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate" shall mean, with respect to each Mortgage
Loan and any successor REO Mortgage Loan with respect thereto, a rate per annum
equal to the related Administrative Cost Rate minus the Trustee Fee Rate.
"Material Breach" shall have the meaning assigned thereto in Section
2.03(a).
"Material Debtor" shall mean any of the following:
(i) the Trust;
(ii) the Mortgage Loan Seller;
(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 Enhancement/Support Provider; and
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(vi) any other material party contemplated by Item 1100(d)(1) of
Regulation AB relating to the Subject Securitization Transaction.
"Material Document Defect" shall have the meaning assigned thereto in
Section 2.03(a).
"Material Litigant" shall mean any of the following:
(i) the Trust;
(ii) the Mortgage Loan Seller;
(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 originator of Mortgage Loans contemplated by Item 1110(b)
of Regulation AB; and
(vi) any other party contemplated by Item 1100(d)(1) of
Regulation AB relating to the Subject Securitization Transaction.
"Maturity Date" shall mean, with respect to any Mortgage Loan as of
any date of determination, the Due Date on which the last payment of principal
is due and payable under the terms of the related Mortgage Note, as such terms
may be changed or modified from time to time in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, extension,
waiver or amendment of such Mortgage Loan granted or agreed to by the Special
Servicer (or the Master Servicer, if applicable) pursuant to Section 3.20.
"Modified Loan" shall mean any Mortgage Loan as to which any Servicing
Transfer Event has occurred and which has been modified by the Special Servicer
pursuant to Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing Monthly
Payments current with respect to such Mortgage Loan);
(b) except as expressly contemplated by the related loan documents,
results in a release of the lien of the related Mortgage on any material
portion of the related Mortgaged Property without a corresponding Principal
Prepayment in an amount, or the delivery of substitute real property
collateral with a fair market value (as is), that is not less than the fair
market value (as is) of the property to be released, as determined by an
appraisal delivered to the Special Servicer (at the expense of the related
Mortgagor and upon which the Special Servicer may conclusively rely); or
(c) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impairs the security for such Mortgage Loan or
materially reduces the likelihood of timely payment of amounts due thereon.
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"Monthly Payment" shall mean, with respect to any Mortgage Loan, as of
any Due Date, the scheduled monthly debt service payment (or, in the case of an
ARD Mortgage Loan after its Anticipated Repayment Date, the monthly debt service
payment required to be paid on a current basis) on such Mortgage Loan that is
actually payable by the related Mortgagor from time to time under the terms of
the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, extension, waiver or amendment granted
or agreed to by the Special Servicer pursuant to Section 3.20, including any
Balloon Payment payable in respect of such Mortgage Loan on such Due Date;
provided that the Monthly Payment due in respect of any Mortgage Loan shall not
include Default Interest; and provided, further, that the Monthly Payment due in
respect of any ARD Mortgage Loan after its Anticipated Repayment Date shall not
include Additional Interest.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or its successor
in interest.
"Xxxxxx Xxxxxxx" shall mean Xxxxxx Xxxxxxx & Co. Incorporated or its
successors in interest.
"Mortgage" shall mean, with respect to any Mortgage Loan, individually
and collectively, the mortgage(s), deed(s) of trust, deed(s) to secure debt
and/or similar instrument(s) that secures or secure, as the case may be, such
Mortgage Loan and creates or create, as the case may be, a lien on the related
Mortgaged Property.
"Mortgage File" shall mean, with respect to any Mortgage Loan, the
following documents collectively:
(i) the original executed Mortgage Note for such Mortgage Loan,
endorsed (without recourse, representation or warranty, express or implied)
to the order of "Xxxxx Fargo Bank, N.A., as trustee for the registered
holders of TIAA Seasoned Commercial Mortgage Trust 2007-C4, Commercial
Mortgage Pass-Through Certificates, Series 2007-C4" or in blank, and
further showing a complete, unbroken chain of endorsement from the
originator (if such originator is other than the Mortgage Loan Seller) (or,
alternatively, if the original executed Mortgage Note has been lost, a lost
note affidavit and indemnity with a copy of such Mortgage Note);
(ii) an original or a copy of the Mortgage, together with
originals or copies of any and all intervening assignments thereof, in each
case (unless the particular item has not been returned from the applicable
recording office) with evidence of recording indicated thereon;
(iii) an original or a copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage), together with
originals or copies of any and all intervening assignments thereof, in each
case (unless the particular item has not been returned from the applicable
recording office) with evidence of recording indicated thereon;
(iv) an original executed assignment, in recordable form (except
for recording information not yet available if the instrument being
assigned has not been returned from the applicable recording office), of
(A) the Mortgage and (B) any related Assignment of Leases (if such item is
a document separate from the Mortgage), in favor of "Xxxxx Fargo Bank,
N.A., in its capacity as trustee for the registered holders of TIAA
Seasoned Commercial
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Mortgage Trust 2007-C4, Commercial Mortgage Pass-Through Certificates,
Series 2007-C4" (or, in each case, a copy thereof, certified to be the copy
of such assignment submitted for recording);
(v) an original or a copy of the assignment of all unrecorded
documents relating to such Mortgage Loan, in favor of "Xxxxx Fargo Bank,
N.A., as trustee for the registered holders of TIAA Seasoned Commercial
Mortgage Trust 2007-C4, Commercial Mortgage Pass-Through Certificates,
Series 2007-C4";
(vi) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such Mortgage Loan (or,
if such policy has not been issued, a "marked-up" pro forma title policy
marked as binding and countersigned by the title insurer or its authorized
agent, or an irrevocable, binding commitment to issue such title insurance
policy);
(vii) an original or a copy of the Ground Lease relating to such
Mortgage Loan, if any;
(viii) an original or a copy of the loan agreement for such
Mortgage Loan, if any;
(ix) an original or a copy of the related guaranty of payment
under such Mortgage Loan, if any;
(x) an original or a copy of the environmental indemnity from the
related Mortgagor, if any;
(xi) an original or a copy of the lock-box agreement or cash
management agreement relating to such Mortgage Loan, if any;
(xii) a copy of the original letter of credit in connection with
such Mortgage Loan, if any;
(xiii) originals or copies of final written modification
agreements in those instances where the terms or provisions of the Mortgage
Note for such Mortgage Loan or the related Mortgage have been modified as
to a monetary term or other material term thereof, in each case (unless the
particular item has not been returned from the applicable recording office)
with evidence of recording indicated thereon if the instrument being
modified is a recordable document;
(xiv) only if such Mortgage Loan is secured by a nursing facility
or hospitality property as identified on Schedule IV hereto, filed copies
(with evidence of filing) of any prior effective UCC Financing Statements
in favor of the originator of such Mortgage Loan or in favor of any
assignee prior to the Trustee (but only to the extent the Mortgage Loan
Seller had possession of such UCC Financing Statements prior to the Closing
Date) and an original assignment thereof, as appropriate, in form suitable
for filing, in favor of "Xxxxx Fargo Bank, N.A., in its capacity as trustee
for the registered holders of TIAA Seasoned Commercial Mortgage Trust
2007-C4, Commercial Mortgage Pass-Through Certificates, Series 2007-C4";
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(xv) an original or a copy of the related security agreement (if
such item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof;
(xvi) an original assignment of the related security agreement
(if such item is a document separate from the Mortgage and if such item is
not included in the assignment described in clause (iv) or clause (v) of
this definition), in favor of "Xxxxx Fargo Bank, N.A., in its capacity as
trustee for the registered holders of TIAA Seasoned Commercial Mortgage
Trust 2007-C4, Commercial Mortgage Pass-Through Certificates, Series
2007-C4";
(xvii) in the case of any Mortgage Loan as to which there exists
a related mezzanine loan, a copy of the related intercreditor agreement;
(xviii) an original or a copy of any related Environmental
Insurance Policy; and
(xix) with respect to hospitality properties, a signed copy of
the franchise agreement (if any) and franchisor comfort letter (if any);
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or a Custodian on its behalf for documents
described in clauses (vii) through (xix) of this definition, shall be deemed to
include such documents only to the extent the Trustee or a Custodian on its
behalf has actual knowledge of their existence.
"Mortgage Loan" shall mean each of the mortgage loans listed on the
Mortgage Loan Schedule and from time to time held in the Trust Fund. As used
herein, the term "Mortgage Loan" includes the related Mortgage Note, Mortgage
and other security documents contained in the related Mortgage File or otherwise
held on behalf of the Trust. Notwithstanding the foregoing, if any of the
mortgage loans listed on the Mortgage Loan Schedule are, in accordance with
their terms or pursuant to any modification, waiver or amendment agreed to in
accordance with Section 3.20, severed or split into two or more mortgage loans
that are to remain part of the Trust Fund, then such two or more mortgage loans
shall constitute separate "Mortgage Loans" for all purposes hereof, except that
such mortgage loans will collectively constitute the "Mortgage Loan" that
relates to the applicable REMIC I Regular Interest and/or any applicable Loan
REMIC Regular Interest.
"Mortgage Loan Origination Documents" shall mean, with respect to any
Mortgage Loan, any of the following documents (other than any document that
constitutes part of the Mortgage File for such Mortgage Loan), if applicable
with respect to such Mortgage Loan: copies of any final appraisal, final survey,
final engineering report, final environmental report, opinion letters of counsel
to the related mortgagor delivered in connection with the closing of such
Mortgage Loan, escrow agreements, reserve agreements, organizational
documentation for the related mortgagor, organizational documentation for any
related guarantor or indemnitor (if the related guarantor or indemnitor is an
entity), insurance certificates or insurance review reports, leases for tenants
representing 10% or more of the annual income with respect to the related
Mortgaged Property, final seismic report and property management agreements,
rent roll, property operating statement and financial statements for the related
guarantor or indemnitor, cash management or lockbox agreement, zoning letters or
zoning reports and the documents, if any, specifically set forth on Schedule VI
hereto, but, in each case, only if the subject
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document (a) was in fact obtained in connection with the origination of such
Mortgage Loan, (b) is reasonably necessary for the ongoing administration and/or
servicing of such Mortgage Loan by the Master Servicer or Special Servicer in
connection with its duties under this Agreement, and (c) is in the possession or
under the control of the Mortgage Loan Seller; provided that the Mortgage Loan
Seller shall not be required to deliver any draft documents, privileged or other
communications or correspondence, credit underwriting or due diligence analyses
or information, credit committee briefs or memoranda or other internal approval
documents or data or internal worksheets, memoranda, communications or
evaluations.
"Mortgage Loan Purchase Agreement" shall mean the Mortgage Loan
Purchase Agreement, date as of August 2, 2007, between the Depositor and the
Mortgage Loan Seller.
"Mortgage Loan Schedule" shall mean the list of Mortgage Loans
transferred on the Closing Date to the Trustee as part of the Trust Fund,
attached hereto as Schedule I (and also delivered to the Trustee and the Master
Servicer in a computer readable format). Such list shall set forth the following
information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code) and name
of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due Date
following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) remaining term to stated maturity and (B) Stated Maturity
Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the Interest Accrual Basis;
(ix) the Administrative Cost Rate;
(x) whether such Mortgage Loan is secured by a Ground Lease;
(xi) whether such Mortgage Loan is a Defeasance Mortgage Loan;
(xii) whether such Mortgage Loan is an ARD Mortgage Loan and, if so,
the Anticipated Repayment Date and Additional Interest Rate;
(xiv) whether such Mortgage Loan is a Cross-Collateralized Mortgage
Loan and the Cross-Collateralized Group to which it belongs; and
(xv) the applicable Loan Group to which such Mortgage Loan belongs.
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"Mortgage Loan Seller" shall mean Teachers Insurance and Annuity
Association of America.
"Mortgage Note" shall mean the original executed note (or, if
applicable, notes collectively) evidencing the indebtedness of a Mortgagor under
a Mortgage Loan, together with any rider(s), addendum(s) or amendment(s)
thereto, or any renewal, substitution or replacement of such note(s).
"Mortgage Pool" shall mean all of the Mortgage Loans and any REO
Mortgage Loans, collectively.
"Mortgage Pool Data Update Report" shall mean, with respect to any
Distribution Date, a report (which may be included as part of the Distribution
Date Statement), prepared by the Trustee, containing information regarding the
Mortgage Loans as of the end of the related Collection Period, which report
shall contain substantially the categories of information regarding the Mortgage
Loans set forth on Annexes A-1 through A-6 to the Prospectus Supplement
(calculated, where applicable, on the basis of the most recent relevant
information provided by the Mortgagors to the Master Servicer or the Special
Servicer, as the case may be, and by the Master Servicer or the Special
Servicer, as the case may be, to the Trustee), and which information shall be
presented in tabular format substantially similar to the format utilized on such
annexes and shall also include a loan-by-loan listing (in descending balance
order) showing loan number, property type, location, unpaid principal balance,
Mortgage Rate, paid-through date, maturity date, gross interest portion of the
Monthly Payment, principal portion of the Monthly Payment, and any Prepayment
Consideration received.
"Mortgage Rate" shall mean, with respect to each Mortgage Loan (and
any successor REO Mortgage Loan with respect thereto), the related annualized
rate at which interest is scheduled (in the absence of a default) to accrue on
such Mortgage Loan from time to time in accordance with the related Mortgage
Note, any related loan agreement and applicable law, as such rate may be
modified in accordance with Section 3.20 or in connection with a bankruptcy,
insolvency or similar proceeding involving the related Mortgagor. In the case of
any ARD Mortgage Loan, the related Mortgage Rate shall increase in accordance
with the related Mortgage Note if the particular loan is not paid in full by its
Anticipated Repayment Date.
"Mortgaged Property" shall mean the real property subject to the lien
of a Mortgage.
"Mortgagor" shall mean, individually and collectively, as the context
may require, (i) the primary obligor or obligors under a Mortgage Note,
including any Person that has acquired the related Mortgaged Property and
assumed the obligations of the original obligor under the Mortgage Note, and
(ii) the owner of the related Mortgaged Property, if such owner has executed the
related Mortgage with respect to the subject Mortgage Loan in addition to a
guaranty of the obligations of the named obligor on the related Mortgage Note,
and such guaranty is secured by such Mortgage; provided that the foregoing
definition of "Mortgagor" shall not include any guarantors except to the extent
described in clause (ii) above.
"Net Aggregate Prepayment Interest Shortfall" shall mean, with respect
to any Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred with respect to the Mortgage Pool in
connection with Principal Prepayments and/or, insofar as they result from the
application of Insurance Proceeds and/or Condemnation Proceeds, other early
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recoveries of principal Received by the Trust on the Mortgage Loans (including
Specially Serviced Mortgage Loans) during the related Collection Period, exceeds
(b) the aggregate amount deposited by the Master Servicer in the Collection
Account for such Distribution Date pursuant to Section 3.19(a) in connection
with such Prepayment Interest Shortfalls.
"Net Default Charges" shall have, with respect to any Mortgage Loan or
REO Mortgage Loan, the meaning assigned thereto in Section 3.25(a).
"Net Investment Earnings" shall mean, with respect to any Investment
Account for any related Investment Period, the amount, if any, by which the
aggregate of all interest and other income realized during such Investment
Period on funds held in such Investment Account (exclusive, in the case of a
Servicing Account, a Reserve Account or the Defeasance Deposit Account, of any
portion of such interest or other income payable to a Mortgagor in accordance
with the related loan documents and applicable law), exceeds the aggregate of
all losses, if any, incurred during such Investment Period in connection with
the investment of such funds in accordance with Section 3.06 (exclusive, in the
case of a Servicing Account, a Reserve Account or the Defeasance Deposit
Account, of any portion of such losses that were incurred in connection with
investments made for the benefit of a Mortgagor).
"Net Investment Loss" shall mean, with respect to any Investment
Account for any related Investment Period, the amount by which the aggregate of
all losses, if any, incurred during such Investment Period in connection with
the investment of funds held in such Investment Account in accordance with
Section 3.06 (exclusive, in the case of a Servicing Account, a Reserve Account
or the Defeasance Deposit Account, of any portion of such losses that were
incurred in connection with investments made for the benefit of a Mortgagor),
exceeds the aggregate of all interest and other income realized during such
Investment Period on such funds (exclusive, in the case of a Servicing Account,
a Reserve Account or the Defeasance Deposit Account, of any portion of such
interest or other income payable to a Mortgagor in accordance with the related
loan documents and applicable law).
"Net Liquidation Proceeds" shall mean the excess, if any, of all
Liquidation Proceeds received with respect to any Specially Serviced Mortgage
Loan or REO Property, over the amount of all Liquidation Expenses incurred with
respect thereto.
"Net Prepayment Consideration" shall mean the Prepayment Consideration
Received by the Trust with respect to any Mortgage Loan or REO Mortgage Loan,
net of any Workout Fee or Liquidation Fee payable in connection with the receipt
thereof.
"New Lease" shall mean any lease of an REO Property entered into at
the direction of the Special Servicer, including any lease renewed, modified or
extended on behalf of the Trustee.
"NMWHFIT" shall mean a "Non-Mortgage Widely Held Fixed Investment
Trust" as that term is defined in Treasury Regulations section 1.671-5(b)(12) or
successor provisions.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
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"Nonrecoverable P&I Advance" shall mean:
(1) any P&I Advance previously made or proposed to be made in respect
of any Mortgage Loan or REO Mortgage Loan by the Master Servicer,
the Trustee or a Fiscal Agent, which P&I Advance such party has
determined in its reasonable, good faith judgment, will not be
ultimately recoverable from late payments, Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds, or any other
recovery on or in respect of such Mortgage Loan or REO Mortgage
Loan, as the case may be; and
(2) any P&I Advance previously made or proposed to be made in respect
of any Mortgage Loan or any successor REO Mortgage Loan with
respect thereto that the Special Servicer has determined, in
accordance with the Servicing Standard, will not be ultimately
recoverable from late payments, Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds, or any other recovery on or in
respect of such Mortgage Loan or REO Mortgage Loan, as the case
may be.
"Nonrecoverable Servicing Advance" shall mean:
(1) any Servicing Advance previously made or proposed to be made in
respect of any Mortgage Loan or REO Property by the Master
Servicer, the Special Servicer, the Trustee or a Fiscal Agent,
which Servicing Advance such party has determined, in its
reasonable, good faith judgment, will not be ultimately
recoverable from late payments, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds, or any other recovery on or in
respect of such Mortgage Loan or such REO Property, as the case
may be; and
(2) any Servicing Advance previously made or proposed to be made in
respect of any Mortgage Loan or REO Property by the Master
Servicer, the Trustee or a Fiscal Agent, that the Special
Servicer has determined, in accordance with the Servicing
Standard, will not be ultimately recoverable from late payments,
Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage
Loan or such REO Property, as the case may be.
"Non-Registered Certificate" shall mean any Certificate that has not
been the subject of registration under the Securities Act. As of the Closing
Date, the Class X, 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, Class R-II and Class R-III
Certificates, the Class R-LR Certificates (if issued in accordance with Section
2.06) and the Class V Certificates (if issued in accordance with Section 2.05)
are Non-Registered Certificates.
"Non-United States Securities Person" shall mean a Person that is not
a United States Securities Person.
"Non-United States Tax Person" shall mean a Person that is not a
United States Tax Person.
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"Offering Memorandum" shall mean the Offering Memorandum dated August
2, 2007, relating to 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.
"Officer's Certificate" shall mean a certificate signed by a Servicing
Officer of the Master Servicer or the Special Servicer, as the case may be, or
by a Responsible Officer of the Trustee or a Fiscal Agent, as the case may be,
and shall mean with respect to any other Person, a certificate signed by any of
the Chairman of the Board, the Vice Chairman of the Board, the President, any
Vice President or Managing Director, an Assistant Vice President or any other
authorized officer (however denominated) or another officer customarily
performing functions similar to those performed by any of the above designated
officers or, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Opinion of Counsel" shall mean a written opinion of counsel, who may,
without limitation, be salaried counsel for the Depositor, the Master Servicer
or the Special Servicer, acceptable in form and delivered to the Trustee or any
other specified Person, as the case may be, except that any opinion of counsel
relating to (a) the qualification of any REMIC Pool as a REMIC, (b) compliance
with the REMIC Provisions, (c) qualification of the Grantor Trust (if created
hereunder taking into account Section 2.05(b)) as a grantor trust under federal
income tax law, (d) whether any act or event would cause an Adverse REMIC Event
or Adverse Grantor Trust Event, as may be applicable, or (e) the resignation of
the Master Servicer or the Special Servicer pursuant to this Agreement, must be
a written opinion of Independent counsel acceptable to and delivered to the
Trustee or any other specified Person, as the case may be.
"Original Class Notional Amount" shall mean, with respect to the Class
X Certificates, the initial Class Notional Amount thereof as of the Closing
Date, which shall equal $2,091,678,319.
"Original Class Principal Balance" shall mean, with respect to any
Class of Principal Balance Certificates, the initial Class Principal Balance
thereof as of the Closing Date, in each case as specified in the Preliminary
Statement.
"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
"Ownership Interest" shall mean, as to any Certificate, any ownership
or security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance" shall mean, as to any Mortgage Loan or REO Mortgage
Loan, any advance made by the Master Servicer, the Trustee or any Fiscal Agent
pursuant to Section 4.03.
"Pass-Through Rate" shall mean:
(a) with respect to the Class A-1 Certificates, for any Interest
Accrual Period, an annual rate equal to (A) the REMIC II Remittance Rate
for such Class's Corresponding REMIC II Regular Interest for such Interest
Accrual Period, minus (B) 0.403%;
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(b) with respect to the Class A-2 Certificates, for any Interest
Accrual Period, an annual rate equal to (A) the REMIC II Remittance Rate
for such Class's Corresponding REMIC II Regular Interest for such Interest
Accrual Period, minus (B) 0.281%;
(c) with respect to any Class of Class A-3, Class A-1A, Class A-J,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J and
Class K Certificates, for any Interest Accrual Period, an annual rate equal
to the REMIC II Remittance Rate for the subject Class's Corresponding REMIC
II Regular Interest for such Interest Accrual Period;
(d) with respect to any Class of the Class L, Class M, Class N, Class
P, Class Q, Class S and Class T Certificates, for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the REMIC II Remittance
Rate for the subject Class's Corresponding REMIC II Regular Interest for
such Interest Accrual Period and (ii) 5.255% per annum;
(e) with respect to any Class X REMIC III Component, for any Interest
Accrual Period, an annual rate equal to the excess, if any, of (X) the
REMIC II Remittance Rate with respect to such Class X REMIC III Component's
Corresponding REMIC II Regular Interest for such Interest Accrual Period,
over (Y) the Adjusted REMIC II Remittance Rate with respect to such Class X
REMIC III Component's Corresponding REMIC II Regular Interest for such
Interest Accrual Period; and
(f) with respect to the Class X Certificates, for any Interest Accrual
Period, an annual rate equal to the weighted average (expressed as a
percentage and rounded to six decimal places) of the respective
Pass-Through Rates applicable to the Class X REMIC III Components for such
Interest Accrual Period, weighted on the basis of the respective Component
Notional Amounts of the Class X REMIC III Components outstanding
immediately prior to the related Distribution Date.
"Payee" shall have the meaning assigned thereto in Section 2.01(c).
"PCAOB" shall mean the Public Company Accounting Oversight Board.
"Percentage Interest" shall mean: (a) with respect to any Regular
Interest Certificate, the portion of the relevant Class evidenced by such
Certificate, expressed as a percentage, the numerator of which is the
Certificate Principal Balance or Certificate Notional Amount, as the case may
be, of such Certificate as of the Closing Date, as specified on the face
thereof, and the denominator of which is the Original Class Principal Balance or
Original Class Notional Amount, as the case may be, of the relevant Class; and
(b) with respect to any other Certificate, the percentage interest in
distributions to be made with respect to the relevant Class, as stated on the
face of such Certificate.
"Performing Mortgage Loan" shall mean any Corrected Mortgage
Loan and any Mortgage Loan as to which a Servicing Transfer Event has never
occurred.
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"Permitted Investments" shall mean any one or more of the following
obligations or securities (including obligations or securities of the Trustee
(in its individual capacity) if otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States
or any agency or instrumentality thereof (having original
maturities of not more than 365 days), provided that such
obligations are backed by the full faith and credit of the
United States. Such obligations must be limited to those
instruments that have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change. Interest
may either be fixed or variable. If such interest is variable,
interest must be tied to a single interest rate index plus a
single fixed spread (if any), and move proportionately with that
index;
(ii) repurchase obligations with respect to any security described in
clause (i) of this definition (having original maturities of not
more than 365 days), provided that the short-term deposit or
debt obligations of the party agreeing to repurchase such
obligations are rated in the highest rating category of each
Rating Agency (or, in the case of any Rating Agency, such lower
rating as will not result in an Adverse Rating Event with
respect to any Class of Certificates that is rated by such
Rating Agency, as evidenced in writing by such Rating Agency).
In addition, any such item by its terms must have a
predetermined fixed dollar amount of principal due at maturity
that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to
a single interest rate index plus a single fixed spread (if
any), and move proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company organized
under the laws of the United States or any state thereof (having
original maturities of not more than 365 days), the short-term
obligations of which are rated in the highest rating category of
each Rating Agency (or, in the case of any Rating Agency, such
lower rating as will not result in an Adverse Rating Event with
respect to any Class of Certificates that is rated by such
Rating Agency, as evidenced in writing by such Rating Agency).
In addition, any such item by its terms must have a
predetermined fixed dollar amount of principal due at maturity
that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to
a single interest rate index plus a single fixed spread (if
any), and move proportionately with that index;
(iv) commercial paper (having original maturities of not more than 90
days) of any corporation incorporated under the laws of the
United States or any state thereof (or if not so incorporated,
the commercial paper is United States Dollar denominated and
amounts payable thereunder are not subject to any withholding
imposed by any non-United States jurisdiction) which is rated in
the highest rating category of each Rating Agency (or, in the
case of any Rating Agency, such lower rating as will not result
in an Adverse Rating Event with respect to any Class of
Certificates that is rated by such Rating Agency, as evidenced
in writing by such
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Rating Agency). In addition, such commercial paper by its terms
must have a predetermined fixed dollar amount of principal due
at maturity that cannot vary or change. Interest may either be
fixed or variable. If such interest is variable, interest must
be tied to a single interest rate index plus a single fixed
spread (if any), and move proportionately with that index;
(v) units of money market funds rated in the highest applicable
rating category of each Rating Agency (or, in the case of any
Rating Agency, such lower rating as will not result in an
Adverse Rating Event with respect to any Class of Certificates
that is rated by such Rating Agency, as evidenced in writing by
such Rating Agency) and which seeks to maintain a constant net
asset value; and
(vi) any other obligation or security that (A) is acceptable to each
Rating Agency, evidence of which acceptability shall (1) in the
case of any Rating Agency, be evidenced in a writing by such
Rating Agency to the effect that such obligation or security
will not result in an Adverse Rating Event with respect to any
Class of Certificates that is rated by such Rating Agency, or
(2) otherwise be evidenced in a writing by each Rating Agency to
the Master Servicer, the Special Servicer and the Trustee, (B)
is rated in the highest applicable rating category by each
Rating Agency and (C) constitutes a "cash flow investment"
(within the meaning of the REMIC Provisions), as evidenced by an
Opinion of Counsel obtained at the expense of the Person that
wishes to include such obligation or security as a Permitted
Investment;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; (2) no investment described hereunder may be purchased
at a price greater than par if such investment may be prepaid or called at a
price less than its purchase price prior to stated maturity; and (3) no
investment described hereunder may have a "r" highlighter or other comparable
qualifier attached to its rating.
"Permitted Purchase" shall mean:
(i) the repurchase of a Mortgage Loan by or on behalf of the
Mortgage Loan Seller, pursuant to the Mortgage Loan Purchase
Agreement;
(ii) the purchase of a Specially Serviced Mortgage Loan by a Purchase
Option Holder or its assignee, pursuant to Section 3.18;
(iii) the purchase of a Mortgage Loan or REO Property by a Controlling
Class Certificateholder, the Special Servicer, the Master
Servicer, the Depositor or Xxxxxx Brothers, or the acquisition
thereof in exchange for Certificates, in any event pursuant to
Section 9.01; or
(iv) the purchase of a Mortgage Loan by the holder of a related
mezzanine loan in connection with a default under such Mortgage
Loan, as set forth in the related intercreditor agreement.
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"Permitted Transferee" shall mean any Transferee of a Residual
Interest Certificate other than (a) a Disqualified Organization, (b) any Person
as to whom, as determined by the Trustee (based upon an Opinion of Counsel,
obtained at the request of the Trustee at the expense of such Person or the
Person seeking to Transfer a Residual Interest Certificate, supporting such
determination), the Transfer of a Residual Interest Certificate may cause any
REMIC Pool to fail to qualify as a REMIC at any time that any Certificate is
outstanding, (c) a Disqualified Non-United States Tax Person, (d) a Disqualified
Partnership, or (e) a foreign permanent establishment or fixed base (within the
meaning of any applicable income tax treaty between the United States and any
foreign jurisdiction) of a United States Tax Person.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan" shall have the meaning assigned thereto in Section 5.02(c).
"Plurality Residual Interest Certificateholder" shall mean, as to any
taxable year of any REMIC Pool, the Holder of Certificates evidencing the
largest Percentage Interest in the related Class of Residual Interest
Certificates.
"Prepayment Assumption" shall mean, for purposes of determining the
accrual of original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, the assumption that no Mortgage
Loan is prepaid prior to stated maturity, except that it is assumed that each
ARD Mortgage Loan is repaid on its Anticipated Repayment Date.
"Prepayment Consideration" shall mean any Prepayment Premium, Yield
Maintenance Charge and/or Excess Defeasance Deposit Proceeds.
"Prepayment Consideration Entitlement" shall mean:
(i) with respect to (A) any Distribution Date on which any Net
Prepayment Consideration Received by the Trust on any Group 1
Mortgage Loan (or any successor REO Mortgage Loan with respect
thereto) is distributable and (B) any Class of YM Principal
Balance Certificates that is entitled to distributions of
principal with respect to Loan Group No. 1 on such Distribution
Date, for purposes of determining the portion of such Net
Prepayment Consideration distributable with respect to such
Class of YM Principal Balance Certificates, an amount equal to
the product of (x) the amount of such Net Prepayment
Consideration, multiplied by (y) a fraction (not greater than
1.0 or less than 0.0), the numerator of which is equal to the
excess, if any, of the Pass-Through Rate for such Class of YM
Principal Balance Certificates for the related Interest Accrual
Period over the relevant Discount Rate, and the denominator of
which is equal to the excess, if any, of the Mortgage Rate for
such Mortgage Loan (or REO Mortgage Loan) over the relevant
Discount Rate, and further multiplied by (z) a fraction, the
numerator of which is equal to the amount of principal to be
distributed on such Class of YM Principal Balance Certificates
on such Distribution Date pursuant to Section 4.01 with respect
to Loan Group No. 1, and the denominator of which is equal to
the portion, if any, of the Adjusted Principal
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Distribution Amount for such Distribution Date that is
attributable to Loan Group No. 1; and
(ii) with respect to (A) any Distribution Date on which any Net
Prepayment Consideration Received by the Trust on any Group 2
Mortgage Loan (or any successor REO Mortgage Loan with respect
thereto) is distributable and (B) any Class of YM Principal
Balance Certificates that is entitled to distributions of
principal with respect to Loan Group No. 2 on such Distribution
Date, for purposes of determining the portion of such Net
Prepayment Consideration distributable with respect to such
Class of YM Principal Balance Certificates, an amount equal to
the product of (x) the amount of such Net Prepayment
Consideration, multiplied by (y) a fraction (not greater than
1.0 or less than 0.0), the numerator of which is equal to the
excess, if any, of the Pass-Through Rate for such Class of YM
Principal Balance Certificates for the related Interest Accrual
Period over the relevant Discount Rate, and the denominator of
which is equal to the excess, if any, of the Mortgage Rate for
such Mortgage Loan (or REO Mortgage Loan) over the relevant
Discount Rate, and further multiplied by (z) a fraction, the
numerator of which is equal to the amount of principal to be
distributed on such Class of YM Principal Balance Certificates
on such Distribution Date pursuant to Section 4.01 with respect
to Loan Group No. 2, and the denominator of which is equal to
the portion, if any, of the Adjusted Principal Distribution
Amount for such Distribution Date that is attributable to Loan
Group No. 2.
For purposes of the foregoing, to the extent that distributions of
principal on any Class of YM Principal Balance Certificates on any Distribution
Date could be made from principal amounts allocable to either Loan Group, the
Trustee shall assume that those distributions of principal on that Class of YM
Principal Balance Certificates on that Distribution Date are made from principal
amounts allocable to each Loan Group, on a pro rata basis in accordance with the
respective principal amounts allocable to each Loan Group that were available
for distributions of principal on that Class. In connection therewith, (i)
distributions of principal made with respect to the Class A-1A Certificates,
pursuant to subclause (i) of clause second of Section 4.01(a), on any
Distribution Date prior to both the Senior Class A Principal Distribution
Cross-Over Date and the Final Distribution Date, shall be deemed made solely
from principal amounts allocable to Loan Group No. 2, and (ii) all other
distributions of principal made with respect to any Class of Principal Balance
Certificates, pursuant to Section 4.01(a) or 4.01(b), on any Distribution Date,
shall be deemed made from principal amounts allocable to both Loan Groups (net
of any principal amounts allocable to Loan Group No. 2 that may have been
applied on such Distribution Date as contemplated by clause (i) of this
sentence).
"Prepayment Interest Excess" shall mean, with respect to any Mortgage
Loan that was subject to a Principal Prepayment in full or in part made (or, if
resulting from the application of Insurance Proceeds or Condemnation Proceeds,
any other early recovery of principal received) after its Due Date in any
applicable Collection Period, any payment of interest (net of related Master
Servicing Fees) actually collected from the related Mortgagor or otherwise and
intended to cover interest accrued on such Principal Prepayment during the
period from and after such Due Date (exclusive, however, of any related
Prepayment Consideration that may have been collected and, in the case of an ARD
Mortgage Loan after its Anticipated Repayment Date, further exclusive of any
Additional Interest).
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"Prepayment Interest Shortfall" shall mean, with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or in part made
(or, if resulting from the application of Insurance Proceeds or Condemnation
Proceeds, any other early recovery of principal received) prior to its Due Date
in any applicable Collection Period, the amount of interest, to the extent not
collected from the related Mortgagor or otherwise (without regard to any
Prepayment Consideration that may have been collected), that would have accrued
at a rate per annum equal to the related Mortgage Rate (reduced, in the case of
an ARD Mortgage Loan after its Anticipated Repayment Date, by the related
Additional Interest Rate) on the amount of such Principal Prepayment during the
period from the date to which interest was paid by the related Mortgagor to, but
not including, such Due Date (exclusive of any related Master Servicing Fees
that would have been payable out of such uncollected interest).
"Prepayment Premium" shall mean any premium, penalty or fee (other
than a Yield Maintenance Charge or any Excess Defeasance Deposit Proceeds) paid
or payable, as the context requires, as a result of a Principal Prepayment on,
or other early collection of principal of, a Mortgage Loan.
"Primary Servicing Office" shall mean the offices of the Master
Servicer or the Special Servicer, as the context may require, that are primarily
responsible for such party's servicing obligations hereunder. As of the Closing
Date, the Primary Servicing Office of the Master Servicer is located at 8739
Research Drive, URP4-NC 1075, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, and the
Primary Servicing Office of the Special Servicer is located at 0000 X. X'Xxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000.
"Prime Rate" shall mean the "prime rate" published in the "Money
Rates" section of The Wall Street Journal, as such "prime rate" may change from
time to time. If The Wall Street Journal ceases to publish the "prime rate",
then the Trustee shall select an equivalent publication that publishes such
"prime rate"; and if such "prime rate" is no longer generally published or is
limited, regulated or administered by a governmental or quasi-governmental body,
then the Trustee shall select a comparable interest rate index. In either case,
such selection shall be made by the Trustee in its sole discretion and the
Trustee shall notify any Fiscal Agent, the Master Servicer and the Special
Servicer in writing of its selection.
"Principal Balance Certificate" shall mean any Regular Interest
Certificate (other than a Class X Certificate).
"Principal Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to the aggregate (without duplication) of the
following:
(a) the aggregate of all payments of principal (other than Principal
Prepayments) Received by the Trust with respect to the Mortgage Loans
during the related Collection Period, in each case exclusive of any portion
of the particular payment that represents a Late Collection of principal
for which a P&I Advance was previously made under this Agreement for a
prior Distribution Date or that represents the principal portion of a
Monthly Payment due on or before the Cut-off Date or on a Due Date
subsequent to the related Collection Period;
(b) the aggregate of the principal portions of all Monthly Payments
due in respect of the Mortgage Loans for their respective Due Dates
occurring during the related Collection Period, that were Received by the
Trust prior to the related Collection Period;
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(c) the aggregate of all Principal Prepayments Received by the Trust
on the Mortgage Loans during the related Collection Period;
(d) the aggregate of all Liquidation Proceeds, Condemnation Proceeds
and Insurance Proceeds Received by the Trust with respect to any Mortgage
Loans during the related Collection Period that were identified and applied
by the Master Servicer as recoveries of principal of such Mortgage Loans,
in each case exclusive of any portion of such proceeds that represents a
Late Collection of principal due on or before the Cut-off Date or for which
a P&I Advance was previously made under this Agreement for a prior
Distribution Date;
(e) the aggregate of all Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and REO Revenues Received by the Trust with respect to
any REO Properties during the related Collection Period that were
identified and applied by the Master Servicer as recoveries of principal of
the related REO Mortgage Loans, in each case exclusive of any portion of
such proceeds and/or revenues that represents a Late Collection of
principal due on or before the Cut-off Date or for which a P&I Advance was
previously made under this Agreement for a prior Distribution Date; and
(f) the aggregate of the principal portions of all P&I Advances made
under this Agreement with respect to the Mortgage Loans and any REO
Mortgage Loans for such Distribution Date.
"Principal Prepayment" shall mean any voluntary payment of principal
made by or on behalf of the Mortgagor on a Mortgage Loan that is received in
advance of its scheduled Due Date, that is Received by the Trust and that is not
accompanied by an amount of interest (without regard to any Prepayment
Consideration that may have been collected) representing scheduled interest due
on any date or dates in any month or months subsequent to the month of
prepayment.
"Prohibited Transaction Exemption" shall mean Prohibited Transaction
Exemption 91-14 granted to a predecessor of Xxxxxx Brothers by the United States
Department of Labor, as such Prohibited Transaction Exemption may be amended
from time to time.
"Proposed Plan" shall have the meaning assigned thereto in Section
3.17(a)(iii).
"Prospectus" shall mean the prospectus dated July 12, 2007 as
supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement" shall mean the prospectus supplement dated
August 2, 2007, relating to the Registered Certificates.
"PTCE" shall mean prohibited transaction class exemption.
"PTE" shall mean prohibited transaction exemption.
"Purchase Option Holders" shall have the meaning assigned thereto in
Section 3.18(b).
"Purchase Price" shall mean, with respect to any Mortgage Loan (or REO
Property), a cash price equal to the aggregate of: (a) the outstanding principal
balance of such Mortgage Loan (or, in
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the case of an REO Property, the related REO Mortgage Loan) as of the date of
purchase, (b) all accrued and unpaid interest on such Mortgage Loan (or, in the
case of an REO Property, the related REO Mortgage Loan) to, but not including,
the Due Date in the applicable Collection Period of purchase (exclusive,
however, of any portion of such accrued but unpaid interest that represents
Default Interest or, if applicable, Additional Interest), (c) all related
unreimbursed Servicing Advances with respect to such Mortgage Loan (or REO
Property), if any, together with the amount of any Servicing Advance (and
accrued interest thereon in accordance with Section 3.11(g)) with respect to
such Mortgage Loan (or REO Property) that has been previously reimbursed as a
Nonrecoverable Advance out of general collections of principal on the Mortgage
Pool (but only to the extent such amounts have not been reimbursed to the
Trust), (d) all accrued and unpaid interest, if any, in respect of related
Advances in accordance with, as applicable, Section 3.11(g) and/or Section
4.03(d), and (e) in the case of a repurchase by the Mortgage Loan Seller
pursuant to the Mortgage Loan Purchase Agreement, (i) to the extent not
otherwise included in the amount described in clause (d) of this definition, any
unpaid Special Servicing Fees and other Additional Trust Fund Expenses with
respect to such Mortgage Loan (or REO Property), including any Liquidation Fee
that may be payable because the subject repurchase occurred subsequent to the
expiration of the Seller Resolution Period for the Material Document Defect or
Material Breach, as applicable, that gave rise to the repurchase, and (ii) to
the extent not otherwise included in the amount described in clause (c) of this
definition, any costs and expenses incurred by the Master Servicer, the Special
Servicer or the Trustee (on behalf of the Trust) in enforcing the obligation of
such Person to purchase such Mortgage Loan (or such REO Property or an interest
therein).
"Qualified Bidder" shall have the meaning assigned thereto in Section
7.01(c).
"Qualified Institutional Buyer" or "QIB" shall mean a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act.
"Qualified Insurer" shall mean an insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualified Mortgage" shall have the meaning assigned thereto in the
Mortgage Loan Purchase Agreement.
"Rated Final Distribution Date" shall mean, with respect to each Class
of Principal Balance Certificates (other than the Class T Certificates), the
Distribution Date in August 2039.
"Rating Agency" shall mean each of S&P and Fitch.
"Realized Loss" shall mean:
(1) with respect to each Mortgage Loan as to which a Final Recovery
Determination has been made, or with respect to any REO Mortgage Loan as to
which a Final Recovery Determination has been made as to the related REO
Property, or with respect to any Mortgage Loan that was the subject of a
Cash-Based Permitted Purchase for less than the applicable Purchase Price,
an amount (not less than zero) equal to the excess, if any, of (a) the sum
of (i) the unpaid principal balance of such Mortgage Loan or REO Mortgage
Loan, as the case may be, as of the commencement of the applicable
Collection Period in which the Final Recovery Determination or purchase, as
the case may be, was made, plus (ii) without taking into account the amount
described in subclause (1)(b) of this definition, all accrued but unpaid
interest on
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such Mortgage Loan or such REO Mortgage Loan, as the case may be, to but
not including the Due Date in the applicable Collection Period in which the
Final Recovery Determination or purchase, as the case may be, was made
(exclusive, however, of any portion of such accrued but unpaid interest
that represents Default Interest or, in the case of an ARD Mortgage Loan or
any successor REO Mortgage Loan with respect thereto after its Anticipated
Repayment Date, Additional Interest), over (b) all payments and proceeds,
if any, received in respect of such Mortgage Loan or, to the extent
allocable to such REO Mortgage Loan, the related REO Property, as the case
may be, during the applicable Collection Period in which such Final
Recovery Determination or purchase, as the case may be, was made, insofar
as such payments and proceeds are allocable to interest (other than Default
Interest and Additional Interest) on or principal of such Mortgage Loan or
REO Mortgage Loan;
(2) with respect to each Mortgage Loan as to which any portion of the
principal or previously accrued interest payable thereunder was canceled in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, extension, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to
Section 3.20, the amount of such principal and/or interest (other than
Default Interest and, in the case of an ARD Mortgage Loan after its
Anticipated Repayment Date, Additional Interest) so canceled;
(3) with respect to each Mortgage Loan as to which the Mortgage Rate
thereon has been permanently reduced and not recaptured for any period in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, extension, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to
Section 3.20, the amount of the consequent reduction in the interest
portion of each successive Monthly Payment due thereon (each such Realized
Loss shall be deemed to have been incurred on the Due Date for each
affected Monthly Payment); and
(4) with respect to any Mortgage Loan or REO Mortgage Loan, to the
extent not otherwise taken into account as part of a Realized Loss
determined pursuant to any of clauses (1), (2) and (3) of this definition,
the amount of any related Advance that is reimbursed as a Nonrecoverable
Advance out of general collections on the Mortgage Pool (net of any
Recovered Amount in connection with the item for which such Nonrecoverable
Advance was made).
"Received by the Trust" shall mean, in the case of any Mortgage Loan
or REO Property, received by the Master Servicer or any of its Sub-Servicers,
the Special Servicer or any of its Sub-Servicers or the Trustee, as the case may
be, in any event on behalf of the Trust.
"Record Date" shall mean, with respect to any Distribution Date, the
last Business Day of the month immediately preceding the month in which such
Distribution Date occurs; provided that, if the initial Distribution Date occurs
in the same calendar month as the Closing Date, then the Record Date for the
initial Distribution Date shall be the Closing Date.
"Recording Agent" shall have the meaning assigned thereto in Section
2.01(c).
"Recovered Amount" shall have the meaning assigned thereto in Section
1.03(c).
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"Registered Certificate" shall mean any Certificate that has been the
subject of registration under the Securities Act. As of the Closing Date, the
Class X-0, Xxxxx X-0, Class A-3, Class A-1A, Class A-J, Class B, Class C, Class
D, Class E and Class F Certificates are Registered Certificates.
"Regular Interest Certificate" shall mean any REMIC III Certificate
other than a Class R-III Certificate.
"Regulation AB" shall mean Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. Sections 229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation as have
been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan.
7, 2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Global Certificate" shall mean, with respect to any
Class of Book-Entry Non-Registered Certificates offered and sold outside of the
United States in reliance on Regulation S, one or collectively more global
Certificates of such Class registered in the name of the Depository or its
nominee, in definitive, fully registered form without interest coupons, each of
which Certificates bears a Regulation S CUSIP number.
"Reimbursement Rate" shall mean the rate per annum applicable to the
accrual of interest, compounded annually, on Servicing Advances in accordance
with Section 3.11(g) and on P&I Advances in accordance with Section 4.03(d),
which rate per annum is equal to the Prime Rate.
"Relevant Servicing Criteria" means, with respect to any of the
various parties listed on Exhibit S, the Servicing Criteria applicable to the
subject party, as set forth on Exhibit S attached hereto (as such Exhibit S may
be updated or limited (including, without limitation, by not requiring delivery
of certain of the items set forth therein) based on interpretive guidance
relating to Item 1122 of Regulation AB provided by the Commission or its staff,
which update or limitation is reasonably agreed to by the parties 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, the Master Servicer or the Special Servicer,
the term "Relevant Servicing Criteria" shall refer to the respective portions of
the Relevant Servicing Criteria applicable to the Master Servicer, the Special
Servicer or the Trustee that the Sub-Servicing Function Participant has been
engaged to perform or has performed.
"Remaining Adjusted Principal Distribution Amount" shall mean, with
respect to any Class of Class B Through T Certificates for any Distribution
Date, an amount equal to the Adjusted Principal Distribution Amount for such
Distribution Date, reduced by all distributions of principal to be made on such
Distribution Date: (i) pursuant to Section 4.01(a) with respect to the Senior
Class A Certificates and the Class A-J Certificates; and (ii) pursuant to
Section 4.01(b) with respect to any and all other Classes of the Class B Through
T Certificates that evidence a right to payment in accordance with such Section
4.01(b) that is prior to the right to payment evidenced by the subject Class of
Class B Through T Certificates. The priority of payments on the various Classes
of the Class B Through T Certificates under Section 4.01(b) shall be consistent
with the alphabetic order of the respective Class designations of such Classes
of Certificates, with the Class B Certificates entitling the Holders thereof to
the highest payment priority under Section 4.01(b) as among the respective
Classes of the Class B
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Through T Certificates and the Class T Certificates entitling the Holders
thereof to the lowest payment priority under Section 4.01(b) as among the
respective Classes of the Class B Through T Certificates.
"Remaining Available Distribution Amount" shall mean, with respect to
any Class of Class B Through T Certificates for any Distribution Date, an amount
equal to the Available Distribution Amount for such Distribution Date, reduced
by all distributions to be made on such Distribution Date: (i) pursuant to
Section 4.01(a) with respect to the Senior Certificates and the Class A-J
Certificates; and (ii) pursuant to Section 4.01(b) with respect to any and all
other Classes of the Class B Through T Certificates that evidence a right to
payment in accordance with such Section 4.01(b) that is prior to the right to
payment evidenced by the subject Class of Class B Through T Certificates. The
priority of payments on the various Classes of the Class B Through T
Certificates under Section 4.01(b) shall be consistent with the alphabetic order
of the respective Class designations of such Classes of Certificates, with the
Class B Certificates entitling the Holders thereof to the highest payment
priority under Section 4.01(b) as among the respective Classes of the Class B
Through T Certificates and the Class T Certificates entitling the Holders
thereof to the lowest payment priority under Section 4.01(b) as among the
respective Classes of the Class B Through T Certificates.
"REMIC" shall mean a "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC I" shall mean the segregated pool of assets constituting the
primary trust created hereby and to be administered hereunder with respect to
which a separate REMIC election is to be made, and consisting of: (i) any Loan
REMIC Regular Interests; (ii) the Mortgage Loans (exclusive of any Early
Defeasance Mortgage Loans) as from time to time are subject to this Agreement
and all payments under and proceeds of such Mortgage Loans Received by the Trust
after the Closing Date (other than any such payments and/or proceeds that
represent (A) scheduled payments of interest and principal due in respect of the
Mortgage Loans on or before the Cut-off Date, or (B) Additional Interest
Received by the Trust in respect of the ARD Mortgage Loans, if any, after their
respective Anticipated Repayment Dates), together with all documents included in
the related Mortgage Files; (iii) any REO Properties (other than an REO Property
acquired in respect of any Early Defeasance Mortgage Loan) as from time to time
are subject to this Agreement and all income and proceeds therefrom; (iv) such
funds or assets as from time to time are deposited in the Custodial Account, the
Collection Account and, if established, the REO Account, exclusive of any such
funds or assets that (A) are included in a Loan REMIC or (B) represent
Additional Interest Received by the Trust in respect of the ARD Mortgage Loans,
if any, after their respective Anticipated Repayment Dates; and (v) to the
extent not included in a Loan REMIC, the rights of the Depositor under the
Mortgage Loan Purchase Agreement(s); provided that REMIC I shall not include the
Loss of Value Reserve Fund or any amounts on deposit therein.
"REMIC I Regular Interest" shall mean any of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a "regular interest" in REMIC I, as described in the Preliminary
Statement hereto.
"REMIC I Remittance Rate" shall mean: (a) with respect to any REMIC I
Regular Interest issued in respect of a Loan REMIC Regular Interest, a rate per
annum that is, for any Interest Accrual Period, equal to the Loan REMIC
Remittance Rate with respect to such Loan REMIC Regular Interest for such
Interest Accrual Period; and (b) with respect to any other REMIC I Regular
Interest, a rate per annum that is, for any Interest Accrual Period, equal to
(i) the Mortgage Rate in effect for the
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corresponding Mortgage Loan as of the Closing Date (without regard to any
modifications, extensions, waivers or amendments of such corresponding Mortgage
Loan subsequent to the Closing Date), minus (ii) the sum of (A) the Master
Servicing Fee Rate for such corresponding Mortgage Loan (or any successor REO
Mortgage Loan with respect thereto), plus (B) the Trustee Fee Rate.
"REMIC II" shall mean the segregated pool of assets consisting of all
of the REMIC I Regular Interests conveyed in trust to the Trustee for the
benefit of REMIC III, as holder of the REMIC II Regular Interests, and the
Holders of the Class R-II Certificates, pursuant to Section 2.09, with respect
to which a separate REMIC election is to be made.
"REMIC II Regular Interest" shall mean any of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a "regular interest" in REMIC II. Each REMIC II Regular Interest
shall accrue interest at its REMIC II Remittance Rate in effect from time to
time and, further, shall be entitled to distributions of principal over time,
subject to the terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto. The designations for the respective REMIC II Regular Interests
are set forth in the Preliminary Statement hereto.
"REMIC II Remittance Rate" shall mean, with respect to any REMIC II
Regular Interest for any Interest Accrual Period, an annual rate equal to the
Weighted Average REMIC I Remittance Rate for such Interest Accrual Period.
"REMIC III" shall mean the segregated pool of assets consisting of all
of the REMIC II Regular Interests conveyed in trust to the Trustee for the
benefit of the Holders of the REMIC III Certificates, pursuant to Section 2.11,
with respect to which a separate REMIC election is to be made.
"REMIC III Certificate" shall mean any Class A-1, Class A-2, Class
A-3, Class A-1A, Class X, Class A-J, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P, Class
Q, Class S or Class T Certificate or any Class R-III Certificate.
"REMIC Pool" shall mean any of REMIC I, REMIC II, REMIC III and,
subject to Section 2.06(b), the Loan REMICs.
"REMIC Provisions" shall mean the provisions of the federal income tax
law relating to REMICs, which appear at Sections 860A through 860G of Subchapter
M of Chapter 1 of the Code, and related provisions, and proposed, temporary and
final Treasury regulations and any published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property" shall mean, with respect to any REO
Property, gross income of the character described in Section 856(d) of the Code.
"REO Account" shall mean the 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
substantially as follows: "Centerline Servicing Inc. [OR THE NAME OF ANY
SUCCESSOR SPECIAL SERVICER], as Special Servicer, on behalf of Xxxxx Fargo Bank,
N.A. [OR THE NAME OF ANY SUCCESSOR TRUSTEE], as Trustee, in trust for the
registered
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holders of TIAA Seasoned Commercial Mortgage Trust 2007-C4,
Commercial Mortgage Pass-Through Certificates, Series 2007-C4, REO Account".
"REO Acquisition" shall mean the acquisition of any REO Property
pursuant to Section 3.09.
"REO Disposition" shall mean the sale or other disposition of any REO
Property pursuant to Section 3.18.
"REO Extension" shall have the meaning assigned thereto in Section
3.16(a).
"REO Mortgage Loan" shall mean the mortgage loan deemed for purposes
hereof to be outstanding with respect to each REO Property. Each REO Mortgage
Loan shall be deemed to relate to and succeed the Mortgage Loan relating to the
subject REO Property. Each REO Mortgage Loan shall be deemed to provide for
monthly payments of principal and/or interest equal to its Assumed Monthly
Payment and otherwise to have the same terms and conditions as its predecessor
Mortgage Loan (such terms and conditions to be applied without regard to the
default on such predecessor Mortgage Loan and the acquisition of the related REO
Property as part of the Trust Fund). Each REO Mortgage Loan shall be deemed to
have an initial unpaid principal balance and, if applicable hereunder, an
initial Stated Principal Balance equal to the unpaid principal balance and
Stated Principal Balance, respectively, of its predecessor Mortgage Loan as of
the date of the related REO Acquisition. All Monthly Payments (other than a
Balloon Payment), Assumed Monthly Payments (in the case of a Balloon Mortgage
Loan delinquent in respect of its Balloon Payment) and other amounts due and
owing, or deemed to be due and owing, in respect of the predecessor Mortgage
Loan as of the date of the related REO Acquisition, shall be deemed to continue
to be due and owing in respect of an REO Mortgage Loan. Amounts Received by the
Trust with respect to each REO Mortgage Loan (after provision for amounts to be
applied to the payment of, or to be reimbursed to the Master Servicer or the
Special Servicer for the payment of, the costs of operating, managing and
maintaining any related REO Property or for the reimbursement of the Master
Servicer, the Special Servicer, the Trustee or any Fiscal Agent for any other
related Servicing Advances) shall be treated: first, as a recovery of accrued
and unpaid interest on such REO Mortgage Loan at the related Mortgage Rate to
but not including the Due Date in the related Collection Period of receipt
(exclusive, however, in the case of an REO Mortgage Loan that relates to an ARD
Mortgage Loan after its Anticipated Repayment Date, of any such accrued and
unpaid interest that constitutes Additional Interest); second, as a recovery of
principal of such REO Mortgage Loan to the extent of its entire unpaid principal
balance; third, in accordance with the normal servicing practices of the Master
Servicer, as a recovery of any other amounts due and owing in respect of such
REO Mortgage Loan (exclusive, however, in the case of an REO Mortgage Loan that
relates to an ARD Mortgage Loan after its Anticipated Repayment Date, of any
such accrued and unpaid interest that constitutes Additional Interest); and
fourth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan
after its Anticipated Repayment Date, as a recovery of accrued and unpaid
Additional Interest on such REO Mortgage Loan; provided that, if one or more
Advances previously made in respect of an REO Mortgage Loan have been reimbursed
out of general collections of principal on the Mortgage Pool as one or more
Nonrecoverable Advances, then collections in respect of such REO Mortgage Loan
available for application pursuant to clauses first through fourth of this
sentence shall instead be applied in the following order--(i) as a recovery of
accrued and unpaid interest on, and principal of, such REO Mortgage Loan, to the
extent of any outstanding P&I Advances and unpaid Master Servicing Fees in
respect of such REO Mortgage Loan, (ii) as a recovery of the item(s) for which
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such previously reimbursed Nonrecoverable Advance(s) were made (together with
any interest on such previously reimbursed Nonrecoverable Advance(s) that was
also paid out of general collections of principal on the Mortgage Pool), and
(iii) in accordance with clauses first through fourth of this sentence (taking
into account the applications pursuant to clauses (i) and (ii) of this proviso);
and provided, further, that Loss of Value Payments shall not be applied in
accordance with the foregoing provisions of this definition unless and until
such amounts are transferred to the Custodial Account, and deemed to constitute
Liquidation Proceeds in respect of a particular REO Mortgage Loan, in accordance
with Section 3.05(e). Notwithstanding the foregoing, all amounts payable or
reimbursable to the Master Servicer, the Special Servicer, the Trustee or any
Fiscal Agent in respect of the predecessor Mortgage Loan as of the date of the
related REO Acquisition, including any unpaid Servicing Fees and any
unreimbursed Servicing Advances and P&I Advances, together with any interest
accrued and payable to the Master Servicer, the Special Servicer, the Trustee or
any Fiscal Agent in respect of such Servicing Advances and P&I Advances in
accordance with Sections 3.11(g) and 4.03(d), respectively, shall continue to be
payable or reimbursable to the Master Servicer, the Special Servicer, the
Trustee or such Fiscal Agent, as the case may be, in respect of an REO Mortgage
Loan. The foregoing allocations are not intended to limit the rights of the
parties hereunder to reimbursements or indemnities to which they are otherwise
entitled hereunder.
"REO Property" shall mean a Mortgaged Property acquired on
behalf and in the name of the Trustee 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.
"REO Revenues" shall mean all income, rents, profits and proceeds
derived from the ownership, operation or leasing of any REO Property.
"REO Tax" shall have the meaning assigned thereto in Section 3.17(a).
"REO Mortgage Loan" shall mean the successor REO Mortgage Loan with
respect to any Mortgage Loan as to which the related Mortgaged Property has
become an REO Property.
"Request for Release" shall mean a request signed by a Servicing
Officer of, as applicable, the Master Servicer in the form of Exhibit D-1
attached hereto or the Special Servicer in the form of Exhibit D-2 attached
hereto.
"Required Appraisal" shall mean, with respect to each Required
Appraisal Loan, an appraisal of the related Mortgaged Property from an
Independent Appraiser selected by the party required or authorized to obtain
such appraisal hereunder, which appraisal shall be prepared in accordance with
12 CFR Section 225.62 and conducted in accordance with the standards of the
Appraisal Institute or, in the case of a Required Appraisal Loan having a Stated
Principal Balance of, or in the case of a Mortgaged Property that has an
allocated loan amount of, less than $2,000,000, if no satisfactory (as
determined by the Special Servicer pursuant to Section 3.09(a)) appraisal
meeting the foregoing criteria was obtained or conducted within the prior 12
months, a "desktop" value estimate performed by the Special Servicer.
"Required Appraisal Loan" shall mean any Mortgage Loan:
(i) that becomes a Modified Loan;
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(ii) that is 120 days or more delinquent in respect of any Monthly
Payment, except for a Balloon Payment;
(iii) that is delinquent in respect of its Balloon Payment, if any,
(A) for one (1) Business Day beyond the date on which such Balloon Payment
was due (unless clause (B) below applies) or (B) if the related Mortgagor
shall have delivered a refinancing commitment acceptable to the Special
Servicer prior to the date when such Balloon Payment was due, for 30 days
beyond the date on which such Balloon Payment was due (or for such shorter
period ending on the date on which it is determined that the refinancing
could not reasonably be expected to occur);
(iv) with respect to which the related Mortgaged Property has become
an REO Property;
(v) with respect to which a receiver or similar official is appointed
and continues for 60 days in such capacity in respect of the related
Mortgaged Property;
(vi) with respect to which the related Mortgagor is subject to a
bankruptcy, insolvency or similar proceedings, which, in the case of an
involuntary bankruptcy, insolvency or similar proceeding, has not been
dismissed within 60 days of the commencement thereof; or
(vii) that remains outstanding five (5) years following any extension
of its maturity date pursuant to Section 3.20.
Any Required Appraisal Loan shall cease to be such at such time as it has become
a Corrected Mortgage Loan (assuming such Required Appraisal Loan was a Specially
Serviced Mortgage Loan), it has remained current for at least three consecutive
Monthly Payments, and no other event described in clauses (i) through (vii)
above has occurred with respect thereto during the preceding three-month period.
The term "Required Appraisal Loan" shall include any successor REO Mortgage
Loan(s).
"Required Appraisal Value" shall mean, with respect to any Mortgaged
Property securing (or REO Property relating to) a Required Appraisal Loan, an
amount equal to the sum of: (a) the excess, if any, of (i) 90% of the Appraised
Value of such Mortgaged Property (or REO Property) as determined by the most
recent Required Appraisal or any letter update of such Required Appraisal (as
such Appraised Value may be reduced by the Special Servicer, acting in
accordance with the Servicing Standard, based upon the Special Servicer's review
of the subject Required Appraisal and such other information that the Special
Servicer, acting in accordance with the Servicing Standard, deems relevant
(provided that the Special Servicer shall not be obligated to make any such
reduction)), over (ii) the amount of any obligations secured by liens on such
Mortgaged Property (or REO Property) that are prior to the lien of the related
Required Appraisal Loan; plus (b) the amount of Escrow Payments and Reserve
Funds held by the Master Servicer in respect of such Required Appraisal Loan
that (i) are not being held for purposes of paying any real estate taxes and
assessments, insurance premiums or, if applicable, ground rents, (ii) are not
otherwise scheduled to be applied or utilized (except to pay debt service on
such Required Appraisal Loan) within the 12-month period following the date of
determination and (iii) may be applied towards the reduction of the principal
balance of such Required Appraisal Loan; plus (c) the amount of any letter of
credit constituting additional security for such Required Appraisal Loan and
that may be drawn upon for purposes of paying down the principal balance of such
Required Appraisal Loan.
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"Required Insurer Rating" shall mean:
(i) for purposes of Sections 3.07(a) and 3.07(b), a "claims paying
ability", "financial strength" or comparable rating, as applicable, of at
least "A" from S&P and "A" from Fitch (or, if not then rated by Fitch, an
equivalent rating thereto from at least one nationally recognized
statistical rating agency in addition to S&P or a rating of "A:IX" or
better from A.M. Best's Key Rating Guide) or, in the case of any such
rating agency, such lower rating as will not result in an Adverse Rating
Event with respect to any Class of Certificates rated by such rating agency
(as evidenced in writing by such rating agency); and
(ii) for purposes of Section 3.07(c), a "claims paying ability",
"financial strength" or comparable rating, as applicable, of at least "A"
from S&P and "A" from Fitch (or, if not then rated by Fitch, an equivalent
rating thereto from at least one nationally recognized statistical rating
agency in addition to S&P or a rating of "A:IX" or better from A.M. Best's
Key Rating Guide) or, in the case of any such rating agency, such lower
rating as will not result in an Adverse Rating Event with respect to any
Class of Certificates rated by such rating agency (as evidenced in writing
by such rating agency).
"Reserve Account" shall have the meaning assigned thereto in Section
3.03(d).
"Reserve Funds" shall mean, with respect to any Mortgage Loan, any
amounts delivered by the related Mortgagor to be held by or on behalf of the
mortgagee representing reserves for repairs, capital improvements and/or
environmental remediation in respect of the related Mortgaged Property or debt
service on such Mortgage Loan.
"Residual Interest Certificate" shall mean any of the Class R-I
Certificates, the Class R-II Certificates, the Class R-III Certificates or, if
issued in accordance with Section 2.06, the Class R-LR Certificates.
"Resolution Extension Period" shall have the meaning assigned thereto
in the Mortgage Loan Purchase Agreement.
"Responsible Officer" shall mean: (a) when used with respect to the
Trustee, any Vice President, any Assistant Vice President, any Trust Officer,
any Assistant Secretary or any other officer of the Trustee's Global Securities
and Trust Services customarily performing functions similar to those performed
by any of the above designated officers and having direct responsibility for the
administration of this Agreement; and (b) when used with respect to any Fiscal
Agent, any officer thereof.
"Review Package" shall mean a package of documents consisting of a
memorandum outlining the analysis and recommendation (in accordance with the
Servicing Standard) of the Master Servicer or the Special Servicer, as the case
may be, with respect to the matters that are the subject thereof, and copies of
all relevant documentation.
"Rule 144A Global Certificate" shall mean, with respect to any Class
of Book-Entry Non-Registered Certificates, one or collectively more global
certificates of such Class registered in the name of the Depository or its
nominee, in definitive, fully registered form without interest coupons, and each
of which certificates has a Rule 144A CUSIP number.
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"S&P" shall mean Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successors in interest. If neither such
rating agency nor any successor remains in existence, "S&P" shall be deemed to
refer to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, any Fiscal Agent, the Master Servicer and the Special
Servicer, and specific ratings of Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc. herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated.
"Xxxxxxxx-Xxxxx Act" shall have the meaning assigned thereto in
Section 8.15(d).
"Xxxxxxxx-Xxxxx Certification" shall have the meaning assigned thereto
in Section 8.15(d).
"SASCO II" shall mean Structured Asset Securities Corporation II or
any successor in interest.
"Scheduled Payment" shall mean, with respect to any Mortgage Loan, for
any Due Date following the Cut-off Date as of which it is outstanding, the
Monthly Payment on such Mortgage Loan that is or would be, as the case may be,
payable by the related Mortgagor on such Due Date under the terms of the related
Mortgage Note as in effect on the Closing Date, without regard to any subsequent
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, extension,
waiver or amendment of such Mortgage Loan granted or agreed to by the Special
Servicer pursuant to Section 3.20, and assuming that the full amount of each
prior Scheduled Payment has been made in a timely manner.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Seller Notification" shall mean, with respect to any Mortgage Loan, a
written notification executed (in each case promptly upon becoming aware of such
event) by a Responsible Officer of the Trustee, or a Servicing Officer of the
Master Servicer or the Special Servicer, as applicable, and delivered to the
Master Servicer, the Special Servicer and the Trustee (except to the extent any
of the foregoing three parties is the party delivering the subject Seller
Notification) and to the Mortgage Loan Seller, in each case identifying and
describing the circumstances relating to any of the events set forth below,
which notification shall be substantially in the form of Exhibit N attached
hereto:
(i) the occurrence of a Material Document Defect or Material Breach
with respect to the subject Mortgage Loan;
(ii) the direction to cure the Material Document Defect or Material
Breach with respect to the subject Mortgage Loan in all material respects,
or repurchase the subject Mortgage Loan, within the time period and subject
to the conditions provided for in Section 5(a) of the Mortgage Loan
Purchase Agreement;
(iii) following or simultaneously with the occurrence of a Material
Document Defect, the existence or occurrence of a Servicing Transfer Event
with respect to the subject Mortgage Loan;
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(iv) following or simultaneously with the occurrence of a Material
Document Defect, the existence or occurrence of an assumption or a proposed
assumption with respect to the subject Mortgage Loan;
(v) only (A) under the circumstances contemplated by the last
paragraph of Section 5(a) of the Mortgage Loan Purchase Agreement, and (B)
following the expiration of the applicable Resolution Extension Period and
(C) following either the occurrence of a Servicing Transfer Event or an
assumption with respect to the subject Mortgage Loan, as applicable, the
direction to cure the subject Material Document Defect in all material
respects within 15 days of receipt of such Seller Notification;
(vi) following the expiration of the 15-day period set forth in clause
(v) above, notification of the election by the Master Servicer or the
Special Servicer, as applicable, to perform the cure obligations with
respect to the subject Material Document Defect; and/or
(vii) the expiration of the applicable Resolution Extension Period
with respect to such Mortgage Loan and the direction to promptly repurchase
such Mortgage Loan.
In addition to the foregoing parties, a copy of each such Seller Notification
shall be delivered to the Controlling Class Representative by the Trustee (to
the extent the Trustee knows the identity of the Controlling Class
Representative) and, in the case of an event described in clauses (v) and/or
(vii) of this definition, to internal counsel to the Mortgage Loan Seller (to
the extent known to the Trustee).
"Seller Resolution Period" shall mean the 90-day period following the
Mortgage Loan Seller's receipt of a Seller Notification with respect to the
Material Document Defect or Material Breach that gave rise to the particular
repurchase obligation; provided, however, that if (i) such Material Document
Defect or Material Breach is capable of being cured but not within such 90-day
period, (ii) the Mortgage Loan Seller has commenced and is diligently proceeding
with the cure of such Material Document Defect or Material Breach within such
initial 90-day period, and (iii) the Mortgage Loan Seller delivers an Officer's
Certificate to the Special Servicer setting forth the reasons such Material
Document Defect or Material Breach is not capable of being cured within the
initial 90-day period and what actions such party is pursuing in connection with
the cure thereof, then the Seller Resolution Period shall mean the 180-day
period following the Mortgage Loan Seller's receipt of a Seller Notification
with respect to the Material Document Defect or Material Breach that gave rise
to the particular repurchase obligation; and provided, further, that, if any
such Material Document Defect is still not cured after the 180-day period
following the Mortgage Loan Seller's receipt of a Seller Notification with
respect to the Material Document Defect or Material Breach that gave rise to the
particular repurchase obligation solely due to the failure of the Mortgage Loan
Seller to have received a recorded document, then the Seller Resolution Period
shall continue for an additional period of time so long as the Mortgage Loan
Seller certifies to the Special Servicer every six months thereafter that the
Document Defect is still in effect solely because of its failure to have
received the recorded document and that such party is diligently pursuing the
cure of such defect.
"Senior Certificate" shall mean any Class A-1, Class X-0, Xxxxx X-0,
Class A-1A or Class X Certificate.
"Senior Class A Certificates" shall mean the Class A-1, Class A-2,
Class A-3 and Class A-1A Certificates.
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"Senior Class A Principal Distribution Cross-Over Date" shall mean the
first Distribution Date as of the commencement of business on which (i) any two
or more Classes of the Senior Class A Certificates remain outstanding and (ii)
the aggregate of the Class Principal Balances of the Class A-J, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class P, Class Q, Class S and Class T Certificates has been reduced
to zero as a result of the allocation of Realized Losses and Additional Trust
Fund Expenses pursuant to Section 4.04(a).
"Servicer" shall mean any servicer (within the meaning of Item 1101(j)
of Regulation AB) with respect to the Subject Securitization Transaction.
"Servicer Backup Certification" shall mean the Master Servicer Backup
Certification or the Special Servicer Backup Certification, as applicable.
"Servicer Fee Amount" shall mean: (a) with respect to each
Sub-Servicer, as of any date of determination, the aggregate of the products
obtained by multiplying, for each Mortgage Loan primary serviced by such
Sub-Servicer (and any successor REO Mortgage Loan with respect thereto), (i) the
principal balance of such Mortgage Loan as of the end of the immediately
preceding applicable Collection Period and (ii) the sub-servicing fee rate
specified in the related Sub-Servicing Agreement for such Mortgage Loan; and (b)
with respect to the Master Servicer, as of any date of determination, the
aggregate of the products obtained by multiplying, for each Mortgage Loan (and
any successor REO Mortgage Loan with respect thereto), (i) the principal balance
of such Mortgage Loan as of the end of the immediately preceding applicable
Collection Period and (ii) the excess, if any, of the Master Servicing Fee Rate
for such Mortgage Loan, over the sub-servicing fee rate (if any) applicable to
such Mortgage Loan, as specified in any Sub-Servicing Agreement related to such
Mortgage Loan.
"Servicer Notice" shall have the meaning assigned thereto in Section
3.14.
"Servicer Reports" shall mean each of the files, reports and templates
comprising the CMSA Investor Reporting Package (excluding the CMSA Bond Level
File, the CMSA Collateral Summary File and each of the templates identified
under clause (c)(iii) through clause (c)(vi) of the definition of "CMSA Investor
Reporting Package") and the Supplemental Reports.
"Servicing Account" shall have the meaning assigned thereto in Section
3.03(a).
"Servicing Advances" shall mean all customary, reasonable and
necessary "out of pocket" costs and expenses (including attorneys' fees and fees
and expenses of real estate brokers) incurred by the Master Servicer, the
Special Servicer, any Fiscal Agent or the Trustee in connection with the
servicing and administration of a Mortgage Loan, if a default is imminent
thereunder or a default, delinquency or other unanticipated event has occurred
with respect thereto, or in connection with the administration of any REO
Property, including, but not limited to, the cost of (a) compliance with the
obligations of the Master Servicer, the Special Servicer, any Fiscal Agent or
the Trustee, if any, set forth in Section 3.03(c), (b) the preservation,
insurance, restoration, protection and management of a Mortgaged Property, (c)
obtaining any Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds,
(d) any enforcement or judicial proceedings with respect to a Mortgaged
Property, including foreclosures, (e) any Required Appraisal or any other
appraisal or update thereof expressly permitted or required to be obtained
hereunder, (f) the operation, management, maintenance and liquidation of any REO
Property, and (g) obtaining any related ratings confirmation; provided that,
notwithstanding anything to the contrary, "Servicing Advances" shall not include
allocable overhead of the Master
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Servicer, the Special Servicer or the Trustee, such as costs for office space,
office equipment, supplies and related expenses, employee salaries and related
expenses and similar internal costs and expenses, or costs and expenses incurred
by any such party in connection with its purchase of any Mortgage Loan or REO
Property pursuant to any provision of this Agreement or any intercreditor
agreement relating to mezzanine debt.
"Servicing Criteria" shall mean the "servicing criteria" set forth in
Item 1122(d) of Regulation AB, as such may be amended from time to time.
"Servicing Fees" shall mean, with respect to each Mortgage Loan (and
any successor REO Mortgage Loan with respect thereto), the Master Servicing Fee
and the Special Servicing Fee.
"Servicing File" shall mean, collectively, any and all documents
(other than documents required to be part of the related Mortgage File, except
as specifically provided below in this definition), in the possession of the
Master Servicer or the Special Servicer and relating to the origination and
servicing of any Mortgage Loan, including any original letter of credit
(together with any transfer or assignment documents related thereto), any
franchise agreement and any franchise comfort letter (together with any transfer
or assignment documents relating thereto), appraisals, surveys, engineering
reports, environmental reports, opinion letters of counsel to a related
Mortgagor, escrow agreements and property management agreements.
"Servicing Function Participant" shall mean any of: (i) the Master
Servicer; (ii) the Special Servicer; (iii) the Trustee; and (iv) any other party
hereto, in addition to the Master Servicer, the Special Servicer and the
Trustee, that is a "party participating in the servicing function" (within the
meaning of the instructions to Item 1122 of Regulation AB) as regards the Trust
Fund.
"Servicing Officer" shall mean any officer or employee of the Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by such party to the
Trustee and the Depositor on the Closing Date, as such list may be amended from
time to time.
"Servicing-Released Bid" shall have the meaning assigned thereto in
Section 7.01(c).
"Servicing Representative" shall mean, with respect to the 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" shall have the meaning assigned thereto in
Section 7.01(c).
"Servicing Standard" shall mean, with respect to the Master Servicer
or the Special Servicer, to service and administer the Mortgage Loans and any
REO Properties that such party is obligated to service and administer pursuant
to this Agreement: (i) in accordance with the higher of the following standards
of care: (A) the same manner in which, and with the same care, skill, prudence
and diligence with which, the Master Servicer or the Special Servicer, as the
case may be, services and administers comparable mortgage loans with similar
borrowers and comparable foreclosure properties for other third-party portfolios
(giving due consideration to the customary and usual standards of
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practice of prudent institutional commercial mortgage lenders servicing their
own mortgage loans and foreclosure properties), and (B) the same manner in
which, and with the same care, skill, prudence and diligence with which, the
Master Servicer or Special Servicer, as the case may be, services and
administers comparable mortgage loans and foreclosure properties owned by the
Master Servicer or Special Servicer, as the case may be, in either case
exercising reasonable business judgment and acting in accordance with applicable
law, the terms of this Agreement and the terms of the respective Mortgage Loans
and any applicable co-lender, intercreditor and/or similar agreements; (ii) with
a view to: (A) the timely recovery of all payments of principal and interest,
including Balloon Payments, under the Mortgage Loans or, in the case of any
Mortgage Loan that is (1) a Specially Serviced Mortgage Loan or (2) a Mortgage
Loan as to which the related Mortgaged Property has become an REO Property, the
maximization of recovery on the subject Mortgage Loan to the Certificateholders
(as a collective whole) of principal and interest, including Balloon Payments,
on a present value basis (the relevant discounting of anticipated collections
that will be distributable to the Certificateholders to be performed at the rate
determined by the Special Servicer, but in no event less than the related
Mortgage Rate); and (iii) without regard to (A) any relationship, including as
lender on any other debt (including mezzanine debt), that the Master Servicer or
the Special Servicer, as the case may be, or any Affiliate thereof, may have
with any of the related Mortgagors, or any Affiliate thereof, or any other party
to this Agreement, (B) the ownership of any Certificate by the Master Servicer
or the Special Servicer, as the case may be, or any Affiliate thereof, (C) the
obligation of the Master Servicer or the Special Servicer, as the case may be,
to make Advances, (D) the right of the Master Servicer or the Special Servicer,
as the case may be, or any Affiliate thereof, to receive compensation or
reimbursement of costs hereunder generally or with respect to any particular
transaction, and (E) the ownership, servicing or management for others of any
other mortgage loan or real property not subject to this Agreement by the Master
Servicer or the Special Servicer, as the case may be, or any Affiliate thereof.
"Servicing Transfer Event" shall mean, with respect to any Mortgage
Loan, the occurrence of any of the events described in clauses (a) through (g)
of the definition of "Specially Serviced Mortgage Loan".
"Single Certificate" shall mean, for purposes of Section 4.02, a
hypothetical Regular Interest Certificate evidencing an initial $1,000
denomination.
"Single Purpose Entity" shall mean an entity, other than an
individual, whose organizational documents and/or the related loan documents
provide substantially to the effect that: (i) it was formed or organized solely
for the purpose of either owning and operating the Mortgaged Property or
Properties securing one or more Mortgage Loans, or owning and pledging
Defeasance Collateral in connection with the defeasance of a Defeasance Mortgage
Loan, as the case may be, (ii) it may not engage in any business unrelated to
such Mortgaged Property or Properties or such Defeasance Collateral, as the case
may be, (iii) it will not have any assets other than those related to its
interest in and operation of such Mortgaged Property or such Defeasance
Collateral, as the case may be, (iv) it may not incur indebtedness other than
incidental to its ownership and operation of the applicable Mortgaged Property
or Properties or Defeasance Collateral, as the case may be, (v) it will maintain
its own books and records and accounts separate and apart from any other Person,
(vi) it will hold itself out as a legal entity, separate and apart from any
other Person, and (vii) in the case of such an entity whose sole purpose is
owning or operating a Mortgaged Property, it will have an independent director
or, if such entity is a partnership or a limited liability company, at least one
general partner or limited liability
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company member thereof, as applicable, which shall itself be a "single purpose
entity" (having as its sole asset its interest in the Single Purpose Entity)
with an independent director.
"Special Servicer" shall mean Centerline, in its capacity as special
servicer hereunder, or any successor special servicer appointed as herein
provided.
"Special Servicer Backup Certification" shall have the meaning
assigned thereto in Section 8.15(i).
"Special Servicer Indemnification Agreement" shall mean the Special
Servicer Indemnification Agreement dated as of August 2, 2007 between the
initial Special Servicer, the Depositor, Xxxxxx Brothers and Xxxxxx Xxxxxxx.
"Special Servicer Reportable Event" shall mean any of the following
events, conditions, circumstances and/or matters:
(i) the entry into or amendment to a definitive agreement that is
material to the Subject Securitization Transaction, including, for example,
a servicing agreement with a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, but only if the Special Servicer or any Servicing
Representative of the Special Servicer is a party to such agreement or has
entered into such agreement on behalf of the Trust (ITEM 1.01 ON FORM 8-K);
(ii) the termination of a definitive agreement that is material
to the Subject Securitization Transaction (otherwise than by expiration of
the agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), but only if the Special
Servicer or any Servicing Representative of the Special Servicer is a party
to such agreement or has entered into such agreement on behalf of the Trust
(ITEM 1.02 ON FORM 8-K);
(iii) the appointment of a receiver, fiscal agent or similar
officer for any Material Debtor in a proceeding under the U.S. Bankruptcy
Code or in any other proceeding under state or federal law in which a court
or governmental authority has assumed jurisdiction over substantially all
of the assets or business of any Material Debtor, including where such
jurisdiction has been assumed by leaving the existing directors and
officers in possession but subject to the supervision and orders of a court
or governmental authority, but only if the subject Material Debtor is (A)
the Special Servicer or (B) any Servicing Representative of the Special
Servicer that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB (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 or (B) any Servicing
Representative of the Special Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB (ITEM 1.03(b) ON FORM
8-K);
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(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 or
expressly permitted by this Agreement) that is required to be disclosed by
Regulation FD (17 C.F.R. Sections 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, (B) the Special
Servicer has determined, in accordance with the Servicing Standard, is
reasonably likely to have an adverse effect on payments to the Holders of
any Class of Registered Certificates or a material adverse effect on
payments to the Holders of any Class of Non-Registered Certificates, and
(C) is directly related to a 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 or (B) any Servicing
Representative of the Special Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB (ITEM 2 ON FORM 10-D AND
GENERAL INSTRUCTION J TO FORM 10-K);
(x) 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
8.15(b), 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
Mortgage Loan Seller, (C) the Trustee, (D) the Master Servicer or (E) any
Servicing Representative of the Special Servicer that constitutes a
Servicer contemplated by Item 1108(a)(3) of Regulation AB (GENERAL
INSTRUCTION J TO FORM 10-K);
(xi) 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 the
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
(xii) to the extent not otherwise disclosed in the Prospectus
Supplement, any specific relationship involving or relating to the Subject
Securitization Transaction or the
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Mortgage Loans contemplated by Item 1119(c) of Regulation AB between the
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" shall mean, with respect to each Specially
Serviced Mortgage Loan and each REO Mortgage Loan that relates to an REO
Property, the fee designated as such in, and payable to the Special Servicer
pursuant to, Section 3.11(c).
"Special Servicing Fee Rate" shall mean, with respect to each
Specially Serviced Mortgage Loan and each REO Mortgage Loan that relates to an
REO Property, 0.25% per annum.
"Specially Designated Mortgage Loan Documents" shall mean, with
respect to any Mortgage Loan, the following documents collectively:
(i) the original executed Mortgage Note for such Mortgage Loan
(or, alternatively, if the original executed Mortgage Note has been lost, a
lost note affidavit and indemnity with a copy of such Mortgage Note);
(ii) an original or copy of the Mortgage (with or without
recording information);
(iii) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such Mortgage Loan (or,
if such policy has not been issued, a "marked-up" pro forma title policy,
or an irrevocable, binding commitment to issue such title insurance
policy);
(iv) an original or copy of any Ground Lease and Ground Lease
estoppels, if any, relating to such Mortgage Loan; and
(v) with respect to Mortgage Loans secured by hospitality
properties only, the related franchise agreement (if any) and franchisor
comfort letter (if any).
provided that whenever the term "Specially Designated Mortgage Loan Documents"
is used to refer to documents actually received by the Trustee or by a Custodian
on its behalf, such term, with respect to any receipt or certification by the
Trustee or a Custodian on its behalf for documents described in clauses (iv) and
(v) of this definition, shall be deemed to include such documents only to the
extent the Trustee or a Custodian on its behalf has actual knowledge of their
existence.
"Specially Designated Servicing Action" means, with respect to each
Mortgage Loan and REO Property, any of the following actions--
(i) any foreclosure upon or comparable conversion (which may
include acquisitions of an REO Property) of the ownership of properties
securing such of the Specially Serviced Mortgage Loans as come into and
continue in default,
(ii) any modification, extension, amendment or waiver of a
monetary term (including the timing of payments, but excluding the waiver
of Default Charges) or any material non-monetary term (including any
material term relating to insurance) of a Specially Serviced Mortgage Loan,
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(iii) any modification, extension, amendment or waiver of a
material monetary term (excluding the waiver of Default Charges) or any
material non-monetary term (including any material term relating to
insurance) of a Performing Mortgage Loan,
(iv) any proposed sale of an REO Property (other than in
connection with the termination of the Trust Fund) for less than the
Purchase Price,
(v) any acceptance of a discounted payoff with respect to a
Specially Serviced Mortgage Loan,
(vi) any determination to bring a Mortgaged Property securing a
Specially Serviced Mortgage Loan or an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at a Mortgaged Property securing a Specially Serviced Mortgage Loan
or an REO Property,
(vii) any release of collateral for any Specially Serviced
Mortgage Loan, other than any release of collateral that (A) is required by
the terms of such Mortgage Loan (with no material discretion by the
mortgagee), (B) occurs upon satisfaction of such Mortgage Loan, or (C)
occurs in connection with a defeasance,
(viii) any release of a parcel of land with respect to a
Performing Mortgage Loan (other than parcels that were not given value in
the calculation of loan-to-value ratio in connection with the underwriting
of such Mortgage Loan), provided that in any event this clause (viii) shall
not apply to any release of collateral that (A) is required by the terms of
such Mortgage Loan (with no material discretion by the mortgagee), (B)
occurs upon satisfaction of such Mortgage Loan, (C) occurs in connection
with a defeasance, or (D) may be approved by the Master Servicer pursuant
to Section 3.20(c),
(ix) any acceptance of substitute or additional collateral for a
Mortgage Loan, other than any acceptance of substitute or additional
collateral that (A) is required by the terms of such Mortgage Loan (with no
material discretion by the mortgagee), (B) occurs in connection with a
defeasance, or (C) may be approved by the Master Servicer pursuant to
Section 3.20(c),
(x) any acceptance of a change in the property management company
or, if applicable, the hotel franchise for any Mortgaged Property, other
than as required by the terms of the related Mortgage Loan (with no
material discretion by the mortgagee), provided that, in the case of a
change in the property management company, this clause (x) has effect only
if the unpaid principal balance of the related Mortgage Loan is greater
than $5,000,000,
(xi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to any Mortgage Loan,
(xii) any determination by the Special Servicer not to maintain
or cause a borrower to maintain for a Mortgaged Property all-risk casualty
or other insurance required under the terms of the related Mortgage Loan,
and
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(xiii) any acceptance of an assumption agreement releasing a
borrower from liability under any Mortgage Loan;
provided that, as used in clauses (vii) through (x) above, the term
"material discretion" shall mean that the relevant decision is in the
discretion of the mortgagee, and such decision is not based upon the
satisfaction of specified objective conditions, the satisfactory delivery
of certain factual evidence or opinions or the satisfaction of any other
specified objective criteria that is set forth in the related Mortgage Loan
documents.
"Specially Serviced Mortgage Loan" shall mean, subject to the last
paragraph of this definition, any Mortgage Loan as to which any of the following
events has occurred:
(a) the related Mortgagor (or any related guarantor) has failed to
make when due any Monthly Payment (including a Balloon Payment), which
failure continues, or which failure the Master Servicer or (with the
consent of the Controlling Class Representative) the Special Servicer
determines, in each case in accordance with the Servicing Standard, will
continue, unremedied (without regard to any grace period) by the related
Mortgagor, any related guarantor or otherwise (i) except in the case of a
Balloon Mortgage Loan delinquent in respect of its Balloon Payment, for 120
days beyond the date on which the subject payment was due, or (ii) solely
in the case of a delinquent Balloon Payment, (A) for one (1) Business Day
beyond the date on which the subject Balloon Payment was due (unless clause
(B) below applies) or (B) in the case of a Balloon Mortgage Loan as to
which the related Mortgagor shall have delivered a refinancing commitment
acceptable to the Special Servicer prior to the date on which the subject
Balloon Payment was due, for 30 days beyond the date on which the subject
Balloon Payment was due (or for such shorter period ending on the date on
which it is determined that the refinancing could not reasonably be
expected to occur); or
(b) there shall have occurred a default (other than as described in
clause (a) above and other than an Acceptable Insurance Default) that the
Master Servicer or the Special Servicer has determined, in each case in
accordance with the Servicing Standard, (i) materially impairs the value of
the related Mortgaged Property as security for such Mortgage Loan or
otherwise materially adversely affects the interests of Certificateholders
(it being acknowledged and agreed that any default requiring a Servicing
Advance shall be deemed to materially and adversely affect the interests of
Certificateholders), and (ii) continues unremedied by the related
Mortgagor, any related guarantor or otherwise for either (A) one Business
Day (but only if, pursuant to the related loan documents, the subject
default gives rise to immediate acceleration without application of a cure
period under such Mortgage Loan) or (B) otherwise, the greater of (1) the
applicable grace period under the terms of such Mortgage Loan and (2) 30
days; or
(c) the Master Servicer or, with the consent of the Controlling Class
Representative, the Special Servicer shall have determined, in accordance
with the Servicing Standard, that (i) a default in the making of a Monthly
Payment on such Mortgage Loan, including a Balloon Payment, is likely to
occur and is likely to remain unremedied (without regard to any grace
period) by the related Mortgagor, any related guarantor or otherwise for at
least the applicable period contemplated by clause (a) of this definition
or (ii) a default (other than as described in clause (a) of this definition
and other than an Acceptable Insurance Default) is likely to occur under
such Mortgage Loan that will materially impair the value of the related
Mortgaged
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Property as security for such Mortgage Loan or otherwise materially
adversely affect the interests of Certificateholders and such default is
likely to remain unremedied for at least the applicable period contemplated
by clause (b) of this definition; or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law or
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the related Mortgagor and such decree or
order shall have remained in force and not dismissed for a period of 60
days; or
(e) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to such Mortgagor or of or relating to all or substantially all of
its property; or
(f) the related Mortgagor shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of any applicable insolvency or reorganization statute, make an assignment
for the benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(g) the Master Servicer shall have received notice of the commencement
of foreclosure or similar proceedings with respect to the related Mortgaged
Property;
provided, however, that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan when a Liquidation Event has occurred with respect to such
Mortgage Loan, when the related Mortgaged Property has become an REO Property
or, so long as at such time no circumstance identified in clauses (a) through
(g) above exists that would cause such Mortgage Loan to continue to be
characterized as a Specially Serviced Mortgage Loan, when:
(w) with respect to the circumstances described in clause (a) of this
definition, the related Mortgagor has made three consecutive full
and timely Monthly Payments under the terms of such 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, extension, waiver or amendment
granted or agreed to by the Master Servicer or the Special
Servicer pursuant to Section 3.20);
(x) with respect to the circumstances described in clause (b) of this
definition, the default is cured in the good faith, reasonable
judgment of the Special Servicer;
(y) with respect to the circumstances described in clauses (c), (d),
(e) and (f) of this definition, such circumstances cease to exist
in the good faith, reasonable judgment of the Special Servicer,
but, with respect to any bankruptcy or insolvency proceedings
described in clauses (d), (e) and (f), no later than the entry of
an order or decree dismissing such proceeding;
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(z) with respect to the circumstances described in clause (g) of this
definition, such proceedings are terminated.
The Special Servicer may conclusively rely on the Master Servicer's
determination as to whether a Servicing Transfer Event has occurred giving rise
to a Mortgage Loan's becoming a Specially Serviced Mortgage Loan.
"Startup Day" shall mean, with respect to each REMIC Pool, the day
designated as such in Section 10.01(c).
"Stated Maturity Date" shall mean, with respect to any Mortgage Loan,
the Due Date specified in the related Mortgage Note (as in effect on the Closing
Date) on which the last payment of principal is due and payable under the terms
of such Mortgage Note (as in effect on the Closing Date), without regard to any
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, extension,
waiver or amendment of such Mortgage Loan granted or agreed to by the Special
Servicer (or the Master Servicer, if applicable) pursuant to Section 3.20 and,
in the case of an ARD Mortgage Loan, without regard to its Anticipated Repayment
Date.
"Stated Principal Balance" shall mean, as of any date of
determination, with respect to any Mortgage Loan and any successor REO Mortgage
Loan with respect thereto, the Cut-off Date Balance of such Mortgage Loan, as
permanently reduced on each Distribution Date (to not less than zero) by (i)
that portion, if any, of the Principal Distribution Amount for such Distribution
Date allocable to such Mortgage Loan (or any such successor REO Mortgage Loan
with respect thereto), without giving effect to any adjustments pursuant to
Section 1.03 in connection with the calculation of the Adjusted Principal
Distribution Amount, and (ii) the principal portion of any Realized Loss
incurred in respect of such Mortgage Loan (or any such successor REO Mortgage
Loan with respect thereto) during the applicable related Collection Period
(provided that, if some or all of the principal portion of such Realized Loss
constitutes an Advance that previously reduced the Stated Principal Balance of
such Mortgage Loan or any successor REO Mortgage Loan with respect thereto by
operation of clause (i) above, then the amount of that Advance included in the
principal portion of such Realized Loss shall not further reduce the Stated
Principal Balance of such Mortgage Loan or any successor REO Mortgage Loan with
respect thereto under this clause (ii)). Notwithstanding the foregoing, if a
Liquidation Event occurs in respect of any Mortgage Loan or any related REO
Property, then the "Stated Principal Balance" of such Mortgage Loan or of any
successor REO Mortgage Loan with respect thereto, as the case may be, shall be
zero commencing as of the first Distribution Date following the end of the
applicable Collection Period in which such Liquidation Event occurred.
"Subject Securitization Transaction" shall mean the commercial
mortgage securitization transaction contemplated by this Agreement.
"Subordinate Certificate" shall mean any Class A-J, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class P, Class Q, Class S or Class T Certificate or any Residual
Interest Certificate.
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"Subsequent Exchange Act Reports" shall have the meaning assigned
thereto in Section 8.15(a).
"Sub-Servicer" shall mean any Person engaged by the Master Servicer or
the Special Servicer to perform servicing functions with respect to one or more
Mortgage Loans or REO Properties.
"Sub-Servicing Agreement" shall mean the written contract between the
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" shall mean 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.
"Successful Bidder" shall have the meaning assigned thereto in Section
7.01(c).
"Supplemental Report" shall mean have the meaning assigned thereto in
Section 3.12(d).
"Tax Administrator" shall mean any tax administrator appointed
pursuant to Section 8.13 (or, in the absence of any such appointment, the
Trustee).
"Tax Matters Person" shall mean, with respect to any REMIC Pool, the
Person designated as the "tax matters person" of such REMIC Pool in the manner
provided under Treasury regulations section 1.860F-4(d) and Treasury regulations
section 301.6231(a)(7)-1, which Person shall be the Plurality Residual Interest
Certificateholder in respect of the related Class of Residual Interest
Certificates.
"Tax Returns" shall mean the federal income tax return on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each REMIC Pool due to its classification as a REMIC
under the REMIC Provisions, and the federal income tax return to be filed on
behalf of the Grantor Trust (if created hereunder taking into account Section
2.05(b)) due to its classification as a grantor trust under the Grantor Trust
Provisions, together with any and all other information, reports or returns that
may be required to be furnished to the Certificateholders or filed with the IRS
under any applicable provisions of federal tax law or any other governmental
taxing authority under applicable state and local tax law.
"Total Principal Reinstatement Amount" shall mean, with respect to any
Distribution Date, an amount (to be calculated by the Trustee immediately
following, and after taking into account, all distributions to be made with
respect to the Certificates on such Distribution Date) equal to the lesser of:
(1) the amount, if any, by which (a) the aggregate Stated Principal Balance of
the Mortgage Pool that will be outstanding immediately following the subject
Distribution Date, exceeds (b) the aggregate of the Class Principal Balances of
all the Classes of Principal Balance Certificates, after taking into account the
distributions made with respect to the Certificates on the subject Distribution
Date, but prior to any adjustments to the Class Principal Balances of the
respective Classes of Principal Balance Certificates pursuant to Section 4.04 or
Section 4.05; and (2) the amount, if any, by which (a) the
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aggregate Loss Reimbursement Amount in respect of all the Classes of Principal
Balance Certificates for the subject Distribution Date, exceeds (b) the total
portion of such aggregate Loss Reimbursement Amount reimbursed in respect of all
of the Classes of Principal Balance Certificates on the subject Distribution
Date, if any, pursuant to Section 4.01(a) and/or Section 4.01(b).
"Transfer" shall mean any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement" shall have the meaning assigned
thereto in Section 5.02(d)(i)(B).
"Transferee" shall mean any Person who is acquiring, by Transfer, any
Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing of, by Transfer,
any Ownership Interest in a Certificate.
"Trust" shall mean the TIAA Seasoned Commercial Mortgage Trust
2007-C4, which is the common law trust created hereunder.
