TPW DRAFT: AUGUST 30, 2007
STRUCTURED ASSET SECURITIES CORPORATION II,
Depositor
and
WACHOVIA BANK, NATIONAL ASSOCIATION
as Master Servicer
and
MIDLAND LOAN SERVICES, INC.,
as Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated as of August 13, 2007
------------------------------
$2,978,936,714
LB-UBS Commercial Mortgage Trust 2007-C6
Commercial Mortgage Pass-Through Certificates,
Series 2007-C6
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN ADJUSTMENTS TO THE PRINCIPAL
DISTRIBUTIONS ON THE CERTIFICATES
SECTION 1.01. Defined Terms..........................................................................7
SECTION 1.02. General Interpretive Principles......................................................117
SECTION 1.03. Certain Adjustments to the Principal Distributions on the Certificates...............118
SECTION 1.04. Calculation of LIBOR.................................................................120
ARTICLE II
CONVEYANCE OF TRUST MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
SECTION 2.01. Creation of Trust; Conveyance of Trust Mortgage Loans................................122
SECTION 2.02. Acceptance of Trust Fund by Trustee..................................................126
SECTION 2.03. Repurchase of Trust Mortgage Loans for Document Defects and Breaches of
Representations and Warranties....................................................128
SECTION 2.04. Representations, Warranties and Covenants of the Depositor...........................140
SECTION 2.05. Acceptance of Grantor Trust Assets by Trustee; Issuance of the Class V
Certificates and the Floating Rate Certificates...................................142
SECTION 2.06. Acceptance of Loan REMICs by Trustee; Execution, Authentication and Delivery
of Class R-LR Certificates; Creation of Loan REMIC Regular Interests..............143
SECTION 2.07. Conveyance of Loan REMIC Regular Interests...........................................143
SECTION 2.08. Execution, Authentication and Delivery of Class R-I Certificates;
Creation of REMIC I Regular Interests.............................................143
SECTION 2.09. Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by Trustee...........144
SECTION 2.10. Execution, Authentication and Delivery of Class R-II Certificates; Creation of
REMIC II Regular Interests........................................................144
SECTION 2.11. Conveyance of REMIC II Regular Interests; Acceptance of REMIC III by Trustee.........144
SECTION 2.12. Execution, Authentication and Delivery of REMIC III Certificates.....................145
SECTION 2.13. Acceptance of Loss of Value Reserve Fund by Trustee..................................145
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.................................................146
SECTION 3.02. Collection of Mortgage Loan Payments.................................................149
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SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts;
Reserve Accounts..................................................................152
SECTION 3.04. Pool Custodial Account, Defeasance Deposit Account, Collection Account,
Interest Reserve Account, Excess Liquidation Proceeds Account, Loss of
Value Reserve Fund, Floating Rate Accounts and Swap Collateral Accounts...........154
SECTION 3.05. Permitted Withdrawals From the Pool Custodial Account, the Collection Account,
the Interest Reserve Account and the Excess Liquidation Proceeds Account..........164
SECTION 3.06. Investment of Funds in the Collection Account, the Servicing Accounts,
the Reserve Accounts, the Defeasance Deposit Account, the Custodial
Accounts, the REO Accounts, the Interest Reserve Account, the Excess
Liquidation Proceeds Account and the Floating Rate Accounts.......................182
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity
Coverage; Environmental Insurance.................................................184
SECTION 3.08. Enforcement of Alienation Clauses....................................................189
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required Appraisals;
Appraisal Reduction Calculation...................................................195
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage Files........................200
SECTION 3.11. Servicing Compensation; Payment of Expenses; Certain Matters Regarding
Servicing Advances................................................................202
SECTION 3.12. Property Inspections; Collection of Financial Statements; Delivery of
Certain Reports...................................................................209
SECTION 3.13. Annual Statement as to Compliance....................................................214
SECTION 3.14. Reports on Assessment of Compliance with Servicing Criteria; Registered
Public Accounting Firm Attestation Reports........................................216
SECTION 3.15. Access to Certain Information........................................................219
SECTION 3.16. Title to REO Property; REO Accounts..................................................221
SECTION 3.17. Management of REO Property...........................................................223
SECTION 3.18. Sale of Trust Mortgage Loans and Administered REO Properties.........................226
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............................................................231
SECTION 3.20. Modifications, Waivers, Amendments and Consents; Defeasance..........................235
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special Servicer;
Record Keeping....................................................................247
SECTION 3.22. Sub-Servicing Agreements.............................................................248
SECTION 3.23. Representations and Warranties of the Master Servicer................................252
SECTION 3.24. Representations and Warranties of the Special Servicer...............................253
SECTION 3.25. Certain Matters Regarding the Purchase of the Trust Mortgage Loan
in a Loan Combination.............................................................255
SECTION 3.26. Application of Default Charges.......................................................255
SECTION 3.27. Certain Matters Regarding Serviced Loan Combinations.................................259
SECTION 3.28. Deliveries in Connection with Securitization of a Serviced Non-Trust
Mortgage Loan.....................................................................261
SECTION 3.29. The Swap Agreements..................................................................261
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions........................................................................265
SECTION 4.02. Statements to Certificateholders and Others..........................................276
SECTION 4.03. P&I Advances With Respect to the Mortgage Pool.......................................285
SECTION 4.04. Allocations of Realized Losses and Additional Trust Fund Expenses....................291
SECTION 4.05. Various Reinstatement Amounts........................................................293
SECTION 4.06. Calculations.........................................................................295
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.....................................................................296
SECTION 5.02. Registration of Transfer and Exchange of Certificates................................296
SECTION 5.03. Book-Entry Certificates..............................................................304
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates....................................306
SECTION 5.05. Persons Deemed Owners................................................................306
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.........................307
SECTION 6.02. Continued Qualification and Compliance of Master Servicer; Merger,
Consolidation or Conversion of Depositor, Master Servicer or
Special Servicer..................................................................307
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer and Special Servicer...........308
SECTION 6.04. Resignation of Master Servicer and the Special Servicer..............................309
SECTION 6.05. Rights of Depositor, Trustee and Serviced Non-Trust Mortgage Loan
Noteholders in Respect of the Master Servicer and the Special Servicer............310
SECTION 6.06. Depositor, Master Servicer and Special Servicer to Cooperate with Trustee............310
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate with Master Servicer............310
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with Special Servicer............311
SECTION 6.09. Designation of Special Servicer and Controlling Class Representative;
Replacement of Special Servicer by the Controlling Class and Others...............311
SECTION 6.10. Master Servicer or Special Servicer as Owner of a Certificate........................315
SECTION 6.11. Certain Powers of the Controlling Class Representative...............................316
SECTION 6.12. Certain Matters Regarding the Serviced Loan Combinations.............................319
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default and Outside Servicer Defaults......................................324
SECTION 7.02. Trustee to Act; Appointment of Successor.............................................332
SECTION 7.03. Notification to Certificateholders and Others........................................333
SECTION 7.04. Waiver of Events of Default and Outside Servicer Defaults............................334
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default or Outside
Servicer Default..................................................................334
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee....................................................................336
SECTION 8.02. Certain Matters Affecting Trustee....................................................337
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans....................................................338
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates........................................338
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by Trustee......................339
SECTION 8.06. Eligibility Requirements for Trustee.................................................340
SECTION 8.07. Resignation and Removal of Trustee...................................................340
SECTION 8.08. Successor Trustee....................................................................342
SECTION 8.09. Merger or Consolidation of Trustee and Fiscal Agent..................................343
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee........................................343
SECTION 8.11. Appointment of Custodians............................................................344
SECTION 8.12. Appointment of Authenticating Agents.................................................345
SECTION 8.13. Appointment of Tax Administrators....................................................345
SECTION 8.14. Access to Certain Information........................................................346
SECTION 8.15. Reports to the Securities and Exchange Commission and Related Reports................348
SECTION 8.16. Representations and Warranties of Trustee............................................358
SECTION 8.17. Appointment of a Fiscal Agent........................................................360
SECTION 8.18. Representations and Warranties of Fiscal Agent.......................................361
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Trust Mortgage Loans...............363
SECTION 9.02. Additional Termination Requirements..................................................366
SECTION 9.03. Outside Administered REO Properties..................................................367
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration.................................................................368
SECTION 10.02. Grantor Trust Administration.........................................................371
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment............................................................................374
SECTION 11.02. Recordation of Agreement; Counterparts...............................................376
SECTION 11.03. Limitation on Rights of Certificateholders...........................................376
SECTION 11.04. Governing Law; Consent to Jurisdiction...............................................377
SECTION 11.05. Notices..............................................................................378
SECTION 11.06. Severability of Provisions...........................................................378
SECTION 11.07. Grant of a Security Interest.........................................................379
SECTION 11.08. Xxxxxx Act...........................................................................379
SECTION 11.09. Successors and Assigns; Beneficiaries................................................380
SECTION 11.10. Article and Section Headings.........................................................380
SECTION 11.11. Notices to Rating Agencies...........................................................380
SECTION 11.12. Complete Agreement...................................................................382
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SCHEDULES AND EXHIBITS
Schedule No. Schedule Description
------------ --------------------
I Trust Mortgage Loan Schedule
II Representations and Warranties of the Depositor
III Exceptions to the Representations and Warranties of the Depositor
IV Schedule of Environmentally Insured Mortgage Loans
V Schedule of Initial Deposit Mortgage Loans
VI Schedule of Mortgage Loans Secured by a Hospitality Property or
Nursing Facility
VII Schedule of Early Defeasance Mortgage Loans
VIII Schedule of Additional Mortgage Loan Origination Documents
IX Schedule of Additional Section 2.03 Documents
X [RESERVED]
XI Schedule of Class A-AB Planned Principal Balances
XII Schedule of Significant Obligor Financial Statement Recipients
Exhibit No. Exhibit Description
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A-1 Form of Class [A-1] [A-2] [A-3] [A-AB] [A-4] [A-1A] Certificate
A-2 Form of Class X Certificate
A-3 Form of Class [A-M] [A-J] [B] [C] [D] [E] [F] Certificate
A-4 Form of Class [A-2FL] [A-MFL] [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]
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Exhibit No. Exhibit Description
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L-2 Form of Information Request/Investor Certification for Website
Access from Prospective Investor
M Form of Defeasance Certification
N Form of Seller/Depositor Notification
O Form of Controlling Class Representative Confidentiality
Agreement
P Form of Trustee Backup Certification
Q Form of Master Servicer Backup Certification
R Form of Special Servicer Backup Certification
S Form of Outside Master Servicer/Outside Trustee Notice
T Relevant Servicing Criteria Matrix
U Form of Exchange Act Reportable Event Notification
V Form of Master Servicer Certification
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This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of August 13, 2007, among STRUCTURED ASSET SECURITIES CORPORATION
II, as Depositor, WACHOVIA BANK, NATIONAL ASSOCIATION, as Master Servicer,
MIDLAND LOAN SERVICES, INC., as Special Servicer, and LASALLE BANK NATIONAL
ASSOCIATION, 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 Trust 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
Trust 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
Trust Mortgage Loan in a Loan REMIC, shall also relate to any successor REO
Trust Mortgage Loan with respect to such Early Defeasance Trust 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 Trust
Mortgage Loan set forth on the Trust 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 Trust
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 Trust 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 Trust 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 Trust Mortgage Loans (exclusive of the Early
Defeasance Trust Mortgage Loans, if any, and exclusive of any collections of
Additional Interest on the ARD Trust 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 Trust 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 Trust Mortgage Loan in REMIC I, shall also relate to any successor REO
Trust Mortgage Loan with respect to such Trust 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 Trust Mortgage Loan and any
successor REO Trust 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 Trust Mortgage
Loan set forth on the Trust 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 Trust 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 Trust 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
Designation Principal Balance Principal Balance Certificates
------------------- ----------------------- --------------------------------
A-1 $ 21,000,000 X-0
X-0 $ 455,000,000 X-0
X-0XX $ 40,000,000 X-0XX
X-0 $ 169,000,000 A-3
A-AB $ 67,000,000 A-AB
A-4 $ 910,408,000 A-4
A-1A $ 422,847,000 A-1A
A-M $ 227,893,000 A-M
A-MFL $ 70,000,000 A-MFL
A-J $ 156,395,000 A-J
B $ 33,513,000 B
C $ 37,237,000 C
D $ 33,513,000 D
E $ 29,789,000 E
F $ 29,790,000 F
G $ 33,513,000 G
H $ 37,236,000 H
J $ 40,961,000 J
K $ 29,789,000 K
L $ 44,684,000 L
M $ 14,895,000 M
N $ 11,171,000 N
P $ 3,723,000 P
Q $ 7,448,000 Q
S $ 7,447,000 S
T $ 44,684,714 T
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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 tax law. For federal income tax purposes, each Class of the
Regular Interest Certificates (exclusive of the Class X Certificates), each
Class X REMIC III Component and each Group FL REMIC III Regular Interest 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), for each Class X REMIC III Component and for each
Group FL REMIC III Regular Interest is the latest Rated Final Distribution Date.
Each Class of Regular Interest Certificates, each Class X REMIC III Component
and each Group FL REMIC III Regular Interest 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 and each Group FL REMIC III
Regular Interest.
REGULAR INTEREST CERTIFICATES
Class Original Class
Designation Principal Balance
-------------------------------- ----------------------------
Class A-1 $ 21,000,000
Class A-2 $ 455,000,000
Class A-2FL(1) $ 40,000,000
Class A-3 $ 169,000,000
Class A-AB $ 67,000,000
Class A-4 $ 910,408,000
Class A-1A $ 422,847,000
Class A-M $ 227,893,000
Class A-MFL(2) $ 70,000,000
Class A-J $ 156,395,000
Class B $ 33,513,000
Class C $ 37,237,000
Class D $ 33,513,000
Class E $ 29,789,000
Class F $ 29,790,000
Class G $ 33,513,000
Class H $ 37,236,000
Class J $ 40,961,000
Class K $ 29,789,000
Class L $ 44,684,000
Class M $ 14,895,000
Class N $ 11,171,000
Class P $ 3,723,000
Class Q $ 7,448,000
Class S $ 7,447,000
Class T $ 44,684,714
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Class Original Class
Designation Principal Balance
-------------------------------- ----------------------------
Class X (3)
_________________
(1) Refers to the Class A-2FL REMIC III Regular Interest and not to the Class
A-2FL Certificates.
(2) Refers to the Class A-MFL REMIC III Regular Interest and not to the Class
A-MFL Certificates.
(3) 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.
The portion of the Trust Fund consisting of (i) the Class A-2FL
REMIC III Regular Interest (and distributions thereon), the Class A-2FL Swap
Agreement (and payments by the Class A-2FL Swap Counterparty thereunder) and the
Class A-2FL Floating Rate Account and (ii) amounts held from time to time in the
Class A-2FL Floating Rate Account that represent distributions on the Class
A-2FL REMIC III Regular Interest and payments by the Class A-2FL Swap
Counterparty under the Class A-2FL Swap Agreement, shall be treated as a grantor
trust for federal income tax purposes and shall be designated as "Grantor Trust
A-2FL." The portion of the Trust Fund consisting of (i) the Class A-MFL REMIC
III Regular Interest (and distributions thereon), the Class A-MFL Swap Agreement
(and payments by the Class A-MFL Swap Counterparty thereunder) and the Class
A-MFL Floating Rate Account and (ii) amounts held from time to time in the Class
A-MFL Floating Rate Account that represent distributions on the Class A-MFL
REMIC III Regular Interest and payments by the Class A-MFL Swap Counterparty
under the Class A-MFL Swap Agreement, shall be treated as a grantor trust for
federal income tax purposes and shall be designated as "Grantor Trust A-MFL." As
provided herein, the Trustee shall take all actions required hereunder to ensure
that the portions of the Trust Fund consisting of the Grantor Trust A-2FL Assets
and the Grantor Trust A-MFL Assets, respectively, maintain their status as
multiple grantor trusts under federal income tax law and not be treated as part
of any REMIC Pool. The Class A-2FL Certificates shall represent undivided
beneficial interests in Grantor Trust A-2FL as described herein and the Class
A-MFL Certificates shall represent undivided beneficial interests in Grantor
Trust A-MFL as described herein.
The Class V Certificates (if issued in accordance with Section 2.05)
will represent the entire beneficial ownership of the Class V Grantor Trust
Assets. Notwithstanding the foregoing, however, if the Trust Fund does not
include ARD Trust Mortgage Loans, then there will be no Grantor Trust V, the
Class V Certificates will not be issued and the provisions of Section 2.05(b)
will apply.
The Initial Pool Balance will be $2,978,936,714.
The Trust Fund will include multiple Trust Mortgage Loans (each, a
"Combination Trust Mortgage Loan") that are, in each such case, together with
one (1) or more other mortgage loans that will not be part of the Trust Fund
(each such other mortgage loan, a "Non-Trust Mortgage Loan"), secured on a
collective basis by the same Mortgage(s) encumbering the related Mortgaged
Property or group of Mortgaged Properties. The Combination Trust Mortgage Loan
and related Non-Trust
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Mortgage Loan(s) that are secured by the same Mortgage(s) on a particular
Mortgaged Property or group of Mortgaged Properties will, together, constitute a
"Loan Combination" (which term shall include any pair or group of successor REO
Mortgage Loans with respect to those two (2) or more mortgage loans or any other
corresponding mortgage loans deemed to exist with respect to a related REO
Property). Each Trust Mortgage Loan and Non-Trust Mortgage Loan comprising a
Loan Combination is evidenced by a separate Mortgage Note. The relative rights
of the respective lenders in respect of each Loan Combination are set forth in a
related co-lender agreement or intercreditor agreement (each such co-lender
agreement or intercreditor agreement, as amended, restated, supplemented or
otherwise modified from time to time, a "Co-Lender Agreement"), between the
holder of the Mortgage Note for the Combination Trust Mortgage Loan included in
such Loan Combination and the holder(s) of the Mortgage Note(s) for the
Non-Trust Mortgage Loan(s) included in such Loan Combination. As and to the
extent provided in the related Co-Lender Agreement and the related loan
documents, a Non-Trust Mortgage Loan may, under various material default
scenarios, be senior in right of payment to the related Combination Trust
Mortgage Loan (any such Non-Trust Mortgage Loan, a "Senior Non-Trust Mortgage
Loan"), pari passu in right of payment with the related Combination Trust
Mortgage Loan (any such Non-Trust Mortgage Loan, a "Pari Passu Non-Trust
Mortgage Loan") or subordinate in right of payment to the related Combination
Trust Mortgage Loan (any such Non-Trust Mortgage Loan, a "Subordinate Non-Trust
Mortgage Loan").
Some or all of the Combination Trust Mortgage Loans (each, a
"Serviced Combination Trust Mortgage Loan") will be serviced and administered in
accordance with (and, accordingly, most material servicing functions with
respect to the related Non-Trust Mortgage Loans and any related REO Property
will be performed pursuant to) this Agreement, in which case the Loan
Combination that includes such Serviced Combination Trust Mortgage Loan will
constitute a "Serviced Loan Combination". The table below identifies each
Serviced Combination Trust Mortgage Loan that will be included in the Trust Fund
by name of the related Mortgaged Property or group of Mortgaged Properties, the
Cut-off Date Balance of such Serviced Combination Trust Mortgage Loan, the
original principal balance of any related Pari Passu Non-Trust Mortgage Loan(s)
included in the applicable Serviced Loan Combination and the holder(s) (as of
the Closing Date) of the related Mortgage Note(s) and the original principal
balance of any related Subordinate Non-Trust Mortgage Loan(s) included in the
applicable Serviced Loan Combination and the holder(s) (as of the Closing Date)
of the related Mortgage Note(s). None of the Serviced Loan Combinations will
include any Senior Non-Trust Mortgage Loans.
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SERVICED COMBINATION TRUST MORTGAGE LOANS
Original Principal Holder(s) of Original Principal Holder(s) of
Cut-off Date Balance Balance of Related Related Pari Balance of Related Related
of Serviced Pari Passu Passu Non-Trust Subordinate Subordinate
Name of Mortgaged Property or Combination Trust Non-Trust Mortgage Mortgage Non-Trust Mortgage Non-Trust Mortgage
Group of Mortgaged Properties(1) Mortgage Loan Loan(s) Loan(s)(2) Loan(s) Loan(s)(2)
-------------------------------- -------------------- ------------------ --------------- ------------------ ------------------
1. Innkeepers Portfolio $ 412,701,271 $ 412,701,271 LBHI NAP(3) NAP(3)
2. Bear Canyon $ 22,500,000 NAP(3) NAP(3) $ 5,600,000 LBHI
3. Addison Tower $ 11,100,000 NAP(3) NAP(3) $ 700,000 LBHI
_____________________
(1) Reflects property identified by that name on the Trust Mortgage Loan
Schedule.
(2) As of Closing Date.
(3) "NAP" means not applicable.
The Trust Fund may also include one (1) or more Combination Trust
Mortgage Loans (each, an "Outside Serviced Trust Mortgage Loan") that will, in
each such case, be part of a Loan Combination (an "Outside Serviced Loan
Combination") as to which most material servicing functions with respect thereto
and any related REO Property will be performed pursuant to an Outside Servicing
Agreement. The table below identifies, among other things, each Outside Serviced
Trust Mortgage Loan, if any, that will be included in the Trust Fund by name of
the related Mortgaged Property or group of Mortgaged Properties, the Cut-off
Date Balance of such Outside Serviced Trust Mortgage Loan, the original
principal balance of any related Pari Passu Non-Trust Mortgage Loan(s) included
in the applicable Outside Serviced Loan Combination and the holder(s) (as of the
Closing Date) of the related Mortgage Note(s) for such Pari Passu Non-Trust
Mortgage Loan(s). None of the Outside Serviced Loan Combinations will include
any Senior Non-Trust Mortgage Loans or Subordinate Non-Trust Mortgage Loans.
OUTSIDE SERVICED LOAN COMBINATIONS
Original Principal
Cut-off Date Balance of Balance of Related Pari Holder(s) of Related Pari
Name of Mortgaged Property or Group of Outside Serviced Trust Passu Non-Trust Mortgage Passu Non-Trust
Mortgaged Properties(1) Mortgage Loan Loan(s) Mortgage Loan(s)(2)
----------------------------------------- -------------------------- -------------------------- ----------------------------
1. Potomac Xxxxx $ 246,000,000 $ 164,000,000 Trustee under the
Potomac Xxxxx Servicing
Agreement
2. Och-Ziff Retail Portfolio $ 144,000,000 $ 140,000,000 Trustee under the
Och-Ziff Retail
Portfolio Servicing
Agreement
_______________
(1) Reflects property identified by that name on the Trust Mortgage Loan
Schedule.
(2) As of Closing Date.
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.
"AAA" shall have the meaning assigned thereto in Section 2.03(i).
"AAA Rules" shall have the meaning assigned thereto in Section
2.03(i).
"Acceptable Insurance Default" shall mean, with respect to any
Serviced 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 and/or Section 6.12, in each case 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 and any
Group FL REMIC III Regular Interest, the amount of which interest shall equal:
(a) in the case of a Class of Principal Balance Certificates or a Group FL REMIC
III Regular Interest, for any Interest Accrual Period, one-twelfth of the
product of (i) the annual Pass-Through Rate applicable to such Class of
Certificates or such Group FL REMIC III Regular Interest, as the case may be,
for such Interest Accrual Period, multiplied by (ii) the Class Principal Balance
of such Class of Certificates or such Group FL REMIC III Regular Interest, as
the case may be, 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 and the Group FL REMIC III Regular Interests 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
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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 (or, in the case of an Outside Administered REO Property, acquired
for the benefit of) the Trust Fund within the meaning of Treasury regulations
section 1.856-6(b)(1), which shall be the first day on which the Trust Fund is
treated as the owner of such REO Property or an interest therein for federal
income tax purposes.
"Actual/360 Basis" shall mean the accrual of interest calculated on
the basis of the actual number of days elapsed during any interest accrual
period in a year assumed to consist of 360 days.
"Actual/360 Equivalent of the Related Outside Servicing Fee Rate"
shall mean, in the case of an Outside Servicing Fee that is calculated on a
30/360 Basis, for any Interest Accrual Period, a rate per annum equal to the
product of (a) the applicable Outside Servicing Fee Rate, multiplied by (b) a
fraction, expressed as a percentage, the numerator of which is 30 and the
denominator of which is the number of days in such Interest Accrual Period.
"Addison Tower Co-Lender Agreement" shall mean the Co-Lender
Agreement relating to the Addison Tower Loan Combination.
"Addison Tower Loan Combination" shall mean the Loan Combination
that is secured by the Mortgaged Property identified on the Trust Mortgage Loan
Schedule as Addison Tower.
"Addison Tower Non-Trust Mortgage Loan" shall mean the Non-Trust
Mortgage Loan included in the Addison Tower Loan Combination.
"Addison Tower Non-Trust Mortgage Loan Noteholder" shall mean the
holder of the Mortgage Note for the Addison Tower Non-Trust Mortgage Loan.
"Addison Tower Trust Mortgage Loan" shall mean the Trust Mortgage
Loan included in the Addison Tower Loan Combination.
"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).
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"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 Swap Payment" shall mean the Class A-2FL
Additional Fixed Rate Swap Payment or the Class A-MFL Additional Floating Rate I
Swap Payment, as applicable.
"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 Trust Mortgage
Loan or REO Trust Mortgage Loan; and (iv) would result or has resulted, as the
case may be, in the Holders of Regular Interest Certificates or the Floating
Rate Grantor Trusts with respect to the Group FL REMIC III Regular Interests
receiving less than the full amount of principal and/or Distributable
Certificate Interest to which they are entitled on any Distribution Date.
"Adjusted Actual/360 Accrued Interest Amount" shall mean, with
respect to any Loan REMIC Regular Interest or REMIC I Regular Interest that
relates to an Interest Reserve Mortgage Loan or an Interest Reserve REO Mortgage
Loan, for any Interest Accrual Period, an amount of interest equal to the
product of (a) the Mortgage Rate for the related Trust Mortgage Loan in effect
as of the Closing Date (without regard to any modifications, extensions, waivers
or amendments of the related Trust Mortgage Loan subsequent to the Closing Date,
and if such related Trust Mortgage Loan is an Outside Serviced Trust Mortgage
Loan, reduced either by the related Outside Servicing Fee Rate, if the related
Outside Servicing Fee is calculated on an Actual/360 Basis, or by the Actual/360
Equivalent of the Related Outside Servicing Fee Rate, if the related Outside
Servicing Fee is calculated on a 30/360 Basis), multiplied by (b) a fraction,
the numerator of which is the number of days in such Interest Accrual Period,
and the denominator of which is 360, multiplied by (c) the Uncertificated
Principal Balance of such Loan REMIC Regular Interest or REMIC I Regular
Interest, as the case may be, immediately prior to the Distribution Date that
corresponds to such Interest Accrual Period; provided that, if the subject
Interest Accrual Period ends during (x) the calendar month of January (except in
a leap year) or (y) the calendar month of February, then the amount of interest
calculated with respect to any particular Loan REMIC Regular Interest or REMIC I
Regular Interest pursuant to this definition for such Interest Accrual Period
without regard to this proviso shall be decreased by the Interest Reserve
Amount, if any, with respect to the related Interest Reserve Mortgage Loan or
Interest Reserve REO Mortgage Loan, as the case may be, transferred (in
accordance with Section 3.04(c)) from the Collection Account to the Interest
Reserve Account in the calendar month in which such Interest Accrual Period
ends; and provided, further, that, if the subject Interest Accrual Period ends
during the calendar month of March, then the amount calculated with respect to
any particular Loan REMIC Regular Interest or REMIC I Regular Interest pursuant
to this definition for such Interest Accrual Period without regard to this
proviso shall be increased by the Interest Reserve Amount(s), if any, with
respect to the related
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Interest Reserve Mortgage Loan or Interest Reserve REO Mortgage Loan, as the
case may be, transferred (in accordance with Section 3.05(c)) from the Interest
Reserve Account to the Collection Account in the calendar month in which such
Interest Accrual Period ends.
"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: (a) with respect to
any REMIC II Regular Interest (other than REMIC II Regular Interest A-2FL and
REMIC II Regular Interest A-MFL), 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 a Corresponding REMIC II Regular Interest; (b) with
respect to REMIC II Regular Interest A-2FL, 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 A-2FL REMIC III Regular Interest; and (c) with
respect to REMIC II Regular Interest A-MFL, 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 A-MFL REMIC III Regular Interest.
"Administered REO Property" shall mean any REO Property other than,
if applicable, any Outside Administered REO Property.
"Administrative Cost Rate" shall mean: (a) with respect to each
Outside Serviced Trust Mortgage Loan (or any successor REO Trust Mortgage Loan
with respect thereto), the sum of (i) the related Outside Servicing Fee Rate,
(ii) the Trustee Fee Rate, and (iii) the related Master Servicing Fee Rate; and
(b) with respect to each other Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan with respect thereto), the corresponding rate per annum specified
as the "Administrative Cost Rate" on the Trust Mortgage Loan Schedule, which,
for each Trust Mortgage Loan (or any successor REO Trust 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, any endangerment to the
status of any of Grantor Trust A-2FL, Grantor Trust A-MFL or, subject to Section
2.05(b), Grantor Trust V, as a grantor trust under the Grantor Trust Provisions
or any imposition of a tax on any such grantor trust or any of its respective
assets or transactions.
"Adverse Rating Event" shall mean, with respect to any Class of
Certificates or any class of Specially Designated Non-Trust Mortgage Loan
Securities, as of any date of determination, the qualification, downgrade or
withdrawal of any rating then assigned to such Class of Certificates by any
Rating Agency or to such class of Specially Designated Non-Trust Mortgage Loan
Securities by any Other Rating Agency, as the case may be.
"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
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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 Serviced Trust Mortgage Loan or Serviced Loan Combination,
as applicable, became a Required Appraisal Loan and the date on which the
applicable Required Appraisal was obtained, and thereafter monthly on each
subsequent related Determination Date during the period that the subject
Serviced Trust Mortgage Loan, REO Trust Mortgage Loan or Serviced Loan
Combination, 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) if such Required Appraisal Loan
consists of a Serviced Loan Combination that includes a Serviced Pari Passu
Non-Trust Mortgage Loan, and if such Serviced Pari Passu Non-Trust Mortgage Loan
was included in a Non-Trust Mortgage Loan Securitization Trust, any unpaid
interest made on delinquency advances with respect to such Non-Trust Mortgage
Loan or any successor REO Mortgage Loan with respect thereto under the related
Non-Trust Mortgage Loan Securitization Agreement, (vi) any other unpaid items
that could become Additional Trust Fund Expenses in respect of such Required
Appraisal Loan, and (vii) all currently due and unpaid real estate taxes and
assessments, insurance premiums and, if applicable,
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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 Serviced Trust Mortgage Loan or
Serviced Loan Combination 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 Serviced Trust Mortgage Loan or Serviced Loan
Combination, as the case may be, 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 Serviced Trust Mortgage Loan or
Serviced Loan Combination, as the case may be, became a Required Appraisal Loan,
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. Also notwithstanding the foregoing, if any
Co-Lender Agreement permits a Serviced Subordinate Non-Trust Mortgage Loan
Noteholder to post Reserve Collateral to offset or reduce an Appraisal Reduction
Amount (or any portion thereof) in respect of a Serviced Senior/Subordinate Loan
Combination, then such Reserve Collateral shall offset or be taken into account
in the calculation of any such Appraisal Reduction Amount as and to the extent
contemplated by the related Co-Lender Agreement. 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 Serviced Trust Mortgage Loan or Serviced Loan Combination, as
applicable, ceases to be a Required Appraisal Loan, and no Appraisal Reduction
Amount shall exist as to any Serviced Trust Mortgage Loan (or any successor REO
Trust Mortgage Loan with respect thereto) or any Serviced Loan Combination after
it has been paid in full, liquidated, repurchased or otherwise disposed of.
Any Appraisal Reduction Amount with respect to a Serviced Loan
Combination shall be calculated, and allocated between or among, as the case may
be, the respective Mortgage Loans comprising the subject Serviced Loan
Combination, by the Special Servicer pursuant to this Agreement and consistent
with the related Co-Lender Agreement; and the related Serviced Non-Trust
Mortgage Loan Noteholder(s) shall be entitled to rely on such calculations, and
the allocations to the subject Serviced Non-Trust Mortgage Loan(s) or any
successor REO Trust Mortgage Loan(s) with respect thereto, as reported to it or
them, as the case may be, by the Special Servicer.
Notwithstanding the foregoing, in the case of an Outside Serviced
Loan Combination, the term "Appraisal Reduction Amount" shall have the meaning
assigned to that term or any analogous term in the related Outside Servicing
Agreement. Further notwithstanding the foregoing, any Appraisal Reduction Amount
with respect to an Outside Serviced Loan Combination shall be calculated, and
allocated between the respective Mortgage Loans comprising such Outside Serviced
Loan Combination by the applicable Outside Servicer pursuant to the related
Outside Servicing Agreement; and the parties
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hereto shall be entitled to rely on such calculations, and the allocations to
the Trust Mortgage Loan or REO Trust Mortgage Loan, as applicable, in such
Outside Serviced Loan Combination, as reported to them by the applicable Outside
Servicer.
"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
Trust Mortgage Loan or relating to an REO Trust 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.
"Arbitration Commencement Date" shall have the meaning assigned
thereto in Section 2.03(i).
"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 Trust Mortgage Loans are reflected on the Trust Mortgage
Loan Schedule as being ARD Mortgage Loans, then Section 2.05(b) shall apply.
"ARD Trust Mortgage Loan" shall mean any Trust Mortgage Loan that is
an ARD Mortgage Loan. If none of the Trust Mortgage Loans are reflected on the
Trust 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 (or, in the case of
a Serviced Non-Trust Mortgage Loan, if applicable, as of which (i) such
Non-Trust Mortgage Loan remains outstanding and (ii) the related Trust Mortgage
Loan remains 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
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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 Trust
Mortgage Loans and any REO Properties (including Loss of Value Payments
and, in the case of the initial Distribution Date, any Initial Deposits)
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 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, (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,
and (vi) to the extent not included in the amount described in clause
(a)(i) of this definition, if such Distribution Date occurs during the
calendar month of March, the aggregate of the Interest Reserve Amounts, if
any, transferred from the Interest Reserve Account to the Collection
Account in respect of the Interest Reserve Mortgage Loans and any Interest
Reserve REO Mortgage Loans for distribution on such Distribution Date; net
of
(b) the portion of the aggregate amount described in clause (a) of
this definition that represents one or more of the following--(i)
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 (viii) of Section
3.05(b), (iii) Prepayment Consideration and/or Additional Interest, (iv)
if such Distribution Date occurs during the calendar month of January
(except in a leap year) or during the calendar month of February, the
Interest Reserve Amounts with respect to the Interest Reserve Mortgage
Loans and any Interest Reserve REO Mortgage Loans to be withdrawn from the
Collection Account and deposited into the Interest Reserve Account in
respect of such Distribution Date and held for
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future distribution, all pursuant to Section 3.04(c), and (v) 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.
"Balloon Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that is a Balloon Mortgage Loan.
"Bear Canyon Co-Lender Agreement" shall meaning the Co-Lender
Agreement relating to the Bear Canyon Loan Combination.
"Bear Canyon Directing Lender" shall mean the Loan Combination
Directing Lender with respect to the Bear Canyon Loan Combination.
"Bear Canyon Loan Combination" shall mean the Loan Combination that
is secured by the Mortgaged Property identified on the Trust Mortgage Loan
Schedule as Bear Canyon.
"Bear Canyon Non-Trust Mortgage Loan" shall mean the Non-Trust
Mortgage Loan included in the Bear Canyon Loan Combination.
"Bear Canyon Non-Trust Mortgage Loan Noteholder" shall mean the
holder of the Mortgage Note for the Bear Canyon Non-Trust Mortgage Loan.
"Bear Canyon Trust Mortgage Loan" shall mean the Trust Mortgage Loan
included in the Bear Canyon Loan Combination.
"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.
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"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.
"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
Trust Mortgage Loans and REO Properties pursuant to Section 9.01.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate" shall mean any one of the LB-UBS Commercial Mortgage
Trust 2007-C6, Commercial Mortgage Pass-Through Certificates, Series 2007-C6, 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, any Class of Floating Rate Certificates or any
Group FL REMIC III Regular Interest, 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 Certificates or such Group FL REMIC III Regular
Interest, as the case may be, 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 Certificates, or such Group FL REMIC III Regular Interest, as the case
may be.
"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
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which such Certificate belongs, multiplied by (b) the amount specified on the
face of such Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" shall mean the register maintained pursuant
to Section 5.02.
"Certificate Registrar" shall mean the registrar appointed pursuant
to Section 5.02.
"Certificateholder" shall mean the Person in whose name a
Certificate is registered in the Certificate Register, except that: (i) neither
a Disqualified Organization nor a Disqualified Non-United States Tax Person
shall be Holder of a Residual Interest Certificate for any purpose hereof; and
(ii) solely for the purposes of giving any consent, approval or waiver pursuant
to this Agreement that relates to the rights and/or obligations of any of the
Depositor, the Master Servicer, the Special Servicer, 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 and any reports
comparable to the foregoing with respect to an Outside Serviced Trust Mortgage
Loan or any related REO Property that are deliverable to the Trustee (or to the
Master Servicer on behalf of the Trustee), as holder of the Mortgage Note for
such Outside Serviced Trust Mortgage Loan.
"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-2FL, Class A-3, Class A-AB, Class A-4, Class A-1A, Class A-M, Class
A-MFL and Class A-J Certificates.
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"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.
"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-2FL Additional Fixed Rate Swap Payment" shall mean, with
respect to any Distribution Date and the Class A-2FL Swap Payment Date to which
it relates based on the confirmation under the Class A-2FL Swap Agreement, the
"Additional Fixed Amount" within the meaning of the confirmation under the Class
A-2FL Swap Agreement.
"Class A-2FL Available Funds" shall mean, with respect to any
Distribution Date, an amount equal to (a) the sum of (i) the total amount of all
principal and/or interest distributions, as well as all distributions of Yield
Maintenance Charges and Prepayment Premiums, made on or in respect of the Class
A-2FL REMIC III Regular Interest with respect to such Distribution Date and (ii)
the amounts, if any, received from the Class A-2FL Swap Counterparty pursuant to
the Class A-2FL Swap Agreement for such Distribution Date, less (b) any Class
A-2FL Net Fixed Rate Swap Payment, Class A-2FL Additional Fixed Rate Swap
Payment and Class A-2FL Fixed Rate Payer Shortfall Reimbursement Payment
required to be paid to the Class A-2FL Swap Counterparty pursuant to the Class
A-2FL Swap Agreement, consistent with Section 3.29, for such Distribution Date.
"Class A-2FL Certificate" shall mean any one of the Certificates
with a "Class A-2FL" designation on the face thereof, substantially in the form
of Exhibit A-4 attached hereto, and evidencing an undivided beneficial interest
in Grantor Trust A-2FL.
"Class A-2FL Distribution Conversion" shall mean, with respect to
any Distribution Date, (i) immediately upon and during the continuation of a
Class A-2FL Swap Default, or (ii) immediately upon and following the termination
of the Class A-2FL Swap Agreement until any replacement agreement in accordance
with the terms hereof is entered into, the conversion of distributions to the
Class A-2FL Certificates from distributions based, in part, on floating interest
payments from the Class A-2FL Swap Counterparty under the Class A-2FL Swap
Agreement to distributions based solely on distributions in respect of the Class
A-2FL REMIC III Regular Interest, as specified in Section 4.01.
"Class A-2FL Fixed Rate Payer Shortfall Reimbursement Payment" shall
mean, with respect to any Distribution Date and the Class A-2FL Swap Payment
Date to which it relates based on the confirmation under the Class A-2FL Swap
Agreement, the "Fixed Rate Payer Shortfall Reimbursement Amount" within the
meaning of the confirmation under the Class A-2FL Swap Agreement.
"Class A-2FL Fixed Rate Swap Payment" shall mean, with respect to
any Distribution Date and the Class A-2FL Swap Payment Date to which it relates
based on the confirmation under the
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Class A-2FL Swap Agreement, the "Regular Fixed Amount" within the meaning of the
confirmation under the Class A-2FL Swap Agreement.
"Class A-2FL Floating Rate Account" shall mean a segregated
custodial account or accounts or sub-account of the Collection Account created
and maintained by the Trustee, pursuant to Section 3.04(f), in trust for the
Class A-2FL Certificateholders and the Class A-2FL Swap Counterparty, as their
interests may appear, which shall be entitled "[NAME OF TRUSTEE], as Trustee, in
trust for the registered holders of LB-UBS Commercial Mortgage Trust 2007-C6,
Class A-2FL Commercial Mortgage Pass-Through Certificates, Series 2007-C6, and
the Class A-2FL Swap Counterparty, as their interests may appear, Class A-2FL
Floating Rate Account". Any such account or sub-account shall be an Eligible
Account or a sub-account of an Eligible Account.
"Class A-2FL Floating Rate Swap Payment" shall mean, with respect to
any Distribution Date and the Class A-2FL Swap Payment Date to which it relates
based on the confirmation under the Class A-2FL Swap Agreement, the "Floating
Amount" within the meaning of the confirmation under the Class A-2FL Swap
Agreement.
"Class A-2FL Grantor Trust Assets" shall mean the assets of Grantor
Trust A-2FL.
"Class A-2FL Interest Distribution Amount" shall mean, with respect
to any Distribution Date, an amount equal to (a) the sum of (i) all
Distributable Certificate Interest paid with respect to the Class A-2FL REMIC
III Regular Interest on such Distribution Date, (ii) any Class A-2FL Net
Floating Rate Swap Payment received from the Class A-2FL Swap Counterparty for
distribution on such Distribution Date and (iii) if the Class A-2FL Swap
Agreement is terminated and a replacement Class A-2FL Swap Agreement is not
obtained, any Class A-2FL Swap Termination Fees collected during the related
Collection Period, less (b) any Class A-2FL Net Fixed Rate Swap Payment and/or
Class A-2FL Fixed Rate Payer Shortfall Reimbursement Payment made to the Class
A-2FL Swap Counterparty with respect to such Distribution Date.
"Class A-2FL Net Fixed Rate Swap Payment" shall mean, with respect
to any Distribution Date, the excess, if any, of (i) the Class A-2FL Fixed Rate
Swap Payment for that Distribution Date over (ii) the Class A-2FL Floating Rate
Swap Payment for that Distribution Date.
"Class A-2FL Net Floating Rate Swap Payment" shall mean, with
respect to any Distribution Date, the excess, if any of (i) the Class A-2FL
Floating Rate Swap Payment for that Distribution Date over (ii) the Class A-2FL
Fixed Rate Swap Payment for that Distribution Date.
"Class A-2FL Principal Distribution Amount" shall mean, with respect
to any Distribution Date, an amount equal to the aggregate of all principal
distributions, if any, allocated pursuant to Section 4.01(a) in respect of the
Class A-2FL REMIC III Regular Interest on such Distribution Date.
"Class A-2FL REMIC III Regular Interest" shall mean the
uncertificated interest in REMIC III, designated as "Class A-2FL", constituting
a "regular interest" in REMIC III for purposes of the REMIC Provisions and
having the characteristics attributable thereto in this Agreement.
"Class A-2FL Swap Agreement" shall mean the interest rate swap
agreement, dated as of August 30, 2007, by and between the Class A-2FL Swap
Counterparty and the Trustee, solely in its
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capacity as Grantor Trust Trustee, on behalf of Grantor Trust A-2FL, and
relating to the Class A-2FL REMIC III Regular Interest, including any schedule,
confirmations, credit support annex or other credit support document relating
thereto, or any replacement interest rate swap agreement entered into by the
Trustee in accordance with the terms of Section 3.29.
"Class A-2FL Swap Collateral Account" shall have the meaning set
forth in Section 3.04(h).
"Class A-2FL Swap Counterparty" shall mean the swap provider under
the Class A-2FL Swap Agreement, which is initially Xxxxxx Brothers Special
Financing Inc.
"Class A-2FL Swap Credit Support Annex" shall mean the credit
support annex, dated as of August 30, 2007, between the Trustee on behalf of
Grantor Trust A-2FL and the Class A-2FL Swap Counterparty, which is annexed to
and forms part of the Class A-2FL Swap Agreement.
"Class A-2FL Swap Custodian" shall have the meaning set forth in
Section 3.29.
"Class A-2FL Swap Default" shall mean any failure on the part of the
Class A-2FL Swap Counterparty (that continues beyond any applicable grace period
under the Class A-2FL Swap Agreement) to (i) make a required payment under the
Class A-2FL Swap Agreement as and when due thereunder, or (ii) post collateral
or obtain a replacement swap counterparty or a guarantor of the Class A-2FL Swap
Counterparty's obligations, as and when required under the Class A-2FL Swap
Agreement.
"Class A-2FL Swap Payment Date" shall mean a "Fixed Rate Payer
Payment Date" or "Floating Rate Payer Payment Date", as applicable, within the
meaning of the confirmation under the Class A-2FL Swap Agreement.
"Class A-2FL Swap Termination Fees" shall mean any fees, costs or
expenses payable by the Class A-2FL Swap Counterparty to Grantor Trust A-2FL in
connection with a termination of the Class A-2FL Swap Agreement, as specified in
the Class A-2FL Swap Agreement.
"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-4 Certificate" shall mean any one of the Certificates with
a "Class A-4" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-AB Certificate" shall mean any one of the Certificates with
a "Class A-AB" 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-AB Planned Principal Balance" shall mean, with respect to
any Distribution Date, the targeted Class Principal Balance of the Class A-AB
Certificates for such date set forth on Schedule XI attached hereto.
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"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 A-M Certificate" shall mean any one of the Certificates with
a "Class A-M" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-MFL Additional Floating Rate I Swap Payment" shall mean,
with respect to any Distribution Date and the Class A-MFL Swap Payment Date to
which it relates based on the confirmation under the Class A-MFL Swap Agreement,
the "Additional Floating Amount I" within the meaning of the confirmation under
the Class A-MFL Swap Agreement.
"Class A-MFL Available Funds" shall mean, with respect to any
Distribution Date, an amount equal to (a) the sum of (i) the total amount of all
principal and/or interest distributions, as well as all distributions of Yield
Maintenance Charges and Prepayment Premiums, made on or in respect of the Class
A-MFL REMIC III Regular Interest with respect to such Distribution Date and (ii)
the amounts, if any, received from the Class A-MFL Swap Counterparty pursuant to
the Class A-MFL Swap Agreement for such Distribution Date, less (b) any Class
A-MFL Net Floating Rate I Swap Payment, Class A-MFL Additional Floating Rate I
Swap Payment and Class A-MFL Floating Rate I Payer Shortfall Reimbursement
Payment required to be paid to the Class A-MFL Swap Counterparty pursuant to the
Class A-MFL Swap Agreement, consistent with Section 3.29, for such Distribution
Date.
"Class A-MFL Certificate" shall mean any one of the Certificates
with a "Class A-MFL" designation on the face thereof, substantially in the form
of Exhibit A-4 attached hereto, and evidencing an undivided beneficial interest
in Grantor Trust A-MFL.
"Class A-MFL Distribution Conversion" shall mean, with respect to
any Distribution Date, (i) immediately upon and during the continuation of a
Class A-MFL Swap Default, or (ii) immediately upon and following the termination
of the Class A-MFL Swap Agreement until any replacement agreement in accordance
with the terms hereof is entered into, the conversion of distributions to the
Class A-MFL Certificates from distributions based, in part, on floating interest
payments from the Class A-MFL Swap Counterparty under the Class A-MFL Swap
Agreement to distributions based solely on distributions in respect of the Class
A-MFL REMIC III Regular Interest, as specified in Section 4.01.
"Class A-MFL Floating Rate I Payer Shortfall Reimbursement Payment"
shall mean, with respect to any Distribution Date and the Class A-MFL Swap
Payment Date to which it relates based on the confirmation under the Class A-MFL
Swap Agreement, the "Floating Rate I Payer Shortfall Reimbursement Amount"
within the meaning of the confirmation under the Class A-MFL Swap Agreement.
"Class A-MFL Floating Rate I Swap Payment" shall mean, with respect
to any Distribution Date and the Class A-MFL Swap Payment Date to which it
relates based on the confirmation under the Class A-MFL Swap Agreement, the
"Regular Floating Amount I" within the meaning of the confirmation under the
Class A-MFL Swap Agreement.
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"Class A-MFL Floating Rate Account" shall mean a segregated
custodial account or accounts or sub-account of the Collection Account created
and maintained by the Trustee, pursuant to Section 3.04(f), in trust for the
Class A-MFL Certificateholders and the Class A-MFL Swap Counterparty, as their
interests may appear, which shall be entitled "[NAME OF TRUSTEE], as Trustee, in
trust for the registered holders of LB-UBS Commercial Mortgage Trust 2007-C6,
Class A-MFL Commercial Mortgage Pass-Through Certificates, Series 2007-C6, and
the Class A-MFL Swap Counterparty, as their interests may appear, Class A-MFL
Floating Rate Account". Any such account or sub-account shall be an Eligible
Account or a sub-account of an Eligible Account.
"Class A-MFL Floating Rate II Swap Payment" shall mean, with respect
to any Distribution Date and the Class A-MFL Swap Payment Date to which it
relates based on the confirmation under the Class A-MFL Swap Agreement, the
"Floating Amount II" within the meaning of the confirmation under the Class
A-MFL Swap Agreement.
"Class A-MFL Grantor Trust Assets" shall mean the assets of Grantor
Trust A-MFL.
"Class A-MFL Interest Distribution Amount" shall mean, with respect
to any Distribution Date, an amount equal to (a) the sum of (i) all
Distributable Certificate Interest paid with respect to the Class A-MFL REMIC
III Regular Interest on such Distribution Date, (ii) any Class A-MFL Net
Floating Rate II Swap Payment received from the Swap Counterparty for
distribution on such Distribution Date and (iii) if the Class A-MFL Swap
Agreement is terminated and a replacement Class A-MFL Swap Agreement is not
obtained, any Class A-MFL Swap Termination Fees collected during the related
Collection Period, less (b) any Class A-MFL Net Floating Rate I Swap Payment
and/or Class A-MFL Floating Rate I Payer Shortfall Reimbursement Payment made to
the Class A-MFL Swap Counterparty with respect to such Distribution Date.
"Class A-MFL Net Floating Rate I Swap Payment" shall mean, with
respect to any Distribution Date, the excess, if any, of (i) the Class A-MFL
Floating Rate I Swap Payment for that Distribution Date over (ii) the Class
A-MFL Floating Rate II Swap Payment for that Distribution Date.
"Class A-MFL Net Floating Rate II Swap Payment" shall mean, with
respect to any Distribution Date, the excess, if any of (i) the Class A-MFL
Floating Rate II Swap Payment for that Distribution Date over (ii) the Class
A-MFL Floating Rate I Swap Payment for that Distribution Date.
"Class A-MFL Principal Distribution Amount" shall mean, with respect
to any Distribution Date, an amount equal to the aggregate of all principal
distributions, if any, allocated pursuant to Section 4.01(a) in respect of the
Class A-MFL REMIC III Regular Interest on such Distribution Date.
"Class A-MFL REMIC III Regular Interest" shall mean the
uncertificated interest in REMIC III, designated as "Class A-MFL", constituting
a "regular interest" in REMIC III for purposes of the REMIC Provisions and
having the characteristics attributable thereto in this Agreement.
"Class A-MFL Swap Agreement" shall mean the interest rate swap
agreement, dated as of August 30, 2007, by and between the Class A-MFL Swap
Counterparty and the Trustee, solely in its capacity as Grantor Trust Trustee,
on behalf of Grantor Trust A-MFL, and relating to the Class A-MFL REMIC III
Regular Interest, including any schedule, confirmations, credit support annex or
other credit
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support document relating thereto, or any replacement interest rate swap
agreement entered into by the Trustee in accordance with the terms of Section
3.29.
"Class A-MFL Swap Collateral Account" shall have the meaning set
forth in Section 3.04(h).
"Class A-MFL Swap Counterparty" shall mean the swap provider under
the Class A-MFL Swap Agreement, which is initially Xxxxxx Brothers Special
Financing Inc.
"Class A-MFL Swap Credit Support Annex" shall mean the credit
support annex, dated as of August 30, 2007, between the Trustee on behalf of
Grantor Trust A-MFL and the Class A-MFL Swap Counterparty, which is annexed to
and forms part of the Class A-MFL Swap Agreement.
"Class A-MFL Swap Custodian" shall have the meaning set forth in
Section 3.29.
"Class A-MFL Swap Default" shall mean any failure on the part of the
Class A-MFL Swap Counterparty (that continues beyond any applicable grace period
under the Class A-MFL Swap Agreement) to (i) make a required payment under the
Class A-MFL Swap Agreement as and when due thereunder, or (ii) post collateral
or obtain a replacement swap counterparty or a guarantor of the Class A-MFL Swap
Counterparty's obligations, as and when required under the Class A-MFL Swap
Agreement.
"Class A-MFL Swap Payment Date" shall mean a "Floating Rate I Payer
Payment Date" or "Floating Rate II Payer Payment Date", as applicable, within
the meaning of the confirmation under the Class A-MFL Swap Agreement.
"Class A-MFL Swap Termination Fees" shall mean any fees, costs or
expenses payable by the Class A-MFL Swap Counterparty to Grantor Trust A-MFL in
connection with a termination of the Class A-MFL Swap Agreement, as specified in
the Class A-MFL Swap Agreement.
"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.
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"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.
"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 or
any Group FL REMIC III Regular Interest. As of the Closing Date, the Class
Principal Balance of each Class of Principal Balance Certificates
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(exclusive of the Floating Rate Certificates) and each Group FL REMIC III
Regular Interest shall equal the Original Class Principal Balance thereof. On
each Distribution Date, the Class Principal Balance of each Class of Principal
Balance Certificates (exclusive of the Floating Rate Certificates) and each
Group FL REMIC III Regular Interest shall be reduced by the amount of any
distributions of principal made thereon on such Distribution Date pursuant to
Section 4.01 or 9.01, as applicable, and shall be further reduced (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 (exclusive of the Floating Rate Certificates) and
each Group FL REMIC III Regular Interest shall be increased by the related Class
Principal Reinstatement Amount, if any, for such Distribution Date. The Class
Principal Balance of the Class A-2FL Certificates shall at all times equal the
Class Principal Balance of the Class A-2FL REMIC III Regular Interest; and the
Class Principal Balance of the Class A-MFL Certificates shall at all times equal
the Class Principal Balance of the Class A-MFL REMIC III Regular Interest.
"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.
"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.
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"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 Class V Grantor Trust Assets.
"Class V Grantor Trust Assets" shall mean the assets of Grantor
Trust V.
"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 Grantor Trust
V, 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)
has an alphabetic or alphanumeric, as the case may be, designation of "X-"
followed by the alphabetic or alphanumeric, as the case may be, designation of
its Corresponding REMIC II Regular Interest; (iii) accrues interest at its
Pass-Through Rate in effect from time to time; and (iv) has a separate Component
Notional Amount on which such Class X REMIC III Component accrues interest from
time to time.
"Clearstream" shall mean Clearstream Banking, Luxembourg or any
successor.
"Closing Date" shall mean August 30, 2007.
"CMSA" shall mean the Commercial Mortgage Securities Association, or
any association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry, which is the principal such association or organization in the
commercial mortgage loan securitization industry and one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be selected
by the Master Servicer and reasonably acceptable to the Trustee, the Special
Servicer and the Controlling Class Representative.
"CMSA Advance Recovery Report" shall mean a report (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.
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"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 quarter ending
on or after December 31, 2007, 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.
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"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.
"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
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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 Serviced Mortgage Loans, and
by the Special Servicer with respect to Specially Serviced Mortgage Loans and,
if they relate to Administered 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 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 Serviced 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
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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 Serviced 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 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.
"Co-Lender Agreement" shall have the meaning assigned thereto in the
Preliminary Statement.
"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 "[NAME OF TRUSTEE] as Trustee, in trust for the registered holders
of LB-UBS Commercial Mortgage Trust 2007-C6, Commercial Mortgage Pass-Through
Certificates, Series 2007-C6".
"Collection Period" shall mean, individually and collectively, as
applicable in the context used, (i) the related Loan Combination Collection
Period with respect to each Loan Combination and all
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related matters, and (ii) the Trust Collection Period with respect to the
Mortgage Pool (exclusive of those Trust Mortgage Loans and any REO Trust
Mortgage Loans that are part of a Loan Combination) and all related matters.
"Combination Trust Mortgage Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"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 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 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and
Trust Services -- LB-UBS Commercial Mortgage Trust 2007-C6.
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"Corrected Mortgage Loan" shall mean any Serviced 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 Serviced Mortgage
Loan or the related Mortgaged Property's becoming an REO Property). None of the
Outside Serviced Mortgage Loans shall constitute a Corrected Mortgage Loan under
this Agreement.
"Corrected Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that constitutes a Corrected Mortgage Loan.
"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 (other than the Floating
Rate 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; (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; (c) with respect to the Class A-2FL REMIC III Regular Interest, REMIC
II Regular Interest A-2FL; and (d) with respect to the Class A-MFL REMIC III
Regular Interest, REMIC II Regular Interest A-MFL.