"Trust Fund" shall mean, collectively, all of the assets of the REMIC
Pools, the Grantor Trust (if created hereunder taking into account Section
2.05(b)) and the Loss of Value Reserve Fund.
"Trust-Related Litigation" shall have the meaning assigned thereto in
Section 3.26(a).
"Trustee" shall mean Xxxxx Fargo, in its capacity as trustee
hereunder, its successors in interest or any successor trustee appointed as
herein provided.
"Trustee Account" shall have the meaning assigned thereto in Section
3.06(a).
"Trustee Appointee" shall mean any Fiscal Agent, Authenticating Agent,
Certificate Registrar, Tax Administrator, Custodian, co-trustee or separate
trustee appointed or designated by the Trustee hereunder.
"Trustee Backup Certification" shall have the meaning assigned thereto
in Section 8.15(g).
"Trustee Fee" shall mean, with respect to each Distribution Date, an
amount equal to one-twelfth of the product of (i) the annual Trustee Fee Rate,
multiplied by (ii) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately prior to such Distribution Date.
"Trustee Fee Rate" shall mean 0.0009% per annum.
"Trustee Indemnification Agreement" shall mean the Trustee
Indemnification Agreement dated as of August 2, 2007, between the initial
Trustee, the Depositor, Xxxxxx Brothers and Xxxxxx Xxxxxxx.
"Trustee Liability" shall have the meaning assigned thereto in Section
8.05(b).
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"Trustee Reportable Event" shall mean 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 or
other agent of the Trustee or any Trustee Appointee is a party to such
agreement or has entered into such agreement on behalf of the Trust (ITEM
1.01 ON FORM 8-K);
(ii) the termination of a definitive agreement that is material to the
Subject Securitization Transaction (otherwise than by expiration of the
agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), but only if the
Trustee, any Servicing Representative or other agent 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);
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(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, the 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 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 (other than disclosure required or
expressly permitted pursuant to this Agreement) that is required to be
disclosed by Regulation FD (17 C.F.R. Sections 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
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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 has become an affiliate (as
defined in Rule 405 of the Securities Act) of any of (A) the Trust, (B) the
Mortgage Loan Seller, (C) the Master Servicer, (D) the Special Servicer,
(E) any Servicing Representative of the Trustee that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (F) any Trustee
Appointee (GENERAL INSTRUCTION J TO FORM 10-K);
(xxii) 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 the
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); and
(xxiii) 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 Mortgage Loan Seller or the Trust, on
the one hand, and 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" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction.
"UCC Financing Statement" shall mean a financing statement executed
(if required by the UCC) and filed pursuant to the UCC.
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"Uncertificated Accrued Interest" shall mean the interest accrued from
time to time with respect to any Loan REMIC Regular Interest, REMIC I Regular
Interest or REMIC II Regular Interest, the amount of which interest shall equal:
(a) in the case of any Loan REMIC Regular Interest for any Interest Accrual
Period, one-twelfth of the product of (i) the annual Loan REMIC Remittance Rate
applicable to such Loan REMIC Regular Interest for such Interest Accrual Period,
multiplied by (ii) the Uncertificated Principal Balance of such Loan REMIC
Regular Interest outstanding immediately prior to the related Distribution Date;
(b) in the case of any REMIC I Regular Interest for any Interest Accrual Period,
one-twelfth of the product of (i) the annual REMIC I Remittance Rate applicable
to such REMIC I Regular Interest for such Interest Accrual Period, multiplied by
(ii) the Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to the related Distribution Date; (c) in the case
of any REMIC II Regular Interest for any Interest Accrual Period, one-twelfth of
the product of (i) the annual REMIC II Remittance Rate applicable to such REMIC
II Regular Interest for such Interest Accrual Period, multiplied by (ii) the
Uncertificated Principal Balance of such REMIC II Regular Interest outstanding
immediately prior to the related Distribution Date. Each Loan REMIC Regular
Interest (if any), REMIC I Regular Interest and REMIC II Regular Interest shall
accrue interest on a 30/360 Basis.
"Uncertificated Distributable Interest" shall mean: (a) with respect
to any Loan REMIC Regular Interest for any Distribution Date, an amount of
interest equal to the amount of Uncertificated Accrued Interest in respect of
the subject Loan REMIC Regular Interest for the related Interest Accrual Period,
reduced (to not less than zero) by any portion of any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date attributable to the corresponding
Early Defeasance Mortgage Loan; (b) with respect to any REMIC I Regular Interest
for any Distribution Date, an amount of interest equal to the amount of
Uncertificated Accrued Interest in respect of the subject REMIC I Regular
Interest for the related Interest Accrual Period, reduced (to not less than
zero) by the product of (i) any Net Aggregate Prepayment Interest Shortfall for
such Distribution Date, multiplied by (ii) a fraction, the numerator of which is
the amount of Uncertificated Accrued Interest in respect of the subject REMIC I
Regular Interest for the related Interest Accrual Period, and the denominator of
which is the aggregate amount of Uncertificated Accrued Interest in respect of
all the REMIC I Regular Interests for the related Interest Accrual Period; and
(c) with respect to any REMIC II Regular Interest for any Distribution Date,
subject to Section 4.05(d), an amount of interest equal to the amount of
Uncertificated Accrued Interest in respect of the subject REMIC II Regular
Interest for the related Interest Accrual Period, reduced (to not less than
zero) by the product of (i) any Net Aggregate Prepayment Interest Shortfall for
such Distribution Date, multiplied by (ii) a fraction, the numerator of which is
the amount of Uncertificated Accrued Interest in respect of the subject REMIC II
Regular Interest for the related Interest Accrual Period, and the denominator of
which is the aggregate amount of Uncertificated Accrued Interest in respect of
all the REMIC II Regular Interests for the related Interest Accrual Period.
"Uncertificated Principal Balance" shall mean the principal balance of
any Loan REMIC Regular Interest, REMIC I Regular Interest or REMIC II Regular
Interest outstanding as of any date of determination. As of the Closing Date,
the Uncertificated Principal Balance of each Loan REMIC Regular Interest (if
any) and each REMIC I Regular Interest shall equal the Cut-off Date Balance of
the corresponding Mortgage Loan. As of the Closing Date, the Uncertificated
Principal Balance of each REMIC II Regular Interest shall equal the amount set
forth in the Preliminary Statement hereto as its initial "Uncertificated
Principal Balance." On each Distribution Date, the Uncertificated Principal
Balance of each REMIC II Regular Interest shall be reduced by all distributions
of principal deemed to have been made thereon on such Distribution Date pursuant
to Section 4.01(l), and shall be further
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reduced (subject to Section 4.05) on such Distribution Date by all Realized
Losses and Additional Trust Fund Expenses deemed to have been allocated thereto
on such Distribution Date pursuant to Section 4.04(b). On each Distribution
Date, the Uncertificated Principal Balance of each REMIC I Regular Interest
shall be 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(m), and shall be further reduced on such Distribution Date by all
Realized Losses and Additional Trust Fund Expenses deemed to have been allocated
thereto on such Distribution Date pursuant to Section 4.04(c). On each
Distribution Date, the Uncertificated Principal Balance of each Loan REMIC
Regular Interest (if any) shall be reduced by all distributions of principal
deemed to have been made in respect of such Loan REMIC Regular Interest on such
Distribution Date pursuant to Section 4.01(n), and shall be further reduced on
such Distribution Date by all Realized Losses and Additional Trust Fund Expenses
deemed to have been allocated thereto on such Distribution Date pursuant to
Section 4.04(d). Notwithstanding the foregoing, on any given Distribution Date,
the Uncertificated Principal Balance of any REMIC II Regular Interest shall be
subject to increase (and, when appropriate, shall be increased), as and to the
extent provided in Section 4.05(c).
"Underwriters" shall mean Xxxxxx Brothers, Morgan Stanley and their
respective successors in interest.
"United States Securities Person" shall mean any "U.S. person" as
defined in Rule 902(k) of Regulation S.
"United States Tax Person" shall mean a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision
thereof, or an estate whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise 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.
"Voting Rights" shall mean 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, 99% of the Voting Rights shall be allocated among the
Holders of the various Classes of the Principal Balance Certificates in
proportion to the respective Class Principal Balances of their Certificates, and
1% of the Voting Rights shall be allocated to the Holders of the Class X
Certificates. 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. No Voting Rights shall be
allocated to the Certificates that are not Regular Interest Certificates.
"Wachovia" means Wachovia Bank, National Association or its successors
in interest.
"Xxxxx Fargo" shall mean Xxxxx Fargo Bank, N.A. or its successors in
interest.
"Weighted Average REMIC I Remittance Rate" shall mean, with respect to
any Interest Accrual Period, the rate per annum equal to the weighted average,
expressed as a percentage and rounded to six decimal places, of the respective
REMIC I Remittance Rates in effect for the REMIC I
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Regular Interests for such Interest Accrual Period, weighted on the basis of the
respective Uncertificated Principal Balances of such REMIC I Regular Interests
outstanding immediately prior to the related Distribution Date.
"WHFIT" shall mean a "Widely Held Fixed Investment Trust" as that term
is defined in Treasury Regulations section 1.671-5(b)(22) or successor
provisions.
"WHFIT Regulations" shall mean Treasury Regulations section 1.671-5,
as amended.
"Workout Fee" shall mean the fee designated as such in, and payable to
the Special Servicer with respect to certain collections on each Corrected
Mortgage Loan pursuant to, Section 3.11(c).
"Workout Fee Rate" shall mean, with respect to each Corrected Mortgage
Loan as to which a Workout Fee is payable, 1.0%.
"Yield Maintenance Charge" shall mean the amount paid or payable, as
the context requires, as the result of a Principal Prepayment on, or other early
collection of principal of, a Mortgage Loan, which amount is not otherwise due
thereon in respect of principal or interest and has been calculated (based on
scheduled payments of interest and/or principal on such Mortgage Loan) to
compensate the holder for reinvestment losses based on the value of an interest
rate index at or near the time of prepayment. Any other prepayment premiums,
penalties and fees not so calculated will not be considered "Yield Maintenance
Charges". In addition, any Excess Defeasance Deposit Proceeds will not be
considered "Yield Maintenance Charges". In the event that a Yield Maintenance
Charge shall become due for any particular Mortgage Loan, the Master Servicer
shall be required to follow the terms and provisions contained in the applicable
Mortgage Note, provided, however, that, in the event the particular Mortgage
Note shall not specify the U.S. Treasuries which shall be used in determining
the discount rate or the reinvestment yield to be applied in such calculation,
the Master Servicer shall be required to use those U.S. Treasuries which shall
generate the lowest discount rate or reinvestment yield for the purposes
thereof. Accordingly, if either no U.S. Treasury issue, or more than one U.S.
Treasury issue, shall coincide with the term over which the Yield Maintenance
Charge shall be calculated (which depending on the applicable Mortgage Note is
based on the remaining average life of the subject Mortgage Loan or the actual
term remaining through the related Stated Maturity Date or Anticipated Repayment
Date, as applicable), the Master Servicer shall use the applicable U.S. Treasury
whose reinvestment yield is the lowest, with such yield being based on the bid
price for such issue as published in The Wall Street Journal on the date that is
14 days prior to the date that the Yield Maintenance Charge shall become due and
payable (or, if such bid price is not published on that date, the next preceding
date on which such bid price is so published) and converted to a monthly
compounded nominal yield. The monthly compounded nominal yield ("MEY") is
derived from the reinvestment yield or discount rate and shall be defined as MEY
= (12 X [{(1+ "BEY"/2) ^1/6}-1]) X 100, where BEY is defined as the U.S.
Treasury Reinvestment Yield which is in decimal form and not in percentage, and
1/6 is the exponential power to which a portion of the equation is raised. For
example, using a BEY of 5.50%, the MEY = (12 X [{(1+ .055/2) ^ 0.16667}- 1]) X
100 where .055 is the decimal version of the percentage 5.5% and 0.16667 is the
decimal version of the exponential power. The MEY in the above calculation is
5.44%.
"Yield Maintenance Treasury Rate" shall mean, for purposes of
calculating a Discount Rate, the yield calculated by the Master Servicer by
linear interpolation of the yields, as such yields are
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reported in Federal Reserve Statistical Release H.15-Selected Interest Rates
(519), under the heading U.S. Government Securities/Treasury Constant
Maturities, with respect to the maturity dates set forth thereunder, one longer
and one shorter, most nearly approximating the maturity date (or, in the case of
an ARD Mortgage Loan or any successor REO Mortgage Loan with respect thereto,
the Anticipated Repayment Date) of the relevant prepaid Mortgage Loan or REO
Mortgage Loan. If Federal Reserve Statistical Release H.15 is no longer
published or does not indicate the information set forth above, then the Master
Servicer shall select a comparable publication or source for the purposes of
determining the Yield Maintenance Treasury Rate.
"YM Principal Balance Certificates" shall mean, collectively, the
Class X-0, Xxxxx X-0, Class A-3, Class A-1A, Class A-J, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J and Class K Certificates.
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as
well as the singular, and the use of any gender herein shall be deemed to
include the other gender;
(ii) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto", "hereby"
and other words of similar import refer to this Agreement as a whole and
not to any particular provision; and
(vi) the terms "include" or "including" shall mean without
limitation by reason of enumeration.
SECTION 1.03. Certain Adjustments to the Principal Distributions on
the Certificates.
(a) If any party hereto is (i) reimbursed out of general collections
on the Mortgage Pool on deposit in the Custodial Account for any unreimbursed
Advance that has been or is determined to be a Nonrecoverable Advance (together
with interest accrued and payable thereon pursuant to Section 3.11(g) or Section
4.03(d), as applicable, to the extent such interest was paid hereunder from a
source other than related Default Charges or Loss of Value Payments) or (ii)
paid any Workout Fee or Liquidation Fee with respect to a collection of
principal out of general collections on the Mortgage Pool
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on deposit in the Custodial Account, then (for purposes of calculating
distributions on the Certificates) each such reimbursement, payment of interest
and payment of such portion of such fees shall be deemed to have been made:
first, out of any amounts then on deposit in the Custodial Account
that represent payments or other collections of principal Received by the Trust
with respect to the Mortgage Loans and/or REO Mortgage Loans in the Loan Group
that includes the Mortgage Loan or REO Mortgage Loan in respect of which (i)
such Nonrecoverable Advance was made or (ii) such Workout Fee or Liquidation Fee
was paid with respect to a collection of principal, and which amounts, but for
their application to reimburse such Nonrecoverable Advance (and/or to pay
interest thereon), would be included in the Available Distribution Amount for
the related Distribution Date;
second, out of any amounts then on deposit in the Custodial Account
that represent payments or other collections of principal Received by the Trust
with respect to the Mortgage Loans or REO Mortgage Loans in the Loan Group that
does not include the Mortgage Loan or REO Mortgage Loan in respect of which (i)
such Nonrecoverable Advance was made or (ii) such Workout Fee or Liquidation Fee
was paid with respect to a collection of principal, and which amounts, but for
their application to reimburse such Nonrecoverable Advance (and/or to pay
interest thereon), would be included in the Available Distribution Amount for
the related Distribution Date;
third, out of any amounts then on deposit in the Custodial Account
that represent any other payments and/or collections Received by the Trust with
respect to the Mortgage Loans or REO Mortgage Loans in the Loan Group that
includes the Mortgage Loan or REO Mortgage Loan in respect of which (i) such
Nonrecoverable Advance was made or (ii) such Workout Fee or Liquidation Fee was
paid with respect to a collection of principal, and which amounts, but for their
application to reimburse such Nonrecoverable Advance (and/or to pay interest
thereon), would be included in the Available Distribution Amount for the related
Distribution Date;
fourth, out of any amounts then on deposit in the Custodial Account
that represent any other payments and/or collections Received by the Trust with
respect to the Mortgage Loans or REO Mortgage Loans in the Loan Group that does
not include the Mortgage Loan or REO Mortgage Loan in respect of which (i) such
Nonrecoverable Advance was made or (ii) such Workout Fee or Liquidation Fee was
paid with respect to a collection of principal, and which amounts, but for their
application to reimburse such Nonrecoverable Advance (and/or to pay interest
thereon), would be included in the Available Distribution Amount for the related
Distribution Date; and
fifth, out of any other amounts then on deposit in the Custodial
Account that may be available to (i) reimburse the subject Nonrecoverable
Advance and/or to pay interest thereon (ii) or pay the subject Workout Fee or
Liquidation Fee with respect to a collection of principal, as applicable.
(b) If and to the extent that any payment or other collection of
principal of any Mortgage Loan or REO Mortgage Loan is deemed to be applied in
accordance with Section 1.03(a) to make any payment or reimbursement
contemplated thereby, and further if and to the extent that such payment or
other collection of principal constitutes part of the Principal Distribution
Amount for any Distribution Date, then: (i) the Adjusted Principal Distribution
Amount for such Distribution Date shall exclude such payment or other collection
of principal; and (ii) in accordance with clause (c) of the definition of
"Adjusted Principal Distribution Amount", in order to calculate the Adjusted
Principal Distribution Amount for such Distribution Date, the amount of such
payment or other collection of
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principal shall be subtracted from the Principal Distribution Amount for such
Distribution Date. In addition, for purposes of determining the respective
portions of the Adjusted Principal Distribution Amount for any Distribution Date
that are attributable to the two Loan Groups, the Trustee shall take into
account whether any payment or other collection of principal excluded from such
Adjusted Principal Distribution Amount in accordance with the preceding sentence
relates to a Mortgage Loan or REO Mortgage Loan, as the case may be, in Loan
Group No. 1 or Loan Group No. 2.
(c) If and to the extent that (1) any Advance is determined to be a
Nonrecoverable Advance, (2) such Advance is reimbursed or interest thereon is
paid out of general principal collections on the Mortgage Pool as contemplated
by Section 1.03(a) above and (3) the particular item for which such Advance was
originally made or such interest on such Advance, as the case may be, is
subsequently Received by the Trust (in whole or in part) out of payments or
other collections in respect of the related Mortgage Loan or REO Mortgage Loan
(such item or such interest on such Advance, as the case may be, if and to the
extent so collected, a "Recovered Amount"), then: (i) without duplication of any
amounts already included therein, the Adjusted Principal Distribution Amount for
the Distribution Date that corresponds to the related Collection Period in which
such item or such interest on such Advance, as the case may be, was Received by
the Trust shall include such Recovered Amount; (ii) in accordance with clause
(b) of the definition of "Adjusted Principal Distribution Amount", in order to
calculate the Adjusted Principal Distribution Amount for the Distribution Date
that corresponds to the related Collection Period in which such item was
Received by the Trust, such Recovered Amount (to the extent not already included
therein) shall be added to the Principal Distribution Amount for such
Distribution Date; and (iii) such Advance or such interest thereon, as the case
may be, to the extent of such Recovered Amount, will no longer be considered to
have been reimbursed or paid, as the case may be, out of general principal
collections on the Mortgage Pool. In addition, if and to the extent that any
Advance is determined to be a Nonrecoverable Advance, interest on such Advance
is paid out of general principal collections on the Mortgage Pool as
contemplated by Section 1.03(a) above and such interest on such Advance is
subsequently reimbursed to the Trust out of Default Charges or Loss of Value
Payments collected on the Mortgage Loan or REO Mortgage Loan as to which such
Advance was made, then: (i) the Adjusted Principal Distribution Amount for the
Distribution Date that corresponds to the related Collection Period in which
such Default Charges were Received by the Trust or such Loss of Value Payments
were so applied shall include the portion of such Default Charges or Loss of
Value Payments that was applied to reimburse the Trust for such interest on such
Advance; (ii) in accordance with clause (b) of the definition of "Adjusted
Principal Distribution Amount", in order to calculate the Adjusted Principal
Distribution Amount for the Distribution Date that corresponds to the related
Collection Period in which such Default Charges were Received by the Trust or
such Loss of Value Payments were so applied, an amount equal to the portion of
such Default Charges or Loss of Value Payments that was applied to reimburse the
Trust for such interest on such Advance shall be added to the Principal
Distribution Amount for such Distribution Date; and (iii) such interest on such
Advance, to the extent that the Trust was reimbursed for such interest out of
such Default Charges or such Loss of Value Payments, will no longer be
considered to have been paid out of general principal collections on the
Mortgage Pool. In addition, for purposes of determining the respective portions
of the Adjusted Principal Distribution Amount for any Distribution Date that are
attributable to the two Loan Groups, the Trustee shall take into account whether
any Recovered Amount, Default Charges or Loss of Value Payments included in such
Adjusted Principal Distribution Amount in accordance with the foregoing
sentences of this Section 1.03(c) relates to a Mortgage Loan or REO Mortgage
Loan, as the case may be, in Loan Group No. 1 or Loan Group No. 2; provided
that, if the Nonrecoverable Advance or interest thereon to which such Recovered
Amount, Default Charges or Loss of Value Payments, as the case may
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be, corresponds was deemed reimbursed or paid, as the case may be, out of
payments and other collections of principal attributable to both Loan Groups,
then such Recovered Amount, Default Charges or Loss of Value Payments, as the
case may be, shall be deemed allocated to the two Loan Groups, in each case up
to the amount of payments and other collections of principal attributable
thereto that were deemed applied to reimburse or pay, as the case may be, such
Nonrecoverable Advance or interest thereon, in the reverse order contemplated by
Section 1.03(a).
(d) Nothing contained in this Section 1.03 is intended to limit the
ability of any party hereto that is entitled to reimbursement hereunder for any
unreimbursed Advances that have been or are determined to be Nonrecoverable
Advances (together with interest accrued and payable thereon pursuant to Section
3.11(g) or Section 4.03(d)) to be reimbursed from collections of principal
Received by the Trust with respect to the Mortgage Pool. Instead the order of
priority set forth in Section 1.03(a) is a deemed allocation only for purposes
of calculating distributions on the Certificates.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Creation of Trust; Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law trust
be established pursuant to this Agreement and the laws of the State of New York
and that such trust be designated as "TIAA Seasoned Commercial Mortgage Trust
2007-C4". Xxxxx Fargo is hereby appointed, and does hereby agree, to act as
Trustee hereunder and, in such capacity, to hold the Trust Fund in trust for the
exclusive use and benefit of all present and future Certificateholders.
The Depositor, concurrently with the execution and delivery hereof,
does hereby assign, sell, transfer, set over and otherwise convey to the Trustee
in trust, without recourse, for the benefit of the Certificateholders, all the
right, title and interest of the Depositor in, to and under (i) the Mortgage
Loans, (ii) the Mortgage Loan Purchase Agreement, and (iii) all other assets
included or to be included in the Trust Fund. Such assignment includes all
interest and principal received or receivable on or with respect to the Mortgage
Loans and due after the Cut-off Date.
The parties hereto acknowledge and agree that, notwithstanding Section
11.07, the transfer of the Mortgage Loans and the related rights and property
accomplished hereby is absolute and is intended by them to constitute a sale.
After the Depositor's transfer of the Mortgage Loans to the Trustee pursuant to
this Section 2.01(a), the Depositor shall not take any action inconsistent with
the Trust's ownership of the Mortgage Loans.
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.
(b) In connection with the Depositor's assignment pursuant to Section
2.01(a) above, the Mortgage Loan Seller has agreed pursuant to the Mortgage Loan
Purchase Agreement, on or before the Closing Date, to deliver to and deposit
with (or cause to be delivered to and deposited with): (i) the Trustee or a
Custodian appointed thereby, the Mortgage File for each Mortgage Loan with
copies of each Mortgage File to be delivered by the Trustee to, upon request,
the Master Servicer (and at the expense of the Trustee and not at the expense of
the Trust Fund), within 10 Business Days of such request; and (ii) the Master
Servicer (or, at the direction of the Master Servicer, to the appropriate
Sub-Servicer), all unapplied Escrow Payments and Reserve Funds in the possession
or under the control of the Mortgage Loan Seller, that relate to any Mortgage
Loan. None of the Trustee, any Custodian, the Master Servicer or the Special
Servicer shall be liable for any failure by the Mortgage Loan Seller to comply
with the document delivery requirements of the Mortgage Loan Purchase Agreement
and this Section 2.01(b).
(c) The Mortgage Loan Seller has covenanted in the Mortgage Loan
Purchase Agreement that it shall retain with respect to each Mortgage Loan, an
Independent Person (each such Person, a "Recording Agent") through which the
Mortgage Loan Seller shall: (i) promptly (and in any event within 45 days
following the later of the Closing Date and the date on which all necessary
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recording information is available to the subject Recording Agent) submit for
recording in the appropriate public office for real property records each
related assignment of Mortgage and assignment of Assignment of Leases in favor
of the Trustee and described under clause (iv) of the definition of "Mortgage
File"; and (ii) cause each such assignment of Mortgage and assignment of
Assignment of Leases to be delivered to the Trustee following its return by the
appropriate public office for real property records, with copies of any such
returned assignments to be delivered by the Trustee to the Master Servicer, at
the expense of the Mortgage Loan Seller, at least every 90 days after the
Closing Date (or at such additional times upon the request of the Master
Servicer if reasonably necessary for the ongoing administration and/or servicing
of the related Mortgage Loan by the Master Servicer); provided that, in those
instances where the public recording office retains the original assignment of
Mortgage or assignment of Assignment of Leases, the Trustee shall obtain a
certified copy of the recorded original.
Notwithstanding the foregoing, the Mortgage Loan Seller may request
the Trustee to submit for recording any of the assignments of Mortgage and/or
assignments of Assignment of Leases referred to in the prior paragraph, and in
such event, the Mortgage Loan Seller shall cause any such unrecorded or unfiled
document to be delivered to the Trustee. The Trustee shall promptly undertake to
submit for recording or filing any such document upon its receipt thereof.
Each assignment of Mortgage and assignment of Assignment of Leases
referred to in the prior two paragraphs that is submitted for recording shall
reflect that it should be returned by the public recording office to the Trustee
or its agent following recording; provided that, in those instances where the
public recording office retains the original assignment of Mortgage or
assignment of Assignment of Leases, the Trustee shall obtain therefrom a
certified copy of the recorded original. At least every 90 days after the
Closing Date (or at additional times upon the request of the Master Servicer if
reasonably necessary for the ongoing administration and/or servicing of the
related Mortgage Loan by the Master Servicer) and at the expense of the Mortgage
Loan Seller, the Trustee shall forward to the Master Servicer a copy of any of
the aforementioned assignments of Mortgage and/or assignments of Assignment of
Leases that have been received by the Trustee.
The Mortgage Loan Purchase Agreement provides that the Mortgage Loan
Seller shall bear the out-of-pocket costs and expenses of the recording referred
to in the first two paragraphs of this Section 2.01(c) with respect to all
Mortgage Loans.
If any of the assignments of Mortgage and/or assignments of Assignment
of Leases referred to in the first two paragraphs of this Section 2.01(c)
relating to any Mortgage Loan are lost or returned unrecorded because of a
defect therein, then the Trustee shall direct the Mortgage Loan Seller (pursuant
to the Mortgage Loan Purchase Agreement) promptly to prepare or cause the
preparation of a substitute therefor or to cure such defect, as the case may be,
and to deliver to the Trustee the substitute or corrected document. The Trustee
shall upon receipt from the Mortgage Loan Seller cause the same to be duly
recorded.
In addition to the foregoing, the Mortgage Loan Seller shall be
required, at the expense of the Mortgage Loan Seller and pursuant to the
Mortgage Loan Purchase Agreement, with respect to each Mortgage Loan secured by
a hotel or hospitality property: (i) to promptly (and in any event within 45
days following the Closing Date) file or cause to be filed in the appropriate
public office for UCC Financing Statements, each related assignment of UCC
Financing Statement prepared by or on behalf of the Mortgage Loan Seller in
favor of the Trustee and described under clause (xiv) of the definition of
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"Mortgage File"; and (ii) to cause each such assignment of UCC Financing
Statement to be delivered to the Trustee following its return by the appropriate
public filing office for UCC Financing Statements, with copies of any such
returned assignments to be delivered by the Trustee to the Master Servicer, at
the expense of the Mortgage Loan Seller, at least every 90 days after the
Closing Date (or at such additional times upon the request of the Master
Servicer if reasonably necessary for the ongoing administration and/or servicing
of the related Mortgage Loan by the Master Servicer). The Mortgage Loan Seller
has agreed, pursuant to the Mortgage Loan Purchase Agreement, to (i) cause each
assignment of UCC Financing Statement referred to in the prior sentence that is
filed by or on behalf of the Mortgage Loan Seller to reflect that the file copy
thereof should be returned to the Trustee or its agent following filing, and
(ii) to forward to the Trustee filing confirmation, if any, received by the
Mortgage Loan Seller in connection with assignments of UCC Financing Statements
filed in accordance with this paragraph.
(d) In connection with the Depositor's assignment pursuant to Section
2.01(a) above, the Mortgage Loan Seller has agreed (pursuant to the Mortgage
Loan Purchase Agreement) to deliver and deposit with (or cause to be delivered
to and deposited with), the Master Servicer (or, at the direction of the Master
Servicer, to and with the applicable Sub-Servicer), within 45 days of the
Closing Date, the Mortgage Loan Origination Documents that relate to each
Mortgage Loan; provided that the Mortgage Loan Seller shall not be required to
deliver any draft documents, privileged or other communications or
correspondence, credit underwriting or due diligence analyses or information,
credit committee briefs or memoranda or other internal approval documents or
data or internal worksheets, memoranda, communications or evaluations.
The Master Servicer shall review the documents with respect to each
Mortgage Loan delivered by the Mortgage Loan Seller pursuant to or as
contemplated by the immediately preceding paragraph and provide to the Mortgage
Loan Seller, with a copy to the Controlling Class Representative and the Special
Servicer, a certificate in the form of Exhibit U attached hereto (the "Master
Servicer Certification") within 90 days of the Closing Date acknowledging its
(or, if the Master Servicer has directed that such documents be delivered only
to the applicable Sub-Servicer, the applicable Sub-Servicer's) receipt as of the
date of the Master Servicer Certification of such documents actually received;
provided that such review shall be limited to identifying the document received,
the Mortgage Loan to which it purports to relate, that it appears regular on its
face and that it appears to have been executed (where appropriate).
Notwithstanding anything to the contrary set forth herein, to the extent the
Mortgage Loan Seller has not been notified in writing of its failure to deliver
any document with respect to a Mortgage Loan required to be delivered pursuant
to or as contemplated by the immediately preceding paragraph prior to the date
occurring 18 months following the date of the Master Servicer Certification, the
Mortgage Loan Seller shall have no obligation to provide such document.
The Master Servicer shall hold all funds, documents and records
received by it in accordance with this Section 2.01(d) (as well as any funds
received by it pursuant to Section 2.01(b)) on behalf of the Trustee in trust
for the benefit of the Certificateholders.
(e) In connection with the obligations of the Master Servicer
hereunder, with regard to each Mortgage Loan that is secured by the interests of
the related Mortgagor in a hospitality property and each Mortgage Loan that has
a related letter of credit, the Mortgage Loan Seller will be obligated under the
Mortgage Loan Purchase Agreement to, deliver to and deposit with the Master
Servicer, on or
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before the Closing Date, any related franchise agreement and franchise comfort
letter and the original of such letter of credit.
(f) It is not intended that this Agreement create a partnership or a
joint-stock association.
SECTION 2.02. Acceptance of Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
hereby accepts receipt, directly or through a Custodian on its behalf, of (i)
the Mortgage Loans and all documents delivered to it that constitute portions of
the related Mortgage Files and (ii) all other assets delivered to it and
included in the Trust Fund, in good faith and without notice of any adverse
claim, and declares that it or a Custodian on its behalf holds and will hold
such documents and any other documents subsequently received by it that
constitute portions of the Mortgage Files, and that it holds and will hold the
Mortgage Loans and such other assets, together with any other assets
subsequently delivered to it that are to be included in the Trust Fund, in trust
for the exclusive use and benefit of all present and future Certificateholders.
In connection with the foregoing, the Trustee hereby certifies to each of the
other parties hereto, the Mortgage Loan Seller and each Underwriter that, as to
each Mortgage Loan, except as specifically identified in the Schedule of
Exceptions to Mortgage File Delivery attached hereto as Schedule III, (i) the
Specially Designated Mortgage Loan Documents are in its possession or the
possession of a Custodian on its behalf, and (ii) the original Mortgage Note
(or, if accompanied by a lost note affidavit, the copy of such Mortgage Note)
received by it or any Custodian with respect to such Mortgage Loan has been
reviewed by it or by such Custodian on its behalf and (A) appears regular on its
face (handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (B) appears to have been executed
(where appropriate) and (C) purports to relate to such Mortgage Loan.
(b) The Trustee or a Custodian on its behalf shall review the
documents delivered to it or such Custodian with respect to each Mortgage Loan
(such review to be conducted with respect to each document so delivered, prior
to the date that a certification or deemed certification, as applicable, is
required to be delivered in accordance with the following sentence), and the
Trustee shall, or shall cause a Custodian on its behalf to, subject to Sections
2.01, 2.02(c) and 2.02(d), certify (at the times and in the manner set forth
below) to each of the other parties hereto, the Mortgage Loan Seller and each
Underwriter, that, as to each Mortgage Loan then subject to this Agreement
(except as specifically identified in any exception report annexed to such
certification or delivered with a deemed certification, as applicable): (A) all
documents specified in clauses (i) through (viii), (xii), (xiv) (without regard
to the second parenthetical in such clause (xiv)) and (xvii) through (xix) of
the definition of "Mortgage File", are in its possession or the possession of a
Custodian on its behalf; (B) the recordation/filing contemplated by Section
2.01(c) has been completed (based solely on receipt by the Trustee or by a
Custodian on its behalf of the particular recorded/filed documents); (C) all
documents received by it or any Custodian with respect to such Mortgage Loan
have been reviewed by it or by such Custodian on its behalf and (1) appear
regular on their face (handwritten additions, changes or corrections shall not
constitute irregularities if initialed by the Mortgagor), (2) appear to have
been executed (where appropriate) and (3) purport to relate to such Mortgage
Loan; and (D) based on the examinations referred to in Section 2.02(a) above and
this Section 2.02(b) and only as to the foregoing documents, the information set
forth in the Mortgage Loan Schedule with respect to the items specified in
clauses (v) and (vi)(B) of the definition of "Mortgage Loan Schedule" accurately
reflects the information set forth
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in the Mortgage File. The certification referred to in the first sentence of
this Section 2.02(b) shall be delivered by the Trustee or a Custodian on its
behalf in writing: (i) whether or not any exceptions are noted, substantially in
the form of Exhibit C hereto (with an exception report annexed thereto), on or
about the 60th day following the Closing Date; and (ii) if any exceptions are
noted, substantially in the form of Exhibit C hereto (with an exception report
annexed thereto), upon the earliest to occur of (X) the second anniversary of
the Closing Date, (Y) the day on which all material exceptions have been removed
and (Z) the day on which the Mortgage Loan Seller has repurchased the last
affected Mortgage Loan); and (iii) if any exceptions are noted following the
initial certification in clause (i) of this sentence, in the form of an updated
exception report, on or about the 90th day following the Closing Date and
monthly thereafter until the final certification in clause (ii) of this sentence
is delivered (and upon and by delivery of each such updated exception report the
Trustee shall be deemed to have made the certifications set forth in clauses (A)
through (D) of the first sentence of this Section 2.02(b) as to each Mortgage
Loan then subject to this Agreement, except as specifically identified in such
updated exception report). If the Trustee's obligation to deliver the
certifications contemplated in this subsection terminates because two years have
elapsed since the Closing Date, the Trustee shall (or shall cause a Custodian on
its behalf to) deliver a comparable certification, upon request, to any party
hereto and/or any Underwriter.
(c) None of the Trustee, the Master Servicer, the Special Servicer or
any Custodian is under any duty or obligation to inspect, review or examine any
of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, binding, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. Furthermore, none of the Trustee, the Master Servicer, the Special
Servicer or any Custodian shall have any responsibility for determining whether
the text of any assignment or endorsement is in proper or recordable form,
whether the requisite recording of any document is in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction.
(d) It is understood that the scope of the Trustee's review of the
Mortgage Files is limited solely to confirming that the documents specified in
clauses (i) through (viii), (xii), (xiv) and (xvii) through (xix) of the
definition of "Mortgage File" have been received and such additional information
as will be necessary for delivering the certifications required by Sections
2.02(a) and (b) above.
(e) The Trustee, directly or through a Custodian retained by it,
shall: (i) provide for the safekeeping and preservation of the Mortgage Files
with respect to the 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 standards; (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. Repurchase of Mortgage Loans for Document Defects and
Breaches of Representations and Warranties.
(a) If any party hereto (other than the Depositor) discovers or
receives written notice, with respect to any Mortgage Loan, that (i) any
document constituting a part of the related Mortgage
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File pursuant to clauses (i) through (xix) has not been executed (if applicable)
or is missing (each, a "Document Defect") or (ii) there exists a breach of any
representation or warranty of the Mortgage Loan Seller made pursuant to Section
3(b) of the Mortgage Loan Purchase Agreement with respect to any Mortgage Loan
(a "Breach"), then such party shall give prompt written notice thereof to the
other parties hereto and the Controlling Class Representative. If the Mortgage
Loan Seller receives written notice of a Document Defect or a Breach with
respect to any Mortgage Loan, and such Document Defect or Breach, as of the date
specified in the fourth paragraph of this Section 2.03(a), materially and
adversely affects the value of the subject Mortgage Loan, then such Document
Defect shall constitute a "Material Document Defect" or such Breach shall
constitute a "Material Breach", as the case may be.
Promptly upon becoming aware of any Material Document Defect or
Material Breach with respect to a Mortgage Loan, the Trustee shall deliver a
Seller Notification to the Mortgage Loan Seller, the Master Servicer and the
Special Servicer and shall require the Mortgage Loan Seller, within the time
period and subject to the conditions provided for in the Mortgage Loan Purchase
Agreement, except as otherwise contemplated by Sections 2.03(c), 2.03(d) and
2.03(e), to cure such Material Document Defect or Material Breach, as the case
may be, in all material respects, or repurchase the affected Mortgage Loan or
any related REO Property at the applicable Purchase Price by wire transfer of
immediately available funds to the Custodial Account. The parties acknowledge
that neither delivery of a certification or schedule of exceptions to the
Mortgage Loan Seller pursuant to Section 2.02(b) or otherwise, nor possession of
such certification or schedule by the Mortgage Loan Seller shall, in and of
itself, constitute delivery of notice of any Material Document Defect or
Material Breach or knowledge or awareness by the Mortgage Loan Seller of any
Material Document Defect or Material Breach.
If, during a period of deferral by the Mortgage Loan Seller of its
cure and repurchase obligations as provided in Section 5 of the Mortgage Loan
Purchase Agreement, the Mortgage Loan that is the subject of the Material
Document Defect either becomes a Specially Serviced Mortgage Loan or becomes the
subject of a proposed or actual assumption of the obligations of the related
Mortgagor under such Mortgage Loan, then (i) any party to this Agreement that
becomes aware of such event shall deliver a Seller Notification to such effect
(unless a Seller Notification with respect to such event has already been
delivered by another party) to the Master Servicer, the Special Servicer, the
Trustee and the Mortgage Loan Seller, and (ii) the Trustee, upon becoming aware
of such event, shall deliver a Seller Notification to the Master Servicer, the
Special Servicer and the Mortgage Loan Seller, providing notice of such event
and directing the Mortgage Loan Seller to cure the subject Material Document
Defect within 15 days of receipt of such Seller Notification. If, upon the
expiration of such 15-day period, the Mortgage Loan Seller has failed to cure
the subject Material Document Defect, then the Master Servicer or the Special
Servicer, as applicable, shall be entitled (but not obligated) to perform the
obligations of the Mortgage Loan Seller with respect to curing the subject
Material Document Defect; and, upon electing to perform such obligations, the
Master Servicer or the Special Servicer, as applicable, shall promptly deliver a
Seller Notification to such effect. In connection with the preceding sentence,
the Mortgage Loan Seller will be obligated under the Mortgage Loan Purchase
Agreement to pay all reasonable actual out-of-pocket costs and expenses in
connection with the applicable servicer's effecting such cure.
Provided that if any Seller Notification with respect to a Material
Document Defect or Material Breach is received by the Mortgage Loan Seller, in
accordance with the provisions of this Section 2.03, within 24 months of the
Closing Date, the material and adverse effect of the subject Document Defect or
Breach shall be determined as of the date of the Mortgage Loan Purchase
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Agreement. After the expiration of 24 months following the Closing Date, the
material and adverse effect of any Document Defect or Breach that was not the
subject of another Seller Notification received by the Mortgage Loan Seller, in
accordance with the provisions of this Section 2.03, within 24 months of the
Closing Date, shall be determined as of the date of such Seller Notification.
If, in connection with any Material Breach, the Mortgage Loan Seller
is obligated to repurchase any Mortgage Loan pursuant to the Mortgage Loan
Purchase Agreement, then such obligation shall extend to any REO Mortgage Loan
with respect thereto; provided that (i) the subject Material Breach existed as
to the subject predecessor Mortgage Loan prior to the date the related Mortgaged
Property became an REO Property or within 90 days thereafter, and (ii) the
Mortgage Loan Seller had received, no later than 90 days following the date on
which the related Mortgaged Property became an REO Property, a Seller
Notification from the Trustee regarding the occurrence of the subject Material
Breach and directing such party to repurchase the subject Mortgage Loan.
(b) In connection with the events in Section 2.03(a), the Trustee
shall prepare and deliver, in each case promptly upon becoming aware of such
event, to the Master Servicer, the Special Servicer and the Mortgage Loan
Seller, a Seller Notification identifying and describing the circumstances
identified in the definition of "Seller Notification" (unless, in the case of an
event described in clauses (iii), (iv) and/or (vi), as applicable, of the
definition of "Seller Notification", a Seller Notification with respect to such
event has already been delivered by the Master Servicer or the Special
Servicer). Further, in connection with the events in Section 2.03(a), the Master
Servicer or the Special Servicer, as applicable, shall prepare and deliver, in
each case promptly upon becoming aware of such event, to the other such
servicer, the Trustee and the Mortgage Loan Seller, a Seller Notification
identifying and describing the circumstances identified in clauses (iii), (iv)
and/or (vi), as applicable, of the definition of "Seller Notification" (unless
such notification has already been delivered). A copy of each such Seller
Notification shall also be delivered to the Controlling Class Representative
and, in the case of an event described in clauses (v) and/or (vii) of the
definition of "Seller Notification", to the Mortgage Loan Seller, to the extent
the Trustee, Master Servicer or Special Servicer, as applicable, knows the
identity of such person.
(c) If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased by the Mortgage Loan Seller as
contemplated by this Section 2.03, then, prior to the subject repurchase, the
Mortgage Loan Seller, or its designee shall use its reasonable efforts, subject
to the terms of the related Mortgage Loan(s), to prepare and, to the extent
necessary and appropriate, have executed by the related Mortgagor and record,
such documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loan(s) in such Cross-Collateralized Group that are to be
repurchased, on the one hand, and the remaining Mortgage Loan(s) therein, on the
other hand, such that those two groups of Mortgage Loans are each secured only
by the Mortgaged Properties identified in the Mortgage Loan Schedule as directly
corresponding thereto; provided that no such termination shall be effected
unless and until (i) the Controlling Class Representative, if one is then
acting, has consented (which consent shall not be unreasonably withheld and
shall be deemed to have been given, if no written objection is received by the
Mortgage Loan Seller, within ten (10) Business Days of the Controlling Class
Representative's receipt of a written request for such consent) and (ii) the
Trustee has received from the Mortgage Loan Seller (A) an Opinion of Counsel to
the effect that such termination would not cause an Adverse REMIC Event to occur
with respect to any REMIC Pool or an Adverse Grantor Trust Event to occur with
respect to the Grantor Trust and (B) written confirmation from each Rating
Agency that such termination would not cause an
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Adverse Rating Event to occur with respect to any Class of Certificates; and
provided, further, that the Mortgage Loan Seller may, at its option, purchase
the entire subject Cross-Collateralized Group in lieu of effecting a termination
of the cross-collateralization. All costs and expenses incurred by the Trustee
or any Person on its behalf pursuant to this paragraph shall be included in the
calculation of the Purchase Price for the Mortgage Loan(s) to be repurchased. If
the cross-collateralization of any Cross-Collateralized Group is not or cannot
be terminated as contemplated by this paragraph, then, for purposes of (i)
determining whether the subject Breach or Document Defect, as the case may be,
materially and adversely affects the value of such Cross-Collateralized Group
and (ii) the application of remedies, such Cross-Collateralized Group shall be
treated as a single Mortgage Loan.
(d) Notwithstanding the foregoing, if there exists a Breach of the
representation or warranty on the part of the Mortgage Loan Seller set forth in,
or made pursuant to, paragraph (41) of Exhibit B to the Mortgage Loan Purchase
Agreement, then the Master Servicer shall (and the Special Servicer may) direct
the Mortgage Loan Seller in writing to wire transfer to the Custodial Account,
within 90 days of such party's receipt of such direction, the amount of any such
reasonable costs and expenses incurred by the Trust that (i) are due from the
Mortgagor, (ii) otherwise would have been required to be paid by the Mortgagor
if such representation or warranty with respect to such costs and expenses had
in fact been true, as set forth in the related representation or warranty, (iii)
have not been paid by the Mortgagor, (iv) are the basis of such Breach and (v)
constitute "Covered Costs". Upon payment of such costs, the Mortgage Loan Seller
shall be deemed to have cured such Breach in all respects. Provided that such
payment is made, this paragraph describes the sole remedy available to the
Certificateholders and the Trustee on their behalf regarding any such Breach,
regardless of whether it constitutes a Material Breach, and the Mortgage Loan
Seller shall not be obligated to otherwise cure such Breach or repurchase the
affected Mortgage Loan under any circumstances. Amounts deposited in the
Custodial Account pursuant to this paragraph shall constitute "Liquidation
Proceeds" for all purposes of this Agreement (other than Section 3.11(c)).
(e) Subject to the penultimate sentence of this paragraph and subject
to Section 2.03(d), if the Mortgage Loan Seller determines that a Material
Breach (other than a Material Breach of a representation or warranty on the part
of the Mortgage Loan Seller set forth in, or made pursuant to, paragraph (37) of
Exhibit B to the Mortgage Loan Purchase Agreement) or Material Document Defect
with respect to any Mortgage Loan is not capable of being cured in accordance
with Section 5(a) of the Mortgage Loan Purchase Agreement, then (in lieu of
repurchasing such Mortgage Loan) the Mortgage Loan Seller may, at its sole
option, pay a cash amount equal to the loss of value (each such payment, a "Loss
of Value Payment") with respect to such Mortgage Loan, which loss of value is
directly attributed to such Material Breach or Material Document Defect, as the
case may be. The amount of each such Loss of Value Payment shall be determined
either (i) by mutual agreement of the Special Servicer on behalf of the Trust
with respect to the subject Material Breach or Material Document Defect, as the
case may be, and the Mortgage Loan Seller, or (ii) by an arbitration panel
pursuant to a binding arbitration proceeding in accordance with Section 5(i) of
the Mortgage Loan Purchase Agreement; provided that, pursuant to Section 5(i) of
the Mortgage Loan Purchase Agreement, in the event there is an arbitration
proceeding for determining the existence of a Material Breach or Material
Document Defect with respect to any Mortgage Loan, such arbitration proceeding
must also include a determination of the amount of the loss of value to such
Mortgage Loan directly attributed to such Material Breach or such Material
Document Defect, as the case may be. Provided that such payment is made, this
paragraph describes the sole remedy available to the Certificateholders and the
Trustee on their behalf regarding any such Material Breach or Material Document
Defect, and the
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Mortgage Loan Seller shall not be obligated to otherwise cure such Material
Breach or Material Document Defect or repurchase the affected Mortgage Loan
based on such Material Breach or Material Document Defect under any
circumstances. Notwithstanding the foregoing provisions of this Section 2.03(e),
if 95% or more of the loss of value to a Mortgage Loan was caused by a Material
Breach or Material Document Defect, which Material Breach or Material Document
Defect is not capable of being cured, then this Section 2.03(e) shall not apply,
and the Mortgage Loan Seller shall be obligated to repurchase the affected
Mortgage Loan at the applicable Purchase Price in accordance with the Mortgage
Loan Purchase Agreement; and, furthermore, the Mortgage Loan Seller shall not
have the option of delivering Loss of Value Payments in connection with any
Material Breach relating to a Mortgage Loan's failure to be a Qualified
Mortgage. In the event there is a Loss of Value Payment made by the Mortgage
Loan Seller, in accordance with this Section 2.03(e), the amount of such Loss of
Value Payment shall be deposited into the Loss of Value Reserve Fund to be
applied in accordance with Section 3.05(e), and any Loss of Value Payment shall
include costs and expenses incurred in enforcing the rights of the Trust against
the Mortgage Loan Seller, if and to the extent such is required pursuant to the
terms and conditions of Section 5(g) of the Mortgage Loan Purchase Agreement.
(f) Notwithstanding the foregoing, if there exists a Material Breach
of the representation or warranty on the part of the Mortgage Loan Seller set
forth in, or made pursuant to, paragraph (37) of Exhibit B to the Mortgage Loan
Purchase Agreement with respect to any Mortgage Loan, and the subject Mortgage
Loan becomes a Qualified Mortgage prior to the expiration of the Initial
Resolution Period applicable to a Material Document Defect or Material Breach
that affects whether a Mortgage Loan is a Qualified Mortgage, and without
otherwise causing an Adverse REMIC Event or an Adverse Grantor Trust Event, then
such breach will be cured and the Mortgage Loan Seller will not be obligated to
repurchase or otherwise remedy such Breach.
(g) In connection with any purchase or repurchase of a Mortgage Loan
as contemplated by this Section 2.03, the Trustee, the Custodian, the Master
Servicer and the Special Servicer shall each tender to the Mortgage Loan Seller,
upon delivery to each of them of a receipt executed by the Mortgage Loan Seller,
all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan possessed by it, and each document that constitutes a part of the
Mortgage File shall be endorsed or assigned to the extent necessary or
appropriate to the Mortgage Loan Seller or its designee in the same manner, but
only if the respective documents have been previously assigned or endorsed to
the Trustee, and pursuant to appropriate forms of assignment, substantially
similar to the manner and forms pursuant to which such documents were previously
assigned to the Trustee; provided that such tender by the Trustee or by a
Custodian on its behalf shall be conditioned upon its receipt from the Master
Servicer of a Request for Release accompanied by a certification of a Servicing
Officer to the effect that all amounts received or to be received in connection
with such purchase or repurchase, as the case may be, which are required to be
deposited in the Custodial Account pursuant to Section 3.04(a) have been
deposited. The Master Servicer shall, and is hereby authorized and empowered by
the Trustee to, prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.03(g), and such other instruments as
may be necessary or appropriate to transfer title to an REO Property or any
interest therein in connection with the repurchase of an REO Mortgage Loan and
the Trustee shall execute and deliver any powers of attorney necessary to permit
the Master Servicer to do so; provided, however, that the Trustee shall not be
held liable for any misuse of any such power of attorney by the Master Servicer.
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(h) The Mortgage Loan Purchase Agreement provides the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect or Breach with respect to any
Mortgage Loan. Any purchase of a Mortgage Loan pursuant to or as contemplated by
this Section 2.03 shall be on a whole loan, servicing released basis.
(i) The parties hereto agree that any controversy or claim arising
under Section 5(a), Section 5(b) and/or Section 5(g) of the Mortgage Loan
Purchase Agreement shall be resolved in accordance with the
Mediation/Arbitration procedures set forth in Section 5(i) of the Mortgage Loan
Purchase Agreement. The party to an arbitration that is acting on behalf of the
Trust in accordance with the provisions of Section 5(i) of the Mortgage Loan
Purchase Agreement shall, if and to the extent permitted under Section 6.03 or
Section 8.05(b), as applicable, be entitled to reimbursement or indemnification
by the Trust Fund for the fees and expenses incurred in connection therewith.
(j) In the event that the Master Servicer receives notice from the
Mortgagor under any Early Defeasance Mortgage Loan that (i) such Mortgagor
intends to defease such Early Defeasance Mortgage Loan in whole on or before the
second anniversary of the Closing Date and the cash amount tendered by such
Mortgagor to purchase Defeasance Collateral or other permitted collateral in
order to defease such Early Defeasance Mortgage Loan (in accordance with the
related loan documents) is less than the Purchase Price that would be applicable
in the event of a repurchase of such Mortgage Loan in connection with a Material
Breach or a Material Document Defect, or (ii) such Mortgagor intends to
partially defease such Early Defeasance Mortgage Loan on or prior to the second
anniversary of the Closing Date, or (iii) such Mortgagor intends to defease such
Early Defeasance Mortgage Loan in whole on or before the second anniversary of
the Closing Date and such Mortgagor is to tender Defeasance Collateral or such
other collateral as is permitted in connection with a defeasance under the
related loan documents that does not constitute a cash amount equal to or
greater than the Purchase Price set forth in clause (i) above, then the Master
Servicer shall promptly notify the Trustee and the Mortgage Loan Seller of such
Mortgagor's intention, and the Trustee shall direct the Mortgage Loan Seller to
repurchase (and the Mortgage Loan Seller, pursuant to the Mortgage Loan Purchase
Agreement, has agreed to repurchase) such Mortgage Loan at a price equal to (A)
the Purchase Price that would be applicable in the event of a repurchase of such
Mortgage Loan in connection with a Material Breach or a Material Document Defect
and (B) the amount, if any, by which the proceeds from any cash defeasance
deposit exceeds the amount described in clause (A) of this sentence, upon
deposit by the related Mortgagor of Defeasance Collateral, or cash sufficient to
purchase the Defeasance Collateral, as contemplated by the related loan
documents (if applicable), but in any event no later than the related defeasance
date.
(k) In connection with any repurchase of any Early Defeasance Mortgage
Loan, pursuant to or as contemplated by this Section 2.03, the Tax Administrator
shall in accordance with Section 9.02 effect a "qualified liquidation" of the
related Loan REMIC in accordance with the REMIC Provisions. The Mortgage Loan
Seller pursuant to the Mortgage Loan Purchase Agreement is obligated to pay, all
reasonable costs and expenses, including the costs of any Opinions of Counsel,
in connection with any such "qualified liquidation" of a Loan REMIC in
accordance with the REMIC Provisions.
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SECTION 2.04. Representations, Warranties and Covenants of the
Depositor.
(a) The Depositor hereby represents, warrants and covenants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Master Servicer and the Special Servicer, 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 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 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 and 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 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) The Depositor is not transferring the Mortgage Loans to the
Trustee with any intent to hinder, delay or defraud its present or future
creditors.
(viii) The Depositor has been solvent at all relevant times prior
to, and will not be rendered insolvent by, its transfer of the Mortgage
Loans to the Trustee pursuant to Section 2.01(a).
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(ix) After giving effect to its transfer of the Mortgage Loans to
the Trustee pursuant to Section 2.01(a), the value of the Depositor's
assets, either taken at their present fair saleable value or at fair
valuation, will exceed the amount of the Depositor's debts and obligations,
including contingent and unliquidated debts and obligations of the
Depositor, and the Depositor will not be left with unreasonably small
assets or capital with which to engage in and conduct its business.
(x) The Depositor does not intend to, and does not believe that
it will, incur debts or obligations beyond its ability to pay such debts
and obligations as they mature.
(xi) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) 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 and 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.
(xiii) Except for any actions that are the express responsibility
of another party hereunder or under the Mortgage Loan Purchase Agreements,
and further except for actions that the Depositor is expressly permitted to
complete subsequent to the Closing Date, the Depositor has taken all
actions required under applicable law to effectuate the transfer of the
Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the Mortgage Loans to
the Trust pursuant to this Agreement (and assuming that the Mortgage Loan
Seller transferred to the Depositor good and marketable title to each
Mortgage Loan, 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 Mortgage Loan, and (B) the Depositor has
full right and authority to sell, assign and transfer each Mortgage Loan,
exclusive of the servicing rights pertaining thereto.
(b) Except as expressly provided in Section 2.04(a), the Depositor
does not make any representations or warranties regarding the Mortgage Loans.
(c) The representations, warranties and covenants of the Depositor set
forth in or made pursuant to 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 such representations,
warranties and covenants, the party discovering such breach shall give prompt
written notice thereof to the other parties.
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SECTION 2.05. Acceptance of Grantor Trust Assets by Trustee; Issuance
of the Class V Certificates.
(a) It is the intention of the parties hereto that the segregated pool
of assets consisting of any collections of Additional Interest Received by the
Trust on or with respect to the ARD Mortgage Loans, if any, and any successor
REO Mortgage Loans with respect thereto constitute a grantor trust for federal
income tax purposes. The Trustee, by its execution and delivery hereof,
acknowledges the assignment to it of the Grantor Trust Assets, if any, and
declares that it holds and will hold any such assets in trust for the exclusive
use and benefit of all present and future Holders of the Class V Certificates.
Concurrently with the assignment to it of the Grantor Trust Assets, subject to
Section 2.05(b), the Certificate Registrar shall execute, and the Authenticating
Agent shall authenticate and deliver, to or upon the order of the Depositor, the
Class V Certificates in authorized denominations evidencing, in the aggregate,
the entire beneficial ownership of the Grantor Trust. Subject to Section
2.05(b): (i) the Class V Certificates shall evidence the entire beneficial
ownership of the Grantor Trust; and (ii) the rights of Holders of the Class V
Certificates to receive distributions from the proceeds of the Grantor Trust
Assets, and all ownership interests of such Holders in and to such
distributions, shall be as set forth in this Agreement.
(b) Notwithstanding Section 2.05(a) or anything else to the contrary
set forth in this Agreement, if the Mortgage Pool does not, on the Closing Date,
include any ARD Mortgage Loans, then: (i) there shall be no Grantor Trust; (ii)
no Class V Certificates shall be issued; (iii) insofar as, but only insofar as,
the provisions of this Agreement specifically relate to the Grantor Trust,
Grantor Trust Assets, Class V Certificates, the Class V Sub-Account, ARD
Mortgage Loans and/or Additional Interest, such provisions (other than this
Section 2.05(b), the definitions of such terms set forth in Section 1.01 and
Schedule V annexed hereto) shall, without otherwise affecting the enforceability
or validity of this Agreement with respect to any other matters, be of no force
and effect; and (iv) the parties hereto shall have no rights or obligations with
respect to the Grantor Trust, Grantor Trust Assets, Class V Certificates, the
Class V Sub-Account, ARD Mortgage Loans, ARD Mortgage Loans and/or Additional
Interest.
SECTION 2.06. Acceptance of Loan REMICs by Trustee; Execution,
Authentication and Delivery of Class R-LR Certificates; Creation of Loan REMIC
Regular Interests.
(a) The Trustee hereby acknowledges the assignment to it of any assets
to be included in the Loan REMICs. Concurrently with such assignment and in
exchange therefor, subject to Section 2.06(b), (i) the Loan REMIC Regular
Interests have been issued, and (ii) pursuant to the written request of the
Depositor executed by an authorized officer thereof, the Trustee, as Certificate
Registrar, has executed, and the Trustee, as Authenticating Agent, has
authenticated and delivered to or upon the order of the Depositor, the Class
R-LR Certificates in authorized denominations. Subject to Section 2.06(b): the
interests evidenced by the Class R-LR Certificates, together with the related
Loan REMIC Regular Interests, constitute the entire beneficial ownership of the
respective Loan REMICs; and (ii) the rights of the Class R-LR Certificateholders
and REMIC I (as holder of the Loan REMIC Regular Interests) to receive
distributions from the proceeds of the Early Defeasance Mortgage Loans (or any
successor REO Mortgage Loans with respect thereto) in respect of the Class R-LR
Certificates and the Loan REMIC Regular Interests, respectively, and all
ownership interests evidenced or constituted by the Class R-LR Certificates and
the Loan REMIC Regular Interests, shall be as set forth in this Agreement.
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(b) Notwithstanding Section 2.06(a) or anything else to the contrary
set forth in this Agreement, if the Mortgage Pool does not, on the Closing Date,
include any Early Defeasance Mortgage Loans, then: (i) there shall be no Loan
REMICs; (ii) no Class R-LR Certificates and no Loan REMIC Interests shall be
issued; (iii) insofar as, but only insofar as, the provisions of this Agreement
specifically relate to Loan REMICs, Loan REMIC Interests, Class R-LR
Certificates, Excess Defeasance Deposit Proceeds and/or Early Defeasance
Mortgage Loans, such provisions (other than this Section 2.06(b), the
definitions of such terms set forth in Section 1.01 and the Mortgage Loan
Schedule) shall, without otherwise affecting the enforceability or validity of
this Agreement with respect to any other matters, be of no force and effect; and
(iv) the parties hereto and the Mortgage Loan Seller shall have no rights or
obligations with respect to the Loan REMICs, Loan REMIC Interests, Class R-LR
Certificates, Excess Defeasance Deposit Proceeds and/or Early Defeasance
Mortgage Loans.
SECTION 2.07. Conveyance of Loan REMIC Regular Interests.
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 Loan REMIC
Regular Interests, if any, to the Trustee for the benefit of the Holders of the
Class R-I Certificates and REMIC II as the holder of the REMIC I Regular
Interests. The Trustee acknowledges the assignment to it of the Loan REMIC
Regular Interests, if any, 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
Class R-I Certificates and REMIC II as the holder of the REMIC I Regular
Interests.
SECTION 2.08. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests.
The Trustee hereby acknowledges the assignment to it of the assets
included in REMIC I. Concurrently with such assignment and in exchange therefor,
(a) the REMIC I Regular Interests have been issued, and (b) pursuant to the
written request of the Depositor executed by an authorized officer thereof, the
Trustee, as Certificate Registrar, has executed, and the Trustee, as
Authenticating Agent, has authenticated and delivered to or upon the order of
the Depositor, the Class R-I Certificates in authorized denominations. The
interests evidenced by the Class R-I Certificates, together with the REMIC I
Regular Interests, constitute the entire beneficial ownership of REMIC I. The
rights of the Class R-I Certificateholders and REMIC II (as holder of the REMIC
I Regular Interests) to receive distributions from the proceeds of REMIC I in
respect of the Class R-I Certificates and the REMIC I Regular Interests,
respectively, and all ownership interests evidenced or constituted by the Class
R-I Certificates and the REMIC I Regular Interests, shall be as set forth in
this Agreement.
SECTION 2.09. 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 Holders of the Class R-II
Certificates and REMIC III as the holder of the REMIC II Regular Interests. 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 Class R-II Certificates and
REMIC III as the holder of the REMIC II Regular Interests.
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SECTION 2.10. Execution, Authentication and Delivery of Class R-II
Certificates; Creation of REMIC II Regular Interests.
Concurrently with the assignment to the Trustee of the REMIC I Regular
Interests and in exchange therefor, (a) the REMIC II Regular Interests have been
issued and (b) pursuant to the written request of the Depositor executed by an
authorized officer thereof, the Trustee, as Certificate Registrar, has executed,
and the Trustee, as Authenticating Agent, has authenticated and delivered to or
upon the order of the Depositor, the Class R-II Certificates in authorized
denominations. The rights of the Class R-II Certificateholders and REMIC III (as
holder of the REMIC II Regular Interests) to receive distributions from the
proceeds of REMIC II in respect of the Class R-II Certificates and the REMIC II
Regular Interests, respectively, and all ownership interests evidenced or
constituted by the Class R-II Certificates and the REMIC II Regular Interests,
shall be as set forth in this Agreement.
SECTION 2.11. Conveyance of REMIC II Regular Interests; Acceptance of
REMIC III 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 II
Regular Interests to the Trustee for the benefit of the Holders of the REMIC III
Certificates. The Trustee acknowledges the assignment to it of the REMIC II
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 III
Certificates.
SECTION 2.12. Execution, Authentication and Delivery of REMIC III
Certificates.
Concurrently with the assignment to the Trustee of the REMIC II
Regular Interests and in exchange therefor, pursuant to the written request of
the Depositor executed by an officer thereof, the Trustee, as Certificate
Registrar, has executed, and the Trustee, as Authenticating Agent, has
authenticated and delivered to or upon the order of the Depositor, the REMIC III
Certificates in authorized denominations evidencing the entire beneficial
ownership of REMIC III. The rights of the Holders of the respective Classes of
REMIC III Certificates to receive distributions from the proceeds of REMIC III
in respect of their REMIC III Certificates, and all ownership interests
evidenced or constituted by the respective Classes of REMIC III Certificates in
such distributions, shall be as set forth in this Agreement.
SECTION 2.13. Acceptance of Loss of Value Reserve Fund by Trustee.
It is the intention of the parties hereto that any Loss of Value
Payments Received by the Trust pursuant to Section 2.03(e), together with the
Loss of Value Reserve Fund, shall collectively constitute an "outside reserve
fund" within the meaning of Treasury regulation section 1.860G-2(h). The
Trustee, by execution and delivery hereof, acknowledges the assignment to it of
the assets consisting of the Loss of Value Reserve Fund, including the amounts
held therein, and declares that it holds and will hold such assets, in
accordance with Section 3.04(e), in trust and for the benefit of the
Certificateholders, as their interests may appear. Notwithstanding anything
herein to the contrary, based on applicable law as of the date hereof, for all
income and franchise tax purposes, the Holder or Holders of the Class R-III
Certificates shall be treated and reported as the sole beneficial owner(s) of
the Loss of Value Reserve Fund.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) All of the Mortgage Loans and REO Properties are to be serviced
and administered by the Master Servicer and/or the Special Servicer hereunder.
Each of the Master Servicer and the Special Servicer shall service and
administer the Mortgage Loans and REO Properties that it is obligated to service
and administer pursuant to this Agreement on behalf of the Trustee, for the
benefit of the Certificateholders, as determined in the good faith and
reasonable judgment of the Master Servicer or the Special Servicer, as the case
may be, in accordance with: (i) any and all applicable laws; (ii) the express
terms of this Agreement; (iii) the express terms of the respective Mortgage
Loans and any and all related intercreditor, co-lender or similar agreements
(including with respect to performing the duties of the holders of the
respective Mortgage Loans thereunder (to the extent not inconsistent with this
Agreement and to the extent consistent with the Servicing Standard)); and (iv)
to the extent consistent with the foregoing, the Servicing Standard. The Master
Servicer or the Special Servicer, as applicable in accordance with this
Agreement, shall service and administer each Cross-Collateralized Group as a
single Mortgage Loan as and when necessary and appropriate consistent with the
Servicing Standard. Without limiting the foregoing and subject to Section 3.21,
(i) the Master Servicer shall service and administer all of the Performing
Mortgage Loans and shall render such services with respect to the Specially
Serviced Mortgage Loans as are specifically provided for herein, and (ii) the
Special Servicer shall service and administer each Specially Serviced Mortgage
Loan and REO Property and shall render such services with respect to Performing
Mortgage Loans as are specifically provided for herein. All references herein to
the respective duties of the Master Servicer and the Special Servicer, and to
the areas in which they may exercise discretion, shall be subject to Section
3.21.
(b) Subject to Sections 3.01(a), 3.20 and 6.11, the Master Servicer
and the Special Servicer shall each have full power and authority, acting alone
(or, to the extent contemplated by Section 3.22 of this Agreement, through
subservicers), to do or cause to be done any and all things in connection with
the servicing and administration contemplated by Section 3.01(a) that it may
deem necessary or desirable. Without limiting the generality of the foregoing,
each of the Master Servicer and the Special Servicer, in its own name, with
respect to each of the Mortgage Loans it is obligated to service hereunder, is
authorized and empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders and/or the Trustee, (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 Sections 3.01(a), 3.20 and
6.11, any and all modifications, extensions, waivers, amendments or consents to
or with respect to any documents contained in the related Mortgage File; (iii)
any and all instruments of satisfaction or cancellation, or of partial or full
release or discharge or of assignment, and all other comparable instruments; and
(iv) any and all instruments that such party may be required to execute on
behalf of the Trustee in connection with the defeasance of a Mortgage Loan as
contemplated in this Agreement. Subject to Section 3.10, the Trustee shall, at
the written request of the Master Servicer or the Special Servicer, promptly
execute any limited powers of attorney and other documents furnished by the
Master Servicer or the Special Servicer that are necessary or appropriate to
enable them to carry out their servicing and administrative duties
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hereunder; provided, however, that the Trustee shall not be held liable for any
misuse of any such power of attorney by the Master Servicer or the Special
Servicer. Notwithstanding anything contained herein to the contrary, neither the
Master Servicer nor the Special Servicer shall, without the Trustee's written
consent: (i) initiate any action, suit or proceeding solely under the Trustee's
name without indicating the Master Servicer's or Special Servicer's, as
applicable, representative capacity; or (ii) take any action with the intent to
cause, and that actually causes, the Trustee to be registered to do business in
any state.
(c) The Master Servicer shall use efforts consistent with the
Servicing Standard to have prepared, executed (with the cooperation of the
Mortgage Loan Seller in obtaining requisite signatures, if applicable) and
delivered by the applicable party (and included in the Servicing File), not
later than the later of (i) 30 days following the Master Servicer's receipt of
the subject franchisor comfort letter, guaranty of payment or letter of credit
and (ii) the expiration of the period that may be required for such transfer or
assignment pursuant to the terms of the applicable franchisor comfort letter,
guaranty of payment or letter of credit, if any, (A) with respect to any
Mortgage Loan secured by a hospitality property (as identified on Schedule IV
hereto) (and with respect to which a franchise agreement constitutes part of the
related Mortgage File on the Closing Date), any original transfer or assignment
documents necessary to transfer or assign to the Trustee any rights under the
related franchisor comfort letter; and (B) with respect to any Mortgage Loan
that has a related guaranty or letter of credit that constitutes part of the
related Mortgage File on the Closing Date, any original transfer or assignment
documents necessary to transfer or assign to the Trustee any rights under the
related guaranty of payment or letter of credit. In the event, with respect to a
Mortgage Loan with a related letter of credit, it is determined by the Master
Servicer that a draw under such letter of credit has become necessary under the
terms thereof prior to the assignment under clause (B) of the preceding sentence
having been effected, the Master Servicer shall direct (in writing) the Mortgage
Loan Seller to make such draw or to cause such draw to be made on behalf of the
Trustee, and the Mortgage Loan Seller will be obligated under the Mortgage Loan
Purchase Agreement to use its best efforts to cause such draw to be made;
provided that the Mortgage Loan Seller shall not have any liability in
connection with the determination to make, or the making of, such draw (other
than to remit the proceeds of such draw to the Master Servicer).
(d) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and to each other under this Agreement is intended by
the parties to be that of an independent contractor and not that of a joint
venturer, partner or, except as set forth in this Agreement, agent.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) Each of the Master Servicer and the Special Servicer shall
undertake reasonable efforts to collect all payments required under the terms
and provisions of the Mortgage Loans it is obligated to service hereunder and
shall follow such collection procedures as are consistent with the Servicing
Standard; provided, however, that neither the Master Servicer nor the Special
Servicer shall, with respect to any Mortgage Loan that constitutes an ARD
Mortgage Loan after its Anticipated Repayment Date, take any enforcement action
with respect to the payment of Additional Interest (other than the making of
requests for its collection), unless (i) the taking of an enforcement action
with respect to the payment of other amounts due under such ARD Mortgage Loan
is, in the good faith and reasonable judgment of the Special Servicer,
necessary, appropriate and consistent with the Servicing Standard or (ii) all
other amounts due under such ARD Mortgage Loan have been paid, the payment of
such Additional Interest has not been forgiven in accordance with Section 3.20
and, in the good faith
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and reasonable judgment of the Special Servicer, the Liquidation Proceeds
expected to be recovered in connection with such enforcement action will cover
the anticipated costs of such enforcement action and, if applicable, any
associated interest accrued on Advances. The Special Servicer shall ensure that,
with respect to Specially Serviced Mortgage Loans, the Mortgagors make payments
directly to the Master Servicer; provided that, in the event the Special
Servicer receives a payment that should have been made directly to the Master
Servicer, the Special Servicer shall promptly forward such payment to the Master
Servicer. Upon receipt of any such payment with respect to a Specially Serviced
Mortgage Loan, the Master Servicer shall promptly notify the Special Servicer,
and the Special Servicer shall direct the Master Servicer as to the proper
posting of such payment. Consistent with the foregoing, the Special Servicer,
with regard to a Specially Serviced Mortgage Loan, or the Master Servicer, with
regard to a Performing Mortgage Loan, may waive or defer any Default Charges in
connection with collecting any late payment on a Mortgage Loan; provided that
without the consent of the Special Servicer in the case of a proposed waiver by
the Master Servicer, no such waiver or deferral may be made by the Master
Servicer pursuant to this Section 3.02 if any Advance has been made as to such
delinquent payment (to the extent such Default charges are necessary to offset
Advance Interest on such Advance).
(b) All amounts Received by the Trust with respect to any
Cross-Collateralized Group in the form of payments from Mortgagors, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds, shall be applied by
the Master Servicer among the Mortgage Loans constituting such
Cross-Collateralized Group in accordance with the express provisions of the
related loan documents and, in the absence of such express provisions or to the
extent that such payments and other collections may be applied at the discretion
of the lender, on a pro rata basis in accordance with the respective amounts
then "due and owing" as to each such Mortgage Loan. Except as otherwise
contemplated by the following paragraphs in this Section 3.02(b), all amounts
Received by the Trust in respect of or allocable to any particular Mortgage Loan
(whether or not such Mortgage Loan constitutes part of a Cross-Collateralized
Group) in the form of payments from Mortgagors, Liquidation Proceeds,
Condemnation Proceeds or Insurance Proceeds shall be applied to amounts due and
owing under such Mortgage Loan (including for principal and accrued and unpaid
interest) in accordance with the express provisions of the related Mortgage
Note, the related Mortgage and/or any related loan agreement and, in the absence
of such express provisions or to the extent that such payments and other
collections may be applied at the discretion of the lender, as follows: first,
as a recovery of any related unpaid servicing expenses and unreimbursed
Servicing Advances; second, as a recovery of accrued and unpaid interest on such
Mortgage Loan at the related Mortgage Rate to, but not including, the date of
receipt (or, in the case of a full Monthly Payment from any Mortgagor, through
the related Due Date), exclusive, however, in the case of an ARD Mortgage Loan
after its Anticipated Repayment Date, of any such accrued and unpaid interest
that constitutes Additional Interest; third, as a recovery of principal of such
Mortgage Loan then due and owing, including by reason of acceleration of such
Mortgage Loan following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage Loan, as a recovery of principal to the
extent of its entire remaining unpaid principal balance); fourth, unless a
Liquidation Event has occurred with respect to such Mortgage Loan, as a recovery
of amounts to be currently applied to the payment of, or escrowed for the future
payment of, real estate taxes, assessments, insurance premiums (including
premiums on any Environmental Insurance Policy), ground rents (if applicable)
and similar items; fifth, unless a Liquidation Event has occurred with respect
to such Mortgage Loan, as a recovery of Reserve Funds to the extent then
required to be held in escrow; sixth, as a recovery of any Default Charges then
due and owing under such Mortgage Loan, but only to the extent necessary to
reimburse the Trust or any party hereto for any interest due on any outstanding
Advances made with respect to such Mortgage Loan or to pay any other outstanding
expenses (exclusive
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of Special Servicing Fees, Liquidation Fees and Workout Fees) incurred with
respect to such Mortgage Loan that, if paid from collections on the Mortgage
Pool other than such Default Charges, would constitute an Additional Trust Fund
Expense; seventh, as a recovery of Prepayment Consideration then due and owing
under such Mortgage Loan; eighth, as a recovery of any remaining Default Charges
then due and owing under such Mortgage Loan not applied in accordance with
clause sixth above; ninth, as a recovery of any assumption fees, modification
fees and extension fees then due and owing under such Mortgage Loan; tenth, as a
recovery of any other amounts then due and owing under such Mortgage Loan (other
than remaining unpaid principal and, in the case of an ARD Mortgage Loan after
its Anticipated Repayment Date, other than Additional Interest); eleventh, as a
recovery of any remaining principal of such Mortgage Loan to the extent of its
entire remaining unpaid principal balance; and, twelfth, in the case of an ARD
Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and
unpaid Additional Interest on such ARD Mortgage Loan to but not including the
date of receipt; provided that, if one or more Advances previously made in
respect of a Mortgage Loan have been reimbursed out of general collections of
principal on the Mortgage Pool as one or more Nonrecoverable Advances, then
collections in respect of such Mortgage Loan available for application pursuant
to clauses second through eleventh of this sentence shall instead be applied in
the following order--(i) as a recovery of accrued and unpaid interest on, and
principal of, such Mortgage Loan, to the extent of any outstanding P&I Advances
and unpaid Master Servicing Fees in respect of such Mortgage Loan, (ii) as a
recovery of the item(s) for which such previously reimbursed Nonrecoverable
Advance(s) were made (together with, but only if a Liquidation Event has
occurred with respect to such Mortgage Loan, any interest on such previously
reimbursed Nonrecoverable Advance(s) that was also paid out of general
collections of principal on the Mortgage Pool), and (iii) in accordance with
clauses second through eleventh of this sentence (taking into account the
applications pursuant to clauses (i) and (ii) of this proviso).
Notwithstanding the foregoing, Loss of Value Payments shall not be
applied in accordance with the foregoing provisions of this Section 3.02(b)
unless and until such amounts are transferred to the Custodial Account, and
deemed to constitute Liquidation Proceeds in respect of a particular Mortgage
Loan, in accordance with Section 3.05(e).
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Mortgage Loans, establish and
maintain one or more accounts (the "Servicing Accounts"), in which all related
Escrow Payments shall be deposited and retained. Subject to the terms of the
related loan documents, each Servicing Account shall be an Eligible Account.
Withdrawals of amounts so collected from a Servicing Account may be made (in
each case, to the extent of amounts on deposit therein in respect of the related
Mortgage Loan or, in the case of clauses (iv) and (v) below, to the extent of
interest or other income earned on such amounts) only for the following
purposes: (i) consistent with the related loan documents, to effect the payment
of real estate taxes, assessments, insurance premiums (including premiums on any
Environmental Insurance Policy), ground rents (if applicable) and comparable
items in respect of the respective Mortgaged Properties; (ii) insofar as the
particular Escrow Payment represents a late payment that was intended to cover
an item described in the immediately preceding clause (i) for which a Servicing
Advance was made, to reimburse the Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent, as applicable, for such Servicing Advance; (iii) to
refund to Mortgagors any sums as may be determined to be overages; (iv)
following an event of default under the related Mortgage Loan, for such other
purposes
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as are consistent with the related loan documents, applicable law and the
Servicing Standard; (v) to pay interest, if required and as described below, to
Mortgagors on balances in such Servicing Account; (vi) to pay the Master
Servicer interest and investment income on balances in such Servicing Account as
described in Section 3.06, if and to the extent not required by law or the terms
of the related loan documents to be paid to the Mortgagor; or (vii) to clear and
terminate such Servicing Account at the termination of this Agreement in
accordance with Section 9.01. To the extent permitted by law or the applicable
loan documents, funds in the Servicing Accounts may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall pay or cause to be paid to the Mortgagors interest, if
any, earned on the investment of funds in the related Servicing Accounts, if
required by law or the terms of the related Mortgage Loan. If the Master
Servicer shall deposit in a Servicing Account any amount not required to be
deposited therein, it may at any time withdraw such amount from such Servicing
Account, any provision herein to the contrary notwithstanding.
(b) The Master Servicer shall, as to each and every Mortgage Loan, (i)
maintain accurate records with respect to the related Mortgaged Property
reflecting the status of real estate taxes, assessments and other similar items
that are or may become a lien thereon and the status of insurance premiums and
any ground rents payable in respect thereof and (ii) use reasonable efforts to
obtain, from time to time, all bills for (or otherwise confirm) the payment of
such items (including renewal premiums) and, if the subject Mortgage Loan
requires the related Mortgagor to escrow for such items, shall effect payment
thereof prior to the applicable penalty or termination date. For purposes of
effecting any such payment for which it is responsible, the Master Servicer
shall apply Escrow Payments as allowed under the terms of the related Mortgage
Loan (or, if such 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 Master Servicer shall use
reasonable efforts consistent with the Servicing Standard to cause the related
Mortgagor to comply with the requirement of the related Mortgage that the
Mortgagor make payments in respect of such items at the time they first become
due and, in any event, prior to the institution of foreclosure or similar
proceedings with respect to the related Mortgaged Property for nonpayment of
such items). Subject to Section 3.11(h), the Master Servicer shall timely make a
Servicing Advance to cover any such item which is not so paid, including any
penalties or other charges arising from the Mortgagor's failure to timely pay
such items.
(c) The Master Servicer shall, as to each and every Mortgage Loan,
make a Servicing Advance with respect to the related Mortgaged Property in an
amount equal to all such funds as are necessary for the purpose of effecting the
payment of (i) real estate taxes, assessments and other similar items, (ii)
ground rents (if applicable), and (iii) premiums on Insurance Policies
(including Environmental Insurance Policies), in each instance if and to the
extent Escrow Payments (if any) collected from the related Mortgagor are
insufficient to pay such item when due and the related Mortgagor (or any related
guarantor or party entitled to exercise cure rights) has failed to pay such item
on a timely basis. All such Servicing Advances shall be reimbursable in the
first instance from related payments by or on behalf of the Mortgagors, and
further as provided in Section 3.05(a). No costs incurred by the Master Servicer
in effecting the payment of real estate taxes, assessments and, if applicable,
ground rents on or in respect of the Mortgaged Properties shall, for purposes of
this Agreement, including the Trustee's calculation of monthly distributions to
Certificateholders, be added to the unpaid Stated Principal Balances of the
related Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so
permit. The foregoing shall in no way limit the Master Servicer's ability to
charge and collect from the Mortgagor such costs together with interest thereon.
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(d) The Master Servicer shall, as to all Mortgage Loans, establish and
maintain, as applicable, one or more accounts (the "Reserve Accounts"), into
which all related Reserve Funds, if any, shall be deposited and retained.
Withdrawals of amounts so deposited may be made (i) for the specific purposes
for which the particular Reserve Funds were delivered, in accordance with the
Servicing Standard and the terms of the related Mortgage Note, Mortgage and any
other agreement with the related Mortgagor governing such Reserve Funds, (ii) to
pay the Master Servicer interest and investment income earned on amounts in the
Reserve Accounts as described below, and (iii) following an event of default
under the related Mortgage Loan, for such other purposes as are consistent with
the related loan documents, applicable law and the Servicing Standard. To the
extent permitted in the applicable loan documents, funds in the Reserve Accounts
may be invested in Permitted Investments in accordance with the provisions of
Section 3.06. Subject to the related loan documents, all Reserve Accounts shall
be Eligible Accounts. Consistent with the Servicing Standard, the Master
Servicer may waive or extend the date set forth in any agreement governing
Reserve Funds by which any required repairs, capital improvements and/or
environmental remediation at the related Mortgaged Property must be completed;
provided that any waiver, any extension for more than 120 days and any
subsequent extension may only be granted with the consent of the Special
Servicer.
SECTION 3.04. Custodial Account, Defeasance Deposit Account,
Collection Account, Excess Liquidation Proceeds Account and Loss of Value
Reserve Fund.
(a) The Master Servicer shall establish and maintain one or more
separate, segregated accounts (collectively, the "Custodial Account"), in which
the amounts described in clauses (i) through (viii) below shall be deposited and
held on behalf of the Trustee in trust for the sole benefit of the
Certificateholders. The Custodial Account shall be an Eligible Account. The
Master Servicer shall deposit or cause to be deposited in the Custodial Account,
within one (1) Business Day of receipt (in the case of payments by Mortgagors or
other collections on the Mortgage Loans) or as otherwise required hereunder, the
following payments and collections received or made by the Master Servicer or on
its behalf subsequent to the Cut-off Date (other than in respect of principal
and interest on the Mortgage Loans due and payable on or before the Cut-off
Date, which amounts shall be delivered promptly to the Mortgage Loan Seller or
its designee, with negotiable instruments endorsed as necessary and appropriate
without recourse, and other than amounts required to be deposited in the
Defeasance Deposit Account), or any of the following 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 Mortgage Loans,
including Principal Prepayments, and regardless of whether those payments
are made by the related Mortgagor, any related guarantor or any party
exercising cure rights hereunder or under any related co-lender,
intercreditor or similar agreement, out of any related Reserve Funds
maintained for such purpose, out of collections on any related Defeasance
Collateral or from any other source;
(ii) all payments on account of interest on the Mortgage Loans,
including Default Interest and Additional Interest, and regardless of
whether those payments are made by the related Mortgagor, any related
guarantor or any party exercising cure rights hereunder or under any
related co-lender, intercreditor or similar agreement, out of any related
Reserve Funds
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maintained for such purpose, out of collections on any related Defeasance
Collateral or from any other source;
(iii) all Prepayment Consideration and late payment charges
Received by the Trust in respect of any Mortgage Loan;
(iv) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds Received by the Trust in respect of any Mortgage Loan
or, except to the extent such proceeds are to first be deposited in the REO
Account, any REO Property;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Custodial Account;
(vi) any amounts required to be deposited by the Master Servicer
or the Special Servicer pursuant to Section 3.07(b) in connection with
losses on the Mortgage Pool resulting from a deductible clause in a blanket
or master force placed hazard insurance policy;
(vii) any amounts required to be transferred from the Loss of
Value Reserve Fund pursuant to Section 3.05(e) or the REO Account pursuant
to Section 3.16(c); and
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by a Mortgagor with respect to a Mortgage Loan specifically to
cover items for which a Servicing Advance has been made.
The foregoing requirements for deposit in the Custodial Account shall
be exclusive. Notwithstanding the foregoing, actual payments from Mortgagors in
the nature of Escrow Payments, Reserve Funds, assumption fees, assumption
application fees, funds representing a Mortgagor's payment of costs and expenses
associated with assumptions and defeasance, modification fees, extension fees,
charges for beneficiary statements or demands, amounts collected for checks
returned for insufficient funds and any similar fees (other than Prepayment
Consideration) not expressly referred to in the prior paragraph need not be
deposited by the Master Servicer in the Custodial Account. If the Master
Servicer shall deposit in the Custodial Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the Custodial
Account, any provision herein to the contrary notwithstanding. The Master
Servicer shall promptly deliver to the Special Servicer, as additional special
servicing compensation in accordance with Section 3.11(d), all assumption fees
and assumption application fees (or the applicable portions thereof), and other
transaction fees received by the Master Servicer to which the Special Servicer
is entitled pursuant to such section upon receipt of a written statement (on
which the Master Servicer is entitled to rely) of a Servicing Officer of the
Special Servicer describing the item and amount (unless pursuant to this
Agreement it is otherwise clear that the Special Servicer is entitled to such
amounts, in which case a written statement is not required). The Custodial
Account shall be maintained as a segregated account, separate and apart from
trust funds created for mortgage-backed securities of other series and the other
accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(v) and (viii) of the second preceding paragraph with respect to any Mortgage
Loan, the Special Servicer shall promptly, but in no event later than two (2)
Business Days after receipt, remit such amounts to the Master Servicer for
deposit into the Custodial Account in accordance with the second preceding
paragraph, unless the
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Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement or
other appropriate reason. With respect to any such amounts paid by check to the
order of the Special Servicer, the Special Servicer shall endorse such check to
the order of the Master Servicer, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item cannot be so
endorsed and delivered because of a restrictive endorsement or other appropriate
reason. Any such amounts received by the Special Servicer with respect to an REO
Property shall be deposited by the Special Servicer into the REO Account and
thereafter remitted to the Master Servicer for deposit into the Custodial
Account as and to the extent provided in Section 3.16(c).
If and when any Mortgagor under any Defeasance Mortgage Loan that is
also a Mortgage Loan elects to defease all or any part of its Mortgage Loan and,
pursuant to the provisions of the related loan documents, delivers cash to the
Master Servicer to purchase the required Defeasance Collateral, the Master
Servicer shall establish and maintain one or more separate segregated accounts
(collectively, the "Defeasance Deposit Account"), in which the Master Servicer
shall deposit such cash within one (1) Business Day of receipt by the Master
Servicer. The Master Servicer shall retain such cash in the Defeasance Deposit
Account pending its prompt application to purchase Defeasance Collateral. The
Master Servicer shall hold such cash and maintain the Defeasance Deposit Account
on behalf of the Trustee, to secure payment on the related Defeasance Mortgage
Loan. The Defeasance Deposit Account shall be an Eligible Account and may be a
sub-account of the Custodial Account. To the extent permitted by law or the
applicable Defeasance Mortgage Loan, prior to the purchase of Defeasance
Collateral, funds in the Defeasance Deposit Account may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall pay or cause to be paid to the related Mortgagor(s)
interest, if any, earned on the investment of funds in the Defeasance Deposit
Account, if required by law or the terms of the related Defeasance Mortgage
Loan(s). Notwithstanding that the Defeasance Deposit Account may be a
sub-account of the Custodial Account for reasons of administrative convenience,
the Defeasance Deposit Account and the Custodial Account shall, for all purposes
of this Agreement (including the obligations and responsibilities of the Master
Servicer hereunder), be considered to be and shall be required to be treated as,
separate and distinct accounts. The Master Servicer shall indemnify and hold
harmless the Trust Fund against any losses arising out of the failure by the
Master Servicer to perform its duties and obligations hereunder as if such
accounts were separate accounts. The provisions of the prior two (2) sentences
shall survive any resignation or removal of the Master Servicer and appointment
of a successor master servicer.
Notwithstanding the foregoing, in the event that the Master Servicer
receives cash to purchase Defeasance Collateral for any Early Defeasance
Mortgage Loan that the Mortgage Loan Seller is required to repurchase pursuant
to the Mortgage Loan Purchase Agreement or as otherwise contemplated by Section
2.03(j), the Master Servicer shall retain such cash in the Defeasance Deposit
Account on behalf of the Trust Fund until the Mortgage Loan Seller tenders the
full Purchase Price in connection with such repurchase and shall, on the date of
such repurchase, transfer such cash to the Mortgage Loan Seller.
(b) The Trustee shall establish and maintain one or more separate,
segregated trust accounts (collectively, the "Collection Account") to be held in
trust for the sole benefit of the Certificateholders. Each account that
constitutes the Collection Account shall be an Eligible Account. Subject to
Section 2.05(b), the Trustee shall establish and maintain, on a book-entry
basis, the "Class V Sub-Account", which sub-account shall be deemed to be held
in trust for the benefit of the Holders of
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the Class V Certificates. The Master Servicer shall deliver to the Trustee each
month on or before the Master Servicer Remittance Date therein, for deposit in
the Collection Account, an aggregate amount of immediately available funds equal
to the Master Servicer Remittance Amount for such Master Servicer Remittance
Date, together with, in the case of the Final Distribution Date, any additional
amounts contemplated by Section 9.01 and any Loss of Value Payments contemplated
by Section 3.05(e). Immediately upon deposit of the Master Servicer Remittance
Amount for any Master Servicer Remittance Date into the Collection Account,
subject to Section 2.05(b), any portion thereof that represents Additional
Interest shall be deemed to have been deposited into the Class V Sub-Account.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee (without duplication) for deposit in the
Collection Account:
(i) any P&I Advances required to be made by the Master Servicer
in accordance with Section 4.03(a); and
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19(a) in connection with Prepayment Interest
Shortfalls.
The Trustee shall, upon receipt, deposit in the Collection Account any
and all amounts received by it that are required by the terms of this Agreement
to be deposited therein. In addition, as and when required pursuant to Section
3.06, the Trustee shall (in all cases prior to distributions on the Certificates
being made on the related Distribution Date) deposit in the Collection Account
any amounts required to be so deposited by the Trustee pursuant to Section 3.06
in connection with losses incurred with respect to Permitted Investments of
funds held in the Collection Account.
In the event that the Master Servicer fails, on any Master Servicer
Remittance Date, to remit to the Trustee any amount(s) required to be so
remitted to the Trustee hereunder by such date, the Master Servicer shall pay
the Trustee, for the account of the Trustee, interest, calculated at the Prime
Rate, on such amount(s) not timely remitted, from and including that Master
Servicer Remittance Date, to but not including the related Distribution Date.
As and when required pursuant to Section 3.05(d), the Trustee shall
transfer monies from the Excess Liquidation Proceeds Account to the Collection
Account.
(c) [RESERVED]
(d) If any Excess Liquidation Proceeds are received on the Mortgage
Pool, the Trustee shall establish and maintain one or more separate, segregated
accounts (collectively, the "Excess Liquidation Proceeds Account") to be held in
trust for the sole benefit of the Certificateholders, for purposes of holding
such Excess Liquidation Proceeds. Each account that constitutes the Excess
Liquidation Proceeds Account shall be an Eligible Account. On each Master
Servicer Remittance Date, the Master Servicer shall withdraw from the Custodial
Account and remit to the Trustee for deposit in the Excess Liquidation Proceeds
Account all Excess Liquidation Proceeds received with respect to the Mortgage
Pool during the related Collection Period ending in the calendar month in which
such Master Servicer Remittance Date occurs. In addition, as and when required
pursuant to Section 3.06, the Trustee shall (in any event prior to any transfers
to the Collection Account on or before the related Distribution Date) deposit in
the Excess Liquidation Proceeds Account any amounts required to be so deposited
by the Trustee pursuant to Section 3.06 in connection with losses incurred with
respect to
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Permitted Investments of funds held in the Excess Liquidation Proceeds Account.
Subject to the next paragraph, the Excess Liquidation Proceeds Account may be a
sub-account of the Collection Account.
Notwithstanding that the Excess Liquidation Proceeds Account may be a
sub-account of the Collection Account for reasons of administrative convenience,
the Excess Liquidation Proceeds Account and the Collection 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.
(e) If any Loss of Value Payments are received in connection with a
Material Document Defect or Material Breach, as the case may be, pursuant to or
as contemplated by Section 2.03(e), the Trustee shall establish and maintain one
or more non-interest bearing separate, segregated accounts (collectively, the
"Loss of Value Reserve Fund") to be held in trust for the sole benefit of the
Certificateholders, for purposes of holding such Loss of Value Payments. Each
account that constitutes the Loss of Value Reserve Fund shall be an Eligible
Account. The Trustee shall, upon receipt, deposit in the Loss of Value Reserve
Fund all Loss of Value Payments received by it.
(f) Funds in the Custodial Account, the Collection Account and the
Excess Liquidation Proceeds Account may be invested only in Permitted
Investments in accordance with the provisions of Section 3.06. Funds in the Loss
of Value Reserve Fund shall remain uninvested. The Master Servicer shall give
notice to the Trustee, the Special Servicer and the Rating Agencies of the
location of the Custodial Account as of the Closing Date and of the new location
of the Custodial Account prior to any change thereof. As of the Closing Date,
the Collection Account and the Excess Liquidation Proceeds Account shall be
located at the Trustee's Corporate Trust Office. The Trustee shall give notice
to the Master Servicer, the Special Servicer and the Rating Agencies of any
change in the location of the Collection Account or the Excess Liquidation
Proceeds Account prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Custodial Account, the
Collection Account and the Excess Liquidation Proceeds Account.
(a) The Master Servicer may, from time to time, make withdrawals from
the Custodial Account for any of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Collection Account
the amounts required to be so deposited pursuant to the first paragraph of
Section 3.04(b), and any amounts that may be applied to make P&I Advances
with respect to the Mortgage Pool pursuant to Section 4.03(a);
(ii) to reimburse any Fiscal Agent, the Trustee and itself, in
that order, for xxxxxxxxxxxx X&X Advances made thereby with respect to the
Mortgage Pool, such Fiscal Agent's, the Trustee's and the Master
Servicer's, as the case may be, respective rights to reimbursement pursuant
to this clause (ii) with respect to any such P&I Advance being limited to
amounts on deposit in the Custodial Account that represent Late Collections
of interest and
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principal (net of related Master Servicing Fees and any related Workout
Fees and/or Liquidation Fees) received in respect of the particular
Mortgage Loan or REO Mortgage Loan as to which such P&I Advance was made;
(iii) to pay to itself earned and unpaid Master Servicing Fees
with respect to the Mortgage Pool, the Master Servicer's right to payment
pursuant to this clause (iii) with respect to any such Master Servicing
Fees being limited to amounts on deposit in the Custodial Account that are
allocable as a recovery of interest on or in respect of the Mortgage Loan
or REO Mortgage Loan as to which such Master Servicing Fees were earned;
(iv) to pay (A) to the Special Servicer, out of general
collections on the Mortgage Pool on deposit in the Custodial Account,
earned and unpaid Special Servicing Fees in respect of each Specially
Serviced Mortgage Loan and each REO Mortgage Loan that relates to an REO
Property and (B) to itself, out of general collections on the Mortgage Pool
on deposit in the Custodial Account, any Master Servicing Fee earned in
respect of any Mortgage Loan or REO Mortgage Loan that remains unpaid in
accordance with clause (iii) above following a Final Recovery Determination
made with respect to such Mortgage Loan or the related REO Property and the
deposit into the Custodial Account of all amounts received in connection
with such Final Recovery Determination;
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) any earned and unpaid Workout Fees and Liquidation Fees
in respect of each Specially Serviced Mortgage Loan, each Corrected
Mortgage Loan and/or each REO Mortgage Loan, as applicable, in the amounts
and from the sources specified in Section 3.11(c);
(vi) to reimburse any Fiscal Agent, the Trustee, the Special
Servicer and itself, in that order, for any unreimbursed Servicing Advances
made thereby with respect to any Mortgage Loan or REO Property, such Fiscal
Agent's, the Trustee's, the Special Servicer's and the Master Servicer's
respective rights to reimbursement pursuant to this clause (vi) with
respect to any Servicing Advance being limited to amounts on deposit in the
Custodial Account that represent payments made by or on behalf of the
related Mortgagor to cover the item for which such Servicing Advance was
made, and to amounts on deposit in the Custodial Account that represent
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and, if
applicable, REO Revenues (in each case, if applicable, net of any
Liquidation Fee or Workout Fee payable therefrom) received in respect of
the particular Mortgage Loan or REO Property as to which such Servicing
Advance was made;
(vii) to reimburse any Fiscal Agent, the Trustee, the Special
Servicer and itself, in that order, out of general collections on the
Mortgage Pool on deposit in the Custodial Account, for any unreimbursed
Advances that have been or are determined to be Nonrecoverable Advances
(provided that such amounts may be withdrawn over time in accordance with
Sections 3.11(g) or 4.03(d), as applicable);
(viii) to pay any Fiscal Agent, the Trustee, the Special Servicer
and itself, in that order, any unpaid interest accrued and payable in
accordance with Section 3.11(g) or 4.03(d), as applicable, on any Advance
made thereby under this Agreement, such Fiscal Agent's, the Trustee's, the
Special Servicer's and the Master Servicer's respective rights to payment
pursuant to this clause (viii) with respect to interest on any such Advance
being limited to
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amounts on deposit in the Custodial Account that represent Default Charges
collected on or in respect of the Mortgage Loan or REO Mortgage Loan, as
applicable, as to which the subject Advance was made, as and to the extent
contemplated by Section 3.25;
(ix) to pay, out of general collections on the Mortgage Pool on
deposit in the Custodial Account, any Fiscal Agent, the Trustee, the
Special Servicer and itself, in that order, any unpaid interest accrued and
payable in accordance with Section 3.11(g) or 4.03(d), as applicable, on
any Advance made thereby with respect to the Mortgage Pool, but only to the
extent that such Advance has been reimbursed or is then being reimbursed
and the related Default Charges then on deposit in the Custodial Account
are not sufficient to make such payment as contemplated by the immediately
preceding clause (viii);
(x) to pay, out of amounts on deposit in the Custodial Account
that represent Default Charges collected on or in respect of the Mortgage
Loan or REO Mortgage Loan to which the subject expense relates (to the
extent such Default Charges are not otherwise applied as contemplated by
clause (viii) above), any unpaid expense (other than interest accrued on
Advances, which is payable pursuant to clause (viii) above, and other than
Special Servicing Fees, Liquidation Fees and Workout Fees) that is incurred
with respect to such Mortgage Loan or REO Mortgage Loan and that, if paid
from collections on the Mortgage Pool other than Default Charges collected
with respect to such Mortgage Loan or REO Mortgage Loan, would constitute
an Additional Trust Fund Expense, as and to the extent contemplated by
Section 3.25;
(xi) to pay, out of general collections on the Mortgage Pool on
deposit in the Custodial Account, for (A) costs and expenses incurred by
the Trust Fund pursuant to Section 3.09(c) (other than the costs of
environmental testing, which are to be covered by, and reimbursable as, a
Servicing Advance), (B) the cost of an independent appraiser or other
expert in real estate matters retained pursuant to Sections 3.11(h), 3.18
or 4.03(c), and (C) the fees of any Independent Contractor retained with
respect to any related REO Property pursuant to Section 3.17(d) (to the
extent that it has not paid itself such fees prior to remitting collections
on such REO Property to the Special Servicer);
(xii) to pay itself, as additional master servicing compensation
in accordance with Section 3.11(b), any amounts on deposit in the Custodial
Account that represent (A) interest and investment income earned in respect
of amounts held in the Custodial Account as provided in Section 3.06(b),
but only to the extent of the Net Investment Earnings with respect to the
Custodial Account for any related Investment Period, (B) Prepayment
Interest Excesses collected on the Mortgage Pool and (C) Net Default
Charges (after application pursuant to Section 3.25) actually Received by
the Trust that accrued in respect of a Performing Mortgage Loan; and to pay
the Special Servicer, as additional special servicing compensation in
accordance with Section 3.11(d), any amounts on deposit in the Custodial
Account that represent Net Default Charges (after application to cover such
other payments and reimbursements as are provided for under Section 3.25)
actually collected that accrued in respect of a Specially Serviced Mortgage
Loan and/or an REO Mortgage Loan that relates to an REO Property;
(xiii) to pay itself, the Special Servicer, the Depositor, or any
of their respective members, managers, directors, officers, employees and
agents, as the case may be, out
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of general collections on the Mortgage Pool on deposit in the Custodial
Account, any amounts payable to any such Person pursuant to Section 6.03;
(xiv) to pay, out of general collections on the Mortgage Pool on
deposit in the Custodial Account, for (A) the cost of the Opinion of
Counsel contemplated by Section 11.02(a), (B) the cost of an Opinion of
Counsel contemplated by Section 11.01(a) or 11.01(c) in connection with any
amendment to this Agreement requested by the Master Servicer or the Special
Servicer that protects or is in furtherance of the rights and interests of
Certificateholders, and (C) the cost of recording this Agreement in
accordance with Section 11.02(a);
(xv) to pay itself, the Special Servicer, the Depositor, any
Controlling Class Certificateholder or any other Person, as the case may
be, with respect to each Mortgage Loan, if any, previously purchased by
such Person pursuant to this Agreement, all amounts received thereon
subsequent to the date of purchase that have been deposited in the
Custodial Account;
(xvi) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Pool on deposit in the Custodial Account, any
servicing expenses, that would, if advanced, constitute Nonrecoverable
Servicing Advances;
(xvii) on each Master Servicer Remittance Date, to transfer
Excess Liquidation Proceeds in respect of the Mortgage Pool to the Trustee,
for deposit in the Excess Liquidation Proceeds Account, in accordance with
Section 3.04(d);
(xviii) to withdraw any amounts deposited by the Master Servicer
in the Custodial Account in error; and
(xix) to clear and terminate the Custodial Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from the Custodial Account pursuant to clauses (ii) through (xvii)
above.
The Master Servicer shall pay to the Special Servicer (or to
third-party contractors at the direction of the Special Servicer), the Trustee
or any Fiscal Agent from the Custodial Account, amounts permitted to be paid to
the Special Servicer (or to any such third-party contractor), the Trustee or
such Fiscal Agent therefrom promptly upon receipt of a written statement of a
Servicing Officer of the Special Servicer or of a Responsible Officer of the
Trustee or such Fiscal Agent describing the item and amount to which the Special
Servicer (or such third-party contractor), the Trustee or such Fiscal Agent, as
applicable, is entitled (unless such payment to the Special Servicer, the
Trustee (for example, the Trustee Fee) or such Fiscal Agent, as the case may be,
is clearly required pursuant to this Agreement, in which case a written
statement is not required). The Master Servicer may rely conclusively on any
such written statement and shall have no duty to re-calculate the amounts stated
therein.
The Special Servicer shall keep and maintain separate accounting for
each Specially Serviced Mortgage Loan and REO Property, on a loan-by-loan basis,
for the purpose of justifying any request for withdrawal from the Custodial
Account. With respect to each Mortgage Loan for which it makes an Advance, each
of the Trustee and any Fiscal Agent shall keep and maintain separate
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accounting, on a loan-by-loan basis, for the purpose of justifying any request
for withdrawal from the Custodial Account for reimbursements of Advances or
payments of interest thereon.
(b) The Trustee may, from time to time, make withdrawals from the
Collection Account for any of the following purposes (in no particular order of
priority):
(i) to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01 or 9.01, as applicable;
(ii) to pay (A) the Trustee, any Fiscal Agent or any of their
respective directors, officers, employees and agents, as the case may be,
out of general collections on the Mortgage Pool on deposit in the
Collection Account, any amounts payable or reimbursable to any such Person
pursuant to Section 7.01(b) and/or Section 8.05, as applicable, and (B) as
and when contemplated by Section 8.08, the cost of the Trustee's
transferring Mortgage Files and other documents to a successor after being
terminated by Certificateholders pursuant to Section 8.07(c) without cause;
(iii) to pay, out of general collections on the Mortgage Pool on
deposit in the Collection Account, for the cost of the Opinions of Counsel
sought by the Trustee or the Tax Administrator (A) as provided in clause
(iv) of the definition of "Disqualified Organization", (B) as contemplated
by Sections 10.01(i) and 10.02(i), or (C) as contemplated by Section
11.01(a) 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;
(iv) to pay, out of general collections on the Mortgage Pool on
deposit in the Collection Account, any and all federal, state and local
taxes imposed on any REMIC Pool or on the assets or transactions of any
REMIC Pool, together with all incidental costs and expenses, to the extent
none of the Depositor, the Trustee, the Tax Administrator, the Master
Servicer or the Special Servicer is liable therefor pursuant to Section
10.01(j) or Section 10.02(j);
(v) to pay the Tax Administrator, out of general collections on
the Mortgage Pool on deposit in the Collection Account, any amounts
reimbursable to it pursuant to Section 10.01(f) or Section 10.02(b);
(vi) to pay the Master Servicer any amounts deposited by the
Master Servicer in the Collection Account in error;
(vii) to pay itself any Net Investment Earnings with respect to
the Collection Account for any related Investment Period; and
(viii) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
On or prior to a Distribution Date, the Trustee shall be entitled to
withdraw amounts that are payable or reimbursable as set forth in clauses (ii)
through (vii) above from the Collection Account prior to making distributions to
Certificateholders on such Distribution Date.
(c) [RESERVED]
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(d) On each Master Servicer Remittance Date, the Trustee shall
withdraw from the Excess Liquidation Proceeds Account and deposit in the
Collection Account, for distribution on the following Distribution Date, an
amount equal to the lesser of (i) the entire amount, if any, then on deposit in
the Excess Liquidation Proceeds Account and (ii) the excess, if any, of the
aggregate amount distributable with respect to the Regular Interest Certificates
on such Distribution Date pursuant to Sections 4.01(a) and 4.01(b), over the
Available Distribution Amount for such Distribution Date (calculated without
regard to such transfer from the Excess Liquidation Proceeds Account to the
Collection Account); provided that on the Master Servicer Remittance Date
immediately prior to the Final Distribution Date, the Trustee shall withdraw
from the Excess Liquidation Proceeds Account and deposit in the Collection
Account, for distribution on such Distribution Date, any and all amounts then on
deposit in the Excess Liquidation Proceeds Account. On each Distribution Date,
the Trustee may withdraw from the Excess Liquidation Proceeds Account and pay
itself any Net Investment Earnings with respect to the Excess Liquidation
Proceeds Account for the then most recently ended related Investment Period.
(e) If any Loss of Value Payments are deposited into the Loss of Value
Reserve Fund with respect to any Mortgage Loan or any related REO Property, then
the Trustee shall, promptly upon receipt of a written instruction from the
Special Servicer directing the Trustee to effect a transfer of Loss of Value
Payments and the amount thereof, transfer such Loss of Value Payments (up to the
remaining portion thereof) from the Loss of Value Reserve Fund to the Custodial
Account for the following purposes:
(i) to reimburse the Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent, in accordance with Section 3.05(a), for any
Nonrecoverable Advance made by such party with respect to such Mortgage
Loan or any related REO Property (together with interest thereon);
(ii) to pay, in accordance with Section 3.05(a), or to reimburse
the Trust for the prior payment of, any expense relating to such Mortgage
Loan or any related REO Property that constitutes or, if not paid out of
such Loss of Value Payments, would constitute an Additional Trust Fund
Expense;
(iii) to offset any Realized Loss (as calculated without regard
to the application of such Loss of Value Payments) incurred with respect to
such Mortgage Loan or any successor REO Mortgage Loan with respect thereto;
and
(iv) following the occurrence of a Liquidation Event with respect
to such Mortgage Loan or any related REO Property, to cover the items
contemplated by the immediately preceding clauses (i)-(iii) in respect of
any other Mortgage Loan or REO Mortgage Loan.
Any Loss of Value Payments transferred to the Custodial Account
pursuant to clauses (i)-(iii) of the prior paragraph shall, except for purposes
of Section 3.11(c), be deemed to constitute Liquidation Proceeds Received by the
Trust in respect of the related Mortgage Loan or any successor REO Mortgage Loan
with respect thereto for which such Loss of Value Payments were received; and
any Loss of Value Payments transferred to the Custodial Account pursuant to
clause (iv) of the prior paragraph shall, except for purposes of Section
3.11(c), be deemed to constitute Liquidation Proceeds Received by the Trust in
respect of the Mortgage Loan or REO Mortgage Loan for which such Loss of
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Value Payments are being transferred to the Custodial Account to cover an item
contemplated by clauses (i)-(iii) of the prior paragraph.
On the Master Servicer Remittance Date related to the Final
Distribution Date, the Trustee shall withdraw from the Loss of Value Reserve
Fund, and deposit in the Collection Account for distribution on the Final
Distribution Date, an amount equal to the lesser of (i) the entire amount, if
any, then on deposit in the Loss of Value Reserve Fund and (ii) the excess, if
any, of the aggregate amount needed to distribute to the Holders of the Regular
Interest Certificates in accordance with Section 4.01, all Distributable
Certificate Interest then payable thereto, together with the aggregate
Certificate Principal Balance of, and all Loss Reimbursement Amounts for such
Final Distribution Date in respect of, the respective Classes of the Regular
Interest Certificates, over the Available Distribution Amount for the Final
Distribution Date (calculated without regard to such transfer from the Loss of
Value Reserve Fund to the Collection Account). Such Loss of Value Payments so
deposited in the Collection Account shall constitute part of the Available
Distribution Amount for the Final Distribution Date. Any amount remaining in the
Loss of Value Reserve Fund on the Final Distribution Date, after application in
accordance with the second preceding sentence, shall be distributable to the
Holders of the Class R-III Certificates on the Final Distribution Date.
SECTION 3.06. Investment of Funds in the Collection Account, the
Servicing Accounts, the Reserve Accounts, the Defeasance Deposit Account, the
Custodial Account, the REO Account and the Excess Liquidation Proceeds Account.
(a) (i) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Defeasance
Deposit Account or the Custodial Account (any of the foregoing accounts listed
in this clause (i), a "Master Servicer Account"), (ii) the Special Servicer may
direct in writing any depository institution maintaining the REO Account, and
(iii) the Trustee may direct (pursuant to a standing order or otherwise) any
depository institution maintaining the Collection Account or the Excess
Liquidation Proceeds Account (any of the foregoing accounts listed in this
clause (iii), a "Trustee Account"; and any of the Master Servicer Accounts, the
REO Account and Trustee Accounts, an "Investment Account"), to invest, or if it
is such depository institution, may itself invest, the funds held therein in one
or more Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand, (x) 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 or (y) if and to
the extent that the depository institution maintaining such Investment Account
is the obligor on such investment, no later than the time and date as of which
such funds are required to be withdrawn from such account pursuant to this
Agreement (but in any event prior to distributions on the Certificates or any
transfers to another Investment Account being made on or before the related
Distribution Date); provided that in the case of any Servicing Account, any
Reserve Account or the Defeasance Deposit Account, such investment direction
shall be subject to the related loan documents and applicable law.
All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trustee (in its capacity as such). The Master Servicer
(with respect to Permitted Investments of amounts in the Master Servicer
Accounts) and the Special Servicer (with respect to Permitted Investments of
amounts in the REO Account), on behalf of the Trustee, or the Trustee in its
capacity as such (in the case of any Trustee
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Account), shall (i) be the "entitlement holder" of any Permitted Investment that
is a "security entitlement" and (ii) maintain "control" of any Permitted
Investment that is a "certificated security", "uncertificated security" or
"deposit account". The Trustee hereby designates the Master Servicer (with
respect to Permitted Investments of amounts in the Master Servicer Accounts) and
the Special Servicer (with respect to Permitted Investments of amounts in the
REO Account), as applicable, as the Person that shall be the "entitlement
holder" and maintain "control" as set forth under clauses (i) and (ii) above.
For purposes of this Section 3.06(a), (i) the terms "entitlement holder",
"security entitlement", "control" (except with respect to deposit accounts),
"certificated security" and "uncertificated security" shall have the meanings
given such terms in Revised Article 8 (1994 Revision) of the UCC, and the terms
"control" (with respect to deposit accounts) and "deposit account" shall have
the meanings given such terms in Revised Article 9 (1998 Revision) of the UCC,
and (ii) "control" of any Permitted Investment in any Investment Account by the
Master Servicer or the Special Servicer shall constitute "control" by a Person
designated by, and acting on behalf of, the Trustee, for purposes of Revised
Article 8 (1994 Revision) of the UCC or Revised Article 9 (1998 Revision) of the
UCC, as applicable. If amounts on deposit in an Investment Account are at any
time invested in a Permitted Investment payable on demand, the Master Servicer
(in the case of any Master Server Account), the Special Servicer (in the case of
the REO Account) or the Trustee (in the case of any Trustee Account) shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount
equal to at least the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Special Servicer or the
Trustee, as the case may be, that such Permitted Investment would
not constitute a Permitted Investment in respect of funds
thereafter on deposit in the Investment Account.
(b) Whether or not the Master Servicer directs the investment of funds
in any of the Master Servicer Accounts, interest and investment income realized
on funds deposited therein, to the extent of the Net Investment Earnings, if
any, for each such Investment Account for each related Investment Period (and,
in the case of Servicing Accounts, Reserve Accounts and the Defeasance Deposit
Account, to the extent not otherwise payable to Mortgagors under applicable law
or the related loan documents), shall be for the sole and exclusive benefit of
the Master Servicer and shall be subject to its withdrawal in accordance with
Section 3.03(a), 3.03(d), 3.04(a) or 3.05(a), as applicable. Whether or not the
Special Servicer directs the investment of funds in the REO Account, interest
and investment income realized on funds deposited therein, to the extent of the
Net Investment Earnings, if any, for such Investment Account for each related
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 any of
the Trustee Accounts, interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for such
Investment Account for each related 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), 3.05(c) or 3.05(d), as the case may be. If any
loss shall be incurred in respect of any Permitted Investment on deposit in any
Investment Account, the Master Servicer (in the case of (i) the Servicing
Accounts, the Reserve Accounts and the Defeasance Deposit Account (except to the
extent that any investment of funds with respect thereto is at the direction of
a Mortgagor in accordance with the related loan documents or
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applicable law) and (ii) the Custodial Account), the Special Servicer (in the
case of the REO Account) and the Trustee (in the case of any Trustee Account)
shall promptly deposit therein from its own funds, without right of
reimbursement, no later than the end of the related Investment Period, during
which such loss was incurred, the amount of the Net Investment Loss, if any, for
such Investment Account for such Investment Period. Notwithstanding any of the
foregoing provisions of this Section 3.06, no party shall be required under this
Agreement to deposit any loss on a deposit of funds in an Investment Account if
such loss is incurred solely as a result of the insolvency of the federal or
state chartered depository institution or trust company with which such deposit
was maintained so long as such depository institution or trust company satisfied
the conditions set forth in the definition of "Eligible Account" at the time
such deposit was made and also as of a date no earlier than 30 days prior to the
insolvency.
(c) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may, and subject to Section 8.02, upon the request of
the Certificateholders entitled to a majority 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 the calculation
of the Available Distribution Amount and the Master Servicer Remittance Amount,
the amounts so invested shall be deemed to remain on deposit in such Investment
Account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage; Environmental Insurance.
(a) The Master Servicer shall use reasonable efforts, consistent with
the Servicing Standard, to cause to be maintained for each Mortgaged Property
that secures a Mortgage Loan and is not an REO Property, all insurance coverage
as is required under the related Mortgage Loan (except to the extent that the
failure to maintain such insurance coverage is an Acceptable Insurance Default);
provided that, if and to the extent that any such Mortgage permits the holder
thereof any discretion (by way of consent, approval or otherwise) as to the
insurance coverage that the related Mortgagor is required to maintain, the
Master Servicer or Special Servicer, as the case may be, shall exercise such
discretion in a manner consistent with the Servicing Standard; and provided,
further, that, if and to the extent that a Mortgage so permits, the Master
Servicer or Special Servicer, as the case may be, shall use reasonable efforts
to require the related Mortgagor to obtain the required insurance coverage from
Qualified Insurers that have, in each such case, the applicable Required Insurer
Rating; and provided, further, that the Master Servicer shall cause to be
maintained, with Qualified Insurers that have, in each such case, the applicable
Required Insurer Rating, for any such Mortgaged Property any such insurance that
the related Mortgagor is required but fails to maintain, but only to the extent
that (i) the Trustee (as mortgagee of record on behalf of the Certificateholders
) has an insurable interest, and (ii) either (A) such insurance is available at
a commercially reasonable rate, or (B) solely in the case of all-risk insurance
or other insurance that covers losses from acts of terrorism, the failure by the
Mortgagor to maintain such insurance has not been determined by the Special
Servicer, based on due inquiry in accordance with the Servicing Standard, to
constitute an Acceptable Insurance Default. In determining whether any insurance
coverage is available or is available at reasonable rates, the Master Servicer
or
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Special Servicer, as applicable, shall, to the extent consistent with the
Servicing Standard, be entitled to rely on insurance consultants in making such
determination and any such determinations by the Master Servicer or Special
Servicer, as the case may be 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 Master Servicer or Special Servicer, as the case
may be, receives notice of the renewal, replacement or cancellation of coverage.
Subject to Sections 6.11(b), the Controlling Class Representative (in the case
of any other Mortgaged Property securing a Mortgage Loan) may request that
earthquake insurance be secured for such Mortgaged Property by the related
Mortgagor, to the extent that (i) such insurance may be obtained at a
commercially reasonable price and (ii) the related loan documents and applicable
law give the mortgagee the right to request such insurance coverage and such
loan documents require the Mortgagor to obtain earthquake insurance at the
request of the mortgagee. Subject to Section 3.17(a), the Special Servicer, in
accordance with the Servicing Standard, shall also cause to be maintained for
each REO Property no less insurance coverage than was previously required of the
Mortgagor under the related Mortgage; provided that such insurance is available
at commercially reasonable rates and the subject hazards are at the time
commonly insured against for properties similar to the subject REO Property
located in or around the region in which such REO Property is located (or, in
the case of all-risk insurance or other insurance that covers acts of terrorism,
the Special Servicer has determined, based on due inquiry in accordance with the
Servicing Standard, that either such insurance is available at a commercially
reasonable rate or the subject hazards are at the time commonly insured against
for properties similar to the subject REO Property located in or around the
region in which such REO Property is located); and provided, further, that all
such insurance shall be obtained from Qualified Insurers that have, in each such
case, the applicable Required Insurer Rating. All such insurance policies shall
contain (if they insure against loss to property and do not relate to an REO
Property) a "standard" mortgagee clause, with loss payable to the Master
Servicer (in the case of insurance maintained in respect of Mortgage Loans,
including Specially Serviced Mortgage Loans), and shall be in the name of the
Special Servicer (in the case of insurance maintained in respect of REO
Properties), on behalf of the Trustee. If the Special Servicer is in the process
of making a determination, in the case of all-risk insurance or other insurance
that covers losses from acts of terrorism, as to whether the failure by the
Mortgagor under any Mortgage Loan to maintain such insurance constitutes an
Acceptable Insurance Default, then, during the period of such evaluation by the
Special Servicer (or, to the extent applicable, during the period that the
Special Servicer is obtaining the consent under Section 6.11 of the Controlling
Class Representative) the Master Servicer shall not be liable for any loss
related to its failure to require the related Mortgagor to maintain terrorism
insurance and shall not be in default of its obligations hereunder as a result
of such failure to maintain terrorism insurance (provided that the Master
Servicer used reasonable efforts, in accordance with the Servicing Standard, to
cause such Mortgagor to maintain such insurance and has given prompt written
notice to the Special Servicer of its determination that it will not be
successful in its efforts to cause the Mortgagor to obtain such insurance, along
with its determination, and any information in its possession, regarding the
availability and cost of such insurance). The Special Servicer shall promptly
notify the Master Servicer of each such determination by the Special Servicer
under this paragraph.
Any amounts collected by the Master Servicer or the Special Servicer
under any such policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property or REO Property or amounts to be
released to the related Mortgagor, in each case subject to the rights of any
tenants and ground lessors, as the case may be, and in each case in accordance
with the terms of the related Mortgage and the Servicing Standard) shall be
deposited in the applicable Custodial Account in
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accordance with Section 3.04(a), in the case of amounts received in respect of a
Mortgage Loan, or in the applicable REO Account in accordance with Section
3.16(b), in the case of amounts received in respect of an REO Property. Any cost
incurred by the Master Servicer or the Special Servicer in maintaining any such
insurance (including any earthquake insurance maintained at the request of the
Controlling Class Representative) shall not, for purposes hereof, including
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Mortgage Loan(s) or
REO Mortgage Loan(s), notwithstanding that the terms of such loan so permit, but
shall be recoverable by the Master Servicer or the Special Servicer, as
applicable, as a Servicing Advance.
(b) If either the Master Servicer or the Special Servicer shall obtain
and maintain, or cause to be obtained and maintained, a blanket policy or master
force placed policy insuring against hazard losses on all of the Mortgage Loans
and/or REO Properties that it is required to service and administer, then, to
the extent such policy (i) is obtained from a Qualified Insurer having (or whose
obligations are guaranteed or backed, in writing, by an entity having) the
applicable Required Insurer Rating, and (ii) provides protection equivalent to
the individual policies otherwise required, then the Master Servicer or the
Special Servicer, as the case may be, shall conclusively be deemed to have
satisfied its obligation to cause hazard insurance to be maintained on the
related Mortgaged Properties and/or the subject REO Properties. Such blanket
policy or master force placed policy may contain a deductible clause (not in
excess of a customary amount), in which case the Master Servicer or the Special
Servicer, as appropriate, shall, if there shall not have been maintained on the
related Mortgaged Property or subject REO Property an individual hazard
insurance policy complying with the requirements of Section 3.07(a), and there
shall have been one or more losses that would have been covered by such
individual policy, promptly deposit into the applicable Custodial Account from
its own funds the amount not otherwise payable under the blanket policy or
master force placed policy because of the deductible clause therein, to the
extent that any such deductible exceeds the deductible limitation that pertained
to the related Mortgage Loan (or in the absence of any such deductible
limitation, the deductible limitation for an individual policy which is
consistent with the Servicing Standard). The Master Servicer or the Special
Servicer, as appropriate, shall prepare and present, on behalf of itself, the
Trustee, the Certificateholders, claims under any such blanket policy or master
force placed policy in a timely fashion in accordance with the terms of such
policy.
(c) Subject to the third paragraph of this Section 3.07(c), each of
the Master Servicer and the Special Servicer shall at all times during the term
of this Agreement (or, in the case of the Special Servicer, at all times during
the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO
Properties are part of the Trust Fund) keep in force with Qualified Insurers
that, in each such case, has (or whose obligations are in each such case
guaranteed or backed, in writing, by an entity that has) the applicable Required
Insurer Rating, a fidelity bond, which fidelity bond shall be in such form and
amount as would permit it to be a qualified Xxxxxx Xxx seller-servicer of
multifamily mortgage loans, or in such other form and amount as would not cause
an Adverse Rating Event with respect to any Class of Certificates (as evidenced
in writing from each Rating Agency). Each of the Master Servicer and the Special
Servicer shall be deemed to have complied with the foregoing provision if an
Affiliate thereof has such fidelity bond coverage and, by the terms of such
fidelity bond, the coverage afforded thereunder extends to the Master Servicer
or the Special Servicer, as the case may be.
Subject to the third paragraph of this Section 3.07(c), each of the
Master Servicer and the Special Servicer shall at all times during the term of
this Agreement (or, in the case of the Special
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Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans and/or REO Properties are part of the Trust Fund) also
keep in force with Qualified Insurers that, in each such case, has (or whose
obligations are in each such case guaranteed or backed, in writing, by an entity
that has) the applicable Required Insurer Rating, a policy or policies of
insurance covering loss occasioned by the errors and omissions of its officers
and employees in connection with its servicing obligations hereunder, which
policy or policies shall be in such form and amount as would permit it to be a
qualified Xxxxxx Mae seller-servicer of multifamily mortgage loans, or in such
other form and amount as would not cause an Adverse Rating Event with respect to
any Class of Certificates (as evidenced in writing from each Rating Agency).
Each of the Master Servicer and the Special Servicer shall be deemed to have
complied with the foregoing provisions if an Affiliate thereof has such
insurance and, by the terms of such policy or policies, the coverage afforded
thereunder extends to the Master Servicer or the Special Servicer, as the case
may be.
Notwithstanding the foregoing, for so long as the long-term debt
obligations of the Master Servicer or Special Servicer (or its direct corporate
parent if such parent is responsible for the obligations of the Master Servicer
or Special Servicer, as applicable), as the case may be, are rated at least "A"
from S&P and "A" from Fitch (or, in the case of any such Rating Agency, such
lower rating as will not result in an Adverse Rating Event with respect to any
Class of Certificates rated by such Rating Agency, as evidenced in writing by
such Rating Agency), such Person may self-insure with respect to all or a
portion of the risks described in this Section 3.07(c).
(d) In the event that either of the Master Servicer or the Special
Servicer has actual knowledge of any event (an "Insured Environmental Event")
giving rise to a claim under any Environmental Insurance Policy in respect of
any Environmentally Insured Mortgage Loan for which the Mortgagor has not filed
a claim or in respect of an REO Property, the Master Servicer shall notify the
Special Servicer if such Mortgage Loan is a Specially Serviced Mortgage Loan,
and the Special Servicer shall notify the Master Servicer in all cases. Upon
becoming aware of such Insured Environmental Event, the Master Servicer, in the
case of a Performing Mortgage Loan, and the Special Servicer, in the case of a
Specially Serviced Mortgage Loan or an REO Property, in accordance with the
terms of such Environmental Insurance Policy and the Servicing Standard, shall
timely make a claim thereunder with the appropriate insurer and shall take such
other actions necessary under such Environmental Insurance Policy in order to
realize the full value thereof for the benefit of the Certificateholders. With
respect to each Environmental Insurance Policy in respect of an Environmentally
Insured Mortgage Loan, the Master Servicer (in the case of any such Mortgage
Loan that is a Performing Mortgage Loan) and the Special Servicer (in the case
of any such Mortgage Loan that is a Specially Serviced Mortgage Loan or in the
case of an REO Property) shall each review and familiarize itself with the terms
and conditions relating to enforcement of claims and shall, in the event the
Master Servicer or the Special Servicer has actual knowledge of an Insured
Environmental Event giving rise to a claim under such policy, 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.
The Master Servicer (in the case of Performing Mortgage Loans) and the
Special Servicer (in the case of Specially Serviced Mortgage Loans and REO
Properties) shall each abide by the terms and conditions precedent to payment of
claims under the Environmental Insurance Policies with respect to the
Environmentally Insured Mortgage Loans and take all such actions as may be
required to comply
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with the terms and provisions of such policies in order to maintain such
policies in full force and effect and to make claims thereunder.
In the event that either the Master Servicer or the Special Servicer
receives notice of a termination of any Environmental Insurance Policy with
respect to an Environmentally Insured Mortgage Loan, then the party receiving
such notice shall, within five (5) Business Days after receipt thereof, provide
written notice of such termination to the other such party and the Trustee. Upon
receipt of such notice, the Master Servicer, with respect to a Performing
Mortgage Loan, or the Special Servicer, with respect to a Specially Serviced
Mortgage Loan or an REO Property, shall address such termination in accordance
with Section 3.07(a). Any legal fees, premiums or other out-of-pocket costs
incurred in accordance with the Servicing Standard in connection with enforcing
the obligations of the Mortgagor under any Environmental Insurance Policy or a
resolution of such termination of an Environmental Insurance Policy shall be
paid by the Master Servicer and shall be reimbursable to it as a Servicing
Advance.
The Master Servicer (with respect to Performing Mortgage Loans) and
the Special Servicer (with respect to Specially Serviced Mortgage Loans) shall
monitor the actions, and enforce the obligations, of the related Mortgagor under
each Environmentally Insured Mortgage Loan insofar as such actions/obligations
relate to (i) to the extent consistent with Section 3.07(a), the maintenance
(including, without limitation, any required renewal) of an Environmental
Insurance Policy with respect to the related Mortgaged Property or (ii)
environmental testing or remediation at the related Mortgaged Property.
SECTION 3.08. Enforcement of Alienation Clauses.
(a) If, with respect to any Performing Mortgage Loan, the Master
Servicer receives a request from a Mortgagor regarding the transfer of the
related Mortgaged Property to, and assumption of such Performing Mortgage Loan
by, another Person and/or transfers of certain interests in such Mortgagor
(including, without limitation, sales or transfers of the related Mortgaged
Property (in full or in part) or the sale, transfer, pledge or hypothecation of
direct or indirect interests in the related Mortgagor or its owners) or, in the
case of a Performing Mortgage Loan that by its terms permits transfer or
assumption without the consent of the lender so long as certain conditions are
satisfied, a request by the related Mortgagor for a determination that such
conditions have been satisfied, then the Master Servicer shall promptly notify
the Special Servicer of such request, shall evaluate (consistent with the
Servicing Standard) the experience and financial condition of the proposed
transferee and the status of any conditions to transfer or assumption (as
described above) and prepare a report in connection therewith and shall deliver
to the Special Servicer such report and any documents or other materials that
the Master Servicer shall have received regarding the proposed transfer and, if
applicable, the proposed assumption. The Special Servicer shall have the right
hereunder, within 15 days (or, in the case of a consent to a determination as to
whether the conditions precedent to the subject transfer or assumption have been
satisfied, within 10 days, or within such longer period as may be necessary to
obtain any required consent pursuant to Section 6.11, as and if applicable) of
receipt of such recommendation and supporting materials and any other materials
reasonably requested by the Special Servicer, in accordance with the Servicing
Standard, to withhold or grant consent to any such request for such transfer
and/or assumption and/or to make a determination as to whether the conditions to
transfer or assumption (as described above) have been satisfied, as applicable,
each in accordance with the terms of the subject Performing Mortgage Loan and
this Agreement; provided that any grant of consent on the
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part of the Special Servicer shall be subject to Section 3.08(d) and/or Section
6.11, in each case if and as applicable. If the Special Servicer does not
respond within such 15-day period, 10-day period or such longer period as set
forth above, as the case may be, such party's consent shall be deemed granted;
provided that if the Special Servicer's consent is not withheld, granted or
deemed granted within the aforementioned 15-day period or 10-day period, as
applicable, because the Special Servicer is in the process of obtaining a
consent required pursuant to Section 6.11, then the Special Servicer shall
provide notice to the Master Servicer of such process and the estimated time
period for completion thereof. If the Special Servicer, in accordance with the
Servicing Standard, (i) withholds or denies its consent to any such request for
such transfer and/or assumption with respect to any Performing Mortgage Loan
and/or (ii) determines, with respect to any Performing Mortgage Loan that by its
terms permits transfer and/or assumption without lender consent so long as
certain conditions are satisfied, that such conditions have not been satisfied,
then, in each such case, the Special Servicer shall notify the Master Servicer
in writing of such determination, and the Master Servicer shall notify the
related Mortgagor that the requested transfer and/or assumption will not be
permitted and shall restrict the requested transfer and/or assumption of the
subject Performing Mortgage Loan in accordance with the Servicing Standard. If
the Special Servicer consents or is deemed to consent to such proposed transfer
and/or assumption and/or determines that the conditions to transfer or
assumption have been satisfied, the Master Servicer shall process such request
of the related Mortgagor; and, in the case of a transfer of the related
Mortgaged Property to, and assumption of such Performing Mortgage Loan by,
another Person, the Master Servicer (subject to Section 3.08(d)) shall be
authorized to enter into an assumption or substitution agreement with the
Person, which shall be a Single Purpose Entity, to whom the related Mortgaged
Property has been or is proposed to be conveyed and/or release the original
Mortgagor from liability under such Performing Mortgage Loan and substitute as
obligor thereunder the Person to whom the related Mortgaged Property has been or
is proposed to be conveyed; provided, however, that the Master Servicer shall
not enter into any such agreement to the extent that any terms thereof would
result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any
lien on a Mortgaged Property that is senior to, or on parity with, the lien of
the related Mortgage. The Master Servicer shall notify the Trustee, the Special
Servicer, each Rating Agency, the Controlling Class Representative, of any
assumption or substitution agreement executed pursuant to this Section 3.08(a)
and shall forward thereto a copy of such agreement together with a Review
Package. Subject to the terms of the related loan documents, no assumption of a
Cross-Collateralized Mortgage Loan shall be made without the assumption of all
other Mortgage Loans making up the related Cross-Collateralized Group. Further,
subject to the terms of the related loan documents and applicable law, no
assumption of a Mortgage Loan shall be made or transfer of interest in a
Mortgagor approved, unless all costs in connection therewith, including any
arising from seeking Rating Agency confirmation, are paid by the related
Mortgagor.
(b) If, with respect to a Specially Serviced Mortgage Loan, the Master
Servicer receives a request from a Mortgagor for consent to a transfer of the
related Mortgaged Property and assumption of such Specially Serviced Mortgage
Loan and/or consent to a transfer of interests in the related Mortgagor
(including, without limitation, sales or transfers of the related Mortgaged
Property (in full or in part) or the sale, transfer, pledge or hypothecation of
direct or indirect interests in the related Mortgagor or its owners) or in the
case of a Specially Serviced Mortgage Loan that by its terms permits transfer or
assumption without the consent of the lender so long as certain conditions are
satisfied, a request by the related Mortgagor for a determination that such
conditions have been satisfied, the Master Servicer shall promptly notify the
Special Servicer of such request and deliver to the Special Servicer any
documents that the Master Servicer shall have received regarding the proposed
transfer and
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assumption. Subject to Section 3.08(d) and/or Section 6.11, in each case if and
as applicable, the Special Servicer shall determine whether to grant such
consent, whether the conditions to transfer or assumption (as described above)
have been satisfied and/or whether to enforce any restrictions on such transfer
and/or assumption contained in the related loan documents, as applicable, each
in accordance with the Servicing Standard.
Upon consent by the Special Servicer to any proposed transfer of a
Mortgaged Property and assumption by the proposed transferee of the related
Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer shall
process the request of the related Mortgagor for such transfer and assumption
and shall be authorized to enter into an assumption or substitution agreement
with the Person, which shall be a Single Purpose Entity, to whom the related
Mortgaged Property has been or is proposed to be conveyed and/or release the
original Mortgagor from liability under the related Mortgage Loan and substitute
as obligor thereunder the Person to whom the related Mortgaged Property has been
or is proposed to be conveyed; provided, however, that the Special Servicer
shall not enter into any such agreement to the extent that any terms thereof
would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create
any lien on a Mortgaged Property that is senior to, or on parity with, the lien
of the related Mortgage. The Special Servicer shall notify the Trustee, the
Master Servicer, each Rating Agency, and the Controlling Class Representative,
of any assumption or substitution agreement executed pursuant to this Section
3.08(b) and shall forward thereto a copy of such agreement. Subject to the terms
of the related loan documents, no assumption of a Cross-Collateralized Mortgage
Loan shall be made without the assumption of all other Mortgage Loans making up
the related Cross-Collateralized Group. Further, subject to the terms of the
related loan documents and applicable law, no assumption of a Mortgage Loan
shall be made unless all costs in connection therewith, including any arising
from seeking Rating Agency confirmation, are paid by the related Mortgagor.
As used in this Section 3.08, the terms "sale" and "transfer" shall
include the matters contemplated by the parentheticals in the first sentence of
Section 3.08(a).
(c) If, with respect to a Performing Mortgage Loan, the Master
Servicer receives a request from the related Mortgagor regarding a further
encumbrance of the related Mortgaged Property or of an interest in the related
Mortgagor (including, without limitation, any mezzanine financing of the related
Mortgagor or any direct or indirect owners of the related Mortgagor or the
Mortgaged Property or any sale, issuance or transfer of preferred equity in the
Mortgagor or its owners or, in the case of a Performing Mortgage Loan that by
its terms permits further encumbrance without the consent of the lender provided
certain conditions are satisfied, a request by the related Mortgagor for a
determination that such conditions have been satisfied), then the Master
Servicer shall promptly obtain relevant information for purposes of evaluating
such request. If the Master Servicer determines, consistent with the Servicing
Standard, to approve such further encumbrance or that the conditions precedent
to such further encumbrance have been satisfied, as applicable, then the Master
Servicer shall provide to the Special Servicer a written copy of such
recommendation (which shall include the reason therefor) and the materials upon
which such recommendation is based. The Special Servicer shall have the right
hereunder, within 15 days (or, in the case of a consent to a determination as to
whether the conditions precedent to a further encumbrance have been satisfied,
within 10 days), or within such longer period as may be necessary to obtain any
required consent pursuant to Section 6.11, as and if applicable, of receipt of
such recommendation and supporting materials and any other materials reasonably
requested by the Special Servicer, to reasonably withhold or, subject to Section
3.08(d) and, further, subject to the Special Servicer obtaining any consent to
the extent required pursuant to Section 6.11, if and as applicable, grant
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consent to any such request for such further encumbrance of the related
Mortgaged Property or of an interest in the related Mortgagor or to object or
consent to the determination by the Master Servicer as to whether the conditions
to further encumbrance (as described above) have been satisfied, as applicable,
each in accordance with the terms of such Performing Mortgage Loan and this
Agreement and subject to the Servicing Standard. If the Special Servicer does
not respond within such 15-day period, 10-day period or such longer period as
set forth above, as the case may be, such party's consent shall be deemed
granted; provided that if the Special Servicer's consent is not withheld,
granted or deemed granted within the aforementioned 15-day period or 10-day
period, as applicable, because the Special Servicer is in the process of
obtaining a consent required pursuant to Section 6.11, then the Special Servicer
shall provide notice to the Master Servicer of such process and the estimated
time period for completion thereof. If the Special Servicer consents or is
deemed to have consented to such further encumbrance of the related Mortgaged
Property or of an interest in the related Mortgagor, as applicable, the Master
Servicer shall process such request of the related Mortgagor. If the Special
Servicer does not consent to, and is not deemed to have consented to, such
further encumbrance, then the Master Servicer, on behalf of the Trustee (as
mortgagee of record on behalf of the Certificateholders) shall, to the extent
permitted by applicable law, enforce the restrictions contained in the related
loan documents on further encumbrances of the related Mortgaged Property and/or
of an interest in the related Mortgagor, as applicable. If the Special Servicer,
in accordance with the Servicing Standard, within the requisite time period, (i)
objects to the determination by the Master Servicer with respect to a Performing
Mortgage Loan (which by its terms permits further encumbrance without lender
consent provided certain conditions are satisfied) that the subject conditions
have been satisfied, or (ii) determines with respect to any other Mortgage Loan
(which by its terms permits further encumbrance without lender consent provided
certain conditions are satisfied) that the subject conditions have not been
satisfied, then, in each such case, the Special Servicer shall notify the Master
Servicer in writing of such objection or determination, as applicable, and the
Master Servicer shall notify the related Mortgagor that the requested further
encumbrance will not be permitted and shall restrict the requested further
encumbrance of the subject Mortgage Loan in accordance with the Servicing
Standard. To the extent permitted by the applicable loan documents and
applicable law, the Master Servicer may charge the related Mortgagor (and retain
to the extent permitted under Section 3.11) a fee in connection with any
enforcement or waiver contemplated in this paragraph of subsection (c).
With respect to any Specially Serviced Mortgage Loan, the Special
Servicer, on behalf of the Trustee (as mortgagee of record on behalf of the
Certificateholders) shall, to the extent permitted by applicable law, enforce
the restrictions contained in the related loan documents on further encumbrances
of the related Mortgaged Property and/or of interests in the related Mortgagor,
as applicable, and shall, with respect to Specially Serviced Mortgage Loans that
by their terms permit further encumbrance without mortgagee consent so long as
certain conditions are satisfied, make all determinations as to whether such
conditions have been satisfied, and shall process all documentation in
connection therewith, unless the Special Servicer has determined, in its
reasonable, good faith judgment, that waiver of such restrictions or such
conditions, as the case may be, would be in accordance with the Servicing
Standard (as evidenced by an Officer's Certificate setting forth the basis for
such determination delivered to the Trustee, the Master Servicer, each Rating
Agency); provided that any such waiver of such restrictions shall be subject to
Section 3.08(d) and Section 6.11, if and as applicable. To the extent permitted
by the applicable loan documents and applicable law, the Special Servicer may
charge the related Mortgagor (and retain to the extent permitted under Section
3.11) a fee in connection with any enforcement or waiver contemplated in this
paragraph of subsection (c).
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As used in this Section 3.08, the term "encumbrance" shall include the
matters contemplated by the parentheticals in the first sentence of this Section
3.08(c).
(d) Notwithstanding anything to the contrary contained in this Section
3.08, but subject to the related loan documents and applicable law: (i) if (A)
the then unpaid principal balance of the subject Mortgage Loan, together with
any other Mortgage Loans that are cross-collateralized therewith, is at least
equal to the lesser of (1) $35,000,000 and (2) 5% of the then aggregate
principal balance of the Mortgage Pool or (B) the subject Mortgage Loan is then
one of the ten (10) largest Mortgage Loans in the Mortgage Pool, then neither
the Master Servicer nor the Special Servicer, as applicable, shall waive any
restrictions contained in the related Mortgage on transfers of the related
Mortgaged Property or on transfers of interests in the related Mortgagor, and
(ii) if (W) the then unpaid principal balance of the subject Mortgage Loan,
together with any other Mortgage Loans that are cross-collateralized therewith,
is at least equal to the lesser of (1) $20,000,000 and (2) 2% of the then
aggregate principal balance of the Mortgage Pool or (X) the subject Mortgage
Loan is then one of the ten (10) largest Mortgage Loans in the Mortgage Pool or
(Y) the aggregate loan-to-value ratio of the subject Mortgage Loan (together
with any additional loans that would further encumber the related Mortgaged
Property and/or interests in the related Mortgagor) would be equal to or greater
than 85% or (Z) the aggregate debt service coverage ratio of the related
Mortgaged Property (taking into account any additional loans that would further
encumber the related Mortgaged Property and/or interests in the related
Mortgagor) would be less than 1.20x, then neither the Special Servicer nor the
Master Servicer shall waive any restrictions contained in the related Mortgage
on further encumbrances of the related Mortgaged Property or of interests in the
related Mortgagor, unless, in the case of either (i) or (ii) above, the Master
Servicer or the Special Servicer, as the case may be, shall have received prior
written confirmation from S&P that such action would not result in an Adverse
Rating Event with respect to any Class of Certificates rated by such rating
agency. Also notwithstanding anything to the contrary contained in this Section
3.08, but subject to the related loan documents and applicable law, if the
subject Mortgage Loan is then one of the ten largest Mortgage Loans in the
Mortgage Pool, then neither the Master Servicer nor the Special Servicer, as
applicable, shall waive any restrictions contained in the related Mortgage on
transfers or further encumbrances of the related Mortgaged Property or on
transfers of interests in the related Mortgagor, unless the Master Servicer or
the Special Servicer, as the case may be, shall have obtained prior written
confirmation from Fitch that such action would not result in an Adverse Rating
Event with respect to any Class of Certificates rated by such Rating Agency. In
connection with any request for rating confirmation from a rating agency
pursuant to this paragraph of Section 3.08(d), the Master Servicer or the
Special Servicer, as the case may be, shall deliver a Review Package to such
rating agency. Further, subject to the terms of the related loan documents and
applicable law, no waiver of a restriction contained in the related Mortgage on
transfers of the related Mortgaged Property or interests in the related
Mortgagor or on further encumbrances thereof may be waived by the Master
Servicer or the Special Servicer, as applicable, unless all costs in connection
therewith, including any arising from seeking Rating Agency confirmation, are
paid by the related Mortgagor. To the extent not collected from the related
Mortgagor (or from the Mortgage Loan Seller pursuant to or as contemplated by
Section 2.03), any rating agency charges in connection with the foregoing shall
be paid by the Master Servicer as a Servicing Advance.
If and to the extent that any expenses paid by the Master Servicer in
connection with the actions contemplated by this Section 3.08(d) would result in
the failure of any one or more Holder(s) of Regular Interest Certificates to
receive any amount of principal or interest at the related Pass-Through Rate to
which such Holder(s) are entitled (in each case by the time any such amounts are
due and
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payable to such Holder(s)), then such amounts shall be deemed to have been
distributed to such Holder(s) from REMIC III, as of the time paid by the Master
Servicer, and then paid by such Holder(s) and not by any of the REMIC Pools.
(e) Notwithstanding anything herein to the contrary, the Master
Servicer shall approve and close, without the consent of the Special Servicer,
all initial syndications of tenant-in-common interests, provided such
syndications are specifically permitted by and in accordance with the related
loan documents for any Mortgage Loan that is not a Specially Serviced Mortgage
Loan. Upon completion of any such initial transfer, the Master Servicer shall
promptly provide notice by electronic mail thereof to the Special Servicer and
the Controlling Class Representative, which notice shall also (i) advise the
Special Servicer and the Controlling Class Representative as to the total number
of transfers with respect to such Mortgage Loan that the Master Servicer has
approved and closed as of such date and the expiration date (if any) by which
such transfer(s) must occur pursuant to the related loan documents, and (ii)
advise the Special Servicer and the Controlling Class Representative of when,
with respect to any such Mortgage Loan, such tenant-in-common syndication is
complete. Any request for a modification to or extension of the final initial
syndication date respecting any such tenant-in-common transfers or increase in
the permitted number of tenant-in-common interests under the initial syndication
shall be processed and approved solely by the Special Servicer, which shall
promptly notify the Controlling Class Representative of any such modification or
extension.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required
Appraisals; Appraisal Reduction Calculation.
(a) The Special Servicer shall, subject to Sections 3.09(b), 3.09(c),
3.09(d) and 6.11, exercise reasonable efforts, consistent with the Servicing
Standard, to foreclose upon or otherwise comparably convert the ownership of
properties securing such of the Specially Serviced Mortgage Loans as come into
and continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments, including pursuant to Section 3.20;
provided that neither the Master Servicer nor the Special Servicer shall, with
respect to any Mortgage Loan that constitutes an ARD Mortgage Loan after its
Anticipated Repayment Date, take any enforcement action with respect to the
payment of Additional Interest (other than the making of requests for its
collection) unless (i) the taking of an enforcement action with respect to the
payment of other amounts due under such ARD Mortgage Loan is, in the good faith
and reasonable judgment of the Special Servicer, necessary, appropriate and
consistent with the Servicing Standard or (ii) all other amounts due under such
ARD Mortgage Loan have been paid, the payment of such Additional Interest has
not been forgiven in accordance with Section 3.20 and, in the good faith and
reasonable judgment of the Special Servicer, the Liquidation Proceeds expected
to be recovered in connection with such enforcement action will cover the
anticipated costs of such enforcement action and, if applicable, any associated
interest accrued on Advances. Subject to Section 3.11(h), the Special Servicer
shall request that the Master Servicer advance all costs and expenses incurred
by it in any such proceedings, and the Master Servicer shall be entitled to
reimbursement therefor as provided in Section 3.05(a). The Special Servicer
shall be responsible, consistent with the Servicing Standard, for determining
whether to exercise any rights it may have under the cross-collateralization
and/or cross-default provisions of a Cross-Collateralized Mortgage Loan. Nothing
contained in this Section 3.09 shall be construed so as to require the Special
Servicer, on behalf of the Certificateholders, to make a bid on any Mortgaged
Property at a foreclosure sale or similar proceeding that is in excess of the
fair market value of such property, as determined by the Special Servicer in its
reasonable and good faith judgment taking into account the factors described
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in Section 3.18 and the results of any appraisal obtained as provided below in
this Section 3.09, all such bids to be made in a manner consistent with the
Servicing Standard.
If and when the Master Servicer or the Special Servicer deems it
necessary and prudent for purposes of establishing the fair market value of any
Mortgaged Property securing a Specially Serviced Mortgage Loan, whether for
purposes of bidding at foreclosure or otherwise, it may have an appraisal
performed with respect to such property by an Independent Appraiser or other
expert in real estate matters, which appraisal shall take into account the
factors specified in Section 3.18, and the cost of which appraisal shall be
covered by, and be reimbursable as, a Servicing Advance; provided that if the
Master Servicer intends to obtain an appraisal in connection with the foregoing,
the Master Servicer shall so notify the Special Servicer and consult with the
Special Servicer regarding such appraisal.
If any Mortgage Loan becomes a Required Appraisal Loan, then the
Special Servicer shall (i) obtain or conduct, as applicable, a Required
Appraisal within 60 days of such occurrence or, in the case of an event referred
to in clause (ii) of the definition of Required Appraisal Loan, within 120 days
of the subject delinquency (unless a Required Appraisal was obtained or
conducted, as applicable, with respect to such Required Appraisal Loan within
the prior 12 months and the Special Servicer reasonably believes, in accordance
with the Servicing Standard, that no material change has subsequently occurred
with respect to the related Mortgaged Property that would draw into question the
applicability of such Required Appraisal), and (ii) obtain or conduct, as
applicable, an update of the most recent Required Appraisal approximately 12
months following the most recent Required Appraisal or subsequent update thereof
for so long as such Mortgage Loan (or any successor REO Mortgage Loan with
respect thereto) remains a Required Appraisal Loan. The Special Servicer shall
deliver copies of all such Required Appraisals and updated Required Appraisals
to the Trustee and the Master Servicer promptly following the Special Servicer's
receipt of the subject appraisal, and, upon request, to the Controlling Class
Representative. Based on each such Required Appraisal and updated Required
Appraisal, the Special Servicer shall (annually, until the subject Required
Appraisal Loan ceases to be such) calculate and notify the Trustee, the Master
Servicer and the Controlling Class Representative of any resulting Appraisal
Reduction Amount in respect of the subject Required Appraisal Loan. Such
calculations by the Special Servicer shall be subject to review and confirmation
by the Master Servicer, provided that the Master Servicer may rely on any
information provided by the Special Servicer. The Master Servicer shall, at the
direction of the Special Servicer, advance the cost of each such Required
Appraisal and updated Required Appraisal; provided, however, that such expense
will be subject to reimbursement to the Master Servicer as a Servicing Advance
out of the Custodial Account pursuant to Section 3.05(a). At any time that an
Appraisal Reduction Amount exists with respect to any Required Appraisal Loan,
the Controlling Class Representative may, at its own expense, obtain and deliver
to the Master Servicer, the Special Servicer and the Trustee an appraisal that
is reasonably satisfactory to the Special Servicer and satisfies the
requirements of a "Required Appraisal", and upon the written request of the
Controlling Class Representative, the Special Servicer shall recalculate the
Appraisal Reduction Amount in respect of the subject Required Appraisal Loan
based on such appraisal delivered by such party and shall notify the Trustee,
the Master Servicer and the Controlling Class Representative of such
recalculated Appraisal Reduction Amount.
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Certificateholders under such circumstances, in such manner or pursuant to such
terms as would, in the reasonable, good faith judgment of the Special Servicer
(exercised in accordance with the Servicing Standard), (i) cause such Mortgaged
Property to
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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 a REMIC Pool at any
given time constitutes not more than a de minimis amount of the assets of such
REMIC Pool 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 from potential liability.
In addition, the Special Servicer shall not acquire any personal
property pursuant to this Section 3.09 unless either:
(i) such personal property is, in the reasonable, good faith
judgment of the Special Servicer (exercised in accordance with the
Servicing Standard), incident to real property (within the meaning of
Section 856(e)(1) of the Code) so acquired by the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel (the cost of which shall be covered by, and be reimbursable as, a
Servicing Advance) to the effect that the holding of such personal property
as part of the Trust Fund will not cause the imposition of a tax on any
REMIC Pool under the REMIC Provisions or cause any REMIC Pool to fail to
qualify as a REMIC at any time that any Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trustee, obtain title to a Mortgaged Property by foreclosure, deed in lieu of
foreclosure or otherwise, or take any other action with respect to any Mortgaged
Property, if, as a result of any such action, the Trustee, on behalf of the
Certificateholders, could, in the reasonable, good faith judgment of the Special
Servicer, exercised in accordance with the Servicing Standard, be considered to
hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law (a "potentially responsible party"), unless such action is
consistent with Section 6.11, if and as applicable, and the Special Servicer has
previously determined (as evidenced by an Officer's Certificate to such effect
delivered to the Trustee that shall specify all of the bases for such
determination), in accordance with the Servicing Standard and based on an
Environmental Assessment of such Mortgaged Property performed by an Independent
Person, who regularly conducts Environmental Assessments, within six months
prior to any such acquisition of title or other action (a copy of which
Environmental Assessment shall be delivered to the Trustee and the Master
Servicer, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would (taking into
account the coverage provided under any related Environmental Insurance
Policy) maximize the recovery on the related Mortgage Loan to the
Certificateholders, as a collective whole, on a present value basis (the
relevant discounting of anticipated collections that will be distributable
to Certificateholders, as a collective whole, to be performed at the
related Mortgage Rate(s)) to acquire title to or possession of the
Mortgaged Property and to take such actions as are necessary to bring the
Mortgaged Property into compliance therewith in all material respects; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of Hazardous
Materials for which
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investigation, testing, monitoring, containment, clean-up or remediation
could be required under any applicable environmental laws and regulations
or, if such circumstances or conditions are present for which any such
action could reasonably be expected to be required, that it would (taking
into account the coverage provided under any related Environmental
Insurance Policy) maximize the recovery on the related Mortgage Loan to the
Certificateholders, as a collective whole, on a present value basis (the
relevant discounting of anticipated collections that will be distributable
to Certificateholders, as a collective whole, to be performed at the
related Mortgage Rate(s)) to acquire title to or possession of the
Mortgaged Property and to take such actions with respect to the affected
Mortgaged Property.
The Special Servicer shall, in good faith, undertake reasonable
efforts to make the determination referred to in the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment shall be
covered by, and reimbursable as, a Servicing Advance; and if any such
Environmental Assessment so warrants, the Special Servicer shall perform or
cause to be performed such additional environmental testing as it deems
necessary and prudent to determine whether the conditions described in clauses
(i) and (ii) of the preceding paragraph have been satisfied (the cost of any
such additional testing also to be covered by, and reimbursable as, a Servicing
Advance). The cost of any remedial, corrective or other further action
contemplated by clause (i) and/or clause (ii) of the preceding paragraph, shall
be payable out of the Custodial Account pursuant to Section 3.05(a).
(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) of the
first sentence thereof has not been satisfied with respect to any Mortgaged
Property securing a defaulted Mortgage Loan, the Special Servicer shall take
such action as is in accordance with the Servicing Standard (other than
proceeding against the Mortgaged Property). At such time as it deems
appropriate, the Special Servicer may, on behalf of the Trust, subject to
Section 6.11, if and as applicable, release all or a portion of such Mortgaged
Property from the lien of the related Mortgage.
(e) The Special Servicer shall report to the Master Servicer, the
Underwriters and the Trustee, monthly in writing as to any actions taken by the
Special Servicer with respect to any Mortgaged Property that represents security
for a Specially Serviced 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) of the first sentence thereof has not been
satisfied, in each case until the earlier to occur of satisfaction of all such
conditions and release of the lien of the related Mortgage on such Mortgaged
Property.
(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 affected Mortgage Loan permit such an action, and shall, in accordance with
the Servicing Standard, seek such deficiency judgment if it deems advisable (the
cost of which undertaking shall be covered by, and be reimbursable as, a
Servicing Advance).
(g) The Master Servicer shall, with the reasonable cooperation of the
Special Servicer, prepare and file information returns with respect to the
receipt of mortgage interest received with respect to any Mortgage Loan required
by Section 6050H of the Code and the reports of
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foreclosures and abandonments of any Mortgaged Property and the information
returns relating to cancellation of indebtedness income with respect to any
Mortgaged Property required by Sections 6050J and 6050P of the Code. Such
reports shall be in form and substance sufficient to meet the reporting
requirements imposed by Sections 6050H, 6050J and 6050P of the Code.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Specially Serviced Mortgage Loan or REO
Property, it shall promptly notify the Trustee and the Master Servicer. The
Special Servicer shall maintain accurate records, prepared by a Servicing
Officer, of each such Final Recovery Determination (if any) and the basis
thereof. Each such Final Recovery Determination (if any) shall be evidenced by
an Officer's Certificate delivered to the Trustee and the Master Servicer, no
later than the seventh Business Day following such Final Recovery Determination.
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage
Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Master Servicer or the Special Servicer of a notification that payment in
full shall be escrowed in a manner customary for such purposes, the Master
Servicer or the Special Servicer shall promptly notify the Trustee and any
related Custodian by a certification (which certification shall be in the form
of a Request for Release in the form of Exhibit D-1 attached hereto and shall be
accompanied by the form of a release or discharge and shall include a statement
to the effect that all amounts received or to be received in connection with
such payment which are required to be deposited in the applicable Custodial
Account pursuant to Section 3.04(a), have been or will be so deposited) of a
Servicing Officer (a copy of which certification shall be delivered to the
Special Servicer) and shall request delivery to it of the related Mortgage File.
Upon receipt of such certification and request, the Trustee shall release, or
cause any related Custodian to release, the related Mortgage File to the Master
Servicer or Special Servicer and shall deliver to the Master Servicer or Special
Servicer, as applicable, such release or discharge, duly executed. No expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Collection Account or the Custodial
Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), the Trustee,
upon request of the Master Servicer and receipt from the Master Servicer of a
Request for Release in the form of Exhibit D-1 attached hereto signed by a
Servicing Officer thereof, or upon request of the Special Servicer and receipt
from the Special Servicer of a Request for Release in the form of Exhibit D-2
attached hereto, shall release, or cause any related Custodian to release, such
Mortgage File (or such portion thereof) to the Master Servicer or the Special
Servicer, as the case may be. Upon return of such Mortgage File (or such portion
thereof) to the Trustee or related Custodian, or the delivery to the Trustee of
a certificate of a Servicing Officer of the Special Servicer stating that such
Mortgage Loan was liquidated and that all amounts received or to be received in
connection with such liquidation that are required to be deposited into the
Custodial Account pursuant to Section 3.04(a), have been or will be so
deposited, or that the related Mortgaged Property has become an REO Property,
the Request for Release shall be released by the Trustee or related Custodian to
the Master Servicer or the Special Servicer, as applicable. If the Master
Servicer or the Special Servicer requires the original Mortgage Note or any
other document that constitutes part of a Mortgage File for any Mortgage Loan,
then (unless such document is to be delivered to outside legal counsel) such
documents shall be maintained in a manner consistent with the Servicing
Standard.
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(c) Within seven (7) Business Days (or within such shorter period (but
no less than three (3) Business Days) as execution and delivery can reasonably
be accomplished if the Special Servicer notifies the Trustee 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) 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, with respect to any Mortgage
Loan, 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 the related Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the related Mortgage
Note or Mortgage or to obtain a deficiency judgment, or to enforce any other
remedies or rights provided by the related 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 or the Special Servicer. Together with
such documents or pleadings, the Special Servicer shall deliver to the Trustee 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) will not invalidate or otherwise
affect the lien of the Mortgage, except for the termination of such a lien upon
completion of the foreclosure or trustee's sale. Notwithstanding anything
contained herein to the contrary, neither the Master Servicer nor the Special
Servicer shall, without the Trustee's written consent: (i) initiate any action,
suit or proceeding solely under the Trustee's name without indicating the Master
Servicer's or Special Servicer's, as applicable, representative capacity, or
(ii) take any action with the intent to cause, and that actually causes, the
Trustee to be registered to do business in any state.
SECTION 3.11. Servicing Compensation; Payment of Expenses; Certain
Matters Regarding Servicing Advances.
(a) As compensation for its activities hereunder, the Master Servicer
shall be entitled to receive the Master Servicing Fee with respect to each
Mortgage Loan and each REO Mortgage Loan. As to each such Mortgage Loan and REO
Mortgage Loan, the Master Servicing Fee shall: (i) accrue from time to time at
the related Master Servicing Fee Rate on the same principal amount as interest
accrues from time to time on such Mortgage Loan or is deemed to accrue from time
to time on such REO Mortgage Loan; and (ii) be calculated on a 30/360 Basis (or,
in the event that a Principal Prepayment in full or other Liquidation Event
shall occur with respect to any such Mortgage Loan or REO Mortgage Loan on a
date that is not a Due Date, on the basis of the actual number of days to elapse
from and including the most recently preceding related Due Date to but excluding
the date of such Principal Prepayment or Liquidation Event in a month consisting
of 30 days). The Master Servicing Fee with respect to any such Mortgage Loan or
REO Mortgage Loan shall cease to accrue if a Liquidation Event occurs in respect
thereof. Earned but unpaid Master Servicing Fees shall be payable monthly, on a
loan-by-loan basis, from payments of interest on each such Mortgage Loan and REO
Revenues allocable as interest on each such REO Mortgage Loan. The Master
Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of
any such Mortgage Loan or REO Mortgage 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), and in the
case of a Mortgage Loan or an REO Mortgage 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 the Master Servicer's responsibilities and obligations under
this Agreement.
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(b) Additional master servicing compensation, in the form of the items
set forth in clauses (i) through (iii) below in this paragraph, shall be
retained by the Master Servicer or promptly paid to the Master Servicer by the
Special Servicer and such additional master servicing compensation is not
required to be deposited in the Custodial Account: (i) Net Default Charges,
charges for beneficiary statements or demands, amounts collected for checks
returned for insufficient funds, and any similar fees (excluding Prepayment
Premiums and Yield Maintenance Charges), in each case to the extent actually
paid by a Mortgagor with respect to any Mortgage Loan and accrued during the
time that such Mortgage Loan was a Performing Mortgage Loan; (ii) (x) with
respect to Section 3.20(c), 100% (or, if the Special Servicer is processing the
subject action, 0%), and (y) with respect to Section 3.08(c), 100% (or, if the
consent of the Special Servicer is required with respect to the subject action,
50%) of each modification fee, extension fee or other similar fee actually paid
by a Mortgagor with respect to a modification, consent, extension, waiver,
amendment or encumbrance of the related Mortgaged Property agreed to by the
Master Servicer pursuant to Section 3.20(c) or Section 3.08(c); (iii) 100% of
any fee actually paid by a Mortgagor in connection with a defeasance of a
Mortgage Loan as contemplated under Section 3.20; and (iv) with respect to any
Performing Mortgage Loan, 50% of any and all assumption fees, 100% of any and
all assumption application fees (or, in the event that (x) the Master Servicer
enters into an assumption or substitution agreement pursuant to Section 3.08(a)
and the related loan documents do not provide for an assumption fee in
connection therewith, or (y) the proposed transfer or assumption under Section
3.08(a) is approved and/or processed but does not occur or (z) the proposed
transfer or assumption under Section 3.08(a) is not approved or is denied and
does not occur and, additionally, in the case of (x), (y) and (z), assumption
application fees are paid by the Mortgagor in connection therewith, then 50% of
such assumption application fees) and other applicable fees actually paid by a
Mortgagor in accordance with the related loan documents with respect to any
assumption or substitution agreement entered into by the Master Servicer on
behalf of the Trust pursuant to Section 3.08(a) or paid by a Mortgagor with
respect to any transfer of an interest in a Mortgagor pursuant to Section
3.08(a). The Master Servicer shall also be entitled to additional master
servicing compensation in the form of (i) Prepayment Interest Excesses Received
by the Trust with respect to the Mortgage Loans; (ii) interest or other income
earned on deposits in the Custodial Account in accordance with Section 3.06(b)
(but only to the extent of the Net Investment Earnings, if any, with respect to
such account for each related Investment Period); and (iii) to the extent not
required to be paid to any Mortgagor under applicable law, any interest or other
income earned on deposits in the Servicing Accounts, the Reserve Accounts and
the Defeasance Deposit Account maintained thereby (but only to the extent of the
Net Investment Earnings, if any, with respect to each such account for each
related Investment Period).
(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 REO Mortgage Loan. With respect to
each Specially Serviced Mortgage Loan and each REO Mortgage Loan, the Special
Servicing Fee shall: (i) accrue monthly at the Special Servicing Fee Rate on the
same principal amount as interest accrues monthly on such Mortgage Loan or is
deemed to accrue monthly on such REO Mortgage Loan; and (ii) be calculated on a
30/360 Basis (or, in the event that a Principal Prepayment in full or other
Liquidation Event shall occur with respect to any Specially Serviced Mortgage
Loan or REO Mortgage Loan on a date that is not a Due Date, on the basis of the
actual number of days to elapse from and including the most recently preceding
related Due Date to but excluding the date of such Principal Prepayment or
Liquidation Event, in a month consisting of 30 days and, in the case of any
other partial period that does not run from one Due Date through and including
the day immediately preceding the next Due Date, on the basis of the actual
number of days in such
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period in a month consisting of 30 days). The Special Servicing Fee with respect
to any Specially Serviced Mortgage Loan or REO Mortgage Loan shall cease to
accrue as of the date a Liquidation Event occurs in respect thereof or it
becomes a Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees in
respect of Specially Serviced Mortgage Loans and REO Mortgage Loans shall be
payable monthly out of general collections on the Mortgage Pool on deposit in
the Custodial Account, to the extent permitted by Section 3.05(a).
As further compensation for its services hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan. As to each Corrected Mortgage Loan, subject to the
second following paragraph, the Workout Fee shall be payable from, and shall be
calculated by application of the Workout Fee Rate to, all collections of
principal, interest (other than any Default Interest, Additional Interest and
Excess Defeasance Deposit Proceeds), Prepayment Premiums and/or Yield
Maintenance Charges received on the subject Mortgage Loan for so long as it
remains a Corrected Mortgage Loan; provided that no Workout Fee shall be payable
from, or based upon the receipt of, Liquidation Proceeds collected in connection
with a Permitted Purchase, or out of any Loss of Value Payments, Insurance
Proceeds or Condemnation Proceeds. The Workout Fee with respect to any Corrected
Mortgage Loan will cease to be payable if such Corrected Mortgage Loan again
becomes a Specially Serviced Mortgage Loan or if the related Mortgaged Property
becomes an REO Property; provided that a new Workout Fee will become payable if
and when the particular Mortgage Loan again becomes a Corrected Mortgage Loan.
If the Special Servicer is terminated or removed (other than for cause) or
resigns in accordance with the first sentence of the first paragraph of Section
6.04, it shall retain the right to receive any and all Workout Fees (and the
successor Special Servicer (including the Trustee if it is the successor Special
Servicer as provided in the first paragraph of Section 7.02) shall not be
entitled to any portion of such Workout Fees) that are payable in respect of:
(i) each Mortgage Loan that became a Corrected Mortgage Loan
during the period that the terminated, removed or resigning Special
Servicer acted as Special Servicer and was still such at the time of such
termination, removal or resignation; and
(ii) each Mortgage Loan that would have been a "Corrected
Mortgage Loan" at the time of such termination, removal or resignation but
for the payment (in accordance with clause (w) of the definition of
"Specially Serviced Mortgage Loan") by the related Mortgagor of the three
consecutive full and timely Monthly Payments under the terms of such
Mortgage Loan (as such terms may have been changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, extension, waiver or amendment
granted or agreed to by the Master Servicer or the Special Servicer
pursuant to Section 3.20), but only if such three consecutive full and
timely Monthly Payments are in fact made within three months of such
termination, removal or resignation;
in each case until the Workout Fee for any such Mortgage Loan ceases to be
payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive the Liquidation Fee with respect to
each Specially Serviced Mortgage Loan as to which it receives a full, partial or
discounted payoff and, subject to the provisos to the next sentence, each
Specially Serviced Mortgage Loan and REO Property as to which it receives Net
Liquidation Proceeds, Insurance Proceeds and/or Condemnation Proceeds. As to
each such Specially Serviced
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Mortgage Loan or REO Property, subject to the following paragraph, the
Liquidation Fee shall be payable from, and shall be calculated by application of
the Liquidation Fee Rate to, such full, partial or discounted payoff, such Net
Liquidation Proceeds, such Insurance Proceeds and/or such Condemnation Proceeds
(exclusive of any portion of such payoff or proceeds that represents Default
Interest and/or Additional Interest); provided that no Liquidation Fee shall be
payable (i) with respect to any Specially Serviced Mortgage Loan that becomes a
Corrected Mortgage Loan or (ii) from, or based upon the receipt of, Liquidation
Proceeds collected in connection with the acquisition of any Specially Serviced
Mortgage Loan or REO Property by all the Certificateholders (acting together) in
exchange for all the Certificates pursuant to Section 9.01 or the purchase of
any Specially Serviced Mortgage Loan by a Purchase Option Holder pursuant to
Section 3.18 (provided, however, that a Liquidation Fee will be paid in
connection with the purchase of a Specially Serviced Mortgage Loan at its FV
Price as determined in Section 3.18, if such purchase is by an assignee of
either a Holder of a Certificate of the Controlling Class or the Special
Servicer, such assignee is not an Affiliate of a Holder of a Certificate of the
Controlling Class or the Special Servicer, such assignment is for no material
consideration, and such purchase occurs or purchase right is exercised more than
90 days from the date that the Special Servicer has initially determined the FV
Price of the related Mortgage Loan), by the Special Servicer, a Controlling
Class Certificateholder, the Master Servicer, the Depositor or Xxxxxx Brothers
pursuant to Section 9.01, by or on behalf of the Mortgage Loan Seller pursuant
to the Mortgage Loan Purchase Agreement in connection with a Material Document
Defect or a Material Breach (in any event prior to the expiration of the Seller
Resolution Period), by or on behalf of the Mortgage Loan Seller pursuant to the
Mortgage Loan Purchase Agreement in connection with the defeasance of an Early
Defeasance Mortgage Loan prior to the second anniversary of the Closing Date, or
by the holder of a related mezzanine loan pursuant to a purchase right in
connection with a Mortgage Loan default as set forth in the related
intercreditor agreement (unless a Liquidation Fee is specifically required to be
paid in connection with such purchase and is actually paid pursuant to the
subject intercreditor agreement; provided that, if the subject intercreditor
agreement provides that a Liquidation Fee is payable if and to the extent such
fee is payable under this Agreement (or words of similar import), then such
Liquidation Fee shall be payable hereunder if such purchase occurs after the
expiration of 60 days from the date the right to purchase arises under such
mezzanine intercreditor agreement and if such fee is actually paid; and
provided, further, that, if the Master Servicer or Special Servicer, as
applicable, consents subsequent to the Closing Date to the incurrence by the
principal(s) of a Mortgagor under a Mortgage Loan of mezzanine financing in
accordance with the related loan documents 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 lender to pay a Liquidation Fee in
connection with any purchase right that arises upon a Mortgage Loan default in
the event such purchase occurs after the expiration of 60 days from the date the
right to purchase arises under such mezzanine intercreditor agreement) or (iii)
from, or based upon the receipt or application of, Loss of Value Payments; and
provided, further, that, in connection with any purchase by the Mortgage Loan
Seller pursuant to the Mortgage Loan Purchase Agreement in connection with a
Material Document Defect or a Material Breach (in any event subsequent to the
expiration of the Seller Resolution Period), the Liquidation Fee shall equal 1%
of the Stated Principal Balance of the repurchased Mortgage Loan (or, if an REO
Property is being repurchased, 1% of the Stated Principal Balance of the related
REO Mortgage Loan).
Notwithstanding anything to the contrary herein, a Liquidation Fee and
a Workout Fee relating to the same Mortgage Loan shall not be paid from the same
proceeds with respect to such Mortgage Loan.
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The Special Servicer's right to receive the Special Servicing Fee, the
Workout Fee and the Liquidation Fee may not be transferred in whole or in part
except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
(d) Additional special servicing compensation in the form of the items
set forth below in clauses (i) through (v) below shall be retained by the
Special Servicer or promptly paid to the Special Servicer by the Master
Servicer, as the case may be, and shall not be required to be deposited in the
Custodial Account pursuant to Section 3.04(a): (i) Net Default Charges actually
collected with respect to any Mortgage Loan or any successor REO Mortgage Loan
with respect thereto that accrued while the subject loan was a Specially
Serviced Mortgage Loan or an REO Mortgage Loan; (ii) with respect to any
Specially Serviced Mortgage Loan, 100% of any and all assumption fees,
assumption application fees and other applicable fees, actually paid by a
Mortgagor in accordance with the related loan documents, with respect to any
assumption or substitution agreement entered into by the Special Servicer on
behalf of the Trust pursuant to Section 3.08(b) or paid by a Mortgagor with
respect to any transfer of an interest in a Mortgagor pursuant to Section
3.08(b); (iii) with respect to any Performing Mortgage Loan, 50% of any and all
assumption fees actually paid by a Mortgagor in accordance with the related loan
documents, with respect to any assumption or substitution agreement entered into
by the Master Servicer on behalf of the Trust pursuant to Section 3.08(a) or
paid by a Mortgagor with respect to any transfer of an interest in a Mortgagor
pursuant to Section 3.08(a); (iv) with respect to any Performing Mortgage Loan,
in the event that (x) the Master Servicer enters into an assumption or
substitution agreement pursuant to Section 3.08(a) and the related loan
documents do not provide for an assumption fee in connection therewith, (y) the
proposed transfer or assumption is approved and/or processed but does not occur
or (z) the proposed transfer or assumption under Section 3.08(a) is not approved
or is denied and does not occur and, additionally, in the case of (x), (y) and
(z), assumption application fees are paid by the Mortgagor in connection
therewith, then 50% of such assumption application fees; (v) with respect to any
Performing Mortgage Loan (x) with respect to Section 3.20(c), 100% (if the
Special Servicer is processing the subject action), and (y) with respect to
Section 3.08(c), 50% (if the consent of the Special Servicer is required with
respect to the subject action), of each modification fee, extension fee or other
similar fee actually paid by a Mortgagor with respect to a modification,
consent, extension, waiver, amendment or encumbrance of the related Mortgaged
Property agreed to by the Master Servicer pursuant to Section 3.20(c) or Section
3.08(c); and (vi) any and all other modification fees, consent fees, extension
fees and similar fees actually collected on the Mortgage Loans that are not
otherwise payable to the Master Servicer as additional master servicing
compensation pursuant to Section 3.11(b). The Special Servicer shall also be
entitled to additional special servicing compensation in the form of interest or
other income earned on deposits in the REO Account, if established, in
accordance with Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to such account for each related Investment
Period).
(e) The Master Servicer and the Special Servicer shall each be
required to pay out of its own funds all expenses incurred by it in connection
with its servicing activities hereunder (including payment of any amounts due
and owing to any of its Sub-Servicers and the premiums for any blanket policy or
the standby fee or similar premium for any master force placed policy obtained
by it insuring against hazard losses pursuant to Section 3.07(b)), if and to the
extent such expenses are not payable directly out of the Custodial Account or,
in the case of the Special Servicer, the REO Account, and neither the Master
Servicer nor the Special Servicer shall be entitled to reimbursement for such
expenses except as expressly provided in this Agreement.
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(f) If the Master Servicer or Special Servicer is required under any
provision of this Agreement to make a Servicing Advance, but it does not do so
within 15 days after such Advance is required to be made, the Trustee shall, if
it has actual knowledge of such failure on the part of the Master Servicer or
Special Servicer, as the case may be, give written notice of such failure to, as
applicable, the Master Servicer or the Special Servicer. If such Servicing
Advance is not made by the Master Servicer or the Special Servicer, as
applicable, within three (3) Business Days after such notice is given to the
Master Servicer or the Special Servicer, as the case may be, then (subject to
Section 3.11(h)) the Trustee shall make such Servicing Advance. If the Trustee
fails to make any Servicing Advance required to be made under this Agreement,
then (subject to Section 3.11(h)) the Fiscal Agent, if any, shall make such
Servicing Advance within one (1) Business Day of such failure by the Trustee
and, if so made, the Trustee shall be deemed not to be in default under this
Agreement.
(g) The Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, compounded annually, accrued on the amount of
each Servicing Advance made thereby (with its own funds) for so long as such
Servicing Advance is outstanding, such interest to be payable: (i) first, in
accordance with Sections 3.05(a) and 3.25, out of any Default Charges on deposit
in the Custodial Account that were collected on or in respect of the particular
Mortgage Loan or REO Mortgage Loan as to which such Servicing Advance relates
(provided that such Default Charges will only be applied to pay interest accrued
on such Servicing Advance through the date that such Default Charges were
received); and (ii) then, if and to the extent that such Default Charges are
insufficient to cover such interest, but not before the related Advance has been
reimbursed pursuant to this Agreement, out of general collections on the
Mortgage Loans and REO Mortgage Loans on deposit in the Custodial Account. The
Master Servicer shall reimburse itself, the Special Servicer, the Trustee or any
Fiscal Agent, as appropriate, in accordance with Section 3.03 or Section
3.05(a), as applicable, for any Servicing Advance as soon as practicable after
funds available for such purpose are deposited in the applicable Custodial
Account. Notwithstanding the foregoing, upon a determination that a previously
made Servicing Advance is a Nonrecoverable Servicing Advance, instead of
obtaining reimbursement out of general collections on the Mortgage Pool
immediately, any of the Master Servicer, the Special Servicer, the Trustee or
any Fiscal Agent, as applicable, may, in its sole discretion, elect to obtain
reimbursement for such Nonrecoverable Servicing Advance over a period of time
(not to exceed 12 months or such longer period of time as is approved in writing
by the Controlling Class Representative) and the unreimbursed portion of such
Servicing Advance will accrue interest at the Reimbursement Rate in effect from
time to time. At any time after such a determination to obtain reimbursement
over time in accordance with the preceding sentence, the Master Servicer, the
Special Servicer, the Trustee or any Fiscal Agent, as applicable, may, in its
sole discretion, decide to obtain reimbursement immediately. The fact that a
decision to recover such Nonrecoverable Servicing Advance over time, or not to
do so, benefits some Classes of Certificateholders to the detriment of other
Classes shall not constitute a violation of the Servicing Standard by the Master
Servicer, or a breach of any fiduciary duty owed to the Certificateholders by
the Trustee or a Fiscal Agent, or a breach of any other contractual obligation
owed to the Certificateholders by any party to this Agreement.
(h) Notwithstanding anything herein to the contrary, none of the
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent shall be
required to make out of its own funds any Servicing Advance that would, if made,
constitute a Nonrecoverable Servicing Advance. The determination by the Master
Servicer or the Special Servicer that it has made (or, in the case of the
Special Servicer, that the Master Servicer, the Trustee or a Fiscal Agent has
made) a Nonrecoverable
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Servicing Advance or that any proposed Servicing Advance, if made, would
constitute a Nonrecoverable Servicing Advance, shall be made in accordance with
the Servicing Standard and shall be evidenced by an Officer's Certificate
delivered promptly to the Trustee and the Depositor, setting forth the basis for
such determination, together with a copy of any appraisal of the related
Mortgaged Property or REO Property, as the case may be (which appraisal shall be
an expense of the Trust, shall take into account the factors specified in
Section 3.18 and shall have been conducted by an Independent Appraiser in
accordance with the standards of the Appraisal Institute within the 12 months
preceding such determination of nonrecoverability), and further accompanied by
related Mortgagor operating statements and financial statements, budgets and
rent rolls of the related Mortgaged Property (to the extent available and/or in
the Master Servicer's or the Special Servicer's possession) and any engineers'
reports, environmental surveys or similar reports that the Master Servicer or
the Special Servicer may have obtained and that support such determination. If
the Master Servicer intends to obtain an appraisal in connection with the
foregoing, the Master Servicer shall so notify the Special Servicer and consult
with the Special Servicer regarding such appraisal. In determining whether any
Servicing Advance constitutes a Nonrecoverable Servicing Advance, the Master
Servicer and the Special Servicer shall each be entitled to consider (among
other things) the obligations of the related Mortgagor under the terms of the
related Mortgage Loan (as such terms may have been modified), to consider (among
other things) the related Mortgaged Property in its "as is" or then current
condition and with its then current occupancies, all as modified by such party's
reasonable assumptions (consistent with the Servicing Standard) regarding the
possibility and effects of future adverse change with respect to the related
Mortgaged Property, to estimate and consider (among other things) future
expenses and to estimate and consider (among other things) the timing of
recoveries. In addition, the Master Servicer or the Special Servicer may update
or change its recoverability determination at any time with respect to any
Servicing Advance, and the Master Servicer may obtain from the Special Servicer
any analysis, appraisals or market value estimates or other information in the
possession of the Special Servicer for purposes of determining whether a
Servicing Advance is a Nonrecoverable Servicing Advance. The Trustee and any
Fiscal Agent shall be entitled to rely, conclusively, on any determination by
the Master Servicer (and the Trustee, any Fiscal Agent and the Master Servicer
shall rely on any determination by the Special Servicer) that a Servicing
Advance, if made, would be a Nonrecoverable Servicing Advance; provided,
however, that if the Master Servicer or the Special Servicer has failed to make
a Servicing Advance for reasons other than a determination by the Master
Servicer or the Special Servicer, as applicable, that such Servicing Advance
would be a Nonrecoverable Advance, the Trustee or any Fiscal Agent, as
applicable, shall make such Servicing Advance within the time periods required
by Section 3.11(f) unless the Trustee or such Fiscal Agent, in good faith, makes
a determination that such Servicing Advance would be a Nonrecoverable Advance.
(i) Notwithstanding anything set forth herein to the contrary, the
Master Servicer shall (at the direction of the Special Servicer if a Specially
Serviced Mortgage Loan or an REO Property is involved) pay directly out of the
Custodial Account, in accordance with Section 3.05(a), any servicing expense
that, if advanced by the Master Servicer or the Special Servicer, would
constitute a Nonrecoverable Servicing Advance; provided that the Master Servicer
(or the Special Servicer, if a Specially Serviced Mortgage Loan or an REO
Property is involved) has determined in accordance with the Servicing Standard
that making such payment out of the Custodial Account, is in the best interests
of the Certificateholders (as a collective whole), as evidenced in each case by
an Officer's Certificate delivered promptly to the Trustee, the Depositor and
the Controlling Class Representative, setting forth the basis for such
determination and accompanied by any information that such Person may have
obtained that supports such determination. A copy of any such Officer's
Certificate (and accompanying
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information) of the Master Servicer shall also be promptly delivered to the
Special Servicer, and a copy of any such Officer's Certificate (and accompanying
information) of the Special Servicer shall also be promptly delivered to the
Master Servicer. The Master Servicer may conclusively rely on any information in
this regard provided by the Special Servicer (if other than the Master Servicer
or an Affiliate thereof).
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 the Mortgaged Property securing a Mortgage Loan as soon
as practicable after such Mortgage Loan becomes a Specially Serviced Mortgage
Loan and annually thereafter for so long as such Mortgage Loan remains a
Specially Serviced Mortgage Loan, the cost of which shall be paid by the Master
Servicer, at the direction of the Special Servicer, and shall be reimbursable as
a Servicing Advance. In addition, the Special Servicer shall perform or cause to
be performed a physical inspection of each of the REO Properties at least once
per calendar year, the cost of which shall be paid by the Master Servicer, at
the direction of the Special Servicer, and shall be reimbursable as a Servicing
Advance. Beginning in 2008, the Master Servicer shall at its expense perform or
cause to be performed a physical inspection of each Mortgaged Property securing
a Performing Mortgage Loan: (i) at least once every two calendar years in the
case of Mortgaged Properties securing Performing Mortgage Loans that have
outstanding principal balances of (or Mortgaged Properties having allocated loan
amounts of) $2,000,000 or less; and (ii) at least once every calendar year in
the case of all other such Mortgaged Properties; provided that, the Master
Servicer will not be required to perform or cause to be performed an inspection
on a Mortgaged Property if such Mortgaged Property has been inspected by the
Master Servicer or the Special Servicer in the preceding six (6) months. The
Master Servicer and the Special Servicer shall each promptly prepare or cause to
be prepared and deliver to the Trustee and each other a written report, in the
form of (or labeled in accordance with) the Centerline Naming Convention, of
each such inspection performed by it that sets forth in detail the condition of
the Mortgaged Property and that specifies the existence of: (i) any sale,
transfer or abandonment of the Mortgaged Property of which the Master Servicer
or the Special Servicer, as applicable, is aware, (ii) any change in the
condition or value of the Mortgaged Property that the Master Servicer or the
Special Servicer, as applicable, in its reasonable, good faith judgment,
considers material, or (iii) any waste committed on the Mortgaged Property. The
Master Servicer and Special Servicer shall each forward copies of any such
inspection reports prepared by it, in the form of (or labeled in accordance
with) the Centerline Naming Convention, to the Underwriters and the Controlling
Class Representative, upon request, subject to payment of a reasonable fee.
The Special Servicer, in the case of each Specially Serviced Mortgage
Loan and each REO Mortgage Loan, and the Master Servicer, in the case of each
Performing Mortgage Loan, shall each, consistent with the Servicing Standard,
use reasonable efforts to obtain quarterly, annual and other periodic operating
statements and rent rolls with respect to each of the related Mortgaged
Properties and REO Properties. The Special Servicer shall, promptly following
receipt, deliver copies of the operating statements and rent rolls received or
obtained by it, in the form of (or labeled in accordance with) the Centerline
Naming Convention, to the Master Servicer. The Master Servicer shall promptly
deliver copies of the operating statements and rent rolls received or obtained
by it, in the form of (or labeled in accordance with) the Centerline Naming
Convention, (including pursuant to the preceding sentence) to the Trustee, the
Special Servicer, or any Controlling Class Certificateholder, in each case upon
request.
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Within 30 days after receipt by the Master Servicer or Special
Servicer, as applicable, of any annual operating statements with respect to any
Mortgaged Property or REO Property, the Master Servicer (with respect to a
Mortgaged Property that secures a Performing Mortgage Loan) and the Special
Servicer (with respect to a Mortgaged Property that secures a Specially Serviced
Mortgage Loan or with respect to an REO Property) shall prepare or update and
forward to the Trustee, in the form of (or labeled in accordance with) the
Centerline Naming Convention, a CMSA NOI Adjustment Worksheet for such Mortgaged
Property or REO Property (with, upon request, the annual operating statements
attached thereto as an exhibit).
The Master Servicer, with respect to a Mortgaged Property that secures
a Performing Mortgage Loan, and the Special Servicer, with respect to a
Mortgaged Property that secures a Specially Serviced Mortgage Loan or with
respect to an REO Property, shall prepare and maintain one CMSA Operating
Statement Analysis Report for each such Mortgaged Property and REO Property. The
CMSA Operating Statement Analysis Report for each such Mortgaged Property and
REO Property is to be updated by the Master Servicer or Special Servicer, as
applicable, within 30 days after its receipt of updated operating statements for
a Mortgaged Property or REO Property, as the case may be. The Master Servicer or
Special Servicer, as applicable, shall use the "Normalized" column from the CMSA
NOI Adjustment Worksheet for any Mortgaged Property or REO Property, as the case
may be, to update and normalize the corresponding annual year-end information in
the CMSA Operating Statement Analysis Report and shall use any annual operating
statements and related data fields received with respect to any Mortgaged
Property or REO Property, as the case may be, to prepare the CMSA NOI Adjustment
Worksheet for such property. Copies, in the form of (or labeled in accordance
with) the Centerline Naming Convention, of CMSA Operating Statement Analysis
Reports and CMSA NOI Adjustment Worksheets are to be forwarded by the Master
Servicer or the Special Servicer, as applicable, to each other, the Trustee and
any Controlling Class Certificateholder, in each case upon request.
(b) Not later than 12:00 p.m. (New York City time) on the Business Day
after each Determination Date, the Special Servicer shall deliver or cause to be
delivered to the Master Servicer the following reports with respect to the
Specially Serviced Mortgage Loans and any REO Properties and, to the extent that
the subject information relates to when they were Specially Serviced Mortgage
Loans, with respect to any Corrected Mortgage Loans, providing the required
information as of the related Determination Date: (A) a CMSA Special Servicer
Loan File, (B) a CMSA Servicer Appraisal Reduction Template, and (C) a CMSA
Servicer Realized Loss Template.
(c) Not later than 2:00 p.m. (New York City time) on the second
Business Day prior to each Distribution Date, the Master Servicer shall furnish
to the Trustee and, upon request, to the Depositor, the Underwriters and the
Special Servicer, by electronic transmission (or in such other form to which the
Trustee or the Depositor, as the case may be, and the Master Servicer may
agree), an accurate and complete CMSA Loan Periodic Update File providing the
required information for the Mortgage Loans and any REO Mortgage Loans as of the
related Determination Date. In the case of information to be furnished by the
Master Servicer to the Trustee pursuant to this Section 3.12(c), insofar as such
information is solely within the control of the Special Servicer, the Master
Servicer (if other than the Special Servicer or an Affiliate thereof) shall have
no obligation to provide such information until it has received such information
from the Special Servicer, shall not be in default hereunder due to a delay in
providing the CMSA Loan Periodic Update File caused by the Special Servicer's
failure to timely provide any report required under this Agreement and may,
absent actual
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knowledge of an error therein, conclusively rely on the reports to be provided
by the Special Servicer. The Master Servicer may conclusively rely on any
information provided by the Mortgage Loan Seller or any Mortgagor with respect
to the CMSA Loan Periodic Update File, CMSA Loan Setup File, CMSA Property File
and CMSA Financial File.
Not later than 4:00 p.m. (New York City time) on the first Business
Day prior to each Distribution Date, the Master Servicer shall deliver or cause
to be delivered to the Trustee, the Rating Agencies, the Special Servicer and,
upon request, any Controlling Class Certificateholder: (i) the most recent CMSA
Special Servicer Loan File, CMSA Appraisal Reduction Template and CMSA Servicer
Realized Loss Template received from the Special Servicer pursuant to Section
3.12(b); (ii) a CMSA Property File, CMSA Financial File, CMSA Loan Setup File
(if modified), CMSA Loan Level Reserve/LOC Report, CMSA Delinquent Loan Status
Report, CMSA Historical Loan Modification and Corrected Mortgage Loan Report,
CMSA REO Status Report, CMSA Comparative Financial Status Report, Loan Payoff
Notification Report, CMSA Servicer Watch List and CMSA Total Loan Report (in
each case, if applicable, combining the reports prepared by the Special Servicer
and the Master Servicer) with information that is current as of the related
Determination Date with respect to each subject Mortgage Loan and/or REO
Property; and (iii) a CMSA Advance Recovery Report providing the required
information for the Mortgage Loans and any REO Mortgage Loans as of the related
Determination Date.
The Master Servicer shall include on one of such reports updated
information as of the applicable Determination Date regarding the amount of
accrued and unpaid interest on Advances in accordance with Section 3.11(g)
and/or 4.03(d), such information to be presented on a loan-by-loan basis.
(d) If the Master Servicer or the Special Servicer determines, in its
reasonable judgment, that information regarding the Mortgage Loans and REO
Properties (in addition to the information otherwise required to be contained in
the CMSA Investor Reporting Package) should be disclosed to Certificateholders
and Certificate Owners, then the Master Servicer or, solely as to Specially
Serviced Mortgage Loans and REO Properties, the Special Servicer, shall so
notify the Trustee, set forth such information in an additional report, in a
format reasonably acceptable to the Trustee and the Master Servicer and, if
applicable, the Special Servicer (the "Supplemental Report"), and deliver such
report to the Trustee upon preparation thereof or simultaneously with the
delivery of the Master Servicer's reports described in Section 3.12(c).
(e) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12(b) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer, and the Master
Servicer shall deliver to the Trustee, the Special Servicer and, upon request,
any Controlling Class Certificateholder, the reports set forth in Section
3.12(c) in an electronic format reasonably acceptable to the Master Servicer and
the Trustee. The Master Servicer may, absent manifest error, conclusively rely
on the reports to be provided by the Special Servicer pursuant to Section
3.12(b). The Trustee may, absent manifest error, conclusively rely on the
reports to be provided by the Master Servicer pursuant to Section 3.12(c) to the
extent that the underlying information is solely within the control of the
Master Servicer or the Special Servicer, and the Trustee shall not be
responsible to recompute, recalculate or verify the information provided to it
by the Master Servicer. In the case of information or reports to be furnished by
the Master Servicer to the Trustee pursuant to Section 3.12(c), if and to the
extent that such information is based on reports to be provided by the Special
Servicer
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pursuant to Section 3.12(b), or if and to the extent such reports are to be
prepared and delivered by the Special Servicer pursuant to Section 3.12(b),
then, so long as the Master Servicer and the party required to provide the
subject reports are not the same Person or Affiliates, the Master Servicer shall
have no obligation to provide such information or reports to the Trustee until
it has received such information or reports from the Special Servicer, and the
Master Servicer is entitled to conclusively rely on such information provided by
the Special Servicer. The Master Servicer shall not be in default hereunder due
to a delay in providing the reports required by Section 3.12(c) caused by the
Special Servicer's failure to timely provide any report required under Section
3.12(b) of this Agreement.