"Covered Costs" shall mean, with respect to any Trust Mortgage Loan
and any related costs and expenses that the Depositor (in the case of a Xxxxxx
Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (in the
case of a Non-Xxxxxx Trust Mortgage Loan), as applicable, are otherwise required
to pay pursuant to Section 2.03(d) or the related Mortgage Loan Purchase
Agreement, as applicable, (i) if such Trust 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 Trust 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 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; provided that no Loan Combination shall
constitute a Cross-Collateralized Group.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan
that is cross-defaulted and cross-collateralized with any other Mortgage Loan;
provided that none of the Mortgage Loans in a Loan Combination shall constitute
a Cross-Collateralized Mortgage Loan.
"Custodial Account" shall mean the Pool Custodial Account or any
Loan Combination Custodial Account.
"Custodian" shall mean a Person who is at any time appointed by the
Trustee pursuant to Section 8.11 as a document custodian for some or all of the
Mortgage Files, which Person shall not be
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the Depositor, a Mortgage Loan Seller or an Affiliate of the Depositor or a
Mortgage Loan Seller. If no such custodian has been appointed, or if such
custodian has been so appointed but the Trustee shall have terminated such
appointment, then the Trustee shall be the Custodian.
"Cut-off Date" shall mean, individually and collectively: (i) with
respect to those Trust Mortgage Loans originated on or before August 13, 2007,
August 13, 2007; and (ii) with respect to those Trust Mortgage Loans originated
after August 13, 2007, the related date of origination.
"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 (or,
if applicable, a Serviced Non-Trust Mortgage Loan Noteholder) in respect of any
Mortgage Loan or any successor REO Mortgage Loan with respect thereto.
"Default Interest" shall mean: (a) with respect to any Serviced
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 Serviced
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 Trust Mortgage Loan with respect thereto) after the related
Anticipated Repayment Date, any Additional Interest; and (b) with respect to any
Outside Serviced Trust Mortgage Loan (or any successor REO Trust Mortgage Loan
with respect thereto), any comparable penalty interest Received by the Trust
with respect thereto.
"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).
"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).
"Defeasance Serviced Trust Mortgage Loan" shall mean any Defeasance
Trust Mortgage Loan that is also a Serviced Trust Mortgage Loan.
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"Defeasance Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that is a Defeasance Mortgage Loan.
"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, individually and collectively, as
applicable in the context used, (i) the related Loan Combination Determination
Date with respect to each Loan Combination and all related matters, and (ii) the
Trust Determination Date with respect to the Mortgage Pool (exclusive of those
Trust Mortgage Loans and any REO Trust Mortgage Loans that are part of a Loan
Combination) and all related matters.
"Directly Operate" shall mean, with respect to any Administered REO
Property, the furnishing or rendering of services to the tenants thereof, the
management or operation of such Administered 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 Administered 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 Administered REO Property solely because the
Trustee (or the Special Servicer or any Sub-Servicer on behalf of the Trustee)
establishes rental terms, chooses tenants, enters into or renews leases, deals
with taxes and insurance, or makes decisions as to repairs or capital
expenditures with respect to such Administered REO Property.
"Discount Rate" shall mean, with respect to any prepaid Trust
Mortgage Loan or REO Trust 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 and the respective
Group FL REMIC III Regular Interests, a rate which, when compounded monthly, is
equivalent to the Yield Maintenance Treasury Rate, when compounded
semi-annually.
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"Dispute" shall have the meaning assigned thereto in Section
2.03(i).
"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 or any Group FL REMIC III Regular
Interest 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 or such Group FL REMIC III Regular Interest, as the
case may be, 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 or
such Group FL REMIC III Regular Interest, as the case may be, 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 and each Group FL REMIC III Regular Interest in an amount
equal to the lesser of (A) the amount of Accrued Certificate Interest with
respect to the subject Class of Regular Interest Certificates or the subject
Group FL REMIC III Regular
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Interest, as the case may be, 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 or the subject Group FL REMIC III Regular
Interest, as the case may be, 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 and
all the Group FL REMIC III Regular Interests 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
September 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 Trust 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 Trust Mortgage Loan" shall mean, subject to
Section 2.06(b), any Trust Mortgage Loan that provides the related Mortgagor
with the option to defease such Trust Mortgage Loan in its entirety prior to the
second anniversary of the Closing Date. The Early Defeasance Trust Mortgage
Loans, if any, are identified on Schedule VII hereto. If Schedule VII hereto
does not identify any Trust Mortgage Loan as an Early Defeasance Trust 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
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short-term unsecured debt obligations rated at least "A-1" by S&P, at least
"A-") by S&P, at least "Aa3" by Xxxxx'x and at least AA-" by Fitch (or, in the
case of any Rating Agency, such lower rating as will not result in an Adverse
Rating Event with respect to any Class of Certificates or, if applicable, any
class of Specially Designated Non-Trust Mortgage Loan Securities 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-" or the equivalent by any Rating
Agency) 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, at least "P-1" by Xxxxx'x and at least "F-1" by Fitch (or,
in the case of any Rating Agency, such lower rating as will not result in an
Adverse Rating Event with respect to any Class of Certificates or, if
applicable, any class of Specially Designated Non-Trust Mortgage Loan
Securities, 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-" or the
equivalent by any Rating Agency) 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 ss. 9.10(b);
or (iii) an account or accounts maintained with PNC Bank so long as PNC Bank
shall have a long-term unsecured debt rating of at least "A" from S&P, "A2" from
Xxxxx'x and "A" from Fitch) and a short-term rating of at least "A-1" from S&P,
"P-1" from Xxxxx'x and "F-1" from Fitch; or (iv) 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 or, if applicable, any class of Specially
Designated Non-Trust Mortgage Loan Securities that, in any event, is rated by
any 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 Serviced
Mortgage Loans identified on Schedule IV hereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
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"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).
"Excess Defeasance Deposit Proceeds" shall mean, with respect to an
Early Defeasance Trust Mortgage Loan for which the related Mortgagor has
exercised its option to defease such Trust 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 Trust
Mortgage Loan in accordance with the related loan documents, over an amount
equal to, with respect to such Trust 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 Trust Mortgage Loan or an Administered REO Property, net of (i)
interest on any related Advances, (ii) any related Servicing Advances, (iii) any
Liquidation Fee payable from such Net Liquidation Proceeds, and (iv) in the case
of a Trust Mortgage Loan that is part of, or an REO Property that relates to, a
Serviced Loan Combination, the portion of such Net Liquidation Proceeds payable
to the related Non-Trust Mortgage Loan Noteholder(s), over (b) the amount needed
to pay off the subject Trust Mortgage Loan or the related REO Trust 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 "[NAME OF TRUSTEE], as Trustee,
in trust for the registered holders of LB-UBS Commercial Mortgage Trust 2007-C6,
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
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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 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 Xxx" 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.
"Filing Agent" shall have the meaning assigned thereto in Section
2.01(c).
"Filing Letter Agreement" shall have the meaning assigned thereto in
Section 2.01(c).
"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
Administered 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 Trust Mortgage
Loan or Administered REO Property, as the case may be, that was the subject of a
Permitted Purchase; and provided, further, that the term "Final Recovery
Determination" shall include any comparable determination made with respect to
an Outside Serviced Trust Mortgage Loan or any related REO Property by a related
Outside Servicer pursuant to the related Outside Servicing Agreement.
"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 successor in interest.
If neither such rating agency nor any successor remains in existence, "Fitch"
shall be deemed to refer to such other nationally
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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.
"Floating Rate Account" shall mean the Class A-2FL Floating Rate
Account or the Class A-MFL Floating Rate Account, as applicable.
"Floating Rate Certificates" shall mean the Class A-2FL and Class
A-MFL Certificates, collectively.
"Floating Rate Class" shall mean a Class of Floating Rate
Certificates.
"Floating Rate Class Available Funds" shall mean the Class A-2FL
Available Funds or the Class A-MFL Available Funds, as applicable.
"Floating Rate Class Distribution Conversion" shall mean the Class
A-2FL Distribution Conversion or the Class A-MFL Distribution Conversion, as
applicable.
"Floating Rate Class Interest Distribution Amount" shall mean the
Class A-2FL Interest Distribution Amount or the Class A-MFL Interest
Distribution Amount, as applicable.
"Floating Rate Grantor Trust" shall mean each of Grantor Trust A-2FL
and Grantor Trust A-MFL.
"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.
"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
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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.
"General Special Servicer" shall have the meaning assigned thereto
in Section 7.01(e).
"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, each of the Floating Rate Grantor Trusts
and, subject to Section 2.05(b), Grantor Trust V.
"Grantor Trust A-2FL" shall mean the portion of the Trust Fund
consisting of (i) the Class A-2FL REMIC III Regular Interest and distributions
thereon, (ii) the Class A-2FL Swap Agreement and payments by the Class A-2FL
Swap Counterparty thereunder and (iii) the Class A-2FL Floating Rate Account,
intended to be treated as a "grantor trust" within the meaning of the Grantor
Trust Provisions. Grantor Trust A-2FL constitutes a separate common law trust
created hereunder.
"Grantor Trust A-MFL" shall mean the portion of the Trust Fund
consisting of (i) the Class A-MFL REMIC III Regular Interest and distributions
thereon, (ii) the Class A-MFL Swap Agreement and payments by the Class A-MFL
Swap Counterparty thereunder and (iii) the Class A-MFL Floating Rate Account,
intended to be treated as a "grantor trust" within the meaning of the Grantor
Trust Provisions. Grantor Trust A-MFL constitutes a separate common law trust
created hereunder.
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Grantor Trust Assets" shall mean, collectively, the assets of
Grantor Trust A-2FL, Grantor Trust A-MFL and, subject to Section 2.05(b),
Grantor Trust V.
"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).
"Grantor Trust Trustee": shall mean the entity acting as trustee for
each of the Floating Rate Grantor Trusts.
"Grantor Trust V" shall mean the portion of the Trust Fund
consisting of any collections of Additional Interest Received by the Trust with
respect to any ARD Trust Mortgage Loans and any successor REO Trust Mortgage
Loans with respect thereto, and intended to be treated as a "grantor trust"
within the meaning of the Grantor Trust Provisions (if created pursuant to
Section 2.05(b)).
"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 FL REMIC III Regular Interest" shall mean the Class A-2FL
REMIC III Regular Interest or the Class A-MFL REMIC III Regular Interest, as
applicable.
"Group 1 Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that is identified on the Trust Mortgage Loan Schedule as belonging to Loan
Group No. 1.
"Group 2 Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that is identified on the Trust 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, each
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Controlling
Class Representative, any Non-Trust Mortgage Loan Noteholder and any and all
Affiliates thereof, (ii) does not have any direct financial interest in or any
material indirect financial interest in any of the Depositor, any Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Controlling Class
Representative, any Non-Trust Mortgage Loan Noteholder, or any Affiliate
thereof, and (iii) is not connected with the Depositor, any Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Controlling Class
Representative, any Non-Trust Mortgage Loan Noteholder or any Affiliate thereof
as an officer, employee, promoter, underwriter, trustee, partner,
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director or Person performing similar functions; provided, however, that a
Person shall not fail to be Independent of the Depositor, a Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Controlling Class
Representative, a Non-Trust Mortgage Loan Noteholder or any Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of any class of
securities issued by the Depositor, such Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Controlling Class Representative, such
Non-Trust Mortgage Loan Noteholder or any Affiliate thereof, as the case may be;
provided that such ownership constitutes less than 1% of the total assets owned
by such Person.
"Independent Appraiser" shall mean an Independent professional real
estate appraiser who (i) is a member in good standing of the Appraisal
Institute, (ii) if the state in which the subject Mortgaged Property is located
certifies or licenses appraisers, is certified or licensed in such state, and
(iii) has a minimum of five 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 Trust Mortgage Loan or any corresponding REO Property, any
related Loan REMIC) within the meaning of Section 856(d)(3) of 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 (and, if a
Serviced Loan Combination is involved, to the related Serviced Non-Trust
Mortgage Loan Noteholder(s)), provided that (i) such REMIC Pool does not receive
or derive any income from such Person and (ii) the relationship between such
Person and such REMIC Pool is at arm's length, all within the meaning of
Treasury regulations section 1.856-4(b)(5); or (b) any other Person upon receipt
by the Trustee (and, if a Serviced Loan Combination is involved, by the related
Serviced Non-Trust Mortgage Loan Noteholder(s)) 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
Administered REO Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor, will not cause such Administered 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 Administered 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 Deposit" shall mean, with respect to each Initial Deposit
Mortgage Loan, if any, the supplemental payment from the related Mortgage Loan
Seller identified on Schedule V hereto, in the amount specified for such Initial
Deposit Mortgage Loan on Schedule V hereto.
"Initial Deposit Mortgage Loans" shall mean each of the Trust
Mortgage Loans, if any, identified on Schedule V hereto.
"Initial Pool Balance" shall mean the aggregate of the Cut-off Date
Balances of all the Trust Mortgage Loans.
"Initial Resolution Period" shall have the meaning assigned thereto
in Section 2.03(a).
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"Innkeepers Portfolio Co-Lender Agreement" shall meaning the
Co-Lender Agreement relating to the Innkeepers Portfolio Loan Combination.
"Innkeepers Portfolio Loan Combination" shall mean the Loan
Combination that is secured by the Mortgaged Property identified on the Trust
Mortgage Loan Schedule as Innkeepers Portfolio.
"Innkeepers Portfolio Non-Trust Mortgage Loan" shall mean the
Non-Trust Mortgage Loan included in the Innkeepers Portfolio Loan Combination.
"Innkeepers Portfolio Non-Trust Mortgage Loan Noteholder" shall mean
the holder of the Mortgage Note for the Innkeepers Portfolio Non-Trust Mortgage
Loan.
"Innkeepers Portfolio Trust Mortgage Loan" shall mean the Trust
Mortgage Loan included in the Innkeepers Portfolio Loan Combination.
"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, any Class of Floating Rate
Certificates, any Group FL REMIC III Regular Interest 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).
"Interest Accrual Period" shall mean, with respect to any
Distribution Date, the period commencing on the 11th calendar day of the month
immediately preceding the month in which such Distribution Date occurs and
ending on the 10th 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, or
any Affiliate of any such Person.
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"Interest Reserve 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(c) in trust for
Certificateholders, which shall be entitled "[NAME OF TRUSTEE], as Trustee, in
trust for the registered holders of LB-UBS Commercial Mortgage Trust 2007-C6,
Commercial Mortgage Pass-Through Certificates, Series 2007-C6".
"Interest Reserve Amount" shall mean, with respect to each Interest
Reserve Mortgage Loan and Interest Reserve REO Mortgage Loan, for any
Distribution Date that occurs during the calendar month of January (except in a
leap year) or during the calendar month of February, an amount equal to one (1)
day's interest accrued at the related Mortgage Rate (net of the related
Additional Interest Rate, in the case of an ARD Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto after the related
Anticipated Repayment Date, and net of the related Outside Servicing Fee Rate
(or, alternatively, if the related Outside Servicing Fee accrues on a 30/360
Basis, the Actual/360 Equivalent of the Related Outside Servicing Fee Rate), in
the case of an Outside Serviced Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto) on the related Stated Principal Balance as
of the Due Date in the month in which such Distribution Date occurs (but prior
to the application of any amounts due on such Due Date), to the extent that a
Monthly Payment or an Assumed Monthly Payment, as applicable, is Received by the
Trust in respect thereof for such Due Date as of the related Determination Date
or a P&I Advance is made under this Agreement in respect thereof for such Due
Date by such Distribution Date.
"Interest Reserve Mortgage Loan" shall mean any Trust Mortgage Loan
that accrues interest on an Actual/360 Basis.
"Interest Reserve REO Mortgage Loan" shall mean any REO Trust
Mortgage Loan as to which the predecessor Trust Mortgage Loan was an Interest
Reserve Mortgage Loan.
"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 a Custodial Account) or any
REO Account, the period that ends at the close of business (New York City time)
on each Trust Determination Date (or, if the subject Investment Account relates
solely to a Serviced Loan Combination, on each related Loan Combination
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 Pool Custodial
Account, the Interest Reserve 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 Trust 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); (c) with respect
to any investment of funds in any Loan Combination Custodial Account, the period
that ends at the close of business (New York City time) on the Business Day
prior to each related Loan Combination 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 (d) 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 Trust Master Servicer
Remittance Date and commences immediately following the
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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 any REO Account, Custodial Account or 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 or any Serviced Non-Trust Mortgage Loan
Noteholder 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.
"LaSalle" shall mean LaSalle Bank National Association or its
successor in interest.
"Late Collections" shall mean: (a) with respect to any Trust
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
Trust 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 Trust
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 Trust Mortgage Loan, or the
principal and/or interest portions of an Assumed Monthly Payment in respect of
such REO Trust 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 successor in
interest.
"LBHI/Depositor Mortgage Loan Purchase Agreement" shall mean that
certain Mortgage Loan Purchase Agreement dated as of August 24, 2007, between
LBHI and the Depositor.
"LBHI Trust Mortgage Loan" shall mean any Trust Mortgage Loan (or
applicable portion thereof) transferred by LBHI to the Depositor, pursuant to
the LBHI/Depositor Mortgage Loan Purchase Agreement.
"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), any Group FL REMIC III Regular Interest 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 successor
in interest.
"Xxxxxx Mortgage Loan Seller" shall mean: (a) LBHI in matters
relating to an LBHI Trust Mortgage Loan; and (b) LUBS in matters relating to a
LUBS Trust Mortgage Loan, if any.
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"Xxxxxx Trust Mortgage Loan" shall mean any LBHI Trust Mortgage Loan
or LUBS Trust Mortgage Loan, as applicable.
"LIBOR": The rate specified in Section 1.04(a) or the rate
calculated by the Trustee in accordance with Section 1.04(b), as applicable
under the circumstances.
"LIBOR Business Day" shall mean any day on which commercial banks
are open for general business (including dealings in foreign exchange and
foreign currency deposits) in London, England.
"LIBOR Determination Date" shall mean, for purposes of calculating
LIBOR in any particular calendar month subsequent to September 2007, the second
LIBOR Business Day prior to the Distribution Date in such calendar month;
provided that, to the extent that the calculation of LIBOR in accordance with
Section 1.04(b) requires a determination made as of New York City time, the
subject LIBOR Determination Date must also be one on which commercial banks are
open for general business (including dealings in foreign exchange and foreign
currency deposits) in London, England and New York, New York.
"Liquidation Event" shall mean: (a) with respect to any Trust
Mortgage Loan or Serviced Non-Trust 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) in the case
of a Trust Mortgage Loan, 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 Administered 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 Administered REO Property
pursuant to, Section 3.11(c).
"Liquidation Fee Rate" shall mean, with respect to any Specially
Serviced Mortgage Loan or Administered REO Property as to which a Liquidation
Fee is payable, as of any date of determination: (i) 1.00%, if, as of such date
of determination, the outstanding principal balance of such Specially Serviced
Mortgage Loan or the REO Mortgage Loan relating to such Administered REO
Property, as the case may be, is less than $25,000,000; and (ii) 0.75%, if, as
of such date of determination, the outstanding principal balance of such
Specially Serviced Mortgage Loan or the REO Mortgage Loan relating to such
Administered REO Property, as the case may be, is greater than or equal to
$25,000,000; provided that the Liquidation Fee Rate applicable to any Specially
Serviced Mortgage Loan or REO Mortgage Loan that is part of a Serviced Loan
Combination will be based on the outstanding principal balance of the entire
such Serviced Loan Combination.
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"Liquidation Proceeds" shall mean all cash amounts (other than
Insurance Proceeds, Condemnation Proceeds and REO Revenues) Received by the
Trust (or, in the case of a Serviced Loan Combination or any related
Administered REO Property, collected on behalf of the Trust and/or the related
Serviced Non-Trust Mortgage Loan Noteholder(s)) 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 Reserve Collateral or proceeds thereof to the Pool Custodial Account,
subject to and in accordance with the terms of Section 6.12, 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 Pool
Custodial Account.
"Loan Combination" shall have the meaning assigned thereto in the
Preliminary Statement.
"Loan Combination Change of Control Event" shall mean, with respect
to any Serviced Senior/Subordinate Loan Combination, any event that would result
in the "Note A Lender", the "Note A Lenders", the "Senior Lender" or the "Senior
Lenders", as applicable, under the related Co-Lender Agreement becoming the
applicable Loan Combination Directing Lender in accordance with the related
Co-Lender Agreement.
"Loan Combination Collection Period" shall mean, with respect to any
Loan Combination for any Distribution Date or related Loan Combination Master
Servicer Remittance Date, the period commencing on the day immediately following
the related Loan Combination Determination Date in the calendar month preceding
the month in which such Distribution Date or such Loan Combination Master
Servicer Remittance Date, as the case may be, occurs (or, in the case of each of
the initial Distribution Date and the initial related Loan Combination Master
Servicer Remittance Date, commencing immediately following the Cut-off Date) and
ending on and including the related Loan Combination Determination Date in the
calendar month in which such Distribution Date or such Loan Combination Master
Servicer Remittance Date, as the case may be, occurs.
"Loan Combination Controlling Party" shall mean, with respect to any
Loan Combination, the related Loan Combination Directing Lender (or, if
applicable, any representative(s) appointed thereby consistent with the related
Co-Lender Agreement, to exercise the rights and powers of the related Loan
Combination Directing Lender under the related Co-Lender Agreement or this
Agreement).
"Loan Combination Custodial Account" shall mean, with respect to
each Serviced Loan Combination, the segregated account or accounts (which may,
subject to the last paragraph of Section 3.04A(a), be a sub-account of the Pool
Custodial Account) created and maintained by the Master Servicer pursuant to
Section 3.04A on behalf of the holders of the Mortgage Loans included in such
Serviced Loan Combination, which shall be entitled substantially as follows:
"[NAME OF MASTER SERVICER], as Master Servicer, in trust for [NAMES OF RELATED
MORTGAGE NOTEHOLDERS], as their interests may appear".
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"Loan Combination Determination Date" shall mean: (a) with respect
to any Serviced Loan Combination, the "Determination Date" as defined in the
related Co-Lender Agreement; and (b) with respect to any Outside Serviced Loan
Combination, the monthly remittance date for the subject Outside Serviced Trust
Mortgage Loan (or any successor REO Trust Mortgage Loan with respect thereto)
under the related Co-Lender Agreement and Outside Servicing Agreement.
"Loan Combination Directing Lender" shall mean, with respect to any
Loan Combination and (if applicable) any particular matter, as of any date of
determination, the "Directing Lender" or an analogous term, as applicable, under
the related Co-Lender Agreement.
"Loan Combination Master Servicer Remittance Date" shall mean, with
respect to any Serviced Loan Combination, the "Remittance Date" as defined in
the related Co-Lender Agreement.
"Loan Combination REO Account" shall mean, with respect to each
Serviced Loan Combination, the segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
holders of the Mortgage Loans included in such Serviced Loan Combination, which
shall be entitled "[NAME OF SPECIAL SERVICER], as Special Servicer, in trust for
[NAMES OF RELATED MORTGAGE NOTEHOLDERS], as their interests may appear".
"Loan Combination Servicing Reports" shall mean, with respect to
each Serviced Loan Combination, (a) each of the files identified under clauses
(a)(ii) through (iv) of the definition of "CMSA Investor Reporting Package", (b)
each of the supplemental reports identified under clause (b) of the definition
of "CMSA Investor Reporting Package", and (c) each of the templates identified
under clause (c)(i) and clause (c)(ii) of the definition of "CMSA Investor
Reporting Package", each as may be modified to reflect the fact that only the
subject Serviced Loan Combination, the related Mortgaged Property or Properties
and/or any related REO Property or Properties, as the case may be, shall be the
subject of such report.
"Loan Combination Special Servicer" shall mean, with respect to any
Serviced Loan Combination, any special servicer hereunder responsible for
special servicing such Loan Combination or any related REO Property; provided
that, if such special servicer has special servicing responsibilities with
respect to other Serviced Mortgage Loans and/or Administered REO Properties,
then the term "Loan Combination Special Servicer" shall refer to such party only
to the extent of its rights, duties and obligations in respect of a Serviced
Loan Combination or any related REO Property.
"Loan Group" shall mean either of Loan Group No. 1 or Loan Group No.
2.
"Loan Group No. 1" shall mean, collectively, all of the Trust
Mortgage Loans that are Group 1 Trust Mortgage Loans and any successor REO Trust
Mortgage Loans with respect thereto.
"Loan Group No. 2" shall mean, collectively, all of the Trust
Mortgage Loans that are Group 2 Trust Mortgage Loans and any successor REO Trust
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 Serviced 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 (and as to which the
Master Servicer reasonably believes a payoff is actually anticipated by the
related Mortgagor), among other things, the
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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 Trust
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 Trust
Mortgage Loan (for so long as it is subject to this Agreement) and all payments
under and proceeds of such Trust 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 Trust 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 Pool Custodial Account, the Collection Account, the Interest
Reserve Account and, if established, the Pool REO Account with respect to such
Trust Mortgage Loan or any related REO Property; and (iv) insofar as they relate
to such Trust Mortgage Loan or any related REO Property, the rights of the
Depositor under the related UMLS/Depositor Mortgage Loan Purchase Agreement (but
only if such Trust Mortgage Loan is a Non-Xxxxxx Trust Mortgage Loan); 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: (a) with respect to any
Loan REMIC Regular Interest that, as of the Closing Date, corresponds to a Trust
Mortgage Loan that accrues interest on a 30/360 Basis, a rate per annum that is,
for any Interest Accrual Period, equal to (i) the Mortgage Rate in effect for
such corresponding Trust Mortgage Loan as of the Closing Date (without regard to
any modifications, extensions, waivers or amendments of such corresponding Trust
Mortgage Loan subsequent to the Closing Date), minus (ii) the sum of (A) the
Master Servicing Fee Rate for such corresponding Trust Mortgage Loan (or any
successor REO Trust Mortgage Loan with respect thereto), plus (B) the Trustee
Fee Rate, plus (C) if such corresponding Trust Mortgage Loan is an Outside
Serviced Trust Mortgage Loan, the related Outside Servicing Fee Rate; and (b)
with respect to any Loan REMIC Regular Interest that, as of the Closing Date,
corresponds to a Trust Mortgage Loan that accrues interest on an Actual/360
Basis, a rate per annum that is, for any Interest Accrual Period, equal to (i) a
fraction (expressed as a percentage), the numerator of which is the product of
12 times the Adjusted Actual/360 Accrued Interest Amount with respect to such
Loan REMIC Regular Interest for such Interest Accrual Period, and the
denominator of which is the Uncertificated Principal Balance of such Loan REMIC
Regular Interest immediately prior to the Distribution Date that corresponds to
such Interest Accrual Period, minus (ii) the sum of (A) the Master Servicing Fee
Rate for the corresponding Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan with respect thereto), plus (B) the Trustee Fee Rate.
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"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.
"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 "[NAME OF TRUSTEE], as Trustee, in trust for the registered holders
of LB-UBS Commercial Mortgage Trust 2007-C6, Commercial Mortgage Pass-Through
Certificates, Series 2007-C6, 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 any Grantor Trust or 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(o);
(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(n);
(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(m), 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
(excluding the Floating Rate Certificates) or any Group FL REMIC III
Regular Interest, 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
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reimbursed to the Holders of such Class of Certificates or to the Floating
Rate Account with respect to such Group FL REMIC III Regular Interest, as
the case may be, 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 or such Group FL REMIC III Regular Interest, as the case may
be, on all prior Distribution Dates, if any, pursuant to Section 4.05(a).
"LUBS" shall mean LUBS, Inc.
"LUBS/Depositor Mortgage Loan Purchase Agreement" shall mean any
Mortgage Loan Purchase Agreement between LUBS as mortgage loan seller, LBHI as
an additional party and the Depositor, pursuant to which LUBS transfers one or
more Trust Mortgage Loans to the Depositor, and which will only be executed and
delivered if there is a LUBS Trust Mortgage Loan.
"LUBS Trust Mortgage Loan" shall mean any Trust Mortgage Loan
transferred by LUBS to the Depositor, pursuant to any LUBS/Depositor Mortgage
Loan Purchase Agreement. There are no LUBS Trust Mortgage Loans.
"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 24, 2007, between the
initial Master Servicer, the Depositor and the Underwriters.
"Master Servicer Remittance Amount" shall mean, with respect to any
Trust Master Servicer Remittance Date, an amount equal to: (a) the aggregate
amount of (i) all payments and other collections on or with respect to the Trust
Mortgage Loans and any related REO Properties (including Loss of Value Payments
and, in the case of the initial Distribution Date, any Initial Deposits) that
(A) were Received by the Trust as of the close of business on the applicable
Determination Date in the same calendar month as such Trust Master Servicer
Remittance Date and (B) are on deposit or are required to be on deposit in the
Pool Custodial Account as of 12:00 noon (New York City time) on such Trust
Master Servicer Remittance Date, including any such payments and other
collections transferred or required to be transferred to the Pool Custodial
Account from the Pool REO Account (if established) and/or a Loan Combination
Custodial Account, and (ii) to the extent not already included among the amounts
described in clause (a)(i) above, any remittance received with respect to the
Och-Ziff Retail
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Portfolio Trust Mortgage Loan or any successor REO Trust Mortgage Loan on such
Trust Master Servicer Remittance 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
Trust Master Servicer Remittance Date but subsequent to the end of the related
Collection Period, following the end of the calendar month in which such Trust
Master Servicer Remittance Date occurs), (ii) any amount payable or reimbursable
to any Person from the Pool Custodial Account pursuant to clauses (ii) through
(xix) of Section 3.05(a), (iii) any Excess Liquidation Proceeds and (iv) any
amounts deposited in the Pool Custodial Account in error.
"Master Servicer Remittance Date" shall mean, individually and
collectively, as applicable in the context used, (i) the related Loan
Combination Master Servicer Remittance Date with respect to each Serviced Loan
Combination and all related matters, and (ii) the Trust Master Servicer
Remittance Date with respect to the Mortgage Pool (exclusive of the Serviced
Combination Trust Mortgage Loans and any REO Trust Mortgage Loans with respect
to the Serviced Combination Trust Mortgage Loans) and all related matters.
"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
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, (B) any Servicing
Representative of the Master Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Performing Serviced Mortgage Loan (ITEM 1.03(a)
ON FORM 8-K);
(iv) the entry of an order confirming a plan of reorganization,
arrangement or liquidation of a Material Debtor by a court or governmental
authority having supervision or jurisdiction over substantially all of the
assets or business of such Material Debtor, but only if the
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subject Material Debtor is (A) the Master Servicer, (B) any Servicing
Representative of the Master Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Performing Serviced Mortgage Loan (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. xx.xx. 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
payments to the Holders of any Class of Non-Registered Certificates, and
(C) is directly related to a Performing 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
Master Servicer is controlling the subject litigation or if the subject
Material Litigant is (A) the Master Servicer, (B) any Servicing
Representative of the Master Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Performing Serviced Mortgage Loan (ITEM 2 ON
FORM 10-D AND GENERAL INSTRUCTION J TO FORM 10-K);
(x) the receipt by or on behalf of the Master Servicer or any
Servicer retained or engaged by the Master Servicer of any updated
financial statements, balance sheets, rent rolls or other financial
information regarding a Significant Obligor with respect to a Performing
Serviced Mortgage Loan that is required to be provided under Item 1112(b)
of Regulation AB (ITEM 6 ON FORM 10-D AND GENERAL INSTRUCTION J TO FORM
10-K);
(xi) to the extent not otherwise disclosed in the Prospectus
Supplement or previously included in a report delivered by the 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, (C) any
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Outside Servicer that constitutes a Servicer contemplated by Item
1108(a)(3) of Regulation AB, (D) any Servicing Representative of the
Master Servicer that constitutes a Servicer contemplated by Item
1108(a)(3) of Regulation AB or (E) any Significant Obligor (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 an Unaffiliated 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 Serviced
Mortgage Loan (and any successor REO Mortgage Loan with respect thereto) and
each Outside Serviced Trust Mortgage Loan (and any successor REO Trust 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: (a) with respect to each
Serviced Trust Mortgage Loan and any successor REO Trust Mortgage Loan with
respect thereto, a rate per annum equal to the related Administrative Cost Rate
minus the Trustee Fee Rate; (b) with respect to each Serviced Non-Trust Mortgage
Loan and any successor REO Mortgage Loan with respect thereto, 0.01% (one (1)
basis point) per annum; and (c) with respect to each Outside Serviced Trust
Mortgage Loan and any successor REO Trust Mortgage Loan with respect thereto,
0.01% (one (1) basis point) per annum.
"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) LBHI;
(iii) each Unaffiliated Mortgage Loan Seller;
(iv) each of the parties to this Agreement;
(v) any Servicing Representative that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB;
(vi) any Significant Obligor;
(vii) any Enhancement/Support Provider; and
(viii) 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).
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"Material Litigant" shall mean any of the following:
(i) the Trust;
(ii) LBHI;
(iii) each Unaffiliated Mortgage Loan Seller;
(iv) each of the parties to this Agreement;
(v) any Servicing Representative that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB;
(vi) any originator of Trust Mortgage Loans contemplated by Item
1110(b) of Regulation AB; and
(vii) 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.
"XxXxxxxxxx Towers Mortgaged Property" shall mean the Mortgaged
Property identified on the Trust Mortgage Loan Schedule as XxXxxxxxxx Towers.
"XxXxxxxxxx Towers Trust Mortgage Loan" shall mean the Trust
Mortgage Loan that is secured by the XxXxxxxxxx Towers Mortgaged Property.
"XxXxxxxxxx Tower I Parcel" shall mean, with respect to the
XxXxxxxxxx Towers Mortgaged Property, a "Class A" 11-story office building with
an aggregate of 203,923 square feet of rentable space built in 1986 and located
in Santa Clara, California.
"XxXxxxxxxx Tower II Parcel" shall mean, with respect to the
XxXxxxxxxx Towers Mortgaged Property, a "Class A" 11-story office building with
an aggregate of 214,080 square feet of rentable space built in 1998 and located
in Santa Clara, California.
"Mediation Letter" shall have the meaning assigned thereto in
Section 2.03(i).
"Midland" shall mean Midland Loan Services, Inc. or its successor in
interest.
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"Modified Loan" shall mean any Serviced 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.
"Monthly Payment" shall mean, with respect to any Trust Mortgage
Loan or Serviced Non-Trust 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 (or, in the case of an Outside Serviced Trust
Mortgage Loan, by the applicable Outside Servicer pursuant to the related
Outside Servicing Agreement), 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; and
provided, further, that if the related loan documents for any Loan Combination
provide for a single monthly debt service payment for the entire such Loan
Combination, then the Monthly Payment for each Mortgage Loan comprising such
Loan Combination for any Due Date shall be that portion of the monthly debt
service payment for such Loan Combination and such Due Date that is, in
accordance with the related loan documents and/or the related Co-Lender
Agreement, in the absence of default, allocable to interest at the related
Mortgage Rate on and/or principal of the subject Mortgage Loan comprising such
Loan Combination.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or its
successor in interest. If neither such rating agency nor any successor remains
in existence, "Moody's" shall be deemed to refer to such other nationally
recognized statistical rating 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 Xxxxx'x Investors Service, Inc. herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated.
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"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:
(a) with respect to any Serviced Trust Mortgage Loan and, in the
case of each Serviced Loan Combination, also with respect to each Serviced
Non-Trust Mortgage Loan that is part of such Loan Combination, the
following documents collectively (which, in the case of each Serviced Loan
Combination, except for the Mortgage Notes referred to in clause (a)(i) of
this definition and any modifications thereof referred to in clause
(a)(xiii) of this definition, relate to the entire such Loan Combination):
(i) (A) the original executed Mortgage Note for such Trust
Mortgage Loan, endorsed (without recourse, representation or
warranty, express or implied) to the order of "LaSalle Bank
National Association, as trustee for the registered holders
of LB-UBS Commercial Mortgage Trust 2007-C6, Commercial
Mortgage Pass-Through Certificates, Series 2007-C6" or in
blank, and further showing a complete, unbroken chain of
endorsement from the originator (if such originator is other
than the related Mortgage Loan Seller) (or, alternatively,
if the original executed Mortgage Note has been lost, a lost
note affidavit and indemnity with a copy of such Mortgage
Note), and (B) in the case of each Serviced Loan
Combination, a copy of the executed Mortgage Note for each
Serviced Non-Trust Mortgage Loan in such Loan Combination;
(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 "LaSalle Bank
National Association, in its capacity as trustee for the
registered holders of LB-UBS Commercial Mortgage Trust
2007-C6, Commercial Mortgage Pass-Through Certificates,
Series 2007-C6" (or, in the case of a Serviced Loan
Combination, in favor of "LaSalle Bank National Association,
in its capacity as trustee for the registered holders of
LB-UBS Commercial Mortgage Trust 2007-C6, Commercial
Mortgage Pass-Through Certificates, Series 2007-C6, and in
its capacity as lead lender on behalf of the
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[IDENTIFY RELATED SERVICED NON-TRUST MORTGAGE LOAN
NOTEHOLDER(S)]") (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 Trust Mortgage Loan, in favor of
"LaSalle Bank National Association, as trustee for the
registered holders of LB-UBS Commercial Mortgage Trust
2007-C6, Commercial Mortgage Pass-Through Certificates,
Series 2007-C6" (or, in the case of a Serviced Loan
Combination, in favor of "LaSalle Bank National Association,
in its capacity as trustee for the registered holders of
LB-UBS Commercial Mortgage Trust 2007-C6, Commercial
Mortgage Pass-Through Certificates, Series 2007-C6, and in
its capacity as lead lender on behalf of the [IDENTIFY
RELATED SERVICED NON-TRUST MORTGAGE LOAN NOTEHOLDER(S)]");
(vi) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such
Trust 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
Trust Mortgage Loan, if any;
(viii) an original or a copy of the loan agreement for such Trust
Mortgage Loan, if any;
(ix) an original of the related guaranty of payment under such
Trust 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 Trust Mortgage Loan,
if any;
(xii) a copy of the original letter of credit in connection with
such Trust 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 Trust Mortgage Loan (and/or, if
applicable, the Mortgage Note for a related Serviced
Non-Trust 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;
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(xiv) only if such Trust Mortgage Loan is secured by a nursing
facility or hospitality property as identified on Schedule
VI hereto, filed copies (with evidence of filing) of any
prior effective UCC Financing Statements in favor of the
originator of such Trust Mortgage Loan or in favor of any
assignee prior to the Trustee (but only to the extent the
related 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 "LaSalle Bank National
Association, in its capacity as trustee for the registered
holders of LB-UBS Commercial Mortgage Trust 2007-C6,
Commercial Mortgage Pass-Through Certificates, Series
2007-C6" (or, in the case of a Serviced Loan Combination, in
favor of "LaSalle Bank National Association, in its capacity
as trustee for the registered holders of LB-UBS Commercial
Mortgage Trust 2007-C6, Commercial Mortgage Pass-Through
Certificates, Series 2007-C6, and in its capacity as lead
lender on behalf of the [IDENTIFY RELATED SERVICED NON-TRUST
MORTGAGE LOAN NOTEHOLDER(S)]");
(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 (a)(iv) or clause (a)(v) of this definition), in
favor of "LaSalle Bank National Association, in its capacity
as trustee for the registered holders of LB-UBS Commercial
Mortgage Trust 2007-C6, Commercial Mortgage Pass-Through
Certificates, Series 2007-C6" (or, in the case of a Serviced
Loan Combination, in favor of "LaSalle Bank National
Association, in its capacity as trustee for the registered
holders of LB-UBS Commercial Mortgage Trust 2007-C6,
Commercial Mortgage Pass-Through Certificates, Series
2007-C6, and in its capacity as lead lender on behalf of the
[IDENTIFY RELATED SERVICED NON-TRUST MORTGAGE LOAN
NOTEHOLDER(S)]");
(xvii) if such Trust Mortgage Loan is a Serviced Combination Trust
Mortgage Loan, a copy of the related Co-Lender Agreement;
(xviii) in the case of any Trust Mortgage Loan as to which there
exists a related mezzanine loan, the related intercreditor
agreement;
(xix) an original or a copy of any related Environmental Insurance
Policy; and
(xx) with respect to hospitality properties, a signed copy of the
franchise agreement (if any) and franchisor comfort letter
(if any); and
(b) with respect to each Outside Serviced Trust Mortgage Loan,
the following documents collectively:
(i) the original executed Mortgage Note for such Trust Mortgage
Loan, endorsed (without recourse, representation or
warranty, express or implied) to the order of
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"LaSalle Bank National Association, as trustee for the
registered holders of LB-UBS Commercial Mortgage Trust
2007-C6, Commercial Mortgage Pass-Through Certificates,
Series 2007-C6" or in blank, and further showing a complete,
unbroken chain of endorsement from the originator (if such
originator is other than the related 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) a copy of the executed related Co-Lender Agreement; and
(iii) a copy of the executed related Outside Servicing Agreement;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or a Custodian on its behalf for documents
described in clauses (a)(vii) through (a)(xx) 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 any Trust Mortgage Loan or Non-Trust
Mortgage Loan. As used herein, the term "Mortgage Loan" includes the related
Mortgage Note, Mortgage and other security documents contained in the related
Mortgage File or otherwise held on behalf of the Trust and/or any affected
Non-Trust Mortgage Loan Noteholder(s), as applicable, including, in the case of
an Outside Serviced Loan Combination, any such documents held by or on behalf of
a related Non-Trust Mortgage Loan Noteholder.
"Mortgage Loan Origination Documents" shall mean, with respect to
any Serviced Trust Mortgage Loan, any of the following documents (other than any
document that constitutes part of the Mortgage File for such Serviced Trust
Mortgage Loan), if applicable with respect to such Serviced Trust 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 Serviced Trust 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 VIII hereto, but, in each
case, only if the subject document (a) was in fact obtained in connection with
the origination of such Serviced Trust Mortgage Loan, (b) is reasonably
necessary for the ongoing administration and/or servicing of such Serviced Trust
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 Depositor (if such Serviced Trust Mortgage Loan is a Xxxxxx Trust
Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (if such
Serviced Trust Mortgage Loan is a Non-Xxxxxx Trust Mortgage Loan), as
applicable; provided that neither the Depositor nor any Unaffiliated Mortgage
Loan Seller shall be required to deliver any draft documents, privileged or
other communications or correspondence, credit underwriting or due diligence
analyses or
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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 LBHI/Depositor
Mortgage Loan Purchase Agreement, the LUBS/Depositor Mortgage Loan Purchase
Agreement (if any) or a UMLS/Depositor Mortgage Loan Purchase Agreement, as
applicable.
"Mortgage Loan Seller" shall mean a Xxxxxx Mortgage Loan Seller or
any Unaffiliated Mortgage Loan Seller, as applicable.
"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 Trust Mortgage Loans and any
REO Trust 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
Trust Mortgage Loans as of the end of the related Collection Period, which
report shall contain substantially the categories of information regarding the
Trust 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 the case of an Outside Serviced
Mortgage Loan, by the applicable Outside Servicer in accordance with the related
Outside Servicing Agreement) 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.
"Mortgage Trust" shall mean the primary common law trust created
hereunder, the assets of which consist of the assets included in the REMIC
Pools, Grantor Trust V and any Loss of Value Reserve Fund.
"Mortgaged Property" shall mean the real property subject to the
lien of a Mortgage.
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"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
recoveries of principal Received by the Trust on the Trust Mortgage Loans
(including Specially Serviced Trust 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 Trust Mortgage
Loan or REO Trust Mortgage Loan, the meaning assigned thereto in Section
3.26(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 Administered 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 (or, if applicable, on behalf of a Serviced
Non-Trust Mortgage Loan Noteholder) with respect
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to any Mortgage Loan or REO Mortgage Loan, net of any Workout Fee or Liquidation
Fee payable in connection with the receipt thereof.
"Net Trust Swap Payment" shall mean the Class A-2FL Net Fixed Rate
Swap Payment or the Class A-MFL Net Floating Rate I Swap Payment, as applicable.
"New Lease" shall mean any lease of an Administered REO Property
entered into at the direction of the Special Servicer, including any lease
renewed, modified or extended on behalf of the Trustee and, in the case of a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s).
"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.
"Non-Xxxxxx Trust Mortgage Loan" shall mean any Trust Mortgage Loan
(or portion thereof) that is not a Xxxxxx Trust Mortgage Loan. The Non-Xxxxxx
Trust Mortgage Loans consist of the UBS Trust Mortgage Loans.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I Advance
or Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance" shall mean:
(1) any P&I Advance previously made or proposed to be made in
respect of any Trust Mortgage Loan or REO Trust 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 Trust Mortgage Loan or REO Trust Mortgage Loan, as the
case may be; and
(2) any P&I Advance previously made or proposed to be made in
respect of any Serviced Trust Mortgage Loan or any successor
REO Trust 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 Serviced Trust Mortgage Loan or REO Trust 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 Serviced Mortgage Loan or Administered 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, if
such Mortgage Loan is part of a Serviced Loan
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Combination, on or in respect of such Loan Combination) or
such Administered REO Property, as the case may be; and
(2) any Servicing Advance previously made or proposed to be made
in respect of any Serviced Mortgage Loan or Administered 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 Serviced Mortgage Loan (or,
if such Mortgage Loan is part of a Serviced Loan Combination,
on or in respect of such Loan Combination) or such
Administered 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 A-2FL, Class A-MFL, 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-Trust Mortgage Loan" shall have the meaning assigned thereto in
the Preliminary Statement.
"Non-Trust Mortgage Loan Noteholder" shall mean the holder of the
Mortgage Note for a Non-Trust Mortgage Loan.
"Non-Trust Mortgage Loan Securities" shall mean any securities
evidencing an interest in, or secured by, a Non-Trust Mortgage Loan or any
successor REO Mortgage Loan with respect thereto.
"Non-Trust Mortgage Loan Securitization Agreement" shall mean any
agreement governing the securitization of a Non-Trust Mortgage Loan or any
successor REO Mortgage Loan with respect thereto.
"Non-Trust Mortgage Loan Securitization Trust" shall mean any
commercial mortgage securitization trust that is similar to the Trust and holds
a Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto.
"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.
"Och-Ziff Retail Portfolio Co-Lender Agreement" shall mean the
Co-Lender Agreement with respect to the Och-Ziff Retail Portfolio Loan
Combination.
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"Och-Ziff Retail Portfolio Loan Combination" shall mean the Loan
Combination that is secured by the Och-Ziff Retail Portfolio Mortgaged Property.
"Och-Ziff Retail Portfolio Mortgaged Property" shall mean,
collectively, the portfolio of real properties identified on the Trust Mortgage
Loan Schedule as Och-Ziff Retail Portfolio.
"Och-Ziff Retail Portfolio Non-Trust Mortgage Loan" shall mean the
Non-Trust Mortgage Loan included in the Och-Ziff Retail Portfolio Loan
Combination.
"Och-Ziff Retail Portfolio Servicing Agreement" shall mean the
pooling and servicing agreement dated as of August 1, 2007, among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as depositor, KeyCorp Real Estate Capital Markets,
Inc. and Xxxxx Fargo Bank, National Association, as master servicers, Centerline
Servicing Inc., as special servicer, U.S. Bank National Association, as trustee,
Xxxxx Fargo Bank, National Association, as certificate administrator, and
LaSalle Bank National Association, as custodian, or any successor servicing
agreement with respect to the Och-Ziff Retail Portfolio Loan Combination in
accordance with the Och-Ziff Retail Portfolio Co-Lender Agreement.
"Och-Ziff Retail Portfolio Trust Mortgage Loan" shall mean the Trust
Mortgage Loan included in the Och-Ziff Retail Portfolio Loan Combination.
"Och-Ziff Retail Portfolio Underlying Collection Period" shall mean,
with respect to any Distribution Date or Trust Master Servicer Remittance Date,
the period commencing immediately following the Och-Ziff Retail Portfolio
Underlying Determination Date in the calendar month preceding the month in which
such Distribution Date or Trust Master Servicer Remittance Date, as the case may
be, occurs (or, in the case of each of the initial Distribution Date and the
initial Trust Master Servicer Remittance Date, commencing immediately following
the Cut-off Date) and ending on and including the Och-Ziff Retail Portfolio
Underlying Determination Date in the calendar month in which such Distribution
Date or Trust Master Servicer Remittance Date, as the case may be, occurs.
"Och-Ziff Retail Portfolio Underlying Determination Date" shall mean
the "Determination Date" as defined in the Och-Ziff Retail Portfolio Servicing
Agreement.
"Offering Memorandum" shall mean the Offering Memorandum dated
August 24, 2007, relating to the Class A-2FL, Class A-MFL, the 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
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opinion of counsel relating to (a) the qualification of any REMIC Pool as a
REMIC, (b) compliance with the REMIC Provisions, (c) qualification of any
Grantor Trust 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 $2,978,936,714.
"Original Class Principal Balance" shall mean: (i) with respect to
any Class of Principal Balance Certificates (other than the Floating Rate
Certificates) or any Group FL REMIC III Regular Interest, the initial Class
Principal Balance thereof as of the Closing Date, in each case as specified in
the Preliminary Statement; and (ii) with respect to any Floating Rate Class, the
Original Class Principal Balance of the corresponding Group FL REMIC III Regular
Interest.
"Other Rating Agency" shall mean any nationally recognized
statistical rating organization (including, if applicable, a Rating Agency) that
has assigned a rating to any Specially Designated Non-Trust Mortgage Loan
Securities.
"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
"Outside Administered REO Property" shall mean any REO Property
relating to an Outside Serviced Trust Mortgage Loan.
"Outside Master Servicer" shall mean, with respect to any Outside
Serviced Trust Mortgage Loan or related REO Property, the related master
servicer under the related Outside Servicing Agreement.
"Outside Serviced Loan Combination" shall have the meaning assigned
thereto in the Preliminary Statement.
"Outside Serviced Mortgage Loan" shall mean any Outside Serviced
Trust Mortgage Loan or Outside Serviced Non-Trust Mortgage Loan, as applicable.
"Outside Serviced Non-Trust Mortgage Loan" shall mean any Non-Trust
Mortgage Loan that is part of an Outside Serviced Loan Combination.
"Outside Serviced Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Outside Servicer" shall mean, in the case of each Outside Serviced
Trust Mortgage Loan or related REO Property, the related Outside Master Servicer
or Outside Special Servicer, as applicable.
"Outside Servicer Default" shall mean an "event of default" on the
part of an Outside Servicer under an Outside Servicing Agreement.
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"Outside Servicing Agreement" shall mean a servicing agreement
(other than this Agreement, a Sub-Servicing Agreement or an agreement whereby
any Person acts as agent, sub-contractor or vendor on behalf of the Master
Servicer, the Special Servicer or the Trustee) that governs most material
servicing functions with respect to any Trust Mortgage Loan or related REO
Property. The Outside Servicing Agreements consist of the Potomac Xxxxx
Servicing Agreement and the Och-Ziff Retail Portfolio Servicing Agreement.
"Outside Servicing Fee" shall mean, with respect to any Outside
Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, the monthly fee, comparable to the Master Servicing Fee
hereunder and calculated at the related Outside Servicing Fee Rate, that is
payable to the related Outside Master Servicer (or, if applicable, to the
related Outside Master Servicer and a primary servicer in the aggregate).
"Outside Servicing Fee Rate" shall mean, with respect to any Outside
Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, the rate per annum at which the Outside Servicing Fee is being
calculated (which is 0.01% per annum for each Outside Serviced Trust Mortgage
Loan).
"Outside Special Servicer" shall mean, with respect to any Outside
Serviced Trust Mortgage Loan or related REO Property, the related special
servicer under the related Outside Servicing Agreement.
"Outside Trustee" shall mean, with respect to any Outside Serviced
Non-Trust Mortgage Loan that is included in a Non-Trust Mortgage Loan
Securitization Trust, the trustee under the applicable Non-Trust Mortgage Loan
Securitization Agreement.
"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 Trust Mortgage Loan or REO Trust
Mortgage Loan, any advance made by the Master Servicer, the Trustee or any
Fiscal Agent pursuant to Section 4.03.
"P&I Advance Date" shall mean the Business Day prior to each
Distribution Date.
"Pari Passu Loan Combination" shall mean any Loan Combination that
includes at least one Pari Passu Non-Trust Mortgage Loan (or any successor REO
Mortgage Loan with respect thereto).
"Pari Passu Mortgage Loan" shall mean a Pari Passu Trust Mortgage
Loan or a Pari Passu Non-Trust Mortgage Loan, as applicable.
"Pari Passu Non-Trust Mortgage Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"Pari Passu Trust Mortgage Loan" shall mean any Combination Trust
Mortgage Loan as to which there is a corresponding Pari Passu Non-Trust Mortgage
Loan.
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"Pass-Through Rate" shall mean:
(a) with respect to the Class A-1 Certificates, for any Interest
Accrual Period, 5.569% per annum;
(b) with respect to the Class A-2 Certificates, for any Interest
Accrual Period, 5.845% per annum;
(c) with respect to the Class A-2FL Certificates, (A) for any
Interest Accrual Period relating to a Distribution Date with respect to
which a Class A-2FL Distribution Conversion does not exist, the per annum
rate, expressed as a percentage, equal to the applicable value of LIBOR
specified in or calculated in accordance with Section 1.04, plus 0.57%,
and (B) for any Interest Accrual Period relating to a Distribution Date
with respect to which a Class A-2FL Distribution Conversion does exist,
the Pass-Through Rate for the Class A-2FL REMIC III Regular Interest for
that Distribution Date;
(d) with respect to the Class A-2FL REMIC III Regular Interest,
5.845% per annum;
(e) with respect to the Class A-3 Certificates, for any Interest
Accrual Period, 5.933% per annum;
(f) with respect to the Class A-AB Certificates, for any Interest
Accrual Period, 5.855% per annum;
(g) with respect to the Class A-4 Certificates, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) the REMIC II
Remittance Rate for the Corresponding REMIC II Regular Interest with
respect to such Class of Certificates for such Interest Accrual Period and
(ii) 5.858% per annum;
(h) with respect to the Class A-1A Certificates, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) the REMIC II
Remittance Rate for the Corresponding REMIC II Regular Interest with
respect to such Class of Certificates for such Interest Accrual Period and
(ii) 5.814% per annum;
(i) with respect to the Class A-M Certificates, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) the REMIC II
Remittance Rate for the Corresponding REMIC II Regular Interest with
respect to such Class of Certificates for such Interest Accrual Period and
(ii) 6.114% per annum;
(j) with respect to the Class A-MFL Certificates, (A) for any
Interest Accrual Period relating to a Distribution Date with respect to
which a Class A-MFL Distribution Conversion does not exist, the per annum
rate, expressed as a percentage, equal to the applicable value of LIBOR
specified in or calculated in accordance with Section 1.04, plus 0.71%,
and (B) for any Interest Accrual Period relating to a Distribution Date
with respect to which a Class A-MFL Distribution Conversion does exist,
the Pass-Through Rate for the Class A-MFL REMIC III Regular Interest for
that Distribution Date;
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(k) with respect to the Class A-MFL REMIC III Regular Interest,
for any Interest Accrual Period, an annual rate equal to the lesser of (i)
the REMIC II Remittance Rate for the Corresponding REMIC II Regular
Interest with respect to such Group FL REMIC III Regular Interest for such
Interest Accrual Period and (ii) 6.114% per annum;
(l) with respect to the Class A-J Certificates, for any Interest
Accrual Period, an annual rate equal to (i) the REMIC II Remittance Rate
for the Corresponding REMIC II Regular Interest with respect to such Class
of Certificates for such Interest Accrual Period, minus (ii) 0.026%;
(m) with respect to each Class of the 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 Corresponding REMIC II Regular Interest with
respect to the subject Class of Certificates for such Interest Accrual
Period;
(n) with respect to each Class of the Class L, Class M, Class N,
Class P, Class Q, Class S and Class T Certificates, for any Interest
Accrual Period, 5.114% per annum;
(o) 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; and
(p) 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.
"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 or any Floating Rate 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 Serviced Mortgage Loan" shall mean any Corrected
Mortgage Loan and any Serviced Mortgage Loan as to which a Servicing Transfer
Event has never occurred.
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"Performing Serviced Trust Mortgage Loan" shall mean any Trust
Mortgage Loan that is a Performing Serviced Mortgage Loan.
"Permitted Encumbrances" shall have the meaning assigned thereto in
paragraph (viii) of Schedule II.
"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 or any class of Specially Designated Non-Trust
Mortgage Loan Securities 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 or any class of Specially Designated Non-Trust
Mortgage Loan Securities 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;
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(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 or any class
of Specially Designated Non-Trust Mortgage Loan Securities
that is rated by such Rating Agency, as evidenced in writing
by such Rating Agency). In addition, such commercial paper
by its terms must have a predetermined fixed dollar amount
of principal due at maturity that cannot vary or change.