(f) The preparation and maintenance by the Master Servicer and the
Special Servicer of all the reports specified in this Section 3.12, 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 Servicer and the Special Servicer
shall deliver (or, in the case of the Trustee, make available), and shall cause
(or, in the case of the Master Servicer with respect to a Sub-Servicer
identified on Exhibit K hereto, shall use reasonable efforts to cause) each
Additional Item 1123 Servicer retained or engaged by it to deliver, to the
Trustee and the Depositor, at no expense to the Trust, on or before April 30th
of each year (or, as to any particular calendar year, March 15th as provided in
the following sentence), beginning in 2008, a statement of compliance (the
"Annual Statement of Compliance") from the Trustee, the 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, the Master Servicer, the Special Servicer or such
Additional Item 1123 Servicer, as the case may be, during the preceding calendar
year (or, in the case of the first such certification, during the period from
the Closing Date to December 31, 2007, inclusive) and, in particular, 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, the 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 preceding calendar year or portion thereof (or, if there has been a failure
to fulfill any such obligation in any material respect, specifying each such
failure known to such officer and the nature and status thereof).
Notwithstanding the timing provided for in the first sentence of this paragraph,
if (as confirmed in writing by the Depositor) the Depositor or any other party
hereto is required to file an Annual Report on Form 10-K with the Commission in
respect of the Trust covering any particular calendar year, and so notifies the
Trustee, the Master Servicer and the Special Servicer, then the Annual Statement
of Compliance to be delivered during the following year by each of the Trustee,
the Master Servicer and the Special Servicer, and by each Additional Item 1123
Servicer with which the Master Servicer or Special Servicer has entered into a
servicing relationship with respect to any one or more Mortgage Loans, shall be
delivered (in Microsoft Word, Microsoft Excel or in such other mutually
agreeable format) on or before March 15th of such following year to the Trustee
and the Depositor; and the Master Servicer and the Special Servicer are hereby
notified that the Depositor is required to file an Annual Report on Form 10-K
with the Commission in respect of the Trust covering calendar year 2007.
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In the event that the Master Servicer, the Special Servicer or the
Trustee is terminated or resigns pursuant to the terms of this Agreement, such
party shall provide, and shall cause (or, in the case of the Master Servicer
with respect to a Sub-Servicer identified on Exhibit K hereto, shall use
reasonable efforts to cause) any Additional Item 1123 Servicer retained or
engaged by such party to provide, an annual statement of compliance pursuant to
this Section 3.13 with respect to the period of time that the Master Servicer,
the Special Servicer or the Trustee was subject to this Agreement. In addition,
in the event that any Additional Item 1123 Servicer retained or engaged by the
Master Servicer, the Special Servicer or the Trustee is terminated or resigns
pursuant to the terms of any applicable servicing agreement, such party shall
cause (or, in the case of the Master Servicer with respect to a Sub-Servicer
identified on Exhibit K hereto, shall use reasonable efforts to cause) the
subject Additional Item 1123 Servicer retained or engaged by such party to
provide an annual statement of compliance pursuant to this Section 3.13 with
respect to the period of time that the Additional Item 1123 Servicer was subject
to such other servicing agreement.
In the event the Trustee or the Depositor does not receive the Annual
Statement of Compliance with respect to any party hereto or, if the Trustee has
been notified of the existence thereof, any Additional Item 1123 Servicer
contemplated to deliver such report pursuant to the preceding paragraph, by
March 15th of any year during which an Annual Report on Form 10-K is required to
be filed with the Commission with respect to the Trust, then the Trustee shall,
and the Depositor may, promptly 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. Any party hereto that
retains or engages, during an Exchange Act Reporting Year, a Servicing
Representative (other than a Sub-Servicer identified on Exhibit K hereto) that
is, with respect to such Exchange Act Reporting Year, 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 is required to be filed with the Commission with respect to the Trust,
the party hereto that retained or engaged such Servicing Representative shall so
notify the Trustee (unless such party is the Trustee) and the Depositor in
writing no later than the second Business Day following such March 15th.
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 (or, in
the case of the Master Servicer with respect to a Sub-Servicer identified on
Exhibit K hereto, shall use reasonable efforts to cause) any Sub-Servicing
Function Participant retained or engaged by it to deliver, on or before April
30th of each year (or, as to any particular calendar year, March 15th as
provided in the last sentence of this paragraph), beginning in 2008, to the
Trustee, to the Depositor and, in the case of a Servicing Function Participant
(other than the Master Servicer and the Trustee) or a Sub-Servicing Function
Participant, to the Master Servicer, at no expense to the Trust, the following
reports: (i) as required under Rules 13a-18 or 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
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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 Servicing Criteria
applicable to it, (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 (it being further agreed that, if
any such Servicing Function Participant's or such Sub-Servicing Function
Participant's, as the case may be, Annual Assessment Report or Annual
Attestation Report (as defined below) identifies any material instance of
noncompliance with the Relevant Servicing Criteria, such Servicing Function
Participant or the party hereto that retained such Sub-Servicing Function
Participant, as the case may be, shall contemporaneously deliver to the
indicated recipients above a separate statement identifying such material
instance of noncompliance, and if any such Servicing Function Participant's or
such Sub-Servicing Function Participant's Annual Assessment Report or Annual
Attestation Report has not been timely delivered to the Depositor and the
Trustee for inclusion as an exhibit to the subject Annual Report on Form 10-K to
be filed with the Commission for the calendar year covered by such reports, such
Servicing Function Participant or the party hereto that retained such
Sub-Servicing Function Participant, as the case may be, shall (no later than one
(1) Business Day following the date on which such report was to be delivered)
provide to the intended recipients above notice of such failure, together with
an associated explanation as to why such report has not been delivered (in the
case of the Master Servicer with respect to a Sub-Servicer identified on Exhibit
K hereto, to the extent such explanation can be obtained from such Sub-Servicer
with reasonable efforts)); and (ii) as an exhibit to each report delivered by a
Servicing Function Participant or a Sub-Servicing Function Participant pursuant
to the immediately preceding clause (i), as required under Rules 13a-18 or
15d-18 of the Exchange Act and Item 1122 of Regulation AB, an attestation 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 of
compliance with Servicing Criteria 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 under applicable law) the written
consent of such registered public accounting firm authorizing the filing of such
Annual Attestation Report with the Commission as part of any registration
statement applicable to the registration of the Registered Certificates. 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 that such party has retained or engaged. Notwithstanding the timing
provided for in the first sentence of this paragraph, if (as confirmed in
writing by the Depositor) the Depositor is required to file an Annual Report on
Form 10-K with the Commission in respect of the Trust covering any particular
calendar year, and so notifies the Master Servicer and the Special Servicer,
then the Annual Assessment Report and the Annual Attestation Report to be
delivered during the
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following year by or on behalf of each Servicing Function Participant, and by or
on behalf of each Sub-Servicing Function Participant retained or engaged by a
party hereto, shall be delivered to the Depositor and the Trustee on or before
March 15th of such following year and shall not contain any restrictions on the
filing thereof with the Commission; and the Master Servicer, the Special
Servicer, the Trustee and any Fiscal Agent are hereby notified that the
Depositor is required to file an Annual Report on Form 10-K (including the
foregoing Annual Assessment Reports and Annual Attestation Reports) with the
Commission in respect of the Trust covering calendar year 2007.
In the event that the Master Servicer, the Special Servicer or the
Trustee is terminated or resigns pursuant to the terms of this Agreement, such
party shall provide, and shall cause (or, in the case of the Master Servicer
with respect to a Sub-Servicer identified on Exhibit K hereto, shall use
reasonable efforts to cause) any Sub-Servicing Function Participant retained or
engaged by it to provide, an Annual Assessment Report pursuant to this Section
3.14, coupled with an Annual Attestation Report (and any required accountants'
consent), pursuant to this section with respect to the period of time that the
Master Servicer, the Special Servicer or the Trustee, as the case may be, was
subject to this Agreement. In addition, in the event that any Sub-Servicing
Function Participant retained or engaged by any party hereto is terminated or
resigns pursuant to the terms of an applicable servicing or other agreement,
such party hereto shall cause (or, in the case of the Master Servicer with
respect to a Sub-Servicer identified on Exhibit K hereto, shall use reasonable
efforts to cause) such Sub-Servicing Function Participant retained or engaged by
it to provide an Annual Assessment Report pursuant to this Section 3.14, coupled
with an Annual Attestation Report (and any required accountants' consent),
pursuant to this Section with respect to the period of time that such
Sub-Servicing Function Participant was subject to such other servicing or other
agreement.
In the event the Trustee or the Depositor does not receive the Annual
Assessment Report and/or the Annual Attestation Report with respect to any
Servicing Function Participant, or with respect to any Sub-Servicing Function
Participant retained or engaged by a party hereto that is known to the Trustee
or the Depositor, as the case may be, by March 15th of any year during which an
Annual Report on Form 10-K is required to be filed with the Commission with
respect to the Trust, then the Trustee shall, and the Depositor may, promptly
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. For the purposes of this Section
3.14, as well as Section 3.13 and Section 7.01(v)(B) of this Agreement, a
"Servicer Notice" shall constitute either any writing forwarded to such party
or, in the case of the Master Servicer and the Special Servicer, notwithstanding
the provisions of Section 11.05, e-mail notice or fax notice which, in the case
of an email transmission, shall be forwarded to all of the following e-mail
addresses for the applicable party: in the case of the Master Servicer,
xxxx.xxxxxxxx@xxxxxxxx.xxx, xxxxxxx.xxxxxxx@xxxxxxxx.xxx and
xxxxxxxx.xxxxxxxxxx@xxxxxxxx.xxx, and in the case of the Special Servicer,
xxxxxxx@xxxxxxxxxx.xxx and xxxxxx@xxxxxxxxxx.xxx, or such other e-mail addresses
as are provided in writing by the Master Servicer or the Special Servicer, as
applicable, 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 the 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 Section 7.01(v)(B).
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Any party hereto that retains or engages, during an Exchange Act
Reporting Year, a Servicing Representative (other than a Sub-Servicer identified
on Exhibit K hereto) that is, with respect to such Exchange Act Reporting Year,
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 (together with, if required to be filed
with the Commission under applicable law, the consent of the applicable
registered public accounting firm to file such corresponding Annual Attestation
Report with the Commission) with respect to itself by March 15th of any year
during which a Form 10-K is required to be filed with the Commission with
respect to the Trust, the party hereto that retained or engaged such Servicing
Representative shall promptly so notify the Trustee (unless such party is the
Trustee) and the Depositor in writing no later than the second Business Day
following such March 15th.
The Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent, 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 Servicer, the Special Servicer, the
Trustee and any Fiscal Agent 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) Each of the Master Servicer and the Special Servicer shall afford
to the Trustee, the Underwriters, the Rating Agencies, the Depositor, any
Certificateholder and any Certificate Owner (identified as such to the
reasonable satisfaction of the Master Servicer or the Special Servicer, as the
case may be), and to the OTS, the FDIC and any other banking or insurance
regulatory authority that may exercise authority over any Certificateholder or
any Certificate Owner (identified as such to the reasonable satisfaction of the
Master Servicer or the Special Servicer, as the case may be), 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 the Master Servicer or the Special Servicer, as
the case may be, designated by it.
In connection with providing or granting any information or access
pursuant to the prior paragraph to a Certificateholder, a Certificate Owner or
any regulatory authority that may exercise authority over a Certificateholder or
a Certificate Owner, the Master Servicer and the Special Servicer each may
require payment from such Certificateholder or Certificate Owner of a sum
sufficient to cover the reasonable costs and expenses of providing such
information or access, including copy charges and reasonable fees for employee
time and for space; provided that no charge may be made if such information or
access was required to be given or made available under applicable law. In
connection with providing Certificateholders and Certificate Owners access to
the information described in the preceding paragraph, the Master Servicer and
the Special Servicer shall require (prior to affording such access) a written
confirmation executed by the requesting Person substantially in such form as may
be reasonably acceptable to the Master Servicer or the Special Servicer, as the
case may be, generally to the
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effect that such Person is a Holder of Certificates or a beneficial holder of
Book-Entry Certificates and will keep such information confidential.
Upon the reasonable request of any Certificateholder, or any
Certificate Owner identified to the Master Servicer to the Master Servicer's
reasonable satisfaction, the Master Servicer may provide (or forward
electronically) (at the expense of such Certificateholder or Certificate Owner)
copies of any operating statements, rent rolls and financial statements obtained
by the Master Servicer or the Special Servicer; provided that, in connection
therewith, the Master Servicer shall require a written confirmation executed by
the requesting Person substantially in such form as may be reasonably acceptable
to the Master Servicer, generally to the effect that such Person is a Holder of
Certificates or a beneficial holder of Book-Entry Certificates and will keep
such information confidential.
(b) No less often than on a monthly basis, upon reasonable prior
notice and during normal business hours, each of the Master Servicer and the
Special Servicer shall, without charge, make a knowledgeable Servicing Officer
available to answer questions (if and to the extent the Master Servicer or the
Special Servicer, as the case may be, is responsible (or, in the case of the
Special Servicer, would be responsible upon the occurrence of a Servicing
Transfer Event) for the servicing thereof) from the Controlling Class
Representative regarding the performance and servicing of the Mortgage Loans
and/or the REO Properties. Except as provided in the following sentence, in
connection with providing the Controlling Class Representative with the
information described in the preceding sentence, the Master Servicer and the
Special Servicer shall require (prior to providing such information for the
first time to such Controlling Class Representative) a Controlling Class
Representative Confirmation (as defined in Section 6.09(b)), generally to the
effect that such Person will keep any information received by it from time to
time pursuant to this Agreement confidential (other than with respect to
communications with the Controlling Class). In the case of the initial
Controlling Class Representative, upon its or an Affiliate's acquisition of the
Class T Certificates, such entity shall be deemed to have agreed to keep all
non-public information received by it in such capacity from time to time
pursuant to this Agreement confidential, subject to applicable law, and such
initial Controlling Class Representative shall be deemed to have made such
agreement without delivery of the Controlling Class Representative Confirmation.
SECTION 3.16. Title to REO Property; REO Account.
(a) If title to any Mortgaged Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee on behalf of
the Certificateholders. 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 REO Properties pursuant to this
Agreement, then the deed or certificate of sale with respect to any such REO
Property shall be issued to such single member limited liability company. The
limited liability company shall be a manager-managed limited liability company,
with the Special Servicer to serve as the initial manager to manage the property
of the limited liability company, including any applicable REO Property, in
accordance with the terms of this Agreement as if such property was held
directly in the name of the Trust or Trustee under this Agreement.
The Special Servicer, on behalf of the Trust Fund, shall sell any REO
Property by the end of the third calendar year following the calendar year in
which the applicable REMIC Pool acquires ownership of such REO Property for
purposes of Section 860G(a)(8) of the Code, unless the Special
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Servicer either (i) applies, more than 60 days prior to the end of such third
succeeding year, for and is granted an extension of time (an "REO Extension") by
the IRS to sell such REO Property or (ii) obtains for the Trustee an Opinion of
Counsel, addressed to the Trustee, the Special Servicer and the Master Servicer,
to the effect that the holding by the applicable REMIC Pool of such REO Property
subsequent to the end of such third succeeding year will not result in the
imposition of taxes on "prohibited transactions" (as defined in Section 860F of
the Code) of any REMIC Pool or cause any REMIC Pool to fail to qualify as a
REMIC at any time that any Certificates are outstanding. If the Special Servicer
is granted the REO Extension contemplated by clause (i) of the immediately
preceding sentence or obtains the Opinion of Counsel contemplated by clause (ii)
of the immediately preceding sentence, the Special Servicer shall sell the
subject REO Property within such extended period as is permitted by such REO
Extension or such Opinion of Counsel, as the case may be. Any expense incurred
by the Special Servicer in connection with its obtaining the REO Extension
contemplated by clause (i) of the second preceding sentence or its obtaining the
Opinion of Counsel contemplated by clause (ii) of the second preceding sentence,
or for the creation of and the operating of a single member limited liability
company, shall be covered by, and reimbursable as, a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds collected
and received in connection with any REO Property separate and apart from its own
funds and general assets. If an REO Acquisition shall occur in respect of any
Mortgaged Property, the Special Servicer shall establish and maintain one or
more accounts (collectively, the "REO Account"), to be held on behalf of the
Trustee in trust for the sole benefit of the Certificateholders, for the
retention of revenues and other proceeds derived from each REO Property. The REO
Account shall be an Eligible Account. The Special Servicer shall deposit, or
cause to be deposited, in the REO Account, upon receipt, all REO Revenues,
Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds received in
respect of any REO Property. Funds in the REO Account (other than any such funds
representing Additional Interest) may be invested in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall be entitled to make
withdrawals from the 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 the REO Account as provided in Section
3.06(b) (but only to the extent of the Net Investment Earnings with respect to
the REO Account for any related Investment Period). The Special Servicer shall
give notice to the Trustee and the Master Servicer of the location of the REO
Account when first established and of the new location of the REO Account prior
to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. On the Business Day following
each Determination Date, the Special Servicer shall withdraw from the REO
Account and deposit into the Custodial Account (or deliver to the Master
Servicer or such other Person as may be designated by the Master Servicer for
deposit into the Custodial Account) the aggregate of all amounts received in
respect of each 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 and, further, net of any reserves to be maintained in the
REO Account in accordance with the last sentence of this Section 3.16(c).
Notwithstanding the foregoing, the Special Servicer may retain in the REO
Account such portion of proceeds and collections in respect of any REO Property
as may be necessary to maintain a reserve of sufficient funds for the proper
operation, management, leasing, maintenance and disposition of such REO Property
(including the creation of a reasonable reserve for
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repairs, replacements, necessary capital replacements and other related
expenses), such reserve not to exceed an amount sufficient to cover such items
to be incurred during the following 12-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, the REO Account pursuant to Section 3.16(b) or (c). The
Special Servicer shall provide the Master Servicer any information with respect
to the REO Account as is reasonably requested by the Master Servicer.
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition by it of title to a Mortgaged Property,
the Special Servicer shall review the operation of such Mortgaged Property and
determine the nature of the income that would be derived from such property if
it were acquired by the Trust Fund. If the Special Servicer determines from such
review that:
(i) None of the income from Directly Operating such Mortgaged
Property 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;
(ii) Directly Operating such Mortgaged Property as REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such property
would not result in income subject to an REO Tax, then the Special Servicer
may (provided that in the good faith and reasonable judgment of the Special
Servicer, it is commercially reasonable) acquire such Mortgaged Property as
REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such
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
REO Property without the Trust Fund incurring or possibly incurring an REO
Tax on income from such property, the Special Servicer shall deliver to the
Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to
manage such property as REO Property. Such plan shall include potential
sources of income, and, to the extent reasonably possible, estimates of the
amount of income from each such source. Upon request of the Special
Servicer, the Tax Administrator shall advise the Special Servicer of the
Tax Administrator's federal income tax reporting position with respect to
the various sources of income that the Trust Fund would derive under the
Proposed Plan. After receiving the information described in the preceding
sentence from the Tax Administrator, the Special Servicer shall implement
the Proposed Plan (after acquiring the respective Mortgaged Property as REO
Property), with any amendments required to be made thereto as a result of
the Tax Administrator's tax reporting position.
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall be based on the Servicing Standard and, further,
based on the good faith and reasonable judgment of the Special Servicer as to
which means would be in the best interest of the
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Certificateholders, as a collective whole, by maximizing (to the extent
commercially reasonable and consistent with Section 3.17(b)) the net after-tax
REO Revenues received with respect to such property without materially impairing
the Special Servicer's ability to promptly sell such property for a fair price.
In connection with performing their respective duties under this Section
3.17(a), both the Special Servicer and the Tax Administrator may consult with
counsel and tax accountants, the reasonable cost of which consultation shall be
covered by, and be reimbursable as, a Servicing Advance to be made by the
Special Servicer.
(b) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect and operate such REO Property for the benefit of
the Certificateholders solely for the purpose of its prompt disposition and sale
in a manner that does not and will not: (i) cause such REO Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code for purposes of Section 860D(a) of the Code; or (ii) except as
contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool
of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or 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 REO Account, to the extent of amounts on
deposit therein with respect to any REO Property, funds necessary for the proper
operation, management, maintenance and disposition of such REO Property,
including:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account in respect of
any REO Property are insufficient for the purposes set forth in the preceding
sentence with respect to such REO Property, the Master Servicer shall, at the
direction of the Special Servicer, make Servicing Advances in such amounts as
are necessary for such purposes unless the Master Servicer determines, in
accordance with the Servicing Standard, that such payment would be a
Nonrecoverable Advance; provided, however, that the Master Servicer may make any
such Servicing Advance without regard to recoverability if it is a necessary fee
or expense incurred in connection with the defense or prosecution of legal
proceedings.
(c) Without limiting the generality of the foregoing, the Special
Servicer shall not, with respect to any REO Property:
(i) enter into, renew or extend any New Lease with respect to
such REO Property, if the New Lease, by its terms would give rise to any
income that does not constitute Rents from Real Property;
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(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate such 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 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 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 a REMIC Pool, in which case the Special Servicer may take
such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor
for the operation and management of any REO Property; provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust Fund) shall be reasonable and customary in
consideration of the nature and locality of such 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 REO Property, including 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
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 REO Property; and
(v) the Special Servicer shall be obligated with respect thereto
to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
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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. Sale of Mortgage Loans and REO Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may sell
or purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property
only in connection with a Permitted Purchase of such Mortgage Loan or REO
Property, as the case may be, and/or in connection with a sale of such REO
Property in accordance with this Section 3.18.
(b) Within five (5) Business Days after the Special Servicer has
knowledge that any Mortgage Loan has become a Specially Serviced Mortgage Loan,
the Special Servicer shall give notice of such event to each Holder of a
Certificate of the Controlling Class and the Trustee. The Special Servicer, any
single Certificateholder or any group of Certificateholders entitled to a
majority of the Voting Rights allocated to the Controlling Class and any
assignees of the foregoing parties (collectively, the "Purchase Option Holders")
shall each have the option to purchase such Specially Serviced Mortgage Loan at
a cash price that is at least equal to the Purchase Price; provided that the
Special Servicer has determined in its reasonable and good faith judgment that a
material default exists with respect to such Specially Serviced Mortgage Loan.
The Special Servicer shall accept the first offer by a Purchase Option Holder
that is at least equal to the Purchase Price for the subject Mortgage Loan.
(c) If none of the Purchase Option Holders exercises its option to
purchase any Specially Serviced Mortgage Loan as described in subsection (b)
above, then each Purchase Option Holder will also have the option to purchase
that Specially Serviced Mortgage Loan at a price equal to the fair value (the
"FV Price") of such Specially Serviced Mortgage Loan; provided that a material
default exists with respect to such Specially Serviced Mortgage Loan. Upon
receipt of a request from any Purchase Option Holder to determine the FV Price
in contemplation of its intention to exercise its option to purchase a Specially
Serviced Mortgage Loan as to which a material default exists at a price that is
below the Purchase Price, the Special Servicer shall promptly obtain an MAI
appraisal (the cost of which shall be covered by a Servicing Advance) of the
related Mortgaged Property by an Independent Appraiser (unless such an appraisal
was obtained within one year of such date and the Special Servicer has no
knowledge of any circumstances that would materially affect the validity of such
appraisal). Promptly after obtaining such appraisal, the Special Servicer shall
determine the FV Price for the subject Specially Serviced Mortgage Loan in
accordance with the Servicing Standard and the provisions of subsection (i)
below. Promptly after determining such FV Price, the Special Servicer shall
report such FV Price to the Trustee and each Purchase Option Holder.
(d) If the Special Servicer determines that it is willing, or another
Purchase Option Holder notifies the Special Servicer that it is willing, to
purchase any Specially Serviced Mortgage Loan as to which a material default
exists (the party submitting such bid, the "Initial Bidder") at a price equal to
or above the FV Price (a "FV Bid"), then the Special Servicer shall notify all
other Purchase Option Holders that it has made or received, as the case may be,
such FV Bid (without disclosing the amount of such FV Bid). All other Purchase
Option Holders may submit competing bids within the ten (10)
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Business Day period following such notice. At the conclusion of the
above-described ten (10) Business Day period, the Special Servicer shall accept
the highest bid received from any Purchase Option Holder that is at least equal
to the FV Price for the subject Specially Serviced Mortgage Loan.
(e) If the Special Servicer accepts the bid of any Purchase Option
Holder, such Purchase Option Holder shall be required to purchase the subject
Specially Serviced Mortgage Loan within ten (10) Business Days of receipt of
notice of such acceptance; provided that neither the Special Servicer nor any
Holder of a Certificate of the Controlling Class shall be liable for the failure
of any assignee whose bid has been accepted by the Special Servicer to complete
any such purchase.
(f) If the Special Servicer has not accepted a FV Bid prior to the
expiration of 120 days from its determination of the FV Price and thereafter
receives a FV Bid or a request from a Purchase Option Holder for an updated FV
Price, the Special Servicer shall within 45 days recalculate the FV Price (with
no presumption that such FV Price should be reduced on account of the lack of an
FV Bid) and repeat the notice and bidding procedure provided in subsection (d)
above until the purchase option terminates under subsection (j) below.
(g) If the party exercising the purchase option at the FV Price for
any Specially Serviced Mortgage Loan is the Special Servicer or an Affiliate
thereof, the Trustee shall verify that the FV Price of such Mortgage Loan is at
least equal to the fair value of such Mortgage Loan. In conducting such
verification, the Trustee will be permitted to conclusively rely on an appraisal
obtained by the Trustee from an Independent Appraiser at the time it is required
to verify such FV Price and/or the opinion of an Independent expert in real
estate matters (including the Master Servicer) with at least five years'
experience in valuing or investing in loans, similar to the subject Specially
Serviced Mortgage Loan, that has been selected by the Trustee with reasonable
care at the expense of the Trust Fund.
(h) Any Purchase Option Holder may, once such purchase option is
exercisable pursuant to this Section 3.18, assign its purchase option with
respect to any Specially Serviced Mortgage Loan to a third party other than the
related Mortgagor or, if such assignment would violate the terms of any related
co-lender, intercreditor or similar agreement, any Affiliate of the related
Mortgagor; and, upon such assignment such third party shall have all of the
rights that had been granted to the Purchase Option Holder hereunder in respect
of the purchase option. Such assignment shall only be effective upon written
notice (together with a copy of the executed assignment and assumption
agreement) being delivered to the Trustee, the Master Servicer and the Special
Servicer.
(i) In determining the FV Price for any Specially Serviced Mortgage
Loan under this Section 3.18, the Special Servicer may take into account, among
other factors, the results of any appraisal or updated appraisal (the cost of
which shall constitute a Servicing Advance) that it or the Master Servicer may
have obtained in accordance with this Agreement within the prior twelve months;
the opinions on fair value expressed by Independent investors in mortgage loans
comparable to the subject Specially Serviced Mortgage Loan; the period and
amount of any delinquency on the subject Specially Serviced Mortgage Loan; the
physical condition of the related Mortgaged Property; the state of the local
economy; and the expected recoveries from the subject Specially Serviced
Mortgage Loan if the Special Servicer were to pursue a workout or foreclosure
strategy instead of selling such Mortgage Loan to a Purchase Option Holder.
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(j) The purchase option for any Specially Serviced Mortgage Loan
pursuant to this Section 3.18 shall terminate, and shall not be exercisable as
set forth in subsections (b) and (c) above (or if exercised, but the purchase of
such Specially Serviced Mortgage Loan has not yet occurred, shall terminate and
be of no further force or effect) if and when (i) the Special Servicer has
accepted a FV Bid (although the purchase option shall resume if the Person that
submitted that FV Bid does not complete the purchase of the subject Specially
Serviced Mortgage within the time period provided for under Section 3.18(e)),
(ii) such Specially Serviced Mortgage Loan has become a Corrected Mortgage Loan
or is otherwise no longer in material default, (iii) the related Mortgaged
Property has become an REO Property, (iv) a Final Recovery Determination has
been made with respect to such Specially Serviced Mortgage Loan or (v) the
subject Specially Serviced Mortgage Loan has been removed from the Trust Fund.
(k) Until such time as a FV Bid is accepted with respect to any
Specially Serviced Mortgage Loan, the Special Servicer shall continue to pursue
all of the other resolution options available to it with respect to such
Specially Serviced Mortgage Loan in accordance with the Servicing Standard.
(l) Any Specially Serviced Mortgage Loan that is purchased pursuant to
the purchase option provided for in this Section 3.18 will remain subject to any
cure and/or purchase rights of any holder of a related mezzanine loan in
connection with a Mortgage Loan default as set forth in the related
intercreditor agreement.
(m) The Special Servicer shall use its best efforts to solicit offers
for each REO Property in such manner as will be reasonably likely to realize a
fair price within the time period provided for by Section 3.16(a). Subject to
Section 6.11, if and as applicable, the Special Servicer shall accept the first
(and, if multiple bids are received contemporaneously or subsequently, the
highest) cash offer received from any Person that constitutes a fair price for
such REO Property. If the Special Servicer reasonably believes that it will be
unable to realize a fair price for any REO Property within the time constraints
imposed by Section 3.16(a), then (subject to Section 6.11, if and as applicable)
the Special Servicer shall dispose of such REO Property upon such terms and
conditions as the Special Servicer shall deem necessary and desirable to
maximize the recovery thereon under the circumstances and, in connection
therewith, shall accept the highest outstanding cash bid, regardless of from
whom received.
(n) The Special Servicer shall give the Trustee and the Depositor
prior written notice of its intention to sell any REO Property pursuant to this
Section 3.18.
(o) No Interested Person shall be obligated to submit an offer to
purchase any REO Property, and notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates may
bid for or purchase any REO Property pursuant hereto.
(p) Whether any cash offer constitutes a fair price for any REO
Property for purposes of this Section 3.18, shall be determined by the Special
Servicer or, if such cash offer is from the Special Servicer or an Affiliate of
the Special Servicer, by the Trustee. In determining whether any offer received
from the Special Servicer or an Affiliate of the Special Servicer represents a
fair price for any REO Property, the Trustee shall be supplied with and shall be
entitled conclusively to rely on the most recent appraisal in the related
Servicing File conducted in accordance with this Agreement within the preceding
12-month period (or, in the absence of any such appraisal or if there has been a
material change at the subject REO Property since any such appraisal, on a new
appraisal to be obtained by the
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Special Servicer (the cost of which shall be covered by, and be reimbursable as,
a Servicing Advance)). The appraiser conducting any such new appraisal shall be
an Independent Appraiser selected by the Special Servicer if neither the Special
Servicer nor any Affiliate thereof is bidding with respect to an REO Property
and selected by the Trustee (at the expense of the Trust Fund) if either the
Special Servicer or any Affiliate thereof is so bidding. Where any Interested
Person is among those bidding with respect to an REO Property, the Special
Servicer shall require that all offers be submitted to it (and, if the Special
Servicer or any Affiliate thereof is bidding, to the Trustee) in writing and be
accompanied by a refundable deposit of cash in an amount equal to 5% of the
offer amount. In determining whether any offer from a Person other than itself
or one of its Affiliates constitutes a fair price for any REO Property, the
Special Servicer shall take into account the results of any appraisal or updated
appraisal that it or the Master Servicer may have obtained in accordance with
this Agreement within the prior 12 months, and any Independent Appraiser shall
be instructed to take into account, as applicable, among other factors, the
occupancy level and physical condition of the subject REO Property, the state of
the local economy and the obligation to dispose of the subject REO Property
within the time period specified in Section 3.16(a). The Purchase Price for any
REO Property shall in all cases be deemed a fair price. Notwithstanding the
other provisions of this Section 3.18, no cash offer from the Special Servicer
or any Affiliate thereof shall constitute a fair price for any REO Property
unless such offer is the highest cash offer received and at least two
independent offers (not including the offer of the Special Servicer or any
Affiliate thereof) have been received. In the event the offer of the Special
Servicer or any Affiliate thereof is the only offer received or is the higher of
only two offers received, then additional offers shall be solicited. If an
additional offer or offers, as the case may be, are received and the original
offer of the Special Servicer or any Affiliate thereof is the highest of all
cash offers received, then the offer of the Special Servicer or such Affiliate
shall be accepted, provided that the Trustee has otherwise determined, as
provided above in this Section 3.18(p), that such offer constitutes a fair price
for any REO Property. Any offer by the Special Servicer shall be unconditional;
and, if accepted, the subject REO Property shall be transferred to the Special
Servicer without recourse, representation or warranty other than customary
representations as to title given in connection with the sale of a real
property.
(q) Subject to Sections 3.18(a) through 3.18(p) above, and further
subject to Section 6.11, if and as applicable, the Special Servicer shall act on
behalf of the Trustee in negotiating with independent third parties seeking to
purchase an REO Property and taking any other action necessary or appropriate in
connection with the sale of any Specially Serviced Mortgage Loan or REO Property
pursuant to this Section 3.18, and the collection of all amounts payable in
connection therewith. In connection therewith, the Special Servicer may charge
prospective bidders for any REO Property, and may retain, fees that approximate
the Special Servicer's actual costs in the preparation and delivery of
information pertaining to, or evaluating bids for, such REO Property without
obligation to deposit such amounts into the Custodial Account. Any sale of a
Specially Serviced Mortgage Loan or an REO Property pursuant to this Section
3.18 shall be final and without recourse to the Trustee or the Trust, and if
such sale is consummated in accordance with the terms of this Agreement, neither
the Special Servicer nor the Trustee shall have any liability to any
Certificateholder with respect to the purchase price therefor accepted by the
Special Servicer or the Trustee.
(r) Any sale of a Specially Serviced Mortgage Loan or an REO Property
pursuant to this Section 3.18 shall be for cash only and shall be on a servicing
released basis.
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SECTION 3.19. Additional Obligations of the Master Servicer and
Special Servicer; Obligations to Notify Ground Lessors and Hospitality
Franchisors; the Special Servicer's Right to Request the Master Servicer to Make
Servicing Advance.
(a) The Master Servicer shall deliver to the Trustee for deposit in
the Collection Account on each Master Servicer Remittance Date, without any
right of reimbursement therefor, an amount equal to the lesser of: (i) the
aggregate amount of all Prepayment Interest Shortfalls, if any, incurred in
connection with Principal Prepayments Received by the Trust, during the most
recently ended applicable Collection Period, with respect to Performing Mortgage
Loans; and (ii) the sum of (1) the aggregate of all Master Servicing Fees
received by the Master Servicer during such Collection Period with respect to
the entire Mortgage Pool (but only to the extent of that portion thereof
calculated at a rate of 0.01% per annum with respect to each and every Mortgage
Loan and REO Mortgage Loan) and (2) the aggregate amount of Prepayment Interest
Excesses received in respect of the entire Mortgage Pool during such Collection
Period; provided, however, that if any Prepayment Interest Shortfall occurs with
respect to any Mortgage Loan as a result of the Master Servicer's allowing the
Mortgagor to deviate from the terms of the related loan documents regarding
principal prepayments, the Master Servicer shall be obligated to pay an amount
equal to the entire Prepayment Interest Shortfall with respect to the subject
Mortgage Loan without any limitation of the kind set forth in clauses (1) and
(2) above.
(b) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor under a Ground Lease, even if
the corresponding fee interest is encumbered, promptly (and in any event within
60 days) following the Closing Date, notify the related ground lessor of the
transfer of such 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 the Master Servicer.
(c) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor in a hospitality property (as
identified on Schedule IV hereto), not later than the later of (i) 30 days
following the Master Servicer's receipt of the subject franchise agreement and
(ii) the expiration of the period that may be required for such notice pursuant
to the terms of the applicable franchise documents, if any, notify the related
hospitality franchisor of the transfer of such Mortgage Loan to the Trust Fund
pursuant to this Agreement and inform such hospitality franchisor that any
notices of default under the related franchise agreement should thereafter be
forwarded to the Master Servicer.
(d) Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer is required under this Agreement to make any
Servicing Advance but does not desire to do so, the Special Servicer may, in its
sole discretion, request that the Master Servicer make such Servicing Advance,
such request to be made, in writing, at least five (5) Business Days (or, in an
emergency situation or on an urgent basis, two (2) Business Days, provided that
the written request sets forth the nature of the emergency or the basis of the
urgency) in advance of the date on which such Servicing Advance is required to
be made hereunder and to be accompanied by such information and documentation
regarding the subject Servicing Advance as the Master Servicer may reasonably
request. The Master Servicer shall have the obligation to make any such
Servicing Advance that it is so requested by the Special Servicer to make,
within five (5) Business Days (or, in an emergency situation
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or on an urgent basis, two (2) Business Days) of the 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 Master Servicer to make (regardless of whether
or not the Master Servicer shall make such Servicing Advance). The Master
Servicer shall be entitled to reimbursement for any Servicing Advance made by it
at the direction of the Special Servicer, together with interest thereon in
accordance with Sections 3.05(a) and/or 3.11(g), as applicable, at the same
time, in the same manner and to the same extent as the Master Servicer is
entitled with respect to any other Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(d), the
Master Servicer shall not be required to make at the direction of the Special
Servicer, any Servicing Advance if the Master Servicer determines in its
reasonable, good faith judgment that such Servicing Advance, although not
characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is
in fact a Nonrecoverable Servicing Advance. The Master Servicer shall notify the
Special Servicer in writing of such determination, which shall be made pursuant
to Section 3.11(h). Any request by the Special Servicer that the 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 Master Servicer, the Trustee and any Fiscal Agent shall be
entitled to conclusively rely on such determination. Upon making a
determination, in accordance with the applicable requirements under Section
3.11(h), that any Servicing Advance previously made or proposed to be made with
respect to a Specially Serviced Mortgage Loan or an REO Property is a
Nonrecoverable Servicing Advance, the Special Servicer shall report its
determination to the Master Servicer and the Trustee. The Master Servicer, the
Trustee and any Fiscal Agent shall be entitled to conclusively rely on such a
determination by the Special Servicer.
(e) The Master Servicer (if a Performing Mortgage Loan is involved)
and the Special Servicer (if a Specially Serviced Mortgage Loan or an REO
Mortgage Loan is involved) shall each be responsible for: (i) providing on a
timely basis to any lender of any related mezzanine debt such notices (including
with respect to Mortgage Loan defaults), reports and other information as may be
required from the Trust, as holder of any Mortgage Loan, under any related
co-lender, intercreditor or similar agreement; and (ii) otherwise taking such
actions as are required under or contemplated by the related co-lender,
intercreditor or similar agreement to permit any lender of related mezzanine
debt to exercise any purchase option or cure rights that it may have with
respect to any Mortgage Loan under such related co-lender, intercreditor or
similar agreement.
(f) Upon termination of the Trust Fund, any funds or other assets
remaining in the Loss of Value Reserve Fund, to the extent not otherwise
required to be part of the Available Distribution Amount for the Final
Distribution Date in accordance with Section 3.05(e), shall be distributed to
the Holder or Holders of the Class R-III Certificates. The Trustee shall account
for the Loss of Value Reserve Fund as an outside reserve fund within the meaning
of Treasury regulations section 1.860G-2(h) and not an asset of any REMIC Pool
or the Grantor Trust (if created hereunder taking into account Section 2.05(b)).
Furthermore, for all federal tax purposes, the Trustee shall treat: (i) any
amounts paid out of the Loss of Value Reserve Fund to the Certificateholders as
distributions by the REMIC Pools for all federal tax purposes; and (ii) any
amounts transferred by a REMIC Pool to the Loss of Value Reserve Fund as amounts
distributed by such REMIC Pool to the beneficial owner of the Loss of Value
Reserve Fund. The Holder or Holders of the Class R-III Certificates will be the
sole beneficial owner(s) of the Loss of Value Reserve Fund for all income and
franchise tax purposes.
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(g) In connection with a mediation and/or arbitration proceeding
conducted in accordance with Section 5(i) of the Mortgage Loan Purchase
Agreement, in the event that the Master Servicer is the party acting on behalf
of the Trust in such mediation and/or arbitration proceeding and such mediation
and/or arbitration proceeding relates to a Specially Serviced Mortgage Loan, the
Master Servicer shall consult with the Special Servicer prior to consenting to
or entering into any final resolution, settlement or agreement with respect
thereto.
(h) Without the prior written consent of the applicable Mortgage Loan
Seller, the Master Servicing Group (as defined below) shall not disclose to any
Person employed by the Master Servicer or an affiliate thereof that is part of a
business unit that originates or refinances mortgage loans any information that
the Master Servicing Group has received or obtained or generated or is otherwise
in its possession as a result of its acting as Master Servicer hereunder. In
addition, without the prior written consent of the applicable Mortgage Loan
Seller, the Master Servicing Group shall not take any direct action, nor will it
direct a third party to take any action, to refinance or solicit the refinancing
of any Mortgage Loan. For purposes of this Section 3.19(h), the "Master
Servicing Group" shall mean the business unit of the Master Servicer (which,
with respect to Wachovia, is called Commercial Real Estate Services) that is in
the business of master servicing and/or primary servicing commercial mortgage
loans that are in securitizations. Notwithstanding the foregoing, the following
shall not constitute violations of this Section 3.19(h): (i) dissemination of
information or reports as contemplated by this Agreement, (ii) promotions
undertaken by the Master Servicer or any Affiliate of the Master Servicer which
are directed to commercial mortgage loan borrowers, originators and mortgage
brokers generally, which promotions, in each case, are based upon information
that has been acquired from a source other than the Master Servicing Group,
including, without limitation, commercially acquired mailing lists or
information generally available in the public domain, (iii) actions taken in
connection with serving the refinancing needs of a Mortgagor who, without such
solicitation by the Master Servicer as described in the second preceding
sentence, contacts the Master Servicer in connection with the refinance of such
Mortgage Loan, or (iv) actions taken or communications made by the Master
Servicing Group in connection with the sale or refinance of a Specially Serviced
Mortgage Loan.
(i) If any Mortgage Loan provides that the applicable grace period
during which any Monthly Payment is due (without giving rise to a default) does
not commence until after notice is given to the related Mortgagor, then the
Master Servicer shall monitor the receipt of all Monthly Payments with respect
to such Mortgage Loan. If any such Monthly Payment on any such Mortgage Loan is
not received by the related Due Date, then the Master Servicer shall use
reasonable efforts to provide, in accordance with the Servicing Standard, as
soon as reasonably practicable, written notice of such failure to the related
Mortgagor sufficient to cause the commencement of the applicable grace period.
SECTION 3.20. Modifications, Waivers, Amendments and Consents;
Defeasance.
(a) Subject to Sections 3.20(b) through 3.20(f) and 3.20(m) below, and
further subject to Section 3.08 and Section 6.11, in each case if and as
applicable, and any related intercreditor, co-lender or similar agreement, the
Special Servicer and/or the Master Servicer may, on behalf of the Trustee, agree
to any modification, extension, waiver or amendment of any term of any Mortgage
Loan and respond to various Mortgagor requests for consent on the part of the
mortgagee (including the lease reviews and lease consents related thereto),
without the consent of the Trustee, any Certificateholder, the Master Servicer
(in the case of any such action taken by the Special Servicer) or, except as
expressly set forth below, the Special Servicer (in the case of any such action
taken by the Master Servicer).
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(b) All modifications, extensions, waivers or amendments of any
Mortgage Loan, including the lease reviews and lease consents related thereto,
shall be in writing (except for waivers of Default Charges) and shall be
considered and effected in a manner consistent with the Servicing Standard.
(c) In the case of any Performing Mortgage Loan, the Master Servicer
shall (without the consent of the Trustee, any Certificateholder, or, except as
expressly set forth herein, the Special Servicer or the Controlling Class
Representative), be responsible for the following:
(i) consenting to subordination of the lien of the subject
Performing Mortgage Loan to an easement, right-of-way or similar agreement
for utilities, access, parking, public improvements or another purpose, and
consenting to subordination of the related Mortgage Loan to such easement
or right-of way provided the Master Servicer shall have determined in
accordance with the Servicing Standard that such easement or right-of-way
shall not materially interfere with the then-current use of the related
Mortgaged Property, the security intended to be provided by the related
Mortgage, or the related Mortgagor's ability to repay the subject
Performing Mortgage Loan, or materially or adversely affect the value of
the related Mortgaged Property, or cause the subject Performing Mortgage
Loan to cease to be a "qualified mortgage" for REMIC purposes;
(ii) granting waivers of minor covenant defaults (other than
financial covenants) including late financial statements;
(iii) granting releases of non-material parcels of the related
Mortgaged Property, releases of the related Mortgaged Property in
connection with a defeasance or a pending or threatened condemnation and
releases of the related Mortgaged Property expressly required under the
related loan documents;
(iv) approving routine leasing activity (including any
subordination, standstill and attornment agreements) with respect to any
lease for less than the lesser of (A) 30,000 square feet and (B) 30% of the
related Mortgaged Property;
(v) approving a change of the property manager at the request of
the related Mortgagor, provided that (A) the successor property manager is
not affiliated with the Mortgagor and is a nationally or regionally
recognized manager of similar properties and (B) the subject Mortgage Loan
does not have an outstanding principal balance in excess of $5,000,000;
(vi) approving any waiver affecting the timing of receipt of
financial statements from any Mortgagor, provided that such financial
statements are delivered no less than quarterly and within 60 days of the
end of the calendar quarter;
(vii) approving annual budgets for the related Mortgaged
Property; provided that no such budget (A) provides for the payment of
operating expenses in an amount equal to more than 110% of the amounts
budgeted therefor for the prior year or (B) provides for the payment of any
material expenses to any affiliate of the Mortgagor (other than the payment
of a management fee to any property manager if such management fee is no
more than the management fee in effect on the Cut-off Date);
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(viii) subject to other restrictions herein regarding Principal
Prepayments, waiving any provision of a Mortgage Loan requiring a specified
number of days notice prior to a Principal Prepayment;
(ix) approving modifications, consents or waivers (other than
those set forth in Sections 3.20(d) and (e)) in connection with a
defeasance permitted by the terms of the subject Performing Mortgage Loan
if the Master Servicer receives an Opinion of Counsel (which Opinion of
Counsel shall be an expense of the Mortgagor) to the effect that such
modification, waiver or consent would not cause any REMIC Pool to fail to
qualify as a REMIC under the Code or result in a "prohibited transaction"
under the REMIC Provisions; provided that the Master Servicer shall not
approve any modification that would reduce the amount of the Defeasance
Collateral required to be delivered in connection with any such defeasance;
(x) subject to the satisfaction of any conditions precedent set
forth herein or in the related loan documents, and provided there is no
lender discretion with respect to such disbursement, approving
disbursements of any earnout or holdback amounts in accordance with the
related loan documents;
(xi) waiving provisions of the loan documents for the subject
Performing Mortgage Loan requiring the receipt of a rating confirmation,
provided that receipt of such rating confirmation is not otherwise
expressly required herein, the subject Performing Mortgage Loan is not one
of the then 10 largest Mortgage Loans (by balance) and the related
provision of the subject Performing Mortgage Loan does not relate to a
"due-on sale" or "due-on encumbrance" clause or to defeasance (other than
in connection with a defeasance which does not require receipt of a ratings
confirmation from either Rating Agency pursuant to Section 3.20(k)),
release or substitution of collateral, insurance, ratings of depositories
or issuers of letters of credit, investment of funds in Servicing Accounts
or Reserve Accounts, or conversion of a Mortgaged Property (or any portion
thereof) to condominium ownership; and
(xii) granting other similar non-material waivers, consents,
modifications or amendments.
provided that, (1) any such modification, waiver or amendment would not in any
way affect a payment term (including (except as provided in Section 3.20(o)
below) a waiver of the payment of assumption fees) of the subject Performing
Mortgage Loan (other than in the case of a waiver of the payment of Default
Charges), (2) agreeing to such modification, waiver or amendment would be
consistent with the Servicing Standard and (3) agreeing to such modification,
waiver or amendment will not violate the terms, provisions or limitations of
this Agreement. With respect to any action proposed to be taken by the Master
Servicer under this Section 3.20(c) where any thresholds in clauses (i) through
(xii) of the preceding sentence are exceeded, or which cannot be taken by the
Master Servicer by reason of the proviso to the previous sentence, the Master
Servicer can take such action only with the consent of the Special Servicer (if
and to the extent otherwise permitted under this Agreement).
The Master Servicer may not agree to waive, modify or amend any term
of any Specially Serviced Mortgage Loan; and, except as permitted by Section
3.02(a), Section 3.03(d), Section 3.07, Section 3.08(a), Section 3.08(c), this
Section 3.20(c), Section 3.20(m) and Section 3.20(o), or otherwise as expressly
provided in this Agreement, the Master Servicer may not agree to waive, modify
or amend any term of any Performing Mortgage Loan (including allowing the
Mortgagor to deviate from the terms
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of the related loan documents regarding principal prepayments) or respond to any
Mortgagor requests for mortgagee consent (and shall forward such requests to the
Special Servicer for its consent, along with its recommendation and analysis and
any information in the possession of the Master Servicer that the Special
Servicer may reasonably request related thereto). Furthermore, the Master
Servicer may not in any event agree to any modification, extension, waiver or
amendment of any term of any Mortgage Loan that would cause an Adverse REMIC
Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with
respect to the Grantor Trust (if created hereunder taking into account Section
2.05(b)).
(d) Except as provided in Section 3.02(a), Section 3.07, Section 3.08,
Section 3.20(e), Section 3.20(m) and Section 3.20(o), the Special Servicer, on
behalf of the Trustee, shall not agree or consent to (or consent to the Master
Servicer's agreeing or consenting to) any modification, extension, waiver or
amendment of any term of any Mortgage Loan that would:
(i) affect the amount or timing of any scheduled payment of
principal, interest or other amount (including Prepayment Premiums or Yield
Maintenance Charges, but excluding Default Charges and, subject to Section
3.20(o), other amounts payable as additional servicing compensation)
payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge, or effectuate the waiver of
any prepayment restriction thereunder or permit a Principal Prepayment
during any period in which the related loan documents prohibit Principal
Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
in connection with condemnation or defeasance or pursuant to Section
3.09(d), result in a release of the lien of the Mortgage on any material
portion of the related Mortgaged Property without a corresponding Principal
Prepayment in an amount not less than the fair market value (as determined
by an appraisal by an Independent Appraiser delivered to the Special
Servicer at the expense of the related Mortgagor and upon which the Special
Servicer may conclusively rely) of the property to be released; or
(iv) in the reasonable, good faith judgment of the Special
Servicer, otherwise materially impair the security for such Mortgage Loan
or reduce the likelihood of timely payment of amounts due thereon.
Furthermore, the Special Servicer may not agree to any modification,
extension, waiver or amendment of any term of any Mortgage Loan that would cause
an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor
Trust Event with respect to the Grantor Trust (if created hereunder taking into
account Section 2.05(b)).
(e) Notwithstanding Section 3.20(d), but subject to Section 3.20(o)
and/or Section 6.11, in each case if and as applicable, and the second and third
paragraphs of this Section 3.20(e), the Special Servicer may--
(i) reduce the amounts owing under any Specially Serviced
Mortgage Loan by forgiving principal, accrued interest (including
Additional Interest) or any Prepayment Premium or Yield Maintenance Charge,
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(ii) reduce the amount of the Monthly Payment on any Specially
Serviced Mortgage Loan, including by way of a reduction in the related
Mortgage Rate,
(iii) forbear in the enforcement of any right granted under any
Mortgage Note, Mortgage or other loan document relating to a Specially
Serviced Mortgage Loan,
(iv) accept a Principal Prepayment on any Specially Serviced
Mortgage Loan during any Lockout Period, or
(v) extend the maturity of any Specially Serviced Mortgage Loan;
provided that (A) the related Mortgagor is in monetary default or material
non-monetary default with respect to such Specially Serviced Mortgage Loan or,
in the reasonable, good faith judgment of the Special Servicer, such default is
reasonably foreseeable, (B) in the reasonable, good faith judgment of the
Special Servicer, such modification, extension, waiver or amendment would
increase the recovery on such Specially Serviced Mortgage Loan to
Certificateholders (as a collective whole), on a present value basis (the
relevant discounting of anticipated collections that will be distributable to
the Certificateholders, to be performed at the related Mortgage Rate(s)), and
(C) such modification, extension, waiver or amendment would not cause an Adverse
REMIC Event in respect of any REMIC Pool or an Adverse Grantor Trust Event with
respect to the Grantor Trust (if created hereunder taking into account Section
2.05(b)).
Notwithstanding the foregoing, in no event shall the Special Servicer:
(i) extend the maturity date of a Mortgage Loan beyond the date that is two (2)
years prior to the Rated Final Distribution Date; (ii) extend the maturity date
of any Mortgage Loan for more than five (5) years beyond its Stated Maturity
Date; (iii) if the subject Mortgage Loan is secured solely or primarily by a
Mortgage on the leasehold interest under a Ground Lease (but not the related fee
interest), extend the maturity date of such Mortgage Loan beyond the date which
is twenty (20) years (or, to the extent consistent with the Servicing Standard,
giving due consideration to the remaining term of the Ground Lease, ten (10)
years) prior to the expiration of the term of such Ground Lease; or (iv) permit
the release or substitution of a Mortgaged Property or any material portion
thereof (other than as expressly provided in this Agreement or the related
Mortgage Loan documents) unless it has received written confirmation from each
Rating Agency that such action will not result in an Adverse Rating Event with
respect to any Class of Certificates rated by such Rating Agency.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 3.20(e) shall be evidenced
by an Officer's Certificate to such effect delivered to the Trustee and the
Master Servicer and describing in reasonable detail the basis for the Special
Servicer's determination. The Special Servicer shall attach to such Officer's
Certificate any information including but not limited to income and expense
statements, rent rolls, property inspection reports and appraisals that support
such determination.
(f) Notwithstanding anything to the contrary in this Agreement, none
of the Trustee, the Master Servicer or the Special Servicer, as applicable,
shall give any consent, approval or direction regarding the termination of the
related property manager or the designation of any replacement property manager
or, if such Mortgaged Property is hospitality property, give any consent,
approval or direction regarding the termination of the franchise or the
designation of a new franchise, with respect to any Mortgaged Property that
secures a Mortgage Loan that has an unpaid principal balance that is at least
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equal to the lesser of $35,000,000 and 5% of the then aggregate principal
balance of the Mortgage Pool or is one of the ten (10) largest (measured by
unpaid principal balance) Mortgage Loans in the Mortgage Pool, unless: (1) the
mortgagee is not given discretion under the terms of the related Mortgage Loan
to withhold its consent; or (2) it has received prior written confirmation from
each Rating Agency that such action will not result in an Adverse Rating Event
with respect to any Class of Certificates rated by such rating agency.
Any party hereto seeking rating agency confirmation with respect to
the matters described above shall deliver a Review Package to such rating
agency.
(g) Any payment of interest that is deferred pursuant to any
modification, extension, waiver or amendment permitted hereunder, shall not, for
purposes hereof, including calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Mortgage Loan, notwithstanding that the terms of such
modification, extension, waiver or amendment so permit. The foregoing shall in
no way limit the Special Servicer's ability to charge and collect from the
Mortgagor costs otherwise collectible under the terms of the related Mortgage
Note.
(h) The Special Servicer or Master Servicer may, as a condition to
granting any request by a Mortgagor for consent, modification, extension, waiver
or indulgence or any other matter or thing, the granting of which is within its
discretion pursuant to the terms of the instruments evidencing or securing the
related Mortgage Loan and, further, by the terms of this Agreement and
applicable law, require that such Mortgagor pay to it (i) as additional
servicing compensation, a reasonable or customary fee for the additional
services performed in connection with such request, and (ii) any related costs
and expenses incurred by it. Any such fee that is to be shared by the Master
Servicer and the Special Servicer may not be waived or reduced by either such
party without the consent of the other party. In no event shall the Special
Servicer or Master Servicer be entitled to payment for such fees or expenses
unless such payment is collected from the related Mortgagor.
(i) The Special Servicer and Master Servicer shall each notify the
other, any related Sub-Servicers, the Trustee, in writing, of any modification,
extension, waiver or amendment of any term of any Mortgage Loan (including fees
charged the Mortgagor) agreed to by it and the date thereof, and shall deliver
to the Trustee or any related Custodian for deposit in the related Mortgage File
(with a copy to be delivered to or retained by, as applicable, the Master
Servicer), an executed counterpart of the agreement relating to such
modification, extension, waiver or amendment promptly following execution and
delivery thereof, to be followed by an original recorded counterpart promptly
following the recordation (and receipt) thereof.
(j) To the extent that either the Master Servicer or Special Servicer
waives any Default Charge in respect of any Mortgage Loan, whether pursuant to
Section 3.02(a) or this Section 3.20, the respective amounts of additional
servicing compensation payable to the Master Servicer and the Special Servicer
as Net Default Charges out of such Default Charges shall be reduced
proportionately based upon the respective amounts that would have been payable
thereto as Net Default Charges out of such Default Charges if such waiver had
not been granted.
(k) If, with respect to any Mortgage Loan (1) under which the lender
can require defeasance in lieu of prepayment, or (2) that permits defeasance,
the Master Servicer shall receive a notice from the related Mortgagor that it
intends to prepay or defease, as applicable, such Mortgage Loan in accordance
with the terms thereof, then the Master Servicer shall, subject to the next
paragraph
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and the related loan documents, (i) only in the case of a Mortgage Loan under
clause (1) above, promptly respond to such notice in a manner which would
require that the Mortgagor pledge Defeasance Collateral in lieu of such
prepayment pursuant to the terms of the related Mortgage Note, and (ii) upon the
written confirmation from each Rating Agency that the acceptance of a pledge of
the Defeasance Collateral (or, in the case of a Mortgage Loan under clause (1)
above, that the acceptance of a pledge of the Defeasance Collateral in lieu of a
full prepayment) will not result in an Adverse Rating Event with respect to any
Class of Certificates rated by such rating agency, take such further action as
provided in such Mortgage Note to effectuate such defeasance, including the
purchase and perfection of the Defeasance Collateral on behalf of the Trustee
(as mortgagee of record on behalf of the Certificateholders; provided that the
written confirmation contemplated by clause (ii) above shall not be required (A)
with respect to S&P in the case of a Mortgage Loan (1) with an unpaid principal
balance less than or equal to $35,000,000, (2) that constitutes less than 5% of
the aggregate unpaid principal balance of the Mortgage Pool and (3) that does
not then constitute one of the ten largest (measured by unpaid principal
balance) Mortgage Loans in the Mortgage Pool, so long as, in lieu of obtaining
such written confirmation from S&P, the Master Servicer delivers to S&P a
certification in the form attached hereto as Exhibit M (a "Defeasance
Certificate"), or (B) with respect to Fitch in the case of any Mortgage Loan (1)
with an unpaid principal balance less than or equal to $25,000,000, (2) that
constitutes less than 5% of the aggregate unpaid principal balance of the
Mortgage Pool and (3) that does not then constitute one of the ten (10) largest
(measured by unpaid principal balance) Mortgage Loans in the Mortgage Pool; and
provided, further, that, the written confirmation contemplated by clause (iii)
above shall not be required from S&P and/or Fitch (provided the Master Servicer
delivers a Defeasance Certificate to S&P), as applicable, in the event the
subject Mortgage Loan complies with the then current applicable guidelines set
forth by such Rating Agency, or the unpaid principal balance of the subject
Mortgage Loan, the percentage the subject Mortgage Loan constitutes of the
Mortgage Pool or the relative size of the subject Mortgage Loan with respect to
the Mortgage Pool, as applicable, does not exceed the then current applicable
threshold for review as set forth by such Rating Agency.
Notwithstanding the foregoing, but subject to the related loan
documents, the Master Servicer shall not permit a pledge of Defeasance
Collateral under any Mortgage Loan that is also a Defeasance Mortgage Loan if
(i) such defeasance would occur within two (2) years of the Startup Day, (ii)
the defeasance collateral shall not be Government Securities, (iii) an opinion
of counsel confirming that the Trustee has a first priority security interest in
the Defeasance Collateral is not delivered, (iv) the defeased note is not held
by a special purpose entity with no material assets other than Defeasance
Collateral, (v) a certification from a firm of independent public accountants
confirming the adequacy of the Defeasance Collateral is not delivered, (vi) all
costs to be incurred in connection with such defeasance (including Rating Agency
fees, accountants' fees and costs incurred in connection with any required
opinions of counsel) would not be paid by the related Mortgagor, or (vii) unless
such confirmation is not required pursuant to the first paragraph of this
Section 3.20(k), either Rating Agency does not confirm in writing to the Master
Servicer that the acceptance of a pledge of the Defeasance Collateral (in lieu
of a full prepayment, if applicable) will not result in an Adverse Rating Event
with respect to any Class of Certificates rated by such Rating Agency.
All expenses related to the defeasance of a Mortgage Loan shall be
charged to the related Mortgagor or other responsible party.
With respect to any Defeasance Mortgage Loan, to the extent the
related Mortgage Loan documents expressly grant the lender or its designee the
right to appoint a successor borrower (or words
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of similar import) thereunder in connection with a defeasance, the Trustee
hereby designates the Mortgage Loan Seller as its designee with respect to the
exercise of, and hereby grants to the Mortgage Loan Seller the right, in its
capacity as designee of the Trustee as holder of the subject Mortgage Loan, to
exercise, the right and/or obligation of the lender under the related Mortgage
Loan documents to appoint a "successor borrower" (as defined under the related
Mortgage Loan documents) or words of similar import, to hold and pledge the
related Defeasance Collateral in the event a related Mortgagor exercises its
right pursuant to the related Mortgage Loan documents to defease the subject
Mortgage Loan and obtain the release of all or a portion of the related
Mortgaged Property from the lien of the related Mortgage (provided that such
rights and/or obligations as successor borrower shall be exercised in accordance
with customary terms and costs). In connection with the foregoing, if the Master
Servicer or the Trustee, as holder of the subject Defeasance Mortgage Loan,
receives written notice from the related Mortgagor that it intends to defease
the subject Defeasance Mortgage Loan in accordance with the related Mortgage
Loan documents, then the Trustee or the Master Servicer, as the case may be,
shall send a copy of such written notice to the Mortgage Loan Seller or (if the
Mortgage Loan Seller has notified the Master Servicer or the Trustee, as the
case may be, in writing that it has appointed a designee and has provided such
party with such designee's contact information for any notice required in
connection therewith) the designee of the Mortgage Loan Seller, promptly after
receipt of such written notice. If, however, the Master Servicer, in accordance
with the Servicing Standard, determines that neither the Mortgage Loan Seller
nor its designee is performing the duties related to the appointment of a
successor borrower in a timely manner and/or in accordance with the provisions
of the related Mortgage Loan documents (after the Mortgage Loan Seller and the
applicable designee having been provided with written notice in accordance with
this paragraph and a reasonable period of time (which shall not be less than
five (5) Business Days) to perform such duties), then the Master Servicer (or a
designee of the Master Servicer) shall itself perform those obligations under
the related Mortgage Loan documents in accordance with the Servicing Standard,
applicable law and the related Mortgage Loan documents, and thereupon the
appointment of the Mortgage Loan Seller or its designee in connection therewith
shall be null and void. In the event, with respect to a Defeasance Mortgage
Loan, that the Mortgage Loan Seller or its designee, or the Master Servicer or a
designee of the Master Servicer, actually appoints a successor borrower in
accordance with the related Mortgage Loan documents and the foregoing provisions
of this paragraph and the relevant portion or all, as applicable, of the subject
Mortgaged Property is released from the lien of the related Mortgage, then, to
the extent provided under the related Mortgage Loan documents, such successor
borrower shall succeed to all of the rights and obligations of the original
Mortgagor under such Defeasance Mortgage Loan. If the Mortgage Loan Seller, by
written notice to the Trustee and the Master Servicer, designates a third party
to exercise its rights under this paragraph and provides contact information
therefor, then the Trustee and the Master Servicer shall be entitled to
conclusively rely on such notice and, in such event, all notices required to be
delivered the Mortgage Loan Seller, pursuant to this paragraph shall be
delivered to the designee of the Mortgage Loan Seller.
(l) If the Master Servicer receives notice from the Mortgagor under
any Early Defeasance Mortgage Loan that such Mortgagor intends to defease such
Early Defeasance Mortgage Loan, in whole or in part, on or before the second
anniversary of the Closing Date, then promptly after receipt of such notice the
Master Servicer shall calculate or cause to be calculated the cash amount
required to be tendered by such Mortgagor to purchase the Defeasance Collateral
or other permitted collateral required to defease such Early Defeasance Mortgage
Loan. If (i) the defeasance is to be in full and the cash amount required to be
tendered by the Mortgagor to purchase the Defeasance Collateral or other
permitted collateral required to defease the subject Early Defeasance Mortgage
Loan (in
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accordance with the related loan documents) is less than an amount equal to the
Purchase Price (calculated as if the subject Mortgage Loan was to be repurchased
in connection with a Material Breach or Material Document Defect as of the date
such defeasance is scheduled to occur), or (ii) the defeasance is to be in part,
or (iii) the defeasance is to be in full and the related Mortgagor is to tender
Defeasance Collateral or such other collateral as is permitted in connection
with a defeasance under the related loan documents that does not constitute a
cash amount equal to or greater than the Purchase Price set forth in clause (i)
above, then the Master Servicer shall promptly notify the Mortgage Loan Seller,
and upon delivery by the related Mortgagor of the Defeasance Collateral, or cash
sufficient to purchase the Defeasance Collateral, contemplated by the related
loan documents, the Mortgage Loan Seller shall be required, pursuant to or as
contemplated by Section 2.03(j) (if applicable), to repurchase such Early
Defeasance Mortgage Loan on or before the proposed date on which such Early
Defeasance Mortgage Loan will be defeased. The Master Servicer shall use
reasonable efforts to require the Mortgage Loan Seller to make any such required
repurchase described above. If the defeasance is to be in full and the cash
amount required to be tendered by the Mortgagor to purchase the Defeasance
Collateral or other permitted collateral required to purchase the Defeasance
Collateral or other permitted collateral required to defease the subject Early
Defeasance Mortgage Loan is equal to or exceeds an amount equal to the Purchase
Price set forth in clause (i) of the preceding sentence (as calculated as of the
date such purchase is to be made), then the Master Servicer shall,
notwithstanding the related loan documents, (i) treat the cash amount tendered
by such Mortgagor to defease the subject Early Defeasance Mortgage Loan as a
prepayment in full of such Early Defeasance Mortgage Loan (provided that no
Prepayment Interest Shortfalls shall be payable by the Master Servicer in
connection therewith) by the related Mortgagor on the related Due Date
coinciding with or next succeeding the defeasance date (and any Excess
Defeasance Deposit Proceeds shall be allocated by the Trustee among and paid to
the Certificateholders in accordance with Section 4.01, with any Excess
Defeasance Deposit Proceeds to constitute, and be treated in the same manner as
a payment of any other type of, Prepayment Consideration), (ii) deposit in the
Custodial Account the cash amount tendered by such Mortgagor to purchase the
Defeasance Collateral or other permitted collateral required to defease the
subject Early Defeasance Mortgage Loan, (iii) xxxx the Mortgage Note "cancelled"
and return it to such Mortgagor, and (iv) take such other and further action,
including the release of the Mortgage with respect to the related Mortgaged
Property, consistent with the prepayment in full of such Mortgage Loan. The
Master Servicer shall promptly notify the Mortgage Loan Seller of the foregoing.
(m) With respect to any ARD Mortgage Loan after its Anticipated
Repayment Date, the Master Servicer shall be permitted, subject to obtaining the
Special Servicer's consent, to waive (such waiver to be in writing addressed to
the related Mortgagor, with a copy to the Trustee) all or any portion of the
accrued Additional Interest on such ARD Mortgage Loan if (i) such ARD Mortgage
Loan is a Performing Mortgage Loan, (ii) prior to the related maturity date, the
related Mortgagor has requested the right to prepay such ARD Mortgage Loan in
full together with all payments required under such ARD Mortgage Loan in
connection with such prepayment (except for all or a portion of such accrued
Additional Interest), and (iii) the Master Servicer has determined, in its
reasonable, good faith judgment, that the waiver of the Trust's right to receive
such accrued Additional Interest is reasonably likely to produce a greater
payment to Certificateholders (as a collective whole) on a present value basis
(the relevant discounting of anticipated collections that will be distributable
to Certificateholders to be performed at the related Mortgage Rate) than a
refusal to waive the right to such Additional Interest. Neither the Master
Servicer nor the Special Servicer shall have any liability to the Trust, the
Certificateholders or any other Person so long as such determination is
exercised in accordance with the Servicing Standard.
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(n) Notwithstanding anything to the contrary in this Agreement, none
of the Special Servicer, the Master Servicer or the Trustee shall: (i) enter
into to any amendment or modification of any Co-Lender Agreement, the effect of
which would materially and adversely affect the interests of, or materially
increase or change the obligations of, any other such Person under such
Co-Lender Agreement, without first consulting with and obtaining the consent of
such other Person; or (ii) enter into any amendment or modification of any
Co-Lender Agreement unless such amendment or modification was consistent with
the Servicing Standard and satisfied the requirements for such amendments and
modifications set forth in the Co-Lender Agreement.
(o) Notwithstanding anything to the contrary in this Agreement,
neither the Master Servicer nor the Special Servicer shall waive, modify or
reduce any amount constituting an assumption fee (or portion thereof) payable by
a Mortgagor if and to the extent such assumption fee (or applicable portion
thereof) would be payable to the other such party as additional servicing
compensation, as the case may be, without the consent of such other party. To
the extent that the Master Servicer and the Special Servicer, in accordance with
the preceding sentence, waive (or consent to a waiver of, as applicable) any
amount constituting an assumption fee (or applicable portion thereof) in respect
of any Mortgage Loan, the respective amounts of additional servicing
compensation payable to the Master Servicer and the Special Servicer from such
assumption fee (or applicable portion thereof) shall be reduced proportionately
based upon the respective amounts that would have been payable thereto as
additional servicing compensation from such assumption fee (or applicable
portion thereof) if such waiver had not been granted.
SECTION 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Mortgage Loan that had otherwise been a Performing Mortgage Loan,
and if the Master Servicer is not also the Special Servicer, the Master Servicer
shall promptly give notice thereof (or, if applicable, the Special Servicer
shall promptly give notice thereof to the Master Servicer), and the Master
Servicer shall deliver a copy of the related Servicing File, to the Special
Servicer and shall use reasonable efforts to provide the Special Servicer with
all information, documents (or copies thereof) and records (including records
stored electronically on computer tapes, magnetic discs and the like) relating
to such Mortgage Loan, either in the Master Servicer's or any of its directors',
officers', employees', affiliates' or agents' possession or control or otherwise
available to the Master Servicer without undue burden or expense, and reasonably
requested by the Special Servicer to enable it to assume its functions hereunder
with respect thereto without acting through a Sub-Servicer. The Master Servicer
shall use reasonable efforts to comply with the preceding sentence within five
(5) Business Days of the occurrence of each related Servicing Transfer Event (or
of notice of the occurrence of such Servicing Transfer Event, if applicable);
provided, however, that if the information, documents and records requested by
the Special Servicer are not contained in the Servicing File, the Master
Servicer shall have such period of time as reasonably necessary to make such
delivery. The Special Servicer may conclusively rely on the Master Servicer's
determination (and the Master Servicer may conclusively rely on the Special
Servicer's determination, as applicable) that a Servicing Transfer Event has
occurred giving rise to a Mortgage Loan's becoming a Specially Serviced Mortgage
Loan. The Special Servicer shall not be liable or in default hereunder for any
reasonable act or failure to act because of or arising out of the Master
Servicer's failure to deliver information, documents or records with respect to
any Specially Serviced Mortgage Loan in accordance with the requirements hereof.
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Upon determining that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan, and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof, and shall
within five (5) Business Days of such occurrence return the related Servicing
File, together with any and all new information, documents and records relating
to the subject Mortgage Loan that were not part of the Servicing File when it
was delivered to the Special Servicer, to the Master Servicer (or such other
Person as may be directed by the Master Servicer) and upon giving such notice,
and returning such Servicing File, to the Master Servicer (or such other Person
as may be directed by the Master Servicer), the Special Servicer's obligation to
service such Mortgage Loan, and the Special Servicer's right to receive the
Special Servicing Fee with respect to such Mortgage Loan shall terminate, and
the obligations of the Master Servicer to service and administer such Mortgage
Loan shall resume.
Notwithstanding anything herein to the contrary, in connection with
the transfer to the Special Servicer of the servicing of a Cross-Collateralized
Mortgage Loan as a result of a Servicing Transfer Event or the re-assumption of
servicing responsibilities by the Master Servicer with respect to any such
Mortgage Loan upon its becoming a Corrected Mortgage Loan, the Master Servicer
and the Special Servicer shall each transfer to the other, as and when
applicable, the servicing of all other Cross-Collateralized Mortgage Loans
constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Mortgage Loan at
anytime that a continuing Servicing Transfer Event exists with respect to
another Cross-Collateralized Mortgage Loan in the same Cross-Collateralized
Group.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Custodian originals of newly executed documents
included within the definition of "Mortgage File" for inclusion in the related
Mortgage File (with a copy of each such original to the Master Servicer), and
shall provide to the Master Servicer copies of any additional related Mortgage
Loan information, including correspondence with the related Mortgagor.
(c) Upon request (and to the extent not otherwise already provided by
the Special Servicer pursuant to its reporting obligations hereunder), the
Special Servicer shall deliver to the Master Servicer, the Trustee and each
Rating Agency (or such other Person as may be directed by the Master Servicer) a
statement in writing and in computer readable format (the form of such statement
to be agreed upon by the Master Servicer and the Special Servicer) describing,
on a loan-by-loan and property-by-property basis, (1) insofar as it relates to
Specially Serviced Mortgage Loans and REO Properties, the information described
in clauses (x) (with respect to the Mortgage Pool) through (xvii) and (xxii) of
Section 4.02(a) (with respect to information set forth in such clauses related
to prior Distribution Dates and/or periods, the Special Servicer may
conclusively rely on information furnished to it by the Master Servicer or the
Trustee) and, insofar as it relates to the Special Servicer, the information
described in clauses (xxvi) and (xxxii) of Section 4.02(a), (2) the amount of
all payments, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds
received, and the amount of any Realized Loss incurred, with respect to each
Specially Serviced Mortgage Loan during the related Collection Period, and the
amount of Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds
received, and the amount of any Realized Loss incurred, with respect to each REO
Property during the related Collection Period, (3) the amount, purpose and date
of all Servicing Advances made by the Special Servicer with respect to each
Specially Serviced Mortgage Loan and REO Property during the related Collection
Period, (4) in writing, a brief narrative summary of the status of each
Specially Serviced Mortgage Loan and (5) such additional information relating to
the Specially Serviced
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Mortgage Loans and REO Properties as the Master Servicer reasonably requests to
enable it to perform its responsibilities under this Agreement. Notwithstanding
the foregoing provisions of this subsection (c), the Master Servicer shall
maintain ongoing payment records with respect to each of the Specially Serviced
Mortgage Loans and REO Properties and shall provide the Special Servicer with
any information reasonably available to the Master Servicer required by the
Special Servicer to perform its duties under this Agreement.
SECTION 3.22. Sub-Servicing Agreements.
(a) Subject to Section 3.22(b) and Section 3.22(f), the Master
Servicer and the Special Servicer may enter into Sub-Servicing Agreements to
provide for the performance by third parties of any or all of their respective
obligations hereunder, provided 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, with the exception of Sections 7.01(a)(x) through (xii), provides for
events of default with respect to the Sub-Servicer substantially the same as
those set forth in Section 7.01 (modified as necessary to apply to the
Sub-Servicer's obligations under the Sub-Servicing Agreement); (ii) provides
that if the Master Servicer or the Special Servicer, as the case may be, shall
for any reason no longer act in such capacity hereunder (including by reason of
an Event of Default), the Trustee or its designee may thereupon assume all of
the rights and, except to the extent they arose prior to the date of assumption,
obligations of the Master Servicer or the Special Servicer, as the case may be,
under such sub-servicing agreement or may terminate such sub-servicing agreement
without cause and without payment of any penalty or termination fee (provided,
however, that those Sub-Servicing Agreements in effect as of the Closing Date
(or, if being negotiated as of the Closing Date, in effect within 90 days
thereafter) may only be terminated by the Trustee or its designee as
contemplated by Section 3.22(d) hereof and in such additional manner as is
provided in such Sub-Servicing Agreement); (iii) provides that the Trustee, for
the benefit of the Certificateholders, shall each be a third-party beneficiary
under such sub-servicing agreement, but that (except to the extent the Trustee
or its designee assumes the obligations of the Master Servicer or the Special
Servicer, as the case may be, thereunder as contemplated by the immediately
preceding clause (ii)) none of the Trustee, the Trust, any successor Master
Servicer or the Special Servicer, as the case may be, or any Certificateholder
shall have any duties under such agreement or any liabilities arising therefrom;
(iv) permits any purchaser of a Mortgage Loan pursuant to this Agreement to
terminate such sub-servicing agreement with respect to such purchased Mortgage
Loan at its option and without penalty; (v) does not permit the Sub-Servicer to
enter into or consent to any modification, extension, waiver or amendment or
otherwise take any action on behalf of the Master Servicer or the Special
Servicer contemplated by Section 3.08, Section 3.09 and Section 3.20 (other than
Section 3.20(c)(iv)) hereof without the consent of the Master Servicer or
Special Servicer, as the case may be; (vi) does not permit the Sub-Servicer any
direct rights of indemnification that may be satisfied out of assets of the
Trust Fund; (vii) 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; (viii) provides that, 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 (together with,
if required to be filed with the Commission under applicable law, the consent of
the applicable registered public accounting firm to file such corresponding
Annual Attestation Report with the Commission) as and when contemplated by
Section 3.14; (ix) provides that the Sub-Servicer will deliver to the Master
Servicer a backup certification
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substantially similar to the Master Servicer Backup Certification with respect
to the Sub-Servicer, with such delivery to occur at or before the same times,
and under the same circumstances, as the Master Servicer Backup Certification to
be delivered by or with respect to the Master Servicer (except that each such
document delivered by the Sub-Servicer shall only cover the Mortgage Loans being
subserviced thereby); and (x) includes a representation by the Sub-Servicer that
such Sub-Servicer is not an "affiliate" (as such term is defined in Section III
of PTE 2000-58) of the Trustee or of any "affiliate" (as such term is defined in
Section III of PTE 2000-58) of the Trustee (provided that this clause (x) shall
not apply to a Sub-Servicer listed on Exhibit K hereto). In addition, each
Sub-Servicing Agreement entered into by the 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 which ceases to be a
Specially Serviced Mortgage Loan. The Master Servicer and the Special Servicer
each shall deliver to the Trustee 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 the Master Servicer or the Special
Servicer include actions taken or to be taken by a Sub-Servicer on behalf of the
Master Servicer or the Special Servicer, as the case may be; and, in connection
therewith, all amounts advanced by any Sub-Servicer to satisfy the obligations
of the Master Servicer or the Special Servicer hereunder to make P&I Advances or
Servicing Advances shall be deemed to have been advanced by the Master Servicer
or the Special Servicer, as the case may be, out of its own funds and,
accordingly, such P&I Advances or Servicing Advances shall be recoverable by
such Sub-Servicer in the same manner and out of the same funds as if such
Sub-Servicer were the Master Servicer or the Special Servicer, as the case may
be. For so long as they are outstanding, Advances shall accrue interest in
accordance with Sections 3.11(g) or 4.03(d), as applicable, such interest to be
allocable between the Master Servicer or the Special Servicer, as the case may
be, and such Sub-Servicer as they may agree. For purposes of this Agreement, the
Master Servicer and the Special Servicer each shall be deemed to have received
any payment when a Sub-Servicer retained by it receives such payment. The Master
Servicer and the Special Servicer each shall notify the other, the Trustee, the
Depositor and the Controlling Class Certificateholders in writing promptly of
the appointment by it of any Sub-Servicer (other than any Sub-Servicer
identified on Exhibit K that is servicing any of the Mortgage Loans on the
Closing Date). The 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 retained by it constitutes an Additional Item 1123
Servicer or a Sub-Servicing Function Participant. 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 Sub-Servicer with respect to 10% or more of the Mortgage
Pool (by balance). The initial Master Servicer hereby represents and warrants
that the only Persons with which it has entered into or is negotiating a
Sub-Servicing Agreement as of the Closing Date are listed on Exhibit K and, in
each such case, the Sub-Servicing Agreement shall not cover any Mortgage Loan
(other than the Mortgage Loans identified on Exhibit K hereto with respect to
such Sub-Servicer) that the subject Sub-Servicer did not primary service prior
to the Closing Date.
(b) Each Sub-Servicer (i) shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by
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applicable law, and (ii) except for any Sub-Servicer that is servicing any of
the Mortgage Loans on the Closing Date (which Sub-Servicers are identified on
Exhibit K hereto), shall be an approved conventional seller/servicer of mortgage
loans for FHLMC or Xxxxxx Xxx or a HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders, shall (at no expense to the Trustee, any
Certificateholder 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 the legal prosecution of claims,
termination of Sub-Servicing Agreements in accordance with their respective
terms and the pursuit of other appropriate remedies, shall be in such form and
carried out to such an extent and at such time as the Master Servicer or the
Special Servicer, as applicable, in its good faith business judgment, would
require were it the owner of the subject Mortgage Loans.
(d) In the event of the resignation, removal or other termination of
the Master Servicer or any successor Master Servicer hereunder for any reason,
the Trustee or other Person succeeding such resigning, removed or terminated
party as Master Servicer, shall elect, with respect to any Sub-Servicing
Agreement in effect as of the Closing Date (or, if being negotiated as of the
Closing Date, in effect within 90 days thereafter) that still exists at the time
of such termination: (i) to assume the rights and obligations of the Master
Servicer under such Sub-Servicing Agreement and continue the sub-servicing
arrangements thereunder on the same terms (including the obligation to pay the
same sub-servicing fee); (ii) to enter into a new Sub-Servicing Agreement with
such Sub-Servicer on such terms as the Trustee or other successor Master
Servicer and such Sub-Servicer shall mutually agree (it being understood that
such Sub-Servicer is under no obligation to accept any such new Sub-Servicing
Agreement or to enter into or continue negotiations with the Trustee or other
successor Master Servicer), provided that neither the Trustee nor any successor
Master Servicer shall enter into a new Sub-Servicing Agreement with a
Sub-Servicer that was a party to a Sub-Servicing Agreement as of the Closing
Date, if such new Sub-Servicing Agreement amends, alters or fails to restate any
rights of any Underwriter or Mortgage Loan Seller under the existing
Sub-Servicing Agreement with respect to the termination of the Sub-Servicer and
the appointment of a successor thereto or any rights of any Underwriter or
Mortgage Loan Seller as a third-party beneficiary under such Sub-Servicing
Agreement, unless the successor Master Servicer has obtained the prior written
consent to the terms of such new Sub-Servicing Agreement from such Underwriter
or Mortgage Loan Seller, as the case may be; or (iii) to terminate the
Sub-Servicing Agreement if (but only if) an Event of Default (as defined in such
Sub-Servicing Agreement) has occurred and is continuing, without paying any
sub-servicer termination fee, and in any additional manner provided for in such
Sub-Servicing Agreement.
(e) Notwithstanding any Sub-Servicing Agreement or the use of any
Servicing Representative, the Master Servicer and the Special Servicer shall
remain obligated and liable to the Trustee and the Certificateholders 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 Master
Servicer and the Special Servicer shall each be responsible (without right of
reimbursement) for all compensation of each Sub-Servicer or other Servicing
Representative retained by it.
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(f) Notwithstanding the above, the Special Servicer may not enter into
any Sub-Servicing Agreement without the approval of the Controlling Class
Representative. In addition, notwithstanding anything herein to the contrary,
until April 1st of the first year that is not an Exchange Act Reporting Year for
the Trust, the Special Servicer shall not retain or engage any Sub-Servicer or
other Servicing Representative without the reasonable approval of the Depositor;
provided that the Depositor shall be deemed reasonable in denying its consent to
the appointment of any such Sub-Servicer or other Servicing Representative if
the proposed Person would be reasonably likely to be considered an Additional
Item 1123 Servicer and/or a Sub-Servicing Function Participant for purposes of
Section 3.13 and/or Section 3.14, as applicable, or if the proposed Person is
known to have failed to deliver any report comparable to the Annual Statement of
Compliance, the Annual Assessment Report or the Annual Attestation Report in any
other securitization transaction. Furthermore, notwithstanding anything herein
to the contrary, until April 1st of the first year that is not an Exchange Act
Reporting Year for the Trust, the Master Servicer shall not retain or engage any
Sub-Servicer or any other Servicing Representative without the approval of the
Depositor, but (in the case of the initial Master Servicer) only if and to the
extent that such approval is required under the Master Servicer Indemnification
Agreement. The agreements set forth in this Section 3.22(f) are in addition to
any other agreements (including any applicable indemnity arrangements) that the
parties hereto may have with respect to the subject matter of this Section
3.22(f).
SECTION 3.23. Representations and Warranties of the Master Servicer.
(a) The Master Servicer, in such capacity, hereby represents, warrants
and covenants to the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Master Servicer is a national banking association, duly
organized under the laws of the United States of America, and the Master
Servicer is in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not: (A) violate the Master
Servicer's organizational documents; or (B) constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or other
material instrument to which it is a party or which is applicable to it or
any of its assets, which default or breach, in the good faith and
reasonable judgment of the Master Servicer, would reasonably be expected to
affect materially and adversely either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial condition
of the Master Servicer.
(iii) The Master Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, receivership, insolvency, reorganization, moratorium
and other laws
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affecting the enforcement of creditors' (including bank creditors') rights
generally, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Master Servicer's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of the Master
Servicer to perform its obligations under this Agreement or the financial
condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer, the outcome
of which, in the Master Servicer's good faith and reasonable judgment,
could reasonably be expected to prohibit the Master Servicer from entering
into this Agreement or materially and adversely affect the ability of the
Master Servicer to perform its obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court
or governmental agency or body required under federal or state law for the
execution, delivery and performance by the Master Servicer of or compliance
by the Master Servicer with this Agreement or the consummation of the
transactions contemplated by this Agreement has been obtained and is
effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Master Servicer under this Agreement.
(viii) The Master Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
(ix) The Master Servicer has reviewed all Sub-Servicing
Agreements in effect as of the Closing Date and will review all
Sub-Servicing Agreements entered into by it after the Closing Date.
(b) The representations and warranties of the Master Servicer set
forth in Section 3.23(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Master Servicer shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 3.23(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.23(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
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SECTION 3.24. Representations and Warranties of the Special Servicer.
(a) The Special Servicer, in such capacity, hereby represents,
warrants and covenants to the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Special Servicer is a corporation 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: (A) violate the Special
Servicer's organizational documents; or (B) constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or other
material instrument to which it is a party or which is applicable to it or
any of its assets, which default or breach, in the good faith and
reasonable judgment of the Special Servicer, would reasonably be expected
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.
(iii) The Special Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and compliance
with the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special Servicer, the outcome
of which, in the Special Servicer's good faith and reasonable judgment,
could reasonably be expected to prohibit the Special Servicer from entering
into this Agreement or materially and adversely affect the ability of the
Special Servicer to perform its obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court
or governmental agency or body required under federal or state law for the
execution, delivery and
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performance by the Special Servicer of or compliance by the Special
Servicer with this Agreement or the consummation of the transactions
contemplated by this Agreement has been obtained and is effective except
where the lack of consent, approval, authorization or order would not have
a material adverse effect on the performance by the Special Servicer under
this Agreement.
(viii) The Special Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
(b) The representations and warranties of the Special Servicer set
forth in Section 3.24(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Special Servicer shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 3.24(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.24(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 3.25. Application of Default Charges.
(a) Any and all Default Charges that are actually Received by the
Trust and deposited in the Custodial Account with respect to any Mortgage Loan
or REO Mortgage Loan during any applicable Collection Period, shall be applied
for the following purposes and in the following order, in each case to the
extent of the remaining portion of such Default Charges:
first, to pay to any Fiscal Agent, the Trustee, the Master Servicer
and the Special Servicer, in that order, any interest due and owing to such
party on any outstanding Advances made thereby with respect to such Mortgage
Loan or REO Mortgage Loan, as the case may be, which interest on such
outstanding Advance accrued on or prior to the date on which the subject Default
Charges were received;
second, to pay any other outstanding expenses (exclusive of Special
Servicing Fees, Liquidation Fees and Workout Fees) incurred with respect to such
Mortgage Loan or REO Mortgage Loan, as the case may be, that, if paid from
collections on the Mortgage Pool other than such Default Charges, would
constitute an Additional Trust Fund Expense;
third, to reimburse the Trust for any interest on Advances paid to any
Fiscal Agent, the Trustee, the Master Servicer or the Special Servicer since the
Closing Date with respect to such Mortgage Loan or REO Mortgage Loan, as the
case may be, which interest payment was made from collections on the Mortgage
Pool (other than Default Charges on such Mortgage Loan or REO Mortgage Loan) and
was not previously reimbursed under this clause third;
fourth, to reimburse the Trust for any other Additional Trust Fund
Expenses (exclusive of Special Servicing Fees, Liquidation Fees and Workout
Fees) paid since the Closing Date with respect to such Mortgage Loan or REO
Mortgage Loan, as the case may be, which payment was made from
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collections on the Mortgage Pool (other than Default Charges on such Mortgage
Loan or REO Mortgage Loan) and was not previously reimbursed under this clause
fourth; and
fifth, to pay any remaining portion of such Default Charges (such
remaining portion, "Net Default Charges") as additional master servicing
compensation to the Master Servicer, if they were accrued in respect of a
Performing Mortgage Loan, or as additional special servicing compensation to the
Special Servicer, if they were accrued in respect of a Specially Serviced
Mortgage Loan or an REO Mortgage Loan, in each case pursuant to Section 3.11.
(b) Default Charges applied to reimburse the Trust pursuant to clauses
third and fourth of subsection (a), are intended to be part of the amounts to be
delivered by the Master Servicer to the Trustee pursuant to the first paragraph
of Section 3.04(b) on or before the Master Servicer Remittance Date next
following the applicable Collection Period during which they were received, for
deposit in the Collection Account, subject to application pursuant to Section
3.05(a) for any items payable out of general collections on the Mortgage Pool.
Default Charges applied to pay outstanding interest on Advances in respect of
the related Mortgage Loan or REO Mortgage Loan, as applicable, to any particular
party, pursuant to clause first of subsection (a), shall be applied to pay such
party such interest on Advances in such manner that the interest that accrued
first and has been outstanding the longest shall be paid first. Default Charges
applied to pay outstanding expenses in respect of the related Mortgage Loan or
REO Mortgage Loan, as applicable, pursuant to clause second of subsection (a),
shall be applied to pay such expenses in the chronological order in which they
were incurred. Default Charges applied to reimburse the Trust pursuant to
clauses third and fourth of subsection (a) shall be deemed to offset either
interest paid on Advances or other Additional Trust Fund Expenses, depending on
which clause is applicable, in respect of the related Mortgage Loan or REO
Mortgage Loan, as applicable, in the chronological order in which such interest
accrued or such expenses were incurred, as applicable (whereupon such interest
paid on Advances or such other Additional Trust Fund Expenses, depending on
which clause is applicable, shall thereafter be deemed to have been paid out of
Default Charges in respect of the related Mortgage Loan or REO Mortgage Loan, as
applicable).
SECTION 3.26. Defense of Litigation.
(a) The Special Servicer shall, with respect to Specially Serviced
Mortgage Loans and, at the direction of the Controlling Class Representative,
any other Mortgage Loan: (i) direct, manage, prosecute and/or defend any action
brought by a Mortgagor against the Trust and/or the Special Servicer; and (ii)
represent the interests of the Trust in any litigation relating to the rights
and obligations of the Mortgagor or the Trust, or the enforcement of the
obligations of a Mortgagor, under the subject Mortgage Loan documents
("Trust-Related Litigation").
(b) To the extent the Master Servicer is named in Trust-Related
Litigation, and the Trust or Special Servicer is not named, in order to
effectuate the role of the Special Servicer as contemplated by Section 3.26(a)
above, the Master Servicer shall: (i) notify the Special Servicer of such
Trust-Related Litigation within ten (10) days of the Master Servicer receiving
notice of such Trust-Related Litigation; (ii) provide monthly status reports to
the Special Servicer, regarding such Trust-Related Litigation; (iii) seek to
have the Trust replace the Master Servicer as the appropriate party to the
lawsuit; and (iv) so long as the Master Servicer remains a party to the lawsuit,
consult with and act at the direction of the Special Servicer with respect to
decisions and resolutions related to the interests of the Trust in such
Trust-Related Litigation, including but not limited to the selection of counsel,
provided
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that, if there are claims against the Master Servicer and the Master Servicer
has not determined that separate counsel is required for such claims, such
counsel shall be reasonably acceptable to the Master Servicer.
(c) Notwithstanding the right of the Special Servicer to represent the
interests of the Trust in Trust-Related Litigation, but subject to the rights of
the Special Servicer to direct the Master Servicer's actions in Section 3.26(d)
below, the Master Servicer shall retain the right to make determinations
relating to claims against the Master Servicer, including but not limited to the
right to engage separate counsel in the Master Servicer's reasonable discretion,
the cost of which shall be subject to indemnification pursuant to Section 6.03.
Further, nothing in this section shall require the Master Servicer to take or
fail to take any action which, in the Master Servicer's good faith and
reasonable judgment, may (i) result in an Adverse REMIC Event or Adverse Grantor
Trust Event or (ii) subject the Master Servicer to liability or materially
expand the scope of the Master Servicer's obligations under this Agreement.
(d) Notwithstanding the Master Servicer's right to make determinations
relating to claims against the Master Servicer, the Special Servicer shall have
the right at any time to (i) direct (subject to the consent of the Controlling
Class Representative) the Master Servicer to settle any claims brought against
the Trust, including claims asserted against the Master Servicer (whether or not
the Trust or the Special Servicer is named in any such claims or Trust-Related
Litigation) and (ii) otherwise reasonably direct the actions of the Master
Servicer relating to claims against the Master Servicer (whether or not the
Trust or the Special Servicer is named in any such claims or Trust-Related
Litigation), provided in either case that (A) such settlement or other direction
does not require any admission, or is not likely to result in a finding, of
liability or wrongdoing on the part of the Master Servicer, (B) the cost of such
settlement or any resulting judgment is and shall be paid by the Trust, (C) the
Master Servicer is and shall be indemnified pursuant to Section 6.03 for all
costs and expenses of the Master Servicer incurred in defending and settling the
Trust-Related Litigation and for any judgment, (D) any such action taken by the
Master Servicer at the direction of the Special Servicer shall be deemed (as to
the Master Servicer) to be in compliance with the Servicing Standard and (E) the
Special Servicer provides the Master Servicer with assurance reasonably
satisfactory to the Master Servicer as to the items on clauses (A), (B) and (C).
Notwithstanding the foregoing in this paragraph (d), no consent of the
Controlling Class Representative shall be required if adherence by the Master
Servicer or the Special Servicer to such consent would not be in accordance with
the Servicing Standard.
(e) If both the Master Servicer and either the Special Servicer or the
Trust are named in litigation, then the Master Servicer and the Special Servicer
shall cooperate with each other to afford the Master Servicer and the Special
Servicer the rights afforded to such party in this Section 3.26.
(f) Notwithstanding the foregoing, the Controlling Class
Representative may direct (such direction to be in writing; and which written
direction may apply to more than one Trust-Related Litigation, or Trust-Related
Litigation in general, on Performing Mortgage Loans) that the Master Servicer
control, and the Master Servicer agrees that upon receipt of such written
direction it shall control, the Trust-Related Litigation on behalf of the Trust
with respect to the Performing Mortgage Loans specified in such notice and, in
such event, this Section 3.26 shall not apply. Furthermore, this Section 3.26
shall not apply in the event the Special Servicer authorizes the Master Servicer
and the Master Servicer agrees (such authority and agreement to be in writing),
to make certain decisions or control certain Trust-Related Litigation on behalf
of the Trust with respect to Specially Serviced
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Mortgage Loans; provided that any authorization by the Special Servicer for the
Master Servicer to control any Trust-Related Litigation shall be subject to the
consent of the Controlling Class Representative. If the Master Servicer controls
certain Trust-Related Litigation on behalf of the Trust with respect to
Performing Mortgage Loans in accordance with this paragraph (f), the Special
Servicer shall retain the right to make determinations relating to claims
against the Special Servicer, including but not limited to the right to engage
separate counsel in the Special Servicer's reasonable discretion, the cost of
which shall be subject to indemnification pursuant to Section 6.03. Nothing in
this Section 3.26 shall be intended to limit the rights of the Controlling Class
Representative under any other section of this Agreement.
(g) Notwithstanding the foregoing, (i) if any action, suit, litigation
or proceeding names the Trustee in its individual capacity, or if any judgment
is rendered against the Trustee in its individual capacity, then the Trustee,
upon prior written notice to the Master Servicer or the Special Servicer, as
applicable, may retain counsel and appear in any such proceeding on its own
behalf in order to protect and represent its interests; provided that the Master
Servicer or Special Servicer, as applicable, shall retain the right to manage
and direct any such action, suit, litigation or proceeding; (ii) in the case of
any action, suit, litigation or proceeding, other than an action, suit,
litigation or proceeding relating to the enforcement of the obligations of a
Mortgagor under the related Mortgage Loan documents or otherwise relating to a
Mortgage Loan or Mortgaged Property, neither the Master Servicer nor the Special
Servicer shall, without the prior written consent of the Trustee, (A) initiate
any action, suit, litigation or proceeding in the name of the Trustee, whether
in such capacity or individually, (B) engage counsel to represent the Trustee,
or (C) prepare, execute or deliver any government filings, forms, permits,
registrations or other documents or take any other similar action with intent to
cause, and that actually causes, the Trustee to be registered to do business in
any state; and (iii) if any court finds that the Trustee is a necessary party in
respect of any action, suit, litigation or proceeding relating to or arising
from this Agreement or any Mortgage Loan, the Trustee shall have the right to
retain counsel and appear in any such proceedings on its own behalf in order to
protect and represent its interest, whether as Trustee or individually, provided
that the Master Servicer or the Special Servicer, as applicable, shall retain
the right to manage and direct any such action, suit, litigation or proceeding.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, through and including the Final
Distribution Date, the Trustee shall, based on, among other things, information
provided by the Master Servicer and, if applicable, the Special Servicer,
withdraw from the Collection Account and apply the Available Distribution Amount
for such Distribution Date, such application to be made for the following
purposes and in the following order of priority, in each case to the extent of
remaining available funds:
first, concurrently, (i) from that portion, if any, of the Available
Distribution Amount for such Distribution Date attributable to Loan Group No. 1,
to make distributions of interest to the Holders of the Class A-1, Class A-2 and
Class A-3 Certificates in an amount equal to, and pro rata as among such Classes
of Certificateholders in accordance with, all 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, (ii)
from that portion, if any, of the Available Distribution Amount for such
Distribution Date that is attributable to Loan Group No. 2, to make
distributions of interest to the Holders of the Class A-1A 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, if any, and (iii) from the entire
Available Distribution Amount for such Distribution Date, distributions of
interest to the Holders of the Class X 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, if any; provided, however, that if the Available
Distribution Amount for the subject Distribution Date or the applicable portion
thereof attributable to either Loan Group is insufficient to pay in full the
total amount of Distributable Certificate Interest, as provided above, payable
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
Certificateholders in accordance with, all 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;
second, to make distributions of principal to the Holders of the
respective Classes of the Senior Class A Certificates, in the following amounts
and order of priority:
(i) to the Holders of the Class A-1A Certificates, up to an
amount (not to exceed the Class Principal Balance of the Class A-1A
Certificates outstanding immediately prior to such Distribution Date) equal
to that portion of the entire Adjusted Principal Distribution Amount for
such Distribution Date attributable to Loan Group No. 2;
(ii) to the Holders of the Class A-1 Certificates, up to an
amount (not to exceed the Class Principal Balance of the Class A-1
Certificates outstanding immediately prior to such Distribution Date) equal
to the entire Adjusted Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to
the Holders of the Class A-1A Certificates pursuant to subclause (i) of
this clause second);
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(iii) to the Holders of the Class A-2 Certificates, up to an
amount (not to exceed the Class Principal Balance of the Class A-2
Certificates outstanding immediately prior to such Distribution Date) equal
to the entire Adjusted Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Senior Class A Certificates pursuant to a
prior subclause of this clause second);
(iv) to the Holders of the Class A-3 Certificates, up to an
amount (not to exceed the Class Principal Balance of the Class A-3
Certificates outstanding immediately prior to such Distribution Date) equal
to the entire Adjusted Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Senior Class A Certificates pursuant to a
prior subclause of this clause second); and
(v) to the Holders of the Class A-1A Certificates, up to an
amount (not to exceed the Class Principal Balance of the Class A-1A
Certificates outstanding immediately prior to such Distribution Date, net
of any distributions of principal made with respect to the Class A-1A
Certificates on such Distribution Date pursuant to subclause (i) of this
clause second) equal to the entire Adjusted Principal Distribution Amount
for such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of the Class A-1A Certificates and/or to
the Holders of any other Class of Senior Class A Certificates pursuant to a
prior subclause of this clause second);
provided, however, that, notwithstanding the immediately preceding clauses
(i) through (v) of this clause second, on each Distribution Date coinciding
with or following the Senior Class A Principal Distribution Cross-Over
Date, and in any event on the Final Distribution Date, the Trustee shall,
pursuant to this clause second, subject to remaining available funds, make
distributions of principal to the Holders of the respective Classes of the
Senior Class A Certificates, on a pro rata basis, in accordance with the
respective Class Principal Balances of those Classes of Certificates
outstanding immediately prior to such Distribution Date, until the Class
Principal Balance of each such Class of Certificates has been reduced to
zero (such distributions of principal to be made without regard to the
Adjusted Principal Distribution Amount for such Distribution Date);
third, to reimburse the Holders of the respective Classes of the
Senior Class A Certificates, up to an amount equal to, and on a pro rata basis
as among such Classes of Certificateholders in accordance with, the Loss
Reimbursement Amount with respect to each such Class of Certificates for such
Distribution Date;
fourth, to make distributions of interest to the Holders of the Class
A-J Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates, if
any;
fifth, after the Class Principal Balances of the respective Classes of
the Senior Class A Certificates have been reduced to zero, to make distributions
of principal to the Holders of the Class A-J Certificates, up to an amount (not
to exceed the Class Principal Balance of the Class A-J Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any portion
thereof distributed on such
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Distribution Date to the Holders of the respective Classes of the Senior Class A
Certificates pursuant to clause second of this Section 4.01(a)); provided,
however, that, on the Final Distribution Date, the Trustee shall, pursuant to
this clause fifth, subject to remaining available funds, make distributions of
principal to the Holders of the Class A-J Certificates, until the Class
Principal Balance of such Class of Certificates is reduced to zero;
sixth, to reimburse the Holders of the Class A-J Certificates, up to
an amount equal to the Loss Reimbursement Amount with respect to such Class of
Certificates for such Distribution Date; and
seventh, to make distributions to the Holders of the remaining Classes
of the Regular Interest Certificates as provided in Section 4.01(b).
All distributions of interest, if any, made with respect to the Class
X Certificates on any Distribution Date, pursuant to this Section 4.01(a), shall
be made, and shall be deemed to have been made, in respect of the various Class
X REMIC III Components, pro rata in accordance with the respective amounts of
Distributable Component Interest in respect of such Class X REMIC III Components
for such Distribution Date and, to the extent not previously deemed paid
pursuant to this paragraph, for all prior Distribution Dates, if any.
(b) On each Distribution Date, through and including the Final
Distribution Date, after making the distributions with respect to the Senior
Certificates and the Class A-J Certificates provided for in Section 4.01(a), the
Trustee shall, based on, among other things, information provided by the Master
Servicer and, if applicable, the Special Servicer, apply the remaining portion,
if any, of the Available Distribution Amount for such Distribution Date to make
the distributions described in the next paragraph to the Holders of the various
Classes of the Class B Through T Certificates, such distributions to be made
sequentially among such Classes of Certificateholders in the alphabetic order of
the Class designations of their respective Certificates (beginning with the
Class B Certificates and ending with the Class T Certificates), in each case to
the extent of the Remaining Available Distribution Amount with respect to the
subject Class of Certificates for such Distribution Date.
On each Distribution Date, through and including the Final
Distribution Date, the Holders of each Class of the Class B Through T
Certificates will be entitled to receive, subject to the Remaining Available
Distribution Amount with respect to the subject Class of Certificates for such
Distribution Date, the following distributions in the following order of
priority, in each case to the extent of the remaining available funds:
first, distributions of interest, up to an amount equal to all
Distributable Certificate Interest with respect to the subject Class of
Certificates for such Distribution Date and, to the extent not previously
received, for all prior Distribution Dates, if any;
second, distributions of principal, up to an amount (not to exceed the
Class Principal Balance of the subject Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the Remaining Adjusted
Principal Distribution Amount with respect to the subject Class of Certificates
for such Distribution Date (or, if such Distribution Date is the Final
Distribution Date, then up to an amount equal to the entire Class Principal
Balance of the subject Class of Certificates immediately prior to, and without
regard to the Remaining Adjusted Principal Distribution Amount with respect to
the subject Class of Certificates for, such Distribution Date); and
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third, reimbursements of any and all reductions made in the Class
Principal Balance of the subject Class of Certificates pursuant to Section
4.04(a), up to an amount equal to the Loss Reimbursement Amount with respect to
the subject Class of Certificates for such Distribution Date;
provided that no distributions of principal will be made with respect to any
Class of the Class B Through T Certificates until the reduction to zero of the
Class Principal Balance of each Class of the Class A Certificates, as well as
the Class Principal Balance of each other Class of the Class B Through T
Certificates, if any, that has an earlier alphabetic Class designation (that is,
"Class B" comes before "Class C", "Class C" comes before "Class D", and so
forth) than does the subject Class of Certificates.
Any portion of the Available Distribution Amount that remains after
the distributions with respect to the Regular Interest Certificates in
accordance with Section 4.01(a) and this Section 4.01(b) shall be applied to
make distributions to the Holders of the Residual Interest Certificates in
accordance with Section 4.01(c).
(c) On each Distribution Date, through and including the Final
Distribution Date, after making the distributions with respect to the Regular
Interest Certificates provided for in Sections 4.01(a) and 4.01(b), the Trustee
shall apply the remaining portion, if any, of the Available Distribution Amount
for such Distribution Date for the following purposes and in the following order
of priority, in each case to the extent of remaining available funds:
(i) to make distributions to the Holders of the Class R-III
Certificates, up to an amount equal to the excess, if any, of (A) the
aggregate distributions (other than distributions of Net Prepayment
Consideration) deemed made with respect to the REMIC II Regular Interests
on such Distribution Date pursuant to Section 4.01(l), over (B) the
aggregate distributions made with respect to the Regular Interest
Certificates on such Distribution Date pursuant to Section 4.01(a) and/or
Section 4.01(b);
(ii) to make distributions to the Holders of the Class R-II
Certificates, up to an amount equal to the excess, if any, of (A) the
aggregate distributions (other than distributions of Net Prepayment
Consideration) deemed made with respect to the REMIC I Regular Interests on
such Distribution Date pursuant to Section 4.01(m), over (B) the aggregate
distributions (other than distributions of Net Prepayment Consideration)
deemed made with respect to the REMIC II Regular Interests on such
Distribution Date pursuant to Section 4.01(l);
(iii) subject to Section 2.06(b), to make distributions to the
Holders of the Class R-LR Certificates, up to an amount equal to the
excess, if any, of (A) that portion of the Available Distribution Amount
for such Distribution Date that is allocable to the Early Defeasance
Mortgage Loans and/or any related REO Properties, over (B) the aggregate
distributions (other than distributions of Net Prepayment Consideration)
deemed made with respect to the Loan REMIC Regular Interests on such
Distribution Date pursuant to Section 4.01(n); and
(iv) to distribute to the Holders of the Class R-I Certificates
the remaining portion, if any, of the Available Distribution Amount.
(d) On each Distribution Date, through and including the Final
Distribution Date, the Trustee shall withdraw from the Collection Account any
amount Received by the Trust with respect to
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any Mortgage Loan or REO Mortgage Loan during the related Collection Period that
represents Net Prepayment Consideration and shall distribute such Net Prepayment
Consideration: first, to the Holders of the respective Classes of YM Principal
Balance Certificates that are entitled to distributions of principal on such
Distribution Date, pursuant to Section 4.01(a) or Section 4.01(b), as
applicable, with respect to the Loan Group that includes the prepaid Mortgage
Loan or REO Mortgage Loan, as applicable, up to an amount equal to, and pro rata
based on, the respective Prepayment Consideration Entitlements for such Classes
of Certificates for such Distribution Date in connection with such Net
Prepayment Consideration; and second, to the Holders of the Class X
Certificates, in an amount equal to 100% of any remaining portion of such Net
Prepayment Consideration. For purposes of the foregoing, to the extent that
amounts available to make distributions of principal on any Class of YM
Principal Balance Certificates on any Distribution Date consist of a combination
of principal amounts allocable to both Loan Groups, the Trustee shall assume
that those distributions of principal on that Class of YM Principal Balance
Certificates on such Distribution Date are made from principal amounts allocable
to each Loan Group, on a pro rata basis in accordance with the respective
principal amounts allocable to each Loan Group that were available for
distributions of principal on that Class. In connection therewith, (i)
distributions of principal made with respect to the Class A-1A Certificates,
pursuant to subclause (i) of clause second of Section 4.01(a), on any
Distribution Date prior to both the Senior Class A Principal Distribution
Cross-Over Date and the Final Distribution Date, shall be deemed made solely
from principal amounts allocable to Loan Group No. 2, and (ii) all other
distributions of principal made with respect to any Class of Principal Balance
Certificates, pursuant to Section 4.01(a) or 4.01(b), on any Distribution Date,
shall be deemed made from principal amounts allocable to both Loan Groups
(exclusive of any principal amounts allocable to Loan Group No. 2 that may have
been applied on such Distribution Date as contemplated by clause (i) of this
sentence).
Any Net Prepayment Consideration or portion thereof distributed with
respect to the Class X Certificates on any Distribution Date shall be deemed to
have been distributed with respect to the various Class X REMIC III Components,
on a pro rata basis in accordance with the respective amounts by which the
Component Notional Amounts of such Class X REMIC III Components were reduced on
such Distribution Date by deemed distributions of principal pursuant to Section
4.01(l).
(e) On each Distribution Date, through and including the Final
Distribution Date, subject to Section 2.05(b), the Trustee shall withdraw from
the Collection Account, and distribute to the Holders of the Class V
Certificates, any amounts that represent Additional Interest Received by the
Trust during the related Collection Period with respect to the ARD Mortgage
Loans (and any successor REO Mortgage Loans with respect thereto).
(f) On the Final Distribution Date, the Trustee shall withdraw from
the Loss of Value Reserve Fund and distribute to the Holders of the Class R-III
Certificates, any Loss of Value Payments remaining on deposit in the Loss of
Value Reserve Fund as of the Final Distribution Date (after taking into account
any transfer of Loss of Value Payments from the Loss of Value Reserve Fund to
the Collection Account on the immediately preceding Master Servicer Remittance
Date in accordance with Section 3.05(e)).
(g) All distributions made with respect to each Class of Certificates
on each Distribution Date shall be allocated pro rata among the outstanding
Certificates in such Class based on their respective Percentage Interests.
Except as otherwise provided below, all such distributions with respect to each
Class on each Distribution Date shall be made to the Certificateholders of the
respective
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Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than five (5) Business Days prior to the related Record
Date or, in the case of the initial Distribution Date, no later than the close
of business on the later of (i) the fifth Business Day prior to the related
Record Date and (ii) the Closing Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent Distribution Dates), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. The final distribution on each Certificate
(determined, in the case of a Principal Balance Certificate, without regard to
any possible future reimbursement of any related Loss Reimbursement Amount) 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 any related
Loss Reimbursement Amount, which reimbursement is to occur after the date on
which such Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Certificateholder that
surrendered such Certificate as such address last appeared in the Certificate
Register or to any other address of which the Trustee was subsequently notified
in writing. If such check is returned to the Trustee, then the Trustee, directly
or through an agent, shall take such reasonable steps to contact the related
Holder and deliver such check as it shall deem appropriate. Any funds in respect
of a check returned to the Trustee shall be set aside by the Trustee and held
uninvested in trust and credited to the account of the appropriate Holder. The
costs and expenses of locating the appropriate Holder and holding such funds
shall be paid out of such funds. No interest shall accrue or be payable to any
former Holder on any amount held in trust hereunder. If the Trustee has not,
after having taken such reasonable steps, located the related Holder by the
second anniversary of the initial sending of a check, the Trustee shall, subject
to applicable law, distribute the unclaimed funds to the Class R-III
Certificateholders.
(h) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm for which it acts as agent. Each indirect
participating brokerage firm shall be responsible for disbursing funds to the
related Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor or the Master Servicer shall have any
responsibility therefor except as otherwise provided by this Agreement or
applicable law. The Trustee and the Depositor shall perform their respective
obligations under each Letter of Representations among the Depositor, the
Trustee and the initial Depository dated as of the Closing Date and pertaining
to the Book-Entry Certificates.
(i) The rights of the Certificateholders to receive distributions from
the proceeds of the Trust Fund with respect to the Certificates, and all rights
and interests of the Certificateholders in and to such distributions, shall be
as set forth in this Agreement. Neither the Holders of any Class of Certificates
nor any party hereto shall in any way be responsible or liable to the Holders of
any other Class of Certificates with respect to amounts properly previously
distributed on the Certificates.
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(j) Except as otherwise provided in Section 9.01, whenever the Trustee
receives written notification of or expects that the final distribution with
respect to any Class of Certificates (determined, in the case of a Class of
Principal Balance Certificates, without regard to any possible future
reimbursement of any related Loss Reimbursement Amount) will be made on the next
Distribution Date, the Trustee shall, as soon as reasonably practicable and, in
any event, no later than the second Business Day prior to such Distribution
Date, mail to each Holder of record of such Class of Certificates on such date a
notice to the effect that:
(i) the Trustee expects that the final distribution with respect
to such Class of Certificates will be made on such Distribution Date but
only upon presentation and surrender of such Certificates at the office of
the Certificate Registrar or at such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
the end of the Interest Accrual Period for such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(j) shall not have been surrendered for
cancellation within six (6) months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one (1) year
after the second notice all such Certificates shall not have been surrendered
for cancellation, then the Trustee, directly or through an agent, shall take
such steps to contact the remaining non-tendering Certificateholders concerning
the surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such non-tendering
Certificateholders following the first anniversary of the delivery of such
second notice thereto shall be paid out of such funds. No interest shall accrue
or be payable to any former Holder on any amount held in trust pursuant to this
paragraph. If all of the Certificates as to which notice has been given pursuant
to this Section 4.01(j) shall not have been surrendered for cancellation by the
second anniversary of the delivery of the second notice, the Trustee shall,
subject to applicable law, distribute to the Class R-III Certificateholders all
unclaimed funds and other assets which remain subject thereto.
(k) Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee shall indicate the amount withheld to such
Certificateholder.
(l) All distributions made in respect of each Class of Principal
Balance Certificates on each Distribution Date (including the Final Distribution
Date) pursuant to Section 4.01(a), Section 4.01(b) or Section 4.01(d) shall be
deemed to have first been distributed on such Distribution Date from REMIC II to
REMIC III with respect to the Corresponding REMIC II Regular Interest for such
Class of Certificates; and all distributions made with respect to the Class X
Certificates on each Distribution Date
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pursuant to Section 4.01(a) or Section 4.01(d) and allocable to any particular
Class X REMIC III Component, shall be deemed to have first been distributed on
such Distribution Date from REMIC II to REMIC III in respect of the
Corresponding REMIC II Regular Interest for such Class X REMIC III Component. In
each case, if such distribution on any such Class of Certificates was a
distribution of accrued interest, of principal, of additional interest (in the
form of Net Prepayment Consideration or any portion thereof) or in reimbursement
of any Loss Reimbursement Amount with respect to such Class of Certificates,
then the corresponding distribution deemed to be made on a REMIC II Regular
Interest pursuant to the preceding sentence shall be deemed to also be,
respectively, a distribution of accrued interest, of principal, of additional
interest (in the form of Net Prepayment Consideration or any portion thereof) or
in reimbursement of any Loss Reimbursement Amount with respect to such REMIC II
Regular Interest.
The actual distributions made by the Trustee on each Distribution Date
in respect of the REMIC III Certificates pursuant to Section 4.01(a), Section
4.01(b), Section 4.01(c) or Section 4.01(d), as applicable, shall be deemed to
have been so made from the amounts deemed distributed with respect to the REMIC
II Regular Interests on such Distribution Date pursuant to this Section 4.01(l).
Notwithstanding the deemed distributions on the REMIC II Regular Interests
described in this Section 4.01(l), actual distributions of funds from the
Collection Account shall be made only in accordance with Section 4.01(a),
Section 4.01(b), Section 4.01(c), Section 4.01(d) or Section 4.01(e), as
applicable.
(m) On each Distribution Date, through and including the Final
Distribution Date, the Available Distribution Amount for such Distribution Date
shall be deemed to have been distributed from REMIC I to REMIC II for the
following purposes and in the following order of priority, in each case to the
extent of the remainder of such funds:
(i) as deemed distributions of interest with respect to all the
REMIC I Regular Interests, up to an amount equal to, and pro rata in
accordance with, all Uncertificated Distributable Interest with respect to
each such REMIC I Regular Interest for such Distribution Date and, to the
extent not previously deemed distributed, for all prior Distribution Dates,
if any;
(ii) as deemed distributions of principal with respect to all the
REMIC I Regular Interests, up to an amount equal to, and pro rata in
accordance with, as to each such REMIC I Regular Interest, the portion of
the Principal Distribution Amount for such Distribution Date attributable
to the related Mortgage Loan or any successor REO Mortgage Loan with
respect thereto; and
(iii) as deemed distributions of reimbursement with respect to
all the REMIC I Regular Interests, up to an amount equal to, and pro rata
in accordance with, any Loss Reimbursement Amount with respect to each such
REMIC I Regular Interest for such Distribution Date (with compounded
interest at the related REMIC I Remittance Rate in effect from time to time
on the aggregate amount of unreimbursed reductions made from time to time
in the Uncertificated Principal Balance of the subject REMIC I Regular
Interest pursuant to Section 4.04(c)).
Any Net Prepayment Consideration distributed to any Class of Regular
Interest Certificates on any Distribution Date shall, in each case, be deemed to
have been distributed on such Distribution Date from REMIC I to REMIC II in
respect of the REMIC I Regular Interest(s)
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corresponding to the prepaid Mortgage Loan or REO Mortgage Loan, as the case may
be, in respect of which such Net Prepayment Consideration was received.
The actual distributions made by the Trustee on each Distribution Date
in respect of the REMIC III Certificates and the Class R-II Certificates
pursuant to Section 4.01(a), Section 4.01(b), Section 4.01(c) or Section
4.01(d), as applicable, as well as the deemed distributions made on each
Distribution Date in respect of the REMIC II Regular Interests pursuant to
Section 4.01(l), shall be deemed to have been so made from the amounts deemed
distributed with respect to the REMIC I Regular Interests on such Distribution
Date pursuant to this Section 4.01(m). Notwithstanding the deemed distributions
on the REMIC I Regular Interests described in this Section 4.01(m), actual
distributions of funds from the Collection Account shall be made only in
accordance with Section 4.01(a), Section 4.01(b), Section 4.01(c), Section
4.01(d) or Section 4.01(e), as applicable.
(n) On each Distribution Date, through and including the Final
Distribution Date, any portion of the Available Distribution Amount for such
date allocable to an Early Defeasance Mortgage Loan (or any successor REO
Mortgage Loan with respect thereto) shall be deemed to have first been
distributed from the related Loan REMIC to REMIC I in respect of the
corresponding Loan REMIC Regular Interest, in each case to the extent of the
remaining portions of such funds, for the following purposes and in the
following order of priority:
(i) as deemed distributions of interest in respect of the related
Loan REMIC Regular Interest, up to an amount equal to all Uncertificated
Distributable Interest in respect of such Loan REMIC Regular Interest for
such Distribution Date and, to the extent not previously deemed
distributed, for all prior Distribution Dates, if any;
(ii) as deemed distributions of principal in respect of the
related Loan REMIC Regular Interest, up to an amount equal to the portion
of the Principal Distribution Amount for such Distribution Date
attributable to such Early Defeasance Mortgage Loan (or any successor REO
Mortgage Loan with respect thereto); and
(iii) as deemed distributions of reimbursement with respect to
the related Loan REMIC Regular Interest, up to an amount equal to any Loss
Reimbursement Amount with respect to the related Loan REMIC Regular
Interest for such Distribution Date (with compounded interest at the
related Loan REMIC Remittance Rate in effect from time to time on the
aggregate amount of unreimbursed reductions made from time to time in the
Uncertificated Principal Balance of the related Loan REMIC Regular Interest
pursuant to Section 4.04(d)).
Any Net Prepayment Consideration distributed to any Class of Regular
Interest Certificates on any Distribution Date that is allocable to an Early
Defeasance Mortgage Loan (or any successor REO Mortgage Loan with respect
thereto) shall, in each case, be deemed to have been distributed on such
Distribution Date from the related Loan REMIC to REMIC I in respect of the Loan
REMIC Regular Interest corresponding to the prepaid Early Defeasance Mortgage
Loan (or any successor REO Mortgage Loan with respect thereto) as to which such
Net Prepayment Consideration was received.
The actual distributions made by the Trustee on each Distribution Date
in respect of the REMIC III Certificates, the Class R-II Certificates and the
Class R-I Certificates pursuant to Section 4.01(a), Section 4.01(b), Section
4.01(c) or Section 4.01(d), as applicable, shall be deemed to have been
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so made in part from the amounts deemed distributed with respect to the Loan
REMIC Regular Interests, if any, on such Distribution Date pursuant to this
Section 4.01(n). Notwithstanding the deemed distributions on the Loan REMIC
Regular Interests, if any, described in this Section 4.01(n), actual
distributions of funds from the Collection Account shall be made only in
accordance with Section 4.01(a), Section 4.01(b), Section 4.01(c), Section
4.01(d) or Section 4.01(e), as applicable.
Notwithstanding the foregoing, the applicability of this Section
4.01(n) shall be subject to Section 2.06(b).
SECTION 4.02. Statements to Certificateholders and Others.
(a) The Trustee shall prepare and, on each Distribution Date, shall
provide or make available electronically to the Depositor, the Underwriters, the
Master Servicer, the Special Servicer, the Controlling Class Representative,
each Rating Agency, the Holders of each Class of Certificates and, upon their
written request to the Trustee, any Certificate Owners of the Book-Entry
Certificates as may be identified to the reasonable satisfaction of the Trustee,
a statement, substantially in the form attached hereto as Exhibit B (a
"Distribution Date Statement"), together with the CMSA Bond Level File, the CMSA
Collateral Summary File, the CMSA Historical Bond/Collateral Realized Loss
Reconciliation Template, the CMSA Historical Liquidation Loss Template, the CMSA
Interest Shortfall Reconciliation Template, the CMSA Reconciliation of Funds
Template and the Mortgage Pool Data Update Report, based on information provided
to it by the Master Servicer and/or the Special Servicer, which Distribution
Date Statement shall set forth, without limitation:
(i) the amount of the distribution on such Distribution Date to
the Holders of each Class of Principal Balance Certificates in reduction of
the Class Principal Balance thereof;
(ii) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular Interest Certificates allocable to
Distributable Certificate Interest;
(iii) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular Interest Certificates allocable to
Prepayment Consideration;
(iv) the amount of the distribution on such Distribution Date to
the Holders of each Class of Principal Balance Certificates in
reimbursement of any related Loss Reimbursement Amount for such
Distribution Date;
(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 the Available Distribution Amount for such Distribution Date
attributable to each of Loan Group No. 1 and Loan Group No. 2;
(vi) the aggregate amount of P&I Advances made in respect of the
Mortgage Pool for such Distribution Date pursuant to Section 4.03(a);
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(vii) (A) the aggregate amount of xxxxxxxxxxxx X&X Advances that
had been outstanding with respect to the Mortgage Pool at the close of
business on the related Determination Date and the aggregate amount of any
interest accrued and payable to the Master Servicer, the Trustee or any
Fiscal Agent in respect of any such xxxxxxxxxxxx X&X Advances in accordance
with Section 4.03(d) as of the close of business on such related
Determination Date and (B) the aggregate amount of unreimbursed Servicing
Advances that had been outstanding with respect to the Mortgage Pool as of
the close of business on the related Determination Date and the aggregate
amount of interest accrued and payable to the Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent in respect of such unreimbursed
Servicing Advances in accordance with Section 3.11(g) as of the close of
business on such related Determination Date;
(viii) the aggregate unpaid principal balance of the Mortgage
Pool (separately identifying the respective portions thereof attributable
to each of Loan Group No. 1 and Loan Group No. 2) outstanding as of the
close of business on the related Determination Date and the aggregate
Stated Principal Balance of the Mortgage Pool (separately identifying the
respective portions thereof attributable to each of Loan Group No. 1 and
Loan Group No. 2) outstanding immediately before and immediately after such
Distribution Date;
(ix) the number, aggregate unpaid principal balance, weighted
average remaining term to maturity and weighted average Mortgage Rate of
the Mortgage Loans (but not the REO Mortgage Loans) in the Mortgage Pool,
as well as in each Loan Group, as of the close of business on the related
Determination Date;
(x) the number, aggregate unpaid principal balance (as of the
close of business on the related Determination Date) and aggregate Stated
Principal Balance (immediately after such Distribution Date) of Mortgage
Loans in the Mortgage Pool, as well as in each Loan Group, that were (A)
delinquent 30 to 59 days, (B) delinquent 60 to 89 days, (C) delinquent 90
or more days, (D) as to which foreclosure proceedings have been commenced,
and (E) as to which, to the knowledge of the Master Servicer or the Special
Servicer, as applicable, bankruptcy proceedings have commenced in respect
of the related Mortgagor;
(xi) as to each Mortgage Loan referred to in the preceding clause
(x) above, (A) the loan number thereof, (B) the Stated Principal Balance
thereof immediately following such Distribution Date and (C) whether the
delinquency is in respect of its Balloon Payment;
(xii) with respect to any Mortgage Loan as to which a Liquidation
Event occurred during the related Collection Period, (A) the loan number
thereof, (B) the nature of the Liquidation Event and, in the case of a
Final Recovery Determination, a brief description of the basis for such
Final Recovery Determination, (C) the aggregate of all Liquidation Proceeds
and other amounts received in connection with such Liquidation Event
(separately identifying the portion thereof allocable to distributions on
the Certificates), and (D) the aggregate amount of any Realized Loss and
Additional Trust Fund Expenses in connection with such Liquidation Event;
(xiii) with respect to any Mortgage Loan that was the subject of
any material modification, extension or waiver during the related
Collection Period, (A) the 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;
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(xiv) with respect to any Mortgage Loan as to which an uncured
and unresolved Material Breach or Material Document Defect is alleged to
exist, (A) the loan number thereof, (B) the unpaid principal balance
thereof, (C) a brief description of such Material Breach or Material
Document Defect, as the case may be, and (D) the status of such Material
Breach or Material Document Defect, as the case may be, including any
actions known to the Trustee that are being taken by or on behalf of
Mortgage Loan Seller with respect thereto;
(xv) 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
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;
(xvi) with respect to any Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the related Collection
Period, the loan number of such Mortgage Loan and the Stated Principal
Balance of such Mortgage Loan as of the related Acquisition Date;
(xvii) with respect to any REO Property as to which a Final
Recovery Determination was made during the related Collection Period, (A)
the loan number of the related Mortgage Loan, (B) a brief description of
the basis for the Final Recovery Determination, (C) the aggregate of all
Liquidation Proceeds and other amounts Received 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), (D) the aggregate amount of any Realized Loss and Additional
Trust Fund Expenses in respect of the related REO Mortgage Loan in
connection with such Final Recovery Determination and (E), if available,
the Appraised Value of such REO Property as expressed in the most recent
appraisal thereof and the date of such appraisal;
(xviii) the Distributable Certificate Interest and Accrued
Certificate Interest in respect of each Class of Regular Interest
Certificates for such Distribution Date or the related Interest Accrual
Period, as applicable;
(xix) any unpaid Distributable Certificate Interest in respect of
each Class of Regular Interest Certificates after giving effect to the
distributions made on such Distribution Date, and if the full amount of the
Adjusted Principal Distribution Amount was not distributed on such
Distribution Date, the portion of the shortfall affecting each Class of
Principal Balance Certificates;
(xx) the Pass-Through Rate for each Class of Regular Interest
Certificates for the related Interest Accrual Period;
(xxi) the Principal Distribution Amount for such Distribution
Date, the Principal Distribution Amount for such Distribution Date, the
Adjusted Principal Distribution Amount for such Distribution Date and the
respective portions of the Adjusted Principal
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Distribution Amount for such Distribution Date attributable to each of Loan
Group No. 1 and Loan Group No. 2, in each case separately identifying the
respective components thereof (and, in the case of any Principal Prepayment
or other unscheduled collection of principal Received by the Trust during
the related Collection Period, the loan number for the related Mortgage
Loan and the amount of such prepayment or other collection of principal);
(xxii) the aggregate of (A) all Realized Losses incurred during
the related Collection Period and, as of the related Determination Date,
from the Closing Date and (B) all Additional Trust Fund Expenses (with a
description thereof) incurred during the related Collection Period and, as
of the related Determination Date, from the Closing Date;
(xxiii) the aggregate of all Realized Losses and Additional Trust
Fund Expenses that remain unallocated immediately following such
Distribution Date;
(xxiv) the Class Principal Balance of each Class of Principal
Balance Certificates and the Class Notional Amount of the Class X
Certificates, outstanding immediately before and immediately after such
Distribution Date, separately identifying any reduction therein pursuant to
Section 4.04 on such Distribution Date;
(xxv) the Certificate Factor for each Class of Regular Interest
Certificates immediately following such Distribution Date;
(xxvi) the aggregate amount of any interest on Advances in
respect of the Mortgage Pool paid to the Master Servicer, the Trustee, any
Fiscal Agent or any other party hereto during the related Collection Period
in accordance with Section 3.11(g) and/or Section 4.03(d);
(xxvii) (A) the loan number for each Required Appraisal Loan and
any related Appraisal Reduction Amount (including an itemized calculation
thereof) as of the related Determination Date and (B) the aggregate
Appraisal Reduction Amount for all Required Appraisal Loans as of the
related Determination Date;
(xxviii) on a cumulative basis from the Cut-off Date, the number,
aggregate Stated Principal Balance immediately after such Distribution Date
(in the case of subclauses (A), (B) and (E)), aggregate Cut-off Date
Balance (in the case of subclauses (C) and (D)), weighted average extension
period (except in the case of subclause (B) and which shall be zero in the
case of subclause (C)), and weighted average anticipated extension period
(in the case of subclause (B)) of Mortgage Loans (A) as to which the
maturity dates have been extended, (B) as to which the maturity dates are
in the process of being extended, (C) that have paid off and were never
extended, (D) as to which the maturity dates had previously been extended
and have paid off and (E) as to which the maturity dates had been
previously extended and are in the process of being further extended;
(xxix) the original and then current credit support levels for
each Class of Regular Interest Certificates;
(xxx) the original and then current ratings, if any, for each
Class of Regular Interest Certificates;
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(xxxi) the aggregate amount of Prepayment Consideration Received
by the Trust with respect to the Mortgage Pool, Loan Group No. 1 and Loan
Group No. 2, respectively, during each of (A) the related Collection Period
and (B) the period from and including the Closing Date to and including the
related Determination Date;
(xxxii) (A) the aggregate amount of servicing compensation in
respect of the Mortgage Pool (separately identifying the amount of each
category of compensation) paid to the Master Servicer, to the Special
Servicer and, if payable directly out of the Trust Fund without a reduction
in the servicing compensation otherwise payable to the Master Servicer or
the Special Servicer, to each Sub-Servicer, during the related Collection
Period and (B) such other information as the Trustee is required by the
Code or other applicable law to furnish to enable Certificateholders to
prepare their tax returns;
(xxxiii) the amounts, if any, actually distributed with respect
to each Class of Residual Interest Certificates on such Distribution Date;
and
(xxxiv) a brief description of any uncured Event of Default known
to the Trustee (to the extent not previously reported) and, as determined
and/or approved by the Depositor, any other information necessary to
satisfy the requirements of Item 1121(a) of Regulation AB that can, in the
Trustee's reasonable judgment, be included on the Distribution Date
Statement without undue difficulty.
In the case of information to be furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a basis for
information to be furnished pursuant to clauses (vi) through (xvii), (xxi),
(xxii), (xxiii), (xxvi), (xxvii), (xxviii), (xxxi), (xxxii), (xxxiii) and
(xxxiv) above, insofar as the underlying information is solely within the
control of the Depositor, the Special Servicer or the Master Servicer, the
Trustee may, absent manifest error, conclusively rely on the reports to be
provided by the Depositor, the Special Servicer or the Master Servicer, as the
case may be.
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 shall forward to the Depository such factors, data and
other information required by the Depository or necessary for the Depository to
effectuate the making or approving of credits and/or debits to the accounts of
Depository Participants in connection with the Subject Securitization
Transaction.
(b) The Trustee shall make available each month, to
Certificateholders, Certificate Owners, the Underwriters, the Rating Agencies,
the Controlling Class Representative, any party hereto, any Person identified by
any Certificateholder or Certificate Owner as a prospective transferee or any
designee of the Depositor, via the Trustee's internet website, on a restricted
basis, with the use of a password provided by the Trustee to such Person upon
request and, in the case of a Certificateholder, a Certificate Owner or a
prospective transferee of a Certificate or any interest therein, upon receipt by
the Trustee from such Person of a certification substantially in the form of
Exhibit L-1 or Exhibit L-2, as applicable, all Certificateholder Reports and any
additional files containing substantially similar
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information in an alternative format and, with the consent or at the direction
of the Depositor, such other information regarding the Certificates and/or the
Mortgage Pool as the Trustee may have in its possession. The Trustee will make
no representations or warranties as to the accuracy or completeness of such
documents and will assume no responsibility therefor.
The Trustee's internet website shall initially be located at
"xxx.xxxxxxx.xxx" or at such other address as shall be specified by the Trustee
from time to time in the Distribution Date Statement and in one or more written
notices delivered to the parties hereto, the Controlling Class Representative
(if any), the Certificateholders and the Rating Agencies. In connection with
providing access to the Trustee's internet website, the Trustee may require the
acceptance of a disclaimer. The Trustee shall not be liable for the
dissemination of information in accordance with this Agreement.
The Master Servicer may, but is not required to, make available each
month, to Certificateholders, Certificate Owners (that have been confirmed as
such by the Trustee), the Controlling Class Representative, the Underwriters,
the Rating Agencies or any party hereto, the Certificateholder Reports, on its
internet website. The Master Servicer will make no representations or warranties
as to the accuracy or completeness of any report not prepared by it and will
assume no responsibility for any information for which it is not the original
source.
The Master Servicer's internet website shall initially be located at
"xxx.xxxxxxxx.xxx" or at such other address as shall be specified by the Master
Servicer from time to time on such website or in one or more written notices
delivered to the other parties hereto, the Controlling Class Representative (if
any), the Certificateholders and the Rating Agencies. In connection with
providing access to the Master Servicer's internet website, the Master Servicer
may require registration, issuance and use of a password and username, execution
of an access agreement and acceptance of a disclaimer. The Master Servicer shall
not be liable for the dissemination of information to any Person in accordance
with this Agreement. Access to the Master Servicer's internet website shall be
with the use of a password provided by the Master Servicer, which, in the case
of an existing or prospective Certificateholder or Certificate Owner, shall only
be provided upon receipt by the Master Servicer from such Person of a
certification substantially in the form of Exhibit L-1 or Exhibit L-2, as
applicable. Notwithstanding the foregoing, upon the Depositor's notifying the
Master Servicer that the Non-Registered Certificates have been sold by the
Underwriters to unaffiliated third parties, the Master Servicer may make the
Servicer Reports available on its internet website without a password, provided
that, for so long as reports are required to be filed with the Commission in
respect of the Trust pursuant to Section 15(d) of the Exchange Act, the subject
reports shall have been previously filed with the Commission (which shall be
confirmed by the Master Servicer by request made to the Trustee).
(c) If the Master Servicer or the Special Servicer, as the case may
be, delivers a Supplemental Report to the Trustee, in accordance with Section
3.12(d), then the Trustee shall include the Supplemental Report in or as an
attachment to the Distribution Date Statement for the following Distribution
Date and, to the extent required by Section 8.15(a), shall file such
Supplemental Report, together with such Distribution Date Statement, on the
related Distribution Report on Form 10-D and/or the related Annual Report on
Form 10-K, as applicable, in accordance with Section 8.15(a).
During any period that reports are required to be filed with the
Commission with respect to the Trust pursuant to Section 15(d) of the Exchange
Act, each recipient of a Certificateholder Report, a CMSA NOI Adjustment
Worksheet or a CMSA Operating Statement Analysis Report shall be deemed
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to have agreed to keep confidential the information therein until such statement
or report is filed with the Commission, and each Certificateholder Report, CMSA
NOI Adjustment Worksheet and CMSA Operating Statement Analysis Report shall bear
a legend to the effect that: "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."
(d) Absent manifest error of which it has actual knowledge, none of
the Master Servicer, the Special Servicer or the Trustee shall be responsible
for the accuracy or completeness of any information supplied to it by a
Mortgagor, the Mortgage Loan Seller or third party that is included in any
reports, statements, materials or information prepared or provided by the Master
Servicer, the Special Servicer or the Trustee, as applicable, pursuant to this
Agreement. None of the Trustee, the Master Servicer or the Special Servicer
shall have any obligation to verify the accuracy or completeness of any
information provided by a Mortgagor, the Mortgage Loan Seller, a third party or
each other. The Master Servicer may conclusively rely on any information
provided by the Mortgage Loan Seller or any Mortgagor with respect to the CMSA
Loan Periodic Update File, CMSA Loan Setup File, CMSA Property File and CMSA
Financial File.
(e) Within a reasonable period of time after the end of each calendar
year, upon request, the Trustee shall send to each Person who at any time during
the calendar year was a Certificateholder of record, a report summarizing on an
annual basis (if appropriate) the items relating to distributions of interest
(including any Prepayment Consideration and Additional Interest) and principal
to such Certificateholder during such calendar year (or the applicable portion
of such calendar year during which such Person was a Certificateholder) set
forth in the Distribution Date Statements and such other information as may be
required to enable such Certificateholder to prepare its 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.
(f) Upon receipt of notice from the Depositor that the Underwriters
have sold the Non-Registered Certificates to unaffiliated third parties, the
Trustee shall make available electronically or, if so requested, forward by hard
copy, on each Distribution Date, to (i) Trepp, LLC (at 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other address as the Depositor or
Trepp, LLC may designate), (ii) Intex Solutions, Inc. (at 000 X Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000, or such other address as the Depositor or Intex Solutions,
Inc. may hereafter designate), (iii) Charter Research Corporation (at Two Xxxxxx
Street, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000, or such other address as
the Depositor or Charter Research Corporation may hereafter designate), and (iv)
any other similar third party information provider designated by the Depositor,
a copy of the reports made available to the Holders of the Certificates on such
Distribution Date as described above.
(g) Upon written request of the Depositor or any Underwriter, without
payment of any fee, and upon written request of any Certificateholder or any
other Person, together with payment of a reasonable fee specified by the
Trustee, the Trustee shall provide any statements, reports and/or information
contemplated by this Section 4.02 electronically to such party (such electronic
distribution
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and such statements, reports, and/or information thereon to bear such
appropriate disclaimers and qualifications as the Depositor and the Trustee
shall determine in their reasonable discretion).
If any Certificate Owner does not receive through the Depository or
any of its Depository Participants any of the statements, reports and/or other
written information described above in this Section 4.02 that it would otherwise
be entitled to receive if it were the Holder of a Definitive Certificate
evidencing its ownership interest in the related Class of Book-Entry
Certificates, then the Trustee shall forward such statements, reports and/or
other written information to such Certificate Owner as provided above, upon the
request of such Certificate Owner made in writing to the Corporate Trust Office
(accompanied by current verification of such Certificate Owner's ownership
interest). Such portion of such information as may be agreed upon by the
Depositor and the Trustee shall be furnished to any such Person via overnight
courier delivery or telecopy from the Trustee; provided that the cost of such
overnight courier delivery or telecopy shall be an expense of the party
requesting such information.
(h) The Trustee shall only be obligated to deliver the statements,
reports and information contemplated by this Section 4.02 to the extent it
receives, in the format required by this Agreement, the necessary underlying
information from the Master Servicer or the Special Servicer, as applicable, and
shall not be liable for any failure to deliver any thereof on the prescribed due
dates, to the extent caused by failure to receive timely such underlying
information. Nothing herein shall obligate the Trustee, the Master Servicer or
the Special Servicer to violate any applicable law prohibiting disclosure of
information with respect to any Mortgagor and the failure of the Trustee, Master
Servicer or the Special Servicer to disseminate information for such reason
shall not be a breach hereof.
(i) The information to be furnished by the Trustee to the
Certificateholders pursuant to this Section 4.02 shall not limit the Trustee in
furnishing any such information to other Persons to whom it determines such
disclosure to be appropriate and shall not limit the Trustee in furnishing to
Certificateholders or to any Person any other information with respect to the
Mortgage Loans, the Mortgaged Properties or the Trust Fund as may be provided to
it by the Depositor, the Master Servicer or the Special Servicer or gathered by
it in any investigation or other manner from time to time (such information,
other than as described in this Section 4.02, is referred to herein as
"Additional Information") as it may reasonably deem necessary or appropriate
from time to time, provided that (A) the Trustee shall give the Depositor three
(3) Business Days' advance notice before doing so, (B) any such Additional
Information shall only be furnished with the consent or at the request of the
Depositor (except pursuant to clause (E) below), (C) the Trustee shall be
entitled to indicate the source of all information furnished by it, and the
Trustee may affix thereto any disclaimer it deems appropriate in its reasonable
discretion, (D) the Trustee shall notify Certificateholders of the availability
of any such information in any manner as it, in its sole discretion, may
determine, and (E) this provision shall not prevent the Trustee, whether with or
without the consent of the Depositor, from furnishing information with respect
to the Trust Fund and its administration thereof to any Person, if it reasonably
determines that the furnishing of such information is required by applicable
law. The Trustee shall forward to the Depositor any requests for Additional
Information which, for their fulfillment, require the consent of the Depositor.
Nothing herein shall be construed to impose upon the Trustee any obligation or
duty to furnish or distribute any Additional Information to any Person in any
instance.
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XXXXXXX 0.00. X&X Advances With Respect to the Mortgage Pool.
(a) Prior to 2:00 p.m., New York City time, on each Master Servicer
Remittance Date, the Master Servicer shall, subject to Section 4.03(c) below,
satisfy its obligations to make any required P&I Advances with respect to the
related Distribution Date in respect of the Mortgage Pool, first, by
transferring to the Trustee for deposit in the Collection Account amounts then
held in the Custodial Account for future distribution to Certificateholders in
subsequent months in discharge of such obligations, and second, by remitting its
own funds to the Trustee for deposit in the Collection Account in an amount
equal to the remaining portion of such required P&I Advances. Any amounts held
in the Custodial Account for future distribution and so used to make P&I
Advances shall be appropriately reflected in the Master Servicer's records and
replaced by the Master Servicer by deposit in the Custodial Account on or before
the next succeeding applicable Determination Date (to the extent not previously
replaced through the deposit of Late Collections of the delinquent principal and
interest in respect of which such P&I Advances were made). If, as of 4:00 p.m.,
New York City time, on any Master Servicer Remittance Date, the Master Servicer
shall not have made any P&I Advance required to be made on such date pursuant to
this Section 4.03(a) (and shall not have delivered to the Trustee the requisite
Officer's Certificate and any required supporting documentation related to a
determination of nonrecoverability of a P&I Advance), then the Trustee shall
provide notice of such failure to a Servicing Officer of the Master Servicer by
facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative
number provided by the Master Servicer to the Trustee in writing) and by
telephone at telephone no. (000) 000-0000 or (000) 000-0000 (or such alternative
number provided by the Master Servicer to the Trustee in writing) as soon as
possible, but in any event before 5:00 p.m., New York City time, on such Master
Servicer Remittance Date. If after such notice by facsimile, the Trustee does
not receive the full amount of such P&I Advances by 10:00 a.m., New York City
time, on the related Distribution Date, then the Trustee (or any Fiscal Agent on
its behalf) shall make the portion of such P&I Advances that was required to be,
but was not, made by the Master Servicer on such Master Servicer Remittance
Date. If the Trustee fails to make any such P&I Advance on the related
Distribution Date, but a Fiscal Agent makes such P&I Advance on such date, then
the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer, the Trustee or any Fiscal Agent, as the case may be, pursuant to this
Section 4.03 in respect of any Distribution Date shall, subject to Section
4.03(c) below, equal the aggregate of all Monthly Payments (other than Balloon
Payments) and any Assumed Monthly Payments, in each case net of related Master
Servicing Fees and Workout Fees due or deemed due, as the case may be, in
respect of the Mortgage Loans (including Balloon Mortgage Loans delinquent as to
their respective Balloon Payments) and any REO Mortgage Loans in the Mortgage
Pool on their respective Due Dates during the calendar month in which the
subject Distribution Date occurs, in each case to the extent such amount was not
Received by the Trust (including as net income from any related REO Property) as
of the end of the related Collection Period; provided that, if it is determined
that an Appraisal Reduction Amount exists with respect to any Mortgage Loan or
REO Mortgage Loan, then the interest portion of each P&I Advance, if any,
required to be made pursuant to this Section 4.03 with respect to such Mortgage
Loan or REO Mortgage Loan, as the case may be, during the period that such
Appraisal Reduction Amount continues to exist, shall be reduced to equal the
product of (A) the amount of the interest portion of the subject P&I Advance
that would otherwise be required to be made under this Section 4.03 in respect
of such Mortgage Loan or REO Mortgage Loan, as the case may be, without regard
to this proviso, multiplied by (B) a fraction, the numerator of which is equal
to the then Stated Principal Balance of such Mortgage
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Loan or REO Mortgage Loan, as the case may be, reduced (to not less than zero)
by such Appraisal Reduction Amount, and the denominator of which is equal to the
then Stated Principal Balance of such Mortgage Loan or REO Mortgage Loan, as the
case may be; and provided, further, that the existence of an Appraisal Reduction
Amount with respect to, or that is allocable to, any Mortgage Loan or REO
Mortgage Loan shall not affect the principal portion of any required P&I Advance
with respect thereto.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made under this Section 4.03 if such P&I Advance would,
if made, constitute a Nonrecoverable P&I Advance. The Trustee and any Fiscal
Agent shall be entitled to rely, conclusively, on any determination by the
Master Servicer that a P&I Advance, if made pursuant to this Section 4.03, would
be a Nonrecoverable P&I Advance; provided, however, that if the Master Servicer
has failed to make a P&I Advance pursuant to this Section 4.03 for reasons other
than a determination by the Master Servicer that such P&I Advance would be a
Nonrecoverable P&I Advance or for the reasons contemplated by the following
paragraphs of this Section 4.03(c), the Trustee or any Fiscal Agent shall make
such Advance within the time periods required by Section 4.03(a) unless the
Trustee or such Fiscal Agent, in its good faith, reasonable discretion, makes a
determination prior to the times specified in Section 4.03(a) that such P&I
Advance would be a Nonrecoverable P&I Advance. Upon determining that any P&I
Advance previously made or proposed to be made pursuant to this Section 4.03
with respect to any Mortgage Loan or, if related to an REO Property, any REO
Mortgage Loan is or would, if made, constitute a Nonrecoverable P&I Advance, the
Special Servicer shall report its determination to the Master Servicer, the
Trustee and any Fiscal Agent (it being understood that the Special Servicer
shall have no obligation to make any such determination). The Master Servicer,
the Trustee and any Fiscal Agent shall rely on any determination by the Special
Servicer that a P&I Advance made or proposed to be made pursuant to this Section
4.03 with respect to any Mortgage Loan or, if related to an REO Property, any
REO Mortgage Loan would be a Nonrecoverable P&I Advance. Any determination by
the Master Servicer or the Special Servicer that the Master Servicer has made a
Nonrecoverable P&I Advance pursuant to this Section 4.03, or that any proposed
P&I Advance, if made pursuant to this Section 4.03, would constitute a
Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate
delivered to the Trustee, any Fiscal Agent and the Depositor (and, if such
determination is made by the Special Servicer or the Master Servicer, to the
other such servicer) on or before the related Master Servicer Remittance Date,
setting forth the basis for such determination, together with any other
information that supports such determination, including an appraisal (which
appraisal shall have been conducted by an Independent Appraiser within the
12-month period preceding such determination in accordance with the standards of
the Appraisal Institute taking into account the factors specified in Section
3.18), related Mortgagor operating statements and financial statements, budgets
and rent rolls of the related Mortgaged Properties (to the extent available
and/or in the Master Servicer's or the Special Servicer's possession),
engineers' reports, environmental surveys and any similar reports that the
Master Servicer may have obtained consistent with the Servicing Standard and at
the expense of the Trust Fund, that support such determination by the Master
Servicer or the Special Servicer, as applicable. If, in connection with the
foregoing, it is necessary for the Master Servicer to obtain an appraisal, the
Master Servicer shall so notify the Special Servicer and consult with the
Special Servicer regarding such appraisal. In determining whether any P&I
Advance constitutes a Nonrecoverable P&I Advance, the Master Servicer and the
Special Servicer shall each be entitled to consider (among other things) the
obligations of the related Mortgagor under the terms of the related Mortgage
Loan (as such terms may have been modified), to consider (among other things)
the related Mortgaged Property in its "as is" or then current condition and with
respect to its then current occupancies, all as modified by such party's
reasonable assumptions (consistent with the Servicing Standard) regarding the
possibility and effects of
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future adverse change with respect to the related Mortgaged Property, to
estimate and consider (among other things) future expenses and to estimate and
consider (among other things) the timing of recoveries. In addition, the Master
Servicer or the Special Servicer may update or change its recoverability
determination at any time with respect to any P&I Advance, and the Master
Servicer may obtain from the Special Servicer any analysis, appraisals or market
value estimates or other information in the possession of the Special Servicer
for purposes of determining whether a P&I Advance is a Nonrecoverable P&I
Advance.
(d) The Master Servicer, the Trustee and any Fiscal Agent shall each
be entitled to receive interest at the Reimbursement Rate in effect from time to
time, compounded annually, accrued on the amount of each P&I Advance made
thereby under this Section 4.03 (with its own funds) for so long as such P&I
Advance is outstanding; provided that if the grace period for the delinquent
Monthly Payment as to which a P&I Advance was made under this Section 4.03 has
not elapsed as of the time such P&I Advance was made, then the total interest so
accrued on such P&I Advance prior to the expiration of such grace period, shall
not exceed the amount of Default Charges, if any, Received by the Trust in
connection with the late payment of such delinquent Monthly Payment; and
provided, further, that, in no event shall interest so accrue on any P&I Advance
as to which the corresponding Late Collection was received by the Master
Servicer or a Sub-Servicer on its behalf as of the related Master Servicer
Remittance Date. Interest so accrued on any P&I Advance made under this Section
4.03 shall be payable: (i) first, in accordance with Sections 3.05(a) and 3.25,
out of any Default Charges on deposit in the Custodial Account that were
collected on or in respect of the particular Mortgage Loan or REO Mortgage Loan
as to which the P&I Advance relates (provided that such Default Charges will
only be applied to pay interest accrued on such P&I Advance through the date
that such Default Charges were received); and (ii) then, if and to the extent
that such Default Charges are insufficient to cover such interest, but not
before the related Advance is being reimbursed or has been reimbursed pursuant
to this Agreement, out of general collections on the Mortgage Pool on deposit in
the Custodial Account. The Master Servicer shall, in accordance with Section
3.05(a), reimburse itself, the Trustee or any Fiscal Agent, as applicable, for
any outstanding P&I Advance made thereby under this Section 4.03 as soon as
practicable after funds available for such purpose are deposited in the
applicable Custodial Account. Notwithstanding the foregoing, upon a
determination that a previously made P&I Advance is a Nonrecoverable P&I
Advance, instead of obtaining reimbursement out of general collections on the
Mortgage Pool immediately, any of the Master Servicer, the Trustee or any Fiscal
Agent, as applicable, may, in its sole discretion, elect to obtain reimbursement
for such Nonrecoverable P&I Advance over a period of time (not to exceed 12
months or such longer period of time as is approved in writing by the
Controlling Class Representative) and the unreimbursed portion of such P&I
Advance will accrue interest at the Reimbursement Rate in effect from time to
time. At any time after such a determination to obtain reimbursement over time
in accordance with the preceding sentence, the Master Servicer, the Trustee or
any Fiscal Agent, as applicable, may, in its sole discretion, decide to obtain
reimbursement immediately. The fact that a decision to recover such
Nonrecoverable P&I Advance over time, or not to do so, benefits some Classes of
Certificateholders to the detriment of other Classes shall not constitute a
violation of the Servicing Standard by the Master Servicer or a breach of any
fiduciary duty owed to the Certificateholders by the Trustee or any Fiscal
Agent, or a breach of any other contractual obligation owed to the
Certificateholders by any party to this Agreement.
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SECTION 4.04. Allocations of Realized Losses and Additional Trust Fund
Expenses
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01, the Trustee
shall determine the amount, if any, by which (i) the then aggregate of the Class
Principal Balances of all the Classes of Principal Balance Certificates, exceeds
(ii) the aggregate Stated Principal Balance of the Mortgage Pool that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the respective Class Principal Balances of the various Classes of
the Class B Through T Certificates shall be reduced sequentially, in reverse
alphabetic order of the respective Class designations of such Classes of
Certificates (beginning with the Class T Certificates and ending with the Class
B Certificates), in each case until such excess is eliminated or the applicable
Class Principal Balance has been reduced to zero (whichever occurs first). If,
after the reduction to zero of the respective Class Principal Balances of all
the Classes of Class B Through T Certificates, the amount described in clause
(i) of the second preceding sentence (taking into account such reductions) still
exceeds the amount described in clause (ii) of the second preceding sentence,
then the respective Class Principal Balances of the various Classes of the Class
A Certificates shall be reduced sequentially as follows, in each case to zero if
necessary, until such remaining excess is eliminated: first, the Class Principal
Balance of the Class A-J Certificates shall be reduced; and second, if and to
the extent necessary, the respective Class Principal Balances of the various
Classes of the Senior Class A Certificates shall be reduced, on a pro rata basis
in accordance with the respective outstanding Class Principal Balances thereof.
Any and all such reductions in the Class Principal Balances of the
respective Classes of the Principal Balance Certificates pursuant to this
Section 4.04(a) shall be deemed to constitute allocations of Realized Losses and
Additional Trust Fund Expenses.
(b) If the Class Principal Balance of any Class of Principal Balance
Certificates is reduced on any Distribution Date pursuant to Section 4.04(a),
then the Uncertificated Principal Balance of such Class's Corresponding REMIC II
Regular Interest shall be deemed to have first been reduced on such Distribution
Date by the exact same amount. Any and all such reductions in the Uncertificated
Principal Balances of the respective REMIC II Regular Interests shall be deemed
to constitute allocations of Realized Losses and Additional Trust Fund Expenses.
(c) On each Distribution Date, following the deemed distributions to
be made in respect of the REMIC I Regular Interests pursuant to Section 4.01(m),
the Uncertificated Principal Balance of each REMIC I Regular Interest (after
taking account of such deemed distributions) shall be reduced, if and to the
extent necessary, to equal the Stated Principal Balance of the related Mortgage
Loan or REO Mortgage Loan, as applicable, that will be outstanding immediately
following such Distribution Date. Any and all such reductions in the
Uncertificated Principal Balances of the respective REMIC I Regular Interests
shall be deemed to constitute allocations of Realized Losses and Additional
Trust Fund Expenses.
(d) On each Distribution Date, following any deemed distributions to
be made in respect of the Loan REMIC Regular Interests pursuant to Section
4.01(n), subject to Section 2.06(b), the Uncertificated Principal Balance of
each Loan REMIC Regular Interest (after taking account of such deemed
distributions) shall be reduced to equal the Stated Principal Balance of the
related Early Defeasance Mortgage Loan or any successor REO Mortgage Loan with
respect thereto, as the case may
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be, that will be outstanding immediately following such Distribution Date. Any
such reductions in the Uncertificated Principal Balances of the respective Loan
REMIC Regular Interests shall be deemed to constitute allocations of Realized
Losses and Additional Trust Fund Expenses.
SECTION 4.05. Various Reinstatement Amounts.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01 or 9.01, as
applicable, the Trustee shall determine the amount, if any, by which (i) the
aggregate Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date, exceeds (ii) the then aggregate of
the Class Principal Balances of all the Classes of Principal Balance
Certificates. If such an excess does exist, then the Trustee shall allocate the
Total Principal Reinstatement Amount, if any, for the subject Distribution Date
as follows until it is allocated in full: first, to all of the Classes of the
Senior Class A Certificates, up to, and on a pro rata basis in accordance with,
the respective Loss Reimbursement Amounts, if any, for such Classes of Senior
Class A Certificates with respect to such Distribution Date (minus any amounts
reimbursed in respect of such respective Loss Reimbursement Amounts on the
subject Distribution Date pursuant to Section 4.01(a)); second, to the Class A-J
Certificates, up to any Loss Reimbursement Amount for the Class A-J Certificates
with respect to such Distribution Date (minus any amount reimbursed in respect
of such Loss Reimbursement Amount on the subject Distribution Date pursuant to
Section 4.01(a)); and then to the respective Classes of the Class B Through T
Certificates, sequentially as among such Classes in alphabetic order based on
the respective Class designations thereof (beginning with the Class B
Certificates and ending with the Class T Certificates), in each case up to any
Loss Reimbursement Amount for the applicable Class of Class B Through T
Certificates with respect to such Distribution Date (minus any amount reimbursed
in respect of such Loss Reimbursement Amount on the subject Distribution Date
pursuant to Section 4.01(b)). Any portion of the Total Principal Reinstatement
Amount for any Distribution Date that is allocated to a particular Class of
Principal Balance Certificates shall be: (i) referred to herein as the "Class
Principal Reinstatement Amount" in respect of such Class of Principal Balance
Certificates for such Distribution Date; and (ii) added to the Class Principal
Balance of such Class of Principal Balance Certificates on such Distribution
Date. Notwithstanding anything to the contrary contained herein, the parties
hereby acknowledge that the reinstatement of all or any portion of the Class
Principal Balance of any Class of Principal Balance Certificates on any
Distribution Date shall be a result of the collection of Recovered Amounts,
Default Charges and/or Loss of Value Payments Received by the Trust during the
related Collection Period and the addition of such Recovered Amounts, Default
Charges and/or Loss of Value Payments to the Principal Distribution Amount for
purposes of calculating the Adjusted Principal Distribution Amount for such
Distribution Date.
(b) In connection with the reinstatement of all or any portion of the
Class Principal Balance of any one or more Classes of Principal Balance
Certificates on any Distribution Date, pursuant to Section 4.05(a), the Trustee
shall calculate the amount of lost Distributable Certificate Interest that would
have accrued on the respective Classes of Regular Interest Certificates through
and including the end of the Interest Accrual Period for such Distribution Date
if no reduction to the Class Principal Balance of any Class of Principal Balance
Certificates, pursuant to Section 4.04(a), and no corresponding reduction to the
Uncertificated Principal Balance of any REMIC II Regular Interest(s), pursuant
to Section 4.04(b), had resulted on a prior Distribution Date from the
reimbursement out of general collections of principal on the Mortgage Pool of
the particular Advances (with interest thereon) that relate to the Recovered
Amounts associated with such reinstatement of outstanding principal on the
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subject Distribution Date. Once determined, such lost Distributable Certificate
Interest in respect of any particular Class of Regular Interest Certificates
shall be reinstated and become due and payable on future Distribution Dates as
part of the unpaid Distributable Certificate Interest for such Class of Regular
Interest Certificates from prior Distribution Dates. All such reinstated
Distributable Certificate Interest in respect of any particular Class of Regular
Interest Certificates shall be treated the same as any other unpaid
Distributable Certificate Interest in respect of such Class of Regular Interest
Certificates.
(c) If the Class Principal Balance of any Class of Principal Balance
Certificates is increased on any Distribution Date pursuant to Section 4.05(a),
then the Uncertificated Principal Balance of such Class's Corresponding REMIC II
Regular Interest shall be deemed to have first been increased on such
Distribution Date by the exact same amount.
(d) If any lost Distributable Certificate Interest is reinstated with
respect to any Class of Regular Interest Certificates on any Distribution Date
pursuant to Section 4.05(b), then a corresponding amount of Uncertificated
Distributable Interest shall be reinstated with respect to such Class's
Corresponding REMIC II Regular Interest (or, in the case of the Class X
Certificates, insofar as such lost Distributable Certificate Interest
corresponds to a particular Class X REMIC III Component, a corresponding amount
of Uncertificated Distributable Interest shall be reinstated with respect to
such Class X REMIC III Component's Corresponding REMIC II Regular Interest).
Once reinstated, such lost Uncertificated Distributable Interest in respect of
any particular REMIC II Regular Interest shall become due and payable on future
Distribution Dates as part of the unpaid Uncertificated Distributable Interest
for such REMIC II Regular Interest from prior Distribution Dates. All such
reinstated Uncertificated Distributable Interest in respect of any particular
REMIC II Regular Interest shall be treated the same as any other unpaid
Uncertificated Distributable Interest in respect of such REMIC II Regular
Interest.
SECTION 4.06. Calculations.
The Trustee shall, provided it receives the necessary information from
the Master Servicer and the Special Servicer, be responsible for performing all
calculations necessary in connection with the actual and deemed distributions
and allocations to be made pursuant to Section 4.01 and Article IX, the
allocations of Realized Losses and Additional Trust Fund Expenses to be made
pursuant to Section 4.04 and the reinstatements of principal balance and
interest to be made pursuant to Section 4.05. The Trustee shall calculate the
Available Distribution Amount and the respective portions of the Available
Distribution Amount attributable to each Loan Group for each Distribution Date
and shall allocate such respective amounts among Certificateholders in
accordance with this Agreement, and the Trustee shall have no obligation to
recompute, recalculate or verify any information provided to it by the Special
Servicer or Master Servicer. The calculations by the Trustee of such amounts
shall, in the absence of manifest error, be presumptively deemed to be correct
for all purposes hereunder.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) Subject to Sections 2.05(b) and 2.06(b), the Certificates will be
substantially in the respective forms attached hereto as Exhibits X-0, X-0, X-0,
X-0, X-0 and A-6; 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 Regular Interest Certificates shall initially be held
and transferred through the book-entry facilities of the Depository. The Regular
Interest Certificates will be issuable only in denominations corresponding to
initial Certificate Principal Balances or initial Certificate Notional Amounts,
as the case may be, as of the Closing Date of $10,000 in the case of the Class
A-1, Class A-2, Class A-3, Class A-1A, Class A-J, Class B, Class C, Class D,
Class E and Class F Certificates, $250,000 in the case of the Class X
Certificates, and $250,000 in the case of the remaining Regular Interest
Certificates, and in each such case in integral multiples of $1 in excess
thereof. Subject to Sections 2.05(b) and 2.06(b), the Class R-I, Class R-II,
Class R-III, Class R-LR and Class V Certificates will be issuable in
denominations representing Percentage Interests in the applicable Class of not
less than 10%.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers or signatories of the
Certificate Registrar shall be entitled to all benefits under this Agreement,
subject to the following sentence, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, however, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee is hereby initially appointed (and hereby agrees to act in
accordance with the terms hereof) as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided. The offices of the Trustee responsible for its duties as initial
Certificate Register shall be located, as of the Closing Date, at Xxxxx Xxxxxx
xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention:
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Corporate Trust Services (CMBS)-- TIAA Seasoned Commercial Mortgage Trust
2007-C4. The Certificate Registrar may appoint, by a written instrument
delivered to the Depositor, the Master Servicer, the Special Servicer and (if
the Trustee is not the Certificate Registrar) the Trustee, any other bank or
trust company to act as Certificate Registrar under such conditions as the
predecessor Certificate Registrar may prescribe, provided that the predecessor
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment. If the Trustee resigns
or is removed in accordance with the terms hereof, the successor trustee shall
immediately succeed to its duties as Certificate Registrar. The Depositor, the
Trustee (if it is no longer the Certificate Registrar), the Master Servicer and
the Special Servicer shall have the right to inspect the Certificate Register or
to obtain a copy thereof at all reasonable times, and to rely conclusively upon
a certificate of the Certificate Registrar as to the information set forth in
the Certificate Register.
If three or more Holders make written request to the Trustee, and such
request states that such Holders desire to communicate with other Holders with
respect to their rights under this Agreement or under the Certificates and is
accompanied by a copy of the communication which such Holders propose to
transmit, then the Trustee shall, within 30 days after the receipt of such
request, afford (or cause any other Certificate Registrar to afford) the
requesting Holders access during normal business hours to the most recent list
of Certificateholders held by the Certificate Registrar.
(b) No Transfer of any Non-Registered Certificate or interest therein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of any Definitive Non-Registered Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance of the Non-Registered Certificates or a Transfer of
such Certificate by the Depositor, Xxxxxx Brothers 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 F-1 and a certificate from such Certificateholder's
prospective Transferee substantially in the form attached hereto either as
Exhibit F-2A or, except in the case of a Residual Interest Certificate, as
Exhibit F-2B; or (ii) an Opinion of Counsel satisfactory to the Trustee to the
effect that the prospective Transferee is an Institutional Accredited Investor
or a Qualified Institutional Buyer (or, in the case of Residual Interest
Certificate, to the effect that the prospective Transferee is a Qualified
Institutional Buyer) and such Transfer may be made without registration under
the Securities Act (which Opinion of Counsel shall not be an expense of the
Trust Fund or of the Depositor, the Master Servicer, the Special Servicer, the
Tax Administrator, the Trustee, any Fiscal Agent 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. Residual Interest Certificates may only
be held by Qualified Institutional Buyers, and each other Definitive
Non-Registered Certificate may only be held by Qualified Institutional Buyers
and Institutional Accredited Investors.
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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, Xxxxxx
Brothers 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 F-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 F-2C hereto are, with respect to the subject Transfer, true and
correct. Further, as long as the Class T Certificates are Book-Entry
Certificates, any Certificate Owner desiring to effect a transfer of a Class T
Certificate or any interest therein may not sell or otherwise transfer that
Certificate or any interest therein unless it has provided the Depositor with
prior written notice of such transfer (together with a copy of the certificate
required pursuant to clause (i) above, executed by the proposed transferee).
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
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such Certificate Owner's prospective Transferee a certificate substantially in
the form set forth in Exhibit F-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 F-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.
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None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Non-Registered Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the Transfer of any
Non-Registered Certificate or interest therein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of any Non-Registered Certificate or interest therein shall, and does
hereby agree to, indemnify the Depositor, the Underwriters, the Trustee, any
Fiscal Agent, the Master Servicer, the Special Servicer, the Tax Administrator,
the Certificate Registrar and their respective Affiliates against any liability
that may result if such Transfer is not exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
(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 (each, a "Plan"), or (ii) to any Person who is
directly or indirectly purchasing such Certificate or interest therein on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan, if the
purchase and holding of such Certificate or interest therein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. 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, Xxxxxx Brothers 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 a Residual Interest Certificate or, if
issued hereunder taking into account Section 2.05(b), a Class V Certificate, a
certification to the effect that the purchase and holding of such Certificate or
interest therein by such prospective Transferee is exempt from the prohibited
transaction provisions of Sections 406(a) and (b) and 407 of ERISA and the
excise taxes imposed on such prohibited transactions by Sections 4975(a) and (b)
of the Code, by reason of Sections I and III of Prohibited Transaction Class
Exemption 95-60; or (iii) alternatively, but only in the case of a
Non-Registered Certificate that is an Investment Grade Certificate (other than,
if applicable, a Residual Interest Certificate or, if issued hereunder taking
into account Section 2.05(b), a Class V Certificate) that is being acquired by
or on behalf of a Plan in reliance on the Prohibited Transaction 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, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
any Sub-Servicer, any Exemption-Favored Party or any Mortgagor with respect to
Mortgage Loans constituting more than 5% of the aggregate unamortized principal
balance of all the Mortgage Loans determined as of the Closing Date, or by any
Affiliate of such Person, and (Z) agrees that it will obtain from each of its
Transferees that are Plans a written representation that such Transferee, if a
Plan, satisfied the requirements of the immediately preceding clauses (iii)(X)
and (iii)(Y), together with a
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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 (iii)(X) and (iii)(Y); or (iv)
alternatively, 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 G-1 (in
the case of Definitive Non-Registered Certificates) and Exhibit G-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(a) and (b) and 407 of ERISA and the
excise taxes imposed on such prohibited transactions by Sections 4975(a) and (b)
of the Code.
(d) (i) Each Person who has or who acquires any Ownership Interest in
a Residual Interest Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trustee under
clause (ii)(A) below to deliver payments to a Person other than such Person
and to have irrevocably authorized the Trustee under clause (ii)(B) below
to negotiate the terms of any mandatory disposition and to execute all
instruments of Transfer and to do all other things necessary in connection
with any such disposition. The rights of each Person acquiring any
Ownership Interest in a Residual Interest Certificate are expressly subject
to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Interest Certificate shall be a Permitted
Transferee and shall promptly notify the Tax Administrator
and the Trustee of any change or impending change in its
status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Interest Certificate, the Certificate
Registrar shall require delivery to it, and shall not
register the Transfer of any Residual Interest Certificate
until its receipt, of an affidavit and agreement
substantially in the form attached hereto as Exhibit H-1 (a
"Transfer Affidavit and Agreement"), from the proposed
Transferee, representing and warranting, among other things,
that such Transferee is a Permitted Transferee, that it is
not acquiring its Ownership Interest in the Residual
Interest Certificate that is the subject of the proposed
Transfer as a nominee, trustee or agent for any Person that
is not a Permitted Transferee, that for so long as it
retains its Ownership Interest in a Residual Interest
Certificate it will
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endeavor to remain a Permitted Transferee, and that it has
reviewed the provisions of this Section 5.02(d) and agrees
to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above,
if a Responsible Officer of either the Trustee or the
Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an
Ownership Interest in a Residual Interest Certificate to
such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Residual Interest Certificate shall agree (1) to require a
Transfer Affidavit and Agreement from any prospective
Transferee to whom such Person attempts to Transfer its
Ownership Interest in such Residual Interest Certificate and
(2) not to Transfer its Ownership Interest in such Residual
Interest Certificate unless it provides to the Certificate
Registrar a certificate substantially in the form attached
hereto as Exhibit H-2 stating that, among other things, it
has no actual knowledge that such prospective Transferee is
not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Interest Certificate, by purchasing such Ownership
Interest, agrees to give the Tax Administrator and the
Trustee written notice that it is a "pass-through interest
holder" within the meaning of temporary Treasury regulations
section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Residual Interest Certificate, if it
is, or is holding an Ownership Interest in a Residual
Interest Certificate on behalf of, a "pass-through interest
holder".
(ii) (A) If any purported Transferee shall become a Holder of a
Residual Interest Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Holder of such Residual Interest Certificate
that was in compliance with the provisions of this Section 5.02(d) shall be
restored, to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Interest Certificate. None of the Depositor, the Trustee or the Certificate
Registrar shall be under any liability to any Person for any registration of
Transfer of a Residual Interest Certificate that is in fact not permitted by
this Section 5.02(d) or for making any payments due on such Certificate to the
Holder thereof or for taking any other action with respect to such Holder under
the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Residual
Interest Certificate in violation of the restrictions in this Section
5.02(d), then, to the extent that retroactive restoration of the
rights of the preceding Holder of such Residual Interest Certificate
as described in clause (ii)(A) above shall be invalid, illegal or
unenforceable, the Trustee shall have the right but not the
obligation, to cause the Transfer of such Residual Interest
Certificate to a Permitted Transferee selected by the Trustee on such
terms as the Trustee may choose, and the Trustee
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shall not be liable to any Person having an Ownership Interest in such
Residual Interest Certificate as a result of the Trustee's exercise of
such discretion. Such purported Transferee shall promptly endorse and
deliver such Residual Interest Certificate in accordance with the
instructions of the Trustee. Such Permitted Transferee may be the
Trustee itself or any Affiliate of the Trustee.
(iii) The Tax Administrator shall make available to the IRS and to
those Persons specified by the REMIC Provisions all information furnished to it
by the other parties hereto necessary to compute any tax imposed (A) as a result
of the Transfer of an Ownership Interest in a Residual Interest Certificate to
any Person who is a Disqualified Organization, including the information
described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5)
with respect to the "excess inclusions" of such Residual Interest Certificate
and (B) as a result of any regulated investment company, real estate investment
trust, common trust fund, partnership, trust, estate or organization described
in Section 1381 of the Code that holds an Ownership Interest in a Residual
Interest Certificate having as among its record holders at any time any Person
which is a Disqualified Organization, and each of the other parties hereto shall
furnish to the Tax Administrator all information in its possession necessary for
the Tax Administrator to discharge such obligation. The Person holding such
Ownership Interest shall be responsible for the reasonable compensation of the
Tax Administrator for providing information thereto pursuant to this subsection
(d)(iii) and Section 10.01(h)(i).
(iv) The provisions of this Section 5.02(d) set forth prior to this
clause (iv) may be modified, added to or eliminated, provided that there shall
have been delivered to the Trustee and the Tax Administrator the following:
(A) written confirmation from each Rating Agency to the effect that
the modification of, addition to or elimination of such
provisions will not cause an Adverse Rating Event with respect to
any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the
Trustee and the Tax Administrator, obtained at the expense of the
party seeking such modification of, addition to or elimination of
such provisions (but in no event at the expense of the Trustee,
the Tax Administrator or the Trust), to the effect that doing so
will not (1) cause any REMIC Pool to cease to qualify as a REMIC
or be subject to an entity-level tax caused by the Transfer of
any Residual Interest Certificate to a Person which is not a
Permitted Transferee or (2) cause a Person other than the
prospective Transferee to be subject to a REMIC-related tax
caused by the Transfer of a Residual Interest Certificate to a
Person that is not a Permitted Transferee.
(e) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of an
interest in a Book-Entry Non-Registered Certificate, to the Certificate Owner
that is transferring such interest) a certification to the effect that, and such
other evidence as may be reasonably required by the Trustee (or such Certificate
Owner) to confirm that, it has (i) sole
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investment discretion with respect to each such account and (ii) full power to
make the applicable foregoing acknowledgments, representations, warranties,
certifications and agreements with respect to each such account as set forth in
subsections (b), (c) and/or (d), as appropriate, of this Section 5.02.
(f) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class evidencing a like aggregate Percentage Interest
in such Class.
(g) At the option of any Holder, its Certificates may be exchanged for
other Certificates of authorized denominations of the same Class evidencing a
like aggregate Percentage Interest in such Class upon surrender of the
Certificates to be exchanged at the offices of the Certificate Registrar
maintained for such purpose. Whenever any Certificates are so surrendered for
exchange, the Certificate Registrar shall execute and the Authenticating Agent
shall authenticate and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(h) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(i) No service charge shall be imposed for any transfer or exchange of
Certificates, but the Trustee or Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
(j) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
SECTION 5.03. Book-Entry Certificates.
(a) Each Class of Regular Interest Certificates shall initially be
issued as one or more Certificates registered in the name of the Depository or
its nominee and, except as provided in Section 5.02(b) and Section 5.03(c), 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 5.02(b) and
Section 5.03(c), 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 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
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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 Servicer, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to a Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor notifies the Depository of its intent to
terminate the book-entry system through the Depository with respect to a Class
of Book-Entry Certificates and (in the event applicable law and/or the
Depository's procedures require that the Depository Participants holding
Ownership Interests in such Class of Book-Entry Certificates submit a withdrawal
request to the Depository in order to so terminate the book-entry system) the
Depositor additionally notifies those Depository Participants and those
Depository Participants submit a withdrawal request with respect to such
termination, then the Certificate Registrar shall notify all affected
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of Definitive Certificates to such Certificate Owners
requesting the same.
Upon surrender to the Certificate Registrar of the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, the Definitive Certificates in respect of such Class to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar shall
be liable for any delay in delivery of such instructions, and each of them may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates for purposes of evidencing
ownership of any Class of Registered Certificates, the registered holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
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(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 Subordinate
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 Pool or the Grantor
Trust (if created hereunder taking into account Section 2.05(b)), as applicable,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the Certificate
Registrar and any agent of any of them may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 4.01 and for all other purposes
whatsoever and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any agent of any of them shall be
affected by notice to the contrary.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER
AND THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special
Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
SECTION 6.02. Continued Qualification and Compliance of Master
Servicer; Merger, Consolidation or Conversion of Depositor, Master Servicer or
Special Servicer.
Subject to the following paragraph, the Depositor, the Master Servicer
and the Special Servicer shall each keep in full effect its existence, rights
and franchises as a legal entity under the laws of the jurisdiction of its
organization, and each will obtain and preserve its qualification to do business
as a foreign entity in, and will otherwise remain in compliance with the laws
of, each jurisdiction in which such qualification and compliance is or shall be
necessary to protect the validity and enforceability of this Agreement, the
Certificates or any of the Mortgage Loans and to perform its respective duties
under this Agreement.
Each of the Depositor, the Master Servicer and the Special Servicer
may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets (which, in the case of the Master Servicer or
the Special Servicer, may be limited to all or substantially all of its assets
related to commercial mortgage loan servicing) to any Person, in which case any
Person resulting from any merger or consolidation to which the Depositor, the
Master Servicer or the Special Servicer shall be a party, or any Person
succeeding to the business (which, in the case of the Master Servicer or the
Special Servicer, may be limited to the commercial mortgage loan servicing
business) of the Depositor, the Master Servicer or the Special Servicer, shall
be the successor of the Depositor, the Master Servicer or the Special Servicer,
as the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of the Master Servicer or the Special
Servicer unless (i) as confirmed (at the expense of such successor or surviving
Person) in writing by each of the Rating Agencies, such succession will not
result in an Adverse Rating Event with respect to any Class of Certificates
rated by such rating agency, and (ii) such successor or surviving Person makes
the applicable representations and warranties set forth in Section 3.23 (in the
case of a successor or surviving Person to the Master Servicer) or Section 3.24
(in the case of a successor or surviving Person to the Special Servicer), as
applicable. The successor or surviving Person shall be responsible for the cost
of obtaining the rating confirmations contemplated by clause (i) of the proviso
to the preceding sentence.
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SECTION 6.03. Limitation on Liability of Depositor, Master Servicer
and Special Servicer.
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any liability to the Trust Fund, the Trustee or the
Certificateholders for any action taken, or not taken, in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer or the Special
Servicer against any liability to the Trust Fund, the Trustee or the
Certificateholders for the breach of a representation or warranty made herein by
such party, or against any expense or liability specifically required to be
borne by such party without right of reimbursement pursuant to the terms hereof,
or against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of its obligations or
duties hereunder or negligent disregard of such obligations or duties. The
Depositor, the Master Servicer, the Special Servicer and any director, manager,
member, officer, employee or agent of the Depositor, the Master Servicer or the
Special Servicer may rely in good faith on any document of any kind which, prima
facie, is properly executed and submitted by any Person respecting any matters
arising hereunder. The Depositor, the Master Servicer, the Special Servicer and
any director, manager, member, officer, employee or agent of the Depositor, the
Master Servicer or the Special Servicer shall be indemnified and held harmless
by the Trust Fund out of the Custodial Account against any loss, liability or
reasonable expense (including reasonable legal fees and expenses) incurred in
connection with (a) any legal action or claim relating to this Agreement or the
Certificates (including in connection with the dissemination of information and
reports as contemplated by this Agreement) or (b) any mediation and/or
arbitration, pursuant to Section 5(i) of the Mortgage Loan Purchase Agreement,
relating to this Agreement or the Certificates, other than, in any such case,
any such loss, liability or expense: (i) specifically required to be borne by
the party seeking indemnification, without right of reimbursement pursuant to
the terms hereof; (ii) which constitutes a Servicing Advance that is otherwise
reimbursable hereunder; (iii) incurred in connection with any legal action,
claim, mediation or arbitration against the party seeking indemnification,
resulting from any breach on the part of that party of a representation or
warranty made herein; or (iv) incurred in connection with any legal action,
claim, mediation or arbitration against the party seeking indemnification,
resulting from any willful misfeasance, bad faith or negligence on the part of
that party in the performance of its obligations or duties hereunder or
negligent disregard of such obligations or duties. None of the Depositor, the
Master Servicer or the Special Servicer shall be under any obligation to appear
in, prosecute or defend any legal action, mediation or arbitration, unless such
action, mediation or arbitration, as the case may be, is related to its
respective duties under this Agreement and either (i) it is specifically
required hereunder to bear the costs of such action, mediation or arbitration,
as the case may be, or (ii) such action, mediation or arbitration, as the case
may be, will not, in its reasonable and good faith judgment, involve it in any
ultimate expense or liability for which it would not be reimbursed hereunder.
Notwithstanding the foregoing, subject to Section 5(i) of the Mortgage Loan
Purchase Agreement, the Depositor, the Master Servicer or the Special Servicer
may in its discretion undertake any legal action which it may deem necessary or
desirable with respect to the enforcement and/or protection of the rights and
duties of the parties hereto and the interests of the Certificateholders (as a
collective whole). In such event, the legal expenses and costs of such action,
and any liability resulting therefrom, shall be expenses, costs and liabilities
of the Trust Fund, and the Depositor, the Master Servicer and the Special
Servicer shall be entitled to be reimbursed therefor from the Custodial Account
as provided in Section 3.05(a). In no event shall the Master Servicer or the
Special Servicer be liable or responsible for any action taken or omitted to be
taken by the other of them (unless they are the same Person or Affiliates) or
for any action
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taken or omitted to be taken by the Depositor, the Trustee or any
Certificateholder (unless they are the same Person or Affiliates).
SECTION 6.04. Resignation of Master Servicer and the Special Servicer.
(a) The Master Servicer and, subject to Section 6.09, the Special
Servicer may each resign from the obligations and duties hereby imposed on it,
upon a determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the Master
Servicer's or Special Servicer's resignation to be effective immediately, and
the Opinion of Counsel delivered pursuant to the prior sentence so states, no
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
in accordance with Section 6.09 or Section 7.02 hereof. The Master Servicer and,
subject to the rights of the Controlling Class under Section 6.09 to appoint a
successor special servicer, the Special Servicer shall each have the right to
resign at any other time, provided that (i) a willing successor thereto
reasonably acceptable to the Depositor has been found (provided that if the
Depositor has not responded to a request for consent to a successor within 15
days, such successor shall be deemed approved thereby), (ii) each Rating Agency
confirms in writing (at the expense of the resigning party) that the resignation
and the successor's appointment will not result in an Adverse Rating Event with
respect to any Class of Certificates rated by such Rating Agency, (iii) the
resigning party pays all costs and expenses in connection with such resignation
and the resulting transfer of servicing, and (iv) the successor accepts
appointment prior to the effectiveness of such resignation and agrees in writing
to be bound by the terms and conditions of this Agreement. Neither the Master
Servicer nor the Special Servicer shall be permitted to resign except as
contemplated above in this Section 6.04(a).
(b) Consistent with Section 6.04(a), neither the Master Servicer nor
the Special Servicer shall, except as expressly provided herein, assign or
transfer any of its rights, benefits or privileges hereunder to any other Person
or, except as provided in Sections 3.22 and 4.07, delegate to or subcontract
with, or authorize or appoint any other Person to perform any of the duties,
covenants or obligations to be performed by it hereunder. If, pursuant to any
provision hereof, the duties of the Master Servicer or the Special Servicer are
transferred to a successor thereto, the Master Servicing Fee, the Special
Servicing Fee, any Workout Fee (except as expressly contemplated by Section
3.11(c)) and/or any Liquidation Fee, as applicable, that accrues or otherwise
becomes payable 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 the Master
Servicer and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor, each Underwriter and the Trustee, upon reasonable notice, during
normal business hours access to all records maintained thereby in respect of its
rights and obligations hereunder. Upon reasonable request, the Master Servicer
and the Special Servicer shall each furnish the Depositor, each Underwriter and
the
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Trustee with its most recent publicly available financial statements (or, if not
available, the most recent publicly available audited annual financial
statements of its corporate parent, on a consolidated basis) and such other
non-proprietary information as the Master Servicer or the Special Servicer, as
the case may be, shall determine in its sole and absolute discretion as it
possesses, which is relevant to the performance of its duties hereunder and
which it is not prohibited by applicable law or contract from disclosing. The
Depositor may, but is not obligated to, enforce the obligations of the Master
Servicer and the Special Servicer hereunder and may, but is not obligated to,
perform, or cause a designee to perform, any defaulted obligation of the Master
Servicer or Special Servicer hereunder or exercise the rights of the Master
Servicer and the Special Servicer hereunder; provided, however, that neither the
Master Servicer nor the Special Servicer shall be relieved of any of its
obligations hereunder by virtue of such performance by the Depositor or its
designee and, provided, further, that the Depositor may not exercise any right
pursuant to Section 7.01 to terminate the Master Servicer or the Special
Servicer as a party to this Agreement. The Depositor shall not have any
responsibility or liability for any action or failure to act by the Master
Servicer or the Special Servicer and is not obligated to supervise the
performance of the Master Servicer or the Special Servicer under this Agreement
or otherwise.
SECTION 6.06. Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer
shall each furnish such reports, certifications and information as are
reasonably requested by the Trustee in order to enable it to perform its duties
hereunder.
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each furnish
such reports, certifications and information as are reasonably requested by the
Master Servicer in order to enable it to perform its duties hereunder.
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with
Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each furnish
such reports, certifications and information as are reasonably requested by the
Special Servicer in order to enable it to perform its duties hereunder.
SECTION 6.09. Designation of Special Servicer and Controlling Class
Representative; Replacement of Special Servicer by the Controlling Class and
Others.
(a) The Majority Controlling Class Certificateholder(s) may at any
time and from time to time designate a Person to serve as Special Servicer
hereunder and to replace any existing Special Servicer without cause or any
Special Servicer that has resigned or otherwise ceased to serve (including in
connection with a termination pursuant to Section 7.01) as Special Servicer.
Such Holder or Holders shall so designate a Person to serve as replacement
Special Servicer by the delivery to the Trustee, the Depositor, the Master
Servicer 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
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Agencies an executed Notice and Acknowledgment in the form attached hereto as
Exhibit I-1. If such Holders 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, subject to removal by the Majority Controlling Class
Certificateholder(s) and appointment of a successor thereto pursuant to the
terms of this Section 6.09. Any designated Person (whether designated by Holders
of the Controlling Class or by the Trustee) shall become the Special Servicer on
the date as of which the Trustee shall have received all of the following: (1)
written confirmation from each Rating Agency (obtained at the expense of the
outgoing Special Servicer, in connection with a resignation or a termination for
cause, including pursuant to Section 7.01, and otherwise at the expense of the
Controlling Class Certificateholders contemplated by the next paragraph) that
the appointment of such Person will not result in an Adverse Rating Event with
respect to any Class of Certificates rated by such rating agency; (2) an
Acknowledgment of Proposed Special Servicer in the form attached hereto as
Exhibit I-2, executed by the designated Person; and (3) an Opinion of Counsel
(at the expense of the Person designated to become the Special Servicer) to the
effect that, upon the execution and delivery of the Acknowledgment of Proposed
Special Servicer, the designated Person shall be bound by the terms of this
Agreement and, subject to customary limitations, that this Agreement shall be
enforceable against the designated Person in accordance with its terms. Any
existing Special Servicer shall be deemed to have resigned simultaneously with
such designated Person's becoming the Special Servicer hereunder; provided,
however, that (i) the outgoing Special Servicer shall continue to be entitled to
receive all amounts accrued or owing to it under this Agreement on or prior to
the effective date of such resignation, whether in respect of Servicing Advances
or otherwise, (ii) if the outgoing Special Servicer was terminated without
cause, it shall be entitled to a portion of certain Workout Fees thereafter
payable with respect to the Corrected Mortgage Loans or otherwise (but only if
and to the extent permitted by Section 3.11(c)) and (iii) the outgoing Special
Servicer shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such resignation. The outgoing Special Servicer shall
cooperate with the Trustee and the replacement Special Servicer in effecting the
termination of the outgoing Special Servicer's responsibilities and rights
hereunder, including the transfer within two (2) Business Days to the
replacement Special Servicer for administration by it of all cash amounts that
shall at the time be or should have been credited by the outgoing Special
Servicer to the Custodial Account, a Servicing Account, a Reserve Account or the
REO Account or should have been delivered to the Master Servicer or that are
thereafter received with respect to Specially Serviced Mortgage Loans and REO
Properties. The Trustee shall notify the other parties hereto and the
Certificateholders of any termination of the Special Servicer and appointment of
a new Special Servicer in accordance with this Section 6.09(a).
Any out-of-pocket costs and expenses incurred in connection with the
removal (without cause) of a Special Servicer pursuant to this Section 6.09(a)
and its replacement by a Person designated by the Majority Controlling Class
Certificateholder(s), that are not paid by the replacement Special Servicer
shall be paid by such Holder or Holders.
(b) The Majority Controlling Class Certificateholder(s) may also
select a representative, which shall not be required to be a Certificateholder
(the "Controlling Class Representative"), from whom the Special Servicer will
seek advice and approval and take direction under certain circumstances, as
described herein, and shall promptly notify the Trustee, the Master Servicer and
the Special Servicer of that selection. Notwithstanding the foregoing, until a
Controlling Class Representative is so selected in accordance with the preceding
sentence, or after receipt of a notice from the Majority Controlling Class
Certificateholder(s) that a Controlling Class Representative is no
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longer designated, the Certificateholder (or, if the Certificates of the
Controlling Class are Book-Entry Certificates, the Certificate Owner), if any,
that beneficially owns more than 50% of the Class Principal Balance of the
Controlling Class of Certificates will be deemed to be the Controlling Class
Representative. The Controlling Class Representative shall be required to keep
all non-public information received by it in such capacity pursuant to this
Agreement confidential and, upon its designation as such, the Controlling Class
Representative (except with respect to the initial Controlling Class
Representative as provided in the following sentence) shall deliver to the
Trustee, the Master Servicer and the Special Servicer a written confirmation to
such effect, in the form of Exhibit O attached hereto (the "Controlling Class
Representative Confirmation"). The Controlling Class Representative Confirmation
shall also include confirmation of its acceptance of its appointment as
Controlling Class Representative, 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)). No appointment of any
Person as a Controlling Class Representative shall be effective until such
Person provides the Trustee and the Master Servicer with a Controlling Class
Representative Confirmation; provided that, upon the acquisition by Centerline
High Yield CMBS Fund III LLC or an affiliate thereof of all the Class T
Certificates, Centerline REIT Inc. shall be the initial Controlling Class
Representative without the need for delivery of a Controlling Class
Representative Confirmation, and by its acceptance of such designation, shall be
deemed to have agreed to keep all non-public information received by it in such
capacity from time to time pursuant to this Agreement confidential, subject to
applicable law.
(c) Notwithstanding the foregoing, if the Controlling Class of
Certificates consists or consist, as applicable, of Book-Entry Certificates,
then the rights of the Holders of the Certificates of the Controlling Class set
forth in Section 6.09(a) or Section 6.09(b) above may be exercised directly by
the relevant Certificate Owner(s), provided that the identity of such
Certificate Owner(s) has been confirmed to the Trustee to its reasonable
satisfaction. If the Certificates of the Controlling Class consist of Book-Entry
Certificates, then any costs or expenses incurred in connection with determining
the identity of the Controlling Class Representative shall be paid by the Trust
or, if paid by the Trustee, reimbursed to the Trustee out of the Trust Fund (in
any event, out of amounts otherwise payable with respect to the Controlling
Class of Certificates).
SECTION 6.10. Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer, the Special Servicer or any Affiliate of either
of them may become the Holder of (or, in the case of a Book-Entry Certificate,
Certificate Owner with respect to) any Certificate with (except as otherwise set
forth in the definition of "Certificateholder") the same rights it would have if
it were not the Master Servicer or the Special Servicer or an Affiliate thereof.
If, at any time during which the Master Servicer or the Special Servicer or an
Affiliate of the Master Servicer or the Special Servicer is the Holder of (or,
in the case of a Book-Entry Certificate, Certificate Owner with respect to) any
Certificate, the Master Servicer or the Special Servicer proposes to take action
(including for this purpose, omitting to take action) that is not expressly
prohibited by the terms hereof and would not, in the Master Servicer's or the
Special Servicer's reasonable, good faith judgment, violate the Servicing
Standard, but that, if taken, might nonetheless, in the Master Servicer's or the
Special Servicer's good faith judgment, be considered by other Persons to
violate the Servicing Standard, then the Master Servicer or the Special Servicer
may (but need not) seek the approval of the Certificateholders to such action by
delivering to the Trustee a written notice that (a) states that it is delivered
pursuant to this Section 6.10, (b) identifies the Percentage Interest in each
Class of Certificates
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beneficially owned by the Master Servicer or an Affiliate thereof or the Special
Servicer or an Affiliate thereof, as appropriate, and (c) describes in
reasonable detail the action that the Master Servicer or the Special Servicer
proposes to take. The Trustee, upon receipt of such notice, shall forward it to
the Certificateholders (other than the Master Servicer and its Affiliates or the
Special Servicer and its Affiliates, as appropriate), together with such
instructions for response as the Trustee shall reasonably determine. If at any
time Certificateholders holding greater than 50% of the Voting Rights of all
Certificateholders (calculated without regard to the Certificates beneficially
owned by the Master Servicer or its Affiliates or the Special Servicer or its
Affiliates, as appropriate) shall have failed to object in writing to the
proposal described in the written notice, and if the Master Servicer or the
Special Servicer shall act as proposed in the written notice within 30 days,
such action shall be deemed to comply with, but not modify, the Servicing
Standard. The Trustee shall be entitled to reimbursement from the Master
Servicer or the Special Servicer, as applicable, for the reasonable expenses of
the Trustee incurred pursuant to this paragraph. It is not the intent of the
foregoing provision that the Master Servicer or the Special Servicer be
permitted to invoke the procedure set forth herein with respect to routine
servicing matters arising hereunder, but rather only in the case of unusual
circumstances.