Interest may either be fixed or variable. If such interest
is variable, interest must be tied to a single interest rate
index plus a single fixed spread (if any), and move
proportionately with that index;
(v) units of money market funds 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 or any class of Specially Designated Non-Trust
Mortgage Loan Securities 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 or any class
of Specially Designated Non-Trust Mortgage Loan Securities
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 Xxxxxx Trust Mortgage Loan or any
related REO Property by the Depositor, pursuant to Section
2.03;
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(ii) the repurchase of a Non-Xxxxxx Trust Mortgage Loan or any
related REO Property by or on behalf of the related
Unaffiliated Mortgage Loan Seller, pursuant to the related
Mortgage Loan Purchase Agreement;
(iii) the purchase of a Specially Serviced Trust Mortgage Loan by
a Purchase Option Holder or its assignee, pursuant to
Section 3.18;
(iv) the purchase of a Trust 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;
(v) 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; or
(vi) in the case of a Combination Trust Mortgage Loan, the
purchase of such Mortgage Loan by a related Non-Trust
Mortgage Loan Noteholder or its designee pursuant to the
related Co-Lender Agreement or by another party pursuant to
a Non-Trust Mortgage Loan Securitization Agreement.
"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.
"Pool Custodial Account" shall mean the segregated account or
accounts created and maintained by the Master Servicer pursuant to Section
3.04(a) on behalf of the Trustee in trust for the Certificateholders, which
shall be titled substantially as follows: "[NAME OF MASTER SERVICER], as Master
Servicer, on behalf of [NAME OF TRUSTEE], as Trustee, in trust for the
registered holders of LB-UBS Commercial Mortgage Trust 2007-C6, Commercial
Mortgage Pass-Through Certificates, Series 2007-C6, Pool Custodial Account".
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"Pool 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: "[NAME OF SPECIAL SERVICER], as Special
Servicer, on behalf of [NAME OF TRUSTEE], as Trustee, in trust for the
registered holders of LB-UBS Commercial Mortgage Trust 2007-C6, Commercial
Mortgage Pass-Through Certificates, Series 2007-C6, Pool REO Account".
"Potomac Xxxxx Co-Lender Agreement" shall mean the Co-Lender
Agreement with respect to the Potomac Xxxxx Loan Combination.
"Potomac Xxxxx Loan Combination" shall mean the Loan Combination
that is secured by the Potomac Xxxxx Mortgaged Property.
"Potomac Xxxxx Mortgaged Property" shall mean the real property
identified on the Trust Mortgage Loan Schedule as Potomac Xxxxx.
"Potomac Xxxxx Non-Trust Mortgage Loan" shall mean the Non-Trust
Mortgage Loan included in the Potomac Xxxxx Loan Combination.
"Potomac Xxxxx Servicing Agreement" shall mean the pooling and
servicing agreement dated as of August 1, 2007, among Wachovia Commercial
Mortgage Securities, Inc., as depositor, Wachovia Bank, National Association, as
master servicer, LNR Partners, Inc., as special servicer, and Xxxxx Fargo Bank,
N.A., as trustee, or any successor servicing agreement with respect to the
Potomac Xxxxx Loan Combination in accordance with the Potomac Xxxxx Co-Lender
Agreement.
"Potomac Xxxxx Trust Mortgage Loan" shall mean the Trust Mortgage
Loan included in the Potomac Xxxxx Loan Combination.
"Potomac Xxxxx Underlying Collection Period" shall mean, with
respect to any Distribution Date or Trust Master Servicer Remittance Date, the
period commencing immediately following the Due Date for the Potomac Xxxxx Loan
Combination in the calendar month preceding the month in which such Distribution
Date or Trust Master Servicer Remittance Date, as the case may be, occurs (or,
in the case of each of the initial Distribution Date and the initial Trust
Master Servicer Remittance Date, commencing immediately following the Cut-off
Date) and ending on and including the Due Date for the Potomac Xxxxx Loan
Combination in the calendar month in which such Distribution Date or Trust
Master Servicer Remittance Date, as the case may be, occurs.
"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.
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"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 Trust Mortgage Loan (or any successor REO Trust Mortgage
Loan with respect thereto) is distributable and (B) any
Class of YM Principal Balance Certificates or Group FL REMIC
III Regular Interest 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
or Group FL REMIC III Regular Interest, as the case may be,
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 or Group FL
REMIC III Regular Interest, as the case may be, 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 Trust Mortgage Loan
(or REO Trust 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 or Group FL REMIC III Regular Interest, as the
case may be, 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 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 Trust Mortgage Loan (or any successor REO Trust Mortgage
Loan with respect thereto) is distributable and (B) any
Class of YM Principal Balance Certificates or Group FL REMIC
III Regular Interest 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
or Group FL REMIC III Regular Interest, as the case may be,
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 or Group FL
REMIC III Regular Interest, as the case may be, 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 Trust Mortgage Loan
(or REO Trust 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 or Group FL REMIC III Regular Interest, as the
case may be, 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.
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For purposes of the foregoing, to the extent that distributions of
principal on any Class of YM Principal Balance Certificates or Group FL REMIC
III Regular Interest 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 or
Group FL REMIC III Regular Interest 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 YM Principal
Balance Certificates or Group FL REMIC III Regular Interest, 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: (a) with respect to any
Serviced 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); and (b) with respect to any Outside Serviced Trust
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 Underlying Collection Period, any payment of interest (net of
related Master Servicing Fees and Outside 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).
"Prepayment Interest Shortfall" shall mean: (a) with respect to any
Serviced 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);
and (b) with respect to any Outside Serviced Trust 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
Underlying 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
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collected), that would have accrued at a rate per annum equal to the related
Mortgage 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 and
Outside 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 00000 Xxxxxx
Xxxxxx Xxxxxxxx 00, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 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, the Special Servicer
and each Serviced Non-Trust Mortgage Loan Noteholder in writing of its
selection.
"Principal Balance Certificate" shall mean any Regular Interest
Certificate (other than a Class X Certificate) and any Floating Rate
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 Trust
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 Trust 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;
(c) the aggregate of all Principal Prepayments Received by the
Trust on the Trust 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
Trust Mortgage Loans during the related
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Collection Period that were identified and applied by the Master Servicer
as recoveries of principal of such Trust 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 Trust 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 Trust Mortgage Loans and any
REO Trust Mortgage Loans for such Distribution Date;
provided that none of the amounts set forth in clauses (a) through (f) of this
definition shall represent amounts received, due or advanced on or in respect of
any Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto.
"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 August 16, 2007, as
supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement" shall mean the prospectus supplement dated
August 24, 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 Trust Mortgage Loan
(or REO Property or, in the case of any REO Property that relates to a Loan
Combination, the Trust's interest therein), a cash price equal to the aggregate
of: (a) the outstanding principal balance of such Trust Mortgage Loan
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(or, in the case of an REO Property, the related REO Trust Mortgage Loan) as of
the date of purchase, (b) all accrued and unpaid interest on such Trust Mortgage
Loan (or, in the case of an REO Property, the related REO Trust 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 or
Outside Servicing Fees), (c) all related unreimbursed Servicing Advances with
respect to such Trust 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 Trust 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 Depositor pursuant to Section 2.03 or by an Unaffiliated
Mortgage Loan Seller pursuant to the related 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 Trust 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/Depositor 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 Trust
Mortgage Loan (or such REO Property or an interest therein); provided that, in
the case of a Trust Mortgage Loan that is part of a Loan Combination, the
Purchase Price calculated above may be reduced (subject to the provisions of the
related Co-Lender Agreement) by any related unpaid Master Servicing Fees,
unreimbursed Advances and/or, to the extent included therein pursuant to clause
(d) above, unpaid interest on Advances which, following the subject purchase,
will continue to be payable or reimbursable under the related Co-Lender
Agreement and/or any successor servicing agreement to the Master Servicer and/or
the Special Servicer in respect of such Trust Mortgage Loan (which amounts shall
no longer be payable hereunder); and provided, further, that, in the case of an
REO Property that relates to a Serviced Loan Combination, for purposes of
Section 3.18, Section 6.11 and Section 6.12, the Purchase Price for such REO
Property shall instead equal the aggregate of the amounts described in clauses
(a), (b), (c) and (d) above with respect to all of the REO Mortgage Loans
comprising such Loan Combination.
"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
Section 2.03(a).
"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 July 2040.
"Rating Agency" shall mean each of S&P, Xxxxx'x and Fitch.
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"Realized Loss" shall mean:
(1) with respect to each Trust Mortgage Loan and Serviced
Non-Trust 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 Trust 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 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;
provided that, in the case of any Outside Serviced Trust Mortgage Loan or
any related REO Trust Mortgage Loan that was the subject of a Final
Recovery Determination or a Cash-Based Permitted Purchase under the
related Outside Servicing Agreement and/or the related Co-Lender
Agreement, references to "Collection Period" in this clause (1) shall mean
the related Underlying Collection Period;
(2) with respect to each Trust Mortgage Loan and Serviced
Non-Trust 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 (or,
in the case of an Outside Serviced Trust Mortgage Loan, by the applicable
Outside Servicer pursuant to the related Outside Servicing Agreement), 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 Trust Mortgage Loan and Serviced
Non-Trust 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 (or, in the
case of an Outside Serviced Trust Mortgage Loan, by the applicable Outside
Servicer pursuant to the related Outside Servicing Agreement), 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
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(4) with respect to any Trust Mortgage Loan or REO Trust 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: (a) in the case of an Outside
Serviced Trust Mortgage Loan or any related REO Property, received by the
Trustee (or the Master Servicer on behalf of the Trustee), as holder of the
Mortgage Note for such Outside Serviced Trust Mortgage Loan, on behalf of the
Trust; and (b) in the case of any other Trust 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).
"Registered Certificate" shall mean any Certificate that has been
the subject of registration under the Securities Act. As of the Closing Date,
the Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-1A, Class X,
Class A-M, 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. ss.ss.229.1100-229.1123, as such may be
amended from time to time, and subject to such clarification and interpretation
as have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan.
7, 2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
"Regulation S" 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.
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"Relevant Servicing Criteria" means, with respect to any of the
various parties listed on Exhibit T, the Servicing Criteria applicable to the
subject party, as set forth on Exhibit T attached hereto (as such Exhibit T 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 (exclusive of the Class A-2FL Certificates), the Class A-M
Certificates, the Class A-J Certificates and the Group FL REMIC III Regular
Interests; 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.
"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 (exclusive of the
Class A-2FL Certificates), the Class A-M Certificates, the Class A-J
Certificates and the Group FL REMIC III Regular Interests; 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.
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"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 Trust Mortgage Loans (exclusive of any Early
Defeasance Trust Mortgage Loans) as from time to time are subject to this
Agreement and all payments under and proceeds of such Trust Mortgage Loans
Received 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 Trust Mortgage Loans on or before the Cut-off Date or (B)
Additional Interest Received by the Trust in respect of the ARD Trust 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 Trust Mortgage Loan) as from time to time are subject to this
Agreement (or, in the case of any REO Property that relates to a Loan
Combination, the Trust's interest therein) and all income and proceeds
therefrom; (iv) such funds or assets (including any Initial Deposits) as from
time to time are deposited in the Pool Custodial Account, the Collection
Account, the Interest Reserve Account and, if established, the Pool 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
Trust Mortgage Loans, if any, after their respective Anticipated Repayment
Dates; (v) to the extent not included in a Loan REMIC, the rights of the
Depositor under the UMLS/Depositor Mortgage Loan Purchase Agreement(s); and (vi)
to the extent not included in a Loan REMIC, the rights of the holder of the
Mortgage Note for each Trust Mortgage Loan that is part of a Loan Combination
under the related Co-Lender Agreement and, in the case of each Outside Serviced
Trust Mortgage Loan, under the related Outside Servicing Agreement; provided
that REMIC I shall not include the Non-Trust Mortgage Loans or any successor REO
Mortgage Loans with respect thereto or any payments or other collections of
principal, interest, Prepayment Consideration or other amounts collected on such
Non-Trust Mortgage Loans or any successor REO Mortgage Loans with respect
thereto; and provided, further, that REMIC I shall not include the Loss of Value
Reserve Fund or any amounts on deposit therein or any Grantor Trust Assets.
"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; (b) with respect to any REMIC I Regular Interest that,
as of the Closing Date, corresponds to a Trust Mortgage Loan (other than any
Early Defeasance Trust Mortgage Loan) that accrues interest on a 30/360 Basis, a
rate per annum that is, for any Interest Accrual Period, equal to (i) the
Mortgage Rate in effect for such corresponding Trust Mortgage Loan as of the
Closing Date (without regard to any modifications, extensions, waivers or
amendments of such corresponding Trust Mortgage Loan subsequent to the Closing
Date), minus (ii) the sum of (A) the Master Servicing Fee Rate for such
corresponding Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto, plus (B) the Trustee Fee Rate, plus (C) if such corresponding
Trust Mortgage Loan is an Outside Serviced Trust Mortgage Loan, the related
Outside Servicing Fee Rate; and (c) with respect to any REMIC I Regular Interest
that, as of the Closing Date, corresponds to a Trust Mortgage Loan (other than
any Early Defeasance Trust Mortgage Loan) that accrues interest on an Actual/360
Basis, a rate per annum that is, for any Interest Accrual Period, equal to (i) a
fraction (expressed as a percentage), the numerator of which is the product of
12 times the Adjusted Actual/360 Accrued Interest
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Amount with respect to such REMIC I Regular Interest for such Interest Accrual
Period, and the denominator of which is the Uncertificated Principal Balance of
such REMIC I Regular Interest immediately prior to the Distribution Date that
corresponds to such Interest Accrual Period, minus (ii) the sum of (A) the
Master Servicing Fee Rate for the corresponding Trust Mortgage Loan (or any
successor REO Trust 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, Grantor Trust A-2FL, as
the holder of the Class A-2FL REMIC III Regular Interest, and Grantor Trust
A-MFL, as the holder of the Class A-MFL REMIC III Regular Interest, 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 X-0, Xxxxx
X-0, Class A-AB, Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class 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 Pool REO Account or a Loan Combination
REO Account, as applicable.
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"REO Acquisition" shall mean the acquisition of any REO Property
pursuant to Section 3.09 (or, in the case of any REO Property relating to an
Outside Serviced Trust Mortgage Loan, pursuant to the related Outside Servicing
Agreement).
"REO Disposition" shall mean the sale or other disposition of any
Administered REO Property pursuant to Section 3.18 (or, in the case of any REO
Property relating to an Outside Serviced Trust Mortgage Loan, pursuant to the
related Outside Servicing Agreement).
"REO Extension" shall have the meaning assigned thereto in Section
3.16(a).
"REO Mortgage Loan" shall mean the mortgage loan (or, if a Serviced
Loan Combination is involved, one of the two or more mortgage loans comprising
such Loan Combination) 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 (or, in the case of any REO Property that relates to a
Serviced Loan Combination, one of the two or more Mortgage Loans or, in the case
of any REO Property that relates to an Outside Serviced Loan Combination, the
Trust 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 or, if
applicable in the case of any REO Property that relates to a Loan Combination,
on behalf of the Trust and the related Non-Trust Mortgage Loan Noteholder(s)).
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 (or, if applicable, received on
behalf of the related Serviced Non-Trust Mortgage Loan Noteholder) 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
Administered 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 (net, in the
case of any successor REO Mortgage Loan in respect of an Outside Serviced Trust
Mortgage Loan, of any related Outside Servicing Fees payable therefrom) 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 (or, in the case of an REO Mortgage
Loan in respect of an Outside Serviced Trust Mortgage Loan, any Prepayment
Consideration) 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
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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, in the case of an REO Mortgage Loan in respect
of an Outside Serviced Trust Mortgage Loan, if an allocation in accordance with
this sentence would conflict with remittance reports from the applicable Outside
Servicer, the Master Servicer shall, in the absence of actual knowledge of an
error, rely on the allocation in such remittance reports; and provided, further,
that, if one or more Advances previously made in respect of an REO Trust
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 Trust 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 Trust Mortgage Loan, to the extent of any outstanding P&I
Advances and unpaid Master Servicing Fees in respect of such REO Trust Mortgage
Loan, (ii) as a recovery of the item(s) for which 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 if the Mortgage Loans comprising any Serviced Loan Combination
become REO Mortgage Loans, amounts (other than Loss of Value Payments and
Reserve Collateral deemed to constitute Liquidation Proceeds with respect to the
REO Trust Mortgage Loan in such Serviced Loan Combination and other than
Liquidation Proceeds resulting from the purchase of the Trust's interest in any
related REO Property pursuant to or as contemplated by Section 2.03) received
with respect to such REO Mortgage Loans shall be applied to amounts due and
owing in respect of such REO Mortgage Loans as provided in the related Co-Lender
Agreement; and provided, further, that Reserve Collateral (or any proceeds
thereof) and 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 Pool Custodial Account, and deemed to constitute Liquidation
Proceeds in respect of a particular REO Trust Mortgage Loan, in accordance with
Section 6.12(g) and Section 3.05(e), respectively. 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 (or, in
the case of a Mortgaged Property related to a Serviced Loan Combination, for the
benefit of the Certificateholders and the related Non-Trust Mortgage Loan
Noteholder(s), as their interests may appear), through foreclosure, acceptance
of a deed-in-lieu of foreclosure or otherwise in accordance with applicable law
in connection with the default or imminent default of a Mortgage Loan (or a Loan
Combination); provided that the Mortgaged Property securing an Outside Serviced
Loan Combination (if acquired under the related Outside Servicing Agreement)
shall constitute an REO Property if such Mortgaged Property is so acquired for
the benefit of the related Non-Trust Mortgage Loan Noteholder(s) and the Trust,
as their interests may appear, through foreclosure, acceptance of a deed-in-lieu
of foreclosure or otherwise in accordance with
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applicable law in connection with a default or imminent default of the subject
Outside Serviced Loan Combination.
"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 Trust Mortgage Loan" shall mean the successor REO Mortgage Loan
with respect to any Trust 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 ss. 225.62 and conducted in accordance with the standards of the
Appraisal Institute or, in the case of a Required Appraisal Loan having a Stated
Principal Balance of, or in the case of a Mortgaged Property that has an
allocated loan amount of, less than $2,000,000, if no satisfactory (as
determined by the Special Servicer pursuant to Section 3.09(a)) appraisal
meeting the foregoing criteria was obtained or conducted within the prior 12
months, a "desktop" value estimate performed by the Special Servicer.
"Required Appraisal Loan" shall mean any Serviced Mortgage Loan:
(i) that becomes a Modified Loan;
(ii) that is 60 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;
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(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;
provided that all of the Mortgage Loans comprising a Serviced Loan Combination
shall, upon the occurrence of any of the events described in clauses (i) through
(vii) of this definition in respect of any such Mortgage Loan, be deemed to be a
single "Required Appraisal Loan". 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) in respect of a Serviced Trust
Mortgage Loan or Serviced Loan Combination. In no event shall any Outside
Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto or any Outside Serviced Loan Combination constitute a Required
Appraisal Loan hereunder.
"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.
"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, "A3" from Xxxxx'x (or, if not then rated by
Xxxxx'x, 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) 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,
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such lower rating as will not result in an Adverse Rating Event with
respect to any Class of Certificates or any class of Specially Designated
Non-Trust Mortgage Loan Securities 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, "A2" from Xxxxx'x (or, if not then rated by Xxxxx'x, 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) 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 or any
class of Specially Designated Non-Trust Mortgage Loan Securities 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 Collateral" shall mean, with respect to any Serviced
Senior/Subordinate Loan Combination, any securities, letters of credit, cash or
other collateral permitted to be delivered by a Serviced Subordinate Non-Trust
Mortgage Loan Noteholder to offset, reduce or otherwise mitigate an Appraisal
Reduction Amount in accordance with the related Co-Lender Agreement.
"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 Section 2.03(a).
"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 group 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
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name of the Depository or its nominee, in definitive, fully registered form
without interest coupons, and each of which certificates has a Rule 144A CUSIP
number.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. or its successor in interest. If neither such
rating agency nor any successor remains in existence, "S&P" shall be deemed to
refer to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, 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 Trust Mortgage
Loan or Serviced Non-Trust 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 (or, in the case of an Outside Serviced Trust Mortgage Loan, by the
applicable Outside Servicer pursuant to the related Outside Servicing
Agreement), 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/Depositor Notification" shall mean, with respect to any
Trust 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/Depositor Notification) and, as applicable, to the related
Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage
Loan) or the Depositor (in the case of a Xxxxxx Trust Mortgage Loan), 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 Trust Mortgage Loan;
(ii) the direction to cure the Material Document Defect or
Material Breach with respect to the subject Trust Mortgage Loan in all
material respects, or repurchase the subject
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Trust Mortgage Loan, within the time period and subject to the conditions
provided for in Section 2.03(a) (in the case of a Xxxxxx Trust Mortgage
Loan) or Section 5(a) of the related Mortgage Loan Purchase Agreement (in
the case of a Non-Xxxxxx Trust Mortgage Loan), as applicable;
(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 Trust Mortgage Loan;
(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 Trust Mortgage Loan;
(v) only (A) under the circumstances contemplated by the third
paragraph of Section 2.03(a) (in the case of a Xxxxxx Trust Mortgage Loan)
or the last paragraph of Section 5(a) of the related Mortgage Loan
Purchase Agreement (in the case of a Non-Xxxxxx Trust Mortgage Loan), as
applicable, 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 Trust 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/Depositor 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 Trust Mortgage Loan and the direction to promptly
repurchase such Trust Mortgage Loan.
In addition to the foregoing parties, a copy of each such Seller/Depositor
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 Depositor or counsel to the
related Unaffiliated Mortgage Loan Seller, as applicable (to the extent known to
the Trustee).
"Seller/Depositor Resolution Period" shall mean the 90-day period
following the related Mortgage Loan Seller's receipt of a Seller/Depositor
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 Depositor (in the case of a
Xxxxxx Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (in
the case of a Non-Xxxxxx Trust Mortgage Loan), as the case may be, 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 Depositor (in
the case of a Xxxxxx Trust Mortgage Loan) or the related Unaffiliated Mortgage
Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan), as the case may
be, 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/Depositor Resolution Period
shall mean the 180-day period following the related
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Mortgage Loan Seller's receipt of a Seller/Depositor 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 related Mortgage Loan Seller's receipt of a Seller/Depositor 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
Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the related
Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage
Loan), as the case may be, to have received a recorded document, then the
Seller/Depositor Resolution Period shall continue for an additional period of
time so long as the Depositor or the related Unaffiliated Mortgage Loan Seller,
as applicable, 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 A-2, Class
A-2FL, Class A-3, Class A-AB, Class A-4, Class A-1A or Class X Certificate.
"Senior Class A Certificates" shall mean the Class A-1, Class A-2,
Class A-2FL, Class A-3, Class A-AB, Class A-4 and Class A-1A Certificates.
"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-M, Class
A-MFL, 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).
"Senior Non-Trust Mortgage Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"Senior/Subordinate Co-Lender Agreement" shall mean the Co-Lender
Agreement with respect to a Serviced Senior/Subordinate Loan Combination.
"Serviced A/B Loan Combination" shall mean a Serviced Loan
Combination that consists of only a Trust Mortgage Loan (or any successor REO
Mortgage Loan with respect thereto) and one (1) or more Subordinate Non-Trust
Mortgage Loans (or any successor REO Mortgage Loan(s) with respect thereto.
"Serviced Combination Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Serviced Loan Combination" shall have the meaning assigned thereto
in the Preliminary Statement.
"Serviced Loan Combination Change of Control Event" shall mean the
Loan Combination Change of Control Event for any Serviced Senior/Subordinate
Loan Combination.
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"Serviced Loan Combination Controlling Party" shall mean the Loan
Combination Controlling Party for any Serviced Loan Combination.
"Serviced Loan Combination Directing Lender" shall mean the Loan
Combination Directing Lender for any Serviced Loan Combination.
"Serviced Mortgage Loan" shall mean each Mortgage Loan (including a
Specially Serviced Mortgage Loan), other than any Outside Serviced Mortgage
Loan.
"Serviced Non-Trust Mortgage Loan" shall mean each Non-Trust
Mortgage Loan that is part of a Serviced Loan Combination.
"Serviced Non-Trust Mortgage Loan Noteholder" shall mean the holder
of the Mortgage Note for a Serviced Non-Trust Mortgage Loan.
"Serviced Note A Trust Mortgage Loan" shall mean the Combination
Trust Mortgage Loan that is included in a Serviced A/B Loan Combination.
"Serviced Note B Non-Trust Mortgage Loan" shall mean a Non-Trust
Mortgage Loan that is included in a Serviced A/B Loan Combination.
"Serviced Pari Passu Loan Combination" shall mean a Pari Passu Loan
Combination that is also a Serviced Loan Combination.
"Serviced Pari Passu Non-Trust Mortgage Loan" shall mean a Pari
Passu Non-Trust Mortgage Loan that is also a Serviced Non-Trust Mortgage Loan.
"Serviced Pari Passu Non-Trust Mortgage Loan Noteholder" shall mean
the holder of the Mortgage Note for a Serviced Pari Passu Non-Trust Mortgage
Loan.
"Serviced Senior/Subordinate Loan Combination" shall mean each of
the Serviced A/B Loan Combinations and any other Serviced Loan Combination that
includes a Subordinate Non-Trust Mortgage Loan.
"Serviced Senior Trust Mortgage Loan" shall mean a Combination Trust
Mortgage Loan that is a part of a Serviced Senior/Subordinate Loan Combination.
"Serviced Subordinate Non-Trust Mortgage Loan" shall mean a
Subordinate Non-Trust Mortgage Loan that is also a Serviced Non-Trust Mortgage
Loan.
"Serviced Subordinate Non-Trust Mortgage Loan Noteholder" shall mean
the holder of the Mortgage Note for a Serviced Subordinate Non-Trust Mortgage
Loan.
"Serviced Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that is a Serviced Mortgage Loan. Notwithstanding anything herein to the
contrary, no Outside Serviced Trust Mortgage Loan shall in any event constitute
a Serviced Trust Mortgage Loan hereunder.
"Servicer" shall mean any servicer (within the meaning of Item
1101(j) of Regulation AB) with respect to the Subject Securitization
Transaction.
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"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 Serviced 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 Serviced 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 Serviced 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
Administered 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 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, any Outside Servicing Agreement,
any Co-Lender 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.
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"Servicing Fees" shall mean: (a) with respect to each Serviced
Mortgage Loan (and any successor REO Mortgage Loan with respect thereto), the
Master Servicing Fee and the Special Servicing Fee; and (b) with respect to each
Outside Serviced Trust Mortgage Loan (or any successor REO Trust Mortgage Loan
with respect thereto), the Master 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 Serviced 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, property management agreements and, in the case of
a Serviced Non-Trust Mortgage Loan, a copy of the related Mortgage Note.
"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 Serviced 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 Serviced Mortgage Loans
and any Administered 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 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
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and acting in accordance with applicable law, the terms of this Agreement and
the terms of the respective Serviced 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 Serviced Mortgage Loans or, in the case of any such Serviced
Mortgage Loan that is (1) a Specially Serviced Mortgage Loan or (2) a Serviced
Mortgage Loan as to which the related Mortgaged Property has become an REO
Property, the maximization of recovery on the subject Serviced Mortgage Loan to
the Certificateholders (as a collective whole) (or, if a Serviced Loan
Combination is involved, the maximization of recovery on such Loan Combination
to the Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s) (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
(or, if a Serviced Loan Combination is involved, to the Certificateholders and
the related Serviced Non-Trust Mortgage Loan Noteholder(s) (as a collective
whole)) to be performed at the related Mortgage Rate (or, in the case of a
Serviced Loan Combination, at the weighted average of the respective Mortgage
Rates for the Mortgage Loans that comprise such Loan Combination); and (iii)
without regard to (A) any relationship, including as lender on any other debt
(including mezzanine debt or a Non-Trust Mortgage Loan), that the Master
Servicer or the Special Servicer, as the case may be, or any Affiliate thereof,
may have with any of the related Mortgagors, or any Affiliate thereof, or any
other party to this Agreement, (B) the ownership of any Certificate or any
direct or indirect interest in a Non-Trust Mortgage Loan by the Master Servicer
or the Special Servicer, as the case may be, or any Affiliate thereof, (C) the
obligation of the Master Servicer or the Special Servicer, as the case may be,
to make Advances, (D) the right of the Master Servicer or the Special Servicer,
as the case may be, or any Affiliate 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 Serviced
Mortgage Loan, the occurrence of any of the events described in clauses (a)
through (g) of the definition of "Specially Serviced Mortgage Loan".
"Significant Obligor" shall mean: (a) any obligor (as defined in
Item 1101(i) of Regulation AB) or group of affiliated obligors on any Trust
Mortgage Loan or group of Trust Mortgage Loans that represent, as of the Closing
Date, 10% or more of the Mortgage Pool (by Cut-off Date Balance); or (b) any
single Mortgaged Property or group of Mortgaged Properties securing any Trust
Mortgage Loan or group of cross-collateralized and/or cross-defaulted Trust
Mortgage Loans that represent, as of the Closing Date, 10% or more of the
Mortgage Pool (by Cut-off Date Balance). The only Significant Obligors are the
Mortgaged Properties identified on the Trust Mortgage Loan Schedule by the
following names, together with the related Trust Mortgage Loans: (i) Innkeepers
Portfolio, (ii) PECO Portfolio, (iii) One Sansome Street, (iv) 000 Xxxx Xxxxxx,
(x) Xxxxxxxxxx Xxxx, (xx) Xxx Xxxx Xxxx Xxxxx, (xxx) Xxxxxxxxx Xxxxx and (viii)
Xxxxxxx Place Shopping Center.
"Single Certificate" shall mean, for purposes of Section 4.02, a
hypothetical Regular Interest Certificate or Floating Rate 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:
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(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
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 Release Mortgaged Property" shall mean any of the Mortgaged
Properties identified on the Trust Mortgage Loan Schedule as Cedar Springs
Crossings, Xxxxxxxxx Plaza, Xxxxxxx Hills Shopping Center, Lake Olympia Square,
South Elm Plaza, Thunderbird Square and Tops Plaza - Xxxxxxxx Xxxxxxx.
"Special Release Trust Mortgage Loan" shall mean any Trust Mortgage
Loan that is secured by a Special Release Mortgaged Property.
"Special Servicer" shall mean, subject to Section 6.09(d) and
Section 7.01(e) (insofar as such sections contemplate multiple parties acting as
Special Servicer), Midland, 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 24, 2007, between the
initial Special Servicer, the Depositor and the Underwriters.
"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
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to such agreement or has entered into such agreement on behalf of the
Trust (ITEM 1.02 ON FORM 8-K);
(iii) the appointment of a receiver, fiscal agent or similar
officer for any Material Debtor in a proceeding under the U.S. Bankruptcy
Code or in any other proceeding under state or federal law in which a
court or governmental authority has assumed jurisdiction over
substantially all of the assets or business of any Material Debtor,
including where such jurisdiction has been assumed by leaving the existing
directors and officers in possession but subject to the supervision and
orders of a court or governmental authority, but only if the subject
Material Debtor is (A) the Special Servicer, (B) any Servicing
Representative of the Special Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Specially Serviced Mortgage Loan (ITEM 1.03(a)
ON FORM 8-K);
(iv) the entry of an order confirming a plan of reorganization,
arrangement or liquidation of a Material Debtor by a court or governmental
authority having supervision or jurisdiction over substantially all of the
assets or business of such Material Debtor, but only if the subject
Material Debtor is (A) the Special Servicer, (B) any Servicing
Representative of the Special Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Specially Serviced Mortgage Loan (ITEM 1.03(b)
ON FORM 8-K);
(v) any resignation, removal, replacement or substitution of (A)
the Special Servicer or (B) any Servicing Representative of the Special
Servicer that constitutes a Servicer contemplated by Item 1108(a)(2) of
Regulation AB (ITEM 6.02 ON FORM 8-K);
(vi) any appointment of (A) a new Special Servicer or (B) any new
Servicing Representative of the Special Servicer that constitutes a
Servicer contemplated by Item 1108(a)(2) of Regulation AB (ITEM 6.02 ON
FORM 8-K);
(vii) any nonpublic disclosure, by the Special Servicer or any
Servicing Representative of the Special Servicer, with respect to the
Subject Securitization Transaction (other than disclosure required or
expressly permitted by this Agreement) that is required to be disclosed by
Regulation FD (17 C.F.R. xx.xx. 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
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the subject litigation or if the subject Material Litigant is (A) the
Special Servicer, (B) any Servicing Representative of the Special Servicer
that constitutes a Servicer contemplated by Item 1108(a)(3) of Regulation
AB or (C) any Significant Obligor with respect to a Specially Serviced
Mortgage Loan (ITEM 2 ON FORM 10-D AND GENERAL INSTRUCTION J TO FORM
10-K);
(x) the receipt by the Special Servicer or by any Servicing
Representative of the Special Servicer of any updated financial
statements, balance sheets, rent rolls or other financial information
regarding any Significant Obligor with respect to a Specially Serviced
Mortgage Loan that is required to be provided under Item 1112(b) of
Regulation AB (ITEM 6 ON FORM 10-D AND GENERAL INSTRUCTION J TO FORM
10-K);
(xi) to the extent not otherwise disclosed in the Prospectus
Supplement or previously included in a report delivered by the Special
Servicer to the Trustee and the Depositor in accordance with Section
8.15(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) an
Unaffiliated Mortgage Loan Seller, (C) the Trustee, (D) the Master
Servicer, (E) any Outside Servicer or Outside Trustee that constitutes a
Servicer contemplated by Item 1108(a)(3) of Regulation AB, (F) any
Servicing Representative of the Special Servicer that constitutes a
Servicer contemplated by Item 1108(a)(3) of Regulation AB or (G) any
Significant Obligor (GENERAL INSTRUCTION J TO FORM 10-K);
(xii) to the extent not otherwise disclosed in the Prospectus
Supplement, any business relationship, agreement, arrangement, transaction
or understanding contemplated by Item 1119(b) of Regulation AB between an
Unaffiliated Mortgage Loan Seller or the Trust, on the one hand, and the
Special Servicer or any Servicing Representative of the Special Servicer,
on the other hand (GENERAL INSTRUCTION J TO FORM 10-K); and
(xiii) to the extent not otherwise disclosed in the Prospectus
Supplement, any specific relationship involving or relating to the Subject
Securitization Transaction or the Mortgage Loans contemplated by Item
1119(c) of Regulation AB between an Unaffiliated 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
Administered 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
Administered REO Property, as of any date of determination: (i) 0.25% per annum,
if, as of such date of determination, the outstanding principal balance of such
Specially Serviced Mortgage Loan or REO Mortgage Loan, as the case may be, is
less than $25,000,000; and (ii) 0.15% per annum, if, as of such date of
determination, the outstanding principal balance of such Specially Serviced
Mortgage Loan or REO Mortgage Loan, as the case may be, is greater than or equal
to $25,000,000; provided that the Special Servicing Fee for any Specially
Serviced Mortgage Loan or REO Mortgage Loan that is part of a Serviced Loan
Combination will be based upon the outstanding principal balance of the entire
such Serviced Loan Combination.
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"Specially Designated Mortgage Loan Documents" shall mean, with
respect to any Trust Mortgage Loan, the following documents collectively:
(i) the original executed Mortgage Note for such Trust 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 Trust 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 Trust Mortgage Loan; and
(v) with respect to Trust 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; and provided, further, that the only Specially Designated Mortgage
Loan Document with respect to each of the Outside Serviced Trust Mortgage Loans
shall be the document described in clause (i) of this definition.
"Specially Designated Non-Trust Mortgage Loan Securities" shall mean
any Non-Trust Mortgage Loan Securities backed, either solely or together with
one or more other mortgage assets, by a Specially Designated Securitized
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect thereto.
"Specially Designated Securitized Non-Trust Mortgage Loan" shall
mean any Serviced Non-Trust Mortgage Loan that: (a) either is a Pari Passu
Non-Trust Mortgage Loan or has an unpaid principal balance as of the Closing
Date of $20,000,000 or more; and (b) is included in a rated commercial mortgage
securitization.
"Specially Designated Servicing Action" means:
(a) with respect to each Serviced Loan Combination or any
related REO Property, any of the particular actions specified in the first
paragraph of Section 3.02(a) of the related Co-Lender Agreement, as to
which the related Serviced Loan Combination Controlling Party has consent
rights; and
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(b) with respect to each Serviced Mortgage Loan that is not part
of, and each Administered REO Property that does not relate to, a Serviced
Loan Combination, any of the following actions--
(i) any foreclosure upon or comparable conversion (which may
include acquisitions of an Administered REO Property) of the
ownership of properties securing such of the 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,
(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
Serviced Mortgage Loan,
(iv) any proposed sale of an Administered 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 Administered 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 Administered 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
Serviced 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
Serviced 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
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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 Serviced 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 Serviced 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 Serviced 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 that provides coverage
for acts of terrorism, despite the fact that such insurance
may be required under the terms of the related Mortgage
Loan, and
(xiii) any acceptance of an assumption agreement releasing a
borrower from liability under any Serviced Mortgage Loan;
provided that, as used in clauses (b)(vii) through (b)(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 Serviced 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 (including, in the case of a
Serviced Combination Trust Mortgage Loan, by a related Serviced Non-Trust
Mortgage Loan Noteholder exercising any cure rights under the related
Co-Lender Agreement) (i) except in the case of a Balloon Mortgage Loan
delinquent in respect of its Balloon Payment, for 60 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
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(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 Serviced
Mortgage Loan or otherwise materially adversely affects the interests of
Certificateholders (or, in the case of a Serviced Non-Trust Mortgage Loan,
the interests of the related Serviced Non-Trust Mortgage Loan Noteholder)
(it being acknowledged and agreed that any default requiring a Servicing
Advance shall be deemed to materially and adversely affect the interests
of Certificateholders or, in the case of a Serviced Non-Trust Mortgage
Loan, the interests of the related Serviced Non-Trust Mortgage Loan
Noteholder), and (ii) continues unremedied by the related Mortgagor, any
related guarantor or otherwise (including, in the case of a Serviced
Combination Trust Mortgage Loan, by a related Serviced Non-Trust Mortgage
Loan Noteholder exercising any cure rights under the related Co-Lender
Agreement) 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 Serviced
Mortgage Loan) or (B) otherwise, the greater of (1) the applicable grace
period under the terms of such Serviced 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 Serviced 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 (including, in the case of a Serviced Combination
Trust Mortgage Loan, by a related Serviced Non-Trust Mortgage Loan
Noteholder exercising any cure rights under the related Co-Lender
Agreement) 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 Property as security for such Serviced
Mortgage Loan or otherwise materially adversely affect the interests of
Certificateholders (or, in the case of a Serviced Non-Trust Mortgage Loan,
the related Serviced Non-Trust Mortgage Loan Noteholder) 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
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(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 Serviced Mortgage Loan will cease to be a Specially
Serviced Mortgage Loan when a Liquidation Event has occurred with respect to
such Serviced 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 Serviced 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;
(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 Serviced Mortgage Loan's becoming a Specially Serviced Mortgage Loan.
Except as provided below in this sentence, if any Mortgage Loan that
is part of a Serviced Loan Combination becomes a Specially Serviced Mortgage
Loan, then the other Mortgage Loan or each of the other Mortgage Loans, as the
case may be, in such Loan Combination shall also become a Specially Serviced
Mortgage Loan; provided that if, subject to the terms, conditions and
limitations of the related Co-Lender Agreement, a Serviced Non-Trust Mortgage
Loan Noteholder prevents the occurrence of a Servicing Transfer Event with
respect to the related Serviced Combination Trust Mortgage Loan through the
exercise of any cure rights granted under the related Co-Lender Agreement with
respect to such Serviced Combination Trust Mortgage Loan, then the existence of
such Servicing Transfer Event with respect to the related Serviced Non-Trust
Mortgage Loan (because any such cure rights do not include the cure of defaults
under the related Serviced Non-Trust Mortgage
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Loan) will not, in and of itself, result in any Mortgage Loan that is part of
the subject Serviced Loan Combination becoming a Specially Serviced Mortgage
Loan (provided that a separate Servicing Transfer Event may occur with respect
to the subject Serviced Loan Combination causing the Mortgage Loans comprising
such Loan Combination to become Specially Serviced Mortgage Loans).
None of the Outside Serviced Mortgage Loans shall constitute a
Specially Serviced Mortgage Loan hereunder.
"Specially Serviced Trust Mortgage Loan" shall mean any Trust
Mortgage Loan that is 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 (or, in the case of an Outside Serviced Trust Mortgage
Loan, by the applicable Outside Servicer pursuant to the related Outside
Servicing Agreement) 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: (a) with respect to any Trust Mortgage Loan and any successor REO
Trust Mortgage Loan with respect thereto, the Cut-off Date Balance of such Trust
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 Trust Mortgage Loan (or any such
successor REO Trust 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 Trust Mortgage Loan (or any such
successor REO Trust Mortgage Loan with respect thereto) during the applicable
related Collection Period (or, in the case of a forgiveness of principal, a
Permitted Purchase under the related Outside Servicing Agreement and/or the
related Co-Lender Agreement for less than the related Purchase Price or a Final
Recovery Determination with respect to an Outside Serviced Trust Mortgage Loan
or any successor REO Trust Mortgage Loan with respect thereto, during the
related Underlying 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 Trust Mortgage Loan or any
successor REO Trust 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
Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto under this clause (ii)); and (b) with respect to any Serviced Non-Trust
Mortgage Loan and any successor REO Mortgage Loan with respect thereto, the
Cut-off Date Balance of such Non-Trust Mortgage Loan, as permanently reduced on
each related Master Servicer Remittance Date (to not less than zero) by (i) any
principal amounts in respect of such Non-Trust Mortgage Loan (or any such
successor REO Mortgage Loan with respect thereto) distributed to the related
Non-Trust Mortgage Loan Noteholder on such Master Servicer
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Remittance Date, and (ii) the principal portion of any Realized Loss incurred in
respect of such Non-Trust Mortgage Loan (or any such successor REO Mortgage Loan
with respect thereto) in connection with a Liquidation Event or the forgiveness
of principal during the related Collection Period. 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 (or, in the case of a
Serviced Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto, the first related Master Servicer Remittance Date) following the end of
the applicable Collection Period in which such Liquidation Event occurred;
provided that, in the case of an Outside Serviced Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto, if the subject
Liquidation Event is a Final Recovery Determination made by the applicable
Outside Servicer with respect to, or a Permitted Purchase under the related
Outside Servicing Agreement and/or the related Co-Lender Agreement of, such
Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be, then
references to "Collection Period" in this sentence shall be deemed to mean the
related Underlying Collection Period.
"Subject Securitization Transaction" shall mean the commercial
mortgage securitization transaction contemplated by this Agreement.
"Subordinate Certificate" shall mean any Class A-M, Class A-MFL,
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.
"Subordinate Non-Trust Mortgage Loan Noteholder" shall mean the
holder of the Mortgage Note for a Subordinate Non-Trust Mortgage Loan.
"Subordinate Non-Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"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
Serviced 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).
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"Swap Agreement": The Class A-2FL Swap Agreement or the Class A-MFL
Swap Agreement, as applicable.
"Swap Collateral Account": The Class A-2FL Swap Collateral Account
or the Class A-MFL Swap Collateral Account, as applicable.
"Swap Credit Support Annex": The Class A-2FL Swap Credit Support
Annex or the Class A-MFL Swap Credit Support Annex, as applicable.
"Swap Counterparty": The Class A-2FL Swap Counterparty or the Class
A-MFL Swap Counterparty, as applicable.
"Swap Custodian": The Class A-2FL Swap Custodian or the Class A-MFL
Swap Custodian, as applicable.
"Swap Payment Date": The Class A-2FL Swap Payment Date or the Class
A-MFL Swap Payment Date, as applicable.
"Swap Default": Any failure on the part of a Swap Counterparty (that
continues beyond any applicable grace period under the related Swap Agreement)
to (i) make a required payment under the related Swap Agreement as and when due
thereunder, or (ii) post collateral or obtain a replacement swap counterparty or
a guarantor of such Swap Counterparty's obligations, as and when required under
the related Swap Agreement.
"Swap Termination Fees": Any fees, costs or expenses payable by a
Swap Counterparty to the applicable Floating Rate Grantor Trust in connection
with a termination of the related Swap Agreement as specified in the related
Swap Agreement.
"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 each Grantor Trust, due to its classification as a grantor trust under
the Grantor Trust Provisions, together with any and all other information,
reports or returns that may be required to be furnished to the
Certificateholders or filed with the IRS under any applicable provisions of
federal tax law or any other governmental taxing authority under applicable
state and local tax law.
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"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 (exclusive of the Floating
Rate Certificates) and all Group FL REMIC III Regular Interests, after taking
into account the distributions made with respect to the Certificates and/or
Group FL REMIC III Regular Interests on the subject Distribution Date, but prior
to any adjustments to the Class Principal Balances of the respective Classes of
Principal Balance Certificates and/or Group FL REMIC III Regular Interests
pursuant to Section 4.04 or Section 4.05; and (2) the amount, if any, by which
(a) the aggregate Loss Reimbursement Amount in respect of all the Classes of
Principal Balance Certificates (exclusive of the Floating Rate Certificates) and
all Group FL REMIC III Regular Interests 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
(exclusive of the Floating Rate Certificates) and all Group FL REMIC III Regular
Interests 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, collectively, the Mortgage Trust and the
Floating Rate Grantor Trusts, which are the common law trusts created hereunder.
"Trust Collection Period" shall mean, with respect to any
Distribution Date or Trust Master Servicer Remittance Date, the period
commencing on the day immediately following the Trust Determination Date in the
calendar month preceding the month in which such Distribution Date or Trust
Master Servicer Remittance Date, as the case may be, occurs (or, in the case of
each of the initial Distribution Date and the initial Trust Master Servicer
Remittance Date, commencing immediately following the Cut-off Date) and ending
on and including the Trust Determination Date in the calendar month in which
such Distribution Date or Trust Master Servicer Remittance Date, as the case may
be, occurs.
"Trust 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 September 2007.
"Trust Fund" shall mean, collectively, all of the assets of the
REMIC Pools, the Grantor Trusts and the Loss of Value Reserve Fund.
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"Trust Master Servicer Remittance Date" shall mean the date each
month, commencing in September 2007, on which, among other things, the Master
Servicer is required to (i) make P&I Advances and (ii) transfer the Master
Servicer Remittance Amount and any Excess Liquidation Proceeds to the Trustee,
which date shall be the Business Day immediately preceding the Distribution Date
in such month.
"Trust Mortgage Loan" shall mean each of the mortgage loans listed
on the Trust Mortgage Loan Schedule and from time to time held in the Trust
Fund. As used herein, the term "Trust 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 Trust 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 "Trust Mortgage Loans"
for all purposes hereof, except that such mortgage loans will collectively
constitute the "Trust Mortgage Loan" that relates to the applicable REMIC I
Regular Interest and/or any applicable Loan REMIC Regular Interest.
"Trust Mortgage Loan Schedule" shall mean the list of Trust 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 Trust 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 Trust Mortgage Loan, the remaining
amortization term;
(viii) the Interest Accrual Basis;
(ix) the (A) Administrative Cost Rate and (B) if such Trust
Mortgage Loan is an Outside Serviced Mortgage Loan, the related Outside
Servicing Fee Rate;
(x) whether such Trust Mortgage Loan is secured by a Ground
Lease;
(xi) the related Mortgage Loan Seller;
(xii) whether such Trust Mortgage Loan is a Defeasance Mortgage
Loan;
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(xiii) whether such Trust Mortgage Loan is an ARD Mortgage Loan
and, if so, the Anticipated Repayment Date and Additional Interest Rate;
(xiv) whether such Trust 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.
"Trust Shortfall Reimbursement Payment" shall mean the Class A-2FL
Fixed Rate Payer Shortfall Reimbursement Payment or the Class A-MFL Floating
Rate I Payer Shortfall Reimbursement Payment, as applicable.
"Trustee" shall mean LaSalle, in its capacity as trustee hereunder,
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 0.00053% per annum.
"Trustee Indemnification Agreement" shall mean the Trustee
Indemnification Agreement dated as of August 24, 2007, between the initial
Trustee, the Depositor and the Underwriters.
"Trustee Liability" shall have the meaning assigned thereto in
Section 8.05(b).
"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
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Appointee is a party to such agreement or has entered into such agreement
on behalf of the Trust (ITEM 1.02 ON FORM 8-K);
(iii) the appointment of a receiver, fiscal agent or similar
officer for any Material Debtor in a proceeding under the U.S. Bankruptcy
Code or in any other proceeding under state or federal law in which a
court or governmental authority has assumed jurisdiction over
substantially all of the assets or business of any Material Debtor,
including where such jurisdiction has been assumed by leaving the existing
directors and officers in possession but subject to the supervision and
orders of a court or governmental authority, but only if the subject
Material Debtor is (A) the Trustee, (B) any Servicing Representative of
the Trustee that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, (C) any Trustee Appointee, (D) any Enhancement/Support
Provider that is not an Affiliate of the Depositor or (E) the Trust (ITEM
1.03(a) ON FORM 8-K);
(iv) the entry of an order confirming a plan of reorganization,
arrangement or liquidation of a Material Debtor by a court or governmental
authority having supervision or jurisdiction over substantially all of the
assets or business of such Material Debtor, but only if the subject
Material Debtor is (A) the Trustee, (B) any Servicing Representative of
the Trustee that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, (C) any Trustee Appointee, (D) any Enhancement/Support
Provider that is not an Affiliate of the Depositor or (E) the Trust (ITEM
1.03(b) ON FORM 8-K);
(v) any event that has occurred hereunder that would materially
alter the payment priority or distribution of cash flows regarding the
Certificates (ITEM 2.04 ON FORM 8-K);
(vi) any material modification to the rights of the Holders of
any Class of Certificates, including by reason of a modification to this
Agreement, a Mortgage Loan Purchase Agreement or any other constituent
instrument (ITEM 3.03(a) ON FORM 8-K);
(vii) any material limitation or qualification of the rights
evidenced by any Class of Certificates by reason of the modification of
any other Class of Certificates (ITEM 3.03(b) ON FORM 8-K);
(viii) any amendment to this Agreement pursuant to Section 11.01
(ITEM 5.03 ON FORM 8-K);
(ix) any resignation, removal, replacement or substitution of (A)
the Trustee, the Master Servicer or the Special Servicer, (B) any Outside
Servicer that constitutes a Servicer contemplated by Item 1108(a)(2) of
Regulation AB or (C) 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, (B) any Outside Servicer that constitutes a Servicer
contemplated by Item 1108(a)(2) of Regulation AB or (C) 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);
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(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. xx.xx. 243.100 through 243.103)
(ITEM 7.01 ON FORM 8-K);
(xvi) any other information of importance to Certificateholders
that is not otherwise required to be included in the Distribution Date
Statement or any other report to be delivered or otherwise made available
to Certificateholders hereunder and that is directly related to the
obligations of the Trustee hereunder (ITEM 8.01 ON FORM 8-K);
(xvii) the commencement or termination of, or any material
developments regarding, any legal proceedings pending against any Material
Litigant, or of which any property of a Material Litigant is the subject,
or any threat by a governmental authority to bring any such legal
proceedings, that are material to Certificateholders, but only if the
Trustee is controlling the subject litigation or if the subject Material
Litigant is (A) the Trustee, (B) any Servicing Representative of the
Trustee that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, (C) any Trustee Appointee, (D) any Enhancement/Support
Provider that is not an Affiliate of the Depositor or (E) the Trust (ITEM
2 ON FORM 10-D AND GENERAL INSTRUCTION J TO FORM 10-K);
(xviii) any material default in the payment of principal and
interest on, or any other material default with respect to, any Class of
Certificates (ITEM 4 ON FORM 10-D);
(xix) the submission of any matter to a vote by Certificateholders
(ITEM 5 ON FORM 10-D);
(xx) the receipt by the Trustee or by any Servicing
Representative or other agent of the Trustee of any updated information
regarding an Enhancement/Support Provider with respect to any Class of
Certificates that is required pursuant to Item 1114(b)(2) or Item 1115(b)
of
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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) an
Unaffiliated Mortgage Loan Seller, (C) the Master Servicer, (D) the
Special Servicer, (E) any Outside Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB, (F) any Servicing
Representative of the Trustee that constitutes a Servicer contemplated by
Item 1108(a)(3) of Regulation AB, (G) any Trustee Appointee or (H) any
Significant Obligor (GENERAL INSTRUCTION J TO FORM 10-K);
(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 an
Unaffiliated 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 an Unaffiliated 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).
"UBS/Depositor Mortgage Loan Purchase Agreement" shall mean that
certain Mortgage Loan Purchase Agreement dated as of August 24, 2007, between
the UBS Mortgage Loan Seller and the Depositor.
"UBS Mortgage Loan Seller" shall mean UBS Real Estate Securities
Inc. or its successor in interest.
"UBS Trust Mortgage Loan" shall mean any Trust Mortgage Loan
transferred by the UBS Mortgage Loan Seller to the Depositor, pursuant to the
UBS/Depositor Mortgage Loan Purchase Agreement.
"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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"UMLS/Depositor Mortgage Loan Purchase Agreement" shall mean a
Mortgage Loan Purchase Agreement between the Depositor and an Unaffiliated
Mortgage Loan Seller.
"Unaffiliated Mortgage Loan Seller" shall mean any Person (other
than LBHI, LUBS or any other Affiliate of the Depositor) that sells one or more
Trust Mortgage Loans or portions thereof directly to the Depositor for inclusion
in the Subject Securitization Transaction. The only Unaffiliated Mortgage Loan
Seller is the UBS Mortgage Loan Seller.
"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 Trust 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.
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"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 Trust 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(m), and shall be further 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(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(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(o), 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).
"Underlying Collection Period" shall mean, with respect to any
Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto, the applicable "Collection Period" under the related
Outside Servicing Agreement or any other applicable period under the related
Outside Servicing Agreement that is comparable to a Collection Period hereunder.
The Underlying Collection Periods consist of the Potomac Xxxxx Underlying
Collection Period and the Och-Ziff Retail Portfolio Underlying Collection
Period.
"Underwriters" shall mean Xxxxxx Brothers, UBS Securities LLC, Banc
of America Securities LLC 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.
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"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 Residual Interest Certificates or the Class V Certificates.
"Wachovia" shall mean Wachovia Bank, National Association or its
successor 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 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, as of any date of
determination: (i) 1.00%, if, as of such date of determination, the outstanding
principal balance of such Corrected Mortgage Loan is less than $25,000,000; and
(ii) 0.75%, if, as of such date of determination, the outstanding principal
balance of such Corrected Mortgage Loan is greater than or equal to $25,000,000;
provided that the Workout Fee Rate applicable to any Corrected Mortgage Loan
that is part of a Serviced Loan Combination will be based on the outstanding
principal balance of the entire such Serviced Loan Combination.
"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 Serviced 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
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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 Serviced 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 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 Trust Mortgage Loan
or any successor REO Trust Mortgage Loan with respect thereto, the Anticipated
Repayment Date) of the relevant prepaid Trust Mortgage Loan or REO Trust
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 A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M,
Class A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J and Class K Certificates.
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;
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(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto",
"hereby" and other words of similar import refer to this Agreement as a
whole and not to any particular provision; and
(vi) the terms "include" or "including" shall mean without
limitation by reason of enumeration.
SECTION 1.03. Certain Adjustments to the Principal
Distributions on the Certificates.
(a) If any party hereto is reimbursed out of general collections
on the Mortgage Pool on deposit in the Pool Custodial Account for any
unreimbursed 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), then (for purposes of calculating distributions on the Certificates)
each such reimbursement and payment of interest shall be deemed to have been
made:
first, out of any amounts then on deposit in the Pool Custodial
Account that represent payments or other collections of principal Received by
the Trust with respect to the Trust Mortgage Loans and/or REO Trust Mortgage
Loans in the Loan Group that includes the Trust Mortgage Loan or REO Trust
Mortgage Loan in respect of which such Nonrecoverable Advance was made, 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 Pool Custodial
Account that represent payments or other collections of principal Received by
the Trust with respect to the Trust Mortgage Loans or REO Trust Mortgage Loans
in the Loan Group that does not include the Trust Mortgage Loan or REO Trust
Mortgage Loan in respect of which such Nonrecoverable Advance was made, 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 Pool Custodial
Account that represent any other payments and/or collections Received by the
Trust with respect to the Trust Mortgage Loans or REO Trust Mortgage Loans in
the Loan Group that includes the Trust Mortgage Loan or REO Trust Mortgage Loan
in respect of which such Nonrecoverable Advance was made, 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 Pool Custodial
Account that represent any other payments and/or collections Received by the
Trust with respect to the Trust Mortgage Loans or REO Trust Mortgage Loans in
the Loan Group that does not include the Trust Mortgage Loan or REO Trust
Mortgage Loan in respect of which such Nonrecoverable Advance was made, 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
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fifth, out of any other amounts then on deposit in the Pool
Custodial Account that may be available to reimburse the subject Nonrecoverable
Advance and/or to pay interest thereon.
(b) If and to the extent that any payment or other collection of
principal of any Trust Mortgage Loan or REO Trust Mortgage Loan is deemed to be
applied in accordance with Section 1.03(a) to reimburse a Nonrecoverable Advance
or to pay interest thereon, 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 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 Trust Mortgage Loan or REO
Trust 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 Trust Mortgage Loan or REO Trust
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 Trust Mortgage Loan or REO Trust 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
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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 Trust Mortgage Loan or REO Trust 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 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.
SECTION 1.04. Calculation of LIBOR.
(a) With respect to the Floating Rate Classes, the initial value
of LIBOR shall be 5.5075% per annum. Such initial value of LIBOR shall be
utilized in calculating (i) the Class A-2FL Floating Rate Swap Payment to be
made under the Class A-2FL Swap Agreement in September 2007, (ii) the Class
A-MFL Floating Rate II Swap Payment to be made under the Class A-MFL Swap
Agreement in September 2007 and (iii) the respective Pass-Through Rates with
respect to the Floating Rate Classes for the Distribution Date in September
2007.
(b) The value of LIBOR applicable to the calculation of the Class
A-2FL Floating Rate Swap Payment and the Class A-MFL Floating Rate II Swap
Payment to be made on the applicable Swap Payment Date in any particular
calendar month subsequent to September 2007, as well as the calculation of the
Pass-Through Rate with respect to each Floating Rate Class for the Distribution
Date in such calendar month (provided that no related Floating Rate Distribution
Conversion is then in effect), shall be determined by the Trustee (and promptly
reported to the related Swap Counterparty) on the related LIBOR Determination
Date in the preceding calendar month in accordance with the following
methodology: LIBOR shall equal the rate for deposits in U.S. Dollars, for a
period equal to one month, which appears on the Reuters Screen LIBOR01 Page as
of 11:00 a.m., London time, on the applicable LIBOR Determination Date. If that
rate does not appear on Reuters Screen LIBOR01 Page, LIBOR will be determined on
the basis of the rates at which deposits in U.S. Dollars are offered by any five
major reference banks in the London interbank market selected by the Trustee to
provide that
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bank's offered quotation of such rates at approximately 11:00 a.m., London time,
on the applicable LIBOR Determination Date to prime banks in the London
interbank market for a period of one month, commencing on the first Distribution
Date following the applicable LIBOR Determination Date and in an amount that is
representative for a single such transaction in the relevant market at the
relevant time. The Trustee shall request the principal London office of any five
major reference banks in the London interbank market selected by the Trustee to
provide a quotation of those rates, as offered by each such bank. If at least
two such quotations are provided, LIBOR will be the arithmetic mean of the
quotations. If fewer than two quotations are provided as requested, LIBOR will
be the arithmetic mean of the rates quoted by major banks in New York City
selected by the Trustee, at approximately 11:00 a.m., New York City time, on the
applicable LIBOR Determination Date for loans in U.S. Dollars to leading
European banks for a period equal to one month, commencing on the applicable
LIBOR Determination Date and in an amount that is representative for a single
such transaction in the relevant market at the relevant time. The determination
of LIBOR by the Trustee will be binding absent manifest error. "Reuters Screen
LIBOR01 Page" means the display page currently so designated on the Reuters
Monitor Money Rates Service (or such other page as may replace that page on that
service for the purpose of displaying comparable rates or prices).
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ARTICLE II
CONVEYANCE OF TRUST MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Creation of Trust; Conveyance of Trust Mortgage
Loans.
(a) It is the intention of the parties hereto that multiple common
law trusts be established pursuant to this Agreement and the laws of the State
of New York and that such trusts be designated as: "LB-UBS Commercial Mortgage
Trust 2007-C6", in the case of the Mortgage Trust individually or all the
subject trusts collectively, as the context may require; "Class A-2FL Grantor
Trust", in the case of Grantor Trust A-2FL; and "Class A-MFL Grantor Trust", in
the case of Grantor Trust A-MFL. LaSalle 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 Trust
Mortgage Loans, (ii) the UMLS/Depositor Mortgage Loan Purchase Agreement(s),
(iii) any Co-Lender Agreement(s), and (iv) all other assets included or to be
included in the Trust Fund. Such assignment includes all interest and principal
received or receivable on or with respect to the Trust Mortgage Loans and due
after the Cut-off Date and, in the case of each Trust Mortgage Loan that is part
of a Loan Combination, is subject to the provisions of the related Co-Lender
Agreement. With respect to each Trust Mortgage Loan that is part of a Loan
Combination, the Trustee, on behalf of the Trust, assumes the obligations of the
holder of such Trust Mortgage Loan and the related Mortgage Note under, and
agrees to be bound by, the related Co-Lender Agreement.
The parties hereto acknowledge and agree that, notwithstanding
Section 11.07, the transfer of the Trust Mortgage Loans and the related rights
and property accomplished hereby is absolute and is intended by them to
constitute a sale.
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 Depositor shall (in the case of each Xxxxxx Trust
Mortgage Loan) deliver to and deposit with (or cause to be delivered to and
deposited with), and the related Unaffiliated Mortgage Loan Seller has agreed
pursuant to the related UMLS/Depositor Mortgage Loan Purchase Agreement (in the
case of each Non-Xxxxxx Trust Mortgage Loan) to deliver to and deposit with (or
cause to be delivered to and deposited with), on or before the Closing Date: (i)
the Trustee or a Custodian appointed thereby, the Mortgage File for such Trust
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 Depositor or the related Unaffiliated
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Mortgage Loan Seller, as the case may be, that relate to such Trust Mortgage
Loan (except in the case of an Outside Serviced Trust Mortgage Loan). None of
the Trustee, any Custodian, the Master Servicer or the Special Servicer shall be
liable for any failure by a Mortgage Loan Seller or the Depositor to comply with
the document delivery requirements of the respective Mortgage Loan Purchase
Agreements and this Section 2.01(b). In addition, the Depositor shall, in the
case of a Xxxxxx Trust Mortgage Loan that is an Outside Serviced Trust Mortgage
Loan, deliver to and deposit with, and the related Unaffiliated Mortgage Loan
Seller shall be required, pursuant to the related UMLS/Depositor Mortgage Loan
Purchase Agreement, in the case of each Non-Xxxxxx Trust Mortgage Loan that is
an Outside Serviced Trust Mortgage Loan, to deliver to and deposit with, the
Master Servicer, within 45 days of the Closing Date, a copy of the mortgage file
that was delivered to the related Outside Trustee under the related Non Trust
Mortgage Loan Securitization Agreement.
After the Depositor's transfer of the Trust Mortgage Loans to the
Trustee pursuant to Section 2.01(a), the Depositor shall not take any action
inconsistent with the Trust's ownership of the Trust Mortgage Loans.
(c) The Depositor hereby covenants that it shall retain with
respect to each Xxxxxx Trust Mortgage Loan (other than an Outside Serviced Trust
Mortgage Loan), and the related Unaffiliated Mortgage Loan Seller has covenanted
in the related UMLS/Depositor Mortgage Loan Purchase Agreement that it shall
retain with respect to each Non-Xxxxxx Trust Mortgage Loan (other than an
Outside Serviced Trust Mortgage Loan), an Independent Person (each such Person,
a "Recording Agent") through which the Depositor or the related Unaffiliated
Mortgage Loan Seller, as applicable, shall: (i) promptly (and in any event
within 45 days following the later of the Closing Date and the date on which all
necessary 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, and delivered under clause (a)(iv) of the definition of "Mortgage
File" to, the Trustee; 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 Depositor (in the case of Xxxxxx Trust Mortgage
Loans) or the related Unaffiliated Mortgage Loan Seller (in the case of a
Non-Xxxxxx Trust Mortgage Loan), as applicable, 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 Serviced Trust 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 Depositor may, in the case of a
Xxxxxx Trust Mortgage Loan (other than an Outside Serviced Trust Mortgage Loan),
and the related Unaffiliated Mortgage Loan Seller may, in the case of a
Non-Xxxxxx Trust Mortgage Loan (other than an Outside Serviced Trust Mortgage
Loan), 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 requesting party 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.
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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 Trust Mortgage Loan by the Master Servicer) and at the expense of the
Depositor (in the case of a Xxxxxx Trust Mortgage Loan, other than an Outside
Serviced Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller
(in the case of a Non-Xxxxxx Trust Mortgage Loan, other than an Outside Serviced
Trust Mortgage Loan), 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 Depositor 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 the Xxxxxx Trust Mortgage Loans (other than the Outside Serviced
Trust Mortgage Loans), and the related UMLS/Depositor Mortgage Loan Purchase
Agreement provides that the related Unaffiliated 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 the Non-Xxxxxx Trust
Mortgage Loans (other than the Outside Serviced Trust 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 a Non-Xxxxxx Trust Mortgage Loan (other than an Outside
Serviced Trust Mortgage Loan) are lost or returned unrecorded because of a
defect therein, then the Trustee shall direct the related Unaffiliated Mortgage
Loan Seller (pursuant to the related UMLS/Depositor 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. 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 a Xxxxxx Trust Mortgage Loan (other than an
Outside Serviced Trust Mortgage Loan) are lost or returned unrecorded because of
a defect therein, then the Depositor shall promptly prepare or cause the
preparation of a substitute therefor or cure such defect, as the case may be,
and shall deliver to the Trustee the substitute or corrected document. The
Trustee shall upon receipt, whether from the related Unaffiliated Mortgage Loan
Seller or the Depositor, cause the same to be duly recorded.
In addition to the foregoing, the Trustee shall retain an
Independent Person (such Person, the "Filing Agent"), at the expense of Five
Mile Capital II CMBS Pooling International LLC (the "Payee"), pursuant to a
letter agreement dated the Closing Date (the "Filing Letter Agreement") between
the Payee, the Depositor, the UBS Mortgage Loan Seller and the Trustee, and the
Trustee shall, with respect to each Trust Mortgage Loan, through the Filing
Agent: (i) promptly (and in any event within 45 days following the later of the
Closing Date and the date on which all necessary filing information is available
to such Filing Agent) file in the appropriate public office for UCC Financing
Statements, each related assignment of UCC Financing Statement prepared by or on
behalf of the Depositor (with respect to each Xxxxxx Trust Mortgage Loan, other
than an Outside Serviced Trust Mortgage Loan), or by or on behalf of the related
Unaffiliated Mortgage Loan Seller (with respect to each Non-Xxxxxx Trust
Mortgage Loan, other than an Outside Serviced Trust Mortgage Loan), in favor of,
and delivered pursuant to clause (a)(xiv) of the definition of "Mortgage File"
to, the Trustee; and (ii) cause each such
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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 Depositor (in the case of a Xxxxxx
Trust Mortgage Loan), or at the expense of the related Unaffiliated Mortgage
Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan), as applicable, 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 Trust Mortgage Loan by the Master
Servicer). Each assignment of UCC Financing Statement referred to in the prior
sentence that is filed by or on behalf of the Trustee shall reflect that the
file copy thereof should be returned to the Trustee or its agent following
filing. The Depositor (with respect to the Xxxxxx Trust Mortgage Loans) hereby
agrees, and each Unaffiliated Mortgage Loan Seller (with respect to its
Non-Xxxxxx Trust Mortgage Loans) has agreed pursuant to the related
UMLS/Depositor Mortgage Loan Purchase Agreement, to reasonably cooperate with
the Trustee (and the Filing Agent) with respect to the filing of the assignments
of UCC Financing Statements as described in this paragraph and to forward to the
Trustee filing confirmation, if any, received by such party in connection with
assignments of UCC Financing Statements filed in accordance with this paragraph.
Notwithstanding the foregoing, to the extent the Trustee provides
the Payee, pursuant to the Filing Letter Agreement, with an invoice for the
expenses (i) reasonably to be incurred in connection with the filings referred
to in the preceding paragraph and (ii) required to be paid by the Payee pursuant
to the Filing Letter Agreement, and such expenses are not paid by the Payee in
advance of such filings, the Trustee, at the expense of the Depositor (with
respect to each Xxxxxx Trust Mortgage Loan, other than an Outside Serviced Trust
Mortgage Loan), and at the expense of the related Unaffiliated Mortgage Loan
Seller (with respect to each Non-Xxxxxx Trust Mortgage Loan, other than an
Outside Serviced Trust Mortgage Loan), shall only be required to cause the
Filing Agent to file the assignments of UCC Financing Statements with respect to
Trust Mortgage Loans secured by hotel or hospitality properties.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall, in the case of each Xxxxxx Trust
Mortgage Loan (other than an Outside Serviced Trust Mortgage Loan), deliver to
and deposit with (or cause to be delivered to and deposited with), and the
related Unaffiliated Mortgage Loan Seller has agreed (pursuant to the related
UMLS/Depositor Mortgage Loan Purchase Agreement), in the case of each Non-Xxxxxx
Trust Mortgage Loan (other than an Outside Serviced Trust Mortgage Loan), 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 such Serviced Trust Mortgage Loan; provided
that neither the Depositor nor any Unaffiliated Mortgage Loan Seller shall 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
Serviced Trust Mortgage Loan delivered by the Depositor or any Unaffiliated
Mortgage Loan Seller pursuant to or as contemplated by the immediately preceding
paragraph and provide to the Depositor or such Unaffiliated, Mortgage Loan
Seller, as applicable, with a copy to the Controlling Class Representative and
the Special Servicer, a certificate in the form of Exhibit V attached hereto
(the "Master Servicer Certification") within 90 days of the Closing Date
acknowledging its (or, if the Master Servicer has directed that such
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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 Serviced Trust 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 Depositor or an Unaffiliated Mortgage Loan
Seller, as applicable, has not been notified in writing of its failure to
deliver any document with respect to a Serviced Trust 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 Depositor or such Unaffiliated Mortgage Loan Seller
as applicable, shall have no obligation to provide such document.
In addition, pursuant to the related Mortgage Loan Purchase
Agreement, each Mortgage Loan Seller will be required to deliver, on the Closing
Date, to the Master Servicer for deposit in the Pool Custodial Account, the
Initial Deposit relating to each Initial Deposit Mortgage Loan, if any, being
sold by such Mortgage Loan Seller.
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 (and, insofar as they also relate to
any Serviced Non-Trust Mortgage Loan, on behalf of and for the benefit of the
related Serviced Non-Trust Mortgage Loan Noteholder).
(e) In connection with the obligations of the Master Servicer
hereunder, with regard to each Serviced Trust Mortgage Loan that is secured by
the interests of the related Mortgagor in a hospitality property and each
Serviced Trust Mortgage Loan that has a related letter of credit, the Depositor
(with respect to each such Serviced Trust Mortgage Loan that is a Xxxxxx Trust
Mortgage Loan) shall, and the related Unaffiliated Mortgage Loan Seller (with
respect to each such Serviced Trust Mortgage Loan that is a Non-Xxxxxx Trust
Mortgage Loan) will be obligated under the related UMLS/Depositor Mortgage Loan
Purchase Agreement to, deliver to and deposit with the Master Servicer, on or
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 Trust 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
Trust 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.
To the extent that the Mortgage File for any Serviced Combination Trust Mortgage
Loan relates to a Serviced Non-Trust Mortgage Loan, the Trustee shall also hold
such Mortgage File in trust for the use and benefit of the related Serviced
Non-Trust Mortgage Loan
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Noteholder. In connection with the foregoing, the Trustee hereby certifies to
each of the other parties hereto, each Mortgage Loan Seller and each Underwriter
that, as to each Trust Mortgage Loan, (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 Trust 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 Trust 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, each Mortgage Loan Seller and each
Underwriter and, in the case of a Serviced Non-Trust Mortgage Loan, to the
related Serviced Non-Trust Mortgage Loan Noteholder(s), 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 (a)(i)
through (a)(viii) and (a)(xiv) (without regard to the second parenthetical in
such clause (a)(xiv)) of the definition of "Mortgage File" or, in the case of an
Outside Serviced Trust Mortgage Loan, in clauses (b)(i) through (b)(iii) 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) (except in the case of an Outside Serviced Trust Mortgage Loan) 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
Trust Mortgage Loan Schedule with respect to the items specified in clauses (v)
and (vi)(B) of the definition of "Trust Mortgage Loan Schedule" accurately
reflects the information set forth 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 Depositor
or the related Unaffiliated Mortgage Loan Seller, as applicable, has repurchased
the last affected Trust 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
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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, any Serviced Non-Trust
Mortgage Loan Noteholder 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 (a)(i) through (a)(viii) and (a)(xiv) (or, in the case of an Outside
Serviced Trust Mortgage Loan, in clauses (b)(i) through (b)(iii)) 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 Trust Mortgage Loans; (ii) segregate such Mortgage Files
from its own assets and the assets retained by it for others; (iii) maintain
such Mortgage Files in secure and fire resistant facilities in compliance with
customary industry 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 Trust 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 Trust Mortgage Loan, that (i) any
document (A) constituting a part of the related Mortgage File pursuant to
clauses (a)(i) through (a)(xiii) (or, in the case of an Outside Serviced Trust
Mortgage Loan, clause (b)(i)) of the definition of "Mortgage File", (B)
specifically set forth on Schedule IX hereto with respect to a Xxxxxx Trust
Mortgage Loan only or (C) specifically set forth on Exhibit D to the related
Mortgage Loan Purchase Agreement with respect to any Non-Xxxxxx Trust Mortgage
Loan only, 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 related Unaffiliated Mortgage Loan Seller made pursuant to
Section 3(b) of the related UMLS/Depositor Mortgage Loan Purchase Agreement with
respect to any Non-Xxxxxx Trust Mortgage Loan (a "Breach") or a breach of any
representation or warranty of the Depositor made pursuant to Section 2.04(b)
hereof with respect to any Xxxxxx Trust Mortgage Loan (also, a "Breach"), then
such party shall give prompt written notice thereof to each Rating Agency, the
related Mortgage Loan Seller, the other parties hereto and the Controlling Class
Representative. If the Depositor (in the case of a Xxxxxx Trust Mortgage Loan)
or the related Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx
Trust Mortgage Loan)
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receives written notice or obtains actual knowledge of a Document Defect or a
Breach with respect to any Trust 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 Trust
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.
In the event the Depositor obtains actual knowledge of a Material Document
Defect or Material Breach, then the Depositor shall deliver written notification
to the Trustee with respect thereto.
Promptly upon becoming aware of any Material Document Defect or
Material Breach with respect to a Non-Xxxxxx Trust Mortgage Loan, the Trustee
shall deliver a Seller/Depositor Notification to the related Unaffiliated
Mortgage Loan Seller, the Master Servicer and the Special Servicer and shall
require the related Unaffiliated Mortgage Loan Seller, within the time period
and subject to the conditions provided for in the applicable Mortgage Loan
Purchase Agreement, except as otherwise contemplated by Sections 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 Trust Mortgage Loan
or any related REO Property (or, in the case of an REO Property related to a
Loan Combination, the Trust's interest therein) at the applicable Purchase Price
by wire transfer of immediately available funds to the Pool Custodial Account.
Promptly upon becoming aware of any such Material Document Defect or Material
Breach with respect to a Xxxxxx Trust Mortgage Loan, the Trustee shall deliver a
Seller/Depositor Notification to the Depositor, the Master Servicer and the
Special Servicer, and the Depositor shall, subject to Sections 2.03(d), 2.03(e)
and 2.03(f), (A) not later than (1) 90 days after the Depositor and the Trustee
have agreed upon the existence of such Material Document Defect or Material
Breach or (2) 60 days after an arbitration panel makes a binding determination,
in accordance with the provisions of Section 2.03(i), that a Material Document
Defect or Material Breach exists or (B) in the case of a Material Document
Defect or Material Breach that affects whether a Xxxxxx Trust Mortgage Loan is
or will continue to be a "qualified mortgage" within the meaning of the REMIC
Provisions (a "Qualified Mortgage"), not later than 90 days following the
discovery by any party of such Material Document Defect or Material Breach (and
such 90-day or 60-day period, as applicable, in the case of clause (A)(1),
(A)(2) or (B) (with respect to a Xxxxxx Trust Mortgage Loan), and any "Initial
Resolution Period", as defined in the related UMLS/Depositor Mortgage Loan
Purchase Agreement (with respect to a Non-Xxxxxx Trust Mortgage Loan), as
applicable, are each referred to herein as an "Initial Resolution Period"), (i)
cure such Material Document Defect or Material Breach, as the case may be, in
all material respects (which cure shall include payment of any out-of-pocket
expenses that are reasonably incurred and directly attributable to pursuing such
a claim based on such Material Document Defect or Material Breach associated
therewith) or (ii) if any such Material Document Defect or Material Breach, as
the case may be, cannot be cured within the Initial Resolution Period,
repurchase the affected Xxxxxx Trust Mortgage Loan or any related REO Property
(or, in the case of an REO Property related to a Loan Combination, the Trust's
interest therein) at the applicable Purchase Price by wire transfer of
immediately available funds to the Pool Custodial Account; provided, however,
that if (w) such Material Document Defect or Material Breach is capable of being
cured but not within the Initial Resolution Period, (x) such Material Document
Defect or Material Breach, as the case may be, does not affect whether any
Xxxxxx Trust Mortgage Loan is a Qualified Mortgage, (y) the Depositor has
commenced and is diligently proceeding with the cure of such Material Document
Defect or Material Breach, as the case may be, within the Initial Resolution
Period, and (z) the Depositor shall have delivered to the Trustee an Officer's
Certificate confirming that such Material Breach or Material Document Defect, as
the case may be, is not capable of being cured within the applicable Initial
Resolution Period, setting forth what actions the Depositor is pursuing in
connection with the cure
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thereof and stating that the Depositor anticipates that such Material Breach or
Material Document Defect, as the case may be, will be cured within an additional
period not to exceed either 90 days beyond the end of the applicable Initial
Resolution Period (in the event the Depositor and the Trustee have agreed upon
the existence of such Material Document Defect or Material Breach as described
in clause (A)(1) of the second sentence of this paragraph) or 45 days beyond the
end of the applicable Initial Resolution Period (in the event an arbitration
panel has made a binding determination, as described in clause (A)(2) of the
second sentence of this paragraph, that a Material Document Defect or Material
Breach exists), then the Depositor shall have such additional 90-day period or
45-day period, as the case may be (such additional 90-day period or 45-day
period, as the case may be (with respect to a Xxxxxx Trust Mortgage Loan), and
any "Resolution Extension Period", as defined in the related Mortgage Loan
Purchase Agreement (with respect to a Non-Xxxxxx Trust Mortgage Loan), as
applicable, are each referred to herein as a "Resolution Extension Period"), to
complete such cure or, failing such, to repurchase the affected Trust Mortgage
Loan (or the related Mortgaged Property); and provided, further, that, if any
such Material Document Defect is still not cured after the applicable Initial
Resolution Period and any such applicable Resolution Extension Period solely due
to the failure of the Depositor to have received a recorded document, then the
Depositor shall be entitled to continue to defer its cure and repurchase
obligations in respect of such Material Document Defect so long as the Depositor
certifies to the Trustee every six months thereafter that the Material Document
Defect is still in effect solely because of its failure to have received the
recorded document and that the Depositor is diligently pursuing the cure of such
defect (specifying the actions being taken). The parties acknowledge that
neither delivery of a certification or schedule of exceptions to the Depositor
(in the case of a Xxxxxx Trust Mortgage Loan) or the related Unaffiliated
Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan) pursuant
to Section 2.02(b) or otherwise nor possession of such certification or schedule
by the Depositor (in the case of a Xxxxxx Trust Mortgage Loan), or the related
Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage
Loan) shall, in and of itself, constitute delivery of notice of any Material
Document Defect or Material Breach or knowledge or awareness by the Depositor or
the related Unaffiliated Mortgage Loan Seller, as the case may be, of any
Material Document Defect or Material Breach.
If, during the period of deferral by the Depositor of its cure and
repurchase obligations as contemplated by the last proviso of the penultimate
sentence of the preceding paragraph, or during any comparable deferral by an
Unaffiliated Mortgage Loan Seller of its cure and repurchase obligations as
provided in Section 5 of the related UMLS/Depositor Mortgage Loan Purchase
Agreement, the Trust Mortgage Loan that is the subject of the Material Document
Defect either becomes a Specially Serviced Trust Mortgage Loan or becomes the
subject of a proposed or actual assumption of the obligations of the related
Mortgagor under such Trust Mortgage Loan, then (i) any party to this Agreement
that becomes aware of such event shall deliver a Seller/Depositor Notification
to such effect (unless a Seller/Depositor Notification with respect to such
event has already been delivered by another party) to the Master Servicer, the
Special Servicer, the Trustee and either the Depositor (in the case of a Xxxxxx
Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (in the
case of a Non-Xxxxxx Trust Mortgage Loan), and (ii) the Trustee, upon becoming
aware of such event, shall deliver a Seller/Depositor Notification to the Master
Servicer, the Special Servicer and either the Depositor (in the case of a Xxxxxx
Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (in the
case of a Non-Xxxxxx Trust Mortgage Loan), providing notice of such event and
directing the Depositor or the related Unaffiliated Mortgage Loan Seller, as
applicable, to cure the subject Material Document Defect within 15 days of
receipt of such Seller/Depositor Notification. If, upon the expiration of such
15-day period, the Depositor or the related Unaffiliated Mortgage Loan Seller,
as applicable, has failed to cure
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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 Depositor or the related Unaffiliated Mortgage Loan Seller,
as applicable, 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/Depositor Notification
to such effect. In connection with the preceding sentence, the Depositor will,
and each related Unaffiliated Mortgage Loan Seller will be obligated under the
related UMLS/Depositor 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/Depositor Notification with respect to a
Material Document Defect or Material Breach is received by the Depositor (in the
case of a Xxxxxx Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan
Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan), 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 Agreements. 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/Depositor Notification received by the Depositor (in the case of a Xxxxxx
Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (in the
case of a Non-Xxxxxx Trust Mortgage Loan), 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/Depositor Notification.
If, in connection with any Material Breach, the Depositor is
obligated to repurchase any Xxxxxx Trust Mortgage Loan pursuant to this Section
2.03, or an Unaffiliated Mortgage Loan Seller is obligated to repurchase any
Non-Xxxxxx Trust Mortgage Loan pursuant to the related UMLS/Depositor Mortgage
Loan Purchase Agreement, then such obligation shall extend to any REO Trust
Mortgage Loan with respect thereto; provided that (i) the subject Material
Breach existed as to the subject predecessor Trust Mortgage Loan prior to the
date the related Mortgaged Property became an REO Property or within 90 days
thereafter, and (ii) the party having the repurchase obligation had received, no
later than 90 days following the date on which the related Mortgaged Property
became an REO Property, a Seller/Depositor Notification from the Trustee
regarding the occurrence of the subject Material Breach and directing such party
to repurchase the subject Trust 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 either the Depositor
(with respect to a Xxxxxx Trust Mortgage Loan) or the related Unaffiliated
Mortgage Loan Seller (with respect to a Non-Xxxxxx Trust Mortgage Loan), as
applicable, a Seller/Depositor Notification identifying and describing the
circumstances identified in the definition of "Seller/Depositor Notification"
(unless, in the case of an event described in clauses (iii), (iv) and/or (vi),
as applicable, of the definition of "Seller/Depositor Notification", a
Seller/Depositor 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 either the Depositor (with respect to a Xxxxxx Trust Mortgage Loan)
or the related Unaffiliated Mortgage Loan Seller (with respect to a Non-Xxxxxx
Trust Mortgage Loan), as applicable, a Seller/Depositor Notification identifying
and describing the circumstances identified in clauses (iii), (iv) and/or (vi),
as applicable, of the definition of "Seller/Depositor Notification" (unless such
notification has already been delivered). A copy of each such Seller/Depositor
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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/Depositor Notification", to either internal counsel to the
Depositor (with respect to a Xxxxxx Trust Mortgage Loan) or counsel to the
related Unaffiliated Mortgage Loan Seller (with respect to a Non-Xxxxxx Trust
Mortgage Loan), as applicable, 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 Trust Mortgage Loans
constituting a Cross-Collateralized Group are to be repurchased by the Depositor
or the related Unaffiliated Mortgage Loan Seller as contemplated by this Section
2.03, then, prior to the subject repurchase, the Depositor or the related
Unaffiliated Mortgage Loan Seller, as the case may be, or its designee shall use
its reasonable efforts, subject to the terms of the related Trust 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 Trust Mortgage Loan(s) in such
Cross-Collateralized Group that are to be repurchased, on the one hand, and the
remaining Trust Mortgage Loan(s) therein, on the other hand, such that those two
groups of Trust Mortgage Loans are each secured only by the Mortgaged Properties
identified in the Trust 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 Depositor or the related
Unaffiliated Mortgage Loan Seller, as the case may be, 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 Depositor or the
related Unaffiliated Mortgage Loan Seller, as the case may be, (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 any Grantor Trust and (B) written confirmation from
each Rating Agency that such termination would not cause an Adverse Rating Event
to occur with respect to any Class of Certificates; and provided, further, that
the Depositor, in the case of Xxxxxx Trust Mortgage Loans, or the related
Unaffiliated Mortgage Loan Seller, in the case of Non-Xxxxxx Trust Mortgage
Loans, 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 Trust 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 Trust Mortgage
Loan.
(d) Notwithstanding the foregoing, if there exists a Breach of
that portion of the representation or warranty on the part of the Depositor set
forth in, or made pursuant to, paragraph (xlviii) of Schedule II hereto, or on
the part of the related Unaffiliated Mortgage Loan Seller set forth in, or made
pursuant to, paragraph (xlviii) of Exhibit B to the related UMLS/Depositor
Mortgage Loan Purchase Agreement, in each case specifically relating to whether
or not the Mortgage Loan documents or any particular Mortgage Loan document for
any Mortgage Loan requires the related Mortgagor to bear the reasonable costs
and expenses associated with the subject matter of such representation or
warranty, as set forth in such representation or warranty, then the Master
Servicer shall (and the Special Servicer may) direct the Depositor (in the case
of a Xxxxxx Trust Mortgage Loan) or the related
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Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage
Loan) in writing to wire transfer to the Pool 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 Depositor (in the
case of a Xxxxxx Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan
Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan) 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 none of the Depositor (in the case of a
Xxxxxx Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (in
the case of a Non-Xxxxxx Trust Mortgage Loan) shall be obligated to otherwise
cure such Breach or repurchase the affected Trust Mortgage Loan under any
circumstances. Amounts deposited in the Pool Custodial Account pursuant to this
paragraph shall constitute "Liquidation Proceeds" for all purposes of this
Agreement (other than Section 3.11(c)).
(e) Subject to the penultimate sentence of this paragraph and
subject to Section 2.03(d), if the Depositor determines that a Material Breach
(other than a Material Breach of a representation or warranty on the part of the
Depositor set forth in, or made pursuant to, paragraph (xvii) of Schedule II
hereto) or a Material Document Defect with respect to a Xxxxxx Trust Mortgage
Loan is not capable of being cured in accordance with Section 2.03(a), or the
related Unaffiliated Mortgage Loan Seller determines that a Material Breach
(other than a Material Breach of a representation or warranty on the part of the
related Unaffiliated Mortgage Loan Seller set forth in, or made pursuant to,
paragraph (xvii) of Exhibit B to the related UMLS/Depositor Mortgage Loan
Purchase Agreement) or Material Document Defect with respect to a Non-Xxxxxx
Trust Mortgage Loan is not capable of being cured in accordance with Section
5(a) of the related UMLS/Depositor Mortgage Loan Purchase Agreement, then (in
lieu of repurchasing such Trust Mortgage Loan) the Depositor or the related
Unaffiliated Mortgage Loan Seller, as the case may be, 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 Trust 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 any of the Depositor or the related Unaffiliated Mortgage Loan
Seller, as the case may be, or (ii) by an arbitration panel pursuant to a
binding arbitration proceeding in accordance with Section 2.03(i); provided
that, in the event there is an arbitration proceeding for determining the
existence of a Material Breach or a Material Document Defect with respect to any
Trust Mortgage Loan, such arbitration proceeding must also include a
determination of the amount of the loss of value to such Trust 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
neither the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) nor the
related Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust
Mortgage Loan) shall 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
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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 Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the related
Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage
Loan) shall be obligated to repurchase the affected Mortgage Loan at the
applicable Purchase Price in accordance with Section 2.03(a); and, furthermore,
neither the Depositor nor the related Unaffiliated Mortgage Loan Seller shall
have the option of delivering Loss of Value Payments in connection with any
Material Breach relating to a Trust Mortgage Loan's failure to be a Qualified
Mortgage. In the event there is a Loss of Value Payment made by the Depositor or
an Unaffiliated Mortgage Loan Seller, as the case may be, 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).
In the event the amount of any Loss of Value Payment is determined
by an arbitration panel pursuant to a binding arbitration proceeding in
accordance with Section 2.03(i), then such Loss of Value Payment shall also
include the payment of any costs and expenses (including costs incurred in
establishing the amount of any related loss of value to the subject Trust
Mortgage Loan, including reasonable legal fees) that are reasonably incurred in
good faith by the Master Servicer, the Special Servicer and/or the Trustee (on
behalf of the Trust) in enforcing the rights of the Trust against the Depositor
or the related Unaffiliated Mortgage Loan Seller, as applicable, with respect to
the subject Material Breach or Material Document Defect, as the case may be;
provided that, if the Depositor (with respect to a Xxxxxx Trust Mortgage Loan)
or the related Unaffiliated Mortgage Loan Seller (with respect to a Non-Xxxxxx
Trust Mortgage Loan) tenders a loss of value payment in a specified amount in
connection with a Material Breach or Material Document Defect, as the case may
be, prior to the institution of arbitration proceedings and that offer is
rejected, and if an amount equal to or less than the loss of value payment
originally tendered by the Depositor or the related Unaffiliated Mortgage Loan
Seller, as the case may be, is ultimately determined by an arbitration panel
pursuant to a binding arbitration proceeding, in accordance with Section
2.03(i), to be the actual amount of the Loss of Value Payment attributed to such
Material Breach or Material Document Defect, as the case may be, then that Loss
of Value Payment shall not include the payment of any costs or expenses incurred
in enforcing the rights of the Trust against the Depositor or the related
Unaffiliated Mortgage Loan Seller, as applicable, with respect to the subject
Material Breach or Material Document Defect, as the case may be; and provided,
further, that, if the Special Servicer requests a loss of value payment from the
Depositor or the related Unaffiliated Mortgage Loan Seller, as the case may be,
of a specified amount in connection with a Material Breach or Material Document
Defect, as the case may be, and the Depositor or the related Unaffiliated
Mortgage Loan Seller, as the case may be, refuses to pay that amount, and if an
amount equal to or greater than the loss of value payment originally requested
by the Special Servicer is ultimately determined by an arbitration panel
pursuant to a binding arbitration proceeding, in accordance with Section
2.03(i), to be the actual Loss of Value Payment attributable to such Material
Document Defect or Material Breach, then that Loss of Value Payment shall also
include the payment of any costs or expenses reasonably incurred in good faith
in enforcing the rights of the Trust against the Depositor or the related
Unaffiliated Mortgage Loan Seller, as applicable, with respect to the subject
Material Breach or Material Document Defect, as the case may be; and provided,
further, that, if the Depositor (with respect to a Xxxxxx Trust Mortgage Loan)
or the related Unaffiliated Mortgage Loan Seller (with respect to a Non-Xxxxxx
Trust Mortgage Loan) tenders a loss of value payment in connection with a
Material Breach or Material Document Defect, as the case may be, in a specified
amount, and the Special Servicer rejects such tender and requests a greater loss
of value payment amount, and an amount in between the respective amounts
tendered and requested is ultimately determined by an arbitration
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panel pursuant to a binding arbitration proceeding, in accordance with Section
2.03(i), to be the actual Loss of Value Payment attributable to such Material
Breach or Material Document Defect, as the case may be, then that Loss of Value
Payment shall also include the payment of an amount equal to the product of (i)
all costs and expenses reasonably incurred in connection with that arbitration
proceeding, multiplied by (ii) a fraction, the numerator of which is the excess
of the amount determined by that arbitration proceeding over the amount tendered
by the Depositor or the related Unaffiliated Mortgage Loan Seller, as the case
may be, and the denominator of which is the excess of the amount requested by
the Special Servicer over the amount tendered by the Depositor or the related
Unaffiliated Mortgage Loan Seller, as the case may be. Notwithstanding the
foregoing, in the event any Loss of Value Payment is determined by the parties
hereto by mutual agreement (and not by an arbitration proceeding), that Loss of
Value Payment shall not include any costs and expenses incurred by the Master
Servicer, the Special Servicer or the Trustee unless such costs and expenses
were specifically included in such mutual agreement.
(f) Notwithstanding the foregoing, if there exists a Material
Breach of the representation or warranty on the part of (A) the Depositor set
forth in, or made pursuant to, paragraph (xvii) of Schedule II hereto with
respect to any Xxxxxx Trust Mortgage Loan, or (B) the related Unaffiliated
Mortgage Loan Seller set forth in, or made pursuant to, paragraph (xvii) of
Exhibit B to the related UMLS/Depositor Mortgage Loan Purchase Agreement with
respect to any Non-Xxxxxx Trust Mortgage Loan, and, in each case, 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 Depositor or the related Unaffiliated Mortgage
Loan Seller, as the case may be, will not be obligated to repurchase or
otherwise remedy such Breach.
(g) In connection with any purchase or repurchase of a Trust
Mortgage Loan pursuant to or otherwise as contemplated by this Section 2.03, the
Trustee, the Custodian, the Master Servicer and the Special Servicer shall each
tender to the purchasing/repurchasing entity, upon delivery to each of them of a
receipt executed by the purchasing/repurchasing entity, all portions of the
Mortgage File and other documents pertaining to such Trust 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
purchasing/repurchasing entity or its designee in the same manner, but only if
the respective documents have been previously assigned or endorsed to the
Trustee, and pursuant to appropriate forms of assignment, substantially similar
to the manner and forms pursuant to which such documents were previously
assigned to the Trustee; provided that such tender by the Trustee 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 Pool 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 Trust 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 related UMLS/Depositor 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 Non-Xxxxxx Trust Mortgage Loan. This Section 2.03 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 Xxxxxx Trust Mortgage Loan. Any purchase of a Trust Mortgage Loan
pursuant to or as contemplated by this Section 2.03 shall be on a whole loan,
servicing release 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 any UMLS/Depositor
Mortgage Loan Purchase Agreement shall be resolved in accordance with the
Mediation/Arbitration procedures set forth in Section 5(i) of such
UMLS/Depositor Mortgage Loan Purchase Agreement. In addition, subject to the
prior sentence, and without intending to create any overlap between the prior
sentence and this sentence, the parties hereto further agree that any
controversy or claim (a "Dispute") involving a Xxxxxx Trust Mortgage Loan and/or
the Depositor and arising under Section 2.03(a) and/or Section 2.03(e) of this
Agreement shall be resolved in accordance with the following
Mediation/Arbitration procedures set forth in this Section 2.03(i).
If the Depositor receives a Seller/Depositor Notification pursuant
to Section 2.03(a) of this Agreement regarding the alleged existence of a
Material Document Defect or Material Breach with respect to any Xxxxxx Trust
Mortgage Loan and requesting the Depositor to cure or repurchase the affected
Xxxxxx Trust Mortgage Loan in connection therewith (a "Notice"), and the
Depositor does not agree upon the existence of such Material Document Defect or
Material Breach within 90 days of receiving such Notice, then, unless otherwise
agreed to by the parties involved in the Dispute, that Dispute shall be
submitted to non-binding mediation in accordance with the provisions of this
paragraph; provided, that if the Depositor is proceeding to cure the subject
Material Document Defect or Material Breach, then that Dispute shall not be
submitted to mediation until the expiration of the related Resolution Extension
Period and the failure of the Depositor to complete such cure (unless otherwise
agreed to by the parties involved in the Dispute). Following the 90-day period
referred to in the preceding sentence and subject to the preceding proviso, any
party to this Agreement that is involved in the Dispute may send a written
letter (a "Mediation Letter") to another party to this Agreement that they wish
the mediation process to begin between the sender and the recipient of such
Mediation Letter. Following receipt of a Mediation Letter, a mediator(s) shall
be selected by agreement of the parties to the mediation. If such parties cannot
agree on a mediator, then the mediation shall be conducted by three mediators,
one of which shall be selected by the Depositor and one of which shall be
selected by the Trustee or its designee. Each of the parties to the mediation
shall submit the name of the Person it has selected to serve as a mediator to
the opposing party within 10 days of the date of the Mediation Letter. If either
party fails to submit the name of its selected mediator within 10 days of the
date of the Mediation Letter, the other party shall have the right to select the
second mediator in addition to its own mediator (provided that such party has
submitted the name of its selected mediator within 10 days of the date of the
Mediation Letter). The two mediators selected by the party(ies) shall appoint a
third mediator within 20 days of the date of the Mediation Letter or such longer
time period as agreed to by the parties to the mediation. Any mediator(s) so
designated must be acceptable to both (i) the Depositor and (ii) the Trustee,
the Master Servicer or the Special Servicer, whichever such party is the party
to the mediation on behalf of the Trust (or such party's designee). Any
mediators appointed or selected pursuant to the provisions of this paragraph
must be experienced professionals in the CMBS industry.
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Any mediation related to a particular Dispute and commenced in
accordance with the preceding paragraph must be completed within 90 days of the
date of the Mediation Letter (or a longer period, if the parties to the
mediation agreed to extend the mediation). Any mediation referred to in this
Section 2.03(i) shall be conducted in the manner specified by the mediator(s)
and agreed upon by both (i) the Depositor and (ii) the Trustee, the Master
Servicer or the Special Servicer, whichever such party is the party to the
mediation on behalf of the Trust (or such party's designee), and any such
mediation shall be conducted in New York City to the exclusion of all other
locations (unless otherwise agreed to by the parties to the mediation). During
the mediation process, the parties to the mediation shall discuss their
differences voluntarily and in good faith and attempt, with the assistance of
the mediator(s) as a facilitator of the negotiations, to reach an amicable
resolution of the Dispute. The mediation will be treated as a settlement
discussion and therefore will be confidential. No mediator selected in
accordance with this Section 2.03(i) may testify for either party in any later
proceeding relating to the Dispute. No recording or transcript shall be made of
the mediation proceedings. The fees and expenses of all mediator(s) shall be
shared equally by the parties to the mediation; provided, however, that the
party to the mediation that is acting on behalf of the Trust in accordance with
the provisions of this Section 2.03(i) or Section 5(i) of any UMLS/Depositor
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 such fees and expenses.
Notwithstanding anything to the contrary herein, no party shall be
required to agree to a Dispute resolution pursuant to mediation and no decision
or resolution of a mediator or mediators shall be binding on any party unless
such decision or resolution is expressly agreed to by such party. In the event
the parties involved in the Dispute have not agreed to a Dispute resolution
pursuant to mediation at the termination of the mediation, then that Dispute
will be settled by arbitration in accordance with the succeeding paragraphs of
this Section 2.03(i).
If a Dispute has not been resolved within 90 days of the date of the
Mediation Letter (or such shorter or longer period as is expressly agreed to by
the parties to the mediation), the mediation shall terminate and the Dispute
will be settled by arbitration. Following the date of termination of mediation,
which shall be the date occurring 90 days after the date of the Mediation Letter
unless otherwise expressly agreed to by the parties to the mediation,
arbitration may be commenced by any party to this Agreement involved in the
Dispute by sending a written notice to another party to this Agreement involved
in the Dispute that they wish the arbitration process to begin with respect to
the Dispute between the sender and the recipient of such written notice. The
date any such party receives written notice in accordance with this Section
2.03(i) from another party that such party wishes to commence arbitration shall
be referred to as the "Arbitration Commencement Date". Any arbitration hereunder
shall be conducted in accordance with the provisions of this Agreement and the
American Arbitration Association Rules for Large Complex Commercial Disputes
("AAA Rules"), but shall not be conducted by the American Arbitration
Association ("AAA"). Discovery will be permitted in connection with the
arbitration in accordance with the AAA Rules. In the event of a conflict, the
provisions of this Agreement will control. Such arbitration shall be conducted
before a panel of three arbitrators, regardless of the size of the Dispute. The
arbitration panel shall consist of one person selected by the Depositor and one
person selected by the Trustee, the Master Servicer or the Special Servicer,
whichever such party is the party to the arbitration on behalf of the Trust (or
such party's designee). Each such party shall submit the name of the person it
has selected to serve as an arbitrator to the other party within 30 days of the
Arbitration Commencement Date (or such longer period as is expressly agreed to
by the parties to the arbitration). If either such party fails to submit the
name of its
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selected arbitrator within 30 days of the Arbitration Commencement Date, then
the other such party shall have the right to select the second arbitrator in
addition to its own arbitrator (provided that such party has submitted the name
of its selected arbitrator within 30 days of the Arbitration Commencement Date).
The two arbitrators designated in accordance with the two preceding sentences
shall appoint a third arbitrator within 45 days of the Arbitration Commencement
Date (or such longer period as is expressly agreed to by the parties to the
arbitration). All arbitrators appointed or selected pursuant to the provisions
of this paragraph must be experienced professionals in the CMBS industry. The
third arbitrator shall be an Independent person who has not previously been
employed by either party and does not have a direct or indirect interest in
either party or the subject matter of the arbitration. The two (2) arbitrators
appointed by the parties to the arbitration are not required to be neutral and
it shall not be grounds for removal of either of such arbitrators or for
vacating an arbitration award that either of such arbitrators has past or
present relationships with the party that appointed such arbitrator. No
potential arbitrator may serve on the panel unless he or she has agreed in
writing to abide and be bound by the terms and provisions of this Agreement and
the AAA Rules and to keep confidential the terms of any arbitration proceeding
related to this Agreement and the terms of any discussion, negotiation,
decision, agreement or resolution in connection therewith.
Any issue concerning the extent to which any Dispute is subject to
arbitration, or concerning the applicability, interpretation, or enforceability
of these procedures, including any contention that all or part of these
procedures are invalid or unenforceable, shall be resolved by the arbitrators.
In no event, notwithstanding that any provision of this Agreement is held to be
invalid or unenforceable, shall the arbitrators have the power to make an award
or impose a remedy that could not be made or imposed by a court deciding the
matter in the same jurisdiction. In no event shall the arbitrators have the
power to make an award or impose a remedy that is not contemplated by, or
conflicts with the terms and provisions of, this Agreement (other than any term
or provision of this Agreement that is held to be invalid or unenforceable).
Without limiting the foregoing, the arbitrators shall have no authority to award
treble, consequential or punitive damages of any type under any circumstances,
whether or not such damages may be available under the AAA Rules or any other
act or law. Subject to the provisions of this Agreement, the result of the
arbitration will be binding on the parties involved in the Dispute, and judgment
on the arbitrators' award may be entered, subject to the provisions of Section
11.04 of this Agreement, in any court of competent jurisdiction.
All mediations and arbitrations shall be conducted in New York City
to the exclusion of all other locations (unless otherwise expressly agreed to by
the parties to the subject mediation or arbitration, as applicable). The party
to an arbitration that is acting on behalf of the Trust in accordance with the
provisions of this Section 2.03(i) or Section 5(i) of any UMLS/Depositor
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.
The parties to this Agreement hereby agree to waive any right to
trial by jury fully to the extent that any such right shall now or hereafter
exist with regard to the rights and remedies contained in this Section 2.03(i);
provided, that if (i) any party to an arbitration governed by this Section
2.03(i) fails to abide by the rules or deadlines for that arbitration (as such
deadlines may be extended by express agreement of the parties to that
arbitration), or (ii) the applicable appointed arbitrators determine that the
subject Dispute cannot be resolved through arbitration either because the AAA
Rules are inapplicable to the Dispute and/or the Federal Arbitration Act is
inapplicable to the Dispute or for any other reason, then
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the other party (in the case of clause (i)) or any party (in the case of clause
(ii)) to this Agreement involved in such arbitration may in its sole option,
file a complaint to resolve the Dispute through a legal proceeding and in
accordance with the provision contained in Section 11.04 hereof.
If any of the provisions of this Section 2.03(i) are determined by a
court of law to be invalid or unenforceable, the remaining provisions shall
remain in effect and be binding on the parties involved in the Dispute to the
fullest extent permitted by law.
(j) In the event that the Master Servicer receives notice from the
Mortgagor under any Early Defeasance Trust Mortgage Loan that (i) such Mortgagor
intends to defease such Early Defeasance Trust 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 Trust 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 Trust Mortgage Loan in
connection with a Material Breach or a Material Document Defect, or (ii) such
Mortgagor intends to partially defease such Early Defeasance Trust Mortgage Loan
on or prior to the second anniversary of the Closing Date, or (iii) such
Mortgagor intends to defease such Early Defeasance Trust 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 either the Depositor (with respect to a Xxxxxx Trust Mortgage Loan) or the
related Unaffiliated Mortgage Loan Seller (with respect to a Non-Xxxxxx Trust
Mortgage Loan) of such Mortgagor's intention, and the Trustee shall direct the
Depositor (with respect to a Xxxxxx Trust Mortgage Loan) or the related
Unaffiliated Mortgage Loan Seller (with respect to a Non-Xxxxxx Trust Mortgage
Loan), as applicable, to repurchase (and the Depositor, with respect to a Xxxxxx
Trust Mortgage Loan, hereby agrees, and the related Unaffiliated Mortgage Loan
Seller, with respect to a Non-Xxxxxx Trust Mortgage Loan, pursuant to the
related Mortgage Loan Purchase Agreement, has agreed to repurchase) such Trust
Mortgage Loan at a price equal to (A) the Purchase Price that would be
applicable in the event of a repurchase of such Trust 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
Trust 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 Depositor (in the case of a Xxxxxx Trust Mortgage Loan) hereby agrees to
pay, and the related Unaffiliated Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement (in the case of a Non-Xxxxxx Trust Mortgage
Loan) 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 Trust Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer
or similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust 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 Trust
Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage
Loans to the Trustee pursuant to Section 2.01(a), the value of the
Depositor's assets, either taken at their present fair
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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
Trust Mortgage Loans by the Depositor to the Trustee.
(xiv) Immediately prior to the transfer of the Non-Xxxxxx Trust
Mortgage Loans to the Trust pursuant to this Agreement (and assuming that
the related Unaffiliated Mortgage Loan Seller transferred to the Depositor
good and marketable title to each Non-Xxxxxx Trust 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 Non-Xxxxxx Trust Mortgage Loan, and (B) the Depositor has
full right and authority to sell, assign and transfer each Non-Xxxxxx
Trust Mortgage Loan, exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby makes to the Trustee, for the Trustee's
own benefit and the benefit of the Certificateholders, with respect to each
Xxxxxx Trust Mortgage Loan only, the representations and warranties shown on
Schedule II hereto, as of the Closing Date or such other date specified in the
particular representation and warranty, subject to the exceptions set forth on
Schedule III hereto (the headings set forth in Schedule II hereto with respect
to each representation and warranty being for convenience of reference only and
in no way limiting, expanding or otherwise affecting the scope or subject matter
thereof).
Except as expressly provided in Section 2.04(a), the Depositor does
not make any representations or warranties regarding the Non-Xxxxxx Trust
Mortgage Loans.
(c) The representations, warranties and covenants of the
Depositor set forth in or made pursuant to Section 2.04(a) and Section 2.04(b)
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
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representations, warranties and covenants, the party discovering such breach
shall give prompt written notice thereof to the other parties.
SECTION 2.05. Acceptance of Grantor Trust Assets by Trustee;
Issuance of the Class V Certificates and the
Floating Rate Certificates.
(a) It is the intention of the parties hereto that the segregated
pool of assets constituting each Grantor Trust will be a grantor trust for
federal income tax purposes. 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: (i) the Class A-2FL REMIC III Regular Interest and the other property
comprising Grantor Trust A-2FL, to the Trustee for the benefit of the Holders of
the Class A-2FL Certificates; (ii) the Class A-MFL REMIC III Regular Interest
and the other property comprising Grantor Trust A-MFL, to the Trustee for the
benefit of the Holders of the Class A-MFL Certificates; and (iii) any assets and
property comprising Grantor Trust V, to the Trustee for the benefit of the
Holders of the Class V Certificates. The Trustee, by its execution and delivery
hereof, acknowledges the assignment to it of the Grantor Trust Assets, and
declares that it holds and will hold any such assets in trust for the exclusive
use and benefit of (i) all present and future Holders of the Class A-2FL
Certificates (in the case of the assets of Grantor Trust A-2FL), (ii) all
present and future Holders of the Class A-MFL Certificates (in the case of the
assets of Grantor Trust A-MFL) and (iii) all present and future Holders of the
Class V Certificates (in the case of the assets of Grantor Trust V).
Concurrently with the assignment to it of the Grantor Trust Assets, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver, to or upon the order of the Depositor, (i) the Class
A-2FL Certificates, evidencing, in the aggregate, the entire beneficial
ownership of Grantor Trust A-2FL, (ii) the Class A-MFL Certificates, evidencing,
in the aggregate, the entire beneficial ownership of Grantor Trust A-MFL, and
(iii) subject to Section 2.05(b), the Class V Certificates, evidencing, in the
aggregate, the entire beneficial ownership of Grantor Trust V. The rights of
Holders of the Class A-2FL Certificates, the Class A-MFL Certificates and,
subject to Section 2.05(b), the Class V Certificates, to receive distributions
from the proceeds of Grantor Trust A-2FL, Grantor Trust A-MFL and Grantor Trust
V, respectively, and all ownership interests of such Holders in and to such
respective 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 Trust Mortgage Loans, then: (i) there shall be no
Grantor Trust V; (ii) no Class V Certificates shall be issued; (iii) insofar as,
but only insofar as, the provisions of this Agreement specifically relate to
Grantor Trust V, the Class V Certificates, the Class V Sub-Account, ARD Mortgage
Loans, ARD Trust Mortgage Loan 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 VII 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 Grantor Trust V, the Class V Certificates,
the Class V Sub-Account, ARD Mortgage Loans, ARD Trust Mortgage Loans and/or
Additional Interest.
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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 Trust 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.
(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 Trust 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 Trust Mortgage Loans, such provisions (other than this Section
2.06(b), the definitions of such terms set forth in Section 1.01 and the Trust
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 respective Mortgage Loan Sellers
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 Trust 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
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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.
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 and each of Grantor Trust A-2FL, as the holder of the Class A-2FL
REMIC III Regular Interest, and Grantor Trust A-MFL, as the holder of the Class
A-MFL REMIC III Regular Interest. 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 and each of Grantor Trust A-2FL, as the
holder of the Class A-2FL REMIC III Regular Interest, and Grantor Trust A-MFL,
as the holder of the Class A-MFL REMIC III Regular Interest.
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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 or, together with the Group
FL REMIC III Regular Interests, constituting the entire beneficial ownership of
REMIC III. The rights of the Holders of the respective Classes of REMIC III
Certificates and the Floating Rate Grantor Trusts, as the respective holders of
the Group FL REMIC III Regular Interests, to receive distributions from the
proceeds of REMIC III in respect of their REMIC III Certificates or the Group FL
REMIC III Regular Interests, as the case may be, and all ownership interests
evidenced or constituted by the respective Classes of REMIC III Certificates and
the Group FL REMIC III Regular Interests 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 Serviced Mortgage Loans and Administered REO
Properties are to be serviced and administered by the Master Servicer and/or the
Special Servicer hereunder. Each of the Master Servicer and the Special Servicer
shall service and administer the Serviced Mortgage Loans and Administered REO
Properties that it is obligated to service and administer pursuant to this
Agreement on behalf of the Trustee, for the benefit of the Certificateholders
(or, in the case of a Serviced Loan Combination, for the benefit of the
Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), 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 Serviced 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 Serviced 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 Serviced
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
Serviced 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 Administered REO Property and shall render such services with
respect to Performing Serviced 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, 6.11 and 6.12, 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 Serviced Mortgage Loans it is obligated to
service hereunder, is authorized and empowered by the Trustee and, to the extent
provided in the related Co-Lender Agreement, each related Serviced Non-Trust
Mortgage Loan Noteholder (if any) to execute and deliver, on behalf of the
Certificateholders, the Trustee and such Serviced Non-Trust Mortgage Loan
Noteholder or any of them, (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and related collateral; (ii) in accordance
with the Servicing Standard and subject to Sections 3.01(a), 3.20, 6.11 and
6.12, 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
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and all instruments that such party may be required to execute on behalf of the
Trustee in connection with the defeasance of a Serviced 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 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 parties hereto acknowledge that each Loan Combination is
subject to the terms and conditions of the related Co-Lender Agreement; and,
with respect to each Loan Combination, the parties hereto further recognize the
respective rights and obligations of the Trust, as holder of the related
Combination Trust Mortgage Loan, and of the related Non-Trust Mortgage Loan
Noteholder(s) under the related Co-Lender Agreement.
(d) With respect to any Serviced Loan Combination, in the event
that neither the related Trust Mortgage Loan nor the related REO Property (or
any interest therein) is an asset of the Trust Fund and, except as contemplated
in the second paragraph of this Section 3.01(d), in accordance with the related
Co-Lender Agreement, the servicing and administration of such Serviced Loan
Combination and any related REO Property are to be governed by a separate
servicing agreement and not by this Agreement, then (either (i) with the consent
or at the request of the holders of each Mortgage Loan comprising such Serviced
Loan Combination or (ii) if expressly provided for in the related Co-Lender
Agreement) the Master Servicer and, if such Serviced Loan Combination is then
being specially serviced hereunder or the related Mortgaged Property has become
an REO Property, the Special Servicer, shall continue to act in such capacities
under such separate servicing agreement; provided that such separate servicing
agreement shall be reasonably acceptable to the Master Servicer and/or the
Special Servicer, as the case may be, and shall contain servicing and
administration, limitation of liability, indemnification and servicing
compensation provisions substantially similar to the corresponding provisions of
this Agreement, except for the fact that such Serviced Loan Combination and the
related Mortgaged Property shall be the sole assets serviced and administered
thereunder and the sole source of funds thereunder.