SECTION 6.11. Certain Powers of the Controlling Class Representative.
(a) Each of the Master Servicer and the Special Servicer shall notify
(in writing) the Controlling Class Representative of its intention to take any
Specially Designated Servicing Action with respect to any Mortgage Loan and
shall provide the Controlling Class Representative with all reasonably requested
information with respect thereto (together with such servicer's analysis and
recommendation with respect to the subject Specially Designated Servicing
Action). Subject to Section 6.11(b) and any restrictions imposed by any related
Co-Lender Agreement, the Controlling Class Representative will be entitled to
advise the Special Servicer (in the event the Special Servicer is authorized
under this Agreement to take the subject action) or the Master Servicer (in the
event the Master Servicer is authorized under this Agreement to take the subject
action), as applicable, with respect to any and all Specially Designated
Servicing Actions relating to the Mortgage Loans and any REO Properties; and,
further subject to Section 6.11(b) and the penultimate paragraph of this Section
6.11(a), neither the Master Servicer nor the Special Servicer will be permitted
to take (or, in the case of the Special Servicer, if and to the extent
applicable, consent to the Master Servicer's taking) any Specially Designated
Servicing Action with respect to any Mortgage Loan or REO Property if the
Controlling Class Representative has objected in writing within ten (10)
Business Days (or, in the case of the Specially Designated Servicing Actions set
forth in clause (iii), clause (viii), clause (x) and, in the case of Performing
Mortgage Loans, clause (ix), of the definition of "Specially Designated
Servicing Action," within five (5) Business Days) of having been notified in
writing thereof and having been provided with all information that the
Controlling Class Representative has reasonably requested with respect thereto
promptly following its receipt of the subject notice (it being understood and
agreed that if such written objection has not been received by the Special
Servicer or the Master Servicer, as applicable, within such ten (10) Business
Day (or five (5) Business Day, as applicable) period, then the Controlling Class
Representative will be deemed to have approved the taking of the subject
action); provided that, if the Special Servicer or the Master Servicer, as
applicable, determines that failure to take such action would violate the
Servicing Standard, then the Master Servicer or the Special Servicer, as the
case may be, may take (or, in the case of the Special Servicer, if and to the
extent applicable, consent to the Master Servicer's taking) any such action
without waiting for the Controlling Class Representative's response. Any right
to take any action, grant or withhold any consent or otherwise exercise any
right, election or
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remedy afforded the Controlling Class Representative under this Agreement may,
unless otherwise expressly provided herein to the contrary, be affirmatively
waived by the Controlling Class Representative by written notice given to the
Trustee, Special Servicer or Master Servicer, as applicable. Upon delivery of
any such notice of waiver given by the Controlling Class Representative, any
time period (exclusive or otherwise) afforded the Controlling Class
Representative to exercise any such right, make any such election or grant or
withhold any such consent shall thereupon be deemed to have expired with the
same force and effect as if the specific time period set forth in this Agreement
applicable thereto had itself expired.
In addition, subject to Section 6.11(b) and any restrictions imposed
by any related Co-Lender Agreement, the Controlling Class Representative may
direct the Special Servicer to take, or to refrain from taking, any actions with
respect to the servicing and/or administration of a Specially Serviced Mortgage
Loan or an REO Property as the Controlling Class Representative may deem
advisable or as to which provision is otherwise made herein. Upon reasonable
request, the Special Servicer shall provide the Controlling Class Representative
with any information in such servicer's possession with respect to such matters,
including its reasons for determining to take a proposed action; provided that
such information shall also be provided, in a written format, to the Trustee,
who shall make it available for review pursuant to Section 8.14(b).
The Master Servicer (with respect to Performing Mortgage Loans) or the
Special Servicer (with respect to Specially Serviced Mortgage Loans), as
applicable, shall notify the Controlling Class Representative of any release or
substitution of collateral for a Mortgage Loan even if such release or
substitution is required by the terms of such Mortgage Loan.
In addition, no later than 45 days after a Mortgage Loan becomes a
Specially Serviced Mortgage Loan and subject to the remaining provisions of this
Section 6.11, the Special Servicer shall prepare and deliver to the Controlling
Class Representative 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) a 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 related 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
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(vi) such other information as the Special Servicer deems
relevant in light of the Servicing Standard.
Subject to Section 6.11(b), the Controlling Class Representative shall
have 10 days following the initial delivery of any such Asset Status Report to
object to the Special Servicer's recommended action with respect to the subject
Specially Serviced Mortgage Loan; provided that if 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 the Controlling Class Representative's response. If the Controlling
Class Representative timely objects to any such recommended action, the Special
Servicer shall, within 10 Business Days and in a manner consistent with the
Servicing Standard, deliver to the Controlling Class Representative a revised
Asset Status Report. The Controlling Class Representative shall have five
Business Days following the delivery of the revised Asset Status Report to
object to the Special Servicer's recommended action with respect to the subject
Specially Serviced Mortgage Loan, in which case, the Special Servicer shall,
within a time period and in a manner consistent with the Servicing Standard,
deliver a further revised Asset Status Report. The Controlling Class
Representative shall not have the right to object to any such further revised
Asset Status Report. If the Controlling Class Representative does not object to
the Special Servicer's recommended action set forth in any Asset Status Report
within the time periods specified above, the Controlling Class Representative
will be deemed to have approved of such Asset Status Report in its entirety.
Subject to Section 6.11(b), the Special Servicer shall not take any
action inconsistent with any Asset Status Report approved or deemed approved by
the Controlling Class Representative pursuant to the terms and conditions
hereof, unless such action would be required in order to act in accordance with
the Servicing Standard; provided that, subject to the remaining provisions of
this Section 6.11, the Special Servicer may, from time to time, modify any Asset
Status Report it has previously delivered and implement such report.
(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection from or by the Controlling Class Representative with
respect to any Mortgage Loan or REO Property, as contemplated by Section 6.11(a)
or any other provision of this Agreement, may (and the Special Servicer and the
Master Servicer shall each ignore and act without regard to any such advice,
direction or objection that such servicer has determined, in its reasonable,
good faith judgment, would) (i) require or cause the Master Servicer or the
Special Servicer, as applicable, to violate any provision of this Agreement
(exclusive of Section 6.11(a)) (including such servicer's obligation to act in
accordance with the Servicing Standard), the related loan documents (including
any applicable co-lender and/or intercreditor agreements) or applicable law
(including the REMIC Provisions), (ii) expose the Master Servicer, the Special
Servicer, the Depositor, the Trust Fund or the Trustee or the officers and the
directors of each party to claim, suit or liability or (iii) materially expand
the scope of the Master Servicer's the Trustee's or the Special Servicer's
responsibilities under this Agreement. Furthermore, the Special Servicer shall
not be obligated to seek approval from the Controlling Class Representative,
pursuant to Section 6.11(a), for any actions to be taken by the Special Servicer
with respect to the workout or liquidation of any particular Specially Serviced
Mortgage Loan if:
(i) the Special Servicer has, as provided in 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 workout or
liquidation of such Specially Serviced Mortgage Loan; and
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(ii) for 60 days following the first such notice, the Controlling
Class Representative has objected to all of those proposed actions and has
failed to suggest any alternative actions that the Special Servicer
considers to be consistent with the Servicing Standard.
(c) The Controlling Class Representative will have no liability to the
Certificateholders for any action taken, or for refraining from the taking of
any action, pursuant to this Agreement (whether pursuant to this Section 6.11 or
otherwise), or for errors in judgment; provided, however, that the Controlling
Class Representative will not be protected against any liability to any
Controlling Class Certificateholder that would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of negligent disregard of obligations or duties. Each Certificateholder
acknowledges and agrees, by its acceptance of its Certificates, that: (i) the
Controlling Class Representative may, and is permitted hereunder to, have
special relationships and interests that conflict with those of Holders of one
or more Classes of Certificates; (ii) the Controlling Class Representative may,
and is permitted hereunder to, act solely in the interests of the Holders of the
Controlling Class of Certificates; (iii) the Controlling Class Representative
does not have any duties or liability to the Holders of any Class of
Certificates other than the Controlling Class of Certificates; (iv) the
Controlling Class Representative may, and is permitted hereunder to, take
actions that favor interests of the Holders of the Controlling Class of
Certificates over the interests of the Holders of one or more other Classes of
Certificates; (v) the Controlling Class Representative shall not be deemed to
have been negligent or reckless, or to have acted in bad faith or engaged in
willful misconduct, by reason of its having acted solely in the interests of the
Holders of the Controlling Class of Certificates; and (vi) the Controlling Class
Representative shall have no liability whatsoever for having acted solely in the
interests of the Holders of the Controlling Class of Certificates, and no
Certificateholder may take any action whatsoever against the Controlling Class
Representative, any Holder of the Controlling Class of Certificates or any
director, officer, employee, agent or principal thereof for having so acted.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into the
Custodial Account, any amount required to be so deposited by it under this
Agreement, which failure continues unremedied for one (1) Business Day
following the date on which a deposit was first required to be made; or
(ii) any failure by the Special Servicer to deposit into the REO
Account or to deposit into, or to remit to the Master Servicer for deposit
into, the Custodial Account, any amount required to be so deposited or
remitted under this Agreement, which failure continues unremedied for one
(1) Business Day following the date on which a deposit or remittance was
first required to be made; or
(iii) any failure by the Master Servicer to deposit into, or
remit to the Trustee for deposit into, the Collection Account, any amount
(including any P&I Advances and any amounts to cover Prepayment Interest
Shortfalls) required to be so deposited or remitted by it under this
Agreement, which failure continues unremedied until 11:00 a.m. (New York
City time) on the applicable Distribution Date; or
(iv) any failure by the Master Servicer or the Special Servicer
to timely make any Servicing Advance required to be made by it hereunder,
which Servicing Advance remains unmade for a period of three (3) Business
Days following the date on which notice of such failure shall have been
given to the Master Servicer or the Special Servicer, as the case may be,
by any other party hereto; or
(v) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other
covenants or agreements on the part of the Master Servicer or the Special
Servicer, as the case may be, contained in this Agreement, which failure
either (A) in the case of any such failure other than a failure referred to
in clause (v)(B) below, continues unremedied for a period of 30 days (or 15
days in the case of payment of insurance premiums) after the date on which
written notice of the subject failure, requiring the same to be remedied,
shall have been given to the Master Servicer or the Special Servicer, as
the case may be, by any other party hereto or to the Master Servicer or the
Special Servicer, as the case may be (with a copy to each other party
hereto), by the Holders of Certificates entitled to at least 25% of the
Voting Rights, provided, however, that 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 (or, if applicable, 15-day) period, the 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 the Master
Servicer or the Special Servicer, as the case may be, has commenced to cure
the subject failure within the initial 30-day (or, if applicable, 15-day)
period and has provided the Trustee with an Officer's Certificate
certifying that it has diligently pursued, and is diligently continuing to
pursue, a full
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cure, or (B) in the case of the failure to deliver to the Trustee and the
Depositor, or cause delivery thereto of, the Annual Statement of
Compliance, the Annual Assessment Report and the Annual Attestation Report
(together with, if required to be filed with the Commission under
applicable law, the related accountants' consent to filing thereof with the
Commission) with respect to the Master Servicer (or any Additional Item
1123 Servicer or Sub-Servicing Function Participant, as applicable,
retained or engaged thereby that is not identified on Exhibit K hereto) or
the Special Servicer (or any Additional Item 1123 Servicer or Sub-Servicing
Function Participant, as applicable, retained or 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 the 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, which Additional Item 1123 Servicer or
Sub-Servicing Function Participant was performing duties with respect to
all or any part of the Trust Fund during an Exchange Act Reporting Year,
continues unremedied for 30 days; or
(vi) any breach on the part of the Master Servicer or the Special
Servicer of any of its representations or warranties contained in this
Agreement that materially and adversely affects the interests of any Class
of Certificateholders 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 Master Servicer or
the Special Servicer, as the case may be, by any other party hereto or to
the Master Servicer or the Special Servicer, as the case may be (with a
copy to each other party hereto), by the Holders of Certificates entitled
to at least 25% of the Voting Rights, provided, however, that with respect
to any such breach which is not curable within such 30-day period, the
Master Servicer or the Special Servicer, as the case may be, shall have an
additional cure period of 30 days so long as the Master Servicer or the
Special Servicer, as the case may be, has commenced to cure such breach
within the initial 30-day period and has 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
the Master Servicer or the Special Servicer and such decree or order shall
have remained in force undischarged, undismissed or unstayed for a period
of 60 days; or
(viii) the Master Servicer or the Special Servicer shall consent
to the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating
to it or of or relating to all or substantially all of its property; or
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(ix) the Master Servicer or the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or take any
corporate action in furtherance of the foregoing; or
(x) 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, and the ratings of one or more Classes of
Certificates by S&P are qualified, downgraded or withdrawn in connection
with the removal; or
(xi) a Servicing Officer of the Master Servicer or the Special
Servicer, as the case may be, obtains actual knowledge that one or more
ratings assigned by Fitch to the Certificates have been qualified,
downgraded or withdrawn, or otherwise made the subject of a "negative"
credit watch that remains in effect for at least 60 days, which action
Fitch has determined, and provided notification in writing or
electronically, including by public announcement, is solely or in material
part a result of the Master Servicer or Special Servicer, as the case may
be, acting in such capacity; or
(xii) the Master Servicer fails to be rated at least "CMS3" by
Fitch as a master servicer or the Special Servicer fails to be rated at
least "CSS3" by Fitch as a special servicer, and in either case that rating
is not restored within 60 days after the subject downgrade or withdrawal.
When a single entity acts as the Master Servicer and the Special
Servicer, an Event of Default in one capacity shall constitute an Event of
Default in the other capacity.
(b) If any Event of Default shall occur with respect to the Master
Servicer or the Special Servicer (in either case, for purposes of this Section
7.01(b), the "Defaulting Party") and shall be continuing, then, and in each and
every such case, so long as such Event of Default shall not have been remedied,
the Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 25% of the Voting Rights, the Trustee shall, by notice in
writing to the Defaulting Party (with a copy of such notice to each other party
hereto and the Rating Agencies) terminate 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, other than
its rights, if any, as a Certificateholder hereunder. From and after the receipt
by the Defaulting Party of such written notice of termination, subject to
Section 7.01(c), all authority and power of the Defaulting Party under this
Agreement, whether with respect to the Certificates (other than as a holder of
any Certificate), the Trust Fund, 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, or otherwise. The Master Servicer and the Special Servicer
each agree that, if it is terminated pursuant to this Section 7.01(b), it shall
promptly (and in any event no later than ten (10) Business Days subsequent to
its receipt of the notice of termination) provide the Trustee with all
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documents and records, including those in electronic form, requested thereby to
enable the Trustee to assume the Master Servicer's or Special Servicer's, as the
case may be, functions hereunder, and shall cooperate with the Trustee in
effecting the termination of the Master Servicer's or Special Servicer's, as the
case may be, responsibilities and rights hereunder, including (i) if the Master
Servicer is the Defaulting Party, the prompt transfer to the Trustee or a
successor Master Servicer for administration by it of all cash amounts that
shall at the time be or should have been credited by the Master Servicer to the
Custodial Account, the Collection Account, the Defeasance Deposit Account, a
Servicing Account or a Reserve Account or that are thereafter received by or on
behalf of it with respect to any Mortgage Loan or any related REO Property, or
(ii) if the Special Servicer is the Defaulting Party, the transfer within two
(2) Business Days to the Trustee or a successor Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Special Servicer to the REO Account, the Custodial
Account, a Servicing Account or a Reserve Account or should have been delivered
to the Master Servicer or that are thereafter received by or on behalf of it
with respect to any Mortgage Loan or any related REO Property; provided,
however, that the Master Servicer and the Special Servicer each shall, if
terminated pursuant to this Section 7.01(b), continue to be entitled to receive
all amounts accrued or owing to it under this Agreement on or prior to the date
of such termination, whether in respect of Advances or otherwise, and it shall
continue to be entitled to the benefits of Section 6.03 notwithstanding any such
termination. Any costs or expenses in connection with any actions to be taken by
any party hereto 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
expense shall be reimbursed by the Trust Fund; provided, however, that the
Defaulting Party shall not thereby be relieved of its liability for such
expenses. For purposes of this Section 7.01 and also for purposes of Section
7.03(b), the Trustee shall not be deemed to have knowledge of an event which
constitutes, or which with the passage of time or notice, or both, would
constitute an Event of Default unless a Responsible Officer of the Trustee
assigned to and working in the Trustee's Corporate Trust Office has actual
knowledge thereof or unless notice of any event which is in fact such an Event
of Default is received by the Trustee and such notice references the
Certificates, the Trust Fund or this Agreement.
(c) In the case of an Adverse Rating Event or prospective Adverse
Rating Event that has resulted in or may give rise to an Event of Default under
Section 7.01(a)(x), (xi) or (xii) in respect of the Master Servicer or the
Special Servicer and of which the Trustee has notice, the Trustee shall,
promptly following its receipt of notice thereof, provide written notice thereof
to the Master Servicer or the Special Servicer, as applicable. Notwithstanding
Section 7.01(b), if the Master Servicer receives a notice of termination under
Section 7.01(b) solely due to an Event of Default under Section 7.01(a)(x), (xi)
or (xii), and if the terminated Master Servicer provides the Trustee with the
appropriate "request for proposal" materials within five (5) Business Days
following such termination, then the Master Servicer shall continue to serve in
such capacity hereunder until a successor thereto is selected in accordance with
this Section 7.01(c) or the expiration of 45 days from the Master Servicer's
receipt of the notice of termination, whichever occurs first. Upon receipt of
such "request for proposal" materials from the terminated Master Servicer, the
Trustee shall promptly thereafter (using such "request for proposal" materials)
solicit good faith bids for the rights to master service the Mortgage Loans
under this Agreement from at least three (3) Persons qualified to act as a
successor Master Servicer hereunder in accordance with Section 6.02 and Section
7.02 (any such Person so qualified, a "Qualified Bidder") or, if three (3)
Qualified Bidders cannot be located, then from as many Persons as the Trustee
can determine are Qualified Bidders; provided that at the Trustee's request, the
terminated Master Servicer shall supply the Trustee with the names of Persons
from whom to solicit such bids; and provided, further, that the
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Trustee shall not be responsible if less than three (3) or no Qualified Bidders
submit bids for the right to master service the Mortgage Loans under this
Agreement. The bid proposal shall require any Successful Bidder (as defined
below), as a condition of such bid, to enter into this Agreement as successor
Master Servicer, and to agree to be bound by the terms hereof, within 45 days
after the receipt of notice of termination by the terminated Master Servicer.
The Trustee shall solicit bids on the basis of both: (i) such successor Master
Servicer (x) retaining all existing Sub-Servicers to continue the primary
servicing of the Mortgage Loans pursuant to the terms of the 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 not then subject to a Sub-Servicing
Agreement at a sub-servicing fee rate per annum equal to the related Master
Servicing Fee Rate minus, in the case of each Mortgage Loan serviced, 0.01% per
annum (each, a "Servicing-Retained Bid"); and (ii) terminating each existing
Sub-Servicing Agreement and Sub-Servicer that it is permitted to terminate in
accordance with Section 3.22 (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 45 days after
the receipt of notice of termination by the terminated Master Servicer.
Upon the assignment and acceptance of the master servicing rights
hereunder to and by the Successful Bidder, the Trustee shall remit or cause to
be remitted (i) if the successful bid was a Servicing-Retained Bid, to the
terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
The terminated Master Servicer shall be responsible for all
out-of-pocket expenses incurred in connection with the attempt to sell its
rights to master service the Mortgage Loans, which expenses are not reimbursed
to the party that incurred such expenses pursuant to the preceding paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 45 days after the terminated Master Servicer
received written notice of termination or no Successful Bidder was identified
within such 45-day period, then the terminated Master Servicer shall reimburse
the Trustee for all reasonable "out-of-pocket" expenses incurred by the Trustee
in connection with such bid process and the Trustee shall have no further
obligations under this Section 7.01(c). The Trustee thereafter may act or may
select a successor to act as Master Servicer hereunder in accordance with
Section 7.02.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04 or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, unless and until a successor is appointed
pursuant to Section 6.04, Section 6.09 or Section 7.01(c), be the successor in
all respects to the Master Servicer or the Special Servicer, as the case may be,
in its capacity as such under this Agreement and the transactions set forth or
provided for herein and shall have all (and the
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former Master Servicer or the Special Servicer, as the case may be, shall cease
to have any) of the responsibilities, duties and liabilities of the Master
Servicer or the Special Servicer, as the case may be, arising thereafter,
including, if the Master Servicer is the resigning or terminated party, the
Master Servicer's obligation to make P&I Advances, including in connection with
any termination of the Master Servicer for an Event of Default described in
clause 7.01(a)(iii), the unmade P&I Advances that gave rise to such Event of
Default; provided that any failure to perform such duties or responsibilities
caused by the Master Servicer's or the Special Servicer's, as the case may be,
failure to provide information or monies required by Section 7.01 shall not be
considered a default by the Trustee hereunder. The Trustee shall not be liable
for any of the representations and warranties of the resigning or terminated
party or for any losses incurred by the resigning or terminated party pursuant
to Section 3.06 hereunder nor shall the Trustee be required to purchase any
Mortgage Loan hereunder. As compensation therefor, subject to the last sentence
of the second paragraph of Section 3.11(c), 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.
Notwithstanding the above, the Trustee may, if it shall be unwilling
to so act as either Master Servicer or Special Servicer, as the case may be, or
shall, if it is unable to so act as either Master Servicer or Special Servicer,
as the case may be, or if the Trustee is not approved as a master servicer or a
special servicer, as the case may be, by any of the Rating Agencies, or if the
Holders of Certificates entitled to a majority of the Voting Rights so request
in writing to the Trustee, promptly appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution as
the successor to the resigning or terminated Master Servicer or the Special
Servicer, as the case may be, hereunder in the assumption of all or any part of
the responsibilities, duties or liabilities of the resigning or terminated
Master Servicer or the Special Servicer, as the case may be, hereunder;
provided, however, that no such appointee shall succeed to the rights and
obligations of the Master Servicer or Special Servicer hereunder unless (i) as
confirmed in writing by each Rating Agency, such succession will not result in
an Adverse Rating Event with respect to any Class of Certificates rated by such
Rating Agency, and (ii) such appointee makes the applicable representations and
warranties set forth in Section 3.23 or Section 3.24, as applicable; and
provided, further, that in the case of a resigning or terminated Special
Servicer, such appointment shall be subject to the rights of the Majority
Controlling Class Certificateholder(s) to designate a successor pursuant to
Section 6.09. No appointment of a successor to the Master Servicer or the
Special Servicer hereunder shall be effective until the assumption by the
successor to such party of all its responsibilities, duties and liabilities
under this Agreement. Pending appointment of a successor to the Master Servicer
or the Special Servicer hereunder, the Trustee shall act in such capacity as
hereinabove provided. In connection with any such appointment and assumption
described herein, the Trustee may make such arrangements for the compensation of
such successor out of payments on the Mortgage Loans and the REO Properties as
it and such successor shall agree, subject to the terms of this Agreement;
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 and Others.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02
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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 the
Depositor and to the Certificateholders at their respective addresses appearing
in the Certificate Register.
(b) Not later than 10 days (or, in the case of notice to the
Depositor, as soon as reasonably practicable) after a Responsible Officer of the
Trustee has notice of the occurrence of any event which constitutes or, with
notice or lapse of time or both, would constitute an Event of Default, the
Trustee shall promptly notify in writing the Depositor, all the
Certificateholders and the Rating Agencies notice of such occurrence, unless
such default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders representing at least 66-2/3% of the Voting Rights
allocated to each Class of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, however, that (A) an Event
of Default under any of clauses (i), (ii), (iii), (x),(xi) and (xii) of Section
7.01(a) may be waived only by all of the Certificateholders of the affected
Classes, (B) waiver of an Event of Default under clause (iii) of Section 7.01(a)
further requires the written consent of the Trustee and (C) waiver of an Event
of Default contemplated by clause (B) or clause (C) of Section 7.01(a)(v)
further requires the written 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 that 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). Except as
otherwise expressly provided in this Agreement, no remedy provided for by this
Agreement shall be exclusive of any other remedy, and each and every remedy
shall be cumulative and in addition to any other remedy, and no delay or
omission to exercise any right or remedy shall impair any such right or remedy
or shall be deemed to be a waiver of any Event of Default.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default that may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs; provided that if the Trustee is acting as Master Servicer or
Special Servicer, it shall act in accordance with the Servicing Standard. Any
permissive right of the Trustee contained in this Agreement shall not be
construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee 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. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall take such action as it deems appropriate to
have the instrument corrected. The Trustee shall not be responsible for the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Depositor, the Master
Servicer or the Special Servicer, and accepted by the Trustee in good faith,
pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default that may have occurred, the duties and
obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith on
the part of the Trustee, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith in
accordance with the terms of this Agreement and the direction of the
Controlling Class or Holders of Certificates entitled to at
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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, as the case may be; and
(iv) The protections, immunities and indemnities afforded to the
Trustee hereunder shall also be available to it in its capacity as
Authenticating Agent, Certificate Registrar, Tax Administrator and
Custodian.
SECTION 8.02. Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01 and Article X:
(i) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or, except as provided in
Section 10.01 or 10.02, to institute, conduct or defend any litigation
hereunder or in relation hereto, at the request, order or direction of any
of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may
be incurred therein or thereby; except as provided in Section 10.01 or
10.02, the Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it; nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default that has not been
cured, to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their exercise
as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs;
(iv) the Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by
it to be authorized, or within the discretion or rights or powers conferred
upon it, by this Agreement;
(v) prior to the occurrence of an Event of Default, and after the
curing of all Events of Default that 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
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Certificates entitled to at least 25% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this
Agreement, the Trustee may require reasonable indemnity against such
expense or liability as a condition to taking any such action;
(vi) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys; provided, however, that the Trustee shall remain
responsible for all acts and omissions of such agents or attorneys within
the scope of their employment to the same extent as it is responsible for
its own actions and omissions hereunder; and provided, further, that, until
April 1st of the first year that is not an Exchange Act Reporting Year for
the Trust, 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 obtains the written consent of the
Depositor; and
(vii) the Trustee shall not be responsible for any act or
omission of the Master Servicer or the Special Servicer (unless the Trustee
is acting as Master Servicer or Special Servicer) or the Depositor.
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than the
statements attributed to the Trustee or any Fiscal Agent in Article II and
Section 8.16 and Section 8.18 and the signature of the Certificate Registrar and
the Authenticating Agent set forth on each outstanding Certificate, shall not be
taken as the statements of the Trustee or such Fiscal Agent, and neither the
Trustee nor such Fiscal Agent shall assume any responsibility for their
correctness. Except as expressly set forth in Section 8.16 and 8.18, neither the
Trustee nor any Fiscal Agent makes any 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. Neither the Trustee nor 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 Mortgage Loans to the
Trust Fund, or any funds deposited in or withdrawn from the Custodial Account or
any other account by or on behalf of the Depositor, the Master Servicer or the
Special Servicer. Neither the Trustee nor 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, the
Master Servicer or the Special Servicer, and accepted by the Trustee in good
faith, pursuant to this Agreement.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee, any Fiscal Agent or any agent of the Trustee or a Fiscal
Agent, in its individual or any other capacity, may become the owner or pledgee
of Certificates with (except as otherwise provided in the definition of
"Certificateholder") the same rights it would have if it were not the Trustee,
such Fiscal Agent or such agent, as the case may be.
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SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by
Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from the
general funds on deposit in the Collection Account, prior to any distributions
to be made therefrom on such date, and pay to itself the Trustee Fee for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, as compensation for all services rendered by the Trustee in
the execution of the trusts hereby created and in the exercise and performance
of any of the powers and duties of the Trustee hereunder. Except as otherwise
provided in Section 3.06, the Trustee Fees (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
shall constitute the Trustee's sole compensation for such services to be
rendered by it.
(b) The Trustee (whether in its individual capacity or its capacity as
Trustee) and any director, officer, employee or agent of the Trustee shall be
entitled to be indemnified for and held harmless by the Trust Fund out of the
Custodial Account and the Collection Account against any loss, liability or
reasonable "out-of-pocket" expense arising out of, or incurred in connection
with, this Agreement or the Certificates (including but not limited to (i) costs
and expenses incurred in connection with removal of the Special Servicer and
Master Servicer pursuant to Sections 7.01 and 7.02, (ii) costs and expenses of
litigation and of investigation, including counsel fees, damages, judgments and
amounts paid in settlement, and (iii) costs and expenses of mediation and/or
arbitration pursuant to Section 5(i) of the Mortgage Loan Purchase Agreement)
(any such loss, liability or expense, a "Trustee Liability"); provided that such
loss, liability or expense constitutes an "unanticipated expense" within the
meaning of Treasury regulations section 1.860G-1(b)(3)(ii); and provided,
further, that neither the Trustee nor any of the other above specified Persons
shall be entitled to indemnification pursuant to this Section 8.05(b) for (1)
any liability specifically required to be borne thereby pursuant to the terms of
this Agreement, or (2) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of, or the
negligent disregard of, the Trustee's obligations and duties hereunder, or as
may arise from a breach of any representation, warranty or covenant of the
Trustee made herein, or (3) any loss, liability or expense that constitutes an
Advance (the reimbursement of which has otherwise been provided for herein) or
allocable overhead. The provisions of this Section 8.05(b) and of Section
8.05(c) shall survive any resignation or removal of the Trustee and appointment
of a successor trustee.
(c) If the Trustee Liability arises from the issuance or sale of the
Certificates and the indemnification provided for in Section 8.05(b) is invalid
or unenforceable, then the Trust Fund shall contribute to the amount paid or
payable by the Trustee as a result of such Trustee Liability in such proportion
as is appropriate to reflect the relative fault of any of the other parties on
the one hand and the Trustee on the other in connection with the actions or
omissions which resulted in such Trustee Liability, as well as any other
relevant equitable considerations.
(d) The Trustee shall indemnify and hold harmless the Trust Fund
against any losses arising out of any errors made solely by the Trustee in
calculating distributions to be made hereunder and any other calculation or
reporting hereunder (in each case not attributable to information provided to
the Trustee by the Master Servicer or the Special Servicer); provided that such
loss arose by reason of willful misfeasance, bad faith or negligence on the part
of the Trustee. The provisions of this Section 8.05(d) shall survive any
resignation or removal of the Trustee and appointment of a successor trustee.
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SECTION 8.06. Eligibility Requirements for Trustee.
(a) The Trustee hereunder shall at all times be a bank, a trust
company, a banking association or a banking corporation organized and doing
business under the laws of the United States of America or any state thereof or
the District of Columbia, authorized under such laws to exercise trust powers,
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state banking authority. If such bank,
trust company, banking association or banking corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
section the combined capital and surplus of such bank, trust company, banking
association or banking corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
The Trustee shall at all times maintain a long-term unsecured debt rating of at
least (i) "AA-" from S&P (or "A+" from S&P, if the Trustee's short-term
unsecured debt rating is at least "A-1" by S&P) and "AA-" from Fitch or, if a
Fiscal Agent meeting the requirements of Section 8.17(a) is then currently
acting in such capacity, "A-" from S&P and "A-" from Fitch, or (ii) in the case
of either Rating Agency, such other rating as shall not result in an Adverse
Rating Event with respect to any Class of Certificates, as confirmed in writing
by such Rating Agency. The Trustee shall at all times satisfy the requirements
of Section 26(a)(1) of the Investment Company Act of 1940, as amended. The
Trustee's acting in such capacity shall not adversely affect the application of
the Prohibited Transaction Exemption to the Investment Grade Certificates. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 8.07; provided that the Trustee shall
not be required to resign due to the existence of an affiliation described in
the last sentence of this Section 8.06 until such time as it has actual
knowledge or receives written notice of the existence of such affiliation; and
provided, further, that if the Trustee shall cease to be so eligible because its
combined capital and surplus is no longer at least $50,000,000 or its long-term
unsecured debt rating no longer conforms to the requirements of the immediately
preceding sentence, and if the Trustee proposes to the other parties hereto to
enter into an agreement with (and reasonably acceptable to) each of them, and if
in light of such agreement the Trustee's continuing to act in such capacity
would not (as evidenced in writing by each Rating Agency) cause an Adverse
Rating Event with respect to any Class of Certificates, then upon the execution
and delivery of such agreement the Trustee shall not be required to resign, and
may continue in such capacity, for so long as none of the ratings assigned by
the Rating Agencies to the Certificates is adversely affected thereby. The bank,
trust company, banking corporation or banking association serving as Trustee may
have normal banking and trust relationships with the Depositor, the Master
Servicer, the Special Servicer and their respective Affiliates. Notwithstanding
the foregoing, except to the extent permitted or required by Section 7.02, the
Trustee shall not be an "affiliate" (as such term is defined in Section III of
PTE 2000-58) of the Master Servicer, the Special Servicer, any Sub-Servicer, the
Depositor, or any obligor with respect to Mortgage Loans constituting more than
5% of the aggregate unamortized principal balance of the Mortgage Pool as of the
Closing Date 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.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer, all Certificateholders. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a successor
trustee acceptable to the Depositor by written instrument, in duplicate, which
instrument shall
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be delivered to the resigning Trustee and to the successor trustee. The
Depositor shall deliver a copy of such instrument to the Master Servicer, the
Special Servicer and the Certificateholders. If no successor trustee shall have
been so appointed and have accepted appointment within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or if
the Trustee shall fail (other than by reason of the failure of either the Master
Servicer or the Special Servicer to timely perform its obligations hereunder or
as a result of other circumstances beyond the Trustee's reasonable control) to
timely deliver or otherwise make available in accordance with this Agreement any
current or revised Distribution Date Statement, CMSA Bond Level File, CMSA
Collateral Summary File, CMSA Historical Bond/Collateral Realized Loss
Reconciliation Template, CMSA Historical Liquidation Loss Template, CMSA
Interest Shortfall Reconciliation Template, CMSA Reconciliation of Funds
Template and/or Mortgage Pool Data Update Report, or other report or statement
required by Section 4.02 and such failure shall continue unremedied for a period
of five (5) days after receipt of written notice by the Trustee of such failure,
or if the Trustee shall fail (other than by reason of the failure of the Master
Servicer, the Special Servicer or the Depositor or any Sub-Servicer,
subcontractor, vendor or agent of the foregoing to timely perform its
obligations hereunder or in connection herewith 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 8.15(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 a tax is imposed or threatened with respect to
the Trust Fund by any state in which the Trustee is located or in which it holds
any portion of the Trust Fund, then the Depositor may remove the Trustee and
appoint a successor trustee acceptable to the Depositor and the Master Servicer
by written instrument, in duplicate, which instrument shall be delivered to the
Trustee so removed and to the successor trustee. A copy of such instrument shall
be delivered to the Master Servicer, the Special Servicer, the
Certificateholders by the successor trustee so appointed.
(c) The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee (with or without cause) and appoint a
successor trustee by written instrument or instruments, signed by such Holders
or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Master Servicer, one complete set to the
Trustee so removed and one complete set to the successor trustee so appointed. A
copy of such instrument shall be delivered to the Depositor, the Special
Servicer, the remaining Certificateholders by the successor trustee so
appointed.
(d) In the event that the Trustee is terminated or removed pursuant to
this Section 8.07, all of its and any corresponding Fiscal Agent's rights and
obligations under this Agreement and (as among the parties hereto) in and to the
Mortgage Loans shall be terminated, other than (i) any rights or obligations
that accrued prior to the date of such termination or removal (including the
right to receive all fees, expenses and other amounts (including P&I Advances
and any accrued interest thereon) accrued or owing to it under this Agreement,
with respect to periods prior to the date of such termination or
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removal, and no termination without cause shall be effective until the payment
of such amounts to the Trustee and such Fiscal Agent) or (ii) any rights or
immunities described in this Agreement as surviving any resignation or removal
of the Trustee, including but not limited to the rights set forth in Sections
8.05(b) and (c).
(e) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor, the Master Servicer, the
Special Servicer and to the predecessor trustee an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee all Mortgage Files and related documents
and statements and moneys held by it hereunder (other than any Mortgage Files at
the time held on its behalf by a third-party Custodian, which Custodian shall
become the agent of the successor trustee), and the Depositor, the Master
Servicer, the Special Servicer and the predecessor trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
to more fully and certainly vest and confirm in the successor trustee all such
rights, powers, duties and obligations, and to enable the successor trustee to
perform its obligations hereunder.
(b) No successor trustee shall accept appointment as provided in this
Section 8.08, unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section 8.08, such successor trustee shall mail notice of the succession
of such trustee hereunder to the Depositor, the Master Servicer, the Special
Servicer and the Certificateholders.
(d) Any and all costs and expenses associated with transferring the
duties of a Trustee that has resigned or been removed or terminated, as
contemplated by Section 8.07, to a successor Trustee, including those associated
with transfer of the Mortgage Files and other documents and statements held by
the predecessor Trustee to the successor Trustee, as contemplated by Section
8.08(a), shall be paid by: (i) the predecessor Trustee, if such predecessor
Trustee has resigned in accordance with Section 8.07(a), has been removed in
accordance with Section 8.07(b) or has been removed with cause in accordance
with Section 8.07(c); (ii) the Certificateholders that effected the removal, if
the predecessor Trustee has been removed without cause in accordance with
Section 8.07(c); and (iii) the Trust, if such costs and expenses are not paid by
the predecessor Trustee or the subject Certificateholders, as contemplated by
the immediately preceding clauses (i) and (ii), within 90 days after they are
incurred (provided that such predecessor Trustee or such subject
Certificateholders, as applicable, shall remain liable to the Trust for such
costs and expenses).
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SECTION 8.09. Merger or Consolidation of Trustee and Fiscal Agent.
Any entity into which the Trustee or any Fiscal Agent may be merged or
converted, or with which the Trustee or any Fiscal Agent may be consolidated, or
any entity resulting from any merger, conversion or consolidation to which the
Trustee or any Fiscal Agent shall be a party, or any entity succeeding to the
corporate trust business of the Trustee, shall be the successor of the Trustee
or such Fiscal Agent, as the case may be, hereunder, provided such entity shall
be eligible under the provisions of Section 8.06 or Section 8.17, as applicable,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Trustee shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Trustee to act as co-trustee or
co-trustees, jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of the Trust Fund, and to vest in such Person or Persons, in
such capacity, such title to the Trust Fund, or any part thereof, and, subject
to the other provisions of this Section 8.10, such powers, duties, obligations,
rights and trusts as the Master Servicer and the Trustee may consider necessary
or desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06
hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 8.08
hereof.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer or the Special Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall cease to exist, become incapable of acting, resign or be
removed, all of its estates,
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properties, rights, remedies and trusts vested therein pursuant to the
applicable instrument of appointment and this Section 8.10, shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor,
the Mortgage Loan Seller or any Affiliate of any of them. Neither the Master
Servicer nor the Special Servicer shall have any duty to verify that any such
Custodian is qualified to act as such in accordance with the preceding sentence.
The Trustee may enter into an agreement to appoint a Custodian which is not the
Trustee, provided that such agreement: (i) is consistent with this Agreement in
all material respects and requires the Custodian to comply with all of the
applicable conditions of this Agreement; (ii) provides that if the Trustee shall
for any reason no longer act in the capacity of Trustee hereunder, the successor
trustee or its designee may thereupon assume all of the rights and, except to
the extent they arose prior to the date of assumption, obligations of the
Custodian under such agreement or, alternatively, may terminate such agreement
without cause and without payment of any penalty or termination fee; and (iii)
may provide that the related Custodian will be entitled to be indemnified out of
the assets of the Trust Fund in connection with losses arising from the
performance by such Custodian of its duties in accordance with the provisions of
the related custodial agreement if and to the extent such indemnification would
be permitted under Section 8.05(b) with respect to agents of the Trustee. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible for all acts
and omissions of any Custodian. In the absence of any other Person appointed in
accordance herewith acting as Custodian, the Trustee agrees to act in such
capacity in accordance with the terms hereof. Notwithstanding anything herein to
the contrary, if the Trustee is no longer the Custodian, any provision or
requirement herein requiring notice or any information or documentation to be
provided to the Custodian shall be construed to require that such notice,
information or documents also be provided to the Trustee. Any Custodian
hereunder shall at all times maintain a fidelity bond and errors and omissions
policy in amounts customary for custodians performing duties similar to those
set forth in this Agreement and, in any event, satisfying the same requirements
(including as to the insurer) as are applicable to any such bond or policy
required to be maintained by the Master Servicer pursuant to Section 3.07.
SECTION 8.12. Appointment of Authenticating Agents.
(a) The Trustee may appoint at the Trustee's expense an Authenticating
Agent, which shall be authorized to act on behalf of the Trustee in
authenticating Certificates. The Trustee shall cause any such Authenticating
Agent to execute and deliver to the Trustee an instrument in which such
Authenticating Agent shall agree to act in such capacity, with the obligations
and responsibilities herein. Each Authenticating Agent must be organized and
doing business under the laws of the United States of America or of any State,
authorized under such laws to carry on a trust business, have a combined
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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. In the absence of any other
Person appointed in accordance herewith acting as Authenticating Agent, the
Trustee hereby agrees to act in such capacity in accordance with the terms
hereof. Notwithstanding anything herein to the contrary, if the Trustee is no
longer the Authenticating Agent, any provision or requirement herein requiring
notice or any information or documentation to be provided to the Authenticating
Agent shall be construed to require that such notice, information or
documentation also be provided to the Trustee.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent appointed in accordance with this Section
8.12 may at any time resign by giving at least 30 days' advance written notice
of resignation to the Trustee, the Certificate Registrar, the Master Servicer,
the Special Servicer and the Depositor. The Trustee may at any time terminate
the agency of any Authenticating Agent appointed in accordance with this Section
8.12 by giving written notice of termination to such Authenticating Agent, the
Master Servicer, the Certificate Registrar and the Depositor. Upon receiving a
notice of such a resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 8.12, the Trustee may appoint a successor
Authenticating Agent, in which case the Trustee shall give written notice of
such appointment to the Master Servicer, the Certificate Registrar and the
Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, that no successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 8.12. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent.
SECTION 8.13. Appointment of Tax Administrators.
(a) The Trustee may appoint at the Trustee's expense any Person with
appropriate tax-related experience to act as Tax Administrator hereunder;
provided that, in the absence of any other Person appointed in accordance
herewith acting as Tax Administrator, the Trustee agrees to act in such capacity
in accordance with the terms hereof. The appointment of a Tax Administrator
shall not relieve the Trustee from any of its obligations hereunder, and the
Trustee shall remain responsible for all acts and omissions of the Tax
Administrator. The Trustee shall cause any such Tax Administrator appointed by
it to execute and deliver to the Trustee an instrument in which such Tax
Administrator shall agree to act in such capacity, with the obligations and
responsibilities herein.
(b) Any Person into which any Tax Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or
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consolidation to which any Tax Administrator shall be a party, or any Person
succeeding to the corporate agency business of any Tax Administrator, shall
continue to be the Tax Administrator without the execution or filing of any
paper or any further act on the part of the Trustee or the Tax Administrator.
(c) Any Tax Administrator appointed in accordance with this Section
8.13 may at any time resign by giving at least 30 days' advance written notice
of resignation to the Trustee, the Certificate Registrar, the Master Servicer,
the Special Servicer and the Depositor. The Trustee may at any time terminate
the agency of any Tax Administrator appointed in accordance with this Section
8.13 by giving written notice of termination to such Tax Administrator, the
Master Servicer, the Certificate Registrar and the Depositor. Upon receiving a
notice of such a resignation or upon such a termination, or in case at any time
any Tax Administrator shall cease to be eligible in accordance with the
provisions of this Section 8.13, the Trustee may appoint a successor Tax
Administrator, in which case the Trustee shall give written notice of such
appointment to the Master Servicer, the Special Servicer and the Depositor and
shall mail notice of such appointment to all Holders of Certificates; provided,
however, that no successor Tax Administrator shall be appointed unless eligible
under the provisions of this Section 8.13. Any successor Tax Administrator upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Tax Administrator.
SECTION 8.14. Access to Certain Information.
(a) The Trustee shall afford to the Master Servicer, the Special
Servicer and the Depositor, and to the OTS, the FDIC and any other banking or
insurance regulatory authority that may exercise authority over any
Certificateholder or Certificate Owner access to any documentation regarding the
Mortgage Loans within its control that may be required to be provided by this
Agreement or by applicable law. Such access shall be afforded without charge but
only upon reasonable prior written request and during normal business hours at
the offices of the Trustee designated by it.
(b) The Trustee shall maintain in its possession and, upon reasonable
prior written request and during normal business hours, shall make available at
its offices for review by the Depositor, the Rating Agencies, the Controlling
Class Representative and, subject to the succeeding paragraph, any
Certificateholder, Certificate Owner or Person identified to the Trustee as a
prospective Transferee of a Certificate or an interest therein, originals and/or
copies of the following items: (i) the Prospectus, the Prospectus Supplement,
any private placement memorandum and any other disclosure document relating to
the Certificates, in the form most recently provided to the Trustee by the
Depositor or by any Person designated by the Depositor; (ii) this Agreement,
each Sub-Servicing Agreement delivered to the Trustee since the Closing Date and
any amendments hereto or thereto; (iii) all Certificateholder Reports made
available to Certificateholders pursuant to Section 4.02(a) since the Closing
Date; (iv) all Annual Statements of Compliance delivered to the Trustee since
the Closing Date; (v) all Annual Assessment Reports and Annual Attestation
Reports delivered to the Trustee since the Closing Date; (vi) any and all
notices and reports delivered to the Trustee with respect to any Mortgaged
Property as to which the environmental testing contemplated by Section 3.09(c)
revealed that either of the conditions set forth in clauses (i) and (ii) of the
first sentence thereof was not satisfied; (vii) each of the Mortgage Files,
including any and all modifications, extensions, waivers and amendments of the
terms of a Mortgage Loan entered into or consented to by the Special Servicer
and delivered to the Trustee pursuant to Section 3.20; (viii) the most recent
appraisal for each Mortgaged Property and REO Property that has
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been delivered to the Trustee (each appraisal obtained hereunder with respect to
any Mortgaged Property or REO Property to be delivered to the Trustee by the
Master Servicer or Special Servicer, as applicable, promptly following its
having been obtained); (ix) any and all Officer's Certificates and other
evidence delivered to or by the Trustee to support its, the Master Servicer's,
the Special Servicer's or any Fiscal Agent's, as the case may be, determination
that any Advance was (or, if made, would be) a Nonrecoverable Advance; (x) any
and all information provided to the Trustee pursuant to Section 6.11(a); (xi)
the Schedule of Exceptions to Mortgage File Delivery prepared by the Trustee
pursuant to Section 2.02(a) and any exception report prepared by the Trustee
pursuant to Section 2.02(b); (xii) all notices of a breach of representation and
warranty given by or received by the Trustee with respect to any party hereto;
and (xiii) any Officer's Certificate delivered to the Trustee by the Special
Servicer in connection with a Final Recovery Determination pursuant to Section
3.09(h). The Trustee shall provide copies of any and all of the foregoing items
upon written request of any of the parties set forth in the previous sentence;
however, except in the case of the Rating Agencies, the Trustee shall be
permitted to require payment of a sum sufficient to cover the reasonable costs
and expenses of providing such copies. Upon the reasonable request of any
Certificateholder, or any Certificate Owner identified to the Trustee to the
Trustee's reasonable satisfaction, the Trustee shall request from the Master
Servicer copies (at the expense of such Certificateholder or Certificate Owner
if the Master Servicer or Special Servicer charges a fee to cover the reasonable
cost of making such copies available) of any inspection reports prepared by the
Master Servicer or the Special Servicer, copies of any operating statements,
rent rolls and financial statements obtained by the Master Servicer or the
Special Servicer and copies of any CMSA Operating Statement Analysis Reports and
CMSA NOI Adjustment Worksheets prepared by the Master Servicer or the Special
Servicer; and, upon receipt, the Trustee shall make such items available to the
requesting Certificateholder or Certificate Owner.
In connection with providing access to or copies of the items
described in the preceding paragraph, the Trustee shall require: (i) in the case
of Certificateholders and Certificate Owners, a written confirmation executed by
the requesting Person substantially in the form of Exhibit L-1 (or in such other
form as may be reasonably acceptable to the Trustee) generally to the effect
that such Person is a Certificateholder or a beneficial holder of Book-Entry
Certificates and will keep such information confidential (except that such
Certificateholder or Certificate Owner 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 (ii) 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 L-2 (or in such other form as may be
reasonably acceptable to the Trustee) 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 will otherwise keep such information confidential.
(c) The Trustee shall not be liable for providing or disseminating
information in accordance with Section 8.14(a) or (b).
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SECTION 8.15. Reports to the Securities and Exchange Commission and
Related Reports.
(a) With respect to any Exchange Act Reporting Year, the Trustee
shall:
(i) as soon as reasonably practicable (but in any event within 15
days or such shorter 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 Distribution
Report on Form 10-D with or including, as the case may be, a copy of the
applicable Distribution Date Statement (exclusive of the CMSA Bond Level
File, the CMSA Historical Liquidation Loss Template and the CMSA Collateral
Summary File) and, if and to the extent that it relates to any Trustee
Reportable Event or was otherwise delivered by written notice to, or
otherwise actually known by a Responsible Officer of, the Trustee, any
other Form 10-D Required Information to be reported for the period covered
by the subject Form 10-D; as Form 10-D requires the registrant to indicate
(by checking "yes" or "no") that it "(1) has filed all reports required to
be filed by Section 13 or 15(d) of the Exchange Act during the preceding 12
months (or for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements for the
past 90 days," the Trustee shall assume that the answer is "yes" unless the
Trustee is either aware of any information indicating that the answer is
"no" or is notified otherwise a reasonable period of time prior to the
Trustee's filing of the subject Form 10-D, and the Trustee shall be
entitled to rely on such representations in preparing, executing and/or
filing any such 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 Current Report on Form 8-K regarding and
disclosing any Form 8-K Required Information (with respect to any Form 8-K
Required Information other than any Trustee Reportable Event, to the extent
a Responsible Officer of the Trustee has actual knowledge of, or 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 Current
Report on Form 8-K in accordance with this clause (ii), the Depositor shall
cooperate with the Trustee in preparing such Current Report on Form 8-K 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 for filing, arrange for execution by the Depositor
and properly and timely file with the Commission, with respect to the
Trust, an Annual Report on Form 10-K, which complies in all material
respects with the requirements of the Exchange Act, the rules and
regulations
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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 the Master Servicer, the Special Servicer or other
applicable Person for such Exchange Act Reporting Year, and which shall
further include a Xxxxxxxx-Xxxxx Certification and shall include any other
Form 10-K Required Information to be reported for such Exchange Act
Reporting Year (if and to the extent that the applicable Form 10-K Required
Information relates to a Trustee Reportable Event or was otherwise
delivered by written notice to--or otherwise actually known by a
Responsible Officer of--the Trustee); as 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 Trustee shall assume that the
answer is "yes" unless the Trustee is either aware of any information
indicating that the answer is "no" or is notified otherwise a reasonable
period of time prior to the Trustee's filing of the subject Form 10-K with
respect to the Trust, and the Trustee shall be entitled to rely on such
representations in preparing, executing and/or filing any such report;
(iv) at the reasonable request of, and in accordance with the
reasonable directions of, the Certifying Party (as defined in Section
8.15(d)) or the Depositor, prepare for filing, arrange for execution by the
Depositor and promptly file with the Commission an amendment to any Current
Report on Form 8-K, Distribution Report on Form 10-D or Annual Report on
Form 10-K 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 (or readily convertible into a format suitable) for electronic filing
via the XXXXX system and shall not have any responsibility to convert any such
items to such format (other than those items generated by it or that are 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
Current Reports on Form 8-K"); and provided, further, that if all or any
required portion of an Annual Report on Form 10-K or a Distribution Report on
Form 10-D 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 to
the extent directed by the Depositor) prepare and file, and the Depositor shall
sign, 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
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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 (or readily
convertible into the format required) for electronic filing via the XXXXX
system, any and all items required to be delivered by such party pursuant to
this Agreement and contemplated to be filed with the Commission pursuant to this
Section 8.15(a).
All Current Reports on Form 8-K, Distribution Reports on Form 10-D and
Annual Reports on Form 10-K, 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 8.15(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
8.15(a) shall be executed by the Depositor promptly upon delivery thereto,
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.
Notwithstanding any other provision of this Agreement, the Trustee
shall have no liability to any Person with respect to any failure to properly
prepare or timely file any of the Subsequent Exchange Act Reports to the extent
that such failure is not the result of any negligence, bad faith or willful
misconduct on its part. The Trustee shall have no liability to any Person for a
failure to file on a timely basis any Subsequent Exchange Act Report to the
extent that the Trustee is not provided by any unaffiliated third party within
the time frames set forth in this Agreement all required attachments and
information (including notices with respect thereto) to be filed with such
Subsequent Exchange Act Report in properly executed form. The Trustee shall be
entitled to conclusively rely upon, without any duty to review or analyze, the
form and content of any information, disclosure, attachments or exhibits
provided to it for inclusion in any Subsequent Exchange Act Report. The parties
to this Agreement acknowledge that the performance by the Trustee of its duties
under this Section 8.15 related to the timely preparation, arrangement for
execution and filing of Subsequent Exchange Act Reports is dependent upon other
parties to this Agreement observing all applicable deadlines in the performance
of their duties under Sections 3.13, 3.14 and 8.15. Other than to the extent the
Trustee is required to provide notice of any failure to deliver in accordance
with this Agreement, the Trustee has no duty under this Section 8.15 or
otherwise under this Agreement to enforce the performance by the other parties
to this Agreement of their duties under this Section 8.15.
The Trustee shall make available to all Certificateholders and
Certificate Owners on its internet website each Subsequent Exchange Act Report
that it prepares and files 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 Xxxxx Fargo Bank,
N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate
Trust Servicers (CMBS) - TIAA 2007-C4, (telephone number: (000) 000-0000), or to
such other Person, address and/or phone number as the Trustee may specify by
notice to Certificateholders.
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(b) At all times during each Exchange Act Reporting Year, each of the
Trustee, the Master Servicer and the Special Servicer shall (and shall use
reasonable efforts to cause each Servicing Representative that is a Servicer
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 8.15(b)) notify (including with such notice the Exchange
Act Reportable Event Notification attached hereto as Exhibit T) the Depositor
and the Trustee in writing of, the occurrence or existence of any and all
events, conditions, circumstances and/or matters that constitute or may
constitute related Exchange Act Reportable Events with respect thereto; provided
that, unless any such particular event, condition, circumstance and/or matter
specifically relates to the party obligated to undertake such monitoring, any
Affiliate thereof, any Servicing Representative that is a Servicer retained or
engaged thereby or, solely in the case of the Trustee, any Trustee Appointee,
the obligation to so monitor for any such particular event, condition,
circumstance and/or matter shall be limited to maintaining a reasonable
awareness as regards the existence thereof in the normal course of performing
its respective obligations and duties hereunder or otherwise in respect of the
Trust Fund. Each of the Trustee, Master Servicer and Special Servicer shall
provide such notice of any Exchange Act Reportable Event to the Trustee and the
Depositor (i) no later than five (5) calendar days after the next succeeding
Distribution Date with respect to any Exchange Act Reportable Event to be
disclosed on Form 10-D, (ii) no later than March 15th in any year in which the
Trustee will file a Form 10-K for the Trust with respect to any Exchange Act
Reportable Event to be disclosed on Form 10-K, and (iii) no later than Noon (New
York City time) on the 2nd Business Day after the occurrence of any Exchange Act
Reportable Event to be disclosed on Form 8-K; provided that, unless (x) the
applicable Exchange Act Reportable Event relates to such party or (y) such party
has failed to monitor for any such particular event, condition, circumstance
and/or matter in accordance with the preceding sentence, then the Trustee, the
Master Servicer and the Special Servicer shall be obligated to provide notice of
any Exchange Act Reportable Event as set forth in clauses (i), (ii) and (iii)
above only to the extent a Servicing Officer or Responsible Officer, as
applicable, thereof has actual knowledge or has received notice of such Exchange
Act Reportable Event. Upon becoming aware of any Form 8-K Required Information,
the Trustee shall promptly notify the Depositor in writing that the filing of a
Current Report on Form 8-K may be required with respect to any of the events,
conditions, circumstances and/or matters that constitute such Form 8-K Required
Information and, further, shall consult with the Depositor regarding whether to
prepare and file a Current Report on Form 8-K under Section 8.15(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 a written direction of the Depositor with regard to whether to make
and the form and content of such filing). For purposes of this paragraph,
provided that (x) the subject party has monitored for the particular event,
condition, circumstance and/or matter in accordance with the third preceding
sentence and (y) the applicable Exchange Act Reportable Event does not relate to
such party, none of the Trustee, the 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 the Master Servicer or the Special Servicer) thereof has actual
knowledge.
Upon reasonable request of the Depositor or the Trustee, each other
party hereto (including the Trustee, if the Depositor is the requesting party,
and the Depositor, if the Trustee is the requesting party) shall (and shall use
reasonable efforts to cause any Servicing Representative that is a Servicer
acting on its behalf hereunder or, solely in the case of the Trustee, any
Trustee Appointee, to) promptly provide to the requesting party any information
in its possession as is necessary or appropriate
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for the Depositor or the Trustee, as applicable, to prepare fully and properly
any Exchange Act Report with respect to the Trust in accordance with the
Securities Act, the Exchange Act and the rules and regulations promulgated
thereunder.
If, during any Exchange Act Reporting Year, a new Master Servicer,
Special Servicer or Trustee is appointed, then such new Master Servicer, Special
Servicer or Trustee, as the case may be, shall in connection with its acceptance
of such appointment provide the Depositor and, in the case of a new Master
Servicer or Special Servicer, the Trustee with such information regarding
itself, its business and operations and its experience and practices regarding
the duties it is to perform under this Agreement, as is required to be reported
by the Depositor pursuant to Item 6.02 of Form 8-K. If, during any Exchange Act
Reporting Year, the Master Servicer, Special Servicer or Trustee appoints a
Servicing Representative that constitutes a Servicer contemplated by Item
1108(a)(2) of Regulation AB, then the 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 with such information regarding itself, its business and operations
and its servicing experience and practices, as is required to be reported by the
Depositor pursuant to Item 6.02 of Form 8-K.
Each of the Trustee, any Fiscal Agent, the Master Servicer 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 8.15(b) is intended to be used in connection with
the preparation of Exchange Act Reports with respect to the Trust.
(c) If as of the beginning of any fiscal year for the Trust (other
than the initial fiscal year for the Trust), the Registered Certificates are
held in the aggregate by less than 300 holders (which may consist of (x) in the
case of Registered Certificates held in definitive form, direct Holders of such
Definitive Certificates, and/or (y) in the case of Registered Certificates held
in book-entry form through the Depository, Depository Participants having
accounts with the Depository), the Trustee shall (unless it has received a
notice from the Depositor in accordance with the second succeeding paragraph),
in accordance with the Exchange Act and the rules and regulations promulgated
thereunder, prepare, sign and timely file a Form 15 with respect to the Trust
providing notice of suspension of all reporting requirements under the Exchange
Act.
If at the beginning of any fiscal year for the Trust Fund after the
filing of a Form 15, the number of holders of record of the Certificates exceeds
the number set forth in Section 15(d) of the Exchange Act or the regulations
promulgated pursuant thereto which would cause the Trust Fund to again become
subject to the reporting requirements of the Exchange Act, the Trustee shall
recommence preparing and filing reports on Forms 10-K, 10-D and 8-K as required
pursuant to this Section 8.15 and each of the Master Servicer, the Special
Servicer and the Trustee and any other Person specified herein shall again be
subject to the monitoring, reporting, delivery and notice requirements set forth
herein regarding the Depositor's compliance with Exchange Act reporting
requirements; provided that if the Trustee recommences the preparing and filing
of Exchange Act Reports, it may, as soon as permitted by the Exchange Act, file
another Form 15.
Notwithstanding anything to the contrary herein (including the filing
of a Form 15), solely with respect to the Trust's fiscal year 2008, if the
Depositor sends a notice to the parties hereto to the effect that it has elected
to treat the Trust's fiscal year 2008 as an Exchange Act Reporting Year,
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then (i) if the Trustee has not already filed a Form 15, the Trustee shall not
file a Form 15 with respect to the Trust's fiscal year 2008 or, if the Trustee
has already filed a Form 15, the Trustee shall withdraw such Form 15, (ii) the
Trustee shall recommence or continue, as the case may be, preparing and filing
reports on Forms 10-K, 10-D and 8-K as required pursuant to this Section 8.15
with respect to the Trust's fiscal year 2008 and, if any Form 15 previously
filed has been withdrawn, the Depositor, the Master Servicer, the Special
Servicer and any other applicable Person shall promptly provide to the Trustee
all information needed by the Trustee to prepare and file any and all reports
which would have been required under the Exchange Act had such Form 15 not been
filed, and (iii) each of the Depositor, the Master Servicer, the Special
Servicer and the Trustee and any other Person specified herein shall again be
subject to the monitoring, reporting, delivery and notice requirements set forth
herein regarding the Depositor's compliance with Exchange Act reporting
requirements with respect to the Trust's fiscal year 2008 until such time as the
Depositor notifies the Trustee, the Master Servicer, the Special Servicer and
any other applicable Person that such compliance is no longer necessary.
(d) As and to the extent required by the Xxxxxxxx-Xxxxx Act of 2002
(the "Xxxxxxxx-Xxxxx Act") and the rules adopted by the Commission with respect
thereto, all Annual Reports on Form 10-K filed with the Commission shall include
such certification as complies in form and substance with the Xxxxxxxx-Xxxxx Act
and the rules and regulations promulgated thereunder (such certification, the
"Xxxxxxxx-Xxxxx Certification"; any party hereto whose officer is to sign, in
accordance with the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated
thereunder, any Xxxxxxxx-Xxxxx Certification with respect to the Trust, a
"Certifying Party"; and any officer who is to sign, in accordance with the
Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder, any
Xxxxxxxx-Xxxxx Certification, a "Certifying Officer").
(e) The Depositor shall be the Certifying Party with respect to a
Xxxxxxxx-Xxxxx Certification filed as part of each Annual Report on Form 10-K
relating to the Trust. In connection with the filing of any Annual Report on
Form 10-K with respect to the Trust as contemplated by Section 8.15(a), the
Certifying Party shall, no later than March 25 of the applicable calendar year
in which the filing is to occur, cause its Certifying Officer to execute and
deliver to the Trustee, with respect to the Trust, for filing with such Annual
Report on Form 10-K, the Xxxxxxxx-Xxxxx Certification that is to be included as
part of such Annual Report on Form 10-K.
(f) No later than (i) 12:00 noon, New York City time, on the Business
Day prior to any filing 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 8.15(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 8.15(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 8.15(a), the Trustee shall deliver a copy of such Exchange Act
Report, together with all exhibits thereto (to the extent received by the
Trustee), for review by the Depositor. Promptly upon receipt of any such report
and the accompanying exhibits, the Depositor shall promptly review such report
and the accompanying exhibits and notify the Trustee of any material
misstatements or omissions relating thereto that come to its attention, which
material misstatements or omissions the Trustee shall correct (with written
evidence of such correction to be sent to the Depositor) prior to the filing of
such report and the accompanying exhibits.
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(g) No later than March 20 of any year in which an Annual Report on
Form 10-K is to be filed with respect to the Trust, the Trustee shall cause a
Responsible Officer of the Trustee to execute and deliver to each Certifying
Party and Certifying Officer a certification (a "Trustee Backup Certification"),
which Trustee Backup Certification shall be in the form of Exhibit P attached
hereto. The Trustee shall indemnify and hold harmless each Certifying Party and
Certifying Officer to whom it delivers any Trustee Backup Certification for all
losses, liabilities, claims, damages, costs and expenses (including reasonable
attorneys' fees and expenses) resulting from a breach of any certification made
in such Trustee Backup Certification, as well as any other losses, liabilities,
claims, damages, costs and expenses (including reasonable attorneys' fees and
expenses) incurred by such Certifying Party or Certifying Officer, as the case
may be, in connection with the execution and delivery of the subject
Xxxxxxxx-Xxxxx Certification resulting from the negligence, bad faith or willful
misfeasance of the Trustee in connection with the performance by the Trustee of
its duties hereunder.
(h) No later than March 20 of any year in which an Annual Report on
Form 10-K is to be filed with respect to the Trust, unless the Master Servicer
is to be the Certifying Party, the Master Servicer shall cause an authorized
officer of the Master Servicer to execute and deliver to each Certifying Party
and Certifying Officer a certification (a "Master Servicer Backup
Certification"), which Master Servicer Backup Certification shall be in the form
of Exhibit Q attached hereto and shall cover all of the Mortgage Loans and REO
Properties. The Master Servicer shall indemnify and hold harmless each
Certifying Party and Certifying Officer to whom it delivers any Master Servicer
Backup Certification for all losses, liabilities, claims, damages, costs and
expenses (including reasonable attorneys' fees and expenses) resulting from a
breach of any certification made in such Master Servicer Backup Certification,
as well as any other losses, liabilities, claims, damages, costs and expenses
(including reasonable attorneys' fees and expenses) incurred by such Certifying
Party or Certifying Officer, as the case may be, in connection with the
execution and delivery of the subject Xxxxxxxx-Xxxxx Certification, in each
case, resulting from the negligence, bad faith or willful misfeasance of the
Master Servicer in connection with the performance by the Master Servicer of its
duties hereunder.
(i) No later than March 20 of any year in which any Annual Report on
Form 10-K is to be filed with respect to the Trust, the Special Servicer shall
cause an authorized officer of the Special Servicer to execute and deliver to
each Certifying Party and Certifying Officer a certification (a "Special
Servicer Backup Certification"), which Special Servicer Backup Certification
shall be in the form of Exhibit R attached hereto and shall cover all of the
Specially Serviced Mortgage Loans and REO Properties. The Special Servicer shall
indemnify and hold harmless each Certifying Party and Certifying Officer to whom
it delivers any Special Servicer Backup Certification for all losses,
liabilities, claims, damages, costs and expenses (including reasonable
attorneys' fees and expenses) resulting from a breach of any certification made
in such Special Servicer Backup Certification, as well as any other losses,
liabilities, claims, damages, costs and expenses (including reasonable
attorneys' fees and expenses) incurred by such Certifying Party or Certifying
Officer, as the case may be, in connection with the execution and delivery of
the subject Xxxxxxxx-Xxxxx Certification resulting from the negligence, bad
faith or willful misfeasance of the Special Servicer in connection with the
performance by the Special Servicer of its duties hereunder.
(j) The respective parties hereto agree to cooperate with all
reasonable requests made by any Certifying Party or Certifying Officer 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.
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(k) The Trustee hereby certifies that it intends to file any Annual
Report on Form 10-K with respect to the Trust for any particular fiscal year no
later than the last Business Day that is not more than 90 days following the end
of such fiscal year. Pursuant to the terms of this Agreement, the respective
parties hereto shall deliver to the Trustee, not later than March 15th of any
year in which an Annual Report on Form 10-K is to be filed with the Commission
(unless another date is specified for such item in this Agreement), any items
required to be delivered by such party that are to be an exhibit to such Annual
Report on Form 10-K.
(l) Prior to April 30 of the first year that is not an Exchange Act
Reporting Year, if at any time a Servicing Representative retained or engaged by
the 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 the Master Servicer, the
Special Servicer or the Trustee, as the case may be, shall deliver a written
notice thereof to the Depositor and shall 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, if required to be filed with the
Commission under applicable law, the consent of the applicable registered public
accounting firm to file such corresponding Annual Attestation Report with the
Commission), as and when provided under Section 3.14; provided that this
provision shall not apply to the initial Master Servicer and the subject matter
of this sentence, insofar as it relates to the initial Master Servicer, shall be
covered by the Master Servicer Indemnification Agreement. In addition, prior to
April 30 of the first year that is not an Exchange Act Reporting Year, if at any
time the Depositor delivers a written notice to the 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 the Master
Servicer, the Special Servicer or the Trustee, as the case may be, shall
promptly terminate all engagements with the subject Servicing Representative
relating to the Subject Securitization Transaction; provided that this provision
shall not apply to the initial Master Servicer and the subject matter of this
sentence, insofar as it relates to the initial Master Servicer, shall be covered
by the Master Servicer Indemnification Agreement.
(m) Each of the Master Servicer, the Special Servicer and the Trustee
shall indemnify the Depositor, LBHI and Xxxxxx Brothers for, and hold the
Depositor, LBHI and Xxxxxx Brothers 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 the Master Servicer, the
Special Servicer or the Trustee, as the case may be, or any Servicing
Representative thereof (exclusive of a Sub-Servicer identified on Exhibit K
hereto, insofar as such Sub-Servicer does not service any Mortgage Loans other
than those identified by the Depositor on the Closing Date), to deliver or cause
to be delivered to the Trustee and the Depositor), with respect to any Exchange
Act Reporting Year, as and when required or contemplated by Section 3.13 and/or
Section 3.14: (i) any Annual Statement of
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Compliance; (ii) any Annual Assessment Report; and/or (iii) any Annual
Attestation Report (together with, if required to be filed with the Commission
under applicable law, the accountants' consent authorizing the filing thereof
with the Commission).
(n) In the event the parties to this Agreement desire to further
clarify or amend any provision of this Section 8.15, this Agreement shall be
amended to reflect the new agreement between the parties covering matters in
this Section 8.15 pursuant to Section 11.01, which amendment shall not require
any Opinion of Counsel or Rating Agency confirmations or the consent of any
Certificateholder; provided that no such amendment shall diminish the filing
requirements under this Section 8.15 on the part of the parties to this
Agreement, as a collective whole, in contravention of applicable law.
(o) With respect to any notice required to be delivered by the Trustee
to the Depositor pursuant to this Section 8.15 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 Xxxx Xxxx at 000-000-0000 and Xxxxxx
Xxxx at 212-526-5850, in which event the Trustee shall also deliver the same
notice by either facsimile to Xxxx Xxxx at 000-000-0000 and Xxxxxx Xxxx at
000-000-0000 or via email to xxxxx@xxxxxx.xxx and xxxxx@xxxxxx.xxx.
SECTION 8.16. Representations and Warranties of Trustee.
(a) The Trustee hereby represents and warrants to the Master Servicer,
the Special Servicer and the Depositor and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
of America.
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) Except to the extent that the laws of certain jurisdictions
in which any part of the Trust Fund may be located require that a
co-trustee or separate trustee be appointed to act with respect to such
property as contemplated by Section 8.10, the Trustee has the full power
and authority to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
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(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement, including, but not limited to, its responsibility
to make P&I Advances if the Master Servicer fails to make a P&I Advance,
will not constitute a violation of, any law, any order or decree of any
court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the
Trustee's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Trustee to perform its
obligations under this Agreement or the financial condition of the Trustee.
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to
the Trustee, would prohibit the Trustee from entering into this Agreement
or, in the Trustee's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Trustee to
perform its obligations under this Agreement or the financial condition of
the Trustee.
(vii) Any consent, approval, authorization or order of any court
or governmental agency or body required for the execution, delivery and
performance by the Trustee of or compliance by the Trustee with this
Agreement, or the consummation of the transactions contemplated by this
Agreement, has been obtained and is effective, except where the lack of
consent, approval, authorization or order would not have a material adverse
effect on the performance by the Trustee under this Agreement.
(viii) The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
(b) The representations and warranties of the Trustee set forth in
Section 8.16(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations, warranties and
covenants, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Trustee shall be deemed to have made, as of the date
of its succession, each of the representations and warranties set forth in
Section 8.16(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 8.16(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 8.17. Appointment of a Fiscal Agent.
(a) In order to satisfy the eligibility requirements of Section 8.06
(insofar as such requirements relate to ratings), the Trustee may appoint a
Fiscal Agent. Any Fiscal Agent shall at all times maintain a long-term unsecured
debt rating of no less than "AA-" from S&P (or "A+" from S&P, if such Fiscal
Agent's short-term unsecured debt rating is at least "A-1" by S&P) and "AA-"
from Fitch (or, in the case of either Rating Agency, such other rating as shall
not result in an Adverse Rating Event with respect to any Class of Certificates
rated by such Rating Agency, as confirmed in writing by such Rating Agency).
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(b) To the extent that the Trustee is required, pursuant to the terms
of this Agreement, to make any Advance, whether as successor master servicer or
otherwise, and has failed to do so in accordance with the terms hereof, any
Fiscal Agent appointed by the Trustee shall make such Advance as and when
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 makes an
Advance pursuant to this Section 8.17(b) 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 that the Trustee is entitled to
hereunder as if it were the Trustee, except that all fees and expenses of any
Fiscal Agent (other than any 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 Fund, the Depositor, the Master Servicer or the
Special Servicer.
(d) The obligations of a Fiscal Agent set forth in this Section 8.17
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 shall belong to the successor Trustee, and which
appointment the successor Trustee shall use its best efforts to make, insofar as
such appointment is necessary for such successor Trustee to satisfy the
eligibility requirements of Section 8.06). Any successor fiscal agent so
appointed shall be required to execute and deliver to the other parties hereto a
written agreement to assume and perform the duties of a Fiscal Agent set forth
in this Agreement; provided that no such successor shall become Fiscal Agent
hereunder unless either (i) it satisfies the rating requirements of Section
8.17(a) or (ii) the Trustee shall have received written confirmation from each
Rating Agency that the succession of such proposed successor fiscal agent would
not, in and of itself, result in an Adverse Rating Event with respect to any
Class of Certificates.
(e) The Trustee shall promptly notify the other parties hereto and the
Certificateholders in writing of the appointment, resignation or removal of any
Fiscal Agent.
SECTION 8.18. Representations and Warranties of Fiscal Agent.
(a) Any Fiscal Agent shall hereby represent and warrant to each of the
other parties hereto and for the benefit of the Certificateholders, as of the
date of its appointment, that:
(i) Such Fiscal Agent is a legal entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization.
(ii) The execution and delivery of this Agreement by such Fiscal
Agent, and the performance and compliance with the terms of this Agreement
by such Fiscal Agent, will not violate such Fiscal Agent'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
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breach of, any material agreement or other instrument to which it is a
party or by which it is bound.
(iii) Such Fiscal Agent has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of such Fiscal Agent, enforceable against such Fiscal
Agent 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) Such Fiscal Agent 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 Fiscal Agent's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of such Fiscal
Agent to perform its obligations under this Agreement or the financial
condition of such Fiscal Agent.
(vi) No litigation is pending or, to the best of such Fiscal
Agent's knowledge, threatened against such Fiscal Agent that, if determined
adversely to such Fiscal Agent, would prohibit such Fiscal Agent from
entering into this Agreement or, in such Fiscal Agent's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of such Fiscal Agent to perform its obligations under this
Agreement or the financial condition of such Fiscal Agent.
(vii) Any consent, approval, authorization or order of any court
or governmental agency or body required for the execution, delivery and
performance by such Fiscal Agent of or compliance by such Fiscal Agent with
this Agreement, or the consummation of the transactions contemplated by
this Agreement, has been obtained and is effective, except where the lack
of consent, approval, authorization or order would not have a material
adverse effect on the performance by such Fiscal Agent under this
Agreement.
(b) The representations and warranties of any Fiscal Agent set forth
in Section 8.18(a) shall survive its appointment as such under 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 given prompt written notice thereof to the
other parties hereto.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective obligations
and responsibilities under this Agreement of the Depositor, the Master Servicer,
the Special Servicer, any Fiscal Agent and the Trustee (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment): (i) to the Certificateholders of all amounts held by or
on behalf of the Trustee and required hereunder to be so paid on the
Distribution Date following the earlier to occur of (A) the purchase by the
Special Servicer, any Controlling Class Certificateholder, the Master Servicer,
the Depositor or Xxxxxx Brothers of all the Mortgage Loans and each REO Property
remaining in the Trust Fund at a price equal to (1) the sum (x) of the aggregate
Purchase Price of all the Mortgage Loans and (y) the aggregate Appraised Values
of any REO Properties then included in the Trust Fund, minus (2) if the
purchaser is the Master Servicer or the Special Servicer, the aggregate amount
of unreimbursed Advances made by such Person, together with any interest accrued
and payable to such Person in respect of unreimbursed Advances in accordance
with Section 3.11(g) and, in the case of the Master Servicer, Section 4.03(d),
and any unpaid servicing compensation remaining outstanding and payable thereto
(which items shall be deemed to have been paid or reimbursed to the Master
Servicer or the Special Servicer, as the case may be, in connection with such
purchase), (B) the exchange by all the Certificateholders of all the
Certificates for all the 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
Mortgage Loan or REO Property remaining in the Trust Fund; and (ii) to the
Trustee, any Fiscal Agent, the Master Servicer, the Special Servicer and the
members, managers, officers, directors, employees and/or agents of each of them
of all amounts which may have become due and owing to any of them hereunder;
provided, however, that in no event shall the trust created hereby continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Following the date on which the aggregate Certificate Principal
Balance of the Class A-1, Class A-2, Class A-3, Class A-1A, Class A-J, Class B,
Class C, Class D, Class E, Class F and Class G Certificates is reduced to zero,
all the remaining Certificateholders, acting together (each having agreed in
writing to so act, a copy of which writing shall be delivered to the Trustee),
shall have the right, with the consent of the Master Servicer, to exchange all
of the Certificates for all of the 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 no later than 60 days prior to the anticipated date of exchange. In the
event that all the Certificateholders elect (as evidenced by a writing signed by
each Certificateholder and delivered to the Trustee) to exchange all of the
Certificates for all of the Mortgage Loans and, subject to the proviso to the
preceding sentence, each REO Property remaining in the Trust Fund, the
Certificateholders, not later than the fifth Business Day preceding the
Distribution Date on which the final distribution on the Certificates is to
occur, shall (i) deposit in the applicable Custodial Account an amount in
immediately available funds equal to all amounts then due
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and owing to the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent pursuant to Section 3.05(a), or that may be
withdrawn from the Collection Account pursuant to Section 3.05(b), but only to
the extent that such amounts are not already on deposit in the Custodial Account
and (ii) pay to the Trustee an amount, in immediately available funds, equal to
$5,000.00. In addition, on the Master Servicer Remittance Date immediately
preceding the Final Distribution Date, the Master Servicer shall transfer to the
Collection Account all amounts required to be transferred thereto on such Master
Servicer Remittance Date from the Custodial Account pursuant to the first
paragraph of Section 3.04(b), together with any other amounts on deposit in the
Custodial 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 all the Certificateholders
(each Certificateholder having agreed to such designation in a writing delivered
to the Trustee), the Mortgage Files for the remaining Mortgage Loans and REO
Properties and shall execute all assignments, endorsements and other instruments
furnished to it by the Certificateholders as shall be necessary to effectuate
transfer of the Mortgage Loans and REO Properties remaining in the Trust Fund.
Any transfer of Mortgage Loans pursuant to this paragraph shall be on a
servicing-released basis.
Each of any Controlling Class Certificateholder (with priority among
such Holders being given to the Holder of Certificates representing the greatest
Percentage Interest in the Controlling Class), the Special Servicer, the Master
Servicer, the Depositor or Xxxxxx Brothers, in that order of priority (with the
Controlling Class Certificateholder having the most senior priority), may at its
option elect to purchase all of the Mortgage Loans and each REO Property
remaining in the Trust Fund as contemplated by clause (i)(A) of the first
paragraph of this Section 9.01(a) 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 1.0% of the initial
aggregate Certificate Principal Balance of all of the Principal Balance
Certificates, and (ii) no such Person shall have the right to effect such a
purchase if, within 30 days following its delivery of a notice of election
pursuant to this paragraph, any other such Person with a higher priority shall
give notice of its election to purchase all of the Mortgage Loans and each REO
Property remaining in the Trust Fund and shall thereafter effect such purchase
in accordance with the terms hereof. If the Trust Fund is to be terminated in
connection with the Special Servicer's, a Controlling Class Certificateholder's,
the Master Servicer's, the Depositor's or Xxxxxx Brothers' purchase of all of
the Mortgage Loans and each REO Property remaining in the Trust Fund, then the
Special Servicer, a Controlling Class Certificateholder, the Master Servicer,
the Depositor or Xxxxxx Brothers, as applicable, not later than the fifth
Business Day preceding the Distribution Date on which the final distribution on
the Certificates is to occur, shall: (x) deposit, or deliver to the Master
Servicer for deposit, in the Custodial Account an amount in immediately
available funds equal to the above-described purchase price; and (y) deliver to
the Trustee an Opinion of Counsel, at the expense of the party effecting the
purchase, stating that the termination of the Trust satisfies the requirements
of a qualified liquidation under Section 860F of the Code and any regulations
thereunder. In addition, on the Master Servicer Remittance Date immediately
preceding the Final Distribution Date, the Master Servicer shall transfer to the
Collection Account all amounts required to be transferred thereto on such Master
Servicer Remittance Date from the Custodial Account pursuant to the first
paragraph of Section 3.04(b), together with any other amounts on deposit in the
Custodial Account that would otherwise be held for future distribution. Upon
confirmation that such final deposits have been made, the Trustee shall release
or cause to be released to the Special Servicer, the purchasing Controlling
Class Certificateholder, the Master Servicer, the Depositor or Xxxxxx Brothers,
as applicable, the Mortgage
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Files for the remaining Mortgage Loans and shall execute all assignments,
endorsements and other instruments furnished to it by the Special Servicer, the
purchasing Controlling Class Certificateholder, the Master Servicer, the
Depositor or Xxxxxx Brothers, as applicable, as shall be necessary to effectuate
transfer of the Mortgage Loans and REO Properties to the Special Servicer, the
purchasing Controlling Class Certificateholder, the Master Servicer, the
Depositor or Xxxxxx Brothers (or their respective designees), as applicable. Any
transfer of Mortgage Loans pursuant to this paragraph shall be on a
servicing-released basis.
Notwithstanding anything contained herein to the contrary, if at the
time or any time the option to purchase all of the Mortgage Loans and each REO
Property remaining in the Trust Fund as contemplated by clause (i)(A) of the
first paragraph of this Section 9.01(a) may be exercised, the Mortgage Loan
Seller is the Controlling Class Certificateholder and, pursuant to generally
accepted accounting principles applicable to the Mortgage Loan Seller, the
ability to exercise the option to purchase all of the Mortgage Loans and each
REO Property remaining in the Trust Fund as contemplated by clause (i)(A) of the
first paragraph of this Section 9.01(a) would cause the consolidation of the
assets and liabilities of the Trust Fund with the assets and liabilities of the
Mortgage Loan Seller, then the Mortgage Loan Seller shall not have the right to
exercise such option.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders mailed (i) if such notice is given in connection
with the Special Servicer's, a Controlling Class Certificateholder's, the Master
Servicer's, the Depositor's or Xxxxxx Brothers' purchase of the Mortgage Loans
and each REO Property 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 (ii) otherwise during the month of
such final distribution on or before the eighth day of such month, in each case
specifying (A) the Distribution Date upon which the Trust Fund will terminate
and final payment of the Certificates will be made, (B) the amount of any such
final payment and (C) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the offices of the Certificate Registrar or
such other location therein designated. The Trustee shall give such notice to
the Master Servicer, the Special Servicer and the Depositor at the time such
notice is given to Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Collection Account and/or the Loss of Value Reserve Fund that
are, in accordance with Section 4.01, allocable to payments on the Class of
Certificates so presented and surrendered.
Any funds not distributed to any Holder or Holders of Certificates of
any Class 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
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contact the remaining non-tendering Certificateholders concerning the surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholders shall be paid out of such funds. No interest shall accrue or
be payable to any former Holder on any amount held in trust hereunder. If by the
second anniversary of the delivery of such second notice, all of the
Certificates shall not have been surrendered for cancellation, then, subject to
applicable law, the Trustee shall distribute to the Class R-III
Certificateholders all unclaimed funds and other assets which remain subject
hereto.
SECTION 9.02. Additional Termination Requirements.
(a) If the Depositor, Xxxxxx Brothers, any Controlling Class
Certificateholder, the Special Servicer or the Master Servicer purchases, or
there is an exchange of all the Certificates for, all of the Mortgage Loans and
each REO Property remaining in the Trust Fund as provided in Section 9.01, then
the Trust Fund (and, accordingly, each REMIC Pool) shall be terminated in
accordance with the following additional requirements, unless the Person or
group of Persons effecting such purchase or exchange obtains at its own expense
and delivers to the Trustee and the Tax Administrator, an Opinion of Counsel,
addressed to the Trustee and the Tax Administrator, to the effect that the
failure of the Trust Fund to comply with the requirements of this Section 9.02
will not result in an Adverse REMIC Event or an Adverse Grantor Trust Event:
(i) the Tax Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax Return
for each REMIC Pool 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 Person or group of
Persons effecting the purchase of, or exchange of all the Certificates for,
all the Mortgage Loans and REO Properties 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 or exchange, as applicable, all of the assets of REMIC I and each Loan
REMIC, if any, to the appropriate Person(s) for cash or the Certificates,
as applicable; 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
Sections 4.01 and 9.01 all cash on hand (other than cash retained to meet
claims), and each REMIC Pool shall terminate at that time.
In addition, the foregoing requirements of this Section 9.02 shall
apply, mutatis mutandis, to the repurchase of any Early Defeasance Mortgage Loan
and liquidation of any related Loan REMIC if the defeasance proceeds are less
than the Purchase Price of such Early Defeasance Mortgage Loan, the Mortgagor
notifies the Master Servicer of its intent to defease the Early Defeasance
Mortgage Loan or the Mortgagor is to tender other collateral that does not
constitute a cash amount equal to or greater than the Purchase Price of the
Early Defeasance Mortgage Loan, under the circumstances described in Sections
2.03(j) and 2.03(k).
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(b) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the Tax Administrator to specify the 90-day liquidation
period for each REMIC Pool, which authorization shall be binding upon all
successor Certificateholders.
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The Tax Administrator shall elect to treat each REMIC Pool as a
REMIC under the Code and, if necessary, under applicable state law. Such
election will be made on Form 1066 or other appropriate federal or state Tax
Returns for the taxable year ending on the last day of the calendar year in
which the Certificates are issued.
(b) The REMIC I Regular Interests, the REMIC II Regular Interests and
the Regular Interest Certificates (or, in the case of the Class X Certificates,
each of the Class X REMIC III Components) are hereby designated as "regular
interests" (within the meaning of Section 860G(a)(1) of the Code) in REMIC I,
REMIC II and REMIC III, respectively. The Class R-I Certificates, the Class R-II
Certificates and the Class R-III 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, REMIC II and REMIC III, respectively. Subject to
Section 2.06(b), the related Loan REMIC Regular Interest is hereby designated as
a "regular interest" (within the meaning of Section 860G(a)(1) of the Code), and
the Class R-LR Certificates will evidence the single class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code, in each Loan
REMIC. None of the Master Servicer, the Special Servicer or the Trustee shall
(to the extent within its control) permit the creation of any other "interests"
in any REMIC Pool (within the meaning of Treasury regulations section
1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of each
REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(d) The related Plurality Residual Interest Certificateholder as to
the applicable taxable year is hereby designated as the Tax Matters Person of
each REMIC Pool, and shall act on behalf of the related REMIC in relation to any
tax matter or controversy and shall represent the related REMIC in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority; provided that the Tax Administrator is hereby
irrevocably appointed to act and shall act (in consultation with the Tax Matters
Person for each REMIC Pool) as agent and attorney-in-fact for the Tax Matters
Person for each REMIC Pool in the performance of its duties as such.
(e) For purposes of Treasury regulations section 1.860G-1(a)(4)(iii),
the related Legal Final Distribution Date for each Loan REMIC Regular Interest
(if any), each REMIC I Regular Interest, each REMIC II Regular Interest and each
Class of Regular Interest Certificates (or, in the case of the Class X
Certificates, each Class X REMIC III Component) is designated in the Preliminary
Statement hereto.
(f) Except as otherwise provided in Section 3.17(a) and subsections
(i) and (j) below, the Tax Administrator shall pay out of its own funds any and
all routine tax administration expenses of the Trust Fund incurred with respect
to each REMIC Pool (but not including any professional fees or expenses related
to audits or any administrative or judicial proceedings with respect to the
Trust Fund that involve the IRS or state tax authorities which extraordinary
expenses shall be payable or
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reimbursable to the Tax Administrator from the Trust Fund (exclusive of any
Grantor Trust Assets), unless otherwise provided in Section 10.01(i) or
10.01(j)).
(g) Within 30 days after the Closing Date, the Tax Administrator shall
prepare and file with the IRS Form 8811, "Information Return for Real Estate
Mortgage Investment Conduits (REMIC) and Issuers of Collateralized Debt
Obligations" for the Trust Fund. In addition, the Tax Administrator shall
prepare, sign and file all of the other Tax Returns in respect of each REMIC
Pool. The expenses of preparing and filing such returns shall be borne by the
Tax Administrator without any right of reimbursement therefor. The other parties
hereto shall provide on a timely basis to the Tax Administrator or its designee
such information with respect to each REMIC Pool as is in its possession and
reasonably requested by the Tax Administrator to enable it to perform its
obligations under this Section 10.01. Without limiting the generality of the
foregoing, the Depositor, within ten (10) days following the Tax Administrator's
request therefor, shall provide in writing to the Tax Administrator such
information as is reasonably requested by the Tax Administrator for tax
purposes, as to the valuations and issue prices of the Certificates, and the Tax
Administrator's duty to perform its reporting and other tax compliance
obligations under this Section 10.01 shall be subject to the condition that it
receives from the Depositor such information possessed by the Depositor that is
necessary to permit the Tax Administrator to perform such obligations.
(h) The Tax Administrator shall perform on behalf of each REMIC Pool
all reporting and other tax compliance duties that are the responsibility of
each such REMIC Pool under the Code, the REMIC Provisions or other compliance
guidance issued by the IRS or any state or local taxing authority. Included
among such duties, the Tax Administrator shall provide to: (i) any Transferor of
a Residual Interest Certificate, such information as is necessary for the
application of any tax relating to the transfer of a Residual Interest
Certificate to any Person who is not a Permitted Transferee; (ii) the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption as
required hereunder); and (iii) the IRS, the name, title, address and telephone
number of the Person who will serve as the representative of each REMIC Pool.
The parties also intend that the portion of the Trust Fund consisting of the
Loss of Value Reserve Fund shall constitute, and the affairs of such portion of
the Trust Fund shall be conducted so as to qualify as, an "outside reserve fund"
within the meaning of Treasury regulations section 1.860G-2(h) and the
provisions hereof shall be interpreted consistently with this intention.
(i) The Tax Administrator shall perform its duties hereunder so as to
maintain the status of each REMIC Pool as a REMIC under the REMIC Provisions
(and the Trustee, the Master Servicer and the Special Servicer shall assist the
Tax Administrator to the extent reasonably requested by the Tax Administrator
and to the extent of information within the Trustee's, the Master Servicer's or
the Special Servicer's possession or control). None of the Tax Administrator,
the Master Servicer, the Special Servicer or the Trustee shall knowingly take
(or cause any REMIC Pool to take) any action or fail to take (or fail to cause
to be taken) any action that, under the REMIC Provisions, if taken or not taken,
as the case may be, could result in an Adverse REMIC Event, unless the Tax
Administrator has obtained or received an Opinion of Counsel (at the expense of
the party requesting such action or at the expense of the Trust Fund if the Tax
Administrator seeks to take such action or to refrain from acting for the
benefit of the Certificateholders) to the effect that the contemplated action
will not result in an Adverse REMIC Event or an Adverse Grantor Trust Event.
None of the other parties hereto shall take any action or fail to take any
action (whether or not authorized hereunder) as to which the Tax
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Administrator has advised it in writing that the Tax Administrator has received
or obtained an Opinion of Counsel to the effect that an Adverse REMIC Event or
an Adverse Grantor Trust Event could result from such action or failure to act.
In addition, prior to taking any action with respect to any REMIC Pool, or
causing any REMIC Pool to take any action, that is not expressly permitted under
the terms of this Agreement, the Master Servicer and the Special Servicer shall
consult with the Tax Administrator or its designee, in writing, with respect to
whether such action could cause an Adverse REMIC Event or an Adverse Grantor
Trust Event to occur. The Tax Administrator may consult with counsel to make
such written advice, and the cost of same shall be borne by the party seeking to
take the action not permitted by this Agreement, but in no event at the cost or
expense of the Trust Fund or the Trustee. At all times as may be required by the
Code, the Tax Administrator shall make reasonable efforts to ensure that
substantially all of the assets of each REMIC Pool will consist of "qualified
mortgages" as defined in Section 860G(a)(3) of the Code and "permitted
investments" as defined in Section 860G(a)(5) of the Code.
(j) If any tax is imposed on any REMIC Pool, including "prohibited
transactions" taxes as defined in Section 860F(a)(2) of the Code, any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, any taxes on contributions to any REMIC Pool after the Startup Day
pursuant to Section 860G(d) of the Code, and any other tax imposed by the Code
or any applicable provisions of State or Local Tax laws (other than any tax
permitted to be incurred by the Special Servicer pursuant to Section 3.17(a)),
such tax, together with all incidental costs and expenses (including penalties
and reasonable attorneys' fees), shall be charged to and paid by: (i) the Tax
Administrator, if such tax arises out of or results from a breach by the Tax
Administrator of any of its obligations under this Section 10.01; (ii) the
Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article III or this Section
10.01; (iii) the Master Servicer, if such tax arises out of or results from a
breach by the Master Servicer of any of its obligations under Article III or
this Section 10.01; (iv) the Trustee, if such tax arises out of or results from
a breach by the Trustee of any of its obligations under Article IV, Article VIII
or this Section 10.01; (v) the Depositor, if such tax was imposed due to the
fact that any of the Xxxxxx Mortgage Loans did not, at the time of their
transfer to REMIC I or any related Loan REMIC, as applicable, constitute a
"qualified mortgage" as defined in Section 860G(a)(3) of the Code; or (vi) the
Trust Fund, excluding any Grantor Trust Assets, 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 (exclusive of any Grantor Trust
Assets). Any such amounts payable by the Trust Fund shall be paid by the Trustee
upon the written direction of the Tax Administrator out of amounts on deposit in
the Collection Account in reduction of the Available Distribution Amount
pursuant to Section 3.05(b).
(k) The Tax Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC Pool on a calendar year
and on an accrual basis.
(l) Following the Startup Day, none of the Trustee, the Master
Servicer and the Special Servicer shall accept any contributions of assets to
any REMIC Pool unless it shall have received an Opinion of Counsel (at the
expense of the party seeking to cause such contribution and in no event at the
expense of the Trust Fund or the Trustee) to the effect that the inclusion of
such assets in such REMIC Pool will not cause: (i) such REMIC Pool to fail to
qualify as a REMIC at any time that any Certificates are outstanding; or (ii)
the imposition of any tax on such REMIC Pool under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
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(m) None of the Trustee, the Master Servicer and the Special Servicer
shall consent to or, to the extent it is within the control of such Person,
permit: (i) the sale or disposition of any of the Mortgage Loans (except in
connection with (A) the default or reasonably foreseeable material default of a
Mortgage Loan, including, but not limited to, the sale or other disposition of a
Mortgaged Property acquired by deed in lieu of foreclosure, (B) the bankruptcy
of any REMIC Pool, (C) the termination of any REMIC Pool pursuant to Article IX
of this Agreement, or (D) a purchase of Mortgage Loans pursuant to or as
contemplated by Article II or III of this Agreement); (ii) the sale or
disposition of any investments in the Collection Account, the Excess Liquidation
Proceeds Account, the Custodial Account or the REO Account for gain; or (iii)
the acquisition of any assets for any REMIC Pool (other than a Mortgaged
Property acquired through foreclosure, deed in lieu of foreclosure or otherwise
in respect of a defaulted Mortgage Loan and other than Permitted Investments
acquired in accordance with Section 3.06 in connection with the investment of
funds in the Custodial Account or the REO Account); in any event unless it has
received an Opinion of Counsel (at the expense of the party seeking to cause
such sale, disposition, or acquisition but in no event at the expense of the
Trust Fund or the Trustee) to the effect that such sale, disposition, or
acquisition will not cause: (x) any REMIC Pool to fail to qualify as a REMIC at
any time that any Certificates are outstanding; or (y) the imposition of any tax
on any REMIC Pool under the REMIC Provisions or other applicable provisions of
federal, state and local law or ordinances.