Further, with respect to any Serviced Loan Combination, if at any
time neither the related Trust Mortgage Loan nor any related REO Property (or
any interest therein) is an asset of the Trust Fund, and if a separate servicing
agreement with respect to such Serviced Loan Combination or any related REO
Property, as applicable, has not been entered into as contemplated by the
related Co-Lender Agreement and the prior paragraph (for whatever reason,
including the failure to obtain any rating agency confirmation required in
connection therewith pursuant to the related Co-Lender Agreement), and
notwithstanding that neither the related Trust Mortgage Loan nor any related REO
Property (or any interest therein) is an asset of the Trust Fund, then, unless
directed otherwise by the then current holders of the Mortgage Notes comprising
such Serviced Loan Combination, the Master Servicer and, if applicable, the
Special Servicer shall continue to service and administer such Serviced Loan
Combination and/or any related REO Property, for the benefit of the respective
holders of such Serviced
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Loan Combination, under this Agreement as if such Serviced Loan Combination or
any related REO Property were the sole assets subject hereto, with certain
references in this Agreement applicable to the Trust, the Trustee, the
Certificates, the Certificateholders (or any subgroup thereof) or any
representative of any such Certificateholders, all being construed to refer to
such similar terms as are applicable to the then current holder of the Mortgage
Note for the related Serviced Combination Trust Mortgage Loan.
(e) The Master Servicer shall use efforts consistent with the
Servicing Standard to have prepared, executed (with the cooperation of the
Depositor, in the case of a Xxxxxx Trust Mortgage Loan, and the related
Unaffiliated Mortgage Loan Seller, in the case of a Non-Xxxxxx Trust Mortgage
Loan, 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 Serviced Mortgage Loan secured
by a hospitality property (as identified on Schedule VI 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 Serviced 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
Serviced Trust 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 Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the
related Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust
Mortgage Loan) to make such draw or to cause such draw to be made on behalf of
the Trustee, and, the Depositor will, and each Unaffiliated Mortgage Loan Seller
will be obligated under the related Mortgage Loan Purchase Agreement to, use its
best efforts to cause such draw to be made; provided that neither the Depositor
nor any Unaffiliated Mortgage Loan Seller shall 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).
(f) The relationship of each of the Master Servicer and the
Special Servicer to the Trustee, to the Serviced Non-Trust Mortgage Loan
Noteholders 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.
(g) The parties hereto acknowledge that each Outside Serviced
Trust Mortgage Loan and the related Outside Serviced Non-Trust Mortgage Loan(s)
will primarily be serviced and administered in accordance with the related
Outside Servicing Agreement, and the servicing and administrative duties of the
parties hereto with respect to each Outside Serviced Trust Mortgage Loan, any
successor REO Trust Mortgage Loan with respect thereto and any related Outside
Administered REO Property shall be limited to those expressly set forth herein.
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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 Serviced 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 Serviced 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. The
Special Servicer shall ensure that, with respect to Specially Serviced Mortgage
Loans, the Mortgagors make payments directly to the Master Servicer; provided
that, in the event the Special Servicer receives a payment that should have been
made directly to the Master Servicer, the Special Servicer shall promptly
forward such payment to the Master Servicer. Upon receipt of any such payment
with respect to a Specially Serviced Mortgage Loan, the Master Servicer shall
promptly notify the Special Servicer, and the Special Servicer shall direct the
Master Servicer as to the proper posting of such payment. Consistent with the
foregoing, the Special Servicer, with regard to a Specially Serviced Mortgage
Loan, or the Master Servicer, with regard to a Performing Serviced Mortgage
Loan, may waive or defer any Default Charges in connection with collecting any
late payment on a Serviced 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 any interest accrued on such
Advance at the Reimbursement Rate).
(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 Trust 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 Trust
Mortgage Loan (whether or not such Trust 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 Trust 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 Trust Mortgage Loan at the related Mortgage Rate
(net, in the case of an Outside
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Serviced Trust Mortgage Loan, of related Outside Servicing Fees) 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 Trust 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 Trust Mortgage Loan then due and owing, including
by reason of acceleration of such Trust Mortgage Loan following a default
thereunder (or, if a Liquidation Event has occurred in respect of such Trust
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 Trust 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 Trust Mortgage Loan, as a
recovery of Reserve Funds to the extent then required to be held in escrow;
sixth, as a recovery of any Prepayment Consideration then due and owing under
such Trust Mortgage Loan; seventh, as a recovery of any Default Charges then due
and owing under such Trust Mortgage Loan; eighth, as a recovery of any
assumption fees, modification fees and extension fees then due and owing under
such Trust Mortgage Loan; ninth, as a recovery of any other amounts then due and
owing under such Trust Mortgage Loan (other than remaining unpaid principal and,
in the case of an ARD Trust Mortgage Loan after its Anticipated Repayment Date,
other than Additional Interest); tenth, as a recovery of any remaining principal
of such Trust Mortgage Loan to the extent of its entire remaining unpaid
principal balance; and, eleventh, in the case of an ARD Trust Mortgage Loan
after its Anticipated Repayment Date, as a recovery of accrued and unpaid
Additional Interest on such ARD Trust Mortgage Loan to but not including the
date of receipt; provided that, if one or more Advances previously made in
respect of a Trust 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 Trust 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 Trust Mortgage Loan, to the extent of any outstanding
P&I Advances and unpaid Master Servicing Fees in respect of such Trust 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 Trust 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).
Subject to the last paragraph of this Section 3.02(b), all amounts
received with respect to any Serviced Loan Combination shall be applied to
amounts due and owing under the Mortgage Loans comprising such Loan Combination
(including for principal and accrued and unpaid interest) in accordance with the
express provisions of the related Mortgage Notes, the related Mortgage, the
related loan agreement, if any, and the related Co-Lender Agreement.
Subject to the last paragraph of this Section 3.02(b), all amounts
Received by the Trust with respect to an Outside Serviced Trust Mortgage Loan
shall be allocated among interest, principal and/or prepayment consideration due
thereon in accordance with the terms of any distribution date statement or
servicer report received from the related Outside Servicers with respect to such
Outside Serviced Trust Mortgage Loan and, in the absence of any such statement
or report, in accordance with the related Co-Lender Agreement and, in the
absence of any allocation in the related Co-Lender
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Agreement, in accordance with the first paragraph of this Section 3.02(b). Any
nonrecoverable payment made by an Outside Servicer to cover interest shortfalls
incurred with respect to an Outside Serviced Trust Mortgage Loan by reason of a
Principal Prepayment or other early collection of principal being applied to
such Outside Serviced Trust Mortgage Loan prior to the related Due Date during
the relevant Underlying Collection Period, will be treated for purposes of this
Agreement as if it was a payment of interest by the related Mortgagor.
Notwithstanding the foregoing, Loss of Value Payments and Reserve
Collateral (or proceeds thereof) 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 Pool Custodial Account, and deemed to constitute Liquidation
Proceeds in respect of a particular Trust Mortgage Loan, in accordance with
Section 3.05(e) and Section 6.12(g), respectively; and Liquidation Proceeds
resulting from any purchase or repurchase out of the Trust Fund of, or any
application of Loss of Value Payments to, any Trust Mortgage Loan that is part
of a Loan Combination shall be applied in accordance with the provisions of the
first paragraph of this Section 3.02(b).
(c) Promptly following the Closing Date, in the case of each
Outside Serviced Trust Mortgage Loan, the Trustee shall send written notice,
substantially in the form of Exhibit S hereto, to the related Outside Master
Servicer, the related Outside Special Servicer, the related Outside Trustee and
any other party under the related Outside Servicing Agreement that would
constitute a Servicer, stating (among other things) that, as of the Closing
Date, the Trustee is the holder of such Outside Serviced Trust Mortgage Loan and
directing (i) the related Outside Master Servicer to remit to the Master
Servicer all amounts payable to, and to forward, deliver or otherwise make
available, as the case may be, to the Master Servicer (or in the case of CMSA
reports, files and templates to the Master Servicer with a copy to the Trustee)
all reports, statements, documents, communications and other information that
are to be forwarded, delivered or otherwise made available to, the holder of the
subject Outside Serviced Trust Mortgage Loan under the related Co-Lender
Agreement and the related Outside Servicing Agreement and (ii) the related
Outside Master Servicer, the related Outside Special Servicer, the related
Outside Trustee and any other party under the related Outside Servicing
Agreement that would constitute a Servicer to forward to the Master Servicer and
the Trustee all reports, documents and other information required by the Trust
with respect to such entity, its affiliates and the subject Outside Serviced
Trust Mortgage Loan because the Trust is subject to the reporting requirements
of the Exchange Act and the requirements of Regulation AB. The Master Servicer
shall, upon receipt thereof, deposit into the Pool Custodial Account all amounts
received by it from any Outside Servicer or any other party under the related
Outside Servicing Agreement and/or the related Co-Lender Agreement with respect
to any Outside Serviced Trust Mortgage Loan, the related Mortgaged Property or
any related REO Property. In connection with the foregoing, the Master Servicer
shall provide each Outside Master Servicer wiring instructions for remittances
to the Master Servicer. In the event that, during any calendar month, the Master
Servicer fails to so receive any amounts, including (if applicable) advances,
due to the holder of an Outside Serviced Trust Mortgage Loan under the related
Co-Lender Agreement and/or the related Outside Servicing Agreement by the end of
the related Collection Period ending in such calendar month, then the Master
Servicer shall promptly (i) notify the related Outside Master Servicer and any
Outside Trustee under the related Outside Servicing Agreement that such amounts
due with respect to the subject Outside Serviced Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto have not been received
(specifying the amount of such deficiency), (ii) make inquiry of the related
Outside Master Servicer and any Outside Trustee under the related Outside
Servicing Agreement (and, to the extent learned, inform the Trustee) as to the
reason that such amounts have not been timely received, (iii) as and to the
extent appropriate, request that the related Outside
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Master Servicer promptly remedy such failure to make a payment or an advance, as
the case may be, and (iv) make a P&I Advance with respect to such amounts as and
if required by the terms of this Agreement in accordance with Section 4.03.
Further, in accordance with Section 4.03, in the event the Master Servicer fails
to make such P&I Advance with respect to any Outside Serviced Trust Mortgage
Loan or any successor REO Trust Mortgage Loan with respect thereto, then the
Trustee or, if it fails to do so, any Fiscal Agent, shall make such P&I Advance.
SECTION 3.03. Collection of Taxes, Assessments and Similar
Items; Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Serviced Mortgage Loans,
establish and maintain one or more accounts (the "Servicing Accounts"), in which
all related Escrow Payments shall be deposited and retained; provided that, in
the case of a Serviced Loan Combination, if the related Servicing Account
includes funds with respect to any other Serviced Mortgage Loan, then the Master
Servicer shall maintain a separate sub-account of such Servicing Account that
relates solely to such Serviced Loan Combination. 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
Serviced Mortgage Loan or, in the case of clauses (iv) and (v) below, to the
extent of interest or other income earned on such amounts) only for the
following purposes: (i) consistent with the related 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 Serviced
Mortgage Loan, for such other purposes 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
Serviced Mortgage Loan. If the Master Servicer shall deposit in a Servicing
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from such Servicing Account, any provision herein to the
contrary notwithstanding.
(b) The Master Servicer shall, as to each and every Serviced
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 Serviced Mortgage Loan requires the related Mortgagor to escrow
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for such items, shall effect payment thereof prior to the applicable penalty or
termination date. For purposes of effecting any such payment for which it is
responsible, the Master Servicer shall apply Escrow Payments as allowed under
the terms of the related Serviced Mortgage Loan (or, if such Serviced Mortgage
Loan does not require the related Mortgagor to escrow for the payment of real
estate taxes, assessments, insurance premiums, ground rents (if applicable) and
similar items, the 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 Serviced
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) and/or Section 3.05A. No costs incurred
by the Master Servicer in effecting the payment of real estate taxes,
assessments and, if applicable, ground rents on or in respect of the Mortgaged
Properties shall, for purposes of this Agreement, including the Trustee's
calculation of monthly distributions to Certificateholders, be added to the
unpaid Stated Principal Balances of the related Serviced 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.
(d) The Master Servicer shall, as to all Serviced 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; provided that, in the case of a Serviced Loan Combination, if the
related Reserve Account includes funds with respect to any other Mortgage Loan,
then the Master Servicer shall maintain a separate sub-account of such Reserve
Account that relates solely to such Serviced Loan Combination. 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 Serviced 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
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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. Pool Custodial Account, Defeasance Deposit
Account, Collection Account, Interest Reserve
Account, Excess Liquidation Proceeds Account,
Loss of Value Reserve Fund, Floating Rate
Accounts and Swap Collateral Accounts.
(a) The Master Servicer shall establish and maintain one or more
separate, segregated accounts (collectively, the "Pool Custodial Account"), in
which the amounts described in clauses (i) through (xi) below (which shall not
include any amounts allocable to the Non-Trust Mortgage Loans) shall be
deposited and held on behalf of the Trustee in trust for the sole benefit of the
Certificateholders. The Pool Custodial Account shall be an Eligible Account. The
Master Servicer shall deposit or cause to be deposited in the Pool Custodial
Account, within one (1) Business Day of receipt (in the case of payments by
Mortgagors or other collections on the Trust Mortgage Loans) or as otherwise
required hereunder, the following payments and collections received (including
amounts Received by the Trust with respect to the Outside Serviced Trust
Mortgage Loans and/or any successor REO Trust Mortgage Loans with respect
thereto) 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 Trust
Mortgage Loans due and payable on or before the Cut-off Date, which amounts
shall be delivered promptly to the Depositor or its designee, with negotiable
instruments endorsed as necessary and appropriate without recourse, and other
than amounts required to be deposited in the Defeasance Deposit Account), or 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 Serviced Trust
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 Serviced Trust
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 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 Trust Mortgage Loan;
(iv) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds Received by the Trust in respect of any Trust
Mortgage Loan or, except to the extent such proceeds are to first be
deposited in an REO Account, any REO Property;
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(v) any amounts representing a reimbursement, payment and/or
contribution due and owing to the Trust from any Non-Trust Mortgage Loan
Noteholder in accordance with the related Co-Lender Agreement;
(vi) all remittances, including (if applicable) advances, to the
Trust under the related Outside Servicing Agreement and/or the related
Co-Lender Agreement with respect to each Outside Serviced Trust Mortgage
Loan or any successor REO Trust Mortgage Loan with respect thereto;
(vii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Pool Custodial Account;
(viii) 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;
(ix) any Reserve Collateral or proceeds thereof required to be
transferred to the Pool Custodial Account pursuant to Section 6.12 and any
amounts required to be transferred from the Loss of Value Reserve Fund
pursuant to Section 3.05(e), any Loan Combination Custodial Account
pursuant to Section 3.05A or the Pool REO Account pursuant to Section
3.16(c);
(x) insofar as they do not constitute Escrow Payments, any
amounts paid by a Mortgagor with respect to a Serviced Trust Mortgage Loan
specifically to cover items for which a Servicing Advance has been made;
and
(xi) the Initial Deposits, if any;
provided that any amounts described in clauses (i) through (iv), (viii) and (x)
above that relate to a Serviced Combination Trust Mortgage Loan or any successor
REO Trust Mortgage Loan with respect thereto (other than Liquidation Proceeds
derived from the Permitted Purchase of such Trust Mortgage Loan or the Trust's
interest in any related REO Property) shall be deposited in the applicable Loan
Combination Custodial Account, and, in any such case, shall thereafter be
transferred to the Pool Custodial Account as provided in Section 3.05A, together
with any other amounts required to be transferred from such Loan Combination
Custodial Account to the Pool Custodial Account from time to time pursuant to
Section 3.05A.
The foregoing requirements for deposit in the Pool Custodial Account
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, Reserve Funds, assumption fees,
assumption application fees, funds representing a Mortgagor's payment of costs
and expenses associated with assumptions and defeasance, modification fees,
extension fees, charges for beneficiary statements or demands, amounts collected
for checks returned for insufficient funds and any similar fees (other than
Prepayment Consideration) not expressly referred to in the prior paragraph need
not be deposited by the Master Servicer in the Pool Custodial Account. If the
Master Servicer shall deposit in the Pool Custodial Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the Pool Custodial Account, any provision herein to the contrary
notwithstanding. The Master Servicer shall promptly deliver to the Special
Servicer, as additional special servicing compensation in accordance with
Section 3.11(d), all assumption fees and
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assumption application fees (or the applicable portions thereof), and other
transaction fees received by the Master Servicer to which the Special Servicer
is entitled pursuant to such section upon receipt of a written statement (on
which the Master Servicer is entitled to rely) of a Servicing Officer of the
Special Servicer describing the item and amount (unless pursuant to this
Agreement it is otherwise clear that the Special Servicer is entitled to such
amounts, in which case a written statement is not required). The Pool Custodial
Account shall be maintained as a segregated account, separate and apart from
trust funds created for mortgage-backed securities of other series and the other
accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(v) and (x) of the second preceding paragraph with respect to any Serviced Trust
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 Pool Custodial Account in accordance with the second
preceding paragraph (or, if applicable, in the case of a Serviced Combination
Trust Mortgage Loan, into the applicable Loan Combination Custodial Account in
accordance with Section 3.04A(a) and the proviso to the second preceding
paragraph), unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item should not be deposited because of a
restrictive endorsement or other appropriate reason. With respect to any such
amounts paid by check to the order of the Special Servicer, the Special Servicer
shall endorse such check to the order of the Master Servicer, unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item cannot be so endorsed and delivered because of a restrictive endorsement or
other appropriate reason. Any such amounts received by the Special Servicer with
respect to an Administered REO Property (other than an Administered REO Property
that relates to a Serviced Loan Combination) shall be deposited by the Special
Servicer into the Pool REO Account and thereafter remitted to the Master
Servicer for deposit into the Pool Custodial Account as and to the extent
provided in Section 3.16(c).
If and when any Mortgagor under any Defeasance Mortgage Loan that is
also a Serviced Mortgage Loan elects to defease all or any part of its Serviced
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 or sub-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
and, in the case of a Serviced Loan Combination, the related Serviced Non-Trust
Mortgage Loan Noteholder(s), 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 Pool 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 Pool Custodial Account for reasons of administrative
convenience, the Defeasance Deposit Account and the Pool 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
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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 Trust
Mortgage Loan that the Depositor or the related Unaffiliated Mortgage Loan
Seller, as applicable, is required to repurchase pursuant to 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 Depositor
or the related Unaffiliated Mortgage Loan Seller, as applicable, tenders the
full Purchase Price in connection with such repurchase and shall, on the date of
such repurchase, transfer such cash to the Depositor or the related Unaffiliated
Mortgage Loan Seller, as applicable.
(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 the Class V Certificates. The Master
Servicer shall deliver to the Trustee each month on or before the Trust 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 Trust 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 Trust
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 Trust 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
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Rate, on such amount(s) not timely remitted, from and including that Trust
Master Servicer Remittance Date, to but not including the related Distribution
Date.
On the Trust Master Servicer Remittance Date in March of each year
(commencing in March 2008), the Trustee shall transfer from the Interest Reserve
Account to the Collection Account all Interest Reserve Amounts then on deposit
in the Interest Reserve Account with respect to the Interest Reserve Mortgage
Loans and any Interest Reserve REO Mortgage Loans.
As and when required pursuant to Section 3.05(d), the Trustee shall
transfer monies from the Excess Liquidation Proceeds Account to the Collection
Account.
(c) The Trustee shall establish and maintain one or more separate,
segregated accounts (collectively, the "Interest Reserve Account"), to be held
in trust for the sole benefit of the Certificateholders, for purposes of holding
the Interest Reserve Amounts in respect of the Interest Reserve Mortgage Loans
and any Interest Reserve REO Mortgage Loans. Each account that constitutes the
Interest Reserve Account shall be an Eligible Account. On each Distribution Date
in February and, during a year that is not a leap year, in January, commencing
in February 2008, prior to any distributions being made in respect of the
Certificates on the subject Distribution Date, the Trustee shall withdraw from
the Collection Account and deposit in the Interest Reserve Account with respect
to each Interest Reserve Mortgage Loan and Interest Reserve REO Mortgage Loan,
an amount equal to the Interest Reserve Amount, if any, in respect of such
Mortgage Loan or REO Mortgage Loan, as the case may be, for such Distribution
Date; provided that no such transfer of funds shall occur if the subject
Distribution Date is the Final Distribution Date. In addition, as and when
required pursuant to Section 3.06, the Trustee shall (in any event prior to any
distributions on the Certificates and any transfers to the Collection Account on
or before the related Distribution Date) deposit in the Interest Reserve 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 Interest Reserve Account. Subject to the next paragraph, the
Interest Reserve Account may be a sub-account of the Collection Account.
Notwithstanding that the Interest Reserve Account may be a
sub-account of the Collection Account for reasons of administrative convenience,
the Interest Reserve 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.
(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 Trust
Master Servicer Remittance Date, the Master Servicer shall withdraw from the
Pool Custodial Account and remit to the Trustee for deposit in the Excess
Liquidation Proceeds Account all Excess Liquidation Proceeds received with
respect to the Mortgage Pool during the related Collection Period ending in the
calendar month in which
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such Trust 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 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) The Trustee, on behalf of the Trust Fund, shall establish and
maintain each of the following accounts: (i) the Class A-2FL Floating Rate
Account in trust for the benefit of the Holders of the Class A-2FL Certificates
and the Class A-2FL Swap Counterparty, as their interests may appear; and (ii)
the Class A-MFL Floating Rate Account in trust for the benefit of the Holders of
the Class A-MFL Certificates and the Class A-MFL Swap Counterparty, as their
interests may appear. Each Floating Rate Account shall be established and
maintained as an Eligible Account. The Trustee shall make or be deemed to have
made deposits in and withdrawals from the Floating Rate Accounts in accordance
with the terms of this Agreement. The Trustee shall, as and when required,
deposit in the applicable Floating Rate 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 such Floating
Rate Account and, to the extent permitted by Section 3.06, may withdraw any Net
Investment Earnings from the applicable Floating Rate Account. The Trustee shall
deposit into: (i) the Class A-2FL Floating Rate Account (x) all amounts
distributable with respect to the Class A-2FL REMIC III Regular Interest
pursuant to Section 4.01 for each Distribution Date, and (y) upon receipt, all
amounts received from the Class A-2FL Swap Counterparty under the Class A-2FL
Swap Agreement intended for distribution on the Class A-2FL Certificates; and
(ii) the Class A-MFL Floating Rate Account (x) all amounts distributable with
respect to the Class A-MFL REMIC III Regular Interest pursuant to Section 4.01
for each Distribution Date, and (y) upon receipt, all amounts received from the
Class A-MFL Swap Counterparty under the Class A-MFL Swap Agreement intended for
distribution on the Class A-MFL Certificates.
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Notwithstanding that the Floating Rate Accounts may be sub-accounts
of the Collection Account for reasons of administrative convenience, each
Floating Rate 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.
(g) Funds (other than the Initial Deposits) in the Pool Custodial
Account, the Collection Account, the Interest Reserve Account, the Excess
Liquidation Proceeds Account and the Floating Rate Accounts 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 Pool Custodial Account as of the Closing Date
and of the new location of the Pool Custodial Account prior to any change
thereof. As of the Closing Date, the Collection Account, the Interest Reserve
Account, the Excess Liquidation Proceeds Account and the Floating Rate Accounts
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, the Interest Reserve
Account, the Excess Liquidation Proceeds Account or any Floating Rate Account
prior to any change thereof.
(h) The Swap Custodian shall, on or before the Closing Date,
establish each of the following accounts: (i) the Class A-2FL swap collateral
account (the "Class A-2FL Swap Collateral Account"), and (ii) the Class A-MFL
swap collateral account (the "Class A-MFL Swap Collateral Account"). The Class
A-2FL Swap Collateral Account shall be held in the name of the Swap Custodian in
trust for the benefit of the Holders of Class A-2FL Certificates, and shall be
entitled "LB-UBS Commercial Mortgage Trust 2007-C6, Commercial Mortgage
Pass-Through Certificates, Series 2007-C6, Class A-2FL Swap Collateral Account,
LaSalle Bank National Association, as Swap Custodian for the benefit of Holders
of the Class A-2FL Certificates." The Class A-MFL Swap Collateral Account shall
be held in the name of the Swap Custodian in trust for the benefit of the
Holders of Class A-MFL Certificates, and shall be entitled "LB-UBS Commercial
Mortgage Trust 2007-C6, Commercial Mortgage Pass-Through Certificates, Series
2007-C6, Class A-MFL Swap Collateral Account, LaSalle Bank National Association,
as Swap Custodian for the benefit of Holders of the Class A-MFL Certificates."
Each of the Class A-2FL Swap Collateral Account and the Class A-MFL Swap
Collateral Account must be an Eligible Account.
The Swap Custodian shall credit: (i) to the Class A-2FL Swap
Collateral Account all collateral (whether in the form of cash or securities)
posted by the Class A-2FL Swap Counterparty to secure the obligations of the
Class A-2FL Swap Counterparty in accordance with the terms of the Class A-2FL
Swap Agreement; and (ii) to the Class A-MFL Swap Collateral Account all
collateral (whether in the form of cash or securities) posted by the Class A-MFL
Swap Counterparty to secure the obligations of the Class A-MFL Swap Counterparty
in accordance with the terms of the Class A-MFL Swap Agreement. Except for
investment earnings, no Swap Counterparty shall have any legal, equitable or
beneficial interest in a Swap Collateral Account other than in accordance with
this Agreement, the related Swap Agreement and applicable law. The Swap
Custodian shall maintain and apply all collateral
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and earnings thereon on deposit in each Swap Collateral Account in accordance
with the related Swap Credit Support Annex.
Cash collateral posted by a Swap Counterparty in accordance with the
related Swap Credit Support Annex shall be invested at the direction of such
Swap Counterparty in Permitted Investments in accordance with the requirements
of the related Swap Credit Support Annex. All amounts earned on amounts on
deposit in a Swap Collateral Account (whether cash collateral or securities)
shall be for the account of and taxable to the related Swap Counterparty.
Upon the occurrence of an Event of Default (as defined in the
related Swap Agreement) with respect to a Swap Counterparty or upon occurrence
or designation of an Early Termination Date (as defined in the related Swap
Agreement) as a result of any such Event of Default with respect to such Swap
Counterparty, and, in either such case, unless such Swap Counterparty has paid
in full all of its Obligations (as defined in the related Swap Credit Support
Annex) that are then due, then any collateral posted by such Swap Counterparty
in accordance with the related Swap Credit Support Annex shall be applied to the
payment of any Obligations due to Party B (as defined in the related Swap
Agreement) in accordance with the related Swap Credit Support Annex. Any amounts
held in the applicable Swap Collateral Account under the related Swap Agreement
which are required to be repaid to the related Swap Counterparty in accordance
with the related Swap Credit Support Annex shall be withdrawn from such Swap
Collateral Account and paid to the related Swap Counterparty in accordance with
this Agreement, as permitted under the related Swap Credit Support Annex.
SECTION 3.04A. Loan Combination Custodial Accounts for Serviced
Loan Combinations.
(a) With respect to each Serviced Loan Combination, the Master
Servicer shall establish and maintain one or more separate, segregated accounts
(collectively, with respect to such Serviced Loan Combination, the related "Loan
Combination Custodial Account") in which the amounts described in clauses (i)
through (ix) below, insofar as they are related to one or more Mortgage Loans
included in such Serviced Loan Combination, shall be deposited and held in trust
for the sole benefit of the holders of such Mortgage Loans, as their interests
may appear; provided that, subject to the last paragraph of this Section
3.04A(a), each Loan Combination Custodial Account may be a sub-account of the
Pool Custodial Account. Each Loan Combination Custodial Account shall be an
Eligible Account or, subject to the last paragraph of this Section 3.04A(a), a
sub-account of an Eligible Account. The Master Servicer shall deposit or cause
to be deposited in each Loan Combination Custodial Account, within one (1)
Business Day of receipt (in the case of payments or other collections on the
related Serviced Loan Combination) or as otherwise required hereunder, the
following payments and collections received or made by the Master Servicer or on
its behalf with respect to the related Serviced Loan Combination subsequent to
the Cut-off Date (other than in respect of principal and interest on such
Serviced Loan Combination due and payable on or before the Cut-off Date, which
payments shall be held pursuant to the terms of the related Co-Lender Agreement,
and other than amounts required to be deposited in the Defeasance Deposit
Account):
(i) all payments on account of principal of the related Serviced
Loan Combination, including Principal Prepayments, and regardless of
whether those payments are made by the related Mortgagor, any related
guarantor or any party exercising any cure rights hereunder or under the
related Co-Lender Agreement or any related mezzanine intercreditor
agreement, out of
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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 related Serviced
Loan Combination, 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 any cure rights hereunder
or under the related Co-Lender Agreement or any related mezzanine
intercreditor agreement, out of any related Reserve Funds maintained for
such purpose, out of collections on any related Defeasance Collateral or
from any other source;
(iii) all Prepayment Consideration and/or late payment charges
received in respect of the related Serviced Loan Combination;
(iv) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of the related Serviced Loan
Combination or, except to the extent such proceeds are to first be
deposited in a Loan Combination REO Account, any related Administered 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 such Loan Combination Custodial
Account;
(vi) any amounts required to be deposited by the Master Servicer
or the Special Servicer pursuant to Section 3.07(b) in connection with
losses with respect to the related Serviced Loan Combination resulting
from a deductible clause in a blanket or master force placed hazard
insurance policy;
(vii) any amounts required to be transferred from the Loan
Combination REO Account established with respect to the related Serviced
Loan Combination pursuant to Section 3.16(c);
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by the related Mortgagor with respect to the related Serviced
Loan Combination specifically to cover items for which a Servicing Advance
has been made; and
(ix) any amounts representing a reimbursement, payment and/or
contribution due and owing to a party other than the Trust from any
related Non-Trust Mortgage Loan Noteholder in accordance with the related
Co-Lender Agreement;
provided that, with respect to a Serviced Loan Combination, any Liquidation
Proceeds derived from a Permitted Purchase of the Trust Mortgage Loan included
in such Serviced Loan Combination or the Trust's interest in any related REO
Property, shall in each case be deposited into the Pool Custodial Account.
The foregoing requirements for deposit in each Loan Combination
Custodial Account shall be exclusive. Notwithstanding the foregoing, actual
payments from the related Mortgagor in respect of the related Serviced Loan
Combination in the nature of Escrow Payments, Reserve Funds, assumption fees,
assumption application fees, funds representing such Mortgagor's payment of
costs and expenses associated with assumptions and defeasance, modification
fees, extension fees, charges for
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beneficiary statements or demands, amounts collected for checks returned for
insufficient funds and any similar fees to which the Master Servicer or Special
Servicer is entitled as additional servicing compensation and that are not
expressly referred to in the prior paragraph, need not be deposited by the
Master Servicer in the subject Loan Combination Custodial Account. If the Master
Servicer shall deposit into any Loan Combination Custodial Account any amount
not required to be deposited therein, then it may at any time withdraw such
amount from such 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 with respect to each Serviced Loan Combination, to which the Special
Servicer is entitled pursuant to such section, upon receipt of a written
statement of a Servicing Officer of the Special Servicer (upon which the Master
Servicer may, absent manifest error, rely) describing the item and amount
(unless pursuant to this Agreement it is otherwise clear that the Special
Servicer is entitled to such amounts, in which case a written statement is not
required). Each Loan Combination Custodial Account shall be maintained as a
segregated account, separate and apart from trust funds created for
mortgage-backed securities of other series and the other accounts of the Master
Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv), (viii) and (ix) of the second preceding paragraph with respect to any
Serviced Loan Combination, the Special Servicer shall promptly, but in no event
later than two (2) Business Days after receipt, remit such amounts to the Master
Servicer for deposit into the related Loan Combination Custodial Account in
accordance with the second preceding paragraph (or, if applicable, into the Pool
Custodial Account in accordance with Section 3.04(a) and the proviso to the
second preceding paragraph), unless the Special Servicer determines, consistent
with the Servicing Standard, that a particular item should not be deposited
because of a restrictive endorsement or other appropriate reason. With respect
to any such amounts paid by check to the order of the Special Servicer, the
Special Servicer shall endorse such check to the order of the Master Servicer,
unless the Special Servicer determines, consistent with the Servicing Standard,
that a particular item cannot be so endorsed and delivered because of a
restrictive endorsement or other appropriate reason. Any such amounts received
by the Special Servicer with respect to an Administered REO Property that
relates to a Serviced Loan Combination shall initially be deposited by the
Special Servicer into the Loan Combination REO Account established with respect
to such Serviced Loan Combination and thereafter remitted to the Master Servicer
for deposit into the related Loan Combination Custodial Account, all in
accordance with Section 3.16(c).
Notwithstanding that a Loan Combination Custodial Account may be a
sub-account of the Pool Custodial Account for reasons of administrative
convenience, such Loan Combination Custodial Account and the Pool 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 and the respective
related Non-Trust Mortgage Loan Noteholders 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 this
paragraph shall survive any resignation or removal of the Master Servicer and
appointment of a successor master servicer.
(b) If and when the related Mortgagor elects to defease any
Serviced Loan Combination or any portion thereof, the provisions of the next to
last paragraph of Section 3.04(a) relating to the Defeasance Deposit Account
shall apply.
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(c) In connection with each Serviced Loan Combination, the
Master Servicer shall give notice to the Trustee, the related Non-Trust Mortgage
Loan Noteholder(s) and the Special Servicer of the location of the related Loan
Combination Custodial Account when first established and of the new location of
the related Loan Combination Custodial Account prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Pool Custodial
Account, the Collection Account, the Interest
Reserve Account and the Excess Liquidation
Proceeds Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Pool Custodial Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the 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 (exclusive of any Serviced Combination Trust Mortgage Loan
or any successor REO Trust Mortgage Loan with respect thereto), 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
Pool Custodial Account that represent Late Collections of interest and
principal (net of related Master Servicing Fees and any related Workout
Fees and/or Liquidation Fees) received in respect of the particular Trust
Mortgage Loan or REO Trust 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 (exclusive of any Serviced Combination
Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto), 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 Pool Custodial Account that are allocable as a
recovery of interest on or in respect of the Trust Mortgage Loan or REO
Trust 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 Pool Custodial Account,
earned and unpaid Special Servicing Fees in respect of each Specially
Serviced Trust Mortgage Loan and each REO Trust Mortgage Loan that relates
to an Administered REO Property and (B) to itself, out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account,
any Master Servicing Fee earned in respect of any Trust Mortgage Loan or
REO Trust Mortgage Loan that remains unpaid in accordance with clause
(iii) above or Section 3.05A, as applicable, following a Final Recovery
Determination made with respect to such Trust Mortgage Loan or the related
REO Property and the deposit into the Pool Custodial Account of all
amounts received in connection with such Final Recovery Determination;
(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
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Trust Mortgage Loan, each Corrected Trust Mortgage Loan and/or each REO
Trust Mortgage Loan that relates to an Administered REO Property (other
than, if applicable, any Serviced Combination Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto), as applicable, in
the amounts and from the sources specified in Section 3.11(c);
(vi) to reimburse any Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, for any unreimbursed Servicing Advances
made thereby with respect to any Serviced Trust Mortgage Loan or
Administered REO Property (other than any Serviced Combination Trust
Mortgage Loan or any related Administered REO Property), such Fiscal
Agent's, the Trustee's, the Master Servicer's and the Special Servicer's
respective rights to reimbursement pursuant to this clause (vi) with
respect to any Servicing Advance being limited to amounts on deposit in
the Pool Custodial Account that represent payments made by 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 Pool 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 Serviced Trust Mortgage Loan or Administered REO Property
as to which such Servicing Advance was made;
(vii) to reimburse any Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, out of general collections on the
Mortgage Pool on deposit in the Pool Custodial Account, 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, itself and the
Special Servicer, 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 Master Servicer's and the Special Servicer's respective
rights to payment pursuant to this clause (viii) with respect to interest
on any such Advance being limited to amounts on deposit in the Pool
Custodial Account that represent Default Charges collected on or in
respect of the Trust Mortgage Loan or REO Trust Mortgage Loan, as
applicable, as to which the subject Advance was made, as and to the extent
contemplated by Section 3.26;
(ix) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, any Fiscal Agent, the Trustee,
itself and the Special Servicer, 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
(or, in the case of a Servicing Advance, made thereby with respect to a
Serviced Loan Combination), 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 Pool Custodial Account are not sufficient
to make such payment as contemplated by the immediately preceding clause
(viii); provided that, if such Advance relates to any Serviced Combination
Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto (or, in the case of Servicing Advance, relates to any Serviced
Loan Combination), such payment pursuant to this clause (ix) is to be made
only to the extent that the funds on deposit in the related Loan
Combination Custodial Account are not
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sufficient to make such payment as contemplated by Section 3.05A and such
payment cannot be made out of the Pool Custodial Account pursuant to
clause (xviii) of this Section 3.05(a);
(x) to pay, out of amounts on deposit in the Pool Custodial
Account that represent Default Charges collected on or in respect of the
Trust Mortgage Loan or REO Trust 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 Trust Mortgage Loan or
REO Trust Mortgage Loan and that, if paid from collections on the Mortgage
Pool other than Default Charges collected with respect to such Trust
Mortgage Loan or REO Trust Mortgage Loan, would constitute an Additional
Trust Fund Expense, as and to the extent contemplated by Section 3.26;
(xi) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool 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 Administered 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);
provided that, in the case of a Mortgaged Property that relates to a
Serviced Loan Combination, such payment pursuant to this clause (xi) is to
be made only to the extent that (X) it would not ultimately be payable out
of collections on or in respect of such Loan Combination or (Y) it is in
the best interests of the Certificateholders;
(xii) to pay itself, as additional master servicing compensation
in accordance with Section 3.11(b), any amounts on deposit in the Pool
Custodial Account that represent (A) interest and investment income earned
in respect of amounts held in the Pool Custodial Account as provided in
Section 3.06(b), but only to the extent of the Net Investment Earnings
with respect to the Pool Custodial Account for any related Investment
Period, (B) Prepayment Interest Excesses collected on the Mortgage Pool
and (C) Net Default Charges (after application pursuant to Section 3.26)
actually Received by the Trust that accrued in respect of an Outside
Serviced Trust Mortgage Loan or Performing Serviced Trust 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 Pool Custodial Account that represent Net Default Charges (after
application to cover such other payments and reimbursements as are
provided for under Section 3.26) actually collected that accrued in
respect of a Specially Serviced Trust Mortgage Loan and/or an REO Trust
Mortgage Loan that relates to an Administered 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 of general collections on the Mortgage
Pool on deposit in the Pool Custodial Account, any amounts payable to any
such Person pursuant to Section 6.03; provided that such payment does not
relate solely to a Serviced Non-Trust Mortgage Loan or any successor REO
Mortgage Loan with respect thereto;
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(xiv) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, for (A) the cost of the Opinion of
Counsel contemplated by Section 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); provided that, in the cases
of clauses (xiv)(A) and (xiv)(C), such payment shall be made from the Pool
Custodial Account only to the extent that it is not otherwise paid from
the related Loan Combination Custodial Account by the Trust Master
Servicer Remittance Date following the applicable Collection Period in
which the expense is incurred;
(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 Trust Mortgage Loan, if any, previously purchased
by such Person pursuant to this Agreement, all amounts received thereon
subsequent to the date of purchase that have been deposited in the Pool
Custodial Account;
(xvi) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account,
any servicing expenses, that would, if advanced, constitute Nonrecoverable
Servicing Advances (other than servicing expenses that relate solely to a
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto);
(xvii) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, to a Non-Trust Mortgage Loan
Noteholder or an Outside Servicer, any amount (other than normal monthly
payments) specifically payable or reimbursable to such party by the Trust,
in its capacity as holder of the related Trust Mortgage Loan or REO Trust
Mortgage Loan that is part of the relevant Loan Combination, pursuant to
the terms of the related Co-Lender Agreement;
(xviii) to reimburse or pay any Fiscal Agent, the Trustee, the
Master Servicer and/or the Special Servicer, as applicable, for
unreimbursed Advances, unpaid Liquidation Fees, unpaid Special Servicing
Fees, unpaid Workout Fees, unpaid Master Servicing Fees and/or any unpaid
interest on any Advances, but only if and to the extent that such items
relate solely to a Serviced Combination Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto, each such party's
respective rights to reimbursement pursuant to this clause (xviii) to be
limited to amounts on deposit in the Pool Custodial Account that represent
Liquidation Proceeds derived from a Permitted Purchase of such Serviced
Combination Trust Mortgage Loan or the Trust's interest in any related
Administered REO Property; provided that, such items may only be
reimbursed to any party pursuant to this clause (xviii) if and to the
extent that such items have not been or are not simultaneously being
reimbursed to such party pursuant to Section 3.05A; and provided, further,
that, in the case of a sale of a Serviced Combination Trust Mortgage Loan
with respect to which the Purchase Price therefor has been reduced by
amounts set forth in the next to last proviso of the definition of
"Purchase Price", the amount of any unpaid Master Servicing Fees,
unreimbursed Advances and/or unpaid interest on Advances reimbursable to
any party pursuant to this clause (xviii) shall be reduced by any related
unpaid Master Servicing Fees, unreimbursed Advances and unpaid interest on
Advances in respect of the subject Serviced
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Combination Trust Mortgage Loan or REO Trust Mortgage Loan that have
served to so reduce such Purchase Price therefor and which, following the
purchase or sale from which the subject Liquidation Proceeds have been
derived, will continue to be payable or reimbursable under the related
Co-Lender Agreement and/or any successor servicing agreement with respect
to the related Serviced Loan Combination to the Master Servicer and/or the
Special Servicer (and which amounts shall no longer be payable hereunder);
(xix) in the event the Master Servicer determines, in accordance
with the Servicing Standard, with respect to an Outside Serviced Trust
Mortgage Loan, that it has received insufficient information from the
Outside Master Servicer to make a recoverability determination with
respect to required P&I Advances on that Outside Serviced Trust Mortgage
Loan, to pay, out of general collections on the Mortgage Pool on deposit
in the Pool Custodial Account, for costs incurred in connection with
obtaining an appraisal and/or other relevant information necessary to make
such determination;
(xx) on each Trust 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);
(xxi) to withdraw any amounts deposited by the Master Servicer in
the Pool Custodial Account in error; and
(xxii) to clear and terminate the Pool Custodial Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from the Pool Custodial Account pursuant to clauses (ii) through (xx)
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 Pool 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.
In connection with any payments required to be made to a Non-Trust
Mortgage Loan Noteholder or an Outside Servicer in accordance with Section
3.05(a)(xvii), the Master Servicer may request a written statement from an
authorized officer of such Non-Trust Mortgage Loan Noteholder or Outside
Servicer, as the case may be, describing the nature and amount of the item for
which such party is seeking payment or reimbursement and setting forth the
provision(s) of the related Co-Lender Agreement pursuant to which such party
believes it is entitled to reimbursement; provided that the Master Servicer may
not condition payments required to be made to a Non-Trust Mortgage Loan
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Noteholder or an Outside Servicer in accordance with Section 3.05(a)(xvii) upon
receipt of such a written statement (other than as permitted under the related
Co-Lender Agreement); and provided, further, that to the extent such a written
statement from an officer of the subject Non-Trust Mortgage Loan Noteholder or
Outside Servicer, as the case may be, is received by the Master Servicer, the
Master Servicer may, absent manifest error, rely upon such statement as the
nature and amount of the item for which reimbursement is sought.
The Special Servicer shall keep and maintain separate accounting for
each Specially Serviced Trust Mortgage Loan and Administered REO Property, on a
loan-by-loan basis, for the purpose of justifying any request for withdrawal
from the Pool Custodial Account. With respect to each Trust Mortgage Loan for
which it makes an Advance, each of the Trustee and any Fiscal Agent shall keep
and maintain separate accounting, on a loan-by-loan basis, for the purpose of
justifying any request for withdrawal from the Pool Custodial Account for
reimbursements of Advances or 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 and the Floating
Rate Accounts 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;
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(vii) to transfer Interest Reserve Amounts in respect of the
Interest Reserve Mortgage Loans and any Interest Reserve REO Mortgage
Loans to the Interest Reserve Account as and when required by Section
3.04(c);
(viii) to pay itself any Net Investment Earnings with respect to
the Collection Account for any related Investment Period; and
(ix) 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 (viii) above from the Collection Account prior to making distributions
to Certificateholders on such Distribution Date.
(c) On each Trust Master Servicer Remittance Date in March
(commencing in March 2008), the Trustee shall withdraw from the Interest Reserve
Account and deposit in the Collection Account all Interest Reserve Amounts that
have been deposited in the Interest Reserve Account in respect of the Interest
Reserve Mortgage Loans and any Interest Reserve REO Mortgage Loans during
January and/or February of the same year in accordance with Section 3.04(c). On
each Distribution Date, the Trustee may withdraw from the Interest Reserve
Account and pay itself any Net Investment Earnings with respect to the Interest
Reserve Account for the then most recently ended related Investment Period.
(d) On each Trust 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
and the Group FL REMIC III Regular Interests 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
Trust 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 Trust 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
Pool 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
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with respect to such Trust 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 Trust
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 Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto; and
(iv) following the occurrence of a Liquidation Event with respect
to such Trust Mortgage Loan or any related REO Property, to cover the
items contemplated by the immediately preceding clauses (i)-(iii) in
respect of any other Trust Mortgage Loan or REO Trust Mortgage Loan.
Any Loss of Value Payments transferred to the Pool 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 Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto for which such Loss of Value Payments were
received; and any Loss of Value Payments transferred to the Pool 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 Trust Mortgage Loan or REO Trust
Mortgage Loan for which such Loss of Value Payments are being transferred to the
Pool Custodial Account to cover an item contemplated by clauses (i)-(iii) of the
prior paragraph.
On the Trust 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 and the Floating Rate Grantor Trusts with respect to the
Group FL REMIC III Regular Interests in accordance with Section 4.01 and/or
Section 9.01(a), all Distributable Certificate Interest then payable thereto,
together with the aggregate of the Class Principal Balances of, and all Loss
Reimbursement Amounts for such Final Distribution Date in respect of, the
respective Classes of the Regular Interest Certificates and Group FL REMIC III
Regular Interests, 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.
(f) The Trustee may, from time to time, make withdrawals from a
Floating Rate Account for (but only for) the following purposes:
(i) to make payments to the related Swap Counterparty pursuant
to Section 3.29;
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(ii) to make distributions to the Class A-2FL Certificateholders
or the Class A-MFL Certificateholders, as applicable, on each Distribution
Date pursuant to Section 4.01;
(iii) to pay itself Net Investment Earnings earned on funds held
in such Floating Rate Account;
(iv) to pay to the Persons entitled thereto any amounts deposited
in such Floating Rate Account in error; and
(v) to clear and terminate such Floating Rate Account pursuant
to Section 9.01.
It is hereby acknowledged that amounts on deposit in a Floating Rate
Account as of any Distribution Date and available for such purposes shall be
applied to make any payments to the related Swap Counterparty pursuant to, and
subject to the limitations and conditions set forth in, Section 3.29, prior to
being applied to make distributions to the Class A-2FL Certificateholders or the
Class A-MFL Certificateholders, as applicable, pursuant to Section 4.01.
SECTION 3.05A. Permitted Withdrawals From the Loan Combination
Custodial Accounts.
(a) The Master Servicer may, from time to time, make withdrawals
from the Loan Combination Custodial Account related to each Serviced Loan
Combination for any of the following purposes (the order set forth below not
constituting an order of priority for such withdrawals, except to the extent
expressly provided in the related Co-Lender Agreement):
(i) to make remittances each month, on or before the related
Loan Combination Master Servicer Remittance Date occurring in such month
(and at such other times as may be required under the related Co-Lender
Agreement), to the respective holders of the Mortgage Loans or any
successor REO Mortgage Loans contained in the subject Serviced Loan
Combination, including the Trust (as holder of the Trust Mortgage Loan
contained in the subject Serviced Loan Combination or any successor REO
Trust Mortgage Loan with respect thereto, as applicable), all in
accordance with the related Co-Lender Agreement, such remittances to the
Trust to be made into the Pool Custodial Account;
(ii) to reimburse, (A) first, any Fiscal Agent, second, the
Trustee, and last, itself, in that order, for xxxxxxxxxxxx X&X Advances
made by such party (with its own funds) with respect to the Trust Mortgage
Loan included in the subject Serviced Loan Combination or any successor
REO Trust Mortgage Loan with respect thereto, and (B) in the case of a
Serviced Pari Passu Loan Combination, if the related Serviced Pari Passu
Non-Trust Mortgage Loan has been included in a commercial mortgage
securitization, the applicable party under the related Non-Trust Mortgage
Loan Securitization Agreement for any delinquency advance (comparable to a
P&I Advance) made by such party (with its own funds) with respect to the
related Serviced Pari Passu Non-Trust Mortgage Loan or any successor REO
Mortgage Loan with respect thereto, any such reimbursement pursuant to
this clause (ii) with respect to any such P&I Advance or comparable
delinquency advance to be made out of amounts on deposit in the related
Loan Combination Custodial Account that would otherwise be distributable
to the Trust or the related Non-Trust Mortgage Loan Noteholder, as
applicable, as late collections of interest on and/or principal of the
Mortgage Loan included in the subject Serviced Loan Combination or any
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successor REO Mortgage Loan with respect thereto, as the case may be,
without regard to such P&I Advance or comparable delinquency advance, as
the case may be, such reimbursement to be deducted (if and to the extent
so provided in the related Co-Lender Agreement) from the amounts otherwise
so distributable;
(iii) to reimburse, first, any Fiscal Agent, second, the Trustee,
third, itself and, last, the Special Servicer, in that order, for any
unreimbursed Servicing Advances made thereby with respect to the subject
Serviced Loan Combination or any related REO Property, any such party's
respective rights to reimbursement pursuant to this clause (iii) with
respect to any Servicing Advance being limited to amounts on deposit in
the related Loan Combination 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 related
Loan Combination 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 subject Serviced Loan
Combination or any related REO Property (with, if and to the extent
applicable under the related Co-Lender Agreement, a corresponding
allocation of such Servicing Advance and the reimbursement thereof to one
or more of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto, and
a corresponding deduction of such Servicing Advance from the amounts
otherwise distributable under the related Co-Lender Agreement to one or
more of the respective holders of the Mortgage Loans comprising the
subject Serviced Loan Combination or any successor REO Mortgage Loans with
respect thereto, all in accordance with the related Co-Lender Agreement,
and taking into account the subordination of any Serviced Subordinate
Non-Trust Mortgage Loan(s) included in the subject Serviced Loan
Combination or any successor REO Mortgage Loan(s) with respect thereto;
(iv) in the case of a Serviced Pari Passu Loan Combination, to
pay any Fiscal Agent, the Trustee and itself and, if any related Serviced
Pari Passu Non-Trust Mortgage Loan has been included in a commercial
mortgage securitization, the applicable party under the related Non-Trust
Mortgage Loan Securitization Agreement, for any unpaid interest accrued
and payable hereunder or under such Non-Trust Mortgage Loan Securitization
Agreement, as applicable, on any P&I Advance made thereby under this
Agreement on the related Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto or on any delinquency advance
comparable to a P&I Advance made thereby under the applicable Non-Trust
Mortgage Loan Securitization Agreement with respect to any related
Serviced Pari Passu Non-Trust Mortgage Loan or any successor REO Mortgage
Loan with respect thereto, any such payment (as and to the extent provided
in the related Co-Lender Agreement) to be made pursuant to this clause
(iv) out of: first, any amounts on deposit in the related Loan Combination
Custodial Account that would otherwise be distributable under the related
Co-Lender Agreement to the holders of the Mortgage Loans comprising the
subject Serviced Loan Combination or any successor REO Mortgage Loans with
respect thereto as Default Charges on their respective Mortgage Loans or
any successor REO Mortgage Loans with respect thereto, all in accordance
with Section 3.26, with such payment to be deducted from the amounts
otherwise so distributable; second, to the maximum extent permitted by the
related Co-Lender Agreement, any amounts on deposit in the related Loan
Combination Custodial Account that would otherwise be distributable under
the related Co-Lender Agreement to the related Non-Trust Loan
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Noteholder(s) with respect to any related Serviced Subordinate Non-Trust
Mortgage Loan(s) or any successor REO Mortgage Loan(s) with respect
thereto as collections of interest on and/or principal of, or any other
relevant amounts with respect to, such Serviced Subordinate Non-Trust
Mortgage Loan(s) or any successor REO Mortgage Loan(s) with respect
thereto, with such payment to be deducted (if and to the extent so
provided in the related Co-Lender Agreement) from such amounts otherwise
so distributable; and third, any remaining amounts on deposit in the
related Loan Combination Custodial Account that would otherwise be
distributable under the related Co-Lender Agreement to the holder of the
subject Serviced Mortgage Loan or any successor REO Mortgage Loan with
respect thereto as to which the subject P&I Advance or other comparable
delinquency advance was made (with, if and to the extent applicable under
the related Co-Lender Agreement, a corresponding allocation of the
remaining portion of such interest on such P&I Advance or other comparable
delinquency advance and the payment thereof to such subject Serviced
Mortgage Loan or any successor REO Mortgage Loan with respect thereto, and
a corresponding deduction of the remaining portion of such interest on
such P&I Advance or other comparable delinquency advance from such
remaining amounts otherwise so distributable under the related Co-Lender
Agreement to the holder of such subject Serviced Mortgage Loan or any
successor REO Mortgage Loan with respect thereto, all in accordance with
the related Co-Lender Agreement); provided that, in the case of subclauses
second and third of this clause (iv), such payment shall be made only to
the extent the related P&I Advance or other comparable delinquency advance
has been or is contemporaneously being reimbursed and only insofar as such
unpaid interest is not then payable pursuant to a withdrawal made in
accordance with subclause first of this clause (iv);
(v) in the case of any Serviced A/B Loan Combination, to pay any
Fiscal Agent, the Trustee and itself for any unpaid interest accrued and
payable hereunder on any P&I Advance made thereby under this Agreement on
the Trust Mortgage Loan included in the subject Serviced Loan Combination
or any successor REO Trust Mortgage Loan with respect thereto, any such
payment (as and to the extent provided in the related Co-Lender Agreement)
to be made pursuant to this clause (v) out of: first, any amounts on
deposit in the related Loan Combination Custodial Account that would
otherwise be distributable under the related Co-Lender Agreement to the
holders of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto as
Default Charges on their respective Mortgage Loans or any successor REO
Mortgage Loans with respect thereto, all in accordance with Section 3.26,
with such payment to be deducted from the amounts otherwise so
distributable; and second, to the maximum extent permitted by the related
Co-Lender Agreement, any amounts on deposit in the related Loan
Combination Custodial Account that would otherwise be distributable under
the related Co-Lender Agreement to the related Non-Trust Mortgage Loan
Noteholder(s) as collections of interest on and/or principal of, or any
other relevant amounts with respect to, the Serviced Subordinate Non-Trust
Mortgage Loan(s) included in the subject Serviced Loan Combination or any
successor REO Mortgage Loan(s) with respect thereto, with such payment to
be deducted (if and to the extent so provided in the related Co-Lender
Agreement) from such amounts otherwise so distributable; and third, any
remaining amounts on deposit in the related Loan Combination Custodial
Account that would otherwise be distributable under the related Co-Lender
Agreement to the holders of the Mortgage Loans comprising the subject
Serviced Loan Combination or any successor REO Mortgage Loans with respect
thereto (with, if and to the extent applicable under the related Co-Lender
Agreement, a corresponding allocation of the remaining portion of such
interest on such P&I
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Advance and the payment thereof to one or more of the Mortgage Loans
comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto, and a corresponding deduction of the
remaining portion of such interest on such P&I Advance from such remaining
amounts otherwise so distributable under the related Co-Lender Agreement
to one or more of the respective holders of the Mortgage Loans comprising
the subject Serviced Loan Combination or any successor REO Mortgage Loans
with respect thereto, all in accordance with the related Co-Lender
Agreement, and taking into account the subordination of the Serviced
Subordinate Non-Trust Mortgage Loan(s) included in the subject Serviced
Loan Combination or any successor REO Mortgage Loan(s) with respect
thereto); provided that, in the case of subclauses second and third of
this clause (v), such payment shall be made only to the extent the related
P&I Advance has been or is contemporaneously being reimbursed and only
insofar as such unpaid interest is not then payable pursuant to a
withdrawal made in accordance with subclause first of this clause (v);
(vi) to pay any Fiscal Agent, the Trustee, itself and the Special
Servicer for any unpaid interest accrued and payable hereunder on any
Servicing Advance made thereby under this Agreement with respect to the
subject Serviced Loan Combination or any related Administered REO
Property, any such payment (as and to the extent provided in the related
Co-Lender Agreement) to be made pursuant to this clause (vi) out of:
first, any amounts on deposit in the related Loan Combination Custodial
Account that would otherwise be distributable under the related Co-Lender
Agreement to the holders of the Mortgage Loans comprising the subject
Serviced Loan Combination or any successor REO Mortgage Loans with respect
thereto as Default Charges on their respective Mortgage Loans or any
successor REO Mortgage Loans with respect thereto, all in accordance with
Section 3.26, with such payment to be deducted from such amounts otherwise
so distributable; second, to the maximum extent permitted by the related
Co-Lender Agreement, any amounts on deposit in the related Loan
Combination Custodial Account that would otherwise be distributable under
the related Co-Lender Agreement to the related Non-Trust Mortgage Loan
Noteholder(s), as collections of interest on and/or principal of, or any
other relevant amounts with respect to, any Serviced Subordinate Non-Trust
Mortgage Loan(s) included in the subject Serviced Loan Combination or any
successor REO Mortgage Loan(s) with respect thereto, with such payment to
be deducted (if and to the extent so provided in the related Co-Lender
Agreement) from such amounts otherwise so distributable; and third, any
remaining amounts on deposit in the related Loan Combination Custodial
Account that would otherwise be distributable under the related Co-Lender
Agreement to the holders of the Mortgage Loans comprising the subject
Serviced Loan Combination or any successor REO Mortgage Loans with respect
thereto (with, if and to the extent applicable under the related Co-Lender
Agreement, a corresponding allocation of the remaining portion of such
interest on such Servicing Advance and the payment thereof to one or more
of the Mortgage Loans comprising the subject Serviced Loan Combination or
any successor REO Mortgage Loans with respect thereto, and a corresponding
deduction of the remaining portion of such interest on such Servicing
Advance from such remaining amounts otherwise so distributable under the
related Co-Lender Agreement to one or more of the respective holders of
the Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, all in accordance with
the related Co-Lender Agreement, and taking into account the subordination
of any Serviced Subordinate Non-Trust Mortgage Loan(s) included in the
subject Serviced Loan Combination or any successor REO Mortgage Loan(s)
with respect thereto); provided that, in the case of subclause second and
third of this clause (vi), such payment
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shall be made only to the extent the related Servicing Advance has been or
is contemporaneously being reimbursed and only insofar as such unpaid
interest is not then payable pursuant to a withdrawal made in accordance
with subclause first above of this clause (vi);
(vii) to pay to itself any earned and unpaid Master Servicing Fees
with respect to each Mortgage Loan and successor REO Mortgage Loan
contained in the subject Serviced Loan Combination, the right of the
Master Servicer to payment pursuant to this clause (vii) with respect to
any such Mortgage Loan or successor REO Mortgage Loan being limited to
amounts on deposit in the related Loan Combination Custodial Account that
were received on or in respect of such Mortgage Loan or such successor REO
Mortgage Loan, as the case may be, and are allocable as a recovery of
interest thereon;
(viii) to reimburse, first, any Fiscal Agent, second, the Trustee,
and last, itself, in that order, for any xxxxxxxxxxxx X&X Advances made by
such party (with its own funds) with respect to the Trust Mortgage Loan
included in the subject Serviced Loan Combination or any successor REO
Trust Mortgage Loan with respect thereto that such party has determined
are Nonrecoverable Advances, any such reimbursement (as and to the extent
provided in the related Co-Lender Agreement) to be made pursuant to this
clause (viii) out of: first, to the maximum extent permitted under the
related Co-Lender Agreement, any amounts on deposit in the related Loan
Combination Custodial Account that would otherwise be distributable under
the related Co-Lender Agreement to the related Non-Trust Mortgage Loan
Noteholder(s), as collections of interest on and/or principal of, or any
other relevant amounts with respect to, any Serviced Subordinate Non-Trust
Mortgage Loan(s) included in the subject Serviced Loan Combination or any
successor REO Mortgage Loan(s) with respect thereto, with such payment to
be deducted (if and to the extent so provided in the related Co-Lender
Agreement) from such amounts otherwise so distributable; and second, any
remaining amounts on deposit in the related Loan Combination Custodial
Account that would otherwise be distributable under the related Co-Lender
Agreement to the holders of the Mortgage Loans comprising the subject
Serviced Loan Combination or any successor REO Mortgage Loans with respect
thereto (with, if and to the extent applicable under the related Co-Lender
Agreement, a corresponding allocation of the remaining portion of such P&I
Advances and the reimbursement thereof to one or more of the Mortgage
Loans comprising the subject Serviced Loan Combination or any successor
REO Mortgage Loans with respect thereto, and a corresponding deduction of
the remaining portion of such P&I Advances from such remaining amounts
otherwise so distributable under the related Co-Lender Agreement to one or
more of the respective holders of the Mortgage Loans comprising the
subject Serviced Loan Combination or any successor REO Mortgage Loans with
respect thereto, all in accordance with the related Co-Lender Agreement,
and taking into account the subordination of any Serviced Subordinate
Non-Trust Mortgage Loan(s) included in the subject Serviced Loan
Combination or any successor REO Mortgage Loan(s) with respect thereto);
(ix) to reimburse, first, any Fiscal Agent, second, the Trustee,
third, itself, and last, the Special Servicer, in that order, for any
unreimbursed Servicing Advance made by such party (with its own funds)
with respect to the subject Serviced Loan Combination or any related
Administered REO Property that such party has determined is a
Nonrecoverable Advance, any such reimbursement (as and to the extent
provided in the related Co-Lender Agreement) to be made pursuant to this
clause (ix) out of: first, to the maximum extent permitted by the related
Co-Lender Agreement, amounts on deposit in the related Loan Combination
Custodial Account
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that would otherwise be distributable under the related Co-Lender
Agreement to the related Non-Trust Mortgage Loan Noteholder(s) as
collections of interest on and/or principal of, or any other relevant
amounts with respect to, any Serviced Subordinate Non-Trust Mortgage
Loan(s) included in the subject Serviced Loan Combination or any successor
REO Mortgage Loan(s) with respect thereto, with such reimbursement to be
deducted (if and to the extent so provided in the related Co-Lender
Agreement) from the amounts otherwise so distributable; and, second, any
remaining amounts on deposit in the related Loan Combination Custodial
Account that would otherwise be distributable under the related Co-Lender
Agreement to the holders of the Mortgage Loans comprising the subject
Serviced Loan Combination or any successor REO Mortgage Loans with respect
thereto (with, if and to the extent applicable under the related Co-Lender
Agreement, a corresponding allocation of the remaining portion of such
Servicing Advance and the reimbursement thereof to one or more of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, and a corresponding
deduction of the remaining portion of such Servicing Advance from such
remaining amounts otherwise so distributable under the related Co-Lender
Agreement to one or more of the respective holders of the Mortgage Loans
comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto, all in accordance with the related
Co-Lender Agreement, and taking into account the subordination of any
Serviced Subordinate Non-Trust Mortgage Loan(s) included in the subject
Serviced Loan Combination or any successor REO Mortgage Loan(s) with
respect thereto);
(x) to pay to the Special Servicer any earned and unpaid Special
Servicing Fees in respect of the subject Serviced Loan Combination, any
such payment (as and to the extent provided in the related Co-Lender
Agreement) to be made pursuant to this clause (x) out of: first, to the
maximum extent permitted under the related Co-Lender Agreement, any
amounts on deposit in the related Loan Combination Custodial Account that
would otherwise be distributable under the related Co-Lender Agreement to
the related Non-Trust Mortgage Loan Noteholder(s) as collections of
interest on and/or principal of, or any other relevant amounts with
respect to, any Serviced Subordinate Non-Trust Mortgage Loan(s) included
in the subject Serviced Loan Combination or any successor REO Mortgage
Loan(s) with respect thereto, with such payment to be deducted (if and to
the extent so provided in the related Co-Lender Agreement) from such
amounts otherwise so distributable; and, second, any remaining amounts on
deposit in the related Loan Combination Custodial Account that would
otherwise be distributable under the related Co-Lender Agreement to the
holders of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto
(with, if and to the extent applicable under the related Co-Lender
Agreement, a corresponding allocation of the remaining portion of such
Special Servicing Fees and the payment thereof to one or more of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, and a corresponding
deduction of the remaining portion of such Special Servicing Fees from
such remaining amounts otherwise so distributable under the related
Co-Lender Agreement to one or more of the respective holders of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, all in accordance with
the related Co-Lender Agreement, and taking into account the subordination
of any Serviced Subordinate Non-Trust Mortgage Loan(s) included in the
subject Serviced Loan Combination or any successor REO Mortgage Loan(s)
with respect thereto);
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(xi) to pay the Special Servicer (or, if applicable, a
predecessor Special Servicer) earned and unpaid Workout Fees and
Liquidation Fees in respect of the subject Serviced Loan Combination, in
the amounts and, subject to the following priority, from the sources
specified in Section 3.11(c) out of: first, to the maximum extent
permitted under the related Co-Lender Agreement, any amounts on deposit in
the related Loan Combination Custodial Account that would otherwise be
distributable under the related Co-Lender Agreement to the related
Non-Trust Mortgage Loan Noteholder(s) as collections of interest on and/or
principal of, or any other relevant amounts with respect to, any Serviced
Subordinate Non-Trust Mortgage Loan(s) included in the subject Serviced
Loan Combination or any successor REO Mortgage Loan(s) with respect
thereto, with such payment to be deducted (if and to the extent so
provided in the related Co-Lender Agreement) from such amounts otherwise
so distributable; and, second, any remaining amounts on deposit in the
related Loan Combination Custodial Account that would otherwise be
distributable under the related Co-Lender Agreement to the holders of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto (with, if and to the
extent applicable under the related Co-Lender Agreement, a corresponding
allocation of the remaining portion of such Workout Fees and/or
Liquidation Fees and the payment thereof to one or more of the Mortgage
Loans comprising the subject Serviced Loan Combination or any successor
REO Mortgage Loans with respect thereto, and a corresponding deduction of
the remaining portion of such Workout Fees and/or Liquidation Fees from
such remaining amounts otherwise so distributable under the related
Co-Lender Agreement to one or more of the respective holders of the
Mortgage Loans comprising the subject Serviced Loan Combination or any
successor REO Mortgage Loans with respect thereto, all in accordance with
the related Co-Lender Agreement, and taking into account the subordination
of any Serviced Subordinate Non-Trust Mortgage Loan(s) included in the
subject Serviced Loan Combination or any successor REO Mortgage Loan(s)
with respect thereto);
(xii) to pay for (A) costs and expenses incurred with respect to
the Mortgaged Property securing the subject Serviced Loan Combination
pursuant to Section 3.09(c) (other than the costs of environmental
testing, which are to be covered by, and reimbursable as, a Servicing
Advance), (B) the costs and expenses of obtaining appraisals of such
Mortgaged Property pursuant to Section 3.11(h), 3.18 or Section 4.03(c),
as applicable, (C) any servicing expenses incurred with respect to the
subject Serviced Loan Combination or any related REO Property, that would,
if advanced, constitute Nonrecoverable Servicing Advances, in accordance
with Section 3.11(i), and (D) the fees of any Independent Contractor
retained with respect to any Administered REO Property related to the
subject Serviced Loan Combination pursuant to Section 3.17(d) (to the
extent that it has not paid itself such fees prior to remitting
collections on such Administered REO Property to the Special Servicer),
any such payment (as and to the extent provided in the related Co-Lender
Agreement) to be made pursuant to this clause (xii) out of: first, to the
maximum extent permitted under the related Co-Lender Agreement, any
amounts on deposit in the related Loan Combination Custodial Account that
would otherwise be distributable under the related Co-Lender Agreement to
the related Non-Trust Mortgage Loan Noteholder(s) as collections of
interest on and/or principal of, or any other relevant amounts with
respect to, any Serviced Subordinate Non-Trust Mortgage Loan(s) included
in the subject Serviced Loan Combination or any successor REO Mortgage
Loan(s) with respect thereto, with such payment to be deducted (if and to
the extent so provided in the related Co-Lender Agreement) from such
amounts otherwise so distributable; and, second, any remaining amounts on
deposit in the related Loan Combination Custodial Account that would
otherwise be distributable under the related
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Co-Lender Agreement to the holders of the Mortgage Loans comprising the
subject Serviced Loan Combination or any successor REO Mortgage Loans with
respect thereto (with, if and to the extent applicable under the related
Co-Lender Agreement, a corresponding allocation of the remaining portion
of such items specified in subclauses (A)-(D) of this clause (xii) and the
payment thereof to one or more of the Mortgage Loans comprising the
subject Serviced Loan Combination or any successor REO Mortgage Loans with
respect thereto, and a corresponding deduction of the remaining portion of
such items specified in subclauses (A)-(D) of this clause (xii) from such
remaining amounts otherwise so distributable under the related Co-Lender
Agreement to one or more of the respective holders of the Mortgage Loans
comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto, all in accordance with the related
Co-Lender Agreement, and taking into account the subordination of any
Serviced Subordinate Non-Trust Mortgage Loan(s) included in the subject
Serviced Loan Combination or any successor REO Mortgage Loan(s) with
respect thereto);
(xiii) to pay itself, as additional master servicing compensation
in accordance with Section 3.11(b), interest and investment income earned
in respect of amounts held in the related Loan Combination Custodial
Account as provided in Section 3.06(b), but only to the extent of the Net
Investment Earnings with respect to the related Loan Combination Custodial
Account for any related Investment Period;
(xiv) 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, any amounts payable to any such Person
pursuant to Section 6.03, to the extent such amounts relate to the subject
Loan Combination, any such payment (as and to the extent provided in the
related Co-Lender Agreement) to be made pursuant to this clause (xiv) out
of: first, to the maximum extent permitted under the related Co-Lender
Agreement, any amounts on deposit in the related Loan Combination
Custodial Account that would otherwise be distributable under the related
Co-Lender Agreement to the related Non-Trust Mortgage Loan Noteholder(s)
as collections of interest on and/or principal of, or any other relevant
amounts with respect to, any Serviced Subordinate Non-Trust Mortgage
Loan(s) included in the subject Serviced Loan Combination or any successor
REO Mortgage Loan(s) with respect thereto, with such payment to be
deducted (if and to the extent so provided in the related Co-Lender
Agreement) from such amounts otherwise so distributable; and, second, any
remaining amounts on deposit in the related Loan Combination Custodial
Account that would otherwise be distributable under the related Co-Lender
Agreement to the holders of the Mortgage Loans comprising the subject
Serviced Loan Combination or any successor REO Mortgage Loans with respect
thereto (with, if and to the extent applicable under the related Co-Lender
Agreement, a corresponding allocation of the remaining portion of such
amounts payable pursuant to Section 6.03 and the payment thereof to one or
more of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto, and
a corresponding deduction of the remaining portion of such amounts payable
pursuant to Section 6.03 from such remaining amounts otherwise so
distributable under the related Co-Lender Agreement to one or more of the
respective holders of the Mortgage Loans comprising the subject Serviced
Loan Combination or any successor REO Mortgage Loans with respect thereto,
all in accordance with the related Co-Lender Agreement, and taking into
account the subordination of any Serviced Subordinate Non-Trust Mortgage
Loan(s) included in the subject Serviced Loan Combination or any successor
REO Mortgage Loan(s) with respect thereto);
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(xv) to pay (out of amounts otherwise payable thereto under the
related Co-Lender Agreement on any related Loan Combination Master
Servicer Remittance Date) the respective shares of the holders of the
Mortgage Loans or any REO Mortgage Loans contained in the subject Serviced
Loan Combination of the cost of recording of the related Co-Lender
Agreement in accordance with such Co-Lender Agreement;
(xvi) to pay for the cost of recording this Agreement and the cost
of any corresponding Opinion of Counsel, insofar as such recordation is
for the benefit of the holders of the Mortgage Loans or any successor REO
Mortgage Loans contained in the subject Serviced Loan Combination, any
such payment (as and to the extent provided in the related Co-Lender
Agreement) to be made pursuant to this clause (xvi) out of: first, to the
maximum extent permitted under the related Co-Lender Agreement, any
amounts on deposit in the related Loan Combination Custodial Account that
would otherwise be distributable under the related Co-Lender Agreement to
the related Non-Trust Mortgage Loan Noteholder(s) as collections of
interest on and/or principal of, or any other relevant amounts with
respect to, any Serviced Subordinate Non-Trust Mortgage Loan(s) included
in the subject Serviced Loan Combination or any successor REO Mortgage
Loan(s) with respect thereto, with such payment to be deducted (if and to
the extent so provided in the related Co-Lender Agreement) from such
amounts otherwise so distributable; and, second, any remaining amounts on
deposit in the related Loan Combination Custodial Account that would
otherwise be distributable under the related Co-Lender Agreement to the
holders of the Mortgage Loans comprising the subject Serviced Loan
Combination or any successor REO Mortgage Loans with respect thereto
(with, if and to the extent applicable under the related Co-Lender
Agreement, a corresponding allocation of the remaining portion of such
costs and the payment thereof to one or more of the Mortgage Loans
comprising the subject Serviced Loan Combination or any successor REO
Mortgage Loans with respect thereto, and a corresponding deduction of the
remaining portion of such costs from such remaining amounts otherwise so
distributable under the related Co-Lender Agreement to one or more of the
respective holders of the Mortgage Loans comprising the subject Serviced
Loan Combination or any successor REO Mortgage Loans with respect thereto,
all in accordance with the related Co-Lender Agreement, and taking into
account the subordination of any Serviced Subordinate Non-Trust Mortgage
Loan(s) included in the subject Serviced Loan Combination or any successor
REO Mortgage Loan(s) with respect thereto);
(xvii) to the extent (A) consistent with the Co-Lender Agreement
for the subject Serviced Loan Combination and (B) not otherwise included
among the payments contemplated by clause (i) above of this Section 3.05A,
to transfer to the Pool Custodial Account the aggregate of all Additional
Trust Fund Expenses and/or any other amounts relating to the subject
Serviced Loan Combination, that have been previously paid out of the Pool
Custodial Account pursuant to Section 3.05(a) and that, if not previously
paid out of the Pool Custodial Account in accordance with Section 3.05(a),
would have been otherwise payable from such Loan Combination Custodial
Account under this Section 3.05A;
(xviii) if the related Co-Lender Agreement permits any related
Non-Trust Mortgage Loan Noteholder to cure defaults under the Trust
Mortgage Loan included in the subject Serviced Loan Combination, to
reimburse any amounts paid by the applicable Non-Trust Mortgage Loan
Noteholder in connection with exercising such cure rights, such Non-Trust
Mortgage Loan Noteholder's right to reimbursement under this clause
(xviii) to be limited to
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amounts on deposit in the related Loan Combination Custodial Account that
represent collections on the subject Serviced Loan Combination that are
specifically allocable to such reimbursement in accordance with the
related Co-Lender Agreement; and
(xix) to clear and terminate such Loan Combination Custodial
Account at the termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records in connection with any withdrawal from each Loan Combination Custodial
Account pursuant to clauses (ii) through (xviii) of the preceding paragraph.
(b) The Master Servicer shall pay to each of the Special
Servicer (or to third-party contractors at the direction of the Special
Servicer), the Trustee or any Fiscal Agent, as applicable, from each Loan
Combination Custodial Account, amounts permitted to be paid thereto from such
account promptly upon receipt of a written statement of (i) a Servicing Officer
of the Special Servicer or (ii) a Responsible Officer of the Trustee or such
Fiscal Agent, as the case may be, in each case describing the item and amount to
which the Special Servicer (or such third-party contractor), the Trustee or such
Fiscal Agent, as the case may be, is entitled (unless such payment to the
Special Servicer, the Trustee or such Fiscal Agent, as the case may be, is
clearly required pursuant to this Agreement, in which case written statements
shall not be required). The Master Servicer may rely conclusively on any such
written statement and shall have no duty to re-calculate the amounts stated
therein. The parties seeking payment pursuant to this section shall each keep
and maintain separate accounting for the purpose of justifying any request for
withdrawal from each Loan Combination Custodial Account, on a loan-by-loan
basis.
In the case of each Serviced Loan Combination, the Master Servicer
shall remit or cause to be remitted to each Serviced Non-Trust Mortgage Loan
Noteholder, within one (1) Business Day of the Master Servicer's receipt
thereof, late collections (not including Principal Prepayments) received on the
related Serviced Non-Trust Mortgage Loan subsequent to the related Determination
Date therefor in any particular month (exclusive of any portion of such amount
payable or reimbursable to any third party in accordance in accordance with this
Agreement and the related Co-Lender Agreement), to the extent such amount is not
otherwise included or scheduled to be included in a normal monthly remittance
during such month to such Serviced Non-Trust Mortgage Loan Noteholder and in
respect of which an advance is required to be made or has been made by a service
provider of the related securitization trust.
To the extent (i) consistent with the Co-Lender Agreement for the
related Serviced Loan Combination and (ii) not otherwise included as part of the
normal monthly remittance, the Master Servicer shall transfer from each Loan
Combination Custodial Account to the Pool Custodial Account, promptly upon
amounts for such purposes becoming available in such Loan Combination Custodial
Account, the aggregate of all Additional Trust Fund Expenses and/or any other
amounts relating to such Serviced Loan Combination, that have been previously
paid out of the Pool Custodial Account pursuant to Section 3.05(a) and that, if
not previously paid out of the Pool Custodial Account in accordance with Section
3.05(a), would have been otherwise payable from such Loan Combination Custodial
Account under this Section 3.05A.
In accordance with the Co-Lender Agreement for each Serviced Loan
Combination, the Master Servicer shall, as and when required thereunder (or, if
no date is specified therein, on each
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applicable Loan Combination Master Servicer Remittance Date), withdraw from the
related Loan Combination Custodial Account and (i) transfer to the Pool
Custodial Account all amounts required to be remitted to the Trust with respect
to the Trust Mortgage Loan included in such Serviced Loan Combination and/or any
successor REO Trust Mortgage Loan with respect thereto, pursuant to the related
Co-Lender Agreement, and (ii) remit to the related Serviced Non-Trust Mortgage
Loan Noteholder(s) all amounts required to be remitted thereto with respect to
the Serviced Non-Trust Mortgage Loan(s) included in such Serviced Loan
Combination and/or any successor REO Mortgage Loan with respect thereto,
pursuant to the related Co-Lender Agreement. Monthly remittances to the
holder(s) of the Non-Trust Mortgage Loan(s) included in any Serviced Loan
Combination and/or any successor REO Mortgage Loan(s) with respect thereto
shall, in each case, be made as and when required under the related Co-Lender
Agreement (or, if no date is specified therein, on the applicable Loan
Combination Master Servicer Remittance Date) in accordance with the reasonable
instructions of such respective holder(s), including as to the method of payment
(which shall be by wire transfer of immediately available funds).
In connection with each Serviced Loan Combination that includes any
Specially Designated Securitized Non-Trust Mortgage Loan, if the Master Servicer
fails, on or before any applicable Loan Combination Master Servicer Remittance
Date for such Loan Combination, to remit to the holder of such Non-Trust
Mortgage Loan any amount(s) required to be so remitted to such holder hereunder
on or before such date, the Master Servicer shall pay to such holder, for the
account of such holder, interest, calculated at the federal funds rate (or such
other rate as may be provided for under the related Co-Lender Agreement), on
such amount(s) not timely remitted, from and including such Loan Combination
Master Servicer Remittance Date to but not including the date on which the
required remittance is made.
SECTION 3.06. Investment of Funds in the Collection Account,
the Servicing Accounts, the Reserve Accounts,
the Defeasance Deposit Account, the Custodial
Accounts, the REO Accounts, the Interest Reserve
Account, the Excess Liquidation Proceeds Account
and the Floating Rate Accounts.
(a) (i) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Defeasance
Deposit Account or a Custodial Account (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 an REO Account, and
(iii) the Trustee may direct (pursuant to a standing order or otherwise) any
depository institution maintaining the Collection Account, the Interest Reserve
Account, the Excess Liquidation Proceeds Account or any Floating Rate Account
(any of the foregoing accounts listed in this clause (iii), a "Trustee Account";
and any of the Master Servicer Accounts, the REO Accounts and Trustee Accounts,
an "Investment Account"), to invest, or if it is such depository institution,
may itself invest, the funds held therein (other than, in the case of the Pool
Custodial Account and the Collection Account, the Initial Deposits) 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
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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) and, in the case of a
Permitted Investment in any Investment Account solely related to a Serviced Loan
Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s). 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 Accounts), on behalf of the Trustee and, in
the case of any Investment Account solely related to a Serviced Loan
Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), or the
Trustee in its capacity as such (in the case of any Trustee 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 Accounts), 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 and, in the case of any Investment Account
solely related to a Serviced Loan Combination, the related Serviced Non-Trust
Mortgage Loan Noteholder(s), 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 Accounts)
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
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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), 3.04A(b), 3.05(a) or
3.05A, as applicable. Whether or not the Special Servicer directs the investment
of funds in any of the REO Accounts, interest and investment income realized on
funds deposited therein, to the extent of the Net Investment Earnings, if any,
for such Investment Account for each 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 applicable law) and (ii) the Custodial Accounts),
the Special Servicer (in the case of the REO Accounts) 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.
(e) Notwithstanding the foregoing, the Initial Deposits shall
remain uninvested.
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 Serviced Mortgage Loan and is not an REO Property, all
insurance coverage as is required under the related Mortgage Loan
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(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 or, in the case of a Mortgaged Property that
secures a Serviced Loan Combination, the Certificateholders and the related
Non-Trust Mortgage Loan Noteholder(s)) 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 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)
and 6.12(b), the related Serviced Loan Combination Controlling Party (in the
case of a Mortgaged Property that secures a Serviced Loan Combination) or the
Controlling Class Representative (in the case of any other Mortgaged Property
securing a Serviced 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 Administered 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 Administered REO Property located in or around
the region in which such Administered 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 Administered REO Property located in or
around the region in which such Administered 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 Serviced Mortgage Loans, including Specially Serviced Mortgage
Loans), and shall be in the
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name of the Special Servicer (in the case of insurance maintained in respect of
Administered 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 Serviced 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 or, with respect to a Serviced Loan
Combination, obtaining the consent under Section 6.12 of the Serviced Loan
Combination Controlling Party) the Master Servicer shall not be liable for any
loss related to the related Mortgagor's failure 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 accordance with Section 3.04(a)
or 3.04A(a), as applicable, in the case of amounts received in respect of a
Serviced 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 Administered
REO Property. Any cost incurred by the Master Servicer or the Special Servicer
in maintaining any such insurance (including any earthquake insurance maintained
at the request of a Serviced Loan Combination Controlling Party or the
Controlling Class Representative, as applicable) 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 Serviced
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 Serviced
Mortgage Loans and/or Administered 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 Administered
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
Administered REO Property an individual hazard insurance policy complying with
the requirements of Section 3.07(a), and there shall have been
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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
Serviced 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 and, in the case of a Mortgaged Property that secures a
Serviced Loan Combination, the related Non-Trust Mortgage Loan Noteholder(s),
claims under any such blanket policy or master force placed policy in a timely
fashion in accordance with the terms of such policy.
(c) 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 Administered 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 Servicer, at all times during the
term of this Agreement in which Specially Serviced Mortgage Loans and/or
Administered 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"
(or the equivalent) from 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 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).
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(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 (other than, if applicable,
an Outside Serviced Trust Mortgage Loan) for which the Mortgagor has not filed a
claim or in respect of an Administered 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 Serviced Mortgage Loan, and the Special
Servicer, in the case of a Specially Serviced Mortgage Loan or an Administered
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 (other
than, if applicable, an Outside Serviced Trust Mortgage Loan), the Master
Servicer (in the case of any such Mortgage Loan that is a Performing Serviced
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 Administered 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 Serviced Mortgage
Loans) and the Special Servicer (in the case of Specially Serviced Mortgage
Loans and Administered 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 (other than,
if applicable, any Outside Serviced Trust Mortgage Loan) and take all such
actions as may be required to comply with the terms and provisions of such
policies in order to maintain such policies in full force and effect and to make
claims thereunder.
In the event that either the Master Servicer or the Special Servicer
receives notice of a termination of any Environmental Insurance Policy with
respect to an Environmentally Insured Mortgage Loan (other than, if applicable,
an Outside Serviced Trust Mortgage Loan), then the party receiving such notice
shall, within five (5) Business Days after receipt thereof, provide written
notice of such termination to the other such party and the Trustee. Upon receipt
of such notice, the Master Servicer, with respect to a Performing Serviced
Mortgage Loan, or the Special Servicer, with respect to a Specially Serviced
Mortgage Loan or an Administered 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 Serviced 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 (other than, if
applicable, an Outside Serviced Trust Mortgage Loan) insofar as such
actions/obligations
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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 Serviced 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 Serviced
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 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, 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 or
6.12, 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 Serviced Mortgage Loan and this Agreement; provided that any grant of
consent on the part of the Special Servicer shall be subject to Section 3.08(d),
Section 6.11 and/or Section 6.12, 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 (and set forth in the notice described in
the following proviso), 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 and/or Section 6.12, as
applicable, then the Special Servicer shall, prior to the termination of the
aforementioned 15-day or 10-day period, 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 Serviced Mortgage Loan and/or (ii) determines, with
respect to any Performing Serviced 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
Serviced 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
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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 Serviced 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 Serviced 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 and, in the case of a Serviced Loan Combination that consists of
Performing Serviced Mortgage Loans, the related Serviced Non-Trust Mortgage Loan
Noteholder(s), 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 Serviced Trust 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 Serviced 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 assumption. Subject to Section 3.08(d), Section 6.11 and/or Section
6.12, 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
Serviced 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 Serviced 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
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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, the
Controlling Class Representative and, with respect to a Serviced Loan
Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), 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 Serviced Trust 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 Serviced
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 Serviced 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 Serviced 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 or 6.12, 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 and/or Section 6.12, in
each case if and as applicable, grant 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 Serviced 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 (and set forth in
the notice described in the following proviso), 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 and/or
Section 6.12, as applicable, then the Special Servicer shall, prior to the
termination of the aforementioned 15-day or 10-day period, provide notice to the
Master Servicer of such process and the estimated time period for completion
thereof. If the Special Servicer
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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 and,
with respect to a Serviced Loan Combination, the related Serviced Non-Trust
Mortgage Loan Noteholder(s)) 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 Serviced
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 Serviced
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 Serviced Mortgage Loan in
accordance with the Servicing Standard.
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 and, in the case of a Mortgaged Property that secures a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) 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 and, in the case of a Serviced Loan Combination, the related Serviced
Non-Trust Mortgage Loan Noteholder(s); provided that any such waiver of such
restrictions shall be subject to Section 3.08(d) and Section 6.11 and/or Section
6.12, in each case if and as applicable.
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 Serviced Trust Mortgage
Loan, together with any other Serviced Trust 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 Serviced Trust Mortgage Loan is then one of the ten (10)
largest Trust 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 (X) the then
unpaid principal balance of the subject Serviced Trust Mortgage
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Loan, together with any other Serviced Trust 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 (Y) the subject Serviced Trust Mortgage Loan is then one of the ten (10)
largest Trust Mortgage Loans in the Mortgage Pool, 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 each Rating Agency (and, if a
Serviced Loan Combination is involved and includes a Specially Designated
Securitized Non-Trust Mortgage Loan, from each applicable Other Rating Agency)
that such action would not result in an Adverse Rating Event with respect to any
Class of Certificates or any affected class of Specially Designated Non-Trust
Mortgage Loan Securities 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 (A) the aggregate loan-to-value
ratio of the subject Serviced Trust 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 (B)
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 Master Servicer nor the Special Servicer, as
applicable, shall waive any restrictions contained in the related Mortgage on
further encumbrances of the related Mortgaged Property or encumbrances 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 S&P that such action would not result in an Adverse Rating Event with
respect to any Class of Certificates or any affected class of Specially
Designated Non-Trust Mortgage Loan Securities rated by such rating agency.
Neither the Master Servicer nor the Special Servicer has the authority to
perform any of the actions set forth above in this paragraph with respect to an
Outside Serviced Trust Mortgage Loan. 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 Depositor or the related Unaffiliated
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.
Notwithstanding the foregoing, with respect to any Outside Serviced
Trust Mortgage Loan, in the event that any action set forth in clause (i) or
(ii) of the first sentence of the preceding paragraph regarding such Trust
Mortgage Loan would require written confirmation from a Rating Agency that such
action would not result in an Adverse Rating Event with respect to any Class of
Certificates rated by such Rating Agency in accordance with clause (i) or (ii)
of the first sentence of the preceding paragraph if such Trust Mortgage Loan
were a Serviced Trust Mortgage Loan, then the Controlling Class Representative
(and, additionally, the Master Servicer and the Special Servicer, if applicable)
shall not consent to a waiver of any restrictions contained in the related
Mortgage on transfers of the related Mortgaged Property or on transfers of
interests in the related Mortgagor or to a waiver of any restrictions contained
in the related Mortgage on further encumbrances of the related
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Mortgaged Property or of interests in the related Mortgagor, in each case to the
extent it is permitted to do so under the related Outside Servicing Agreement
and/or the related Co-Lender Agreement, unless it has obtained written
confirmation from each Rating Agency that such action would not result in an
Adverse Rating Event with respect to any Class of Certificates rated by such
Rating Agency. Upon being asked to consent to any action set forth in the
preceding sentence (i) if the party initially in receipt of such request for
consent is the Controlling Class Representative, the Controlling Class
Representative shall request from the Master Servicer, and the Master Servicer
shall thereupon provide, a determination to the Controlling Class Representative
as to, and (ii) if the party initially in receipt of such request for consent is
the Master Servicer, the Master Servicer shall forward such request to the
Controlling Class Representative together with a determination as to, and (iii)
if the party initially in receipt of such request for consent is the Special
Servicer, the Special Servicer shall forward such request to the Master Servicer
and the Controlling Class Representative, and the Master Servicer shall
thereupon provide a determination to the Controlling Class Representative as to,
in the case of (i), (ii) and (iii) above, whether such action would require
written confirmation from each Rating Agency that such action would not result
in an Adverse Rating Event with respect to any Class of Certificates rated by
such Rating Agency in accordance with clause (i) or clause (ii) of the first
sentence of the preceding paragraph if such Trust Mortgage Loan were a Serviced
Trust Mortgage Loan (and the Controlling Class Representative shall be entitled
to conclusively rely on such determination by the Master Servicer). Further,
subject to the terms of the related loan documents and applicable law, the
Controlling Class Representative shall not affirmatively consent to a waiver of
any restrictions contained in the related Mortgage on transfers of the related
Mortgaged Property or on transfers of interests in the related Mortgagor or to a
waiver of any restrictions contained in the related Mortgage on further
encumbrances of the related Mortgaged Property or of interests in the related
Mortgagor, unless all costs in connection therewith, including any arising from
seeking Rating Agency confirmation, are paid by the related Mortgagor (unless
requiring payment of such costs by the Mortgagor is contrary to the explicit
terms of the related loan documents). To the extent not payable by and collected
from the related Mortgagor, any rating agency charges in connection with the
foregoing shall be paid by the Master Servicer by withdrawing the amount of such
charges from the Pool Custodial Account.
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 or
any one or more Floating Rate Grantor Trusts with respect to the Group FL REMIC
III Regular Interests 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 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) To the extent not prohibited by the applicable loan
documents and applicable law, the Master Servicer with respect to Performing
Serviced Mortgage Loans, and the Special Servicer with respect to Specially
Serviced Mortgage Loans, 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 under this Section 3.08.
(f) 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
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related loan documents for any Serviced 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 Serviced 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 Serviced 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 forwarded by
the Master Servicer to the Special Servicer for its consent together with the
Master Servicer's recommendation, analysis and any other supporting material in
the Master Servicer's possession that the Special Servicer may reasonably
request to grant or withhold such consent. The Master Servicer 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), 6.11 and 6.12, 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 Serviced 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) or Section 3.05A, as applicable. The Special Servicer shall be
responsible, consistent with the Servicing Standard, for determining whether to
exercise any rights it may have under the cross-collateralization and/or
cross-default provisions of a Cross-Collateralized Mortgage Loan. Nothing
contained in this Section 3.09 shall be construed so as to require the Special
Servicer, on behalf of the Certificateholders and, in the case of a Mortgaged
Property that secures a Serviced Loan Combination, on behalf of the affected
Serviced Non-Trust Mortgage Loan Noteholder(s), to make a bid on any Mortgaged
Property at a foreclosure sale or similar proceeding that is in excess of the
fair market value of such property, as determined by the Special Servicer in its
reasonable and good faith judgment taking into account the factors described 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.
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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 Serviced Mortgage Loan or Serviced Loan Combination becomes a
Required Appraisal Loan, then the Special Servicer shall (i) obtain or conduct,
as applicable, a Required Appraisal within 60 days (or, in the case of a
Serviced Loan Combination, such shorter time period (if any) as may be required
under the related Co-Lender Agreement) of such occurrence (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 Serviced Mortgage Loan (or any
successor REO Mortgage Loan with respect thereto) or such Serviced Loan
Combination, as the case may be, remains a Required Appraisal Loan. The Special
Servicer shall deliver copies of all such Required Appraisals and updated
Required Appraisals to the Trustee, the Master Servicer and, in the case of a
Mortgaged Property that secures a Serviced Loan Combination, the related
Non-Trust Mortgage Loan Noteholder(s), in each such case, 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 (monthly, on each related
Determination Date, until the subject Required Appraisal Loan ceases to be such)
calculate and notify the Trustee, the Master Servicer, the Controlling Class
Representative, and, in the case of any Mortgaged Property that secures a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s), 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 related Custodial Account pursuant to
Section 3.05(a) or Section 3.05A, as applicable. At any time that an Appraisal
Reduction Amount exists with respect to any Required Appraisal Loan, the related
Serviced Loan Combination Controlling Party (in the case of a Serviced Loan
Combination or related REO Property) or the Controlling Class Representative (in
all other cases involving a Serviced Mortgage Loan or an Administered REO
Property), as applicable, 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 related Serviced
Loan Combination Controlling Party or the Controlling Class Representative, as
applicable, 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, the
Controlling Class Representative and, in the case of a
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Serviced Loan Combination, the related Serviced Loan Combination Controlling
Party, 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 (and, in the case of a Mortgaged Property that secures a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) under such circumstances, in such manner or pursuant to such
terms as would, in the reasonable, good faith judgment of the Special Servicer
(exercised in accordance with the Servicing Standard), (i) cause such Mortgaged
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (unless the portion of such Mortgaged Property
that is not treated as "foreclosure property" and that is held by 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 (and, in the
case of a Mortgaged Property that secures a Serviced Loan Combination, the
related Non-Trust Mortgage Loan Noteholder(s)) 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 (and, in the case of a Mortgaged Property that secures a Serviced
Loan Combination, on behalf of the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), obtain title to a Mortgaged Property by foreclosure, deed in
lieu of foreclosure or otherwise, or take any other action with respect to any
Mortgaged Property, if, as a result of any such action, the Trustee, on behalf
of the Certificateholders (and, in the case of a Mortgaged Property that secures
a Serviced Loan Combination, on behalf of the related Serviced Non-Trust
Mortgage Loan Noteholder(s)), could, in the reasonable, good faith judgment of
the Special Servicer, exercised in accordance with the Servicing Standard, be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA or
any comparable law (a "potentially responsible party"), unless such action is
consistent with Section 6.11 and/or Section 6.12, in each case 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 (and, in the
case of a Mortgaged Property that secures a Serviced Loan Combination, to the
related Serviced Non-Trust Mortgage Loan Noteholder(s)) that shall specify all
of the bases for such
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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, the Master Servicer
and, in the case of a Mortgaged Property that secures a Serviced Loan
Combination, on behalf of the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would (taking into
account the coverage provided under any related Environmental Insurance
Policy) maximize the recovery on the related Serviced Mortgage Loan to the
Certificateholders (or, if a Serviced Loan Combination is involved, to the
Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), as a collective whole, on a present value basis (the
relevant discounting of anticipated collections that will be distributable
to Certificateholders (or, if a Serviced Loan Combination is involved, to
the Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), 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 investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could reasonably be
expected to be required, that it would (taking into account the coverage
provided under any related Environmental Insurance Policy) maximize the
recovery on the related Serviced Mortgage Loan to the Certificateholders
(or, if a Serviced Loan Combination is involved, to the Certificateholders
and the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a
collective whole, on a present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders
(or, if a Serviced Loan Combination is involved, to the Certificateholders
and the related Serviced Non-Trust Mortgage Loan Noteholder(s)), 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 Pool Custodial Account pursuant to Section 3.05(a) (or
with respect to a Serviced Loan Combination, first out of the related Loan
Combination Custodial Account pursuant to Section 3.05A, and then out of the
Pool Custodial Account), and to the extent the funds in the Pool Custodial
Account and/or the related Loan Combination Custodial Account are
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insufficient, such cost shall be advanced by the Master Servicer, subject to
Section 3.11(h). If and to the extent funds become available that would
otherwise be distributable to the related Non-Trust Mortgage Loan Noteholder(s),
any such cost that was paid out of the Custodial Account shall be reimbursed
from such available funds in accordance with the terms and provisions of the
related Co-Lender Agreement.
(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 Serviced 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 (and, if a
Serviced Loan Combination is involved, the related Serviced Non-Trust Mortgage
Loan Noteholder(s)), subject to Section 6.11 and/or Section 6.12, in each case
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, the Trustee and, if a Serviced Loan Combination is involved,
the related Serviced Non-Trust Mortgage Loan Noteholder(s), 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 Serviced 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 Serviced Mortgage
Loan required by Section 6050H of the Code and the reports of foreclosures and
abandonments of any Mortgaged Property (other than any Mortgaged Property that
secures an Outside Serviced Trust Mortgage Loan) 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
Administered REO Property, it shall promptly notify the Trustee, the Master
Servicer and, if a Serviced Loan Combination is involved, the related Serviced
Non-Trust Mortgage Loan Noteholder(s). The Special Servicer shall maintain
accurate records, prepared by a Servicing Officer, of each such Final Recovery
Determination (if any) and the basis thereof. Each such Final Recovery
Determination (if any) shall be evidenced by an Officer's Certificate delivered
to the Trustee, the Master Servicer and, if a Serviced Loan Combination is
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involved, the related Serviced Non-Trust Mortgage Loan Noteholder(s), 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 Serviced 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 (and, in the case of a Serviced Non-Trust Mortgage
Loan, the related Serviced Non-Trust Mortgage Loan Noteholder) 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) or Section 3.04A(a), as applicable, have been or will be so deposited)
of a Servicing Officer (a copy of which certification shall be delivered to the
Special Servicer) and shall request delivery to it of the related Mortgage File
and, in the case of a Serviced Non-Trust Mortgage Loan, the original of the
Mortgage Note for such Serviced Non-Trust Mortgage Loan. Upon receipt of such
certification and request, the Trustee shall release, or cause any related
Custodian to release, the related Mortgage File (and, in the case of a Serviced
Non-Trust Mortgage Loan, the Trustee shall cause the related Serviced Non-Trust
Mortgage Loan Noteholder to release the Mortgage Note for such Serviced
Non-Trust Mortgage Loan) to the Master Servicer or Special Servicer and shall
deliver to the Master Servicer or Special Servicer, as applicable, such release
or discharge, duly executed. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Collection Account or any Custodial Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Mortgage Loan, the Master Servicer or the Special
Servicer shall otherwise require any Mortgage File (or any portion thereof) (or
the original of the Mortgage Note for a Serviced Non-Trust Mortgage Loan), the
Trustee, upon request of the Master Servicer and receipt from the Master
Servicer of a Request for Release in the form of Exhibit D-1 attached hereto
signed by a Servicing Officer thereof, or upon request of the Special Servicer
and receipt from the Special Servicer of a Request for Release in the form of
Exhibit D-2 attached hereto, shall release, or cause any related Custodian to
release, such Mortgage File (or such portion thereof) (and, in the case of a
Serviced Non-Trust Mortgage Loan, the Trustee shall cause the related Serviced
Non-Trust Mortgage Loan Noteholder to release the original of the Mortgage Note
for such Non-Trust Mortgage Loan) 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 (and, if applicable, such original
Mortgage Note for such Serviced Non-Trust Mortgage Loan to the related Serviced
Non-Trust Mortgage Loan Noteholder), or the delivery to the Trustee (and, if
applicable, to the related Serviced Non-Trust Mortgage Loan Noteholder) of a
certificate of a Servicing Officer of the Special Servicer stating that such
Serviced 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 related Custodial Account pursuant to Section 3.04(a) or Section
3.04A(a), as applicable, have been or will be so deposited, or that the related
Mortgaged Property has become an REO Property, the Request for Release shall be
released by the Trustee or related Custodian to the Master Servicer or the
Special Servicer, as applicable. 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
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any Trust 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.
(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 and, in
the case of a Serviced Loan Combination, the related Serviced Non-Trust Mortgage
Loan Noteholder(s) of an exigency) of the Special Servicer's request therefor,
the Trustee shall execute and deliver to the Special Servicer (or the Special
Servicer may execute and deliver in the name of the Trustee (on behalf of the
Certificateholders and, in the case of a Mortgaged Property that secures a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) based on a limited power of attorney issued in favor of the
Special Servicer pursuant to Section 3.01(b)), in the form supplied to the
Trustee, with respect to any Serviced 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, the
Special Servicer or, if applicable, any Serviced Non-Trust Mortgage Loan
Noteholder. Together with such documents or pleadings, the Special Servicer
shall deliver to the Trustee (and, if applicable, any affected Serviced
Non-Trust Mortgage Loan Noteholder) a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required and that
the execution and delivery thereof by the Trustee (on behalf of the
Certificateholders and, in the case of a Serviced Loan Combination, also on
behalf of the related Serviced Non-Trust Mortgage Loan Noteholder(s)) will not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
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.
(d) If from time to time, pursuant to the terms of the related
Co-Lender Agreement and the related Outside Servicing Agreement, and as
appropriate for enforcing the terms of any Outside Serviced Trust Mortgage Loan,
any related Outside Servicer or the appropriate Non-Trust Mortgage Loan
Noteholder requests delivery to it of the original Mortgage Note for such
Outside Serviced Trust Mortgage Loan, then the Trustee shall release or cause
the release of such original Mortgage Note to the requesting party or its
designee. In connection with the release of the original Mortgage Note for any
Outside Serviced Trust Mortgage Loan in accordance with the preceding sentence,
the Trustee shall obtain such documentation (such as a custodial receipt) as is
appropriate to evidence the holding by the related Outside Servicer or the
appropriate Non-Trust Mortgage Loan Noteholder as custodian on behalf of and for
the benefit of the Trustee.
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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 Trust Mortgage Loan, each REO Trust Mortgage Loan, each Serviced Non-Trust
Mortgage Loan and any successor REO Mortgage Loan with respect to a Serviced
Non-Trust 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) or Section
3.05A, as applicable, and in the case of a Trust Mortgage Loan or an REO Trust
Mortgage Loan, out of such other amounts as may be permitted by Section 3.05(a).
In no event shall any Master Servicing Fee earned with respect to any Serviced
Subordinate Non-Trust Mortgage Loan or any successor REO Mortgage Loan with
respect thereto be payable out of any amounts allocable to any more senior
Mortgage Loan or REO Mortgage Loan that is part of the related Serviced Loan
Combination. 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.
(b) Additional master servicing compensation, in the form of the
items set forth in clauses (i) through (iv) 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 any 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 Serviced Mortgage Loan (or, in the case
of Net Default Charges, any Serviced Trust Mortgage Loan) and accrued during the
time that such Serviced Mortgage Loan (or, in the case of Net Default Charges,
such Serviced Trust Mortgage Loan) was a Performing Serviced Mortgage Loan (or,
in the case of Net Default Charges, a Performing Serviced Trust Mortgage Loan),
and any Net Default Charges Received by the Trust with respect to an Outside
Serviced Trust Mortgage Loan; (ii) 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,
encumbrance of the related Mortgaged Property or similar action agreed to by the
Master Servicer pursuant to Section 3.20(c) or Section 3.08(c); (iii) 100% (or,
if the consent of the Special Servicer is required with respect to the subject
action pursuant to Section 3.20(m), 50%) of any fee actually paid by a Mortgagor
in
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connection with a defeasance of a Serviced Mortgage Loan as contemplated under
Section 3.20, and 50% of any fee actually paid by a Mortgage in connection with
a release of a Special Release Mortgaged Property as contemplated under Section
3.20(n) or and (iv) with respect to any Performing Serviced Mortgage Loan, 50%
of any and all assumption fees, and 100% of any and all 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 (or, in the
case of a Serviced Loan Combination, on behalf of the Trust and the related
Non-Trust Mortgage Loan Noteholder(s)) 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 Trust Mortgage Loans; (ii) interest or other
income earned on deposits in the Custodial Accounts in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any, with
respect to 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).
The parties hereto acknowledge that, with regard to each Outside
Serviced Trust Mortgage Loan, as and to the extent provided in the related
Outside Servicing Agreement and/or the related Co-Lender Agreement, as
applicable, amounts in the nature of the foregoing may be payable to one of the
related Outside Servicers, and there can be no assurance that any related
Prepayment Interest Excesses and/or Default Charges shall be Received by the
Trust with respect to an Outside Serviced Trust Mortgage Loan.
(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 that relates to
an Administered REO Property. With respect to each Specially Serviced Mortgage
Loan and each REO Mortgage Loan that relates to an Administered REO Property,
the Special Servicing Fee shall: (i) accrue from time to time at the Special
Servicing Fee Rate on the same principal amount as interest accrues from time to
time on such Mortgage Loan or is deemed to accrue from time to time on such REO
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 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
Trust Mortgage Loans and, to the extent they relate to Administered REO
Properties, REO Trust Mortgage Loans shall be payable monthly out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account, to
the extent permitted by Section 3.05(a). In addition, earned but unpaid Special
Servicing Fees in respect of a Serviced Loan Combination consisting of Specially
Serviced Mortgage Loans or REO Mortgage Loans shall be payable out of
collections on such Loan Combination on deposit in the applicable Loan
Combination
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Custodial Account, to the extent permitted pursuant to Section 3.05A and the
related Co-Lender Agreement, and, with respect to any Serviced Combination Trust
Mortgage Loan that constitutes a Specially Serviced Mortgage Loan or REO
Mortgage Loan, out of collections on deposit in the Pool Custodial Account, to
the extent permitted pursuant to Section 3.05.
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 Serviced 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 Serviced 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
Serviced 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 Serviced 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 Administered REO Property as to which it
receives Net Liquidation Proceeds. As to each such Specially Serviced Mortgage
Loan or Administered REO Property, subject to the following paragraph, the
Liquidation Fee shall be payable from, and shall be
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calculated by application of the Liquidation Fee Rate to, such full, partial or
discounted payoff and/or such Net Liquidation 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
Trust 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 Trust 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 a Non-Trust Mortgage Loan Noteholder or its
designee pursuant to the related Co-Lender Agreement (unless such purchase
occurs after the expiration of 60 days from the date such Non-Trust Mortgage
Loan Noteholder's right to purchase such Specially Serviced Trust Mortgage Loan
arose under such Co-Lender Agreement and such Liquidation Fee is actually paid),
by the Depositor pursuant to Section 2.03 or by or on behalf of an Unaffiliated
Mortgage Loan Seller pursuant to the applicable UMLS/Depositor Mortgage Loan
Purchase Agreement in connection with a Material Document Defect or a Material
Breach (in either such case, prior to the expiration of the Seller/Depositor
Resolution Period), by the Depositor pursuant to Section 2.03 or by or on behalf
of an Unaffiliated Mortgage Loan Seller pursuant to the applicable
UMLS/Depositor Mortgage Loan Purchase Agreement in connection with the
defeasance of an Early Defeasance Trust 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 Trust 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 Depositor pursuant to Section 2.03 or by or on behalf of an
Unaffiliated Mortgage Loan Seller pursuant to the applicable UMLS/Depositor
Mortgage Loan Purchase Agreement in connection with a Material Document Defect
or a Material Breach (in either case, subsequent to the expiration of the
Seller/Depositor Resolution Period), the Liquidation Fee shall equal 1% of the
Stated Principal Balance
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of the repurchased Trust Mortgage Loan (or, if an REO Property is being
repurchased, 1% of the Stated Principal Balance of the related REO Trust
Mortgage Loan).
Notwithstanding the foregoing, any Workout Fee and/or Liquidation
Fee payable in accordance with the two preceding paragraphs with respect to
Mortgage Loans or REO Mortgage Loans that comprise a Serviced Loan Combination
shall be paid from collections received on such Loan Combination on deposit in
the applicable Loan Combination Custodial Account, to the extent permitted
pursuant to Section 3.05A and the related Co-Lender Agreement; provided that in
no event shall any Special Servicing Fee, Workout Fee or Liquidation Fee earned
with respect to any Serviced Subordinate Non-Trust Mortgage Loan or any
successor REO Mortgage Loan with respect thereto be payable out of any amounts
allocable to any more senior Mortgage Loan or REO Mortgage Loan that is part of
the related Serviced Loan Combination.
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.
Notwithstanding anything to the contrary herein, the Special
Servicer shall not be entitled to any Special Servicing Fees, Workout Fees or
Liquidation Fees with respect to any Mortgage Loan or REO Mortgage Loan or
comparable deemed mortgage loan comprising an Outside Serviced Loan Combination.
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 any
Custodial Account pursuant to Section 3.04(a) or Section 3.04A(a): (i) Net
Default Charges actually collected with respect to any Serviced Trust Mortgage
Loan or any successor REO Trust Mortgage Loan with respect thereto that accrued
while the subject loan was a Specially Serviced Trust Mortgage Loan or an REO
Trust 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 (or, in the case of a
Serviced Loan Combination, on behalf of the Trust and the related Serviced
Non-Trust Mortgage Loan Noteholder(s)) pursuant to Section 3.08(b) or paid by a
Mortgagor with respect to any transfer of an interest in a Mortgagor pursuant to
Section 3.08(b); (iii) with respect to any Performing Serviced 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 (or, in the
case of a Serviced Loan Combination, on behalf of the Trust and the related
Serviced Non-Trust Mortgage Loan Noteholder(s)) 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 Serviced
Mortgage Loan, if the consent of the Special Servicer is required with respect
to the subject action, 50% of any fee actually paid by a Mortgagor in connection
with a defeasance of a Serviced Mortgage Loan as contemplated under Section
3.20(m) or release of a
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Special Release Mortgaged Property as contemplated under Section 3.20(n), and
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, encumbrance of the related Mortgaged Property or similar action
agreed to by the Master Servicer pursuant to Section 3.20(c) or Section 3.08(c);
and (v) any and all other modification fees, consent fees, extension fees and
similar fees actually collected on the Serviced 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 any 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) and a $1,500 fee for calculating the FV Price of any Outside Serviced
Trust Mortgage Loan.
(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 any of the Custodial
Accounts or, in the case of the Special Servicer, any of the REO Accounts, and
neither the Master Servicer nor the Special Servicer shall be entitled to
reimbursement for such expenses except as expressly provided in this Agreement.
(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 3.26, out of any Default Charges on deposit
in the Pool Custodial Account that were collected on or in respect of the
particular Trust Mortgage Loan or REO Trust 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 Trust Mortgage Loans and REO Trust Mortgage Loans on deposit
in the Pool Custodial Account; provided that, if such Servicing Advance was made
with respect to a Serviced Loan Combination or any related Mortgaged Property,
then such interest shall first be payable out of amounts on deposit in the
related Loan Combination Custodial Account in accordance with Section 3.05A and
the related Co-
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Lender Agreement. The Master Servicer shall reimburse itself, the Special
Servicer, the Trustee or any Fiscal Agent, as appropriate, in accordance with
Section 3.03, Section 3.05(a) or Section 3.05A, 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 Servicing Advance or that any proposed Servicing Advance,
if made, would constitute a Nonrecoverable Servicing Advance, shall be made in
accordance with the Servicing Standard and shall be evidenced by an Officer's
Certificate delivered promptly to the Trustee and the Depositor (and, in the
case of a Servicing Advance with respect to a Serviced Loan Combination, the
related Non-Trust Mortgage Loan Noteholder(s)), 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
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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 Administered REO Property is involved)
pay directly out of the Pool Custodial Account and/or (if a Serviced Loan
Combination is involved) the related Loan Combination Custodial Account, in
accordance with Section 3.05(a) or Section 3.05A, as applicable, any servicing
expense that, if advanced by the Master Servicer or the Special Servicer, would
constitute a Nonrecoverable Servicing Advance; provided that the Master Servicer
(or the Special Servicer, if a Specially Serviced Mortgage Loan or an
Administered REO Property is involved) has determined in accordance with the
Servicing Standard that making such payment, in the case of withdrawals from a
Loan Combination Custodial Account, is in the best interests of the
Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder
(as a collective whole), or, in the case of withdrawals from the Pool 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, the Controlling Class Representative and any
affected Serviced Non-Trust Mortgage Loan Noteholder(s), setting forth the basis
for such determination and accompanied by any information that such Person may
have obtained that supports such determination. A copy of any such Officer's
Certificate (and accompanying information) of the Master Servicer shall also be
promptly delivered to the Special Servicer, and a copy of any such Officer's
Certificate (and accompanying information) of the Special Servicer shall also be
promptly delivered to the Master Servicer. The Master Servicer may conclusively
rely on any information in this regard provided by the Special Servicer (if
other than the Master Servicer or an Affiliate thereof).