(n) Except as permitted by Section 3.17(a), none of the Trustee, the
Master Servicer and the Special Servicer shall enter into any arrangement by
which any REMIC Pool will receive a fee or other compensation for services nor
permit any REMIC Pool to receive any income from assets other than "qualified
mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code.
SECTION 10.02. Grantor Trust Administration.
(a) The Tax Administrator shall treat the Grantor Trust, for tax
return preparation purposes, as a grantor trust under the Code and, if
necessary, under applicable state law and will file appropriate federal or state
Tax Returns for each taxable year ending on or after the last day of the
calendar year in which the Certificates are issued.
(b) The Tax Administrator shall pay out of its own funds any and all
routine tax administration expenses of the Trust Fund incurred with respect to
the Grantor Trust (but not including any professional fees or expenses related
to audits or any administrative or judicial proceedings with respect to the
Trust Fund that involve the IRS or state tax authorities which extraordinary
expenses shall be payable or reimbursable to the Tax Administrator from the
Grantor Trust Assets in the Trust Fund, unless otherwise provided in Section
10.02(i) or 10.02(j)).
(c) The Tax Administrator shall prepare, sign and file all of the Tax
Returns in respect of the Grantor Trust. The expenses of preparing and filing
such returns shall be borne by the Tax Administrator without any right of
reimbursement therefor.
(d) The Grantor Trust is a WHFIT that is a NMWHFIT. The Tax
Administrator will report as required under the WHFIT Regulations to the extent
such information as is reasonably necessary to enable the Tax Administrator to
do so is provided to the Tax Administrator on a timely basis. The Holders of
Class V Certificates shall provide the Tax Administrator with information
identifying any such Holders of Class V Certificates that are "middlemen" as
defined by the WHFIT
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Regulations. The Tax Administrator will not be liable for any tax reporting
penalties that may arise under the WHFIT Regulations as a result of the
Depositor incorrectly determining the status of the grantor trust as a WHFIT.
(e) The Tax Administrator, in its discretion, will report required
WHFIT information using either the cash or accrual method, except to the extent
the WHFIT Regulations specifically require a different method. The Tax
Administrator will be under no obligation to determine whether a Holder of a
Class V Certificate uses the cash or accrual method. The Tax Administrator will
make available WHFIT information to the Holders of Class V Certificates
annually. In addition, the Tax Administrator will not be responsible or liable
for providing subsequently amended, revised or updated information to any
certificate holder, unless requested by a Holder of a Class V Certificate.
(f) The Tax Administrator 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 Tax Administrator, (ii) incomplete, inaccurate or untimely
information being provided to the Tax Administrator or (iii) the inability of
the Tax Administrator, 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. Each Holder of a Class V
Certificate, by acceptance of its interest in such class of Certificates, will
be deemed to have agreed to provide the Tax Administrator with information
regarding any sale of such Certificates, including the price, amount of proceeds
and date of sale. Absent receipt of such information, and unless informed
otherwise by the Depositor, the Tax Administrator will assume there is no
secondary market trading of WHFIT interests.
(g) To the extent required by the WHFIT Regulations, the Tax
Administrator will use reasonable efforts to publish on an appropriate website
the CUSIPs for the Class V Certificates. The Tax Administrator will make
reasonable good faith efforts to keep the website accurate and updated to the
extent CUSIPs have been received. Absent the receipt of a CUSIP, the Tax
Administrator will use a reasonable identifier number in lieu of a CUSIP. The
Tax Administrator will not be liable for investor reporting delays that result
from the receipt of inaccurate or untimely CUSIP information.
(h) The Tax Administrator shall perform on behalf of the Grantor Trust
all reporting and other tax compliance duties that are required in respect
thereof under the Code, the Grantor Trust Provisions or other compliance
guidance issued by the IRS or any state or local taxing authority.
(i) The Tax Administrator shall perform its duties hereunder so as to
maintain the status of the Grantor Trust as a grantor trust under the Grantor
Trust Provisions (and the Trustee, the Master Servicer and the Special Servicer
shall assist the Tax Administrator to the extent reasonably requested by the Tax
Administrator and to the extent of information within the Trustee's, the Master
Servicer's or the Special Servicer's possession or control). None of the Tax
Administrator, Master Servicer, the Special Servicer or the Trustee shall
knowingly take (or cause the Grantor Trust to take) any action or fail to take
(or fail to cause to be taken) any action that, under the Grantor Trust
Provisions, if taken or not taken, as the case may be, could result in an
Adverse Grantor Trust Event, unless the Tax Administrator has obtained or
received an Opinion of Counsel (at the expense of the party requesting such
action or at the expense of the Trust Fund if the Tax Administrator seeks to
take such action or to refrain from taking any action for the benefit of the
Certificateholders) to the effect that the contemplated action will not result
in an Adverse Grantor Trust Event. None of the other parties
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hereto shall take any action or fail to take any action (whether or not
authorized hereunder) as to which the Tax Administrator has advised it in
writing that the Tax Administrator has received or obtained an Opinion of
Counsel to the effect that an Adverse Grantor Trust Event could result from such
action or failure to act. In addition, prior to taking any action with respect
to the Grantor Trust, or causing the Trust Fund to take any action, that is not
expressly permitted under the terms of this Agreement, the Master Servicer and
the Special Servicer shall consult with the Tax Administrator or its designee,
in writing, with respect to whether such action could cause an Adverse Grantor
Trust Event to occur. The Tax Administrator may consult with counsel to make
such written advice, and the cost of same shall be borne by the party seeking to
take the action not permitted by this Agreement, but in no event at the cost or
expense of the Trust Fund, the Tax Administrator or the Trustee.
(j) If any tax is imposed on the Grantor Trust, such tax, together
with all incidental costs and expenses (including penalties and reasonable
attorneys' fees), shall be charged to and paid by: (i) the Tax Administrator, if
such tax arises out of or results from a breach by the Tax Administrator of any
of its obligations under this Section 10.02; (ii) the Special Servicer, if such
tax arises out of or results from a breach by the Special Servicer of any of its
obligations under Article III or this Section 10.02; (iii) the Master Servicer,
if such tax arises out of or results from a breach by the Master Servicer of any
of its obligations under Article III or this Section 10.02; (iv) the Trustee, if
such tax arises out of or results from a breach by the Trustee of any of its
obligations under Article IV, Article VIII or this Section 10.02; or (v) the
portion of the Trust Fund constituting the Grantor Trust in all other instances.
(k) Notwithstanding the foregoing provisions of this Section 10.02,
the applicability of this Section 10.02 is subject to Section 2.05(b).
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders, (i) to cure any ambiguity or mistake, (ii) to correct,
modify or supplement any provision herein which may be inconsistent with any
other provision herein or with the description thereof in the Prospectus or the
Prospectus Supplement, (iii) to add any other provisions with respect to matters
or questions arising hereunder which shall not be inconsistent with the existing
provisions hereof, (iv) to relax or eliminate any requirement hereunder imposed
by the REMIC Provisions or the Grantor Trust Provisions if those provisions are
amended or clarified such that any such requirement may be relaxed or
eliminated, (v) to relax or eliminate any requirement imposed by the Securities
Act or the rules promulgated thereunder if the Securities Act or those rules are
amended or clarified so as to allow for the relaxation or elimination of that
requirement, (vi) as evidenced by an Opinion of Counsel delivered to the Master
Servicer, the Special Servicer and the Trustee, either (A) to comply with any
requirements imposed by the Code or any successor or amendatory statute or any
temporary or final regulation, revenue ruling, revenue procedure or other
written official announcement or interpretation relating to federal income tax
laws or any such proposed action which, if made effective, would apply
retroactively to any of the REMIC Pools or the Grantor Trust (if created
hereunder taking into account Section 2.05(b)) at least from the effective date
of such amendment, or (B) to avoid the occurrence of a prohibited transaction or
to reduce the incidence of any tax that would arise from any actions taken with
respect to the operation of any REMIC Pool or the Grantor Trust (if created
hereunder taking into account Section 2.05(b)), (vii) as provided in Section
5.02(d)(iv), to modify, add to or eliminate any of the provisions of Section
5.02(d)(i), (ii) or (iii) hereof, (viii) to amend any provision of Section 8.15
as contemplated by Section 8.15(n) hereof, or (ix) to otherwise modify or delete
existing provisions of this Agreement; provided that such amendment (other than
any amendment for any of the specific purposes described in clauses (i), (ii),
(iv), (v), (vi), (vii) and (viii) above) shall not adversely affect in any
material respect the interests of any Certificateholder, as evidenced by either
an Opinion of Counsel delivered to the Trustee and each other party hereto to
such effect, or an acknowledgment to such effect from the subject
Certificateholder, or, in the case of a Class of Certificates to which a rating
has been assigned by one or more Rating Agencies, written confirmation from each
applicable Rating Agency to the effect that such amendment shall not result in
an Adverse Rating Event with respect to any Class of Certificates; and provided,
further, that such amendment shall not significantly change the activities of
the Trust (insofar as such change would adversely affect the status of the Trust
as a "qualifying special purpose entity" under FASB 140).
(b) This Agreement may also be amended from time to time by the
agreement of the parties hereto with the consent of the Holders of Certificates
entitled to at least 66-2/3% of the Voting Rights allocated to the affected
Classes for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on Mortgage Loans that are required to be
distributed on any Certificate, without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a
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manner other than as described in the immediately preceding clause (i), without
the consent of the Holders of all Certificates of such Class, (iii)
significantly change the activities of the Trust (insofar as such change would
adversely affect the status of the Trust as a "qualifying special purpose
entity" under FASB 140) without the consent of the Holders of Certificates
entitled to not less than 51% of all the Voting Rights (without regard to
Certificates held by the Depositor, the Mortgage Loan Seller or any Affiliates
and/or agents of the Depositor or the Mortgage Loan Seller), (iv) modify the
provisions of this Section 11.01, without the consent of the Holders of all
Certificates then outstanding, (v) modify the Servicing Standard without the
consent of the Holders of all Regular Interest Certificates then outstanding, or
(vi) modify the specified percentage of Voting Rights which are required to be
held by Certificateholders to consent, approve or object to any particular
action pursuant to any provision of this Agreement without the consent of the
Holders of all Certificates then outstanding. Notwithstanding any other
provision of this Agreement, for purposes of the giving or withholding of
consents pursuant to this Section 11.01(b), Certificates registered in the name
of any party hereto or any Affiliate thereof shall be entitled to the same
Voting Rights with respect to matters described above as they would if any other
Person held such Certificates, so long as the subject amendment does not relate
to increasing its rights or reducing or limiting its obligations hereunder as a
party to this Agreement.
(c) Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
first have obtained or been furnished with an Opinion of Counsel addressed to
the Trustee and each other party hereto, to the effect that (i) such amendment
or the exercise of any power granted to the Trustee, the Master Servicer or the
Special Servicer in accordance with such amendment will not result in the
imposition of a tax on any REMIC Pool pursuant to the REMIC Provisions, cause
any REMIC Pool to fail to qualify as a REMIC or cause the Grantor Trust (if
created hereunder taking into account Section 2.05(b)) to fail to qualify as a
grantor trust within the meaning of the Grantor Trust Provisions at any time
that any Certificates are outstanding and (ii) such amendment complies in all
material respects with the provisions of this Section 11.01.
(d) Promptly after the execution of any such amendment, the Trustee
shall send a copy thereof to each Certificateholder.
(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 of the Master Servicer, the Special Servicer and the Trustee
may but shall not be obligated to enter into any amendment pursuant to this
section that affects its rights, duties and immunities under this Agreement or
otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer, the Special Servicer or the
Trustee requests any amendment of this Agreement that protects or is in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel required in connection therewith pursuant to Section 11.01(a)
or (c) shall be payable out of the Custodial Account, in the case of the Master
Servicer and the Special Servicer, pursuant to Section 3.05(a), or out of the
Collection Account, in the case of the Trustee, pursuant to Section 3.05(b).
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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 Master Servicer at the expense of the Trust Fund, but only upon
direction accompanied by an Opinion of Counsel (the cost of which may be paid
out of the Custodial Account pursuant to Section 3.05(a)), to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders; provided, however, that neither the Master Servicer nor the
Trustee shall have any 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 Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Person previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates entitled to at least 25% of the Voting
Rights shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and (except
in the case of a default by the Trustee) 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
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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; Consent to Jurisdiction.
This Agreement will be governed by and construed in accordance with
the laws of the State of New York, applicable to agreements negotiated, made and
to be performed entirely in said state. To the fullest extent permitted under
applicable law, the Depositor, the Master Servicer, the Special Servicer, the
Trustee and any Fiscal Agent each hereby irrevocably (i) submits to the
jurisdiction of any New York State and federal courts sitting in New York City,
to the exclusion of all other courts, with respect to matters arising out of or
relating to this Agreement, other than matters to be settled by mediation or
arbitration in accordance with Section 2.03(i); (ii) agrees that all claims with
respect to such action or proceeding shall be heard and determined in such New
York State or federal courts, to the exclusion of all other courts; (iii) waives
the defense of an inconvenient forum in connection with such action or
proceeding commenced in such New York State or federal courts; and (iv) agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law; provided that, if Section 2.03(i) is inapplicable, and
if both a New York State and a federal court sitting in New York in which an
action or proceeding has been duly and properly commenced by any party to this
Agreement regarding a matter arising out of or relating to this Agreement have
refused to accept jurisdiction over or otherwise have not accepted such action
or proceeding within, in the case of each such court, 60 days of the
commencement or filing thereof, then the words "to the exclusion of all other
courts" in clause (i) and clause (ii) of this sentence shall not apply with
regard to such action or proceeding and the reference to "shall" in clause (ii)
of this paragraph shall be deemed to be "may".
SECTION 11.05. Notices.
Unless otherwise expressly provided herein, any communications
provided for or permitted hereunder shall be in writing and shall be deemed to
have been duly given when delivered to: (i) in the case of the Depositor,
Structured Asset Securities Corporation II, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxx Xxxx-- TIAA Seasoned Commercial Mortgage Trust
2007-C4, facsimile number: (000) 000-0000; (ii) in the case of the Master
Servicer, Wachovia Bank, National Association, 0000 Xxxxxxxx Xxxxx, XXX0,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: TIAA Seasoned Commercial
Mortgage Trust 2007-C4, facsimile number: (000) 000-0000; (iii) in the case of
the Special Servicer, Centerline Servicing Inc., 0000 Xxxxx X'Xxxxxx Xxxx.,
Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxxxxx Xxxxxx, TIAA Seasoned
Commercial Mortgage Trust 2007-C4, facsimile number: (000) 000-0000; (iv) in the
case of the Trustee, Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000, Attention: Corporate Trust Services (CMBS), facsimile number:
(000) 000-0000; (v) in the case of the Underwriters, (A) Xxxxxx Brothers, Inc.,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxx-- TIAA
Seasoned Commercial Mortgage Trust 2007-C4, facsimile number: (000) 000-0000,
and (B) Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx X. Xxxxxx, facsimile number: (000) 000-0000; (vi) in
the case of the Rating Agencies, (A) Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage Surveillance, facsimile
number: (000) 000-0000, and (B) Standard & Poor's Rating Services, a division of
The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: CMBS Surveillance Department, facsimile
-270-
number: (000) 000-0000; and (vii) in the case of the initial Controlling Class
Representative, Centerline High Yield CMBS Fund III LLC, 0000 Xxxxx X'Xxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 Attention: Xxxxx Xxxxxxx, facsimile
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 Mortgage
Loans pursuant to this Agreement shall constitute a sale and not a pledge of
security for a loan. If such conveyance is deemed to be a pledge of security for
a loan, however, the Depositor and the Trustee agree that it is their intent
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor and the Trustee also
intend and agree that, in such event: (i) in order to secure performance of the
Depositor's obligations hereunder and payment of the Certificates, the Depositor
shall be deemed to have granted, and does hereby grant, to the Trustee (in such
capacity) a first priority security interest in the Depositor's entire right,
title and interest in and to the following property, whether now owned or
existing or hereafter acquired or arising-- (A) the Mortgage Loans, (B) the
Mortgage Loan Purchase Agreement, (C) all other assets included or to be
included the Trust Fund, including all principal, interest and other amounts
received or receivable on or with respect to the Mortgage Loans and due after
the Cut-off Date (other than any Principal Prepayments received on or prior to
the Cut-off Date), all amounts held from time to time in the Custodial Account,
the Collection Account, the Excess Liquidation Proceeds Account and, if
established, the REO Account, the Loss of Value Reserve Fund and the Defeasance
Deposit Account and any and all reinvestment earnings on such amounts, and all
of the Depositor's right, title and interest in and to the proceeds of any
title, hazard or other Insurance Policies related to the Mortgage Loans, and (D)
all proceeds and products of the foregoing; and (ii) this Agreement shall
constitute a security agreement under applicable law. The Depositor shall file
or cause to be filed, a UCC Financing Statement or Form UCC-1, which shall
include a Schedule I substantially in the form attached as Exhibit J hereto, in
the State of Delaware promptly following the initial issuance of the
Certificates, and the Trustee shall prepare, execute and file at each such
office, with the consent of the Depositor hereby given, continuation statements
with respect thereto, in each case within six (6) months prior to the fifth
anniversary of the immediately preceding filing. The Depositor shall cooperate
in a reasonable manner with the Trustee and the Master Servicer in preparing and
filing such continuation statements. This Section 11.07 shall constitute notice
to the Trustee pursuant to any of the requirements of the UCC.
-271-
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
Underwriter shall be a third-party beneficiary to this Agreement solely with
respect to its right to receive the reports, statements and other information to
which it is entitled hereunder, to preserve such Underwriter's rights under
Sub-Servicing Agreements as contemplated by Section 3.22(d) and, in the case of
Xxxxxx Brothers, to terminate the Trust Fund pursuant to Section 9.01. Each of
the Sub-Servicers that is a party to a Sub-Servicing Agreement in effect on the
Closing Date (or being negotiated as of the Closing Date and in effect within 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. The Mortgage Loan Seller shall be a third-party beneficiary
to this Agreement with respect to its rights as specifically provided for in the
second paragraph of Section 2.01(d). The Mortgage Loan Seller shall be a
third-party beneficiary to this Agreement with respect to its rights as
specifically provided for in Section 3.20(k). LBHI and Xxxxxx Brothers shall be
third-party beneficiaries to this Agreement with respect to their rights as
specifically provided for in Section 8.15. This Agreement may not be amended in
any manner that would materially and adversely affect the rights of any such
third-party beneficiary without its consent. No other Person, including any
Mortgagor, shall be entitled to any benefit or equitable right, remedy or claim
under this Agreement.
SECTION 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.
-272-
SECTION 11.11. Notices to Rating Agencies.
(a) The Trustee shall promptly provide notice (which notice can be set
forth on the Distribution Date Statement despite the requirements of Section
11.05) to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been
cured;
(iii) the resignation or termination of a Fiscal Agent, the
Master Servicer or the Special Servicer;
(iv) the repurchase of Mortgage Loans by the Mortgage Loan Seller
pursuant to or as contemplated by Section 2.03;
(v) the final payment to any Class of Certificateholders; and
(vi) any sale or disposition of any Mortgage Loan or REO
Property.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of the Custodial Account;
(iii) any assumption of, or release of a Mortgagor under, a
Mortgage Loan that is, or a concentration of Mortgage Loans (by the related
sponsor) that is, one of the ten (10) largest Mortgage Loans as of the date
of the assumption (by Stated Principal Balance); and
(iv) any incurrence of additional indebtedness encumbering the
Mortgaged Property securing a Mortgage Loan that is, or a concentration of
Mortgage Loans (by the related sponsor) that is, one of the ten (10)
largest Mortgage Loans as of the date that such debt is incurred (by Stated
Principal Balance).
(c) The Special Servicer shall furnish each Rating Agency with respect
to a Specially Serviced Mortgage Loan such information as the Rating Agency
shall reasonably request and which the Special Servicer can reasonably provide
in accordance with applicable law, with copies to the Trustee.
(d) To the extent applicable, each of the Master Servicer and the
Special Servicer shall promptly furnish to each Rating Agency copies of 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
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(iii) any Officer's Certificate delivered by it to the Trustee
pursuant to Section 3.11(h) or 4.03(c).
(e) The Trustee shall (i) make available to each Rating Agency, upon
reasonable notice, the items described in Section 8.14(b) and (ii) promptly
deliver to each Rating Agency a copy of any notices given pursuant to Section
7.03(a) or Section 7.03(b).
(f) The Trustee shall promptly deliver to each Rating Agency a copy of
each of the statements and reports described in Section 4.02(a) that is prepared
by it.
(g) The Master Servicer shall give each Rating Agency at least 15
days' notice prior to any reimbursement to the Master Servicer of Nonrecoverable
Advances from amounts in the Custodial Account allocable to interest on the
Mortgage Loans unless (1) the Master Servicer determines in its sole discretion
that waiting 15 days after such a notice could jeopardize the Master Servicer's
ability to recover Nonrecoverable Advances, (2) changed circumstances or new or
different information becomes known to the Master Servicer that could affect or
cause a determination of whether any Advance is a Nonrecoverable Advance,
whether to defer reimbursement of a Nonrecoverable Advance or the determination
in clause (1) above, or (3) the Master Servicer has not timely received from the
Trustee information requested by the Master Servicer to consider in determining
whether to defer reimbursement of a Nonrecoverable Advance; provided that, if
clause (1), (2) or (3) apply, the Master Servicer shall give each Rating Agency
notice of an anticipated reimbursement to the Master Servicer of Nonrecoverable
Advances from amounts in the Custodial Account allocable to interest on the
Mortgage Loans as soon as reasonably practicable in such circumstances. The
Master Servicer shall have no liability for any loss, liability or expense
resulting from any notice provided to a Rating Agency contemplated by the
immediately preceding sentence.
(h) Each of the Trustee, the Master Servicer and the Special Servicer
shall provide to each Rating Agency such other information with respect to the
Mortgage Loans and the Certificates, to the extent such party possesses such
information, as such Rating Agency shall reasonably request.
SECTION 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.
-274-
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.
STRUCTURED ASSET SECURITIES CORPORATION II
Depositor
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: Xxxxx Xxxx
Title: Senior Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
Master Servicer
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
CENTERLINE SERVICING INC.
Special Servicer
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
XXXXX FARGO BANK, N.A.
Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
TIAA SEASONED COMMERCIAL MORTGAGE TRUST 2007-C4
MORTGAGE LOAN SCHEDULE
CONTROL GROUP
NO. NO. PROPERTY NAME ADDRESS
----------------------------------------------------------------------------------------------------------------------
1 1 1000/Fox Portfolio Various
1A 0 Xxx Xxxxx 000 XX Xxxxxxxx
1B 1 0000 Xxxxxxxx 0000 XX Xxxxxxxx Xxxxxx
2 1 Algonquin Commons Portfolio 0000 Xxxxxxx Xxxx
2A 1 Algonquin Commons Phase I 0000 Xxxxxxx Xxxx
----------------------------------------------------------------------------------------------------------------------
2B 1 Algonquin Commons Phase II 1520 Xxxxxxx Xxxx
0 0 Xxxxxxxxx Xxxxxxxxx 21925,21933,21930 XX 00xx Xxxxxx
0 0 Xxxxxxxx Xxxxxx 0000-0000 Xxxxxxxx Xxxxx
5 1 Airtouch Spectrum Campus 0000 Xxxx Xxxxxx Xxxxxx
6 1 One Convention Place 000 Xxxx Xxxxxx
----------------------------------------------------------------------------------------------------------------------
7 1 Regency Portfolio Various
7A 1 Regency West VII & VIII O.B. 4400 & 0000 Xxxxxxx Xxxxxxx
7B 1 Regency West V & VI Off/Bldg 4500 & 0000 Xxxxxxx Xxxxxxx
0X 0 Xxxxxxx Xxxx 0 0000 Xxxxxxx Parkway
7D 1 Regency West 3 0000 Xxxxxxx Xxxxxxx
----------------------------------------------------------------------------------------------------------------------
7E 1 Regency West 1 50th & Westown Parkway
7F 1 Regency West 2 1401 00xx Xx.
0 0 Xxxxxxxxxx Xxxxxxx Xxxxxxxx Xxxx 0000 Xxxxxx Xxxx
9 1 Concord Airport Plaza 1200 & 0000 Xxxxxxx Xxxxxx, 0000 Xxxx Xxxxx Xxxxx
10 0 Xxxxxx Xxxxxx Xxxxxxx 0000 Xxxxx Xxxxxxx Drive
----------------------------------------------------------------------------------------------------------------------
11 1 XX Xxxx Xxxxx 000 Xxxxx Xxxxxxx Xxxx.
12 1 Specialty Laboratories 00000 Xxxxxxx Xxxxx Xxxx
13 1 Key West Corp. Cntr. II, III & IV 9410, 9420 & 0000 Xxx Xxxx Xxx
14 1 Xxxxxxx Plaza Retail Center 0000-0000 Xxxx Xxxxxxx Xxx
15 1 Centrum At Crossroads Shop.Ctr. 0000 Xxxxxx Xxxxxx
----------------------------------------------------------------------------------------------------------------------
16 1 Patriot Business Park Portfolio Xxxxxxx
00X 0 Xxxxxxx Xxxxxxxx Xxxx - Xxxx 0000 Xxxxxx Drive
16B 1 Patriot Business Park West 0000 Xxxxxx Xxxx
17 1 Franklin Farm Village 13300 - 00000 Xxxxxxxx Xxxx Xx
18 1 Fairway Plaza II 0000-0000 Xxxxxxxx Xxxxxxx
----------------------------------------------------------------------------------------------------------------------
19 1 Crossroads Commons Retail SC 0000-0000 X. Xxxxxxxxxx Xxxx
20 1 Xxxxxxxx Xxxxx X/X/X Xxxxxxxx Xxxx. & Xxxx Xxxxx Xxxx
00 1 Colonnade At Union Mill 0000 Xxxxx Xxxx Xxxx
22 1 North Hills Industrial Park 16689, 00000 Xxxxxxxxxx Xxxxxx
00 0 Xxxxxxx Xxxxxx Shopping Center 0000 Xxxxx Xxx
----------------------------------------------------------------------------------------------------------------------
24 1 Xxxxx Mar Shopping Center 576 Xxxxx Mar Boulevard
25 0 Xxxxxxx Xxxxxx 260 Xxxxxx Xxxxxxx Highway
26 1 Xxxxxx Xxxxxx Packaging Dist Center 3700 Display Drive
27 1 Snellville Pavilion Shpg. 0000 Xxxxxx Xxxxxxx
28 1 Xxxxx Corporate Center 16205,16215,16225 Xxxxx Pkwy.
----------------------------------------------------------------------------------------------------------------------
29 1 Dulles Business Park 3750, 3863, 3855, 0000 Xxxxxxxxxx Xxxxx
30 2 Harbor Point Apartments 2 Harbor Point Drive
31 1 Shoppes At Xxxxxxxxxxxx Xxxxxxxx Xxxxx 000 Xxx Xxxxxxxxxxxx Xxxx
32 1 Shops At Monocacy 0000 Xxxxxxxxxx Xxxxx
33 1 2200 Renaissance 0000 Xxxxxxxxxxx Xxxx
----------------------------------------------------------------------------------------------------------------------
00 0 Xxxxx Xx Xxx Xxxx 0000 Buffalo Speedway
35 1 15 Exchange Place Xxxxxx 00 Xxxxxxxx Xxxxx
00 0 Xxxxxx Xxxxxxxx Plex 0000-0000 Xxxxx Xxxxxx Xx
37 1 Market Place And New Market Portfolio Various
37A 0 Xxx Xxxxxx Xxxxxx 0000 X Xxxxxx Xxxxxx
----------------------------------------------------------------------------------------------------------------------
37B 1 Marketplace On Xxxxxx Shopping Center 0000 Xxxxxx Xxxxxx
38 1 Xxxxx Xxxxxx 800 Xxxxx Xxxxxx Xxxxxx
00 0 Xxxxxxx Xxxx Xxxxxxxx Xxxx. 0000 Xxx Xxxx
00 0 Xxxxxxx Xxxxx 0000, 0000, 0000 Xxxxxx Xxxxxx Xxxx
41 1 The Xxxxxxx Office Portfolio Various
----------------------------------------------------------------------------------------------------------------------
41.01 1 One Kalisa Way One Kalisa Way
41.02 1 000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
41.03 1 00 Xxxx Xxxxxx Xxxxxx Xxxxxx 00 Xxxx Xxxxxx Xxxxxx Xxxxxx
42 1 Colony Place Shopping Center 7741 Colony Road
43 1 Whitehall Crossing Shopping Center 000 -000 Xxxxx Xxxxx Xxxxx
----------------------------------------------------------------------------------------------------------------------
44 2 Highland House Apartments 0000 Xxxxxxxxx Xxx
45 0 Xxxxxxxxxxx Xxxxxxxx Xxxx Xxxxxxxx Xxxx 000 Xxxxxx Xx
46 1 Pinnacle Peak Commerceplex I 00000 X. 00xx Xxxxxx
47 1 Henderson Beltway Office Center 140, 160 & 000 X Xxxxxxxxx Xxxxxx
48 1 Radcliffe At Towson 0000 Xxxx Xxxx
----------------------------------------------------------------------------------------------------------------------
49 1 Novato Fair Shopping Center 900-946 Diablo Avenue And 0000-0000 Xxxxxxx Xxxxxxxxx
50 1 Westfield Village Shopping Center Store#2160 0000-0000 Xxxxxxxx Xxxx.
51 1 Pottery/Xxxxxxx/ Xxxx Portfolio Various
51A 1 Xxxxxxx Building 00-00 Xxxx Xxxx
00X 1 Pottery Barn Building 00 Xxxx Xxxxxx
----------------------------------------------------------------------------------------------------------------------
00X 0 Xxxx Xxxxx Xxxxxxxx 000-000 Xxxxxxx Xxx
00 0 Capital Office V 0000 Xxx Xxxx
53 1 Xxxxx Xxxx Distribution Center 4200 & 0000 Xxxxxxxxx Xx
54 1 600 University Park Place 600 University Park Place
55 1 Boca Valley Plaza Shopping Center 0000 X Xxxxxxx Xxxxxxx
----------------------------------------------------------------------------------------------------------------------
56 1 Milwaukee Whole Foods 0000 Xxxxx Xxxxxxxx Xxxxxx
57 2 Entrada Apartments 0000 Xxxxxx Xxxxxx
58 1 000 Xxxxxxxxxxx Xxxxxx 000 Xxxxxxxxxxx Xxxxxx
00 0 Xxxxxxx Xxxxxxxxx Xxxx 000 Xxxxxxxxx Xxxx Xxxxx
60 1 Manokeek Village Center Sec Of Indian Highway & Xxxxx Road
----------------------------------------------------------------------------------------------------------------------
61 1 Huntington Millennium Center 000 Xxxx Xxxxxxxxxx Xxxxx
62 0 Xxxxxxxx Xxxxx Apartments 000 Xxxxxxxx Xxxxxx Xxxx
00 0 Xxxxxxxx Xxxx Portfolio Xxxxxxx
00X 0 Xxxxxxxx Xxxx - Xxxx X 11020 Sun Center Drive
63B 1 Prospect Park - Bldg. A 00000 Xxxxxxxx Xxxx Xxxxx
----------------------------------------------------------------------------------------------------------------------
64 1 0000 Xxxxxx Xxxx. (Quest) 0000 Xxxxxx Xxxxxxxxx
65 1 Springfield Office Center 0000 Xxxxxxxx Xxxxx
66 1 Xxxxxxxx'x Plaza 0000-0000 Xxxxxxxx Xxxx
00 0 Xxxx Xxxxx Business Center 0000 X. Xxxx Xxxxx Xxx. And 3950 W. Diablo Dr.
68 1 North Utica Shopping Xxxxxx 00 Xxxxx Xxxxxx
----------------------------------------------------------------------------------------------------------------------
69 1 000 Xxxxxxxxxxxx Xxxxxx Retail/Office 660 & 000 Xxxxxxxxxxxx Xxx And 000-000 0Xx Xxxxxx, Xx
70 1 Seven Square Corporate Park Portfolio Various
70A 1 Seven Square Corporate Park 9110 0000 Xxxxxxxxxxxx Xx
70B 1 Seven Square Corporate Park 0000 Xxxxxxxx Xxxxx
71 1 Xxxxx Town Plaza 0000 Xxx Xxxxx Xxxx Xx
----------------------------------------------------------------------------------------------------------------------
72 1 Xxxxxxxx Mountain Marketplace 00000 Xxxx Xxxx Xx
73 1 Warm Springs Business Center I & II 7140, 7180, 7220 And 0000 Xxxxxxxxxx Xxxx
00 0 Xxxxxxxx Xxxxx One Condominium 000 Xxxx Xxxxxx Xxxxx
75 1 Rain & Xxxx Xxxxxxxxxxx Xxxx 0000 Xxxxxxxxx Xxxxx
00 0 Pinnacle Peak 2 23610 & 00000 Xxxxx 00xx Xxxxx
----------------------------------------------------------------------------------------------------------------------
77 1 San Xxxxxxx Xxxxxxx Xxxxx Xxxxxx 000 Xxxxx Xxxxx Xxxxx Xxxxxx
78 1 Xxxxxxx Shopping Center 0000 X.X. Xxxxxx Xxxx.
79 1 Xxxxxxx & Xxxx Business Center(EJM) 1650 & 0000 Xxxx Xxxxx And 0000 Xxxxxxx Xxxxxx
80 1 Homewood Suites Hotel 000 Xxxxx Xxx Xxxxxxx
81 1 Arrowhead Commerce Center 13&14 0000 X Xxxxxxx Xxxx 0000 X. Xxxxx Xxxxxx
----------------------------------------------------------------------------------------------------------------------
82 2 Lakes At Woodmont Apartments 00000 Xxxxxxx Xxxxx
83 1 Ventana Lakes Village Center 20283, 20351, 20403, 00000 Xxxxx Xxxx Xxxxxxxx Xxxx
84 2 Fountain Villas Apartments 0000 Xxxxxxx Xxxxxx
85 2 The Woodlands Apartments 0000 Xxxxxxx Xxxxx
86 1 Bay Pointe Space Center 0000 Xxxxx Xxxx Xxxx Xxxx
----------------------------------------------------------------------------------------------------------------------
87 1 Publix At Westchase 00000 X Xxxxxxxxx Xxx
88 1 Shoppes Of Williston Road 0000 XX 00xx Xxxxxx
89 1 Northport/Xxxx Portfolio Xxxxxxx
00X 0 Xxxxxxxxx XXX & XXXX 0000 & 0000 Xxxxxxxx Xxxx
89B 1 Xxxx Collection Retail Center 0000 Xxxx Xxxxxxx
----------------------------------------------------------------------------------------------------------------------
90 1 Xxxxx Xxxx Shopping Center I 000-000 Xxxx Xxxxx Xxxx
91 1 Sierra Health Services 0000 Xxxxx Xxxxxxx Xxxxxx
92 1 Arrowhead Commerce Center 6275 & 0000 Xxxxx Xxxxxxxx Xx
93 1 Seven Lebanon Xxxxxx 0 Xxxxxxx Xxxxxx
94 2 Yale Village Apartments 0000 Xxxx Xxxxx
----------------------------------------------------------------------------------------------------------------------
95 1 Baymeadows Business Center 0000 Xxxxxxxx Xxxxxxx
00 0 Xxxxx Xxxxx 00000-00000 Xxxxxxxxxx Xxxxxxx
00 0 Xxxxx Xxxxxx Xxxxx Xxx Buford Highway (Georgia Highway 20) and Xxxxxxx Xxxx
00 1 0000 Xxxxx Xxxxx 0000 Xxxxx Xxxxx
00 0 Xxxxxxxxxx Xxxxxx 0000 0xx Xxxxxx XX
----------------------------------------------------------------------------------------------------------------------
100 1 75th & I-10 Commerceplex 0000 Xxxx Xxxxxxxxx Xx
101 1 Chaparral Plaza Retail Center 0000 Xxxx Xxxxxxxxx Xx
102 1 Champion Forest CVS Center 5603 F.M. 1960 West
103 0 Xxxxxxx Xxxxxxx Xx Xxxxxx Xxxxxx 0000 Xxxxxxxxxx Xxxxxx Road
104 1 St Cloud West Publix Shopping Center 0000-0000 00xx Xxxxxx
----------------------------------------------------------------------------------------------------------------------
105 1 Arrowhead Buildings 11 & 12 6275 & 0000 X. Xxxxx Xx.
106 2 The Boulevard Apartments 0000 X Xxxxxxxxx
000 0 Xxx Xxxxxxxx At Isleworth 4848- 4876 S. Apolka Vineland Road
108 1 Pinnacle Peak Commerceplex 3 23616 & 00000 Xxxxx 00xx Xxx
109 1 Commerce Office Center 0000 Xxxxxxxx Xxxxxxxxx Xxxxx Center
----------------------------------------------------------------------------------------------------------------------
110 1 Causeway Corporate Centre 0000 XX 00Xx Xxxxxx
111 1 Northgate Square Shopping Center 0000 Xxx Xxxx Xxxx
112 1 Rivergate Plaza 0000-00 XX Xxxx Xx Lucie Blvd
113 1 South Shore Harbour Shopping Center 0000 Xxxxxx Xxx Xxxxx
114 1 Xxxxx Corporate Park 0000 Xxxxx Xxxx
----------------------------------------------------------------------------------------------------------------------
115 1 Fairview Corporate Xxxxxx 000 Xxxxx 00xx Xxxxxx
000 0 Xxxxxxxxxx Xxxxxxx Shopping Center 000 Xxxxxxx Xxxx
117 1 New Market Plaza 000 Xxxxx Xxxx Xxxxxx
118 2 000 Xxxx 00xx Xxxxxx Apartments 000 Xxxx 00xx Xxxxxx
119 1 Arrowhead Building 15 0000 Xxxx Xxxx Xxxx
----------------------------------------------------------------------------------------------------------------------
120 1 0 Xxxxx Xxxxxx Xxxxx 0 Xxxxx Center Drive
121 1 Sea Island Shopping Center 1220 Xxx Xxxxxx Boulevard
122 1 Xxxxx & Xxxx Distribution Ctr - Bldg A 0000 Xxxxxxxxx Xxxxxx
123 2 Xxxxxxxxx Hill Apartments 0 Xxxxxx Xxxx Xxxx
124 1 Xxxxxxxxxx Xxxxxxx Xxxxxxxx Xxxx 00000 &7600-20 Xxxxxxxxx Way Rickenbacker Drive
----------------------------------------------------------------------------------------------------------------------
125 1 Xxxxx Portfolio Various
125A 1 Xxxxx XX 00000 Xxxxxxx Xxxx
000X 1 Xxxxx I 00000 Xxxxxxx Xxxx
126 1 Sav On Drugs 000 Xxxxxxx Xxxxx Xxx
127 1 20410 Century Boulevard 00000 Xxxxxxx Xxxx
----------------------------------------------------------------------------------------------------------------------
128 1 Columbia II Industrial Building 9475 Xxxxxx Xxxx
129 1 Blue Diamond Business Xxxx-Xxxx 0 0000 Xxxxxxx Xxxxxx
130 1 Global Motorsport 0000 Xxxxxxxxxx Xx
131 1 Columbia III Industrial Building 0000 Xxxxxx Xxxx
132 0 Xxxxxxx Xxxx Xxxxxxxx Center 0000 Xxxxxxx Xxxx
----------------------------------------------------------------------------------------------------------------------
133 1 Chart House Inc. 2700 Stemmons Complex
INITIAL MORTGAGE MONTHLY REMAINING MATURITY OR
CONTROL POOL BALANCE DEBT MORTGAGE TERM TO ANTICIPATED
NO. CITY STATE ZIP ($) SERVICE ($) RATE (%) MATURITY (MOS.) REPAYMENT DATE
-----------------------------------------------------------------------------------------------------------------------------
1 Xxxxxxxx XX 00000 120,433,338 950,023.81 8.10625 00 Xxxxxxx
0X Xxxxxxxx XX 00000 91,254,536 718,556.64 8.19167 47 6/1/2011
1B Xxxxxxxx XX 00000 29,178,803 231,467.17 7.85000 27 10/1/2009
2 Xxxxxxxxx XX 00000 95,880,566 559,990.66 5.40512 88 11/1/2014
2A Xxxxxxxxx XX 00000 75,390,383 442,497.41 5.45000 88 11/1/2014
-----------------------------------------------------------------------------------------------------------------------------
2B Xxxxxxxxx XX 00000 20,490,183 117,493.25 5.24000 88 11/1/2014
3 Xxxxxxxx XX 00000 87,519,932 535,133.33 5.72000 102 1/1/2016
4 Xxxxxx XX 00000 61,516,439 357,301.58 5.20000 75 10/1/2013
5 Xxxxxx XX 00000 60,036,328 627,824.28 8.09000 45 4/13/2011
6 Xxxxxxx XX 00000 54,300,000 248,422.50 5.49000 75 10/1/2013
-----------------------------------------------------------------------------------------------------------------------------
0 Xxxx Xxx Xxxxxx XX 00000 43,306,612 310,855.54 7.25000 77 12/1/2013
0X Xxxx Xxx Xxxxxx XX 00000 13,821,612 99,211.75 7.25000 77 12/1/2013
0X Xxxx Xxx Xxxxxx XX 00000 11,564,636 83,011.15 7.25000 77 12/1/2013
0X Xxxx Xxx Xxxxxx XX 00000 5,682,737 40,790.78 7.25000 77 12/1/2013
7D Xxxx Xxx Xxxxxx XX 00000 4,523,763 32,471.64 7.25000 77 12/1/2013
-----------------------------------------------------------------------------------------------------------------------------
0X Xxxx Xxx Xxxxxx XX 00000 3,856,932 27,685.11 7.25000 77 12/1/2013
7F Xxxx Xxx Xxxxxx XX 00000 3,856,932 27,685.11 7.25000 77 12/1/2013
8 Xxxx Xxxxx XX 00000 38,000,000 215,759.82 5.50000 162 1/10/2021
9 Xxxxxxx XX 00000 37,947,396 302,227.25 7.20000 54 1/1/2012
10 Xxxxxxxxx XX 00000 32,861,719 198,846.17 5.77000 54 1/1/2012
-----------------------------------------------------------------------------------------------------------------------------
11 Xxxxx XX 00000 29,771,104 175,791.94 5.55585 84 7/1/2014
12 Xxxxx Xxxxxxx XX 00000 28,200,000 111,625.00 4.75000 27 10/1/2009
13 Xxxxxxxxx XX 00000 25,291,440 145,025.72 5.34000 97 8/10/2015
14 Xxxxxx XX 00000 24,448,216 140,382.70 5.40000 101 12/10/2015
15 Xxxx XX 00000 23,198,144 170,868.33 7.34000 51 10/10/2011
-----------------------------------------------------------------------------------------------------------------------------
16 Xxxxxxxxx XX 00000 22,806,623 142,256.54 6.13000 95 6/10/2015
16A Xxxxxxxxx XX 00000 11,473,937 71,128.27 6.13000 95 6/10/2015
16B Xxxxxxxxx XX 00000 11,332,686 71,128.27 6.13000 95 6/10/2015
17 Xxxxxxx XX 00000 22,450,000 110,940.42 5.93000 89 12/10/2014
18 Xxxxxxxx XX 00000 21,976,707 160,142.95 7.38000 63 10/10/2012
-----------------------------------------------------------------------------------------------------------------------------
19 Xxx Xxxxx XX 00000 20,682,110 155,349.35 5.02000 195 10/10/2023
20 Xxxxxxxxx XX 00000 20,621,762 171,729.57 8.63000 38 9/1/2010
21 Xxxxxxx XX 00000 20,600,000 90,260.83 5.25791 85 8/10/2014
22 Xxxxx Xxxxx XX 00000 20,582,064 160,408.05 6.05000 87 10/10/2014
23 Xxxxxxx XX 00000 20,218,799 114,924.41 5.17000 90 1/10/2015
-----------------------------------------------------------------------------------------------------------------------------
24 Xxxxxxxx XX 00000 20,152,489 115,385.32 5.43000 82 5/10/2014
25 Xxxxxx XX 00000 19,983,839 113,051.20 5.33001 83 6/10/2014
26 Xxxxxxxxx XX 00000 19,708,512 113,934.11 5.44000 39 10/10/2010
27 Xxxxxxxxxx XX 00000 19,305,174 146,727.72 7.69000 50 9/10/2011
28 Xxxxxx XX 00000 18,932,663 158,474.22 6.72000 17 12/1/2008
-----------------------------------------------------------------------------------------------------------------------------
29 Xxxxxxxxx XX 00000 18,873,937 131,268.40 6.85985 61 8/10/2012
30 Xxxx Xxxxxx XX 00000 18,000,000 84,900.00 5.66000 98 9/1/2015
31 Birmingham And Xxxxxxxxx XX 00000 17,950,717 127,942.83 7.12000 62 9/1/2012
32 Xxxxxxxxx XX 00000 17,775,997 112,027.34 5.22000 150 1/10/2020
00 Xxxx Xx Xxxxxxx XX 00000 17,601,699 117,280.37 5.84000 65 12/1/2012
-----------------------------------------------------------------------------------------------------------------------------
34 Xxxxxxx XX 00000 17,367,716 105,802.76 5.60000 72 7/10/2013
35 Xxxxxx Xxxx XX 00000 17,127,806 112,913.06 5.72000 78 1/10/2014
36 Xxxxx XX 00000 16,497,615 115,551.39 6.90000 60 7/10/2012
37 Various Various Various 16,156,686 92,182.49 5.38412 101 12/10/2015
37A Xxxxxxxxxx XX 00000 9,000,000 51,352.17 5.42000 101 12/10/2015
-----------------------------------------------------------------------------------------------------------------------------
37B Xxxxxxxx XX 00000 7,156,686 40,830.32 5.34000 101 12/10/2015
38 Xxxxxxxxxxxx XX 00000 16,150,000 70,637.50 5.24861 85 8/10/2014
00 Xxxx Xxxxx Xxxxxxx XX 00000 16,022,310 104,231.13 5.73000 98 9/10/2015
40 Xxx Xxxxx XX 00000 16,000,000 98,254.00 5.50000 90 1/10/2015
41 Various NJ Various 15,712,383 89,853.45 5.02000 75 10/10/2013
-----------------------------------------------------------------------------------------------------------------------------
41.01 Xxxxxxx XX 00000 7,160,954
41.02 Xxxxxx Xxxxx XX 00000 6,118,096
41.03 Xxxxxxx XX 00000 2,433,334
42 Xxxxxxxxx XX 00000 15,624,104 103,674.75 6.59000 201 4/10/2024
43 Xxxxxxxxxxx XX 00000 15,607,807 95,720.51 5.17000 102 1/10/2016
-----------------------------------------------------------------------------------------------------------------------------
00 Xxxxx Xxxxx XX 00000 14,937,470 111,184.29 5.25000 203 6/10/2024
45 Xxxxxxxxxxx XX 00000 14,000,000 79,930.21 5.55000 105 4/10/2016
46 Xxxxxxx XX 00000 13,916,335 83,014.20 5.39000 72 7/10/2013
47 Xxxxxxxxx XX 00000 13,895,223 83,607.55 5.64000 84 7/10/2014
48 Xxxxxx XX 00000 13,782,257 78,146.55 5.34000 82 5/10/2014
-----------------------------------------------------------------------------------------------------------------------------
49 Xxxxxx XX 00000 13,695,743 73,211.13 4.47000 22 5/10/2009
50 Xxxxxxxxxxx XX 00000 13,501,308 83,937.07 6.00000 87 10/10/2014
51 Various Various Various 13,226,910 90,896.82 6.76000 65 12/10/2012
00X Xxxxxxxx XX 00000 5,125,427 35,222.52 6.76000 65 12/10/2012
51B Xxxxxxxx XX 00000 5,125,427 35,222.52 6.76000 65 12/10/2012
-----------------------------------------------------------------------------------------------------------------------------
51C Xxxxxxxxx XX 00000 2,976,055 20,451.78 6.76000 65 12/10/2012
52 Xxxxxxxxx XX 00000 13,096,105 113,697.82 7.06000 13 8/1/2008
53 Xxx Xxxxx XX 00000 13,079,778 78,589.39 5.56000 79 2/10/2014
54 Xxxxxxxxxx XX 00000 13,056,136 96,742.23 7.38000 49 8/10/2011
55 Xxxx Xxxxx XX 00000 12,614,956 74,630.27 5.60000 154 5/10/2020
-----------------------------------------------------------------------------------------------------------------------------
56 Xxxxxxxxx XX 00000 12,600,000 72,970.00 5.68000 112 11/11/2016
57 Xxx Xxxxx XX 00000 12,513,030 70,823.31 5.13000 90 1/10/2015
58 Xxxxx Xxxxxx XX 00000 12,439,608 70,018.93 5.36000 90 1/1/2015
59 Xxxxxxx XX 00000 12,402,051 190,977.50 9.15000 30 1/1/2010
60 Xxxxxxxx XX 00000 12,399,450 71,545.11 5.22000 83 6/10/2014
-----------------------------------------------------------------------------------------------------------------------------
61 Xxxxxxxx XX 00000 12,323,118 92,595.17 7.69000 60 7/10/2012
62 Xxxxxxx XX 00000 12,273,613 73,742.62 5.85000 91 2/10/2015
63 Xxxxxx Xxxxxxx XX 00000 12,205,792 71,825.31 5.50000 90 1/10/2015
63A Xxxxxx Xxxxxxx XX 00000 7,445,533 43,813.44 5.50000 90 1/10/2015
63B Xxxxxx Xxxxxxx XX 00000 4,760,259 28,011.87 5.50000 90 1/10/2015
-----------------------------------------------------------------------------------------------------------------------------
64 Xxxxxxxxxx XX 00000 12,125,756 97,165.58 7.12000 43 2/10/2011
65 Xxxxxxxxxxx XX 00000 12,043,062 100,198.75 7.71000 51 10/10/2011
66 Xxxxxxxxx XX 00000 11,402,405 79,017.56 6.89000 68 3/10/2013
67 Xxx Xxxxx XX 00000 11,149,184 63,383.73 5.21000 93 4/10/2015
68 Xxxxx XX 00000 11,133,317 62,611.57 5.32000 99 10/10/2015
-----------------------------------------------------------------------------------------------------------------------------
69 Xxxxxxxxxx XX 00000 11,000,000 60,286.36 5.18000 99 10/10/2015
70 Xxxxxxxx XX 00000 10,783,060 63,913.77 5.71000 162 1/10/2021
70A Xxxxxxxx XX 00000 5,749,528 34,078.82 5.71000 162 1/10/2021
70B Xxxxxxxx XX 00000 5,033,532 29,834.95 5.71000 162 1/10/2021
71 Xxxxx XX 00000 10,704,724 61,073.09 5.43000 85 8/10/2014
-----------------------------------------------------------------------------------------------------------------------------
72 Xxxxxxxxxx XX 00000 10,624,060 65,081.33 5.67000 73 8/10/2013
73 Xxx Xxxxx XX 00000 10,609,979 76,123.00 6.98000 47 6/10/2011
74 Xxxxxxx Xxxx XX 00000 10,523,264 75,059.78 7.18000 66 1/10/2013
75 Xxxxxxxxx XX 00000 10,405,626 82,639.33 8.25000 53 12/1/2011
76 Xxxxxxx XX 00000 10,364,588 63,977.71 6.12000 93 4/10/2015
-----------------------------------------------------------------------------------------------------------------------------
77 Xxx Xxxxxxx XX 00000 10,171,673 63,935.21 6.19000 94 5/10/2015
78 Xxxxxxxx XX 00000 10,105,944 77,745.81 6.90000 60 7/10/2012
79 Xxx Xxxxx XX 00000 10,062,811 61,485.02 5.63000 72 7/10/2013
80 Xxxxxxxxxx XX 00000 9,912,351 71,813.67 5.43000 97 8/10/2015
81 Xxx Xxxxx XX 00000 9,719,982 57,949.40 5.55000 84 7/10/2014
-----------------------------------------------------------------------------------------------------------------------------
82 Xxxxxxxxxx XX 00000 9,685,492 60,728.72 6.12000 90 1/10/2015
83 Xxxxxx XX 00000 9,433,536 53,450.21 5.14000 90 1/10/2015
84 Xxxxxxxxx XX 00000 9,352,744 54,407.95 5.39000 90 1/10/2015
85 Xxxxxx XX 00000 9,180,717 79,079.36 5.00000 159 10/10/2020
86 Xxxxxxx XX 00000 9,121,266 59,808.83 5.51000 83 6/10/2014
-----------------------------------------------------------------------------------------------------------------------------
87 Xxxxx XX 00000 9,030,510 57,836.55 5.52000 132 7/10/2018
88 Xxxxxxxxxxx XX 00000 9,000,000 51,101.01 5.50000 109 8/11/2016
89 Tampa FL Various 8,597,410 64,726.22 5.61000 208 11/10/2024
89A Xxxxx XX 00000 5,093,908 38,349.85 5.61000 208 11/10/2024
89B Xxxxx XX 00000 3,503,502 26,376.37 5.61000 208 11/10/2024
-----------------------------------------------------------------------------------------------------------------------------
90 Xx. Xxxxxxxx XX 00000 8,579,101 64,325.95 7.64000 58 5/10/2012
91 Xxx Xxxxx XX 00000 8,413,497 48,313.95 5.00000 9 4/10/2008
92 Xxx Xxxxx XX 00000 8,407,061 52,530.35 6.12000 93 4/10/2015
93 Xxxxxxx XX 00000 8,292,372 59,138.81 7.10000 60 7/10/2012
94 Xxxxxxxxx XX 00000 8,274,065 59,197.33 4.96000 209 12/10/2024
-----------------------------------------------------------------------------------------------------------------------------
95 Xxxxxxxxxxxx XX 00000 8,250,723 63,170.49 7.83000 54 1/10/2012
96 Xxxx XX 00000 8,217,389 50,059.69 5.60000 72 7/10/2013
97 Xxxxxxx XX 00000 8,215,878 56,319.21 5.77000 72 7/10/2013
98 Xxxxxxxx XX 00000 8,133,290 45,280.70 5.25000 65 12/10/2012
99 Xxxx Xxxxx XX 00000 8,092,568 53,947.35 5.72000 84 7/10/2014
-----------------------------------------------------------------------------------------------------------------------------
100 Xxxxxxx XX 00000 8,003,858 56,060.04 6.90000 60 7/10/2012
101 Xxxxxxxxxx XX 00000 7,914,033 44,377.96 5.18000 101 12/10/2015
102 Xxxxxxx XX 00000 7,820,000 43,667.95 5.35000 104 3/10/2016
000 Xxxxxx Xxxxxx XX 00000 7,712,493 47,707.18 5.95000 87 10/10/2014
000 Xx Xxxxx XX 00000 7,661,745 47,450.92 5.90000 82 5/10/2014
-----------------------------------------------------------------------------------------------------------------------------
105 Xxx Xxxxx XX 00000 7,651,245 53,590.29 6.90000 60 7/10/2012
000 Xxxxxxx XX 00000 7,600,000 44,981.16 5.88000 98 9/10/2015
107 Xxxxxxx XX 00000 7,187,957 47,353.89 5.65000 207 10/10/2024
108 Xxxxxxx XX 00000 7,075,048 38,811.62 5.16000 105 4/10/2016
109 Xxxxxxxxxx XX 00000 6,861,107 72,837.14 7.70000 73 8/10/2013
-----------------------------------------------------------------------------------------------------------------------------
000 Xx Xxxxxxxxxx XX 00000 6,801,740 41,295.87 5.85000 94 5/10/2015
111 Xxxxx XX 00000 6,784,508 45,440.76 5.64000 78 1/10/2014
000 Xxxx Xx Xxxxx XX 00000 6,762,674 39,872.90 5.66000 162 1/10/2021
113 Xxxxxx Xxxx XX 00000 6,562,988 42,840.31 5.32000 77 12/10/2013
114 Xxxxxxx Xxxxx XX 00000 6,504,097 49,377.13 7.59000 44 3/10/2011
-----------------------------------------------------------------------------------------------------------------------------
115 Xxxxxxxx XX 00000 6,193,968 38,330.10 5.99000 90 1/10/2015
116 Xxxxxx XX 00000 6,179,220 37,552.19 5.80000 89 12/10/2014
117 Xxxxxxxxxxxx XX 00000 5,970,787 34,077.39 5.32000 99 10/10/2015
000 Xxxxxx XX 00000 5,907,738 43,884.60 4.91000 196 11/10/2023
119 Xxx Xxxxx XX 00000 5,716,571 40,039.60 6.90000 60 7/10/2012
-----------------------------------------------------------------------------------------------------------------------------
120 Xxxxxxx XX 00000 5,417,902 44,994.86 7.81000 44 3/10/2011
121 Xxxxx Xxxxxxxx XX 00000 5,378,092 44,222.45 7.47000 48 7/10/2011
122 Xxx Xxxxx XX 00000 4,929,841 28,244.78 5.32000 79 2/10/2014
000 Xxxxx Xxxxxxxxx XX 00000 4,837,135 41,121.27 5.00000 162 1/10/2021
124 Xxxxxxxxxxxx XX 00000 4,767,249 30,644.68 5.48000 92 3/10/2015
-----------------------------------------------------------------------------------------------------------------------------
125 Xxxxxxxxxx XX 00000 4,759,412 29,969.00 5.85000 66 1/10/2013
125A Xxxxxxxxxx XX 00000 3,337,210 21,013.70 5.85000 66 1/10/2013
125B Xxxxxxxxxx XX 00000 1,422,203 8,955.30 5.85000 66 1/10/2013
126 Xxxxxxx Xxxxx XX 00000 4,626,679 26,611.64 5.23000 50 9/10/2011
127 Xxxxxxxxxx XX 00000 4,490,101 31,934.52 7.00000 55 2/10/2012
-----------------------------------------------------------------------------------------------------------------------------
128 Xxxxxxxx XX 00000 4,324,438 24,789.82 5.43000 165 4/10/2021
129 Xxx Xxxxx XX 00000 4,283,463 24,982.72 5.50000 97 8/10/2015
000 Xxxxx Xxxx XX 00000 3,801,484 36,094.19 7.59000 54 1/10/2012
131 Xxxxxxxx XX 00000 3,538,177 20,282.58 5.43000 165 4/10/2021
132 Xxxxxxxxx XX 00000 2,926,218 16,808.49 5.38000 99 10/10/2015
-----------------------------------------------------------------------------------------------------------------------------
000 Xxxxxx XX 00000 447,310 15,983.31 10.00000 32 3/1/2010
REMAINING INTEREST ADMINISTRATIVE CROSS
CONTROL AMORTIZATION ACCRUAL COST GROUND COLLATERALIZED
NO. TERM (MOS.) BASIS RATE (%) LEASE DEFEASANCE ARD LOAN GROUPS (1)
---------------------------------------------------------------------------------------------
1 290 30/360 0.02090 No No No Yes-A
1A 297 30/360 0.02090 No No No Yes-A
1B 267 30/360 0.02090 No No No Yes-A
2 328 30/360 0.02090 No No No Yes-B
2A 328 30/360 0.02090 No No No Yes-B
---------------------------------------------------------------------------------------------
2B 329 30/360 0.02090 No No No Yes-B
3 318 30/360 0.02090 No No No No
4 314 30/360 0.02090 No No No No
5 154 30/360 0.02090 No No No No
6 0 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
7 306 30/360 0.02090 No No No Xxx-X
0X 000 00/000 0.00000 Xx Xx No Yes-C
7B 306 30/360 0.02090 Xx Xx Xx Xxx-X
0X 000 30/360 0.02090 No No No Yes-C
7D 306 30/360 0.02090 No No No Yes-C
---------------------------------------------------------------------------------------------
7E 306 30/360 0.02090 No No No Yes-C
7F 306 30/360 0.02090 No No No Yes-C
8 360 30/360 0.02090 Yes No No No
9 234 30/360 0.02090 No No No No
10 330 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
11 334 30/360 0.02090 No No No No
12 0 30/360 0.02090 No No No No
13 337 30/360 0.04090 No No No No
14 341 30/360 0.02090 No No No No
15 291 30/360 0.02090 No Yes No No
---------------------------------------------------------------------------------------------
16 336 30/360 0.02090 No No No Yes-I
16A 341 30/360 0.02090 No No No Yes-I
16B 330 30/360 0.02090 No No No Yes-I
17 0 30/360 0.04090 No No No No
18 303 30/360 0.02090 No Yes No No
---------------------------------------------------------------------------------------------
19 195 30/360 0.04090 No No No No
20 278 30/360 0.02090 Yes No No No
21 0 30/360 0.04090 No No No No
22 207 30/360 0.02090 No No No No
23 330 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
24 346 30/360 0.02090 No Yes No No
25 347 30/360 0.02090 No Yes No No
26 339 30/360 0.02090 No No No No
27 290 30/360 0.02090 No Yes No No
28 198 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
29 303 30/360 0.02090 No No No No
30 0 30/360 0.02090 No No No No
31 302 30/360 0.02090 No No No No
32 270 30/360 0.02090 No No No No
33 270 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
34 312 30/360 0.02090 No No No No
35 270 30/360 0.02090 No Yes No No
36 300 30/360 0.02090 No No No No
37 345 30/360 0.02090 No No Yes-H
37A 348 30/360 0.02090 No No No Yes-H
---------------------------------------------------------------------------------------------
37B 341 30/360 0.02090 Yes No No Yes-H
38 0 30/360 0.04090 No No No No
39 278 30/360 0.04090 No Yes No No
40 300 30/360 0.02090 No No No No
41 315 30/360 0.02090 Yes No No
---------------------------------------------------------------------------------------------
41.01 No Yes No No
41.02 No Yes No No
41.03 Yes Yes No No
42 321 30/360 0.02090 No Yes No No
43 282 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
44 203 30/360 0.02090 No No No No
45 360 30/360 0.04090 No No No No
46 312 30/360 0.02090 No No No No
47 324 30/360 0.02090 No No No No
48 346 30/360 0.02090 No Yes No No
---------------------------------------------------------------------------------------------
49 321 30/360 0.02090 No No No No
50 327 30/360 0.02090 No No No No
51 305 30/360 0.02090 No Yes No Yes-D
51A 305 30/360 0.02090 No Yes No Yes-D
51B 305 30/360 0.02090 No Yes No Yes-D
---------------------------------------------------------------------------------------------
51C 305 30/360 0.02090 No Yes No Yes-D
52 193 30/360 0.02090 No No No No
53 319 30/360 0.02090 No No No No
54 289 30/360 0.02090 No No No No
55 334 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
56 360 30/360 0.02090 No No No No
57 330 30/360 0.02090 No No No No
58 354 30/360 0.02090 No No No No
59 90 30/360 0.02090 No No No No
60 323 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
61 300 30/360 0.02090 No No No No
62 343 30/360 0.02090 No No No No
63 330 30/360 0.02090 No No No Yes-J
63A 330 30/360 0.02090 No No No Yes-J
63B 330 30/360 0.02090 No No No Yes-J
---------------------------------------------------------------------------------------------
64 228 30/360 0.02090 No No No No
65 238 30/360 0.02090 No Yes No No
66 308 30/360 0.02090 No No No No
67 333 30/360 0.04090 No No No No
68 351 30/360 0.02090 No Yes No No
---------------------------------------------------------------------------------------------
69 360 30/360 0.02090 Yes No No No
70 342 30/360 0.04090 No Yes No Yes-G
70A 342 30/360 0.04090 No Yes No Yes-G
70B 342 30/360 0.04090 No Yes No Yes-G
71 349 30/360 0.02090 Yes Yes No No
---------------------------------------------------------------------------------------------
72 313 30/360 0.02090 No Yes No No
73 287 30/360 0.02090 No No No No
74 306 30/360 0.02090 No No No No
75 293 30/360 0.02090 No No No No
76 344 30/360 0.04090 No No No No
---------------------------------------------------------------------------------------------
77 334 30/360 0.02090 Yes Yes No No
78 240 30/360 0.02090 No Yes No No
79 312 30/360 0.02090 Yes No No No
80 217 30/360 0.02090 No No No No
81 324 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
82 330 30/360 0.02090 No No No No
83 330 30/360 0.02090 No Yes No No
84 330 30/360 0.02090 No No No No
85 159 30/360 0.02090 No No No No
86 263 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
87 276 30/360 0.04090 No Yes No No
88 360 30/360 0.02090 No Yes No No
89 208 30/360 0.04090 No No No Yes-E
89A 208 30/360 0.04090 No No No Yes-E
89B 208 30/360 0.04090 No No No Yes-E
---------------------------------------------------------------------------------------------
90 298 30/360 0.02090 No No No No
91 311 30/360 0.02090 No No No No
92 333 30/360 0.04090 No No No No
93 300 30/360 0.02090 No No No No
94 209 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
95 294 30/360 0.04090 No No No No
96 312 30/360 0.02090 No No No No
97 260 30/360 0.02090 No Yes No No
98 353 30/360 0.02090 No No No No
99 264 30/360 0.04090 No Yes No No
---------------------------------------------------------------------------------------------
100 300 30/360 0.02090 No No No No
101 341 30/360 0.02090 No Yes No No
102 360 30/360 0.02090 No No No No
103 327 30/360 0.02090 No Yes No No
104 322 30/360 0.04090 No Yes No No
---------------------------------------------------------------------------------------------
105 300 30/360 0.02090 No No No No
106 360 30/360 0.02090 No No No No
107 267 30/360 0.04090 No No No No
108 357 30/360 0.04090 No No No No
109 145 30/360 0.02090 No Yes No No
---------------------------------------------------------------------------------------------
110 334 30/360 0.02090 No Yes No No
111 258 30/360 0.04090 No Yes No No
112 342 30/360 0.04090 No Yes No No
113 257 30/360 0.02090 No No No No
114 284 30/360 0.02090 No Yes No No
---------------------------------------------------------------------------------------------
115 330 30/360 0.04090 No No No No
116 329 30/360 0.02090 No Yes No No
117 339 30/360 0.02090 No No No No
118 196 30/360 0.02090 No No No No
119 300 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
120 236 30/360 0.02090 No Yes No No
121 228 30/360 0.02090 No No No No
122 336 30/360 0.02090 No No No No
123 162 30/360 0.02090 No No No No
124 272 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
125 306 30/360 0.02090 No Yes No Yes-F
125A 306 30/360 0.02090 No Yes No Yes-F
125B 306 30/360 0.02090 No Yes No Yes-F
126 326 30/360 0.04090 No Yes No No
127 295 30/360 0.02090 No Yes No No
---------------------------------------------------------------------------------------------
128 345 30/360 0.04090 No No No No
129 337 30/360 0.02090 Yes Yes No No
130 174 30/360 0.02090 No No No No
131 345 30/360 0.04090 No No No No
132 339 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
133 30 30/360 0.02090 No No No No
SCHEDULE II
SCHEDULE OF ENVIRONMENTALLY INSURED MORTGAGE LOANS
MORTGAGE
LOAN TYPE OF DATE OF MORTGAGE LOAN
NUMBER PROPERTY NAME AND ADDRESS PROPERTY ORIGINATION SELLER
-------- ------------------------- -------- ----------- -------------
SCHEDULE III
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
COLLATERAL
ID PROPERTY NAME LOAN AMOUNT DOC TYPE EXCEPTION EXCEPTION DESCRIPTION
---------- ---------------------------- ------------- -------- --------- ----------------------------------------
272007C4 Snellville Pavilion Shpg. 20,600,000.00 NOTE 14 LOAN AMOUNT DOES NOT AGREE WITH SCHEDULE
7A2007C4 Regency West VII & VIII O.B. 14,543,446.00 NOTE 14 LOAN AMOUNT DOES NOT AGREE WITH SCHEDULE
7B2007C4 Regency West V & VI Off/Bldg 12,168,600.00 NOTE 14 LOAN AMOUNT DOES NOT AGREE WITH SCHEDULE
7C2007C4 Regency West 4 5,979,519.00 NOTE 14 LOAN AMOUNT DOES NOT AGREE WITH SCHEDULE
7D2007C4 Regency West 3 4,760,017.00 NOTE 14 LOAN AMOUNT DOES NOT AGREE WITH SCHEDULE
7E2007C4 Regency West 1 4,058,360.00 NOTE 14 LOAN AMOUNT DOES NOT AGREE WITH SCHEDULE
7F2007C4 Regency West 2 4,058,360.00 NOTE 14 LOAN AMOUNT DOES NOT AGREE WITH SCHEDULE
1212007C4 Sea Island Shopping Center 6,000,000.00 NOTE 14 LOAN AMOUNT DOES NOT AGREE WITH SCHEDULE
7A2007C4 Regency West VII & VIII O.B. 14,543,446.00 NOTE 21 WHITE-OUT / CORRECTIONS NOT INITIALED
7B2007C4 Regency West V & VI Off/Bldg 12,168,600.00 NOTE 21 WHITE-OUT / CORRECTIONS NOT INITIALED
7C2007C4 Regency West 4 5,979,519.00 NOTE 21 WHITE-OUT / CORRECTIONS NOT INITIALED
7D2007C4 Regency West 3 4,760,017.00 NOTE 21 WHITE-OUT / CORRECTIONS NOT INITIALED
7E2007C4 Regency West 1 4,058,360.00 NOTE 21 WHITE-OUT / CORRECTIONS NOT INITIALED
7F2007C4 Regency West 2 4,058,360.00 NOTE 21 WHITE-OUT / CORRECTIONS NOT INITIALED
COLLATERAL
ID NOTATION
---------- ------------------------------------------
272007C4 NOTE: $22,600,000.00 ;SCHD: $20,600,000.00
7A2007C4 SCHD:14,543,446.00
NOTE: 14,543,445.57
7B2007C4 NOTE:12,168,599.74
SCHD:12,168,600.00
7C2007C4 NOTE : 5,979,518.57
SCHD: 5,979,520.00
7D2007C4 NOTE:4,760,016.72
SCHD:4,760,017.00
7E2007C4 NOTE:4,058,359,64
SCHD:4.058,360,00
7F2007C4 NOTE:4,058,359,64
SCHD:4.058,360,00
1212007C4 NOTE: $6,450,000.00 DATED 7-2-01;
SCHD: $6,000,000.00
7A2007C4 NOTE DATE CORRECTED, MISSING INITIALS
7B2007C4 NOTE DATE CORRECTED, MISSING INITIALS
7C2007C4 NOTE DATE CORRECTED, MISSING INITIALS
7D2007C4 NOTE DATE CORRECTED, MISSING INITIALS
7E2007C4 NOTE DATE CORRECTED, MISSING INITIALS
7F2007C4 NOTE DATE CORRECTED, MISSING INITIALS
THE FOLLOWING LOANS REQUIRE CORRECTED ALLONGES - NOT REQUIRED TO CLOSE
COLLATERAL
ID PROPERTY NAME LOAN AMOUNT DOC TYPE EXCEPTION EXCEPTION DESCRIPTION NOTATION
---------- ---------------------------- ------------- -------- --------- --------------------- ---------------------
7A2007C4 Regency West VII & VIII O.B. 14,543,446.00 ALNV 14 LOAN AMOUNT DOES NOT SCHD: 14,543,446.00
AGREE WITH SCHEDULE NOTE: 14,543,445.57
ALLONGE:16,700,000.00
7B2007C4 Regency West V & VI Off/Bldg 12,168,600.00 ALNV 14 LOAN AMOUNT DOES NOT NOTE:12,168,599.74
AGREE WITH SCHEDULE SCHD:12,168,600.00
ALLONGE:14,000,000.00
7C2007C4 Regency West 4 5,979,519.00 ALNV 14 LOAN AMOUNT DOES NOT NOTE:5,979,518.57
AGREE WITH SCHEDULE SCHD: 5,979,520.00
ALLONGE:7,000,000.00
7D2007C4 Regency West 3 4,760,017.00 ALNV 14 LOAN AMOUNT DOES NOT NOTE:4,760,016.72
AGREE WITH SCHEDULE SCHD:4,760,017.00
ALLONGE:5,500,000.00
7E2007C4 Regency West 1 4,058,360.00 ALNV 14 LOAN AMOUNT DOES NOT NOTE:4,058,359,64
AGREE WITH SCHEDULE SCHD:4.058,360,00
ALLONGE:4,700,000.00
7F2007C4 Regency West 2 4,058,360.00 ALNV 14 LOAN AMOUNT DOES NOT NOTE:4,058,359,64
AGREE WITH SCHEDULE SCHD:4.058,360,00
ALLONGE:4,700,000.00
SCHEDULE IV
SCHEDULE OF MORTGAGE LOANS SECURED BY
A HOSPITALITY PROPERTY OR NURSING FACILITY
MORTGAGE
LOAN TYPE OF DATE OF MORTGAGE LOAN
NUMBER PROPERTY NAME AND ADDRESS PROPERTY ORIGINATION SELLER
-------- ------------------------- -------- ----------- -------------
80 Homewood Suites Hotel Hotel 7/29/2005 TIAA
000 Xxxxx Xxx Xxxxxxx
SCHEDULE V
SCHEDULE OF EARLY DEFEASANCE MORTGAGE LOANS
NONE.
SCHEDULE VI
SCHEDULE OF ADDITIONAL MORTGAGE LOAN ORIGINATION DOCUMENTS
NONE.
SCHEDULE VII
SCHEDULE OF ADDITIONAL SECTION 2.03 DOCUMENTS
NONE.
SCHEDULE VIII
CENTERLINE NAMING CONVENTION
Centerline Naming Convention for Electronic File Delivery
Deal Name - Prospectus Loan I.D. - Statement Type - Statement Date - Months
Covered by Statement
For Example:
JPM2000C10-00001.1-OS-12312000-12
JPM2000C10-00001.2-OS-12312000-12
JPM2000C10-00001.1-OSAR-12312000-12
JPM2000C10-00001.1-FS-12312000-12
JPM2000C10-00001.1-RR-12312000
DLJ2000CKP1-00150.1-OS-12312000-12
DLJ2000CKP1-00001.1-OSAR-12312000-12
DLJ2000CKP1-00001.1-FS-12312000-12
DLJ2000CKP1-00001.1-RR-12312000
DLJ2000CKP1-00001.1-PI-12312000
Please note there should not be any special characters in the Deal Name, i.e. no
spaces, dashes, underscores, etc.
The Prospectus I.D. should have five leading characters, a decimal point, and
the Property # (1,2,3,etc).
The Statement Types are: OS - Operating Statement (PDF or TIF format)
OSAR -Operating Statement Analysis Report & NOI ADJ Worksheet (Excel Format
named individually, not rolling format)
FS - Borrower Financial Statement (PDF or TIF)
RR - Rent Roll (Excel or PDF or TIF)
PI-- Property Inspection (Excel format)
The Statement Date should be eight characters long - MODAYEAR where MO = months
from 01 to 12, DAY = day of month from 01 to 31, YEAR = year such as 1999 or
2000 or 2001.
The Months Covered by the Statement should range from 01 to 12.
EXHIBIT A-1
FORM OF CLASS [A-1] [A-2] [A-3] [A-1A] CERTIFICATE
TIAA SEASONED COMMERCIAL MORTGAGE TRUST 2007-C4
CLASS [A-1] [A-2] [A-3] [A-1A] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Pass-Through Rate: As set forth in the Pooling and Servicing Agreement referred
to herein
Date of Pooling and Servicing Agreement: July 11, 2007
Cut-off Date: July 11, 2007
Closing Date: August 9, 2007
First Distribution Date: August 17, 2007
Master Servicer: Wachovia Bank, National Association
Special Servicer: Centerline Servicing, Inc.
Certificate No. [A-1] [A-2] [A-3] [A-1A]-___
Initial Certificate Principal Balance of this Certificate as of the Closing
Date: $___________
Class Principal Balance of all the Class [A-1] [A-2] [A-3] [A-1A] Certificates
as of the Closing Date: $_______________
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date:
[$2,091,678,319]
Trustee: Xxxxx Fargo Bank, N.A.
CUSIP No.: _____________
A-1-1
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, IF THE PURCHASE OR HOLDING OF THIS CERTIFICATE OR SUCH INTEREST
HEREIN WOULD RESULT IN A VIOLATION OF SECTION 406 OR 407 OF ERISA OR SECTION
4975 OF THE CODE OR WOULD RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER
SECTION 4975 OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION II, WACHOVIA BANK, NATIONAL ASSOCIATION, CENTERLINE
SERVICING, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE 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
A-1-2
and Servicing Agreement, dated as specified above (the "Agreement"),
between Structured Asset Securities Corporation II, as depositor (the
"Depositor", which term includes any successor entity under the Agreement),
Wachovia Bank, National Association, as master servicer (the "Master Servicer",
which term includes any successor entity under the Agreement), Centerline
Servicing, Inc., as special servicer (the "Special Servicer", which term
includes any successor entity under the Agreement), and Xxxxx Fargo Bank, N.A.,
as trustee (the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date");
provided that, if the initial Distribution Date occurs in the same calendar
month as the Closing Date, then the Record Date for the initial Distribution
Date shall be the Closing Date. Such distributions shall be in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed pursuant to the Agreement on the applicable
Distribution Date in respect of the Class of Certificates to which this
Certificate belongs. All distributions made under the Agreement in respect of
this Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with written wiring instructions generally 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 related Loss Reimbursement
Amount) 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 related Loss Reimbursement Amount, 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.
A-1-3
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account, the Collection Account and,
if established, the 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). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all
A-1-4
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust. The Agreement permits, but does not require, any Controlling Class
Certificateholder (with priority among such Holders being given to the Holder of
Certificates representing the greatest Percentage Interest in the Controlling
Class), the Special Servicer, the Master Servicer, the Depositor or Xxxxxx
Brothers Inc., in the order of priority set forth in the Agreement, to purchase
from the Trust all Mortgage Loans and any REO Properties remaining therein. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1.0% of the
initial aggregate Certificate Principal Balance of all of the Principal Balance
Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, 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 allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of any REMIC Pool as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-1-5
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
XXXXX FARGO BANK, N.A.,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1] [A-2] [A-3] [A-1A] Certificates
referred to in the within-mentioned Agreement.
Dated: _____________
XXXXX FARGO BANK, N.A.,
as Authenticating Agent
By:
------------------------------------
Authorized Officer
A-1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code
of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ________
________________________________________________________________________________
______________________) and all applicable statements and notices should be
mailed to _____________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS [X] CERTIFICATE
TIAA SEASONED COMMERCIAL MORTGAGE TRUST 2007-C4
CLASS [X] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Pass-Through Rate: As set forth in the Pooling and Servicing Agreement referred
to herein
Date of Pooling and Servicing Agreement: July 11, 2007
Cut-off Date: July 11, 2007
Closing Date: August 9, 2007
First Distribution Date: August 17, 2007
Master Servicer: Wachovia Bank, National Association
Special Servicer: Centerline Servicing, Inc.
Certificate No. [X]-___
Initial Certificate Notional Amount of this Certificate as of the Closing Date:
$____________
Class Notional Amount of all the Class [X] Certificates as of the Closing Date:
$____________
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date:
[$2,091,678,319]
Trustee: Xxxxx Fargo Bank, N.A.
CUSIP No.: _____________
A-2-1
[FOR BOOK ENTRY CERTIFICATES: UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION II, WACHOVIA BANK, NATIONAL ASSOCIATION, CENTERLINE
SERVICING, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE
A-2-2
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 Structured Asset Securities Corporation II, as depositor
(the "Depositor", which term includes any successor entity under the Agreement),
Wachovia Bank, National Association, as master servicer (the "Master Servicer",
which term includes any successor entity under the Agreement), Centerline
Servicing, Inc., as special servicer (the "Special Servicer", which term
includes any successor entity under the Agreement), and Xxxxx Fargo Bank, N.A.,
as trustee (the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date");
provided that, if the initial Distribution Date occurs in the same calendar
month as the Closing Date, then the Record Date for the initial Distribution
Date shall be the Closing Date. Such distributions shall be in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed pursuant to the Agreement on the applicable
Distribution Date in respect of the Class of Certificates to which this
Certificate belongs. All distributions made under the Agreement in respect of
this Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with written wiring instructions generally 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
A-2-3
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account, the Collection Account and,
if established, the 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, Xxxxxx Brothers Inc. 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 F-1 to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A to the Agreement or as Exhibit F-2B to the Agreement; or
(ii) an Opinion of Counsel satisfactory to the Trustee to the effect that such
Transferee is an Institutional Accredited Investor or a Qualified Institutional
Buyer and such Transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of
the Depositor, the Master Servicer, the Special Servicer, the Tax Administrator,
the Trustee, any Fiscal Agent 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
A-2-4
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 F-2A or Exhibit F-2B
attached to the Agreement are, with respect to the subject Transfer, true and
correct. Definitive Non-Registered Certificates may only be held by Qualified
Institutional Buyers and Institutional Accredited Investors.
No beneficial interest in a 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 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, Xxxxxx Brothers Inc. 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 F-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 F-2C attached to the Agreement 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 a United States
Securities Person. Any Certificate Owner
A-2-5
desiring to effect any Transfer of an 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 F-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 F-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 paragraph above this 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 second sentence of
the third paragraph above this 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
fifth paragraph above this 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 fifth paragraph above this 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
A-2-6
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, the Underwriters, the Trustee, any Fiscal Agent,
the Master Servicer, the Special Servicer, the Tax Administrator, the
Certificate Registrar and their respective Affiliates against any liability that
may result if such Transfer is not exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or 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 violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial issuance of the
Certificates or any Transfer of this Certificate or any interest herein by the
Depositor, Xxxxxx Brothers Inc. 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(a) and (b) and
407 of ERISA and the excise taxes imposed on such prohibited transactions by
Sections 4975(a) and (b) of the Code, by reason of Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) 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 any of Prohibited Transaction Exemption 91-14, a
certification to the effect that such Plan (X) is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act, (Y) is not
sponsored (within the meaning of Section 3(16)(B) of ERISA) by the Trustee, the
Depositor, any Mortgage Loan Seller, the Master Servicer, the Special Servicer,
any Sub-Servicer, any Exemption-Favored Party or any Mortgagor with respect to
Mortgage Loans constituting more than 5% of the aggregate unamortized principal
balance of all the Mortgage Loans determined as of the Closing Date, or by any
Affiliate of such Person, 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
A-2-7
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(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code.
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). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with
A-2-8
respect thereto) on or other liquidation of the last Mortgage Loan or REO
Property remaining in the Trust, and (ii) the purchase by the Depositor, Xxxxxx
Brothers Inc., the Master Servicer, the Special Servicer or any Controlling
Class Certificateholder at a price determined as provided in the Agreement of
all Mortgage Loans and any REO Properties remaining in the Trust. The Agreement
permits, but does not require, any Controlling Class Certificateholder (with
priority among such Holders being given to the Holder of Certificates
representing the greatest Percentage Interest in the Controlling Class), the
Special Servicer, the Master Servicer, the Depositor or Xxxxxx Brothers Inc., in
the order of priority set forth in the Agreement, to purchase from the Trust all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1.0% of the initial aggregate
Certificate Principal Balance of all of the Principal Balance Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, 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 allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of any REMIC Pool as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-2-9
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
XXXXX FARGO BANK, N.A.,
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: _____________
XXXXX FARGO BANK, N.A.,
as Authenticating Agent
By:
------------------------------------
Authorized Officer
A-2-10
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: ______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ________
______________________) and all applicable statements and notices should be
mailed to _____________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
X-0-00
XXXXXXX X-0
FORM OF CLASS [A-J] [B] [C] [D] [E] [F] CERTIFICATE
TIAA SEASONED COMMERCIAL MORTGAGE TRUST 2007-C4
CLASS [A-J] [B] [C] [D] [E] [F] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Pass-Through Rate: As set forth in the Pooling and Servicing Agreement referred
to herein
Date of Pooling and Servicing Agreement: July 11, 2007
Cut-off Date: July 11, 2007
Closing Date: August 9, 2007
First Distribution Date: August 17, 2007
Master Servicer: Wachovia Bank, National Association
Special Servicer: Centerline Servicing, Inc.
Certificate No. [A-J] [B] [C] [D] [E] [F]-___
Initial Certificate Principal Balance of this Certificate as of the Closing
Date: $______________
Class Principal Balance of all the Class [A-J] [B] [C] [D] [E] [F] Certificates
as of the Closing Date: $______________
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date:
[$2,091,678,319]
Trustee: Xxxxx Fargo Bank, N.A.
CUSIP No.: _____________
A-3-1
[FOR BOOK ENTRY CERTIFICATES: UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, IF THE PURCHASE OR HOLDING OF THIS CERTIFICATE OR SUCH INTEREST
HEREIN WOULD RESULT IN A VIOLATION OF SECTION 406 OR 407 OF ERISA OR SECTION
4975 OF THE CODE OR WOULD RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER
SECTION 4975 OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION II, WACHOVIA BANK, NATIONAL ASSOCIATION, CENTERLINE
SERVICING, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "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
A-3-2
"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 Structured Asset Securities Corporation II, as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), Wachovia Bank, National Association, as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement),
Centerline Servicing, Inc., as special servicer (the "Special Servicer", which
term includes any successor entity under the Agreement), and Xxxxx Fargo Bank,
N.A., as trustee (the "Trustee", which term includes any successor entity under
the Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date");
provided that, if the initial Distribution Date occurs in the same calendar
month as the Closing Date, then the Record Date for the initial Distribution
Date shall be the Closing Date. Such distributions shall be in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed pursuant to the Agreement on the applicable
Distribution Date in respect of the Class of Certificates to which this
Certificate belongs. All distributions made under the Agreement in respect of
this Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with written wiring instructions generally 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 related Loss Reimbursement
Amount) 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 related Loss Reimbursement Amount, 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.
A-3-3
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account, the Collection Account and,
if established, the 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). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
A-3-4
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust. The Agreement permits, but does not require, any Controlling Class
Certificateholder (with priority among such Holders being given to the Holder of
Certificates representing the greatest Percentage Interest in the Controlling
Class), the Special Servicer, the Master Servicer, the Depositor or Xxxxxx
Brothers Inc., in the order of priority set forth in the Agreement, to purchase
from the Trust all Mortgage Loans and any REO Properties remaining therein. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1.0% of the
initial aggregate Certificate Principal Balance of all of the Principal Balance
Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, 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 allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of any REMIC Pool as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
XXXXX FARGO BANK, N.A.,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-J] [B] [C] [D] [E] [F] Certificates
referred to in the within-mentioned Agreement.
Dated: _____________
XXXXX FARGO BANK, N.A.,
as Authenticating Agent
By:
------------------------------------
Authorized Officer
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: ______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ________
______________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S] [T] CERTIFICATE
TIAA SEASONED COMMERCIAL MORTGAGE TRUST 2007-C4
CLASS [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S] [T] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Pass-Through Rate: As set forth in the Pooling and Servicing Agreement referred
to herein
Date of Pooling and Servicing Agreement: July 11, 2007
Cut-off Date: July 11, 2007
Closing Date: August 9, 2007
First Distribution Date: August 17, 2007
Master Servicer: Wachovia Bank, National Association
Special Servicer: Centerline Servicing, Inc.
Certificate No. [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S] [T]-___
Initial Certificate Principal Balance of this Certificate as of the Closing
Date: $________________
Class Principal Balance of all the Class [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S]
[T] Certificates as of the Closing Date: $_____________
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date:
[$2,091,678,391]
Trustee: Xxxxx Fargo Bank, N.A.
CUSIP No.: _____________
A-4-1
[FOR BOOK ENTRY CERTIFICATES: UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION II, WACHOVIA BANK, NATIONAL ASSOCIATION, CENTERLINE
SERVICING, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A
A-4-2
"REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE CODE.
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
Structured Asset Securities Corporation II, as depositor (the "Depositor", which
term includes any successor entity under the Agreement), Wachovia Bank, National
Association, as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Centerline Servicing, Inc., as special
servicer (the "Special Servicer", which term includes any successor entity under
the Agreement), and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. In the event of any conflict between any provision
of this Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date");
provided that, if the initial Distribution Date occurs in the same calendar
month as the Closing Date, then the Record Date for the initial Distribution
Date shall be the Closing Date. Such distributions shall be in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed pursuant to the Agreement on the applicable
Distribution Date in respect of the Class of Certificates to which this
Certificate belongs. All distributions made under the Agreement in respect of
this Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with written wiring instructions generally 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 related Loss Reimbursement
Amount) 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
A-4-3
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 related Loss Reimbursement Amount, which reimbursement is
to occur after the date on which this Certificate is surrendered as contemplated
by the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account, the Collection Account and,
if established, the 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, Xxxxxx Brothers Inc. 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 F-1 to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit
A-4-4
F-2A to the Agreement or as Exhibit F-2B to the Agreement; or (ii) an Opinion of
Counsel satisfactory to the Trustee to the effect that such Transferee is an
Institutional Accredited Investor or a Qualified Institutional Buyer and such
Transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Tax Administrator, the
Trustee, any Fiscal Agent 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 F-2A or Exhibit F-2B attached to the
Agreement are, with respect to the subject Transfer, true and correct.
Definitive Non-Registered Certificates may only be held by Qualified
Institutional Buyers and Institutional Accredited Investors.
No beneficial interest in a 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 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, Xxxxxx Brothers Inc. 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 F-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 F-2C attached to the Agreement are, with respect to the subject
Transfer, true and correct. Furthermore, if this Certificate constitutes a Rule
144A Global Certificate for the Class T Certificates and a Transfer of any
interest herein is to be made without registration under the Securities Act, any
Certificate Owner desiring to effect a transfer of this Certificate or any
interest herein may not sell or otherwise transfer this Certificate or any
interest herein unless it has provided the Depositor with prior written notice
of such transfer (together with a copy of the certificate (executed by the
proposed transferee) or Opinion of Counsel referred to above in this paragraph);
such notice to be delivered to Structured Asset Securities Corporation II, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxx--TIAA
Seasoned Commercial Mortgage Trust 2007-C4, facsimile number: (000) 000-0000.
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
A-4-5
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 a United States
Securities Person. Any Certificate Owner desiring to effect any Transfer of an
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 F-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 F-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 paragraph above this 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 second sentence of
the third paragraph above this 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
A-4-6
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
fifth paragraph above this 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 fifth paragraph above this 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, the Underwriters, the Trustee, any Fiscal Agent,
the Master Servicer, the Special Servicer, the Tax Administrator, the
Certificate Registrar and their respective Affiliates against any liability that
may result if such Transfer is not exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or 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 violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial issuance of the
Certificates or any Transfer of this Certificate or any interest herein by the
Depositor, Xxxxxx Brothers Inc. 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
A-4-7
or such interest herein on behalf of, as named fiduciary of, as trustee of, or
with assets of a Plan; or (ii) a certification to the effect that the purchase
and holding of this Certificate or such interest herein by such prospective
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code, by reason of Sections I
and III of Prohibited Transaction Class Exemption 95-60; or (iii) 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 any of Prohibited Transaction
Exemption 91-14, a certification to the effect that such Plan (X) is an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (Y) is not sponsored (within the meaning of Section 3(16)(B) of
ERISA) by the Trustee, the Depositor, any Mortgage Loan Seller, the Master
Servicer, the Special Servicer, any Sub-Servicer, any Exemption-Favored Party or
any Mortgagor with respect to Mortgage Loans constituting more than 5% of the
aggregate unamortized principal balance of all the Mortgage Loans determined as
of the Closing Date, or by any Affiliate of such Person, 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(a) and (b) and 407 of ERISA
and the excise taxes imposed on such prohibited transactions by Sections 4975(a)
and (b) of the Code.
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). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee,
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representative, or other agent of such offeree or holder) may disclose to any
and all persons, without limitation of any kind, the tax treatment and tax
structure of the transactions (as defined in section 1.6011-4 of the Treasury
Department regulations) associated herewith and all materials of any kind
(including opinions or other tax analyses) that are provided to the taxpayer
relating to such tax treatment and tax structure.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust. The Agreement permits, but does not require, any Controlling Class
Certificateholder (with priority among such Holders being given to the Holder of
Certificates representing the greatest Percentage Interest in the Controlling
Class), the Special Servicer, the Master Servicer, the Depositor or Xxxxxx
Brothers Inc., in the order of priority set forth in the Agreement, to purchase
from the Trust all Mortgage Loans and any REO Properties remaining therein. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1.0% of the
initial aggregate Certificate Principal Balance of all of the Principal Balance
Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, 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 allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of any REMIC Pool as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
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This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
XXXXX FARGO BANK, N.A.,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S] [T]
Certificates referred to in the within-mentioned Agreement.
Dated: _____________
XXXXX FARGO BANK, N.A.,
as Authenticating Agent
By:
------------------------------------
Authorized Officer
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: ______________________________________________________
________________________________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ________
___________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by _________________________________, the
assignee named above, or ________________________________________, as its agent.
X-0-00
XXXXXXX X-0
FORM OF CLASS [R-I] [R-II] [R-III] [R-LR] CERTIFICATE
TIAA SEASONED COMMERCIAL MORTGAGE TRUST 2007-C4
CLASS [R-I] [R-II] [R-III] [R-LR] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Date of Pooling and Servicing Agreement: July 11, 2007
Cut-off Date: July 11, 2007
Closing Date: August, 2007
First Distribution Date: August 17, 2007
Master Servicer: Wachovia Bank, National Association
Special Servicer: Centerline Servicing, Inc.
Certificate No. [R-I] [R-II] [R-III] [R-LR]-___
Percentage Interest evidenced by this Certificate in the related Class: ___%
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date:
[$2,091,678,319]
Trustee: Xxxxx Fargo Bank, N.A.
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THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY 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 STRUCTURED
ASSET SECURITIES CORPORATION II, WACHOVIA BANK, NATIONAL ASSOCIATION, CENTERLINE
SERVICING, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that _______________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate (as specified
above) in that certain beneficial ownership
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interest in the Trust evidenced by all the Certificates of the same Class as
this Certificate. The Trust was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), between Structured Asset Securities Corporation II, as depositor
(the "Depositor", which term includes any successor entity under the Agreement),
Wachovia Bank, National Association, as master servicer (the "Master Servicer",
which term includes any successor entity under the Agreement), Centerline
Servicing, Inc., as special servicer (the "Special Servicer", which term
includes any successor entity under the Agreement), and Xxxxx Fargo Bank, N.A.,
as trustee (the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date");
provided that, if the initial Distribution Date occurs in the same calendar
month as the Closing Date, then the Record Date for the initial Distribution
Date shall be the Closing Date. Such distributions shall be in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed pursuant to the Agreement on the applicable
Distribution Date in respect of the Class of Certificates to which this
Certificate belongs. All distributions made under the Agreement in respect of
this Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with written wiring instructions generally 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 Custodial Account, the Collection Account and,
if established, the 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
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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, Xxxxxx
Brothers Inc. 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 F-1 to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached as
Exhibit F-2A to the Agreement; or (ii) an Opinion of Counsel satisfactory to the
Trustee to the effect that such Transferee is a Qualified Institutional Buyer
and such Transfer may be made without registration under the Securities Act
(which Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Tax Administrator, the
Trustee, any Fiscal Agent 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 the
certification 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 F-2A attached to the Agreement are, with
respect to the subject Transfer, true and correct. Residual Interest
Certificates may only be held by Qualified Institutional Buyers, and each other
Definitive Non-Registered Certificate may only be held by Qualified
Institutional Buyers and Institutional Accredited Investors.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder desiring to effect a Transfer of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, the Underwriters, the Trustee, any Fiscal Agent, the Master
Servicer, the Special Servicer, the Tax Administrator, the Certificate Registrar
and their respective Affiliates against any liability that may result if such
Transfer is not exempt from the registration and/or qualification
A-5-4
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 (each, a "Plan"), or (B) any Person who is directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan, if the purchase
and holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial issuance of the
Certificates or any Transfer of this Certificate by the Depositor, Xxxxxx
Brothers Inc. 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, either: (i) 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; 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(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Trustee
and the Tax Administrator of any change or impending change in its status as a
Permitted Transferee. In connection with any proposed Transfer of any Ownership
Interest in this Certificate, the Certificate Registrar shall require delivery
to it, and shall not register the transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit H-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its Ownership
Interest in this Certificate as a nominee, trustee or agent for any Person that
is not a Permitted Transferee, that for so long as it retains its Ownership
Interest in this Certificate, it will endeavor to remain a Permitted Transferee,
and that it has reviewed the provisions of Section 5.02(d) of
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the Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if a Responsible
Officer of either the Trustee or 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.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to Transfer its Ownership Interest
herein and (y) not to Transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Trustee and the Tax
Administrator written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury regulations section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Trustee and the Tax Administrator the following: (a) written 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 Tax Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not (i) cause any REMIC Pool to (A) cease to
qualify as a REMIC or (B) be subject to an entity-level tax caused by the
Transfer of a Residual Interest Certificate to a Person which is not a Permitted
Transferee, or (ii) cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Residual Interest
Certificate to a Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not (i) a
Disqualified Organization, (ii) any Person as to whom, as determined by the
Trustee (based upon an Opinion of Counsel, obtained at the request of the
Trustee at the expense of such Person or the Person seeking to Transfer a
Residual Interest Certificate, supporting such determination), the Transfer of a
Residual Interest Certificate may cause any REMIC Pool to fail to qualify as a
REMIC at any time that any Certificate is outstanding, (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 Tax Administrator based upon an opinion of counsel that the holding of an
Ownership Interest in a Residual Interest Certificate by such Person may cause
the Trust or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any
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federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Residual Interest Certificate to such
Person. The terms "United States", "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
A "Disqualified Non-United States Tax Person" is, with respect to any
Residual Interest Certificate, any Non-United States Tax Person or agent thereof
other than: (1) a Non-United States Tax Person that (a) holds such Residual
Interest Certificate and, for purposes of Treasury regulations section
1.860G-3(a)(3), is subject to tax under Section 882 of the Code, (b) certifies
that it understands that, for purposes of Treasury regulations section
1.860E-1(c)(4)(ii), as a holder of such Residual Interest Certificate for United
States federal income tax purposes, it may incur tax liabilities in excess of
any cash flows generated by such Residual Interest Certificate and intends to
pay taxes associated with holding such Residual Interest Certificate, and (c)
has furnished the Transferor and the Trustee with an effective IRS Form W-8ECI
or successor form and has agreed to update such form as required under the
applicable Treasury regulations; or (2) a Non-United States Tax Person that has
delivered to the Transferor, the Trustee and the Certificate Registrar an
opinion of nationally recognized tax counsel to the effect that (x) the Transfer
of such Residual Interest Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and (y) such
Transfer of such Residual Interest Certificate will not be disregarded for
United States federal income tax purposes.