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 Serviced Mortgage Loan
as soon as practicable after such Serviced 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
Administered 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
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be performed a physical inspection of each Mortgaged Property securing a
Performing Serviced Mortgage Loan: (i) at least once every two calendar years in
the case of Mortgaged Properties securing Performing Serviced 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, the related Serviced Non-Trust
Mortgage Loan Noteholder(s) (if the subject Mortgaged Property secures a
Serviced Loan Combination) and each other a written report of each such
inspection performed by it that sets forth in detail the condition of the
Mortgaged Property and that specifies the existence of: (i) any sale, transfer
or abandonment of the Mortgaged Property of which the Master Servicer or the
Special Servicer, as applicable, is aware, (ii) any change in the condition or
value of the Mortgaged Property that the Master Servicer or the Special
Servicer, as applicable, in its reasonable, good faith judgment, considers
material, or (iii) any waste committed on the Mortgaged Property. The Master
Servicer and Special Servicer shall each forward copies of any such inspection
reports prepared by it to the Underwriters, the Controlling Class Representative
and the Serviced Non-Trust Noteholders, 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 that relates to an Administered REO
Property, and the Master Servicer, in the case of each Performing Serviced
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 to the Master Servicer. The Master Servicer shall promptly
deliver copies of the operating statements and rent rolls received or obtained
by it (including pursuant to the preceding sentence) to the Trustee, the Special
Servicer, any related Serviced Non-Trust Mortgage Loan Noteholder(s) (if the
subject Mortgaged Property secures a Serviced Loan Combination) or any
Controlling Class Certificateholder, in each case upon request.
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 (other than a Mortgaged Property that secures an Outside
Serviced Loan Combination) or Administered REO Property, the Master Servicer
(with respect to a Mortgaged Property that secures a Performing Serviced
Mortgage Loan) and the Special Servicer (with respect to a Mortgaged Property
that secures a Specially Serviced Mortgage Loan or with respect to an
Administered REO Property) shall prepare or update and forward to the Trustee a
CMSA NOI Adjustment Worksheet for such Mortgaged Property or Administered 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 Serviced Mortgage Loan, and the Special Servicer, with
respect to a Mortgaged Property that secures a Specially Serviced Mortgage Loan
or with respect to an Administered REO Property, shall prepare and maintain one
CMSA Operating Statement Analysis Report for each such Mortgaged Property and
Administered 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
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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 of CMSA Operating Statement Analysis Reports
and CMSA NOI Adjustment Worksheets (as well as any comparable items received
with respect to an Outside Serviced Trust Mortgage Loan or any related REO
Property) 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 Trust 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 Trust Mortgage Loans and any Administered
REO Properties and, to the extent that the subject information relates to when
they were Specially Serviced Trust Mortgage Loans, with respect to any Corrected
Trust Mortgage Loans, providing the required information as of the related
Determination Date: (A) a CMSA Special Servicer Loan File, (B) a Loan Payoff
Notification Report; (C) a CMSA Servicer Appraisal Reduction Template, and (D) 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 Trust Mortgage Loans and any REO Trust Mortgage
Loans as of the related Determination Date (or, in the case of an Outside
Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, as of the end of the related Underlying Collection Period). 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
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 respective Mortgage Loan Sellers 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
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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 Trust Mortgage Loan
and/or REO Property; and (iii) a CMSA Advance Recovery Report providing the
required information for the Trust Mortgage Loans and any REO Trust Mortgage
Loans as of the related Determination Date (or, in the case of an Outside
Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, as of the end of the related Underlying Collection Period).
The Master Servicer shall incorporate in the foregoing reports
referred to above in this Section 3.12(c) any information and reports received
(by the date in the month of such Distribution Date that such information and
reports are scheduled to be received in accordance with the related Outside
Servicing Agreement) from the applicable Outside Servicer with respect to each
Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto. 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 Trust 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 Administered 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) and, with respect to an Outside Serviced Trust Mortgage Loan or an
Outside Administered REO Property, by a related Outside Servicer pursuant to the
related Outside Servicing Agreement. 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 pursuant to Section 3.12(b) or by an
Outside Servicer pursuant to an Outside Servicing Agreement, or if and to the
extent such reports are to be prepared and delivered by the Special Servicer
pursuant to Section 3.12(b) or by an Outside Servicer pursuant to an Outside
Servicing Agreement, 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 or the relevant
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Outside Servicer, as applicable, and the Master Servicer is entitled to
conclusively rely on such information provided by the Special Servicer or
relevant Outside Servicer, as applicable. 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, or by an Outside Servicer's
failure to provide any report required to be provided to the holder of the
related Outside Serviced Trust Mortgage Loan pursuant to the related Outside
Servicing Agreement or the related Co-Lender Agreement, as applicable.
(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 3.12A. Preparation and Delivery of Certain Statements
and Reports to the Serviced Non-Trust Mortgage
Loan Noteholders.
(a) The Master Servicer shall promptly deliver to each Serviced
Non-Trust Mortgage Loan Noteholder: (i) copies of operating statements and rent
rolls; (ii) upon request, annual CMSA NOI Adjustment Worksheets (with annual
operating statements as exhibits); and (iii) annual CMSA Operating Statement
Analysis Reports, in each case prepared, received or obtained by it pursuant to
Section 3.12 with respect to the Mortgaged Property securing the related
Serviced Loan Combination.
(b) If the Mortgage Loans forming a Serviced Loan Combination
constitute Specially Serviced Mortgage Loans, or if a Mortgaged Property
securing a Serviced Loan Combination has become an REO Property, then each
calendar month, not later than 10:00 a.m. (New York City time) on the second
Business Day prior to the applicable Loan Combination Master Servicer Remittance
Date in such month, the Special Servicer shall deliver or cause to be delivered
to the Master Servicer such of the following reports as may be relevant with
respect to such Serviced Loan Combination and/or the related Mortgaged Property:
(i) a CMSA Appraisal Reduction Template, (ii) a CMSA Servicer Realized Loss
Template and (iii) a CMSA Special Servicer Loan File.
(c) Prior to 4:00 p.m. (or, in the case of a Serviced Non-Trust
Mortgage Loan that is part of a Non-Trust Mortgage Loan Securitization Trust,
2:00 p.m.) (New York City time) on each applicable Master Servicer Remittance
Date, the Master Servicer shall, with respect to each Serviced Loan Combination,
prepare all Loan Combination Servicing Reports as may be relevant and that are
not otherwise required to be prepared by the Special Servicer pursuant to
Section 3.12A(b). The Master Servicer shall also include on one of such reports
updated information as of the applicable Loan Combination 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) The Special Servicer shall deliver to the Master Servicer
the reports set forth in Section 3.12A(b) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer. The Master Servicer
may, absent manifest error, conclusively rely on the reports to be provided by
the Special Servicer pursuant to Section 3.12A(b). In the case of information or
reports to be furnished by the Master Servicer to a Serviced Non-Trust Mortgage
Loan Noteholder pursuant to Section 3.12A(f), to the extent that such
information is based on reports to be provided by the Special Servicer pursuant
to Section 3.12A(b) and/or that such reports are to be prepared and delivered by
the Special Servicer pursuant to Section 3.12A(b), so long as the Master
Servicer and the Special Servicer
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are not the same Person or Affiliates, the Master Servicer shall have no
obligation to provide such information or reports until it has received such
information or reports from the Special Servicer, and the Master Servicer shall
not be in default hereunder due to a delay in providing the reports required by
Section 3.12A(f) caused by the Special Servicer's failure to timely provide any
report required under Section 3.12A(b) of this Agreement.
(e) The preparation and maintenance by the Master Servicer and
the Special Servicer of all the reports specified in this Section 3.12A,
including the calculations made therein, shall be done in accordance with CMSA
standards, to the extent applicable thereto.
(f) Not later than 4:00 p.m. (or, in the case of a Serviced
Non-Trust Mortgage Loan that is part of a Non-Trust Mortgage Loan Securitization
Trust, 2:00 p.m.) (New York City time) on each related Master Servicer
Remittance Date, the Master Servicer shall forward or make available to the
related Non-Trust Mortgage Loan Noteholder(s) all related Loan Combination
Servicing Reports prepared with respect to each Serviced Loan Combination,
pursuant to this Section 3.12A, during the calendar month in which such Master
Servicer Remittance Date occurs.
(g) The Master Servicer shall only be obligated to deliver the
statements, reports and information contemplated by Section 3.12A(f) to the
extent it receives the necessary underlying information from the Special
Servicer and shall not be liable for its failure to deliver such statements,
reports and information on the prescribed due dates, to the extent caused by the
failure of the Special Servicer to deliver timely such underlying information.
Nothing herein shall obligate the Master Servicer or the Special Servicer to
violate any applicable law prohibiting disclosure of information with respect to
the related Mortgagor, and the failure of the Master Servicer or the Special
Servicer to disseminate information for such reason shall not be a breach
hereunder.
Absent manifest error of which it has actual knowledge, neither the
Master Servicer nor the Special Servicer shall be responsible for the accuracy
or completeness of any information supplied to it by a Mortgagor, a Mortgage
Loan Seller or third party that is included in any reports, statements,
materials or information prepared or provided by the Master Servicer or the
Special Servicer, as applicable, pursuant to this Agreement. Neither the Master
Servicer nor the Special Servicer shall have any obligation to verify the
accuracy or completeness of any information provided by a Mortgagor, a Mortgage
Loan Seller, a third party or each other.
(h) If the Master Servicer or the Special Servicer is required
to deliver any statement, report or information under any provision of this
Agreement, the Master Servicer or the Special Servicer, as the case may be, may
satisfy such obligation by (i) physically delivering a paper copy of such
statement, report or information (ii) delivering such statement, report or
information in a commonly used electronic format or (iii) making such statement,
report or information available on such servicer's internet website and
delivering notice to the intended recipient of such availability and the
location of such website, unless this Agreement expressly specifies a particular
method of delivery.
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, the Rating Agencies, the
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Depositor and each Serviced Non-Trust Mortgage Loan Noteholder, at no expense to
the Trust, on or before April 30 of each year, beginning in 2008 (or, as to any
such year, such earlier date as is contemplated by the last sentence of this
paragraph), 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, or (if applicable) any other depositor, trustee and/or other
certifying party and certifying officer with respect to a related securitization
trust is required to file an Annual Report on Form 10-K with the Commission in
connection with the securitization of any Serviced Non-Trust Mortgage Loan
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 15 of such following year to the Trustee, the Depositor, each
Serviced Non-Trust Mortgage Loan Noteholder and any such depositor, trustee
and/or other certifying party and certifying officer with respect to a related
securitization trust, as applicable; 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.
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.
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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, forward a Servicer Notice to such Person
(or, in the case of an Additional Item 1123 Servicer known to the Trustee or the
Depositor, as the case may be, to the party hereto that retained or engaged such
Additional Item 1123 Servicer), with a copy of such Servicer Notice to the
Depositor (if the Trustee is sending the Servicer Notice) or the Trustee (if the
Depositor is sending the Servicer Notice), as applicable, within two (2)
Business Days of such failure. Any party hereto that retains or engages, 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.
If any party hereunder is also acting as an Outside Servicer with
respect to an Outside Serviced Trust Mortgage Loan or Outside Administered REO
Property during any portion of an Exchange Act Reporting Year in respect of the
Trust, then such party shall, in its capacity as such Outside Servicer, comply
with the provisions of this Section 3.13 applicable to the Master Servicer (if
the subject party is also acting as an Outside Master Servicer) or the Special
Servicer (if the subject party is also acting as an Outside Special Servicer),
as applicable, but reflecting that such Outside Serviced Trust Mortgage Loan or
such Outside Administered REO Property is being serviced and administered under
the related Outside Servicing Agreement.
Notwithstanding the provisions of this section, with respect to each
year that is not an Exchange Act Reporting Year, the Trustee shall not be
required to deliver its Annual Statement of Compliance set forth above in this
Section 3.13.
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 30
of each year, beginning in 2008 (or, as to any such year, such earlier date as
is contemplated by the last sentence of this paragraph), to the Trustee, to the
Depositor, to each Serviced Non-Trust Mortgage Loan Noteholder 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
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Report"), signed by an authorized officer of such Servicing Function Participant
or such Sub-Servicing Function Participant, as the case may be, which report
shall contain (A) a statement by such Servicing Function Participant or such
Sub-Servicing Function Participant, as the case may be, of its responsibility
for assessing compliance with the 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 and/or
any Non-Trust Mortgage Loan Securities. 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, or (if applicable) any other
depositor, trustee and/or other
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certifying party and certifying officer with respect to a related securitization
trust is required to file an Annual Report on Form 10-K with the Commission in
connection with the securitization of any Serviced Non-Trust Mortgage Loan
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 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, the Trustee, each Serviced Non-Trust Mortgage Loan Noteholder
and any such depositor, trustee and/or other certifying party and certifying
officer with respect to a related securitization trust, as applicable, on or
before March 15 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,
forward a Servicer Notice to such Servicing Function Participant or the party
hereto that retained or engaged such Sub-Servicing Function Participant, as the
case may be, with a copy of such Servicer Notice to the Depositor (if the
Trustee is sending the Servicer Notice) or the Trustee (if the Depositor is
sending the Servicer Notice), as applicable, within two (2) Business Days of
such failure. For the purposes of this Section 3.14, as well as Section 3.13 and
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, xxxxxxxxxx@xxxxxxxxx.xxx and
xxxxxxxxxxxx@xxxxxxxxx.xxx, or such other e-mail addresses as are provided in
writing by the Master Servicer or the Special Servicer, as applicable,
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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).
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.
If any party hereunder is also acting as an Outside Servicer or
Outside Trustee with respect to an Outside Serviced Trust Mortgage Loan or
Outside Administered REO Property during any portion of an Exchange Act
Reporting Year in respect of the Trust, then such party shall, in its capacity
as such Outside Servicer or Outside Trustee, as the case may be, comply with the
provisions of this Section 3.14 applicable to the Master Servicer (if the
subject party is also acting as an Outside Master Servicer) or the Special
Servicer (if the subject party is also acting as an Outside Special Servicer) or
the Trustee (if the subject party is also acting as an Outside Trustee), as
applicable, but reflecting that such Outside Serviced Trust Mortgage Loan or
such Outside Administered REO Property is being serviced and administered under
the related Outside Servicing Agreement.
Notwithstanding the provisions of this section, with respect to each
year that is not an Exchange Act Reporting Year, the Trustee shall not be
required to deliver its report on an Annual Assessment Report or the Annual
Attestation Report for itself set forth above in this Section 3.14.
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, any Serviced Non-Trust Mortgage Loan Noteholder 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,
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any Certificate Owner (identified as such to the reasonable satisfaction of the
Master Servicer or the Special Servicer, as the case may be) or any Serviced
Non-Trust Mortgage Loan Noteholder, access to any records regarding the Serviced
Mortgage Loans and the servicing thereof within its control (which access shall
be limited, in the case of any Serviced Non-Trust Mortgage Loan Noteholder or
any regulatory authority seeking such access in respect of a Serviced Non-Trust
Mortgage Loan Noteholder, to records relating to the related Serviced Non-Trust
Mortgage Loan), except to the extent it is prohibited from doing so by
applicable law or contract or to the extent such information is subject to a
privilege under applicable law to be asserted on behalf of the
Certificateholders or the Serviced Non-Trust Mortgage Loan Noteholders. Such
access shall be afforded only upon reasonable prior written request and during
normal business hours at the offices of the Master Servicer or the Special
Servicer, as the case may be, designated by it.
In connection with providing or granting any information or access
pursuant to the prior paragraph to a Certificateholder, a Certificate Owner, a
Serviced Non-Trust Mortgage Loan Noteholder or any regulatory authority that may
exercise authority over a Certificateholder, a Certificate Owner or a Serviced
Non-Trust Mortgage Loan Noteholder, the Master Servicer and the Special Servicer
each may require payment from such Certificateholder, a Certificate Owner or a
Serviced Non-Trust Mortgage Loan Noteholder of a sum sufficient to cover the
reasonable costs and expenses of providing such information or access, including
copy charges and reasonable fees for employee time and for space; provided that
no charge may be made if such information or access was required to be given or
made available under applicable law. In connection with providing
Certificateholders and Certificate Owners access to the information described in
the preceding paragraph, the Master Servicer and the Special Servicer shall
require (prior to affording such access) a written confirmation executed by the
requesting Person substantially in such form as may be reasonably acceptable to
the Master Servicer or the Special Servicer, as the case may be, generally to
the effect that such Person is a Holder of Certificates or a beneficial holder
of Book-Entry Certificates and will keep such information confidential.
Upon the reasonable request of any Certificateholder, or any
Certificate Owner identified to the Master Servicer to the Master Servicer's
reasonable satisfaction, the Master Servicer may provide (or forward
electronically) (at the expense of such Certificateholder or Certificate Owner)
copies of any operating statements, rent rolls and financial statements obtained
by the Master Servicer or the Special Servicer; provided that, in connection
therewith, the Master Servicer shall require a written confirmation executed by
the requesting Person substantially in such form as may be reasonably acceptable
to the Master Servicer, generally to the effect that such Person is a Holder of
Certificates or a beneficial holder of Book-Entry Certificates and will keep
such information confidential.
(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 following parties: (i) the
Controlling Class Representative regarding the performance and servicing of the
Mortgage Loans and/or the REO Properties; and (ii) the related Serviced Loan
Combination Controlling Party regarding the performance and servicing of each
Serviced Loan Combination and/or any related REO Property. 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
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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 Accounts.
(a) If title to any Mortgaged Property (other than a Mortgaged
Property that secures an Outside Serviced Loan Combination) is acquired, the
deed or certificate of sale shall be issued to the Trustee or its nominee on
behalf of the Certificateholders and, in the case of a Mortgaged Property that
secures a Serviced Loan Combination, on behalf of the related Serviced Non-Trust
Mortgage Loan Noteholder(s). If, pursuant to Section 3.09(b), the Special
Servicer formed or caused to be formed, at the expense of the Trust, a single
member limited liability company (of which the Trust is the sole member) for the
purpose of taking title to one or more Administered REO Properties pursuant to
this Agreement, then (subject to the interests of any affected Serviced
Non-Trust Mortgage Loan Noteholder), the deed or certificate of sale with
respect to any such Administered 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 Administered REO Property, in accordance with the terms
of this Agreement as if such property was held directly in the name of the Trust
or Trustee under this Agreement.
The Special Servicer, on behalf of the Trust Fund and, in the case
of any Administered REO Property that relates to a Serviced Loan Combination,
the related Serviced Non-Trust Mortgage Loan Noteholder(s), shall sell any
Administered 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
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 Administered
REO Property subsequent to the end of such third succeeding year will not result
in the imposition of taxes on "prohibited transactions" (as defined in Section
860F of the Code) 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 Administered REO Property within such extended period as is
permitted by such REO Extension or such Opinion of Counsel, as the case may be.
Any expense incurred by the Special Servicer in connection with its obtaining
the REO Extension contemplated by clause (i) of the second preceding sentence or
its obtaining the Opinion of Counsel contemplated by clause (ii) of the second
preceding sentence, or for the creation of and the operating of a single member
limited liability company, shall be covered by, and reimbursable as, a Servicing
Advance.
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(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any Administered REO Property separate
and apart from its own funds and general assets. If an REO Acquisition shall
occur in respect of any Mortgaged Property (other than a Mortgaged Property that
secures a Loan Combination), the Special Servicer shall establish and maintain
one or more accounts (collectively, the "Pool REO Account"), to be held on
behalf of the Trustee in trust for the sole benefit of the Certificateholders,
for the retention of revenues and other proceeds derived from each REO Property
(other than any REO Property that relates to a Loan Combination). If such REO
Acquisition occurs with respect to the Mortgaged Property that secures any
Serviced Loan Combination, then the Special Servicer shall establish one or more
accounts solely with respect to such property (the related "Loan Combination REO
Account"), to be held for the sole benefit of the Certificateholders and the
related Serviced Non-Trust Mortgage Loan Noteholder(s). The Pool REO Account and
each Loan Combination REO Account shall each be an Eligible Account. The Special
Servicer shall deposit, or cause to be deposited, in the applicable REO Account,
upon receipt, all REO Revenues, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of any Administered REO Property. Funds
in an 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 an REO Account to
pay itself, as additional special servicing compensation in accordance with
Section 3.11(d), interest and investment income earned in respect of amounts
held in such REO Account as provided in Section 3.06(b) (but only to the extent
of the Net Investment Earnings with respect to such REO Account for any related
Investment Period). The Special Servicer shall give notice to the Trustee and
the Master Servicer of the location of each REO Account, and shall give notice
to the related Serviced Non-Trust Mortgage Loan Noteholder(s) of the location of
any Loan Combination REO Account, in each case when first established and of the
new location of any such REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the related REO
Account funds necessary for the proper operation, management, leasing,
maintenance and disposition of any Administered REO Property, but only to the
extent of amounts on deposit in such REO Account relating to such REO Property.
On the Business Day following each Trust Determination Date, the Special
Servicer shall withdraw from any Pool REO Account and deposit into the Pool
Custodial Account (or deliver to the Master Servicer or such other Person as may
be designated by the Master Servicer for deposit into the Pool Custodial
Account) the aggregate of all amounts received in respect of each Administered
REO Property (other than any Administered REO Property relating to a Serviced
Loan Combination) during the Trust Collection Period ending on such Trust
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
Pool REO Account in accordance with the last sentence of this Section 3.16(c).
On the Business Day following each related Loan Combination Determination Date,
the Special Servicer shall withdraw from the Loan Combination REO Account
related to any Serviced Loan Combination and deposit into the Loan Combination
Custodial Account that relates to such Serviced Loan Combination (or deliver to
the Master Servicer or such other Person as may be designated by the Master
Servicer for deposit into such Loan Combination Custodial Account) the aggregate
of all amounts received in respect of any Administered REO Property that relates
to such Serviced Loan Combination during the related Loan Combination Collection
Period ending on such related Loan Combination Determination Date, net of any
withdrawals made out of such amounts pursuant to the second preceding sentence
and, further, net of any reserves to be maintained in the related Loan
Combination REO Account in accordance with the last sentence of this Section
3.16(c). Notwithstanding the foregoing, the Special Servicer may retain in the
related REO Account such portion
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of proceeds and collections in respect of any Administered REO Property as may
be necessary to maintain a reserve of sufficient funds for the proper operation,
management, leasing, maintenance and disposition of such REO Property (including
the creation of a reasonable reserve for repairs, replacements, necessary
capital replacements and other related expenses), such reserve not to exceed an
amount sufficient to cover such items to be incurred during the following
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, each REO Account pursuant to Section 3.16(b)
or (c). The Special Servicer shall provide the Master Servicer any information
with respect to each REO Account as is reasonably requested by the Master
Servicer.
(e) Notwithstanding anything to the contrary, this Section 3.16
shall not apply to any Outside Administered REO Property.
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition by it of title to a Mortgaged
Property (other than a Mortgaged Property that secures an Outside Serviced Loan
Combination), 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
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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 Administered REO
Property shall be managed and operated shall be based on the Servicing Standard
and, further, based on the good faith and reasonable judgment of the Special
Servicer as to which means would be in the best interest of the
Certificateholders (and, in the case of any Administered REO Property related to
a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), as a collective whole, by maximizing (to the extent commercially
reasonable and consistent with Section 3.17(b)) the net after-tax REO Revenues
received 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 Administered REO Property is acquired, the
Special Servicer shall manage, conserve, protect and operate such REO Property
for the benefit of the Certificateholders (and, in the case of any Administered
REO Property related to a Serviced Loan Combination, the related Serviced
Non-Trust Mortgage Loan Noteholder(s)) 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 related REO Account, to the extent
of amounts on deposit therein with respect to any Administered REO Property,
funds necessary for the proper operation, management, maintenance and
disposition of such 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 related REO Account in
respect of any Administered 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
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regard to recoverability if it is a necessary fee or expense incurred in
connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the
Special Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to
such Administered REO Property, if the New Lease, by its terms would give
rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered
REO Property, other than the completion of a building or other improvement
thereon, and then only if more than 10% of the construction of such
building or other improvement was completed before default on the related
Serviced Mortgage Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate such Administered REO Property
on any date more than 90 days after the related REO Acquisition;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer, at the
direction of the Special Servicer, and shall be reimbursable as a Servicing
Advance) to the effect that such action would not cause such Administered REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at
any time that it is held by 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 Administered 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 and, in the case of any Administered REO
Property that relates to a Serviced Loan Combination, the related Serviced
Non-Trust Mortgage Loan Noteholder(s)) shall be reasonable and customary
in consideration of the nature and locality of such Administered REO
Property;
(iii) except as permitted under Section 3.17(a), any such contract
shall require, or shall be administered to require, that the Independent
Contractor, in a timely manner, (A) pay out of related REO Revenues all
costs and expenses incurred in connection with the operation and
management of such Administered REO Property, including those listed in
Section 3.17(b) above, and (B) except to the extent that such revenues are
derived from any services rendered by the Independent Contractor to
tenants of such Administered REO Property that are not customarily
furnished or rendered in connection with the rental of real property
(within the
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meaning of Section 1.856-4(b)(5) of the Treasury regulations or any
successor provision), remit all related revenues collected (net of its
fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to
any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of its
duties and obligations hereunder with respect to the operation and
management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto
to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such
Administered REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations under Section 3.16 and this Section 3.17 for indemnification of
the Special Servicer by any such Independent Contractor, and nothing in this
Agreement shall be deemed to limit or modify such indemnification. No agreement
entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing
Agreement for purposes of Section 3.22.
(e) Notwithstanding anything to the contrary, this Section 3.17
shall not apply to any Outside Administered REO Property.
SECTION 3.18. Sale of Trust Mortgage Loans and Administered
REO Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Trust Mortgage Loan or
Administered REO Property only in connection with a Permitted Purchase of such
Trust Mortgage Loan or Administered REO Property, as the case may be, and/or in
connection with a sale of such Administered REO Property in accordance with this
Section 3.18.
(b) Within five (5) Business Days after the Special Servicer has
knowledge that any Trust Mortgage Loan has become a Specially Serviced Trust
Mortgage Loan, the Special Servicer shall give notice of such event to the
related Serviced Non-Trust Mortgage Loan Noteholder(s) (if such Trust Mortgage
Loan is part of a Serviced Loan Combination), 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 Trust 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 Trust 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 Trust
Mortgage Loan.
(c) If none of the Purchase Option Holders exercises its option
to purchase any Specially Serviced Trust Mortgage Loan as described in
subsection (b) above, then (subject to Section 3.18(d)) each Purchase Option
Holder will also have the option to purchase that Specially Serviced Trust
Mortgage Loan at a price equal to the fair value (the "FV Price") of such
Specially Serviced Trust
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Mortgage Loan; provided that a material default exists with respect to such
Specially Serviced Trust 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 Trust 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 Trust 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) Notwithstanding the foregoing, any single Certificateholder
or group of Certificateholders entitled to a majority of the Voting Rights
allocated to the Controlling Class shall have an exclusive right to exercise the
fair value purchase option at the FV Price pursuant to subsection (b) above for
a period of 30 days following the determination of the FV Price, and prior to
any exercise of such purchase option by any Purchase Option Holder. Upon
expiration of the 30-day period described in the prior sentence, 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 Trust 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) 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 Trust 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 Trust 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 Trust Mortgage Loan is the Special Servicer or an
Affiliate thereof, the Trustee shall verify that the FV Price of such Trust
Mortgage Loan is at least equal to the fair value of such Trust 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
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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 Trust 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 Trust 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. Any Purchase Option Holder that acquires, pursuant to this Section
3.18, a Trust Mortgage Loan that is part of a Loan Combination must satisfy the
requirements for an acceptable transferee under the related Co-Lender Agreement.
(i) In determining the FV Price for any Specially Serviced Trust
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 Trust Mortgage Loan;
the period and amount of any delinquency on the subject Specially Serviced Trust
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 Trust Mortgage Loan if the Special Servicer were to pursue a
workout or foreclosure strategy instead of selling such Mortgage Loan to a
Purchase Option Holder.
(j) The purchase option for any Specially Serviced Trust
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 Trust Mortgage within the time period provided
for under Section 3.18(e)), (ii) such Specially Serviced Trust 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 Trust Mortgage Loan has been
removed from the Trust Fund.
(k) Notwithstanding anything herein to the contrary, if and for
so long as an Outside Serviced Trust Mortgage Loan constitutes a "Specially
Serviced Mortgage Loan" (or the equivalent) under the related Outside Servicing
Agreement as to which there exists a material default, then such Outside
Serviced Trust Mortgage Loan shall be deemed a "Specially Serviced Trust
Mortgage Loan" for purposes of, and be subject to the purchase options
contemplated by, Sections 3.18(b) through 3.18(j); provided that the FV Price
described above may be calculated based upon, among other things, appraisals and
other reasonably appropriate information obtained from the related Outside
Servicers
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under the related Outside Servicing Agreement. If the Special Servicer has
received insufficient information from the applicable Outside Servicer with
respect to any such Outside Serviced Trust Mortgage Loan in order to establish a
FV Price, it will base such determination only on a current Appraisal and on
information otherwise available or reasonably obtainable by it, at the expense
of the Trust. In addition, if the Special Servicer is determining a FV Price
with respect to any Outside Serviced Trust Mortgage Loan and has not received
from the applicable Outside Servicer an appraisal with respect to the Mortgaged
Property securing such Outside Serviced Trust Mortgage Loan that is dated within
the 12 month period prior to the determination of the FV Price, then the Special
Servicer shall obtain, at the expense of the Trust, a new Appraisal of the
subject Mortgaged Property. If the Special Servicer determines that a FV Price
cannot be established for any such Outside Serviced Trust Mortgage Loan based on
a current Appraisal and other information available to it, then none of the
purchase option holders will be permitted to exercise the purchase option at a
FV Price. In connection with the foregoing, the Special Servicer will be
entitled to a separate fee of $1,500 per loan payable from the Pool Custodial
Account for making a FV Price determination with respect to any such Outside
Serviced Trust Mortgage Loan, in addition to being entitled to withdraw from the
Pool Custodial Account any out-of-pocket expenses associated with making such FV
Price determination.
(l) Until such time as a FV Bid is accepted with respect to any
Specially Serviced Trust Mortgage Loan, the Special Servicer shall continue to
pursue all of the other resolution options available to it with respect to such
Specially Serviced Trust Mortgage Loan in accordance with the Servicing
Standard.
(m) Any Specially Serviced Trust 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. In addition, any Trust Mortgage Loan that is part of a
Loan Combination and 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
the related Serviced Non-Trust Mortgage Loan Noteholder(s) provided for under
the related Co-Lender Agreement. If any Serviced Loan Combination is comprised
of Specially Serviced Mortgage Loans and the Special Servicer has determined a
FV Price with respect to the related Combination Trust Mortgage Loan in
accordance with this Section 3.18, the Special Servicer shall provide to the
related Non-Trust Mortgage Loan Noteholder(s) all material information in its
possession that has formed the basis of such FV Price, including the most
current Appraisal in its possession.
(n) The Special Servicer shall use its best efforts to solicit
offers for each Administered 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 and/or Section 6.12, 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 Administered REO Property. If the
Special Servicer reasonably believes that it will be unable to realize a fair
price for any Administered REO Property within the time constraints imposed by
Section 3.16(a), then (subject to Section 6.11 and/or Section 6.12, in each case
if and as applicable) the Special Servicer shall dispose of such Administered
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.
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(o) The Special Servicer shall give the Trustee and the
Depositor prior written notice of its intention to sell any Administered REO
Property pursuant to this Section 3.18.
(p) No Interested Person shall be obligated to submit an offer
to purchase any Administered 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 Administered REO Property pursuant
hereto.
(q) Whether any cash offer constitutes a fair price for any
Administered 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 Administered REO Property, the Trustee shall be
supplied with and shall be entitled to rely on the most recent appraisal in the
related Servicing File conducted in accordance with this Agreement within the
preceding 12-month period (or, in the absence of any such appraisal or if there
has been a material change at the subject Administered REO Property since any
such appraisal, on a new appraisal to be obtained by the Special Servicer (the
cost of which shall be covered by, and be reimbursable as, a Servicing
Advance)). The appraiser conducting any such new appraisal shall be an
Independent Appraiser selected by the Special Servicer if neither the Special
Servicer nor any Affiliate thereof is bidding with respect to an Administered
REO Property and selected by the Trustee if either the Special Servicer or any
Affiliate thereof is so bidding. Where any Interested Person is among those
bidding with respect to an Administered 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 Administered 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 Administered REO Property,
the state of the local economy and the obligation to dispose of the subject
Administered REO Property within the time period specified in Section 3.16(a).
The Purchase Price for any Administered 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 Administered 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(q),
that such offer constitutes a fair price for any Administered REO Property. Any
offer by the Special Servicer shall be unconditional; and, if accepted, the
subject Administered 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.
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(r) Subject to Sections 3.18(a) through 3.18(q) above, and
further subject to Section 6.11 and/or Section 6.12, in each case if and as
applicable, the Special Servicer shall act on behalf of the Trustee in
negotiating with independent third parties seeking to purchase an Administered
REO Property and taking any other action necessary or appropriate in connection
with the sale of any Specially Serviced Trust Mortgage Loan or Administered 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 Administered 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 Administered REO Property without obligation to deposit such amounts into
any Custodial Account. Any sale of a Specially Serviced Trust Mortgage Loan or
an Administered 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.
(s) Any sale of a Specially Serviced Trust Mortgage Loan or an
Administered REO Property pursuant to this Section 3.18 shall be for cash only
and shall be on a servicing released basis.
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 Trust 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 Serviced
Trust Mortgage Loans and, if it constitutes a "Performing Serviced Mortgage
Loan" (or the equivalent) under the related Outside Servicing Agreement, any
Outside Serviced Trust Mortgage Loan; 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 Trust Mortgage Loan and REO Trust 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 Serviced Trust 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 Serviced Trust
Mortgage Loan without any limitation of the kind set forth in clauses (1) and
(2) above.
(b) The Master Servicer shall, as to each Serviced Trust
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 Serviced Trust 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.
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(c) The Master Servicer shall, as to each Serviced Trust
Mortgage Loan which is secured by the interest of the related Mortgagor in a
hospitality property (as identified on Schedule VI 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 Serviced
Trust 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 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) or 3.05A 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 Administered 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 Serviced Trust Mortgage
Loan is involved) and the Special Servicer (if a Specially Serviced Trust
Mortgage Loan or an REO Trust Mortgage Loan is involved) shall each be
responsible for: (i) providing on a timely basis to any lender of any related
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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 Trust 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 Trust 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 any of Grantor Trust A-2FL, Grantor Trust A-MFL or, if created hereunder
taking into account Section 2.05(b), Grantor Trust V. 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.
(g) Notwithstanding anything to the contrary in this Agreement,
the Special Servicer (and not the Master Servicer) shall direct, manage,
prosecute and/or defend any and all litigation and/or claims relating to (i) the
enforcement of the obligations of a Mortgagor under the related loan documents
(except with respect to the Outside Serviced Trust Mortgage Loans) and (ii) any
claim or action brought by a Mortgagor against the Trust; provided that, in the
case of a Performing Serviced Trust Mortgage Loan, the Special Servicer shall
only direct, manage, prosecute and/or defend any and all litigation and/or
claims relating to the matters set forth in clauses (i) and (ii) above if it
receives a request to do so from the Controlling Class Representative and if it
receives or is entitled to receive reasonable compensation therefor with respect
to such Performing Serviced Trust Mortgage Loan (and such reasonable
compensation shall be paid directly by the Controlling Class Representative out
of its own funds and not by the Trust), and the Special Servicer shall not be
deemed to have unreasonably withheld or delayed providing its consent to direct,
manage, prosecute and/or defend any and all litigation and/or claims described
in clauses (i) and (ii) above, or to have unreasonably denied such consent, if
it does not receive or is not entitled to receive such reasonable compensation;
and provided, further, that, if there is a litigation or claim in connection
with a Performing Serviced Trust Mortgage Loan solely relating to or affecting
the Master Servicer or directed solely against the Master Servicer (and not the
Trust or any other party to this Agreement), then the Master Servicer and not
the Special Servicer shall direct, manage, prosecute and/or defend such
litigation and/or claim; and provided, further, that if there is a litigation or
claim relating to or affecting the Master Servicer and, additionally, the Trust
and/or any other party to this Agreement, then the Special Servicer and not the
Master Servicer shall direct, manage, prosecute and/or defend such litigation
and/or claim; and provided, further, that in the case of such a litigation or
claim relating to or affecting the Master Servicer and additionally the Trust
with respect to a Performing Serviced Trust Mortgage Loan, the Special Servicer
shall only direct, manage, prosecute and/or defend such litigation and/or claim
if it receives a request to do so from the Controlling Class Representative and
if it receives or is entitled to receive reasonable compensation therefor with
respect to such Performing Serviced Trust Mortgage Loan (and such reasonable
compensation shall be
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paid directly by the Controlling Class Representative out of its own funds and
not by the Trust) and the Special Servicer shall not be deemed to have
unreasonably withheld or delayed providing its consent to direct, manage,
prosecute and/or defend any such litigation and/or claims, or to have
unreasonably denied such consent, if it does not receive or is not entitled to
receive such reasonable compensation; and provided, further, that, in the case
of such a litigation or claim relating to or affecting the Master Servicer and
additionally the Trust and/or any other party to this Agreement which is being
directed, managed, prosecuted and/or defended by the Special Servicer, the
Master Servicer shall (i) be entitled to participate therein and (ii) consent to
any settlement or judgment that may impose liability on or otherwise materially
and adversely affect the Master Servicer; and provided, further, that (i) if any
action, suit, litigation or proceeding names the Trustee in its individual
capacity, or in the event that any judgment is rendered against the Trustee in
its individual capacity, then the Trustee, upon prior written notice to the
Special Servicer, may retain counsel and appear in any such proceeding on its
own behalf in order to protect and represent its interests, except that the
Special Servicer shall retain the right to manage and direct any such action,
suit, litigation or proceeding, (ii) in the event of any action, suit,
litigation or proceeding, other than an action, suit, litigation or proceeding
relating to the enforcement of the obligations of a Mortgagor, guarantor or
other obligor under the related Mortgage Loan documents or otherwise related to
the realization of the Trust's interest in any Mortgaged Property or REO
Property with respect thereto, the Special Servicer shall not, without the prior
written consent of the Trustee, (A) initiate any action, suit, litigation or
proceeding in the name of the Trustee, whether in such capacity or individually,
(B) engage counsel to represent the Trustee, or (C) prepare, execute or deliver
any government filings, forms, permits, registrations or other documents or take
any other similar action with the intent to cause, and that actually causes, the
Trustee 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, then the Trustee shall have the right to retain counsel and
appear in any such proceeding on its own behalf in order to protect and
represent its interest, whether as Trustee or individually, except that the
Special Servicer shall retain the right to manage and direct any such action,
suit, litigation or proceeding. If the Special Servicer elects not to manage and
direct any action, suit, litigation or proceeding with respect to a Performing
Serviced Trust Mortgage Loan because no agreement is reached regarding its
compensation, the Master Servicer shall direct and manage such action, suit,
litigation or proceeding.
(h) In connection with a mediation and/or arbitration proceeding
conducted in accordance with Section 2.03(i) hereof or Section 5(i) of any
UMLS/Depositor Mortgage Loan Purchase Agreement, as the case may be, 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 Trust 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.
(i) 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(i), the "Master Servicing Group" shall mean the
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business unit of the Master Servicer (which, with respect to Wachovia Bank,
National Association, 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(i): (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.
(j) If any Serviced 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(o)
below, and further subject to Section 3.08, Section 6.11 and/or Section 6.12, in
each case if and as applicable, and any related intercreditor, co-lender or
similar agreement (including, in the case of a Mortgage Loan that is part of a
Serviced Loan Combination, the related Co-Lender Agreement), the Special
Servicer and/or the Master Servicer may, on behalf of the Trustee and, in the
case of a Serviced Non-Trust Mortgage Loan, the related Serviced Non-Trust
Mortgage Loan Noteholder, agree to any modification, extension, waiver or
amendment of any term of any Serviced 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, any Serviced Non-Trust Mortgage Loan Noteholder, the
Master Servicer (in the case of any such action taken by the Special Servicer)
or, except as expressly set forth below, the Special Servicer (in the case of
any such action taken by the Master Servicer). Neither the Master Servicer nor
the Special Servicer (in its capacity as such) may agree with the related
Mortgagor to any modification, extension, waiver or amendment of an Outside
Serviced Mortgage Loan.
(b) All modifications, extensions, waivers or amendments of any
Serviced 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.
All modifications, extensions, waivers or amendments of a Co-Lender Agreement or
any other intercreditor agreement relating to a Serviced Mortgage Loan shall be
in writing and shall be considered and effected in a manner consistent with the
Servicing Standard.
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(c) In the case of any Performing Serviced Mortgage Loan, the
Master Servicer shall (without the consent of the Trustee, any
Certificateholder, any Serviced Non-Trust Mortgage Loan Noteholder or, except as
expressly set forth herein, the Special Servicer, the Controlling Class
Representative or a Loan Combination Controlling Party), be responsible for the
following:
(i) consenting to subordination of the lien of the subject
Performing Serviced 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 Serviced Mortgage Loan, or materially or adversely
affect the value of the related Mortgaged Property, or cause the subject
Performing Serviced 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) 20,000 square feet and (B) 20% 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, (B) the subject Mortgage Loan
does not have an outstanding principal balance in excess of $5,000,000 and
(C) the subject Mortgaged Property does not secure a Loan Combination;
(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);
(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;
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(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 Serviced
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 Serviced 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 Serviced
Mortgage Loan is not one of the then 10 largest Trust Mortgage Loans (by
balance) and the related provision of the subject Performing Serviced
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(q)
below) a waiver of the payment of assumption fees) of the subject Performing
Serviced 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(o) and Section 3.20(q), or otherwise as expressly
provided in this Agreement, the Master Servicer may not agree to waive, modify
or amend any term of any Performing Serviced Mortgage Loan (including allowing
the Mortgagor to deviate from the terms of the related loan documents regarding
principal prepayments) or respond to any Mortgagor requests for mortgagee
consent unless the Master Servicer has obtained the consent of the Special
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Servicer (the Master Servicer shall forward such requests for consent to the
Special Servicer, along with the Master Servicer's recommendation, analysis and
any other information in the Master Servicer's possession that the Special
Servicer may reasonably request to grant or withhold such consent). The Special
Servicer shall have 15 days (or, in the case of a consent to a determination as
to whether the conditions precedent to a subject action have been satisfied, 10
days, or within such longer period as may be necessary to obtain any required
consent pursuant to Section 6.11 and/or Section 6.12) following receipt of such
recommendation and other information reasonably requested by the Special
Servicer, in accordance with the Servicing Standard, to withhold or grant
consent to any such request and/or to make a determination as to whether any
application conditions have been satisfied, as applicable, each in accordance
with the terms of the subject Performing Serviced Mortgage Loan and this
Agreement. If the Special Servicer does not respond within such 15-day period,
10-day period or such longer period as set forth above (and as set forth in the
notice described in the following proviso), 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 and/or
Section 6.12, as applicable, then the Special Servicer shall, prior to the
termination of such 15-day or 10-day period, provide notice to the Master
Servicer of such process and the estimated time period for completion thereof.
Furthermore, the Master Servicer may not in any event agree to any modification,
extension, waiver or amendment of any term of any Serviced Mortgage Loan that
would cause an Adverse REMIC Event with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to any of Grantor Trust A-2FL, Grantor Trust
A-MFL or, if created hereunder taking into account Section 2.05(b), Grantor
Trust V.
(d) Except as provided in Section 3.02(a), Section 3.07, Section
3.08, Section 3.20(e), Section 3.20(o) and Section 3.20(q), the Special
Servicer, on behalf of the Trustee or, in the case of a Serviced Non-Trust
Mortgage Loan, the related Serviced Non-Trust Mortgage Loan Noteholder, 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 Serviced 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(q), 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
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(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 Serviced Mortgage Loan that
would cause an Adverse REMIC Event with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to any of Grantor Trust A-2FL, Grantor Trust
A-MFL or, if created hereunder taking into account Section 2.05(b), Grantor
Trust V.
(e) Notwithstanding Section 3.20(d), but subject to Section
3.20(q), Section 6.11 and/or Section 6.12, 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,
(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) or, if a Serviced Loan Combination is
involved, would increase the recovery on such Loan Combination to
Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s) (as a collective whole), on a present value basis (the relevant
discounting of anticipated collections that will be distributable to the
Certificateholders (or, in the case of a Serviced Loan Combination, to
Certificateholders and the related Non-Trust Mortgage Loan Noteholder(s)), 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 any of
Grantor Trust A-2FL, Grantor Trust A-MFL or, if created hereunder taking into
account Section 2.05(b), Grantor Trust V; and provided, further, that any
modification, extension, waiver or amendment of the payment terms of a Serviced
Loan Combination shall be structured so as to be consistent with the allocation
and payment priorities set forth in the related loan documents and the related
Co-Lender Agreement, such that neither the Trust, as holder of the Trust
Mortgage Loan that constitutes part of that Serviced Loan Combination, on the
one hand, nor any of the related Serviced Non-Trust Mortgage Loan Noteholders,
on the other hand, shall gain a priority over any other such
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holder with respect to any payment, which priority is not, as of the date of the
related Co-Lender Agreement, reflected in such loan documents and such Co-Lender
Agreement; and provided, further, that, with respect to any Serviced Loan
Combination, to the extent consistent with the Servicing Standard (taking into
account the extent to which any Serviced Subordinate Non-Trust Mortgage Loan
that is part of such Serviced Loan Combination is junior to the Trust Mortgage
Loan and any Pari Passu Non-Trust Mortgage Loan that is part of the same
Serviced Loan Combination), (1) no waiver, reduction or deferral of any
particular amounts due on the Trust Mortgage Loan or any Pari Passu Non-Trust
Mortgage Loan that is part of such Serviced Loan Combination shall be effected
prior to the waiver, reduction or deferral of the entire corresponding item in
respect of each Serviced Subordinate Non-Trust Mortgage Loan, if any, that is
part of such Serviced Loan Combination, and (2) no reduction of the Mortgage
Rate on the Trust Mortgage Loan or any Pari Passu Non-Trust Mortgage Loan that
is part of such Serviced Loan Combination shall be effected prior to the
reduction of the Mortgage Rate on each Serviced Subordinate Non-Trust Mortgage
Loan, if any, that is part of such Serviced Loan Combination, to the fullest
extent possible.
Notwithstanding the foregoing, in no event shall the Special
Servicer: (i) extend the maturity date of a Serviced Mortgage Loan beyond the
date that is two (2) years prior to the Rated Final Distribution Date; (ii)
extend the maturity date of any Serviced Mortgage Loan for more than five (5)
years beyond its Stated Maturity Date; (iii) if the subject Serviced 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 Serviced 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, in the case of a Serviced Loan Combination, the related
Serviced Non-Trust Mortgage Loan Noteholder(s)) 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 Serviced Trust Mortgage Loan that has an unpaid principal balance that
is at least equal to the lesser of $35,000,000 and 5% of the then aggregate
principal balance of the Mortgage Pool or is one of the ten (10) largest
(measured by unpaid principal balance) Trust 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 (and, if a Serviced Loan
Combination is involved and if such Serviced Loan
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Combination includes a Specially Designated Securitized Non-Trust Mortgage Loan,
each applicable Other Rating Agency) that such action will not result in an
Adverse Rating Event with respect to any Class of Certificates or class of
Specially Designated Non-Trust Mortgage Loan Securities 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 Serviced 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 Serviced 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 and, if a Serviced Non-Trust
Mortgage Loan is affected, the related Serviced Non-Trust Mortgage Loan
Noteholder, in writing, of any modification, extension, waiver or amendment of
any term of any Serviced 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 and, if a
Serviced Non-Trust Mortgage Loan is affected, the related Serviced Non-Trust
Mortgage Loan Noteholder), 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 Serviced 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 Serviced 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
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Serviced Mortgage Loan in accordance with the terms thereof, then the Master
Servicer shall, subject to the next paragraph and the related loan documents,
(i) only in the case of a Serviced 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 Serviced 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 or class of Specially Designated Non-Trust Mortgage Loan
Securities 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 and, in the case of a Serviced
Loan Combination, the affected Serviced Non-Trust Mortgage Loan Noteholder(s));
provided that the written confirmation contemplated by clause (ii) above shall
not be required (A) with respect to S&P and Fitch in the case of a Serviced
Trust 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) Trust Mortgage Loans in the
Mortgage Pool, so long as, in lieu of obtaining such written confirmation from
S&P or Fitch the Master Servicer delivers to S&P and Fitch a certification in
the form attached hereto as Exhibit M (a "Defeasance Certificate"), or (B) with
respect to Xxxxx'x in the case of any Serviced Trust 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) Trust Mortgage Loans in the Mortgage Pool; and
provided, further, that, the written confirmation contemplated by clause (ii)
above shall not be required from S&P, Fitch and/or Xxxxx'x (provided the Master
Servicer delivers a Defeasance Certificate to S&P and Fitch), as applicable, in
the event the subject Serviced Trust Mortgage Loan complies with the then
current applicable guidelines set forth by such Rating Agency, or the unpaid
principal balance of the subject Serviced Trust Mortgage Loan, the percentage
the subject Serviced Trust Mortgage Loan constitutes of the Mortgage Pool or the
relative size of the subject Serviced Trust 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 Serviced 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.
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All expenses related to the defeasance of a Serviced Mortgage Loan
shall be charged to the related Mortgagor or other responsible party.
With respect to any Defeasance Serviced Trust 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 of similar import)
thereunder in connection with a defeasance, the Trustee hereby designates LBHI
(if such Defeasance Serviced Trust Mortgage Loan is a Xxxxxx Trust Mortgage
Loan) or the related Unaffiliated Mortgage Loan Seller (if such Defeasance
Serviced Trust Mortgage Loan is a Non-Xxxxxx Trust Mortgage Loan) as its
designee with respect to the exercise of, and hereby grants to LBHI (if such
Defeasance Serviced Trust Mortgage Loan is a Xxxxxx Trust Mortgage Loan) or the
related Unaffiliated Mortgage Loan Seller (if such Defeasance Serviced Trust
Mortgage Loan is a Non-Xxxxxx Trust Mortgage Loan) the right, in its capacity as
designee of the Trustee as holder of the subject Serviced Trust 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
Serviced Trust 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 Serviced
Trust Mortgage Loan, receives written notice from the related Mortgagor that it
intends to defease the subject Defeasance Serviced Trust 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
LBHI (if such Defeasance Serviced Trust Mortgage Loan is a Xxxxxx Trust Mortgage
Loan) or the related Unaffiliated Mortgage Loan Seller (if such Defeasance
Serviced Trust Mortgage Loan is a Non-Xxxxxx Trust Mortgage Loan) or (if LBHI or
the related Unaffiliated Mortgage Loan Seller, as the case may be, 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
LBHI or the related Unaffiliated Mortgage Loan Seller, as the case may be,
promptly after receipt of such written notice. If, however, the Master Servicer,
in accordance with the Servicing Standard, determines that neither LBHI nor its
designee (if such Defeasance Serviced Trust Mortgage Loan is a Xxxxxx Trust
Mortgage Loan) or neither the related Unaffiliated Mortgage Loan Seller nor its
designee (if such Defeasance Serviced Trust Mortgage Loan is a Non-Xxxxxx Trust
Mortgage Loan), as the case may be, 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 LBHI or the related
Unaffiliated Mortgage Loan Seller, as the case may be, 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
LBHI or its designee (if such Defeasance Serviced Trust Mortgage Loan is a
Xxxxxx Trust Mortgage Loan), or the related Unaffiliated Mortgage Loan Seller or
its designee (if such Defeasance Serviced Trust Mortgage Loan is a Non-Xxxxxx
Trust Mortgage Loan), as the case may be, in connection therewith shall be null
and void. In the event, with respect to a Defeasance Serviced Trust Mortgage
Loan, that LBHI or its designee (if such Defeasance Serviced Trust Mortgage Loan
is a Xxxxxx Trust Mortgage Loan), the related Unaffiliated Mortgage Loan Seller
or its designee (if such
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Defeasance Serviced Trust Mortgage Loan is a Non-Xxxxxx Trust Mortgage Loan), 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 Serviced Trust
Mortgage Loan. If LBHI or the related Unaffiliated Mortgage Loan Seller, as the
case may be, 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 to LBHI or the related Unaffiliated Mortgage
Loan Seller, as the case may be, pursuant to this paragraph shall be delivered
to the designee of LBHI or the related Unaffiliated Mortgage Loan Seller, as the
case may be.
(l) If the Master Servicer receives notice from the Mortgagor
under any Early Defeasance Trust Mortgage Loan that such Mortgagor intends to
defease such Early Defeasance Trust 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 Trust 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 Trust Mortgage Loan (in accordance with the related loan documents)
is less than an amount equal to the Purchase Price (calculated as if the subject
Serviced Trust 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 Depositor (if such Early Defeasance Trust
Mortgage Loan is a Xxxxxx Trust Mortgage Loan) or the related Unaffiliated
Mortgage Loan Seller (if such Early Defeasance Trust Mortgage Loan is a
Non-Xxxxxx Trust Mortgage Loan), 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 Depositor (if such
Early Defeasance Trust Mortgage Loan is a Xxxxxx Trust Mortgage Loan) or the
related Unaffiliated Mortgage Loan Seller (if such Early Defeasance Trust
Mortgage Loan is a Non-Xxxxxx Trust Mortgage Loan) shall be required, pursuant
to or as contemplated by Section 2.03(j) (if applicable), to repurchase such
Early Defeasance Trust Mortgage Loan on or before the proposed date on which
such Early Defeasance Trust Mortgage Loan will be defeased. The Master Servicer
shall use reasonable efforts to require the Depositor or the related
Unaffiliated Mortgage Loan Seller, as applicable, 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 Trust 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 Trust Mortgage Loan as
a prepayment in full of such Early
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Defeasance Trust 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 Pool 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 Trust
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 Depositor and/or the related Unaffiliated Mortgage Loan Seller, as
applicable, of the foregoing.
(m) If, with respect to the XxXxxxxxxx Towers Trust Mortgage
Loan, the Master Servicer receives notice from the related Mortgagor that it has
received an offer to purchase all or substantially all of either the XxXxxxxxxx
Tower I Parcel or the XxXxxxxxxx Tower II Parcel (the release of which sold
property shall be effected through partial defeasance), the Master Servicer
shall promptly notify the Special Servicer of such proposed sale and partial
defeasance, shall evaluate the request and prepare a report in connection
therewith, and shall deliver to the Special Servicer any documents or other
materials that the Master Servicer shall have received in connection therewith
along with the Master Servicer's report and any other documentation in the
Master Servicer's possession with regard to such request. The Special Servicer
shall have the right, within 10 Business Days (or such longer period as may be
necessary to obtain any required consent pursuant to Section 6.11) of receipt of
such report, such supporting materials and any other materials reasonably
requested by the Special Servicer, in accordance with the Servicing Standard, to
withhold or grant consent and/or to make a determination as to whether the
conditions to such sale and partial defeasance set forth in the related loan
documents have been satisfied, in accordance with the terms of the XxXxxxxxxx
Towers Trust Mortgage Loan. If the Special Servicer does not respond within such
10 Business Day period, such party's consent shall be deemed to have been
granted; provided, however, if the Special Servicer is in the process of
obtaining a consent required pursuant to Section 6.11, then the Special Servicer
shall, prior to the termination of such 10 Business Day period, 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 consent to
such proposed sale and partial defeasance and/or determines that the conditions
to effect such sale have been satisfied, the Master Servicer shall process such
request of the related Mortgagor.
(n) If, with respect to a Special Release Trust Mortgage Loan,
the Master Servicer receives notice from the related Mortgagor requesting the
release of the related Special Release Mortgaged Property from the lien of the
related Mortgage for no consideration, the Master Servicer shall evaluate the
request and prepare a report in connection therewith, shall promptly forward
such request to the Special Servicer for its consent, and shall deliver to the
Special Servicer any documents or other materials that the Master Servicer shall
have received in connection therewith along with the Master Servicer's report
and any other documentation in the Master Servicer's possession with regard to
such request. The Special Servicer shall have 10 Business Days (or such longer
period as may be necessary to obtain any required consent pursuant to Section
6.11) of receipt of such report, supporting materials and any other materials
reasonably requested by the Special Servicer, in accordance with the Servicing
Standard, to withhold or grant consent and/or to make a determination as to
whether the conditions to such release set forth in the related loan documents
have been satisfied, in accordance with the terms of
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the subject Special Release Trust Mortgage Loan. If the Special Servicer does
not respond within such 10 Business Day period, such party's consent shall be
deemed to have been granted; provided, however, if the Special Servicer is in
the process of obtaining a consent required pursuant to Section 6.11, then the
Special Servicer shall, prior to the termination of such 10 Business Day period,
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
consent to such proposed release and/or determines that the conditions to effect
such release have been satisfied, the Master Servicer shall process such request
of the related Mortgagor.
(o) 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 Serviced 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.
(p) 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.
(q) 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.
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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 Serviced Mortgage Loan that had otherwise been a
Performing Serviced 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
Serviced 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.
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
Serviced 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.