A "Disqualified Partnership" is any domestic entity classified as a
partnership under the Code, if any of its beneficial owners are Disqualified
Non-United States Tax Persons or as to which the partnership agreement does not
prohibit transfers of partnership interests to 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). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee,
A-5-7
representative, or other agent of such offeree or holder) may disclose to any
and all persons, without limitation of any kind, the tax treatment and tax
structure of the transactions (as defined in section 1.6011-4 of the Treasury
Department regulations) associated herewith and all materials of any kind
(including opinions or other tax analyses) that are provided to the taxpayer
relating to such tax treatment and tax structure.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust. The Agreement permits, but does not require, any Controlling Class
Certificateholder (with priority among such Holders being given to the Holder of
Certificates representing the greatest Percentage Interest in the Controlling
Class), the Special Servicer, the Master Servicer, the Depositor or Xxxxxx
Brothers Inc., in the order of priority set forth in the Agreement, to purchase
from the Trust all Mortgage Loans and any REO Properties remaining therein. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1.0% of the
initial aggregate Certificate Principal Balance of all of the Principal Balance
Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, 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 allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of any REMIC Pool as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
A-5-8
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-5-9
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
XXXXX FARGO BANK, N.A.,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I] [R-II] [R-III] [R-LR] Certificates
referred to in the within-mentioned Agreement.
Dated: _____________
XXXXX FARGO BANK, N.A.,
as Authenticating Agent
By:
------------------------------------
Authorized Officer
A-5-10
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: ______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ________
___________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by _________________________________, the
assignee named above, or ________________________________________, as its agent.
X-0-00
XXXXXXX X-0
FORM OF CLASS V CERTIFICATE
TIAA SEASONED COMMERCIAL MORTGAGE TRUST 2007-C4
CLASS V COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Date of Pooling and Servicing Agreement: July 11, 2007
Cut-off Date: July 11, 2007
Closing Date: August 9, 2007
First Distribution Date: August 17, 2007
Master Servicer: Wachovia Bank, National Association
Special Servicer: Centerline Servicing, Inc.
Certificate No. V-___
Percentage Interest evidenced by this Certificate in Class V: ___%
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting
payments of principal due on or before such date: [$____________]
Trustee: Xxxxx Fargo Bank, National Association
A-6-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY 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 STRUCTURED
ASSET SECURITIES CORPORATION II, WACHOVIA BANK, NATIONAL ASSOCIATION, CENTERLINE
SERVICING, INC., XXXXX FARGO 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 MORTGAGE 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 V Certificates. The Trust was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), between Structured Asset Securities Corporation II, as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), Wachovia Bank, National Association, as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement),
Centerline Servicing, Inc., as special servicer (the "Special Servicer", which
term includes any successor entity under the Agreement), and Xxxxx Fargo Bank,
National Association, as trustee (the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. In the event
A-6-2
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 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date");
provided that, if the initial Distribution Date occurs in the same calendar
month as the Closing Date, then the Record Date for the initial Distribution
Date shall be the Closing Date. Such distributions shall be in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed pursuant to the Agreement on the applicable
Distribution Date in respect of the Class of Certificates to which this
Certificate belongs. All distributions made under the Agreement in respect of
this Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with written wiring instructions generally 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 Custodial Account, the Collection Account and,
if established, the 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.
A-6-3
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, Xxxxxx
Brothers Inc. 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 F-1 to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A to the Agreement or as Exhibit F-2B to the Agreement; or
(ii) an Opinion of Counsel satisfactory to the Trustee to the effect that such
Transferee is an Institutional Accredited Investor or a Qualified Institutional
Buyer and such Transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of
the Depositor, the Master Servicer, the Special Servicer, the Tax Administrator,
the Trustee, any Fiscal Agent 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 F-2A or Exhibit F-2B attached to the
Agreement are, with respect to the subject Transfer, true and correct.
Definitive Non-Registered Certificates may only be held by Qualified
Institutional Buyers and Institutional Accredited Investors.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder desiring to effect a Transfer of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, the Underwriters, any Fiscal Agent, the Master Servicer, the
Special Servicer, the Tax Administrator, the Certificate Registrar and their
respective Affiliates against any liability that may result if such Transfer is
not exempt from the registration and/or qualification requirements of the
Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or 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 violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the
A-6-4
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, Xxxxxx Brothers Inc. 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, either:
(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 on behalf of, as named fiduciary of, as trustee of,
or with assets of a Plan; or (ii) the purchase and holding of this Certificate
or such interest herein by such Transferee is exempt from the prohibited
transaction provisions of Sections 406(a) and (b) and 407 of ERISA and the
excise taxes imposed on such prohibited transactions by Sections 4975(a) and (b)
of the Code.
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). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the
A-6-5
Trust, and (ii) the purchase by the Depositor, Xxxxxx Brothers Inc., the
Master Servicer, the Special Servicer or any Controlling Class Certificateholder
at a price determined as provided in the Agreement of all Mortgage Loans and any
REO Properties remaining in the Trust. The Agreement permits, but does not
require, any Controlling Class Certificateholder (with priority among such
Holders being given to the Holder of Certificates representing the greatest
Percentage Interest in the Controlling Class), the Special Servicer, the Master
Servicer, the Depositor or Xxxxxx Brothers Inc., in the order of priority set
forth in the Agreement, to purchase from the Trust all Mortgage Loans and any
REO Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1.0% of the initial aggregate Certificate Principal
Balance of all of the Principal Balance Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, 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 allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of any REMIC Pool as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-6-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class V Certificates referred to in the
within-mentioned Agreement.
Dated: _____________
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Authenticating Agent
By:
-----------------------------------
Authorized Officer
A-6-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: ______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ________
______________) and all applicable statements and notices should be mailed to __
_______________________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
A-6-8
EXHIBIT B
FORM OF DISTRIBUTION DATE STATEMENT
See Annex D in the Prospectus Supplement
B-1
EXHIBIT C
FORM OF CUSTODIAL CERTIFICATION
To the parties listed on the attached Schedule A
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4 Commercial Mortgage
Pass-Through Certificates, Series 2007-C4 (the "Certificates")
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement
dated as of July 11, 2007, relating to the above-referenced Certificates (the
"Agreement"), Xxxxx Fargo Bank, N.A., in its capacity as trustee (the
"Trustee"), hereby certifies as to each Mortgage Loan subject as of the date
hereof to the Agreement (except as identified in the exception report attached
hereto) that: (i) all documents specified or referred to in subclause (A) of
Section 2.02(b) are in its possession or the possession of a Custodian on its
behalf; (ii) the recordation/filing contemplated by Section 2.01(c) of the
Agreement has been completed (based solely on receipt by the Trustee or by a
Custodian on its behalf of the particular recorded/filed documents); (iii) all
documents received by it or any Custodian with respect to such Mortgage Loan
have been reviewed by it or by such Custodian on its behalf and (A) appear
regular on their face (handwritten additions, changes or corrections shall not
constitute irregularities if initialed by the Mortgagor), (B) appear to have
been executed (where appropriate) and (C) purport to relate to such Mortgage
Loan; and (iv) based on the examinations referred to in Sections 2.02(a) and
2.02(b) of the Agreement and in this Certification and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (v) and (vi)(B) of the definition of "Mortgage
Loan Schedule" accurately reflects the information set forth in the Mortgage
File.
Neither the Trustee nor any Custodian is under any duty or obligation
to inspect, review or examine any of the documents, instruments, certificates or
other papers relating to the Mortgage Loans delivered to it to determine that
the same are valid, legal, effective, genuine, binding, enforceable, sufficient
or appropriate for the represented purpose or that they are other than what they
purport to be on their face. Furthermore, neither the Trustee nor any Custodian
shall have any responsibility for determining whether the text of any assignment
or endorsement is in proper or recordable form, whether the requisite recording
of any document is in accordance with the requirements of any applicable
jurisdiction, or whether a blanket assignment is permitted in any applicable
jurisdiction. In performing the review contemplated herein, the Trustee or any
Custodian may rely on the Depositor as to the purported genuineness of any such
document and any signature thereon.
C-1
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Agreement.
Respectfully,
XXXXX FARGO BANK, N.A.,
as Trustee
By:
------------------------------------
Name:
Title:
C-2
Schedule A
Centerline Servicing, Inc.
0000 Xxxxx X'Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxx, TIAA Seasoned Commercial Mortgage Trust 2007-C4
Wachovia Bank, National Association
0000 Xxxxxxxx Xxxxx
XXX0 Xxxxxxxxx, XX 00000
Attention: TIAA Seasoned Commercial Mortgage Trust 2007-C4
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Teachers Insurance and Annuity Association of America
0000 Xxxxxx Xxxxxxxx Xxxx.
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxx
Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: TIAA Seasoned Commercial Mortgage Trust 2007-C4
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: TIAA Seasoned Commercial Mortgage Trust 2007-C4
C-3
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
Xxxxx Fargo Bank, N.A.
0000 00xx Xxxxxx XX
Xxxxxxxxxxx, XX 00000
Attention: Corporate Trust Services (CMBS)--
TIAA Seasoned Commercial Mortgage Trust 2007-C4
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4 Commercial Mortgage
Pass-Through Certificates, Series 2007-C4 (the "Certificates")
In connection with the administration of the Mortgage Files held by or on
behalf of you as Trustee, under that certain Pooling and Servicing Agreement
dated as of July 11, 2007 (the "Pooling and Servicing Agreement"), by and
between Structured Asset Securities Corporation II, as depositor, Wachovia Bank,
National Association, as master servicer (the "Master Servicer"), Centerline
Servicing, Inc., as special servicer (the "Special Servicer"), and Xxxxx Fargo
Bank, N.A., as trustee (the "Trustee), the undersigned hereby requests a release
of the Mortgage File (or the portion thereof specified below) held by or on
behalf of you as Trustee, with respect to the following described Mortgage Loan
for the reason indicated below.
Property Name: _______________________________________________________
Address: _____________________________________________________________
Control No.: _________________________________________________________
If only particular documents in the Mortgage File are requested,
please specify which: __________________________________________________________
________________________________________________________________________________
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned hereby certifies
that all amounts received in connection with the Mortgage Loan
that are required to be credited to the Custodial Account
pursuant to the Pooling and Servicing Agreement, have been or
will be so credited.
______ 2. Other. (Describe) _____________________________________________
_______________________________________________________________
_______________________________________________________________
D-1-1
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
WACHOVIA BANK, N.A.
By:
----------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
----------
Xxxxx Fargo Bank, N.A.
0000 00xx Xxxxxx XX
Xxxxxxxxxxx, XX 00000
Attention: Corporate Trust Services (CMBS)--
TIAA Seasoned Commercial Mortgage Trust 2007-C4
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4 Commercial Mortgage
Pass-Through Certificates, Series 2007-C4 (the "Certificates")
In connection with the administration of the Mortgage Files held by or on
behalf of you as Trustee, under that certain Pooling and Servicing Agreement
dated as of July 11, 2007 (the "Pooling and Servicing Agreement"), by and
between Structured Asset Securities Corporation II, as depositor, Wachovia Bank,
National Association, as master servicer (the "Master Servicer"), Centerline
Servicing, Inc., as special servicer (the "Special Servicer"), and Xxxxx Fargo
Bank, N.A., as trustee (the "Trustee), the undersigned hereby requests a release
of the Mortgage File (or the portion thereof specified below) held by or on
behalf of you as Trustee, with respect to the following described Mortgage Loan
for the reason indicated below.
Property Name: _______________________________________________________
Address: _____________________________________________________________
Control No.: _________________________________________________________
If only particular documents in the Mortgage File are requested,
please specify which: __________________________________________________________
________________________________________________________________________________
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned hereby certifies
that all amounts received in connection with the Mortgage Loan
that are required to be credited to the Custodial Account
pursuant to the Pooling and Servicing Agreement, have been or
will be so credited.
______ 2. Other. (Describe) _____________________________________________
_______________________________________________________________
_______________________________________________________________
D-2-1
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof (or within such
longer period as we have indicated as part of our reason for the request),
unless the Mortgage Loan has been paid in full or otherwise liquidated, in which
case the Mortgage File (or such portion thereof) will be retained by us
permanently.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
CENTERLINE SERVICING, INC.
By:
----------------------------------
Name:
Title:
D-2-2
EXHIBIT E
FORM OF LOAN PAYOFF NOTIFICATION REPORT
LOAN PAYMENT NOTIFICATION REPORT
AS OF _____________________
X0 X00 X00 X00 X0 X0 X00 X00 X00 X00
------------------------------------------------------------------------------------------------------------
SCHEDULED PRECEDING
SHORT NAME MORTGAGE PAID FISCAL YR.
PROSPECTUS (WHEN PROPERTY LOAN THRU CURRENT MATURITY DSCR MOST RECENT
ID APPROPRIATE) TYPE STATE BALANCE DATE INTEREST RATE DATE NCR DSCR NCF
------------------------------------------------------------------------------------------------------------
SCHEDULED PAYMENTS
UNSCHEDULED PAYMENT
------------------------------------------------------------------------------------------------------------
TOTAL: $
------------------------------------------------------------------------------------------------------------
S4 SERVICER ESTIMATED INFORMATION
-----------------------------------------------
EXPECTED EXPECTED
PROSPECTUS YIELD PAYMENT DISTRIBUTION
ID MAINTENANCE DATE DATE
-----------------------------------------------
SCHEDULED PAYMENTS
UNSCHEDULED PAYMENT
-----------------------------------------------
TOTAL:
-----------------------------------------------
THE BORROWER HAS ONLY REQUESTED THE INFORMATION TO PAY-OFF. THIS DOES NOT
INDICATE A DEFINITE PAYMENT.
E-1
EXHIBIT F-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services (CMBS)--
TIAA Seasoned Commercial Mortgage Trust 2007-C4
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4, Commercial Mortgage
Pass-Through Certificates, Series 2007-C4, Class _____, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of _______, 2007 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 July 11, 2007, between Structured Asset
Securities Corporation II, as Depositor, Wachovia Bank, National Association, as
Master Servicer, Centerline Servicing, Inc., as Special Servicer, and Xxxxx
Fargo Bank, N.A. [Address], as Trustee. All capitalized terms used herein and
not otherwise defined shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, and for the benefit of the Trustee
and the Depositor, that:
1. The Transferor is the lawful owner of the Transferred Certificates
with the full right to transfer such Certificates free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any offer
to buy or accept a transfer, pledge or other disposition of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security with any person in
any manner, (d) made any general solicitation with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security by means of general advertising or in any other
manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in a Transferred Certificate or
F-1-1
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,
--------------------------------------
Print Name of Transferor
By:
----------------------------------
Name:
Title:
F-1-2
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services (CMBS)--
TIAA Seasoned Commercial Mortgage Trust 2007-C4
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4, Commercial
Mortgage Pass-Through Certificates, Series 2007-C4, Class ___,
having an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of __________, 2007 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 July 11, 2007, between
Structured Asset Securities Corporation II, as Depositor, Wachovia Bank,
National Association, as Master Servicer, Centerline Servicing, Inc., as Special
Servicer, and Xxxxx Fargo Bank, N.A.,, as Trustee. All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and warrants to you, as Certificate Registrar, and for the benefit of the
Trustee and the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it
is being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer and to whom notice is given that the resale, pledge or transfer is
being made in reliance on Rule 144A, or (b) pursuant to another exemption
from registration under the Securities Act.
F-2A-1
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust Fund created pursuant
thereto, and (e) all related matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
----------------------------------------
Print Name of 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.
----------------------------------------
Print Name of Nominee
By:
------------------------------------
Name:
Title:
F-2A-2
ANNEX 1 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended, because (i) [the Transferee] [each of the Transferee's equity
owners] owned and/or invested on a discretionary basis $________________(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
----------
(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.
F-2A-3
institution, which is supervised and examined by a state or federal
authority having supervision over any such institutions, or is a
foreign savings and loan association or equivalent institution and
(b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy of
which is attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in the
case of a U.S. savings and loan association, and not more than 18
months preceding such date of sale in the case of a foreign savings
and loan association or equivalent institution.
_____ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
_____ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory or the District of Columbia.
_____ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of the state or its political subdivisions, for the
benefit of its employees.
_____ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974.
_____ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
_____ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule 144A.
_____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1)______________________________________________________
___________________________________________________________________
__________________________________________________________________.
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated
with such Person, (ii) securities that are part of an unsold allotment to
or subscription by such Person, if such Person is a dealer, (iii) bank
deposit notes and certificates of 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
F-2A-4
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.
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
Title:
Date:
F-2A-5
ANNEX 2 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity purchasing the Transferred Certificates (the "Transferee") or,
if the Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended, because the Transferee is part of a Family of Investment Companies
(as defined below), is an executive officer of the investment adviser (the
"Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the
end of the Transferee's most recent fiscal year. For purposes of
determining the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of such securities
was used, unless the Transferee or any member of the Transferee's Family of
Investment Companies, as the case may be, reports its securities holdings
in its financial statements on the basis of their market value, and no
current information with respect to the cost of those securities has been
published, in which case the securities of such entity were valued at
market.
_____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
_____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than
the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
F-2A-6
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies, (ii) bank deposit notes
and certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, or owned by the Transferee's Family
of Investment Companies, the securities referred to in this paragraph were
excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one
or more sales to the Transferee will be in reliance on Rule 144A.
_____ _____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of such third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until
such notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant
to which the Transferred Certificates were issued.
----------------------------------------
Print Name of Transferee or Adviser
By:
------------------------------------
Name:
Title:
Date:
F-2A-7
IF ABOVE IS AN ADVISER:
----------------------------------------
Print Name of Transferee
Date:
----------------------------------
F-2A-8
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.,
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services (CMBS)-- TIAA Seasoned Commercial Mortgage
Trust 2007-C4
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4, Commercial
Mortgage Pass-Through Certificates, Series 2007-C4, Class _____,
having an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of [______], 2007 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 July 11, 2007, between Structured Asset
Securities Corporation II, as Depositor, Wachovia Bank, National Association, as
Master Servicer, Centerline Servicing, Inc., as Special Servicer, and Xxxxx
Fargo Bank, N.A., as Trustee. All capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Pooling
and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, as Certificate Registrar, and for the benefit of the Trustee
and the Depositor, that:
1. The Transferee is acquiring the Transferred Certificates for its
own account for investment and not with a view to or for sale or transfer
in connection with any distribution thereof, in whole or in part, in any
manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b)
none of the Depositor, the Trustee or the Certificate Registrar is
obligated so to register or qualify the Class of Certificates to which the
Transferred Certificates belong, and (c) neither a Transferred Certificate
nor any security issued in exchange therefor or in lieu thereof may be
resold or transferred unless it is (i) registered pursuant to the
Securities Act and registered or qualified pursuant to any applicable state
securities laws or (ii) sold or transferred in transactions which are
exempt from such registration and qualification and the Certificate
Registrar has received: (A) a certification from the Certificateholder
desiring to
F-2B-1
effect such transfer substantially in the form attached as Exhibit F-1 to
the Pooling and Servicing Agreement and a certification from such
Certificateholder's prospective transferee substantially in the form
attached either as Exhibit F-2A to the Pooling and Servicing Agreement or
as Exhibit F-2B to the Pooling and Servicing Agreement; or (B) an opinion
of counsel satisfactory to the Trustee with respect to, among other things,
the availability of such exemption from registration under the Securities
Act, together with copies of the written certification(s) from the
transferor and/or transferee setting forth the facts surrounding the
transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate or interest therein, except in
compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that each
Transferred Certificate will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO
(A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
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.
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
F-2B-2
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,
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
Title:
F-2B-3
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.
------------------------------------
Print Name of Nominee
By:
--------------------------------
Name:
Title:
F-2B-4
EXHIBIT F-2C
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4, Commercial
Mortgage Pass-Through Certificates, Series 2007-C4, Class _____,
having an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of [______], 2007 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 July 11, 2007, between Structured Asset Securities
Corporation II, as Depositor, Wachovia Bank, National Association, as Master
Servicer, Centerline Servicing, Inc., as Special Servicer, and Xxxxx Fargo Bank,
N.A., as Trustee. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to and
agrees with you, and for the benefit of the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the Transfer to
it of the Transferor's interest in the Transferred Certificates is being
made in reliance on Rule 144A. The Transferee is acquiring such interest in
the Transferred Certificates for its own account or for the account of
another Qualified Institutional Buyer.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b)
none of the Depositor, the Trustee or the Certificate Registrar is
obligated so to register or qualify the Transferred Certificates and (c) no
interest in the Transferred Certificates may be resold or transferred
unless (i) such Certificates are registered pursuant to the Securities Act
and registered or qualified pursuant any applicable state securities laws,
or (ii) such interest is sold or transferred in a transaction which is
exempt from such registration and qualification and the Transferor desiring
to effect such transfer has received (A) a certificate from such
Certificate Owner's prospective transferee substantially in the form
attached as Exhibit F-2C to the Pooling and Servicing Agreement or (B) an
opinion of counsel to
F-2C-1
the effect that, among other things, such prospective transferee is a
Qualified Institutional Buyer and such transfer may be made without
registration under the Securities Act.
3. The Transferee understands that it may not sell or otherwise
transfer the Transferred Certificates or any interest therein except in
compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that the
Transferred Certificates will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO
(A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), 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.
F-2C-2
4. The Transferee understands that, if the Transferred Certificate is
a Class T Certificate, it may not sell or otherwise transfer such
Transferred Certificate or any interest therein unless it has provided
prior written notice of such transfer (together with a copy of the
Transferee Certificate in the form hereof executed by the proposed
transferee of such Transferred Certificate) to Structured Asset Securities
Corporation II, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx Xxxxxxx--TIAA Seasoned Commercial Mortgage Trust 2007-C4, facsimile
number: (000) 000-0000.
5. 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,
------------------------------------
Print Name of Transferee
By:
--------------------------------
Name:
Title:
F-2C-3
ANNEX 1 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of Structured Asset Securities
Corporation II with respect to the mortgage pass-through certificates being
transferred in book-entry form (the "Transferred Certificates") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity acquiring interests in the Transferred Certificates (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) [the Transferee] [each of the Transferee's equity
owners] owned and/or invested on a discretionary basis $____________(1) in
securities (other than the excluded securities referred to below) as of the
end of such entity's most recent fiscal year (such amount being calculated
in accordance with Rule 144A) and (ii) the Transferee satisfies the
criteria in the category marked below.
_____ Corporation, etc. The Transferee is a corporation (other
than a bank, savings and loan association or similar
institution), Massachusetts or similar business trust,
partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
_____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by
the state or territorial banking commission or similar
official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy of which is attached hereto, as of a date not more than
16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. bank, and not more than
18 months preceding such date of sale in the case of a
foreign bank or equivalent institution.
_____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative
bank, homestead association or similar institution, which is
supervised and examined by a state or federal authority
----------
(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.
F-2C-4
having supervision over any such institutions or is a
foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date
not more than 16 months preceding the date of sale of the
Transferred Certificates in the case of a U.S. savings and
loan association, and not more than 18 months preceding such
date of sale in the case of a foreign savings and loan
association or equivalent institution.
_____ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of
1934, as amended.
_____ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory or the District of Columbia.
_____ State or Local Plan. The Transferee is a plan established
and maintained by a state, its political subdivisions, or
any agency or instrumentality of the
state or its political subdivisions, for the benefit of its
employees.
_____ ERISA Plan. The Transferee is an employee benefit plan
within the meaning of Title I of the Employee Retirement
Income Security Act of 1974.
_____ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
_____ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule
144A.
_____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated
with such Person, (ii) securities that are part of an unsold allotment to
or subscription by such Person, if such Person is a dealer, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee used the cost of such securities to such Person, unless such
Person reports its securities holdings in its financial statements on the
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
F-2C-5
such Person, but only if such subsidiaries are consolidated with such
Person in its financial statements prepared in accordance with generally
accepted accounting principles and if the investments of such subsidiaries
are managed under such Person's direction. However, such securities were
not included if such Person is a majority-owned, consolidated subsidiary of
another enterprise and such Person is not itself a reporting company under
the Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the
Transferred Certificates are relying and will continue to rely on the
statements made herein because one or more Transfers to the Transferee may
be in reliance on Rule 144A.
_____ _____ Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a
third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of
such third party has been established by the Transferee through one or more
of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's acquisition of any
interest in of the Transferred Certificates will constitute a reaffirmation
of this certification as of the date of such acquisition. In addition, if
the Transferee is a bank or savings and loan as provided above, the
Transferee agrees that it will furnish to such parties any updated annual
financial statements that become available on or before the date of such
acquisition, promptly after they become available.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which
the Transferred Certificates were issued.
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
Title:
Date:
F-2C-6
ANNEX 2 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of Structured Asset Securities
Corporation II 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") 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).
F-2C-7
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies, (ii) bank deposit notes
and certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, or owned by the Transferee's Family
of Investment Companies, the securities referred to in this paragraph were
excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one
or more Transfers to the Transferee will be in reliance on Rule 144A.
_____ _____ Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's
own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a
third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of
such third party has been established by the Transferee through one or more
of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until
such notice, the Transferee's acquisition of any interest in the
Transferred Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such acquisition.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which
the Transferred Certificates were issued.
----------------------------------------
Print Name of Transferee or Adviser
By:
------------------------------------
Name:
Title:
Date:
F-2C-8
IF ABOVE IS AN ADVISER:
Print Name of Transferee
----------------------------------------
Date:
F-2C-9
EXHIBIT F-2D
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4, Commercial Mortgage
Pass-Through Certificates, Series 2007-C4, Class _____, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of [______], 2007 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 July 11, 2007, between Structured Asset Securities
Corporation II, as Depositor, Wachovia Bank, National Association, as Master
Servicer, Centerline Servicing, Inc., as Special Servicer, and Xxxxx Fargo Bank,
N.A., as Trustee. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to and
agrees with you, and for the benefit of the Depositor, that the Transferee is
not a United States Securities Person.
For purposes of this certification, "United States Securities Person"
means (i) any natural person resident in the United States, (ii) any partnership
or corporation organized or incorporated under the laws of the United States,
(iii) any estate of which any executor or administrator is a United States
Securities Person, other than any estate of which any professional fiduciary
acting as executor or administrator is a United States Securities Person if an
executor or administrator of the estate who is not a United States Securities
Person has sole or shared investment discretion with respect to the assets of
the estate and the estate is governed by foreign law, (iv) any trust of which
any trustee is a United States Securities Person, other than a trust of which
any professional fiduciary acting as trustee is a United States Securities
Person if a trustee who is not a United States Securities Person has sole or
shared investment discretion with respect to the trust assets and no beneficiary
of the trust (and no settlor if the trust is revocable) is a United States
Securities Person, (v) any agency or branch of a foreign entity located in the
United States, unless the agency or branch operates for valid business reasons
and is engaged in the business of insurance or banking and is subject to
substantive insurance or banking regulation, respectively, in the jurisdiction
where located, (vi) any non-discretionary account or similar account (other than
an estate or trust) held by a dealer or other fiduciary for the benefit or
account of a United States Securities Person, (vii) any discretionary account or
similar account (other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated or (if an individual) resident in the
X-0X-0
Xxxxxx Xxxxxx, 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, or (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: __________, _____
----------------------------------------
Print Name of Transferee or Adviser
By:
------------------------------------
Name:
Title:
Date:
IF ABOVE IS AN ADVISER:
Print Name of Transferee
----------------------------------------
Date:
F-2D-2
EXHIBIT G-1
FORM I OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (DEFINITIVE NON-REGISTERED CERTIFICATES)
_____________, 20__
Xxxxx Fargo Bank, N.A.,
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services (CMBS)--
TIAA Seasoned Commercial Mortgage Trust 2007-C4
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4, Commercial
Mortgage Pass-Through Certificates, Series 2007-C4 (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates [having an initial aggregate [Certificate Principal
Balance] [Certificate Notional Amount] as of [______], 2007 of $__________]
[evidencing a ____% Percentage Interest in the subject Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of July 11, 2007, between Structured Asset
Securities Corporation II, as depositor, Wachovia Bank, National Association, as
master servicer, Centerline Servicing, Inc., as special servicer, and Xxxxx
Fargo Bank, N.A., as trustee. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you as Certificate Registrar, as follows (check the applicable paragraph):
_____ The Transferee (A) is not an employee benefit plan or other
retirement arrangement, including an individual retirement account
or annuity, a Xxxxx plan or a collective investment fund or
separate account in which such plans, accounts or arrangements are
invested, including, without limitation, an insurance company
general account, that is subject to ERISA or the Code (each, a
"Plan"), and (B) is not directly or indirectly purchasing the
Transferred Certificates on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or
_____ The Transferee is using funds from an insurance company general
account to acquire the Transferred Certificates, however, the
purchase and holding 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.
G-1-1
_____ The Transferred Certificates are rated in one of the four highest
generic rating categories by one of the Rating Agencies and are
being acquired by or on behalf of a Plan in reliance on Prohibited
Transaction Exemption 91-14; 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, the Master Servicer, the Special Servicer, any
Sub-Servicer, any Person responsible for servicing an Outside
Serviced Mortgage Loan or administering an Outside Administered REO
Property, 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, 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).
Very truly yours,
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
Title:
G-1-2
EXHIBIT G-2
FORM II OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA
(BOOK-ENTRY NON-REGISTERED CERTIFICATES)
[Date]
[TRANSFEROR]
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4, Commercial
Mortgage Pass-Through Certificates, Series 2007-C4 (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 Company ("DTC") and the Depository Participants) in Class
___ Certificates [having an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of [______], 2007 of $__________] [evidencing a
____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of July 11,
2007 (the "Pooling and Servicing Agreement"), among Structured Asset Securities
Corporation II, as depositor, Wachovia Bank, National Association, as master
servicer, Centerline Servicing, Inc., as special servicer, and Xxxxx Fargo Bank,
N.A., as trustee. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to 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 an
interest in the Transferred Certificates on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan.
_____ The Transferee is using funds from an insurance company general
account to acquire an interest in the Transferred Certificates,
however, the purchase and holding of such interest by such Person
is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on
such prohibited transactions by Sections 4975(a) and (b) of the
Code, by reason of Sections I and III of Prohibited Transaction
Class Exemption 95-60.
_____ The Transferred Certificates are rated in one of the four highest
generic rating categories by one of the Rating Agencies and an
interest in such Certificates is
G-2-1
being acquired by or on behalf of a Plan in reliance on
Prohibited Transaction Exemption 91-14 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, the Master Servicer, the Special Servicer,
any Sub-Servicer, any Person responsible for servicing an Outside
Serviced Mortgage Loan or administering an Outside Administered
REO Property, 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, 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).
Very truly yours,
------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
Title:
G-2-2
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
REGARDING RESIDUAL INTEREST CERTIFICATES
TRANSFER AFFIDAVIT PURSUANT TO SECTIONS
860D(A)(6)(A) AND 860E(E)(4) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, AND
TREASURY REGULATION SECTION 1.860E-1(C)(4)
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4, Commercial
Mortgage Pass-Through Certificates, Series 2007-C4 (the
"Certificates"), issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of July
11, 2007, between Structured Asset Securities Corporation II, as
Depositor, Wachovia Bank, National Association, as Master Servicer,
Centerline Servicing, Inc., as Special Servicer, and Xxxxx Fargo
Bank, N.A., as Trustee
STATE OF __________________________)
) ss.: ________________________________
COUNTY OF __________________________)
The undersigned declares that, to the best knowledge and belief of the
undersigned, the following representations are true, correct and complete:
1. ______________________________ (the "Purchaser"), is acquiring
[Class R-I] [Class R-II] [Class R-III] 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"]
["REMIC III"] [the "Loan REMIC"], [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] [Class R-II] [Class
R-III] 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
H-1-1
(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.
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] [Class R-II] [Class R-III] Certificates to a Disqualified
Organization.
4. The Purchaser will not transfer the [Class R-I] [Class R-II] [Class
R-III] 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] [Class R-II] [Class R-III] Certificates to
a Disqualified Organization, an agent thereof or a person that does not satisfy
the requirements of paragraph 7.
6. The Purchaser consents to the designation of the Trustee as the
agent of the Tax Matters Person of [REMIC I] [REMIC II] [REMIC III] [the Loan
REMIC] pursuant to Section 10.01(d) of the Pooling and Servicing Agreement.
7. No purpose of the acquisition of the [Class R-I] [Class R-II]
[Class R-III] 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]
[Class R-II] [Class R-III] Certificates as they become due.
ii. The Purchaser understands that it may incur tax liabilities with
respect to the [Class R-I] [Class R-II] [Class R-III] 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] [Class
R-II] [Class R-III] Certificates to be attributable to a foreign
permanent establishment or fixed base (within
H-1-2
the meaning of any applicable income tax treaty between the United
States and any foreign jurisdiction) of a United States Tax Person.
[IF PARAGRAPH 8 IS CHECKED, CHOOSE BETWEEN (V) AND (VI) BELOW]
o 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] [Class R-II] [Class R-III] 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
o vi) The Purchaser is a United States Tax Person and the consideration
paid to the Purchaser for accepting the [Class R-I] [Class R-II]
[Class R-III] 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
H-1-3
[_] 9. If the Transferor does not require the safe harbor under Treasury
regulations section 1.860E-1 to apply:[IF PARAGRAPH 9 IS CHECKED, CHOOSE BETWEEN
(I) AND (II) BELOW]
o i) The Purchaser is a "United States person" as defined in Section
7701(a) of the Code and the regulations promulgated thereunder (the
Purchaser's U.S. taxpayer identification number is ______________).
The Purchaser is not classified as a partnership under the Code (or,
if so classified, all of its beneficial owners are United States
persons).
OR
o ii) The Purchaser is not a United States person. However, the
Purchaser:
a) conducts a trade or business within the United States and, for
purposes of Treasury regulations section 1.860G-3(a)(3), is
subject to tax under Section 882 of the Code;
b) understands that, for purposes of Treasury regulations section
1.860E-1(c)(4)(ii), as a holder of a [Class R-I] [Class R-II]
[Class R-III] Certificate for United States federal income tax
purposes, it may incur tax liabilities in excess of any cash
flows generated by such [Class R-I] [Class R-II] [Class R-III]
Certificate;
c) intends to pay the taxes associated with holding a [Class R-I]
[Class R-II] [Class R-III] Certificate;
d) is not classified as a partnership under the Code (or, if so
classified, all of its beneficial owners either satisfy clauses
(a), (b) and (c) of this sentence or are United States persons);
and
e) has furnished the Transferor and the Trustee with an effective
IRS Form W-8ECI or successor form and will update such form as
may be required under the applicable Treasury regulations.
Catpitalized 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:
---------------------------------
H-1-4
Personally appeared before me ___________________________ and
___________________________, known or proved to me to be the same persons who
executed the foregoing instrument and to be a _______________________ and
_______________________ of the Purchaser, and acknowledged to me that he/she
each 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
X-0-0
XXXXXXX X-0
FORM OF TRANSFEROR CERTIFICATE
REGARDING RESIDUAL INTEREST CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.,
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services (CMBS)--
TIAA Seasoned Commercial Mortgage Trust 2007-C4
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4, Commercial
Mortgage Pass-Through Certificates, Series 2007-C4 (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] [Class R-III] Certificates evidencing a ____%
Percentage Interest in such Class (the "Residual Interest Certificates"). The
Certificates, including the Residual Interest Certificates, were issued pursuant
to the Pooling and Servicing Agreement, dated as of July 11, 2007 (the "Pooling
and Servicing Agreement"), between Structured Asset Securities Corporation II,
as depositor, Wachovia Bank, National Association, as master servicer,
Centerline Servicing, Inc., as special servicer, and Xxxxx Fargo Bank, N.A., as
trustee. All capitalized terms used but not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Interest Certificates by the Transferor to the Transferee is or
will be to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered
to you a Transfer Affidavit and Agreement in the form attached to the
Pooling and Servicing Agreement as Exhibit H-1. The Transferor does not
know or believe that any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee (or
the beneficial owners of the Transferee if it is classified as a
partnership under the 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
H-2-1
will not continue to pay its debts as they become due in the future. The
Transferor understands that the transfer of the Residual Interest
Certificates may not be respected for United States income tax purposes
(and the Transferor may continue to be liable for United States income
taxes associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
------------------------------------
Print Name of Transferor
By:
------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF NOTICE AND ACKNOWLEDGEMENT
[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
Attn: Commercial Mortgage Surveillance
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the Pooling
and Servicing Agreement, dated as of July 11, 2007 and relating to TIAA Seasoned
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2007-C4 (the "Agreement"). Capitalized terms used but not otherwise defined
herein shall have respective meanings assigned to them in the Agreement.
Notice is hereby given that the [Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class have]
[________________ Non-Mortgage Loan Noteholder has] designated ________________
to serve as the Special Servicer under the Agreement with respect to [the
______________ [Loan Combination] [Mortgage Loan] or any related REO Property]
[the Mortgage Pool [(other than __________________)]].
The designation of __________________ as Special Servicer with respect
to [the ______________ [Loan Combination] [Mortgage Loan] or any related REO
Property] [the Mortgage Pool [(other than __________________)]] will become
final if certain conditions are met and you deliver to _________________, the
trustee under the Agreement (the "Trustee"), written confirmation that if the
person designated to become the Special Servicer with respect to [the
______________ [Loan Combination] [Mortgage Loan] or any related REO Property]
[the Mortgage Pool [(other than __________________)]] were to serve as such,
such event would not result in the qualification, downgrade or withdrawal of the
rating or ratings assigned by you to one or more Classes of the Certificates.
Accordingly, such confirmation is hereby requested as soon as possible.
I-1-1
Please acknowledge receipt of this notice by signing the enclosed copy
of this notice where indicated below and returning it to the Trustee, in the
enclosed stamped self-addressed envelope.
Very truly yours,
XXXXX FARGO BANK, N.A.,
as Trustee
By:
------------------------------------
Name:
Title:
Receipt acknowledged:
FITCH, INC.
By:
------------------------------------
Name:
Title:
Date:
STANDARD & POOR'S RATINGS SERVICES
By:
------------------------------------
Name:
Title:
Date:
I-1-2
EXHIBIT I-2
FORM OF ACKNOWLEDGEMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[FISCAL AGENT]
[MASTER SERVICER]
[DEPOSITOR]
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4, Commercial Mortgage
Pass-Through Certificates, Series 2007-C4
Ladies and Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement, dated
as of July 11, 2007, relating to TIAA Seasoned Commercial Mortgage Trust
2007-C4, Commercial Mortgage Pass-Through Certificates, Series 2007-C4 (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 with respect to [the ______________ [Mortgage Loan] or
any related REO Property] [the Mortgage Pool [(other than __________________)]].
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 with respect to [the ______________
[Loan Combination] [Mortgage Loan] or any related REO Property] [the Mortgage
Pool [(other than __________________)]]. The undersigned hereby makes, as of the
date hereof, the representations and warranties set forth in Section 3.24 of the
Agreement, with the following corrections with respect to type of entity and
jurisdiction of organization: ____________________.
Capitalized terms used but not defined herein have the respective
meanings assigned thereto in the Agreement.
[NAME OF PROPOSED SPECIAL SERVICER]
By:
------------------------------------
Name:
Title:
I-2-1
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
J-1
SCHEDULE 1
This Schedule 1 is attached to and incorporated in a financing
statement pertaining to Structured Asset Securities Corporation II, as depositor
(referred to as the "Debtor" for the purpose of this financing statement only),
and Xxxxx Fargo Bank, N.A., as trustee for the holders of the TIAA Seasoned
Commercial Mortgage Trust 2007-C4, Commercial Mortgage Pass-Through
Certificates, Series 2007-C4 (referred to as the "Secured Party" for purposes of
this financing statement only), under that certain Pooling and Servicing
Agreement, dated as of July 11, 2007 (the "Pooling and Servicing Agreement"),
between the Debtor, as depositor, the Secured Party, as trustee (the "Trustee"),
Wachovia Bank, National Association, Inc., as master servicer (the "Master
Servicer"), and Centerline Servicing, Inc., as special servicer (the "Special
Servicer"), relating to the issuance of the TIAA Seasoned Commercial Mortgage
Trust 2007-C4, Commercial Mortgage Pass-Through Certificates, Series 2007-C4
(the "Series 2007-C4 Certificates"). Capitalized terms used herein and not
defined shall have the respective meanings given to them in the Pooling and
Servicing Agreement.
The attached financing statement covers all of the Debtor's right
(including the power to convey title thereto), title and interest in and to the
Trust Fund created pursuant to the Pooling and Servicing Agreement, consisting
of the following:
(1) the mortgage loans listed on the Mortgage Loan Schedule
attached hereto as Exhibit A (the "Mortgage Loans");
(2) the note or other evidence of indebtedness of the related
borrower under each Mortgage Loan (the "Mortgage Note"), the related
mortgage, deed of trust or other similar instrument securing such Mortgage
Note (the "Mortgage") and each other legal, credit and servicing document
related to such Mortgage Loan (collectively with the related Mortgage Note
and Mortgage, the "Mortgage Loan Documents");
(3) Mortgage Loan Purchase Agreement;
(4) (a) the Custodial Account and the Defeasance Deposit Account
required to be maintained by the Master Servicer pursuant to the Pooling
and Servicing Agreement, (b) all funds from time to time on deposit in the
Custodial Account and the Defeasance Deposit Account, (c) the investments
of any such funds consisting of securities, instruments or other
obligations, and (d) the general intangibles consisting of the contractual
right to payment, including, without limitation, the right to payments of
principal and interest and the right to enforce the related payment
obligations, arising from or under any such investments;
(5) all REO Property acquired in respect of defaulted Mortgage
Loans;
(6) (a) the REO Account and any Loss of Value Reserve Fund
required to be maintained by the Special Servicer pursuant to the Pooling
and Servicing Agreement, (b) all funds from time to time on deposit in the
REO Account and any Loss of Value Reserve Fund, (c) any investments of any
such funds consisting of securities, instruments or other obligations, and
(d) the general intangibles consisting of the contractual right to payment,
including, without limitation, the right to payments of principal and
interest and the right to enforce the related payment obligations, arising
from or under any such investments;
J-2
(7) (a) the Servicing Accounts and the Reserve Accounts required
to be maintained by the Master Servicer and/or the Special Servicer
pursuant to the Pooling and Servicing Agreement, (b) all funds from time to
time on deposit in the Servicing Accounts and the Reserve Accounts, (c) the
investments of any such funds consisting of securities, instruments or
other obligations, and (d) the general intangibles consisting of the
contractual right to payment, including, without limitation, the right to
payments of principal and interest and the right to enforce the related
payment obligations, arising from or under any such investments;
(8) (a) the Interest Reserve Account and any Excess Liquidation
Proceeds Account required to be maintained by the Secured Party pursuant to
the Pooling and Servicing Agreement, (b) all funds from time to time on
deposit in the Interest Reserve Account and any Excess Liquidation Proceeds
Account, (c) the investments of any such funds consisting of securities,
instruments or other obligations, and (d) the general intangibles
consisting of the contractual right to payment, including, without
limitation, the right to payments of principal and interest and the right
to enforce the related payment obligations, arising from or under any such
investments;
(9) (a) the Collection Account required to be maintained by the
Secured Party pursuant to the Pooling and Servicing Agreement, (b) all
funds from time to time on deposit in the Collection Account, (c) the
investments of any such funds consisting of securities, instruments or
other obligations, and (d) the general intangibles consisting of the
contractual right to payment, including, without limitation, the right to
payments of principal and interest and the right to enforce the related
payment obligations, arising from or under any such investments;
(10) all insurance policies, including the right to payments
thereunder, with respect to the Mortgage Loans required to be maintained
pursuant to the Mortgage Loan Documents and the Pooling and Servicing
Agreement, transferred to the Trust and to be serviced by the Master
Servicer or Special Servicer pursuant to the Pooling and Servicing
Agreement;
(11) any and all general intangibles (as defined in the Uniform
Commercial Code) consisting of, arising from or relating to any of the
foregoing; and
(12) any and all income, payments, proceeds and products of any
of the foregoing.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY THE
POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF ALL THE DEBTOR'S RIGHT,
TITLE AND INTEREST IN, TO AND UNDER THE MORTGAGE LOANS, THE MORTGAGE NOTES, THE
RELATED MORTGAGES AND THE OTHER RELATED MORTGAGE LOAN DOCUMENTS EVIDENCED BY THE
SERIES 2007-C4 CERTIFICATES, AND THIS FILING SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT A SALE HAS NOT OCCURRED. THE REFERENCES HEREIN TO MORTGAGE NOTES
SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY MORTGAGE NOTE IS NOT AN
INSTRUMENT WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN
ANY APPLICABLE JURISDICTION, OR THAT A FILING IS NECESSARY TO PERFECT THE
OWNERSHIP OR SECURITY INTEREST OF THE SECURED PARTY WITH RESPECT TO THE MORTGAGE
LOANS OR IN ANY MORTGAGE NOTE, MORTGAGE OR OTHER MORTGAGE
J-3
LOAN DOCUMENT. IN ADDITION, THE REFERENCES HEREIN TO SECURITIES, INSTRUMENTS AND
OTHER OBLIGATIONS SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY SUCH
SECURITY, INSTRUMENT OR OTHER OBLIGATION IS NOT AN INSTRUMENT, A CERTIFICATED
SECURITY OR AN UNCERTIFICATED SECURITY WITHIN THE MEANING OF THE UNIFORM
COMMERCIAL CODE, AS IN EFFECT IN ANY APPLICABLE JURISDICTION, NOR SHOULD THIS
FINANCING STATEMENT BE CONSTRUED AS A CONCLUSION THAT A FILING IS NECESSARY TO
PERFECT THE OWNERSHIP OR SECURITY INTEREST OF THE SECURED PARTY IN THE
CONTRACTUAL RIGHT TO PAYMENT, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO
PAYMENTS OF PRINCIPAL AND INTEREST AND THE RIGHT TO ENFORCE THE RELATED PAYMENT
OBLIGATIONS, ARISING FROM OR UNDER ANY SUCH SECURITY, INSTRUMENT OR OTHER
OBLIGATION. WITH RESPECT TO THE FOREGOING, THIS FILING IS MADE ONLY IN THE EVENT
OF CONTRARY ASSERTIONS BY THIRD PARTIES.
A PURCHASE OF OR SECURITY INTEREST IN ANY COLLATERAL DESCRIBED IN THIS FINANCING
STATEMENT WILL VIOLATE THE RIGHTS OF THE SECURED PARTY.
J-4
EXHIBIT A TO SCHEDULE 1
(See Schedule I- Mortgage Loan Schedule)
J-5
EXHIBIT K
SUB-SERVICERS IN RESPECT OF WHICH SUB-SERVICING AGREEMENTS ARE IN
EFFECT OR BEING NEGOTIATED AS OF THE CLOSING DATE
Newmark Realty Capital, Inc.
Tavernier Capital Partners
LLC Xxxxxx & Dunlop
K-1
EXHIBIT L-1
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION
FOR WEBSITE ACCESS FROM CERTIFICATE [HOLDER] [OWNER]
[Date]
Xxxxx Fargo Bank, N.A.,
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS)--
TIAA Seasoned Commercial Mortgage Trust 2007-C4
Wachovia Bank, National Association
NC 1075
8739 Research Drive, URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: TIAA Seasoned Commercial Mortgage Trust 2007-C4
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4,
Commercial Mortgage Pass-Through Certificates, Series 2007-C4
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of July 11, 2007 (the "Pooling and Servicing Agreement"),
between Structured Asset Securities Corporation II, as depositor (the
"Depositor"), Wachovia Bank, National Association, as master servicer,
Centerline Servicing, Inc., as special servicer, and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"), with respect to TIAA Seasoned Commercial Mortgage Trust
2007-C4, Commercial Mortgage Pass-Through Certificates, Series 2007-C4 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned ("Investor") is a [beneficial owner] [registered
holder] of the Class _____ Certificates.
2. The undersigned is requesting (Please check as applicable):
(i) ____ the information (the "Information") identified on the
schedule attached hereto pursuant to Section 3.15, 4.02 and/or 8.14 of
the Pooling and Servicing Agreement; or
(ii) ____ a password [and username] pursuant to Section 4.02 of
the Pooling and Servicing Agreement for access to information (also,
the "Information") provided on the [Trustee's] [Master Servicer's]
Internet Website.
L-1-1
3. In connection with accessing the website of the [Master Servicer]
[Trustee], the undersigned hereby agrees to register, execute or accept an
access agreement and accept a disclaimer, as and to the extent required by the
[Master Servicer] or [Trustee] in accordance with Section 4.02 of the Pooling
and Servicing Agreement.
4. In consideration of the [Trustee's] [Master Servicer's] disclosure
to the undersigned of the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in evaluating
its interest in Certificates, from its accountants and attorneys, and otherwise
from such governmental or banking authorities to which the undersigned is
subject), and such Information will not, without the prior written consent of
the [Trustee] [Master Servicer], be disclosed by the undersigned or by its
officers, directors, partners, employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in whole or in
part; provided that the undersigned may provide all or any part of the
Information to any other person or entity that holds or is contemplating the
purchase of any Certificate or interest therein, but only if such person or
entity confirms in writing such ownership interest or prospective ownership
interest and agrees to keep it confidential.
5. The undersigned will not use or disclose the Information in any
manner which 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 would require registration of any Non-Registered
Certificate pursuant to Section 5 of the Securities Act.
6. Investor hereby acknowledges and agrees that:
(a) Neither the Master Servicer 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
respective Website;
(b) Neither the Master Servicer 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 Website;
(c) Any transmittal of any report, document or other information
to Investor by the 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 TIAA Seasoned Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2007-C4, 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
L-1-2
prospective purchaser of such Certificates or beneficial interest
therein; and
(d) When delivering any report, document or other information
pursuant to this request, the 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.
7. Investor agrees to indemnify and hold harmless the Master Servicer,
the Trustee, the Trust and the Depositor 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 Investor or any of its Representatives. 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 Investor or
any of its Representatives and that the 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.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[BENEFICIAL OWNER OF A CERTIFICATE]
[REGISTERED HOLDER OF A CERTIFICATE]
By:
------------------------------------
Name:
Title:
---------------------------------------
By:
------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION FOR WEBSITE
ACCESS FROM PROSPECTIVE INVESTOR
[Date]
Xxxxx Fargo Bank, N.A.,
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS)--
TIAA Seasoned Commercial Mortgage Trust 2007-C4
Wachovia Bank, National Association
NC 1075
8739 Research Drive, URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: TIAA Seasoned Commercial Mortgage Trust 2007-C4
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4, Commercial
Mortgage Pass-Through Certificates, Series 2007-C4
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of July 11, 2007 (the "Pooling and Servicing Agreement"),
between Structured Asset Securities Corporation II, as depositor (the
"Depositor"), Wachovia Bank, National Association, as master servicer,
Centerline Servicing, Inc., as special servicer, and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee") with respect to TIAA Seasoned Commercial Mortgage Trust
2007-C4, Commercial Mortgage Pass-Through Certificates, Series 2007-C4 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned ("Investor") is contemplating an investment in the
Class _____ Certificates.
2. The undersigned is requesting (please check as applicable):
(i) ____ information (the "Information") for use in evaluating
the possible investment described above as identified on the schedule
attached hereto pursuant to Section 3.15, 4.02 and/or 8.14 of the
Pooling and Servicing Agreement; or
(ii) ____ a password [and username] pursuant to Section 4.02 of
the Pooling and Servicing Agreement for access to information (also,
the "Information") provided on the [Trustee's] [Master Servicer's]
Internet Website.
L-2-1
3. In connection with accessing the website of the [Master Servicer]
[Trustee], the undersigned hereby agrees to register, execute or accept an
access agreement and accept a disclaimer, as and to the extent required by the
[Master Servicer] or [Trustee] in accordance with Section 4.02 of the Pooling
and Servicing Agreement.
4. In consideration of the [Trustee's] [Master Servicer's] disclosure
to the undersigned of the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in making the
investment decision described in paragraph 1 above, from its accountants and
attorneys, and otherwise from such governmental or banking authorities and
agencies to which the undersigned is subject), and such Information will not,
without the prior written consent of the [Trustee] [Master Servicer], be
disclosed by the undersigned or by its officers, directors, partners, employees,
agents or representatives (collectively, the "Representatives") in any manner
whatsoever, in whole or in part.
5. The undersigned will not use or disclose the Information in any
manner which 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 would require registration of any Non-Registered
Certificate pursuant to Section 5 of the Securities Act.
6. Investor hereby acknowledges and agrees that:
(a) Neither the Master Servicer 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
respective Website;
(b) Neither the Master Servicer 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 Website;
(c) Any transmittal of any report, document or other information
to Investor by the 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 TIAA Seasoned Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2007-C4, 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; and
L-2-2
(d) When delivering any report, document or other information
pursuant to this request, the 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.
7. Investor agrees to indemnify and hold harmless the Master Servicer,
the Trustee, the Trust and the Depositor 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 Investor or any of its Representatives. 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 Investor or
any of its Representatives and that the 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.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[PROSPECTIVE PURCHASER OF A CERTIFICATE
OR INTEREST THEREIN]
By:
------------------------------------
Name:
Title:
---------------------------------------
By:
------------------------------------
Name:
Title:
L-2-3
EXHIBIT M
FORM OF DEFEASANCE CERTIFICATION
M-1
FORM OF NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
For Mortgage Loans: (a) having an unpaid balance of $20,000,000 or less, (b)
that constitute less than 5% of the aggregate unpaid principal balance of the
Mortgage Pool, or (c) that are not then one of the ten largest (measured by
unpaid principal balance) Mortgage Loans in the Mortgage Pool
To: 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
Attn: Commercial Mortgage Surveillance
From: _____________________________________, in its capacity as master
servicer (the "Master Servicer") under the Pooling and Servicing
Agreement dated as of ---------------- July 11, 2007 (the "Pooling and
Servicing Agreement"), between Structured Asset Securities Corporation
II, as depositor, the Master Servicer, Centerline Servicing, Inc., as
special servicer, and Xxxxx Fargo Bank, N.A.,, as trustee (the
"Trustee").
Date: _________, 20___
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4,
Commercial Mortgage Pass-Through Certificates, Series 2007-C4
Mortgage loan (the "Mortgage Loan") identified by loan number _____ on
the Mortgage Loan Schedule attached to the Pooling and Servicing Agreement and
heretofore secured by the Mortgaged [Property] [Properties] identified on the
Mortgage Loan Schedule by the following name[s]:
________________________________________________________________________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement.
As Master Servicer under the Pooling and Servicing Agreement, we
hereby:
M-2
1. Notify you that the Mortgagor has consummated a defeasance of the
Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type checked
below:
_____ a full defeasance of the payments scheduled to be due in
respect of the entire unpaid principal balance of the Mortgage
Loan; or
_____ a partial defeasance of the payments scheduled to be due in
respect of a portion of the unpaid principal balance of the
Mortgage Loan that represents ___% of the entire unpaid
principal balance of the Mortgage Loan and, under the
Mortgage, has an allocated loan amount of $____________ or
_______% of the entire unpaid principal balance;
2. Certify that each of the following is true, and any additional
explanatory notes or exceptions which the Master Servicer has determined,
consistent with the Servicing Standard, will have no material adverse effect on
the Mortgage Loan or the defeasance transaction set forth on Exhibit A hereto:
a. The Mortgage Loan documents permit the defeasance, and the
terms and conditions for defeasance specified therein were satisfied in all
material respects in completing the defeasance.
b. The defeasance was consummated on __________, 20__.
c. The defeasance collateral consists of securities that (i)
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), (ii) are
listed as "Qualified Investments for 'AAA' Financings" under Paragraphs 1,
2 or 3 of "Cash Flow Approach" in Standard & Poor's Public Finance Criteria
2000, as amended to the date of the defeasance, (iii) are rated 'AAA' by
Standard & Poor's, (iv) if they include a principal obligation, provide for
a predetermined fixed dollar amount of principal due at maturity that
cannot vary or change, and (v) are not subject to prepayment, call or early
redemption.
d. The Master Servicer received an opinion of counsel (from
counsel approved by Master Servicer in accordance with the Servicing
Standard) that the defeasance will not result in an Adverse REMIC Event.
e. The Master Servicer determined that the defeasance collateral
will be owned by an entity (the "Defeasance Obligor") as to which one of
the statements checked below is true:
_____ the related Mortgagor was a Single-Purpose Entity (as defined
in Standard & Poor's Structured Finance Ratings Real Estate
Finance Criteria, as amended to the date of the defeasance
(the "S&P Criteria")) as of the date of the defeasance, and
after the defeasance owns no assets other than the defeasance
collateral and real property securing Mortgage Loans included
in the pool;
_____ the related Mortgagor designated a Single-Purpose Entity (as
defined in the S&P Criteria) to own the defeasance collateral;
or
M-3
_____ the Master Servicer designated a Single-Purpose Entity (as
defined in the S&P Criteria) established for the benefit of
the Trust to own the defeasance collateral.
f. The Master Servicer received a broker or similar confirmation
of the credit, or the accountant's letter described below contained
statements that it reviewed a broker or similar confirmation of the credit,
of the defeasance collateral to an Eligible Account (as defined in the S&P
Criteria) in the name of the Defeasance Obligor, which account is
maintained as a securities account by the Trustee or other Eligible
Institution (as defined in the S&P Criteria) acting as a securities
intermediary.
g. As securities intermediary, the Trustee or other Eligible
Institution is obligated to make the scheduled payments on the Mortgage
Loan from the proceeds of the defeasance collateral directly to the Master
Servicer's collection account in the amounts and on the dates specified in
the Mortgage Loan documents or, in a partial defeasance, the portion of
such scheduled payments attributed to the allocated loan amount for the
real property defeased, increased by any defeasance premium specified in
the Mortgage Loan documents (the "Scheduled Payments").
h. The Master Servicer received from the Mortgagor written
confirmation from a firm of independent certified public accountants, who
were approved by the Master Servicer in accordance with the Servicing
Standard, stating that (i) revenues from principal and interest payments
made on 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 after the defeasance 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
Mortgage Loan, on its Anticipated Repayment Date or on the date when any
open prepayment period set forth in the related Mortgage Loan documents
commences), (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, and (iii) interest income from the
defeasance collateral to the Defeasance Obligor in any calendar or fiscal
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 occurs.
i. The Master Servicer received opinions from counsel, who were
approved by the Master Servicer in accordance with the Servicing Standard,
that (i) the agreements executed by the Mortgagor and/or the Defeasance
Obligor in connection with the defeasance are enforceable against them in
accordance with their terms, and (ii) the Trustee will have a perfected,
first priority security interest in the defeasance collateral described
above.
j. The agreements executed in connection with the defeasance (i)
permit reinvestment of proceeds of the defeasance collateral only in
Permitted Investments (as defined in the S&P Criteria), (ii) permit release
of surplus defeasance collateral and earnings on reinvestment to the
Defeasance Obligor or the Mortgagor only after the Mortgage Loan has been
paid in full, if any such release is permitted, (iii) prohibit any
subordinate liens against the defeasance collateral, and (iv) provide for
payment from sources other than the defeasance collateral or other assets
of the Defeasance Obligor of all fees and expenses of the securities
M-4
intermediary for administering the defeasance and the securities account
and all fees and expenses of maintaining the existence of the Defeasance
Obligor.
k. The entire unpaid principal balance of the Mortgage Loan as of
the date of defeasance was $___________. Such Mortgage Loan (a) has an
unpaid balance of $20,000,000 or less, (b) constitutes less than 5% of the
aggregate unpaid principal balance of the Mortgage Pool, or (c) is not one
of the ten largest (measured by unpaid principal balance) mortgage loans in
the Mortgage Pool, in each such case, as of the date of the most recent
Distribution Date Statement received by us (the "Current Report").
3. The defeasance described herein, together with all prior and
simultaneous defeasances of mortgage loans, brings the total of all fully and
partially defeased mortgage loans in the Mortgage Pool to $__________________,
which is _____% of the aggregate unpaid principal balance of the Mortgage Pool
as of the date of the Current Report.
4. Certify that originals or copies of the material agreements,
instruments, organizational documents for the Defeasance Obligor, and opinions
of counsel and independent accountants executed and delivered in connection with
the defeasance described above have been transmitted to the Trustee (or a
Custodian on its behalf) for placement in the related Mortgage File or, to the
extent not required to be part of the related Mortgage File, are in the
possession of the Master Servicer as part of the Master Servicer's servicing
file.
5. Certify and confirm that the determinations and certifications
described above were rendered in accordance with the Servicing Standard set
forth in, and the other applicable terms and conditions of, the Pooling and
Servicing Agreement.
6. Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
7. Agree to provide copies of all items described in paragraph 4 above
to you upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
[MASTER SERVICER]
By:
------------------------------------
Name:
Title:
M-5
EXHIBIT N
FORM OF SELLER NOTIFICATION
[Date]
Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000,
Attention: X.X. Xxxxxx, TIAA Seasoned
Commercial Mortgage Trust 2007-C4
Teachers Insurance and Annuity Association of America
0000 Xxxxxx Xxxxxxxx Xxxx.
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxx
Wachovia Bank, National Association
0000 Xxxxxxxx Xxxxx
URP4 NC 1075
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: TIAA Seasoned Commercial Mortgage Trust 2007-C4
Centerline Servicing, Inc.
0000 Xxxxx X'Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: [_______], TIAA Seasoned Commercial
Mortgage Trust 2007-C4
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Services (CMBS)- TIAA Seasoned
Commercial Mortgage Trust 2007-C4
[Controlling Class Representative (if known)]
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4
Commercial Mortgage Pass-Through Certificates, Series 2007-C4
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 2.03 of the Pooling
and Servicing Agreement, dated as of July 11, 2007 (the "Agreement"), relating
to the captioned commercial mortgage pass-through certificates (the
"Certificates"). Capitalized terms used but not otherwise defined herein shall
have the respective meanings assigned to them in the Agreement.
This notice is being delivered with respect to the [Mortgage Loan
identified on the Mortgage Loan Schedule as Mortgage Loan number [__], and
secured by the Mortgaged Property identified on the Mortgage Loan Schedule as
_________________ (the "Subject Mortgage Loan")]; [the Mortgage Loan/Loans
identified on Exhibit A to Schedule I attached hereto (the "Subject Mortgage
Loans")].
N-1
Check which of the following applies:
_____ We hereby advise you that a Material Document Defect or
Material Breach [may exist] [exists] with respect to the
Subject Mortgage [Loan] [Loans] due to the occurrence set
forth on Schedule 1 attached hereto.
_____ We hereby request that you cure the Material Document Defect
or Material Breach in all material respects with respect to
the Subject Trust Mortgage [Loan] [Loans] or repurchase the
Subject Mortgage [Loan] [Loans] within the time period and
subject to the conditions provided for in [Section 5(a) of the
Mortgage Loan Purchase Agreement].
_____ We hereby advise you that a Servicing Transfer Event has
occurred with respect to the Subject Trust Mortgage [Loan]
[Loans] due to the occurrence set forth on Schedule 1 attached
hereto (and a Material Document Defect has occurred as set
forth above or on a previous Seller Notification).
_____ We hereby advise you that an assumption [is proposed] [has
occurred] with respect to the Subject Trust Mortgage [Loan]
[Loans], as further described on Schedule 1 attached hereto
(and a Material Document Defect has occurred as set forth
above or on a previous Seller Notification).
_____ Under the circumstances contemplated by the last paragraph of
[Section 5(a) of the Mortgage Loan Purchase Agreement], we
hereby advise you that both (A) the applicable Resolution
Extension Period has expired and (B) a [Servicing Transfer
Event] [proposed] [actual] assumption] has occurred with
respect to the Subject Mortgage [Loan] [Loans]; therefore, we
hereby direct you to cure the subject Material Document Defect
in all material respects within 15 days of receipt of this
Seller Notification.
_____ We hereby advise you that the 15-day period set forth in the
preceding paragraph has expired and we hereby notify you that
the [Master Servicer] [Special Servicer] has elected to
perform your cure obligations with respect to the subject
Material Document Defect and the Subject Trust Mortgage [Loan]
[Loans].
N-2
_____ We hereby request that you repurchase the Subject Mortgage
[Loan] [Loans] to the extent required by [Section 5(a) of the
Mortgage Loan Purchase Agreement].
Very truly yours,
[XXXXX FARGO BANK, N. A.],
as Trustee
By:
------------------------------------
Name:
Title:]
[WACHOVIA BANK, NATIONAL ASSOCIATION]
as Master Servicer
By:
------------------------------------
Name:
Title:]
[CENTERLINE SERVICING, INC.],
as Special Servicer
By:
------------------------------------
Name:
Title:]
In the event this notice constitutes a request to repurchase the
Subject Mortgage [Loan] [Loans], a copy of this Seller Notification has been
delivered to each of:
(i) Counsel to the TIAA Mortgage Loan Seller:
[DECHERT]
[Address]
Attention:_____________;
N-3
(ii) Internal Counsel to the Depositor/Xxxxxx Mortgage Loan Seller:
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx;
N-4
SCHEDULE 1
Mortgage Loan Number: [________________] [See Exhibit A hereto]
Name of Mortgaged Property: _______________________________________________
Material Breach: Explain the nature of the Material Breach: _______________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
[Potential] Material Document Defect: [List the affected documents and
describe nature of the Material Document Defect:] [The Subject Trust Mortgage
[Loan] [Loans] have the document defects outlined on Exhibit A hereto] _________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Servicing Transfer Event/Assumption: Explain the nature of the Servicing
Transfer Event/Assumption: _____________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Other: Set forth any necessary additional information: ____________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
N-5
EXHIBIT O
FORM OF CONTROLLING CLASS REPRESENTATIVE
CONFIDENTIALITY AGREEMENT
[Date]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS)--
TIAA Seasoned Commercial Mortgage Trust 2007-C4
Wachovia Bank, National Association
0000 Xxxxxxxx Xxxxx
URP4 NC 1075
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: TIAA Seasoned Commercial Mortgage Trust 2007-C4
Centerline Servicing, Inc.
0000 Xxxxx X'Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx, TIAA Seasoned
Commercial Mortgage Trust 2007-C4
Facsimile number: [_______]
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4
Commercial Mortgage Pass-Through Certificates, Series 2007-C4
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of July 11, 2007 the ("Pooling and Servicing Agreement"),
between Structured Asset Securities Corporation II, as depositor (the
"Depositor"), Wachovia Bank, National Association, as master servicer,
Centerline Servicing, Inc., as special servicer, and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"), with respect to TIAA Seasoned Commercial Mortgage Trust
2007-C4 Commercial Mortgage Pass-Through Certificates, Series 2007-C4 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is the Controlling Class Representative.
2. The undersigned will keep the information (the "Information")
obtained from time to time pursuant to the Pooling and Servicing Agreement
confidential (except for Information with respect to tax treatment or tax
structure), and such Information will not, without the prior written consent of
the [Trustee] [Master Servicer], be disclosed by the undersigned or by its
officers, directors, partners, employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in whole or in
part (other than for the purpose of communicating with the Controlling Class or
counsel);
O-1
provided that the undersigned may provide all or any part of the Information to
any other person or entity that holds or is contemplating the purchase of any
Certificate or interest therein, but only if such person or entity confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep it confidential.
3. The undersigned will not use or disclose the Information in any
manner which could result in a violation on the part of any person or entity of
any provision of the Securities Act of 1933, as amended (the "Securities Act"),
or the Securities Exchange Act of 1934, as amended, or would require
registration of any Non-Registered Certificate pursuant to Section 5 of the
Securities Act.
4. The undersigned confirms its acceptance of its appointment as
Controlling Class Representative. Notices and other correspondences should be
delivered to: [Name/ Address/ Phone/ Facsimile/ Email]. Below is a list of
officers or employees with whom parties to the Pooling and Servicing Agreement
may deal with.
NAME TITLE WORK ADDRESS FACSIMILE NUMBER
[_____________] [_____________] [_____________] [_____________]
[_____________] [_____________] [_____________] [_____________]
To the extent not defined herein, the capitalized terms used herein
have the respective meanings assigned in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[CONTROLLING CLASS REPRESENTATIVE]
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
O-2
EXHIBIT P
FORM OF TRUSTEE BACKUP CERTIFICATION
TO BE PROVIDED TO DEPOSITOR
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4 Commercial Mortgage
Pass-Through Certificates, Series 2007-C4 (the "Certificates")
Pursuant to Section 8.15 of the Pooling and Servicing Agreement, dated
as of July 11, 2007 (the "Pooling and Servicing Agreement"), between Structured
Asset Securities Corporation II as depositor (the "Depositor"), Xxxxx Fargo
Bank, N.A., as trustee (the "Trustee"), Wachovia Bank, National Association as
master servicer (the "Master Servicer") and Centerline Servicing, Inc. as
special servicer (the "Special Servicer"), relating to the Certificates, the
undersigned, a ____________________ of the Trustee and on behalf of the Trustee,
hereby certifies to ___________________ (the "Certifying Party") and to
____________________ as the officer executing the subject certification pursuant
to the Xxxxxxxx-Xxxxx Act of 2002 (the "Certifying Officer") and its partners,
representatives, affiliates, members, managers, directors, officers, employees
and agents, to the extent that the following information is within our normal
area of responsibilities and duties under the Pooling and Servicing Agreement,
and with the knowledge and intent that they will rely upon this certification,
that:
1. I have reviewed (i) the information reported or caused to be
reported by the Trustee to the Depositor pursuant to Section 8.15(b) of the
Pooling and Servicing Agreement (the "Section 8.15(b) Information") for the
Trust's fiscal year _____, and (ii) the annual report on Form 10-K for the
Trust's fiscal year _______, and all distribution reports on Form 10-D and
current reports on Form 8-K filed in respect of periods included in the
year covered by that annual report, of the Trust (such annual report,
distribution reports and current reports, collectively, the "Reports");
2. Based on my knowledge, and assuming the accuracy of the
statements required to be made in the Master Servicer Backup Certification
and in the Special Servicer Backup Certification (in each case, to the
extent that such statements are relevant to the statements made in this
Trustee Backup Certification), the information in the Reports relating to
distributions on and/or characteristics (including Certificate Principal
Balances, Certificate Notional Amounts and Pass-Through Rates) of the
Certificates, and/or relating to the Trustee, its Affiliates, any and all
sub-servicers, subcontractors and agents retained or engaged by the Trustee
and/or any and all Trustee Appointees, taken as a whole, does not contain
any untrue statement of 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 as of the last day of the
period covered by the subject Annual Report on Form 10-K;
3. Based on my knowledge, the information in the Reports relating
to distributions on and/or characteristics (including Certificate Principal
Balances, Certificate Notional Amounts and Pass-Through Rates) of the
Certificates and/or relating to the Trustee, its Affiliates, any and all
sub-servicers, subcontractors and agents retained or engaged by the Trustee
and/or any and all Trustee Appointees, includes all information of such
type required to
P-1
be included in the Reports for the relevant period covered by the subject
Annual Report on Form 10-K;
4. To my knowledge, the Section 8.15(b) Information did not
contain any untrue statement of a material fact or omit to state a material
fact required to be reported or caused to be reported to the Depositor by
the Trustee pursuant to Section 8.15(b);
5. To my knowledge, the information in the Reports includes all
information that was provided to the Trustee by the Master Servicer and/or
the Special Servicer pursuant to Section 8.15(b) of the Pooling and
Servicing Agreement and, if and to the extent contemplated by Section 8.15
of the Pooling and Servicing Agreement, approved by the Depositor for
inclusion in the Reports, and all Servicer Reports provided to the Trustee
by the Master Servicer and/or the Special Servicer under the Pooling and
Servicing Agreement, for the Trust's fiscal year; and
6. To my knowledge, the Reports include all Form 8-K Required
Information, Form 10-D Required Information and Form 10-K Required
Information that the Trustee had actual knowledge of for the Trust's fiscal
year and that, if and to the extent contemplated by Section 8.15 of the
Pooling and Servicing Agreement, was approved by the Depositor for
inclusion in the Reports.
7. I am responsible for reviewing the activities performed by the
Trustee under the Pooling and Servicing Agreement and, based on my
knowledge and the review required under the Pooling and Servicing
Agreement, and except as disclosed in the Annual Assessment Report
delivered by the Trustee for such year, the Trustee has fulfilled its
obligations under the Pooling and Servicing Agreement.
8. All Annual Statements of Compliance and all Annual Assessment
Reports and their related Annual Attestation Reports required to be
provided to the Depositor by the Trustee and its Servicing Representatives
with respect to the Trust's fiscal year ____ under or as contemplated by
the Pooling and Servicing Agreement, have been so provided thereby, with
the following exceptions: __________________________________.
Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement.
Date:
[NAME OF TRUSTEE]
By:
------------------------------------
Name:
Title:
P-2
EXHIBIT Q
FORM OF MASTER SERVICER BACKUP CERTIFICATION
TO BE PROVIDED TO DEPOSITOR
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4 Commercial Mortgage
Pass-Through Certificates, Series 2007-C4 (the "Certificates")
Pursuant to Section 8.15 of the Pooling and Servicing Agreement, dated
as of July 11, 2007 (the "Pooling and Servicing Agreement"), between Structured
Asset Securities Corporation II as depositor (the "Depositor"), Xxxxx Fargo
Bank, N.A., as trustee (the "Trustee"), Wachovia Bank, National Association as
master servicer (the "Master Servicer") and Centerline Servicing, Inc. as
special servicer (the "Special Servicer"), relating to the Certificates, the
undersigned, a ____________________ of the Master Servicer and on behalf of the
Master Servicer, hereby certifies to ___________________ (the "Certifying
Party") and to ____________________ as the officer executing the subject
certification pursuant to the Xxxxxxxx-Xxxxx Act of 2002 (the "Certifying
Officer") and its partners, representatives, affiliates, members, managers,
directors, officers, employees and agents, to the extent that the following
information is within our normal area of responsibilities and duties under the
Pooling and Servicing Agreement, and with the knowledge and intent that they
will rely upon this certification, that:
1. I have reviewed: (i) all the information delivered by the
Master Servicer to the Depositor and the Trustee pursuant to Section
8.15(b) of the Pooling and Servicing Agreement (the "Section 8.15(b)
Information") for the Trust's fiscal year __________; and (ii) all the
Servicer Reports delivered by the Master Servicer to the Trustee, in each
case, for the Trust's fiscal year __________;
2. Based on my knowledge, and assuming the accuracy of the
statements required to be made in the Special Servicer Certification (to
the extent that such statements are relevant to the statements made in this
Master Servicer Certification), the Section 8.15(b) Information (provided,
that the Master Servicer shall not be responsible for or be required to
perform any analysis regarding information in a borrower's financial
statements on which such Section 8.15(b) Information is based beyond such
analysis as would be required in accordance with the Servicing Standard and
the terms of the Pooling and Servicing Agreement) and the information in
the Servicer Reports delivered by the Master Servicer to the Trustee for
the Trust's fiscal year __________ relating to servicing information,
including information relating to actions of the Master Servicer and/or
payments and other collections on and characteristics of the Mortgage Loans
and REO Properties, and/or relating to the Master Servicer, its Affiliates
and/or any and all sub-servicers, subcontractors and agents of the Master
Servicer, taken as a whole, do not contain any untrue statement of 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 as of the last day of such fiscal year;
3. Based on my knowledge, and assuming the accuracy of the
statements required to be made in the Special Servicer Certification (to
the extent that such statements are relevant to the statements made in this
Master Servicer Certification), the information in the Servicer Reports
delivered by the Master Servicer to the Trustee for the Trust's fiscal year
Q-1
__________ relating to servicing information, including information
relating to actions of the Master Servicer and/or payments and other
collections on and characteristics of the Mortgage Loans and REO
Properties, and/or relating to the Master Servicer, its Affiliates and/or
any and all sub-servicers, subcontractors and agents of the Master
Servicer, together with the Section 8.15(b) Information for the Trust's
fiscal year __________, includes all information of such type required to
be provided by the Master Servicer to the Trustee under the Pooling and
Servicing Agreement for such year;
4. I am responsible for reviewing the activities performed by the
Master Servicer under the Pooling and Servicing Agreement and, based on my
knowledge and the compliance review conducted in preparing the Master
Servicer's Annual Statement of Compliance required under the Pooling and
Servicing Agreement, and except as disclosed in the Annual Statement of
Compliance and the Annual Assessment Report delivered by the Master
Servicer for the Trust's fiscal year _______, the Master Servicer has
fulfilled its obligations under the Pooling and Servicing Agreement;
5. All Annual Statements of Compliance and all Annual Assessment
Reports and their related Annual Attestation Reports required to be
provided to the Trustee and the Depositor by the Master Servicer or any
Additional Servicer or Sub-Servicing Function Participant (retained by the
Master Servicer) under or as contemplated by the Pooling and Servicing
Agreement have been provided thereby, with the following exceptions:
___________________________________. Based on my knowledge, there are no
material instances of noncompliance relating to the Master Servicer's or
any such other party's compliance with the Relevant Servicing Criteria, in
each case based upon the Annual Attestation Report provided by a registered
public accounting firm, after conducting a review in compliance with the
standards for attestation engagements issued or adopted by the PCAOB,
delivered pursuant to Section 3.14 of the Pooling and Servicing Agreement,
except as disclosed in the Master Servicer's Annual Statement of Compliance
and Annual Assessment Reports and Annual Attestation Report.
The foregoing certifications under clauses 2. and 3. above assume that
the following sections and parts of the Prospectus Supplement did not, as of the
date thereof or as of the Closing Date, contain any untrue statement of a
material fact regarding the Mortgage Loan Seller Matters (as defined below) or
omit to state any material fact regarding the Mortgage Loan Seller Matters
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading: "Summary of Prospectus
Supplement--The Underlying Mortgage Loans and the Mortgaged Real Properties",
"Risk Factors" and "Description of the Mortgage Pool" and Annex X-0, Xxxxx X-0,
Xxxxx X-0, Xxxxx A-4 and Annex B to the Prospectus Supplement. "Mortgage Loan
Seller Matters" as used in the preceding sentence shall mean the description of
the Mortgage Loans, the Mortgaged Properties and the Mortgagors. 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 (i) Section 8.15(b) Information or (ii) the
information in the Servicer Reports delivered by the Master Servicer to the
Trustee and/or the Depositor and referred to in such clauses 2. and 3. above
that, in each case, is in turn dependent upon information provided by (other
than, if and to the extent such information has been provided by such party, the
certification under clause 3, above) (a) the Special Servicer under the Pooling
and Servicing Agreement, beyond the corresponding certification actually
provided by the Special Servicer, and/or (b) an Outside Servicer under the
applicable Outside
Q-2
Servicing Agreement, beyond the corresponding certification actually provided by
such Outside Servicer; provided, that clause (b) shall not apply with respect to
any particular Outside Servicer if such Outside Servicer is the same entity as,
or is an Affiliate of, the Master Servicer. Further, notwithstanding the
foregoing certifications, the Master Servicer does not make any certification
under the foregoing clauses 1. through 5. that is in turn dependent upon
information required to be provided by any Sub-Servicer identified on Exhibit K
to the Pooling and Servicing Agreement, acting under a Sub-Servicing Agreement
that the Master Servicer entered into in connection with the issuance of the
Certificates, or upon the performance by any such Sub-Servicer of its
obligations pursuant to any such Sub-Servicing Agreement, in each case beyond
the respective backup certifications actually provided by such Sub-Servicer to
the Master Servicer with respect to the information that is the subject of such
certification.
Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement.
Date:
WACHOVIA BANK, NATIONAL ASSOCIATION
By:
------------------------------------
Name:
Title:
Q-3
EXHIBIT R
FORM OF SPECIAL SERVICER BACKUP CERTIFICATION
TO BE PROVIDED TO DEPOSITOR/MASTER SERVICER
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4 Commercial Mortgage
Pass-Through Certificates, Series 2007-C4 (the "Certificates")
Pursuant to Section 8.15 of the Pooling and Servicing Agreement, dated
as of July 11, 2007 (the "Pooling and Servicing Agreement"), between Structured
Asset Securities Corporation II as depositor (the "Depositor"), Xxxxx Fargo
Bank, N.A., as trustee (the "Trustee"), Wachovia Bank, National Association as
master servicer (the "Master Servicer") and Centerline Servicing, Inc. as
special servicer (the "Special Servicer"), relating to the Certificates, the
undersigned, a ____________________ of the Special Servicer and on behalf of the
Special Servicer, hereby certifies to ___________________ (the "Certifying
Party") and to ____________________ as the officer executing the subject
certification pursuant to the Xxxxxxxx-Xxxxx Act of 2002 (the "Certifying
Officer") and its partners, representatives, affiliates, members, managers,
directors, officers, employees and agents, to the extent that the following
information is within our normal area of responsibilities and duties under the
Pooling and Servicing Agreement, and with the knowledge and intent that they
will rely upon this certification, that:
1. I (or an officer or employee under my supervision) have reviewed
(i) all the Servicer Reports delivered by the Special Servicer to the Master
Servicer and/or the Trustee for the Trust's fiscal year ______________ as to the
special servicing by the Special Servicer of specially serviced mortgage loans
(the "Specially Serviced Mortgage Loans") or real properties owned by the Trust
that were acquired through foreclosure of loans as to which the Special Servicer
has servicing responsibilities ("REO Properties"), and (ii) all the information
delivered by the Special Servicer to the Depositor and the Trustee pursuant to
Section 8.15(b) of the Pooling and Servicing Agreement for the Trust's fiscal
year _____________ (the "Section 8.15(b) Information").
2. To the best of my knowledge, the Section 8.15(b) Information and
the information in the Servicer Reports delivered to the Master Servicer and/or
the Trustee for the Trust's fiscal year _____________ relating to the Special
Servicer and servicing information in respect of Specially Serviced Mortgage
Loans and REO Properties, 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 as of the last day of such fiscal year.
3. To the best of my knowledge, the information in the Servicer
Reports delivered to the Master Servicer and/or the Trustee for such year
relating to the Special Servicer and servicing information in respect of
Specially Serviced Mortgage Loans and REO Properties, together with the Section
8.15(b) Information, includes all information of such type required to be
provided by the Special Servicer to the Trustee and the Master Servicer under
the Pooling and Servicing Agreement.
4. I am responsible for reviewing the activities performed by the
Special Servicer under the Pooling and Servicing Agreement, and based on my
knowledge and the compliance reviews conducted in preparing the Special
Servicer's Annual Statement of Compliance under the Pooling and
R-1
Servicing Agreement, and except as disclosed in the Annual Statement of
Compliance and the Annual Assessment Report delivered to the Depositor pursuant
to the Pooling and Servicing Agreement, the Special Servicer has fulfilled its
obligations under the Pooling and Servicing Agreement in all material respects.
5. All Annual Statements of Compliance and all Annual Assessment
Reports and their related Annual Attestation Reports required to be provided to
the Depositor and the Trustee by the Special Servicer and its Servicing
Representatives with respect to the Trust's fiscal year ____ under or as
contemplated by the Pooling and Servicing Agreement, have been so provided
thereby, with the following exceptions: __________________________________.
The statements in this Certificate are limited to information
regarding the Special Servicer and the Special Servicer's activities under the
Pooling and Servicing Agreement. This Certification does not relate to
information in the Servicer Reports and the Section 8.15(b) Information relating
to any other person or any other topic.
Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement.
Date:
[NAME OF SPECIAL SERVICER]
By:
------------------------------------
Name:
Title:
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EXHIBIT S
RELEVANT SERVICING CRITERIA MATRIX
1122 ITEM DESCRIPTION OF SERVICING CRITERIA RESPONSIBLE PARTY*
---------------- -------------------------------------------------------------------------------- -----------------------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other Master Servicer,
triggers and events of default in accordance with the transaction agreements. Special Servicer,
Trustee
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, policies Master Servicer,
and procedures are instituted to monitor the third party's performance and Special Servicer,
compliance with such servicing activities. Trustee
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer Not Applicable
for the pool assets are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party Master Servicer,
participating in the servicing function throughout the reporting period in the Special Servicer,
amount of coverage required by and otherwise in accordance with the terms of Custodian
the transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on pool assets are deposited into the appropriate custodial bank Master Servicer,
accounts and related bank clearing accounts no more than two business days of Special Servicer,
receipt, or such other number of days specified in the transaction agreements. Trustee
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an investor Master Servicer,
are made only by authorized personnel. Trustee
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or Master Servicer,
distributions, and any interest or other fees charged for such advances, are Special Servicer,
made, reviewed and approved as specified in the transaction agreements. Trustee
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or Master Servicer,
accounts established as a form of overcollateralization, are separately Special Servicer,
maintained (e.g., with respect to commingling of cash) as set forth in the Trustee
transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository Master Servicer,
institution as set forth in the transaction agreements. For purposes of this Special Servicer,
criterion, "federally insured depository institution" with respect to a foreign Trustee
financial institution means a foreign financial institution that meets the
requirements of Sec. 240.13k-1(b)(1) of this chapter.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. Master Servicer,
Special Servicer,
Trustee
S-1
1122 ITEM DESCRIPTION OF SERVICING CRITERIA RESPONSIBLE PARTY*
---------------- -------------------------------------------------------------------------------- -----------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed securities Master Servicer,
related bank accounts, including custodial accounts and related bank clearing Special Servicer,
accounts. These reconciliations: (A) Are mathematically accurate; (B) Are Trustee
prepared within 30 calendar days after the bank statement cutoff date, or such
other number of days specified in the transaction agreements; (C) Are 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 Master Servicer,
maintained in accordance with the transaction agreements and applicable Trustee
Commission requirements. Specifically, such reports:
1122(d)(3)(i)(A) (A) Are prepared in accordance with timeframes and other terms set forth in Master Servicer,
the transaction agreements; Trustee
1122(d)(3)(i)(B) (B) Provide information calculated in accordance with the terms specified in Master Servicer,
the transaction agreements; Trustee
1122(d)(3)(i)(C) (C) Are filed with the Commission as required by its rules and regulations; and Trustee
1122(d)(3)(i)(D) (D) Agree with investors' or the Trustee's records as to the total unpaid Trustee
principal balance and number of pool assets serviced by the 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 the Trustee
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 pool assets is maintained as required by the Master Servicer,
transaction agreements or related pool asset documents. Special Servicer,
Custodian
1122(d)(4)(ii) Pool assets and related documents are safeguarded as required by the [Master Servicer,]
transaction agreements. Special Servicer,
Custodian
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed Master Servicer,
and approved in accordancewith any conditions or requirements in the Special Servicer,
transaction agreements. Trustee,
Custodian
S-2
1122 ITEM DESCRIPTION OF SERVICING CRITERIA RESPONSIBLE PARTY*
---------------- -------------------------------------------------------------------------------- ------------------
1122(d)(4)(iv) Payments on pool assets, including any payoffs, made in accordance with the Master Servicer,
related pool asset documents are posted to the applicable servicer's obligor
records maintained no more than two business days after receipt, or such other
number of days specified in the transaction agreements, and allocated to
principal, interest or other items (e.g., escrow) in accordance with the related
pool asset documents.
1122(d)(4)(v) The servicer's records regarding the pool assets agree with the servicer's Master Servicer
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 pool asset (e.g., Master Servicer,
loan modifications or re-agings) are made, reviewed and approved by authorized Special Servicer
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 and Special Servicer
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 pool Master Servicer,
asset is delinquent in accordance with the transaction agreements. Such records Special Servicer
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 pool assets 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 pool assets with variable Not applicable
rates are computed based on the related pool asset documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts) See
followings:
(A) Such funds are analyzed, in accordance with the obligor's pool asset Master Servicer
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 Master Servicer
applicable pool asset documents and state laws; and
(C) Such funds are returned to the obligor within 30 calendar days of full Master Servicer
repayment of the related pool asset, 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) are Master Servicer
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.
S-3
1122 ITEM DESCRIPTION OF SERVICING CRITERIA RESPONSIBLE PARTY*
---------------- -------------------------------------------------------------------------------- ------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on behalf Master Servicer
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 days Master Servicer
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 Servicer,
recorded in accordance with the transaction agreements. Special Servicer
1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1) through Not applicable
(3) or Item 1115 of this Regulation AB, is maintained as set forth in the
transaction agreements.
With respect to each Servicing Criteria set forth above in this Exhibit S,
"Responsible Party" shall additionally include any Sub-Servicer, sub-contractor,
vendor, agent or other Person acting on behalf of such Responsible Party, 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) with respect to the subject Servicing Criteria
and as regards the Trust Fund.
S-4
EXHIBIT T
FORM OF EXCHANGE ACT REPORTABLE EVENT NOTIFICATION
VIA FAX: XXXXX XXXX (000) 000-0000
VIA EMAIL: XXXXX@XXXXXX.XXX
VIA OVERNIGHT MAIL:
Structured Asset Securities Corporation II, as Depositor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: TIAA Seasoned Commercial Mortgage Trust 2007-C4--SEC REPORT
PROCESSING
VIA FAX: (000) 000-0000
VIA EMAIL: XXX.XXX.XXXXXXXXXXXXX@XXXXXXXXXX.XXX
VIA OVERNIGHT MAIL:
Xxxxx Fargo Bank, N.A., as Trustee
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS)--TIAA Seasoned Commercial
Mortgage Trust 2007-C4--SEC REPORT PROCESSING
Re: Exchange Act Reportable Event Disclosure
Ladies and Gentlemen:
In accordance with Section 8.15 of the Pooling and Servicing
Agreement, dated as of July 11, 2007, between Structured Asset Securities
Corporation II, as Depositor, Wachovia Bank, National Association, as Master
Servicer, Centerline Servicing, Inc., as Special Servicer, and Xxxxx Fargo Bank,
N.A., as Trustee, the undersigned, as [____________], hereby notifies you that
certain events have come to our attention that [will] [may] need to be disclosed
on Form [10-D] [10-K] [8-K].
Description of Exchange Act Reportable Event:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
T-1
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:
T-2
EXHIBIT U
FORM OF MASTER SERVICER CERTIFICATION
_______________, 2007
To the parties listed on the attached Schedule A
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4 Commercial Mortgage
Pass-Through Certificates, Series 2007-C4
Dear Ladies and Gentlemen:
In connection with the transfer of those certain mortgage loans set
forth on Schedule B (the "Checklist') attached hereto (each a "Mortgage Loan"),
by [Structured Asset Securities Corporation II (the "Depositor")] [Teachers
Insurance and Annuity Association of America (the "Mortgage Loan Seller")] to
the TIAA Seasoned Commercial Mortgage Trust 2007-C4 (the "Trust"), pursuant to
that certain Pooling and Servicing Agreement dated as of July 11, 2007 (the
"Pooling and Servicing Agreement"), between Structured Asset Securities
Corporation II as depositor, Wachovia Bank, National Association ("Wachovia) as
master servicer, Centerline Servicing, Inc. as special servicer and Xxxxx Fargo
Bank, N.A. as trustee, the [Depositor] [Mortgage Loan Seller] has agreed to
deliver the "Mortgage Loan Origination Documents" (as defined in the Pooling and
Servicing Agreement), applicable to each such Mortgage Loan, to Wachovia
pursuant to Section 2.01(d) of the Pooling and Servicing Agreement.
Pursuant to Section 2.01(d) of the Pooling and Servicing Agreement,
Wachovia hereby certifies as to each of the Mortgage Loans set forth on the
Checklist as of the date hereof that: (i) if a check appears on the Checklist
under a Mortgage Loan Origination Document category with respect to any
particular Mortgage Loan, then that Mortgage Loan Origination Document has been
delivered to Wachovia or the applicable Sub-Servicer, in each case in accordance
with the Pooling and Servicing Agreement; (ii) if "NA" appears on the Checklist
under a Mortgage Loan Origination Document category with respect to any
particular Mortgage Loan, then the [Depositor] [Mortgage Loan Seller] has
advised Wachovia that such Mortgage Loan Origination Document is not applicable
to such Mortgage Loan and is not, pursuant to the Pooling and Servicing
Agreement, required to be delivered to Wachovia; and (iii) if "O/S" appears on
the Checklist under Mortgage Loan Origination Document category with respect to
any particular Mortgage Loan, then that Mortgage Loan Origination Document has
not been delivered to Wachovia or the applicable Sub-Servicer.
This certification and spreadsheet supersedes any prior
correspondence, certification, exception list or spreadsheet delivered to the
[Depositor] [Mortgage Loan Seller] or any affiliate thereof relating to receipt
or delivery of the Mortgage Loan Origination Documents.
U-1
IN WITNESS WHEREOF, Wachovia has caused this Master Servicer
Certification to be executed as of the date captioned above.
WACHOVIA BANK, NATIONAL ASSOCIATION
By:
--------------------------------
Name:
Title:
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SCHEDULE A
(IN THE CASE OF A MASTER SERVICER CERTIFICATION TO THE DEPOSITOR)
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx--TIAA Seasoned Commercial Mortgage Trust 2007-C4
Facsimile Number: (000) 000-0000
with a copy to:
Xxxxxx Brothers Inc.
000 Xxxx Xxxxxx
0xx Xxxxx, Xxx Xxxx
Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxx
Facsimile Number: (000) 000-0000
with a copy to:
[ ]
________________________
___________________________
Attention: _____________
facsimile number: _____________
and a copy to:
Centerline Servicing, Inc.
0000 Xxxxx X'Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx, TIAA Seasoned Commercial Mortgage Trust 2007-C4
Facsimile number: (000) 000-0000
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SCHEDULE A
(IN THE CASE OF A MASTER SERVICER CERTIFICATION TO THE MORTGAGE LOAN SELLER)
TIAA-CREF
0000 Xxxxxx Xxxxxxxx Xxxx.
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxx Telecopier No.: (___)___-____
with a copy to
[ ]
________________________
___________________________
Attention: _____________
Facsimile number: _____________
and a copy to:
Centerline Servicing, Inc.
0000 Xxxxx X'Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx, TIAA Seasoned Commercial Mortgage Trust 2007-C4
Facsimile number: (000) 000-0000
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SCHEDULE B
TIAA SEASONED SERIES 2007-C4
GUARANTOR
OR
OPINION INDEMNITOR
ID LOAN FINAL FINAL LETTERS OF ORG. DOCS.
NUMBER/ FINAL FINAL ENGINEERING ENVIRONMENTAL COUNSEL TO ESCROW RESERVE BORROWER IF ENTITY
PROPERTY NAME APPRAISAL SURVEY REPORT REPORT BORROWER AGREEMENTS AGREEMENTS ORG. DOCS. ONLY
------------- --------- ------ ----------- ------------- ---------- ---------- ---------- ---------- ----------
U-5
GUARANTOR OR
INDEMNITOR
INSURANCE MAJOR PROPERTY
CERTIFICATES LEASES OPERATING ZONING
OR (> 10% STATEMENT LETTERS
INSURANCE OF FINAL PROPERTY AND CASH OR
REVIEW ANNUAL SEISMIC MANAGEMENT FINANCIAL MANAGEMENT LOCKBOX ZONING
REPORTS INCOME) REPORT AGREEMENT RENT ROLL STATEMENT AGREEMENT AGREEMENT REPORTS
------------ ------- ------- ---------- --------- ------------ ---------- --------- -------
U-6