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(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 Administered 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 Administered 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 Mortgage Loans and Administered 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 Administered 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
(provided that any Sub-Servicer identified on Exhibit K hereto shall not be
required to comply with the provisions of Section 3.19(i)) and, with the
exception of Sections 7.01(a)(x) through (xiii), provides for events of default
with respect to the Sub-Servicer substantially the same as those set forth in
Section 7.01 (modified as necessary to apply to the Sub-Servicer's obligations
under the Sub-Servicing Agreement); (ii) provides that if the Master Servicer or
the Special Servicer, as the case may be, shall for any reason no longer act in
such capacity hereunder (including by reason of an Event of Default), the
Trustee or its designee may thereupon assume all of the rights and, except to
the extent they arose prior to the date of assumption,
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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 and, in the case of a Sub-Servicing
Agreement relating to a Serviced Loan Combination, the related Serviced
Non-Trust Mortgage Loan Noteholder(s), 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, any Serviced Non-Trust
Mortgage Loan Noteholder or any Certificateholder shall have any duties under
such agreement or any liabilities arising therefrom; (iv) permits any purchaser
of a Serviced Trust Mortgage Loan pursuant to this Agreement to terminate such
sub-servicing agreement with respect to such purchased Trust 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 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 Serviced 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 Serviced 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 (and, to the related Serviced Non-Trust
Mortgage Loan Noteholder, a copy of any Sub-Servicing Agreement in respect of a
Serviced Non-Trust Mortgage
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Loan), 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, the Controlling Class Certificateholders and, if a
Serviced Loan Combination is involved, the related Non-Trust Mortgage Loan
Noteholder(s) 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 Serviced 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 applicable law, and
(ii) except for any Sub-Servicer that is servicing any of the Serviced 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 and, in the case of a Serviced
Loan Combination, also for the benefit of the related Serviced Non-Trust
Mortgage Loan Noteholder(s), shall (at no expense to the Trustee, any
Certificateholder, any Serviced Non-Trust Mortgage Loan Noteholder or the Trust
Fund) monitor the performance and enforce the obligations of their respective
Sub-Servicers under the related Sub-Servicing Agreements. Such enforcement,
including the legal prosecution of claims, termination of Sub-Servicing
Agreements in accordance with their respective terms and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Master Servicer or the Special Servicer, as applicable,
in its good faith business judgment, would require were it the owner of the
subject Serviced Mortgage Loans.
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(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, the Certificateholders and the
Serviced Non-Trust Mortgage Loan Noteholder(s) for the performance of their
respective obligations and duties under this Agreement in accordance with the
provisions hereof to the same extent and under the same terms and conditions as
if each alone were servicing and administering the Serviced Mortgage Loans
and/or Administered 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.
(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 the Trustee files a Form 15 with respect to the Trust in
accordance with Section 8.15, 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 the Trustee
files a Form 15 with respect to the Trust in accordance with Section 8.15, 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
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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 and the Serviced Non-Trust Mortgage Loan Noteholders, 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 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.
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(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.
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 and the Serviced Non-Trust Mortgage Loan Noteholders, 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
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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 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.
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(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. Certain Matters Regarding the Purchase of the Trust
Mortgage Loan in a Loan Combination.
If, in connection with a Permitted Purchase, a Trust Mortgage Loan
that is part of a Loan Combination is purchased or repurchased from the Trust
Fund, the purchaser(s) thereof shall be bound by the terms of the related
Co-Lender Agreement and shall assume the rights and obligations of the holder of
such Mortgage Loan under such Co-Lender Agreement. Subject to the terms of the
related Co-Lender Agreement, all portions of the related Mortgage File and other
documents pertaining to the subject Trust Mortgage Loan shall be endorsed or
assigned, to the extent necessary or appropriate, to the purchaser(s) of such
Trust Mortgage Loan in their capacity as holder of such Trust Mortgage Loan (as
a result of such purchase or repurchase) under the related Co-Lender Agreement
in the manner contemplated thereunder, which such purchaser(s) shall be deemed
to acknowledge. Thereafter, in the case of a Serviced Combination Trust Mortgage
Loan, such Mortgage File shall be held by the lender responsible for maintaining
custody thereof under the related Co-Lender Agreement, or a custodian appointed
thereby, for the benefit of each of the "Lenders" as defined under, and as their
interests appear under, the related Co-Lender Agreement; provided that the
Mortgage Note for such Serviced Combination Trust Mortgage Loan may be held by
the purchaser(s) of such Mortgage Loan. If the related Servicing File is not
already in the possession of such party, it shall be delivered to the successor
master servicer or special servicer, as the case may be, with respect to the
subject Loan Combination under, or otherwise in accordance with, any applicable
separate servicing agreement for such Loan Combination or as otherwise
contemplated by the related Co-Lender Agreement.
SECTION 3.26. Application of Default Charges.
(a) Any and all Default Charges that are actually Received by
the Trust and deposited in the Pool Custodial Account with respect to any Trust
Mortgage Loan or REO Trust 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
Trust Mortgage Loan or REO Trust 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 Trust Mortgage Loan or REO Trust 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
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Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be, which
interest payment was made from collections on the Mortgage Pool (other
than Default Charges on such Trust Mortgage Loan or REO Trust 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 Trust
Mortgage Loan or REO Trust Mortgage Loan, as the case may be, which
payment was made from collections on the Mortgage Pool (other than Default
Charges on such Trust Mortgage Loan or REO Trust 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 an
Outside Serviced Trust Mortgage Loan or a Performing Serviced Trust
Mortgage Loan, or as additional special servicing compensation to the
Special Servicer, if they were accrued in respect of a Specially Serviced
Trust Mortgage Loan or an REO Trust Mortgage Loan, in each case pursuant
to Section 3.11;
provided that any and all Default Charges that are actually collected with
respect to a Serviced Combination Trust Mortgage Loan shall first be applied
pursuant to the applicable section of this Agreement related to permitted
withdrawals from the related Loan Combination Custodial Account (Section 3.05A)
and the applicable provisions of the related Co-Lender Agreement; and provided,
further, that the total interest on Advances payable pursuant to clause first
above and other expenses payable pursuant to clause second above in connection
with a Serviced Combination Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto shall take into account the application of
funds on deposit in the related Loan Combination Custodial Account with respect
to the related Serviced Non-Trust Mortgage Loan(s) or any successor REO Mortgage
Loan(s) with respect thereto to pay such interest on Advances or such other
expenses, as the case may be; and provided, further, that, with respect to a
Serviced Loan Combination, Default Charges that are actually Received by the
Trust with respect to any Serviced Combination Trust Mortgage Loan or REO Trust
Mortgage Loan with respect thereto during any applicable Collection Period shall
be applied to cover the items set forth in clauses first through fourth above
only to the extent that such item or portion of such item (i) is allocable to
such Serviced Combination Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto in accordance with the related Co-Lender
Agreement and (ii) is not otherwise first payable, pursuant to Section 3.26(c)
or Section 3.26(d) (and consistent with the related Co-Lender Agreement), out of
amounts otherwise distributable to a related Serviced Non-Trust Mortgage Loan
Noteholder as Default Charges with respect to a related Serviced Non-Trust
Mortgage Loan or any successor REO Mortgage Loan with respect thereto or,
pursuant to Section 3.05A (and consistent with the related Co-Lender Agreement)
out of any other amounts otherwise distributable to a related Serviced Non-Trust
Mortgage Loan Noteholder with respect to a related Serviced Non-Trust Mortgage
Loan or any successor REO Mortgage Loan with respect thereto.
(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 Trust Master Servicer
Remittance Date next following the applicable Collection Period during which
they were received, for
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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 Trust Mortgage Loan or REO Trust 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 Trust Mortgage Loan or REO Trust 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 Trust Mortgage Loan or REO Trust 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 Trust Mortgage Loan or REO Trust Mortgage Loan, as applicable).
(c) Any and all amounts otherwise distributable to the related
Serviced Non-Trust Mortgage Loan Noteholder as Default Charges with respect to
any Serviced Subordinate Non-Trust Mortgage Loan or any successor REO Mortgage
Loan with respect thereto that is part of a Serviced Senior/Subordinate Loan
Combination (if any), in accordance with the related Co-Lender Agreement, shall
be applied for the following purposes and in the following order, in each case
to the extent of the remaining portion of such amounts and as and to the extent
permitted under the related Co-Lender Agreement, prior to being so distributed
to the related Serviced Non-Trust Mortgage Loan Noteholder:
first, to pay to any Fiscal Agent, the Trustee, the Master Servicer
and the Special Servicer, in that order, any and all interest on any
Servicing Advances made thereby with respect to the applicable Serviced
Loan Combination or any related REO Property, which interest accrued on or
prior to the date on which such amounts otherwise so distributable as
Default Charges were received (such amounts to be applied in accordance
with this clause first with respect to any such particular party in such
manner that the earliest accrued interest shall be paid first);
second, to pay to any Fiscal Agent, to the Trustee and to the
Master Servicer, in that order, any and all interest on any P&I Advances
made thereby with respect to the related Serviced Combination Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto, which interest accrued on or prior to the date on which such
amounts otherwise so distributable as Default Charges were received (such
amounts to be applied with respect to any such particular party in such
manner that the earliest accrued interest shall be paid first); and
third, to pay any other expenses reimbursable to any party to this
Agreement from Default Charges pursuant to the related Co-Lender
Agreement, out of amounts otherwise distributable to the related Serviced
Non-Trust Mortgage Loan Noteholder as Default Charges with respect to the
subject Serviced Subordinate Non-Trust Mortgage Loan or any successor REO
Mortgage Loan with respect thereto.
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(d) Any and all amounts otherwise distributable to the related
Serviced Non-Trust Mortgage Loan Noteholder as Default Charges with respect to
any Serviced Subordinate Non-Trust Mortgage Loan (or any successor REO Mortgage
Loan with respect thereto) that is part of a Serviced Pari Passu Loan
Combination (if any), in accordance with the related Co-Lender Agreement, shall
be applied for the following purposes and in the following order, in each case
to the extent of the remaining portion of such amounts and to the extent
permitted under the related Co-Lender Agreement, prior to application in
accordance with Section 3.26(a):
first, to pay to any Fiscal Agent, the Trustee, the Master
Servicer and the Special Servicer, in that order, any and all interest on
any Servicing Advances made thereby with respect to the related Serviced
Pari Passu Loan Combination or any related REO Property, which interest
accrued on or prior to the date on which such amounts otherwise so
distributable as Default Charges were received (such amounts to be applied
in accordance with this clause first with respect to any such particular
party in such manner that the earliest accrued interest shall be paid
first);
second, to pay to any Fiscal Agent, to the Trustee and to the
Master Servicer, in that order, any and all interest on any P&I Advances
made thereby with respect to the related Serviced Combination Trust
Mortgage Loan (or any successor REO Trust Mortgage Loan with respect
thereto), and, if the related Serviced Pari Passu Non-Trust Mortgage Loan
has been securitized, to pay any party to any related Non-Trust Mortgage
Loan Securitization Agreement any and all interest on delinquency advances
similar to P&I Advances with respect to the related Serviced Pari Passu
Non-Trust Mortgage Loan (or any successor REO Mortgage Loan with respect
thereto), which interest accrued, in each case, on or prior to the date on
which such amounts otherwise so distributable as Default Charges were
received (such amounts to be applied with respect to any such particular
party in such manner that the earliest accrued interest shall be paid
first); and
third, to pay that portion of any other expenses reimbursable to
any party to this Agreement from Default Charges pursuant to the related
Co-Lender Agreement, out of amounts otherwise distributable as Default
Charges with respect to the related Serviced Subordinate Non-Trust
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto).
Any and all amounts otherwise distributable to the related Serviced
Non-Trust Mortgage Loan Noteholder as Default Charges with respect to any
Serviced Pari Passu Non-Trust Mortgage Loan (or any successor REO Mortgage Loan
with respect thereto), in accordance with the related Co-Lender Agreement, shall
be applied for the following purposes and in the following order, in each case
to the extent of the remaining portion of such amounts and to the extent
permitted under the related Co-Lender Agreement, prior to being so distributed
to the related Serviced Pari Passu Non-Trust Mortgage Loan Noteholder:
first, to pay to any Fiscal Agent, the Trustee, the Master
Servicer and the Special Servicer, in that order, subject to the next
paragraph (if applicable), that portion of any and all interest on any
Servicing Advances made thereby with respect to the related Serviced Pari
Passu Loan Combination and/or any related REO Property, which interest
accrued on or prior to the date on which such amounts so distributable as
Default Charges were received, and which interest is allocable to the
subject Serviced Pari Passu Non-Trust Mortgage Loan (or any
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successor REO Mortgage Loan with respect thereto) in accordance with the
related Co-Lender Agreement; and
second, to pay that portion of any other expenses reimbursable to
any party to this Agreement from Default Charges pursuant to the related
Co-Lender Agreement (which portion of such other expenses is allocable to
the subject Serviced Pari Passu Non-Trust Mortgage Loan (or any successor
REO Mortgage Loan with respect thereto) in accordance with the related
Co-Lender Agreement), out of amounts otherwise distributable to the
related Serviced Pari Passu Non-Trust Mortgage Loan Noteholder as Default
Charges with respect to the subject Serviced Pari Passu Non-Trust Mortgage
Loan (or any successor REO Mortgage Loan with respect thereto);
provided that any application of amounts otherwise payable as Default Charges in
accordance with this paragraph shall be made after the application of amounts
otherwise payable as Default Charges with respect to any related Serviced
Subordinate Non-Trust Mortgage Loan (or any successor REO Mortgage Loan with
respect thereto) as provided above in this Section 3.26(d).
In the case of a Serviced Pari Passu Loan Combination, any and all
amounts otherwise distributable with respect to the related Serviced Combination
Trust Mortgage Loan and the related Serviced Pari Passu Non-Trust Mortgage
Loan(s) (or any successor REO Mortgage Loan(s) with respect to such Mortgage
Loan(s)) as Default Charges on any related Loan Combination Master Servicer
Remittance Date, in accordance with the related Co-Lender Agreement, shall be
allocated between them, on a pro rata and pari passu basis. If the total amount
otherwise distributable on any subject Loan Combination Master Servicer
Remittance Date, in accordance with the related Co-Lender Agreement, as Default
Charges with respect to the related Serviced Combination Trust Mortgage Loan and
the related Serviced Pari Passu Non-Trust Mortgage Loan (or any successor REO
Mortgage Loans with respect to such Mortgage Loans) exceeds the aggregate amount
of (i) interest on related Servicing Advances payable pursuant to Section
3.26(a) and the prior two paragraphs of this Section 3.26(d) and (ii) other
amounts reimbursable from Default Charges pursuant to the related Co-Lender
Agreement in accordance with Section 3.26(a) and the prior two paragraphs of
this Section 3.26(d), then the respective portions of such total amount
allocable to the related Serviced Combination Trust Mortgage Loan and the
related Serviced Pari Passu Non-Trust Mortgage Loan(s) (or any successor REO
Mortgage Loan(s) with respect to such Mortgage Loan(s)) that are to be applied
for such purpose shall be in the same proportions that the respective unpaid
principal balances of the related Serviced Combination Trust Mortgage Loan and
the related Serviced Pari Passu Non-Trust Mortgage Loan(s) (or any successor REO
Mortgage Loan(s) with respect to such Mortgage Loan(s)) bear to one another.
SECTION 3.27. Certain Matters Regarding Serviced Loan
Combinations.
(a) The parties hereto recognize and acknowledge, in the case of
each Serviced Loan Combination, the rights of each related Serviced Non-Trust
Mortgage Loan Noteholder under the related Co-Lender Agreement. In connection
with the foregoing, the Master Servicer (if the subject Serviced Combination
Trust Mortgage Loan is a Performing Serviced Mortgage Loan) or the Special
Servicer (if the subject Serviced Combination Trust Mortgage Loan is a Specially
Serviced Mortgage Loan), as applicable, shall take all actions required on the
part of the holder of the subject Serviced Combination Trust Mortgage Loan or
contemplated to be performed by a servicer, in any case, under the related
Co-Lender Agreement, including the delivery of all necessary notices on a timely
basis and/or the
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calculation of the applicable purchase price, as well as all other actions
necessary and appropriate, to effect the transfer of the subject Serviced
Combination Trust Mortgage Loan (in connection with the purchase thereof under
the related Co-Lender Agreement) to any related Non-Trust Mortgage Loan
Noteholder with a purchase option or its designee and/or to permit any related
Non-Trust Mortgage Loan Noteholder, to the extent permitted under the related
Co-Lender Agreement, to effectuate a cure of any defaults under the subject
Serviced Combination Trust Mortgage Loan. Furthermore, with respect to any
Serviced Combination Trust Mortgage Loan as to which the related Co-Lender
Agreement provides for cure rights on the part of any related Non-Trust Mortgage
Loan Noteholder, the Master Servicer (if the subject Serviced Combination Trust
Mortgage Loan is a Performing Serviced Mortgage Loan) or the Special Servicer
(if the subject Serviced Combination Trust Mortgage Loan is a Specially Serviced
Mortgage Loan), as applicable, shall notify such Non-Trust Mortgage Loan
Noteholder (i) of any event of default with respect to the subject Serviced
Combination Trust Mortgage Loan that is susceptible of cure under the related
Co-Lender Agreement, promptly (and, in any event, within two Business Days)
after the applicable servicer has actual knowledge thereof (although such notice
is not required to state whether such event of default is susceptible of cure
thereunder), and (ii) of any material event of default (although such notice is
not required to state whether such event of default is material).
(b) The Master Servicer (if the related Serviced Combination
Trust Mortgage Loan is a Performing Serviced Mortgage Loan) or the Special
Servicer (if the related Serviced Combination Trust Mortgage Loan is a Specially
Serviced Mortgage Loan), as applicable, shall take all actions relating to the
servicing and/or administration of, and the preparation and delivery of reports
and other information with respect to, each Serviced Loan Combination or any
related REO Property required to be performed by the holder of the related
Serviced Combination Trust Mortgage Loan or contemplated to be performed by a
servicer, in any case pursuant to the related Co-Lender Agreement and/or any
related mezzanine loan intercreditor agreement.
(c) For purposes of determining whether a Serviced Loan
Combination Change of Control Event has occurred, as well as the identity of the
Serviced Loan Combination Directing Lender, with respect to a Serviced
Senior/Subordinate Loan Combination, any Appraisal Reduction Amount that exists
with respect thereto shall be allocated: first, to the related Serviced
Subordinate Non-Trust Mortgage Loan(s) (or any successor REO Mortgage Loan(s)
with respect thereto), up to an aggregate amount equal to the then unpaid
principal balance of such Serviced Subordinate Non-Trust Mortgage Loan(s) (or
any successor REO Mortgage Loan(s) with respect thereto), together with all
accrued and unpaid interest thereon (other than Default Interest); and then, (i)
in the case of a Serviced A/B Loan Combination, to the related Serviced
Combination Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto), and (ii) in the case of a Serviced Pari Passu Loan
Combination, to the related Pari Passu Trust Mortgage Loan and the related Pari
Passu Non-Trust Mortgage Loan(s) (or any successor REO Mortgage Loans with
respect to the foregoing Mortgage Loans), on a pro rata basis by principal
balance.
(d) Notwithstanding anything herein to the contrary, if this
Agreement provides for obtaining a rating confirmation with respect to any
Specially Designated Non-Trust Mortgage Loan Securities in connection with any
action hereunder, no party hereto shall obtain such rating confirmation unless
it is reasonably assured that the cost of such rating confirmation (or the
applicable share thereof in accordance with the related Co-Lender Agreement)
will be borne (without right of reimbursement from the Trust) by the related
Non-Trust Mortgage Loan Securitization Trust or by another third party other
than the Trust.
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(e) In the event there is any conflict between the terms or
provisions of this Agreement and the terms or provisions of any Co-Lender
Agreement, the terms or provisions of the Co-Lender Agreement shall control.
(f) To the extent not already expressly included herein, all
provisions required to be included in this Agreement pursuant to any Co-Lender
Agreement are incorporated herein by reference, and the parties hereto shall
comply with such provisions as if set forth in this Agreement in full.
SECTION 3.28. Deliveries in Connection with Securitization of a
Serviced Non-Trust Mortgage Loan.
(a) Each of the Master Servicer and the Special Servicer shall,
upon reasonable written request, permit a related Serviced Non-Trust Mortgage
Loan Noteholder to use such party's description contained in the Prospectus
Supplement (updated as appropriate by the Master Servicer or the Special
Servicer, as applicable) for inclusion in the disclosure materials relating to
any securitization of a Serviced Non-Trust Mortgage Loan.
(b) The Master Servicer and the Special Servicer shall, upon
reasonable written request, each timely provide (to the extent the reasonable
cost thereof is paid or caused to be paid by the requesting party) to the
depositor and any underwriters with respect to the securitization of any
Serviced Non-Trust Mortgage Loan such opinion(s) of counsel, certifications
and/or indemnification agreement(s) with respect to the updated description
referred in Section 3.28(a) with respect to such party, substantially identical
to those, if any, delivered by the Master Servicer or the Special Servicer, as
the case may be, or their respective counsel, in connection with the information
concerning such party in the Prospectus Supplement and/or any other disclosure
materials relating to the Subject Securitization Transaction. Neither the Master
Servicer nor the Special Servicer shall be obligated to deliver any such item
with respect to the securitization of a Serviced Non-Trust Mortgage Loan if it
did not deliver a corresponding item with respect to the Subject Securitization
Transaction.
SECTION 3.29. The Swap Agreements.
(a) On the Closing Date, there are hereby established two (2)
separate Floating Rate Grantor Trusts pursuant to, and as designated in, Section
2.01(a). The Depositor shall deposit, or cause the deposit of, the Class A-2FL
Swap Agreement into Grantor Trust A-2FL and the Class A-MFL Swap Agreement into
Grantor Trust A-MFL. Each Floating Rate Grantor Trust shall be maintained by the
Grantor Trust Trustee, who shall at all times, be the entity acting as Trustee.
Grantor Trust A-2FL shall be held for the benefit of the Holders of the Class
A-2FL Certificates and Grantor Trust A-MFL shall be held for the benefit of the
Holders of the Class A-MFL Certificates. No later than the Closing Date, the
Trustee (as Grantor Trust Trustee) shall establish and maintain each of the
Class A-2FL Floating Rate Account and the Class A-MFL Floating Rate Account
pursuant to and in accordance with the terms of Section 3.04(f). Funds in each
of the Class A-2FL Floating Rate Account and the Class A-MFL Floating Rate
Account shall be held separate and apart from, and shall not be commingled with,
any other funds, including, without limitation, funds held by the Trustee
pursuant to this Agreement. The Trustee is hereby authorized and directed, not
in its individual capacity but solely as Grantor Trust Trustee and on behalf,
and for the benefit, of each Floating Rate Grantor Trust, to execute and deliver
the related Swap Agreement on the Closing Date and to perform obligations as
described herein with respect to the related Swap Agreement. Furthermore, the
Trustee (as Grantor Trust Trustee) is hereby authorized and directed to, and
shall, perform all obligations on the part of the Trust under the Swap
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Agreements; provided that (i) payments to be made to a Swap Counterparty
pursuant to Section 3.29(d) shall be made out of amounts allocable as interest
(or, in the case of any related Additional Trust Swap Payment, related Yield
Maintenance Charges and Prepayment Premiums) distributable on or with respect to
the Group FL REMIC III Regular Interest corresponding to the related Floating
Rate Class and (ii) any termination payment owing to a Swap Counterparty shall
be payable solely out of any upfront payment made by a related replacement swap
counterparty in connection with entering into a related replacement interest
rate swap agreement with the applicable Floating Rate Grantor Trust, and the
Trustee shall not be responsible for using its own funds in making such
payments. Upon the Trustee (as Grantor Trust Trustee) entering into a Swap
Agreement on behalf of any Floating Rate Grantor Trust, such grantor trust shall
be bound by the terms and conditions of such Swap Agreement.
(b) The Trustee shall act as "calculation agent" under each Swap
Agreement and shall timely perform all duties associated therewith.
(c) By 5:00 p.m. (New York City time) on the second Business Day
prior to (or, in the case of item (i) below, no later than the Determination
Date relating to) each Distribution Date, based on (in the case of items (ii)
and (iii) below) the CMSA Loan Periodic Update File for the related Collection
Period provided by the Master Servicer pursuant to Section 3.12, the Trustee
shall notify each Swap Counterparty, in writing, of (i) the Class Principal
Balance of the related Class of Floating Rate Certificates immediately prior to
such Distribution Date, (ii) the amount of any Prepayment Premiums and Yield
Maintenance Charges distributable with respect to the Group FL REMIC III Regular
Interest corresponding to the related Floating Rate Class for such Distribution
Date, and (iii) the amount of interest distributable with respect to the Group
FL REMIC III Regular Interest corresponding to the related Floating Rate Class
pursuant to Section 4.01(a) for such Distribution Date.
(d) On each Distribution Date, following all deposits to a
Floating Rate Account on or prior to that date pursuant to Section 3.04(f), the
Trustee shall remit the related Net Trust Swap Payment, the related Additional
Trust Swap Payment and the related Trust Shortfall Reimbursement Payment, in
each case if any, to the related Swap Counterparty out of amounts on deposit in
such Floating Rate Account that represent distributions of Distributable
Certificate Interest (or, in the case of any related Additional Trust Swap
Payment, related Yield Maintenance Charges and Prepayment Premiums) in respect
of the Group FL REMIC III Regular Interest corresponding to the related Floating
Rate Class; provided that, during the continuation of a Swap Default while the
Trustee is pursuing remedies under the related Swap Agreement, or following the
termination of a Swap Agreement, the Trustee shall not make such payments to the
related Swap Counterparty. If by 3:00 p.m. New York City time on any applicable
Swap Payment Date the Trustee has not received the Class A-2FL Net Floating Rate
Swap Payment or the Class A-MFL Net Floating Rate II Swap Payment payable by the
related Swap Counterparty on such date, the Trustee shall, consistent with the
related Swap Agreement, in order to, among other things, cause the commencement
of the applicable grace period, promptly notify such Swap Counterparty that the
Trustee has not received such Class A-2FL Net Floating Rate Swap Payment or such
Class A-MFL Net Floating Rate II Swap Payment, as applicable.
(e) Subject to Sections 8.01(iii), the Trustee shall at all
times enforce the applicable Floating Rate Grantor Trust's rights under each
Swap Agreement. In the event of any Swap Default under a Swap Agreement, the
Trustee shall (i) provide notice of such Swap Default on the date of such
default to the related Swap Counterparty and (ii) promptly provide written
notice to the Holders of the related Class of Floating Rate Certificates and,
subject to Sections 8.01(iii), shall be required to take
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such actions (following the expiration of any applicable grace period specified
in the related Swap Agreement), unless otherwise directed in writing by the
Holders or Certificate Owners of Certificates representing at least 25% of the
Class Principal Balance of such Class of Floating Rate Certificates, to enforce
the rights of the applicable Floating Rate Grantor Trust under such Swap
Agreement as may be permitted by the terms thereof, and use any related Swap
Termination Fees received from such Swap Counterparty to enter into a
replacement interest rate swap agreement on substantially identical terms, with
a replacement swap counterparty that meets all eligibility requirements under
such Swap Agreement. If the costs attributable to entering into a replacement
interest rate swap agreement would exceed the amount of any related Swap
Termination Fees, a replacement interest rate swap agreement shall not be
entered into and any such proceeds will instead be distributed, pro rata, to the
holders of the applicable Class of Floating Rate Certificates on the immediately
succeeding Distribution Date as part of the Interest Distribution Amount
relating to such Class of Floating Rate Certificates for such Distribution Date.
If any replacement swap counterparty pays any fee in connection with the
execution of any replacement interest rate swap agreement with the applicable
Floating Rate Grantor Trust, the Trustee shall distribute such fee: first, to
the Swap Counterparty in respect of the related terminated Swap Agreement, up to
the amount of any termination payment owing to such Swap Counterparty under, and
in connection with the termination of, such Swap Agreement, and such fee (or
applicable portion thereof) shall be deemed to have been distributed first to
the Depositor as compensation to the Depositor under this Agreement and then
from the Depositor to such Swap Counterparty in respect of such Swap Agreement,
and then, any remainder, to the Depositor. Any expenses, costs and/or
liabilities incurred by the Trustee in connection with enforcing any Swap
Agreement shall be payable and/or reimbursable solely out of indemnification
payments made by the Holders of the related Floating Rate Certificates and shall
not be reimbursable from the Trust Fund.
(f) Any Floating Rate Class Distribution Conversion with respect
to a Floating Rate Class shall become permanent following the determination by
the Trustee (or by the Holders or Certificate Owners of Certificates
representing at least 25% of the Class Principal Balance of such Floating Rate
Class) not to enter into a replacement interest rate swap agreement and
distribution of any related Swap Termination Fees to the Holders of the related
Class of Floating Rate Certificates. Any such Floating Rate Class Distribution
Conversion and any related Swap Default (or termination of the related Swap
Agreement) shall not, in and of itself, constitute an Event of Default under
this Agreement. Upon any change in the payment terms on any Class of Floating
Rate Certificates, including as a result of a related Floating Rate Class
Distribution Conversion, termination of a related Floating Rate Class
Distribution Conversion, a Swap Default or the cure of a Swap Default, the
Trustee shall promptly notify the Depository of the change in payment terms.
(g) For federal income tax purposes, each Holder of a Floating
Rate Certificate will be treated as having acquired its proportionate share of
the corresponding Group FL REMIC III Regular Interest. Any amounts paid to a
Swap Counterparty with respect to any Distribution Date shall first be deemed
paid to the holders of the corresponding Group FL REMIC III Regular Interest to
the extent of the amount distributable on the corresponding Group FL REMIC III
Regular Interest.
(h) Any obligation of the Trustee under a Swap Agreement shall
be deemed to be an obligation of the corresponding Floating Rate Grantor Trust.
(i) The Trustee hereby agrees to act as the Grantor Trust
Trustee in accordance with the terms of this Agreement.
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(j) The Trustee is hereby directed to perform the obligations of
the Custodian under each of the Class A-2FL Swap Credit Support Annex (in such
capacity, the "Class A-2FL Swap Custodian") and the Class A-MFL Swap Credit
Support Annex (in such capacity, the "Class A-MFL Swap Custodian").
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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,
Class A-3, Class A-AB and Class A-4 Certificates, and to the Class A-2FL
Floating Rate Account with respect to the Class A-2FL REMIC III Regular
Interest, in an amount equal to, and pro rata as among such Classes of
Certificates and such Group FL REMIC III Regular Interest, in accordance with,
all Distributable Certificate Interest in respect of such Class of Certificates
and each such Group FL REMIC III Regular Interest 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 the Class X 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 or Group FL REMIC III Regular
Interest referred to above in this clause first on such Distribution Date, then
the entire Available Distribution Amount shall be applied to make distributions
of interest with respect to the respective Classes of Senior Certificates
referred to above in this clause first and the Class A-2FL REMIC III Regular
Interest, up to an amount equal to, and pro rata as among such Classes of
Certificates and such Group FL REMIC III Regular Interest in accordance with,
all Distributable Certificate Interest in respect of each such Class of
Certificates and such Group FL REMIC III Regular Interest 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 (exclusive of the Class
A-2FL Certificates) and to the Class A-2FL Floating Rate Account, 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
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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-AB Certificates, up to
an amount equal to the lesser of (A) the excess, if any, of the
Class Principal Balance of the Class A-AB Certificates outstanding
immediately prior to such Distribution Date, over the Class A-AB
Planned Principal Balance for such Distribution Date, and (B) 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);
(iii) 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 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-2 Certificates and to
the Class A-2FL Floating Rate Account with respect to the Class
A-2FL REMIC III Regular Interest, on a pro rata basis by Class
Principal Balance, up to an amount (not to exceed the aggregate of
the Class Principal Balances of the Class A-2 Certificates and the
Class A-2FL REMIC III Regular Interest 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);
(v) 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 and/or to the Class A-2FL Floating Rate Account
with respect to the Class A-2FL REMIC III Regular Interest pursuant
to a prior subclause of this clause second);
(vi) to the Holders of the Class A-AB Certificates, up to
an amount (not to exceed the Class Principal Balance of the Class
A-AB Certificates outstanding immediately prior to such Distribution
Date, net of any distributions of principal made with respect to the
Class A-AB Certificates on such Distribution Date pursuant to
subclause (ii) 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-AB Certificates, to the Holders of any other Class of
Senior Class A Certificates and/or to the Class A-2FL Floating Rate
Account with respect to the Class A-2FL REMIC III Regular Interest
pursuant to a prior subclause of this clause second);
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(vii) to the Holders of the Class A-4 Certificates, up to
an amount (not to exceed the Class Principal Balance of the Class
A-4 Certificates outstanding immediately prior to such Distribution
Date) equal to the entire 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 and/or to the Class A-2FL Floating Rate Account
with respect to the Class A-2FL REMIC III Regular Interest pursuant
to a prior subclause of this clause second); and
(viii) 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, to the Holders of any other Class of
Senior Class A Certificates and/or to the Class A-2FL Floating Rate
Account with respect to the Class A-2FL REMIC III Regular Interest
pursuant to a prior subclause of this clause second);
provided, however, that, notwithstanding the immediately preceding clauses (i)
through (viii) 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 (exclusive of the Class A-2FL Certificates) and to the Class A-2FL
Floating Rate Account with respect to the Class A-2FL REMIC III Regular
Interest, on a pro rata basis, in accordance with the respective Class Principal
Balances of those Classes of Certificates and such Group FL REMIC III Regular
Interest outstanding immediately prior to such Distribution Date, until the
Class Principal Balance of each such Class of Certificates and such Group FL
REMIC III Regular Interest 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 (exclusive of the Class A-2FL Certificates) and the
Class A-2FL Grantor Trust with respect to the Class A-2FL REMIC III Regular
Interest, up to an amount equal to, and on a pro rata basis as among such
Classes of Certificates and such Group FL REMIC III Regular Interest in
accordance with, the Loss Reimbursement Amount with respect to each such Class
of Certificates and such Group FL REMIC III Regular Interest for such
Distribution Date;
fourth, to make distributions of interest to the Holders of the
Class A-M Certificates and to the Class A-MFL Floating Rate Account with respect
to the Class A-MFL REMIC III Regular Interest, up to an amount equal to, and on
a pro rata basis as among such Class of Certificates and such Group FL REMIC III
Regular Interest in accordance with, all Distributable Certificate Interest in
respect of such Class of Certificates and such Group FL REMIC III Regular
Interest 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 (exclusive of the Class A-2FL Certificates)
and the Class A-2FL REMIC III Regular Interest
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have been reduced to zero, to make distributions of principal to the Holders of
the Class A-M Certificates and to the Class A-MFL Floating Rate Account with
respect to the Class A-MFL REMIC III Regular Interest, on a pro rata basis by
Class Principal Balance, up to an amount (not to exceed the aggregate of the
Class Principal Balances of the Class A-M Certificates and the Class A-MFL REMIC
III Regular Interest 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 respective Classes of the Senior Class A Certificates (exclusive
of the Class A-2FL Certificates) and/or to the Class A-2FL Floating Rate Account
with respect to the Class A-2FL REMIC III Regular Interest 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-M Certificates and to the Class A-MFL Floating Rate Account with respect
to the Class A-MFL REMIC III Regular Interest on a pro rata basis in accordance
with the Class Principal Balance of each of the Class A-M Certificates and the
Class A-MFL REMIC III Regular Interest outstanding immediately prior to such
Distribution Date, until the Class Principal Balance of such Class of
Certificates and such Group FL REMIC III Regular Interest is reduced to zero;
sixth, to reimburse the Holders of the Class A-M Certificates and
Grantor Trust A-MFL with respect to the Class A-MFL REMIC III Regular Interest,
up to an amount equal to, and on a pro rata basis as among such Class of
Certificates and such Group FL REMIC III Regular Interest in accordance with,
the Loss Reimbursement Amount with respect to such Class of Certificates and
such Group FL REMIC III Regular Interest for such Distribution Date;
seventh, 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;
eighth, after the Class Principal Balances of the Class A-M
Certificates and the Class A-MFL REMIC III Regular Interest 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 Balances 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 Distribution Date to the
Holders of the respective Classes of the Senior Class A Certificates (exclusive
of the Class A-2FL Certificates) and/or to the Class A-2FL Floating Rate Account
with respect to the Class A-2FL REMIC III Regular Interest pursuant to clause
second of this Section 4.01(a) and/or to the Holders of the Class A-M
Certificates and to the Class A-MFL Floating Rate Account with respect to the
Class A-MFL REMIC III Regular Interest pursuant to clause fifth of this Section
4.01(a)); provided, however, that, on the Final Distribution Date, the Trustee
shall, pursuant to this clause eighth, 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;
ninth, 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
tenth, to make distributions to the Holders of the remaining Classes
of the Regular Interest Certificates as provided in Section 4.01(b).
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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 (exclusive of the Class A-2FL Certificates), the Class A-M
Certificates, the Class A-J Certificates and the Group FL REMIC III Regular
Interests 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
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.
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Any portion of the Available Distribution Amount that remains after
the distributions with respect to the Regular Interest Certificates and the
Group FL REMIC III Regular Interests 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 and the Group FL REMIC III Regular Interests 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(m), over (B) the
aggregate distributions made with respect to the Regular Interest
Certificates and the Group FL REMIC III Regular Interests 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(n), 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(m);
(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 Trust
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(o); 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 any Trust Mortgage Loan or REO
Trust 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 and to the applicable Floating Rate Account(s) with respect to the
Group FL REMIC III Regular Interests 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
Trust Mortgage Loan or REO Trust 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 and such Group FL REMIC III
Regular Interests 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 any remaining portion of such Net Prepayment
Consideration. For purposes of the foregoing, to the extent that amounts
available to
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make distributions of principal on any Class of YM Principal Balance
Certificates or any Group FL REMIC III Regular Interest 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 or that Group FL REMIC III Regular Interest 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 YM Principal Balance Certificates or any Group FL REMIC III Regular Interest,
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 respective 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(m).
(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 Trust
Mortgage Loans (and any successor REO Trust 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 Trust Master
Servicer Remittance Date in accordance with Section 3.05(e)).
(g) Subject to Section 3.29, on each Distribution Date (after
any and all transfers to the applicable Floating Rate Account on such
Distribution Date, pursuant to Section 4.01(a) and/or Section 4.01(d), and any
payments to the applicable Swap Counterparty on such Distribution Date, pursuant
to Section 3.29(d) and the related Swap Agreement), the Trustee shall, with
respect to each Floating Rate Class, apply amounts on deposit in the applicable
Floating Rate Account to make the following payments in the following order of
priority, in each case to the extent of the related remaining Floating Rate
Class Available Funds (exclusive of any portion thereof that constitutes Yield
Maintenance Charges and/or Prepayment Premiums) for such Distribution Date:
(i) to make distributions of interest to the Holders of the
applicable Floating Rate Certificates, up to the related Interest
Distribution Amount for such Distribution Date;
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(ii) to make distributions of principal to the Holders of the
applicable Floating Rate Certificates, in reduction of the Class Principal
Balance of the subject Floating Rate Class, up to the Floating Rate Class
Principal Distribution Amount attributable to such certificates for such
Distribution Date, until such Class Principal Balance has been reduced to
zero;
(iii) to reimburse the Holders of the applicable Floating Rate
Certificates, until all Realized Losses and Additional Trust Fund Expenses
previously allocated to the subject Floating Rate Class, but not
previously reimbursed, have been reimbursed in full; and
(iv) to make distributions to the Holders of the applicable
Floating Rate Certificates of any remaining amount.
For so long as a Swap Agreement is in effect and there is no
continuing Swap Default thereunder on the part of the related Swap Counterparty,
all Prepayment Premiums and Yield Maintenance Charges allocable to a Group FL
REMIC III Regular Interest shall be payable to the related Swap Counterparty
pursuant to the terms of such Swap Agreement. However, during the occurrence of
a Swap Default on the part of a Swap Counterparty under any Swap Agreement or if
any Swap Agreement is terminated and a replacement Swap Agreement is not
obtained, then all Prepayment Premiums and Yield Maintenance Charges distributed
to the related Floating Rate Account with respect to the Group FL REMIC III
Regular Interest corresponding to the related Floating Rate Class shall be
distributed by the Trustee to the Holders of the applicable Floating Rate
Certificates on the subject Distribution Date.
(h) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise provided below, all such distributions with
respect to each Class on each Distribution Date shall be made to the
Certificateholders of the respective Class of record at the close of business on
the related Record Date and shall be made by wire transfer of immediately
available funds to the account of any such Certificateholder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five (5)
Business Days prior to 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
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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.
(i) 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.
(j) 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.
(k) 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(k) 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
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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(k)
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.
(l) 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.
(m) All distributions made in respect of each Class of Principal
Balance Certificates (exclusive of the Floating Rate Certificates) and each
Group FL REMIC III Regular Interest 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 or such Group FL REMIC III Regular
Interest, as the case may be; and all distributions made with respect to the
Class X Certificates on each Distribution Date 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 or Group FL REMIC III Regular Interest 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 or
such Group FL REMIC III Regular Interest, as the case may be, 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, the Group FL REMIC III Regular
Interests and the Residual Interest 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(m). Notwithstanding the deemed distributions on the REMIC II
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.
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(n) 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 Trust Mortgage Loan or any successor REO Trust 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) corresponding to the prepaid Trust
Mortgage Loan or REO Trust 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, the Group FL REMIC III Regular
Interests and the Residual Interest 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(m), 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(n).
Notwithstanding the deemed distributions on the REMIC I Regular Interests
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.
(o) 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 Trust Mortgage Loan (or any successor REO
Trust 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:
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(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 Trust Mortgage Loan (or any
successor REO Trust 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 Trust Mortgage Loan (or any successor REO Trust 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 Trust
Mortgage Loan (or any successor REO Trust 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 Group FL REMIC III Regular
Interests and the Residual Interest 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 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(o). Notwithstanding
the deemed distributions on the Loan REMIC Regular Interests, if any, described
in this Section 4.01(o), 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(o) 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
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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 and each Class
of Floating Rate 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 and each Class
of Floating Rate 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 and each Class
of Floating Rate 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);
(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 (and/or comparable advances made in respect of an
Outside Serviced Trust Mortgage Loan or related REO Property pursuant to
the related Outside Servicing Agreement) that had been outstanding with
respect to the Mortgage Pool as of the close of business on the related
Determination Date (or, in the case of an Outside Serviced Trust Mortgage
Loan or any related REO Property, as of the end of the related Underlying
Collection Period) and the aggregate amount of interest accrued and
payable to the Master Servicer, the Special Servicer, the Trustee or any
Fiscal Agent (or, if applicable, to a party under an Outside Servicing
Agreement) in respect of such unreimbursed Servicing Advances in
accordance with Section 3.11(g) (or, if applicable, any such comparable
advance(s) in accordance with the related Outside Servicing Agreement) as
of the close of business on such related Determination Date (or, in the
case of an Outside Serviced Trust Mortgage Loan or any related REO
Property, as of the end of the related Underlying Collection Period);
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(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 (or, in the case of an
Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage
Loan with respect thereto, as of the end of the related Underlying
Collection Period) 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 Trust Mortgage Loans (but not the REO Trust Mortgage Loans) in the
Mortgage Pool, as well as in each Loan Group, as of the close of business
on the related Determination Date (or, in the case of an Outside Serviced
Trust Mortgage Loan, as of the end of the related Underlying Collection
Period);
(x) the number, aggregate unpaid principal balance (as of the
close of business on the related Determination Date (or, in the case of an
Outside Serviced Trust Mortgage Loan, as of the end of the related
Underlying Collection Period) and aggregate Stated Principal Balance
(immediately after such Distribution Date) of Trust 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 Trust Mortgage Loan referred to in the preceding
clause (x) above, (A) the loan number thereof, (B) the Stated Principal
Balance thereof immediately following such Distribution Date and (C)
whether the delinquency is in respect of its Balloon Payment;
(xii) with respect to any Trust Mortgage Loan as to which a
Liquidation Event occurred during the related Collection Period (or, in
the case of a Final Recovery Determination with respect to an Outside
Serviced Trust Mortgage Loan, during the related Underlying 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 Trust Mortgage Loan that was the subject
of any material modification, extension or waiver during the related
Collection Period, (A) the loan number thereof, (B) the unpaid principal
balance thereof and (C) a brief description of such modification,
extension or waiver, as the case may be;
(xiv) with respect to any Trust Mortgage Loan as to which an
uncured and unresolved 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
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Material Document Defect, as the case may be, including any actions known
to the Trustee that are being taken by or on behalf of the Depositor (in
the case of a Xxxxxx Trust Mortgage Loan) or the related Unaffiliated
Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan)
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 (or, in the case of an Outside
Administered REO Property, as of the end of the related Underlying
Collection Period), the loan number of the related Trust Mortgage Loan,
the book value of such REO Property and the amount of REO Revenues and
other amounts, if any, Received by the Trust with respect to such REO
Property during the related Collection Period (separately identifying the
portion thereof allocable to distributions on the Certificates) and, if
available, the Appraised Value of such REO Property as expressed in the
most recent appraisal thereof and the date of such appraisal;
(xvi) with respect to any Trust Mortgage Loan as to which the
related Mortgaged Property became an REO Property during the related
Collection Period (or, in the case of an REO Acquisition of an Outside
Administered REO Property, during the related Underlying Collection
Period), the loan number of such Trust Mortgage Loan and the Stated
Principal Balance of such Trust 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 (or,
in the case of an Outside Administered REO Property, during the related
Underlying Collection Period), (A) the loan number of the related Trust
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 Trust 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 and each Group FL REMIC III Regular Interest, as well as the
Floating Rate Class Interest Distribution Amount in respect of each
Floating Rate Class, 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 and each Group FL REMIC III
Regular Interest, as well as any unpaid portion of the Floating Rate Class
Interest Distribution Amount in respect of each Floating Rate Class, 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, each Group FL REMIC III Regular Interest and each Class of
Floating Rate Certificates for the related Interest Accrual Period;
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(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 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 Trust 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 (or, in the case of an Outside Serviced Trust
Mortgage Loan or an Outside Administered REO Property, during the related
Underlying 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 (or, in
the case of an Outside Serviced Trust Mortgage Loan or an Outside
Administered REO Property, during the related Underlying 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 and each Class of Floating Rate 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) (and the aggregate
amount of interest on servicing advances in respect of an Outside Serviced
Trust Mortgage Loan or any Outside Administered REO Property paid to any
Outside Servicer or other applicable party during the related Underlying
Collection Period in accordance with the related Outside Servicing
Agreement);
(xxvii) (A) the loan number for each Required Appraisal Loan (and
each Outside Serviced Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto with a similar status under the related
Outside Servicing Agreement) 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 (and each Outside Serviced Trust Mortgage
Loan or any successor REO Trust Mortgage Loan with respect thereto with a
similar status under the related Outside Servicing Agreement) as of the
related Determination Date (or, in the case of an Outside Serviced Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto, if applicable, as of the end of the related Underlying Collection
Period);
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(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 Trust 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 and each Class of Floating Rate
Certificates;
(xxx) the original and then current ratings, if any, for each
Class of Regular Interest Certificates and each Class of Floating Rate
Certificates;
(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, (B) the aggregate amount of servicing compensation in
respect of each Outside Serviced Trust Mortgage Loan or any successor REO
Trust Mortgage Loan with respect thereto (separately identifying the
amount of each category of compensation) paid to the related Outside
Servicers during the related Underlying Collection Period and (C) 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;
(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; and
(xxxv) all payments to and from the respective Swap Counterparties
during the month of such Distribution Date and the respective components
thereof.
In the case of information to be furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a basis for
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information to be furnished pursuant to clauses (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
Trust Determination Date and the Trust Collection Period that correspond to such
Distribution Date.
The Trustee shall forward electronically a copy of each Distribution
Date Statement to the Depository.
(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 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. Notwithstanding the foregoing, any reports required
to be included in the Certificateholder Reports with respect to an Outside
Serviced Trust Mortgage Loan or any Outside Administered REO Property shall be
forwarded or otherwise made available by the Trustee in accordance with this
paragraph only to the extent that such information is actually received by the
Trustee. 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.xxxxxxxx.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
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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 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, a 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, a Mortgage Loan Seller, a third party or
each other. The Master Servicer may conclusively rely on any information
provided by the respective Mortgage Loan Sellers 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
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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 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.
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(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
Trust 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.
SECTION 4.03. P&I Advances With Respect to the Mortgage Pool.
(a) On or before 3:00 p.m., New York City time, on each Trust
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 Pool Custodial Account for future distribution to
Certificateholders in subsequent months in discharge of such obligations, and
second, by remitting its own funds to the Trustee for deposit in the Collection
Account in an amount equal to the remaining portion of such required P&I
Advances. Any amounts held in the Pool Custodial Account for future distribution
and so used to make P&I Advances shall be appropriately reflected in the Master
Servicer's records and replaced by the Master Servicer by deposit in the Pool
Custodial Account on or before the next succeeding 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 Trust 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 Trust 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
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Trust 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.
No party hereto shall be required to make a P&I Advance with respect
to any Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto.
(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 (and, in the case of each Outside
Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, further net of any related similar fees payable to third
parties with respect to the subject Outside Serviced Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto pursuant to the related
Outside Servicing Agreement) due or deemed due, as the case may be, in respect
of the Trust Mortgage Loans (including Balloon Trust Mortgage Loans delinquent
as to their respective Balloon Payments) and any REO Trust 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--
(i) if it is determined by the applicable Outside Servicer and
reported to the applicable parties hereunder that an Appraisal Reduction
Amount exists with respect to any Outside Serviced Loan Combination, and a
portion of such Appraisal Reduction Amount is allocable to the Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto, as applicable, that is part of such Outside Serviced Loan
Combination, 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
Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto, 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 with
respect to such Trust Mortgage Loan or any successor REO Trust Mortgage
Loan with respect thereto, as the case may be, without regard to this
proviso, multiplied by (B) a fraction, the numerator of which is equal to
the Stated Principal Balance of such Trust Mortgage Loan or any successor
REO Trust Mortgage Loan with respect thereto, as the case may be, reduced
(to not less than zero) by the portion of any Appraisal Reduction Amount
in respect of the subject Outside Serviced Loan Combination that is
allocable to such Trust Mortgage Loan or any successor REO Trust Mortgage
Loan with respect thereto, as the case may be, and the denominator of
which is equal to the then Stated Principal Balance of such Trust Mortgage
Loan or any successor REO Trust Mortgage Loan with respect thereto, as the
case may be;
(ii) if it is determined that an Appraisal Reduction Amount
exists with respect to any Serviced Loan Combination and, further, that a
portion of such Appraisal Reduction Amount is allocable to the Trust
Mortgage Loan or REO Trust Mortgage Loan, as applicable, that is part of
such Serviced Loan Combination, 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 Trust Mortgage Loan or REO Trust
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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 with
respect to such Trust Mortgage Loan or REO Trust 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 Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be,
reduced (to not less than zero) by the portion of such Appraisal Reduction
Amount with respect to the subject Serviced Loan Combination that is
allocable to such Trust Mortgage Loan or REO Trust Mortgage Loan, as the
case may be, and the denominator of which is equal to the then Stated
Principal Balance of such Trust Mortgage Loan or REO Trust Mortgage Loan,
as the case may be; and
(iii) if it is determined that an Appraisal Reduction Amount
exists with respect to any Trust Mortgage Loan or REO Trust Mortgage Loan
that is not part of a Loan Combination, 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 Trust Mortgage Loan or REO Trust 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 Trust Mortgage Loan or REO Trust 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
Trust Mortgage Loan or REO Trust 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 Trust Mortgage Loan or REO Trust 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 Trust Mortgage Loan or REO Trust
Mortgage Loan shall not affect the principal portion of any required P&I Advance
with respect thereto.
For purposes of determining the amount of P&I Advances to be made
with respect to any Distribution Date, if an Appraisal Reduction Amount exists
with respect to any Serviced Loan Combination, then such Appraisal Reduction
Amount shall be allocated between the Mortgage Loans or REO Mortgage Loans, as
applicable, in the subject Loan Combination as follows:
(i) with respect to a Serviced Pari Passu Loan Combination (if
any), any Appraisal Reduction Amount shall be allocated, first, to any related
Serviced Subordinate Non-Trust Mortgage Loan(s) (or any successor REO Mortgage
Loan(s) with respect thereto) (up to the amount of the outstanding principal
balance of, and all accrued and unpaid interest (other than Default Interest)
on, such Serviced Subordinate Non-Trust Mortgage Loan(s) (or any successor REO
Mortgage Loan(s) with respect thereto), and then, on a pro rata basis by
principal balance, between the related Serviced Combination Trust Mortgage Loan
and the related Serviced Pari Passu Non-Trust Mortgage Loan (or between any
successor REO Mortgage Loans with respect thereto); and
(ii) with respect to a Serviced A/B Loan Combination (if any),
any Appraisal Reduction Amount shall, in each case, be allocated, first, to the
related Serviced Note B Non-Trust Mortgage Loan(s) (or any successor REO
Mortgage Loan(s) with respect thereto) (up to the amount of
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the outstanding principal balance of, and all accrued and unpaid interest (other
than Default Interest) on, such Serviced Note B Non-Trust Mortgage Loan(s) (or
any successor REO Mortgage Loan(s) with respect thereto)), and then, to the
related Serviced Combination Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan with respect thereto).
If the Master Servicer, the Trustee or any Fiscal Agent makes a P&I
Advance with respect to an Outside Serviced Trust Mortgage Loan or any successor
REO Trust Mortgage Loan with respect thereto, then it shall promptly so notify
the related Outside Master Servicer of each such P&I Advance so made thereby and
shall seek reimbursement for such P&I Advance (together with interest thereon)
out of amounts otherwise payable with respect to the Outside Serviced Loan
Combination that includes such Outside Serviced Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto, to the maximum extent
permitted by, and out of amounts specified for such purpose under, the related
Co-Lender Agreement and/or the related Outside Servicing Agreement.
(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 Serviced Trust Mortgage Loan or, if
related to an Administered REO Property, any REO Trust 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 Serviced Trust Mortgage Loan or, if related to an Administered
REO Property, any REO Trust 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 Trust 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 or, alternatively, in the case of an Outside Serviced Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto,
shall either have been conducted by an Independent Appraiser as provided above
or received from a related Outside Servicer), related Mortgagor operating
statements and financial statements, budgets and rent rolls of the related
Mortgaged Properties (to the extent available
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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 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.
In addition, if (i) the Master Servicer reasonably believes, in
accordance with the Servicing Standard, that a P&I Advance with respect to any
Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto constitutes or may, if made, constitute a Nonrecoverable
P&I Advance, and (ii) either (A) the Master Servicer has made a request for an
appraisal with respect to the related Mortgaged Property from the applicable
Outside Servicer and has not obtained, (x) within 15 Business Days of such
request, a response from the applicable Outside Servicer indicating that an
appraisal with respect to the related Mortgaged Property would be performed
within 60 days of the date of such response or has been performed within the
prior 12-month period (or such shorter period as the Master Servicer reasonably
believes, in accordance with the Servicing Standard, is necessary) preceding the
date of such request, and (y) within 60 days of the date of such response, a
copy of an appraisal report with respect to the related Mortgaged Property,
relating to an appraisal that has been performed within the 12-month period (or
such shorter period as the Master Servicer reasonably believes, in accordance
with the Servicing Standard, is necessary) preceding the date of such request by
the Master Servicer, that complies with the requirements for such an appraisal
under the terms of the related Outside Servicing Agreement or this Agreement, or
(B) the Master Servicer has made a request for an appraisal with respect to the
related Mortgaged Property from the applicable Outside Servicer and has been
advised by the applicable Outside Servicer that such an appraisal with respect
to the related Mortgaged Property will not be performed within the time periods
specified in clause (ii)(A) above, then the Master Servicer may have an
appraisal performed with respect to the related Mortgaged 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 may be withdrawn from general collections on deposit in the Pool
Custodial Account. 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.
Notwithstanding the foregoing, the Master Servicer may conclusively rely on a
nonrecoverability determination of an Outside Servicer with respect to the
related Outside Serviced Trust Mortgage Loan.
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If any of the Pari Passu Non-Trust Mortgage Loans is securitized as
part of a rated commercial mortgage securitization similar to the commercial
mortgage securitization contemplated by this Agreement, and if the Master
Servicer receives written notice that the primary party responsible for making
delinquency advances similar to P&I Advances hereunder with respect to such
other commercial mortgage securitization has determined, in accordance with the
requirements of the related Non-Trust Mortgage Loan Securitization Agreement,
that any such delinquency advance made or to be made with respect to such
securitized Pari Passu Non-Trust Mortgage Loan (or any successor REO Mortgage
Loan or comparable deemed mortgage loan with respect thereto) would not
ultimately be recoverable out of collections on such Pari Passu Non-Trust
Mortgage Loan (or such REO Mortgage Loan or comparable deemed mortgage loan),
then the Master Servicer shall deliver written notice to such effect to the
Trustee, any Fiscal Agent and the Depositor.
In addition, if the Master Servicer has actual knowledge that any of
the Pari Passu Non-Trust Mortgage Loans is securitized as part of a rated
commercial mortgage securitization similar to the commercial mortgage
securitization contemplated by this Agreement, and if the Master Servicer
determines that any P&I Advance made or to be made with respect to the related
Combination Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto) is or, if made, would be a Nonrecoverable P&I Advance, then the
Master Servicer shall, consistent with the related Co-Lender Agreement (if
applicable), notify, in writing, its counterpart under each such other
commercial mortgage securitization within one (1) Business Day of such
determination, which written notice shall be accompanied by the supporting
evidence for such determination. It will, consistent with the related Co-Lender
Agreement (if applicable), also notify, in writing, its counterpart under each
such other commercial mortgage securitization (within one (1) Business Day of
such determination) if it subsequently determines that P&I Advances made or to
be made with respect to the related Combination Trust Mortgage Loan (or any
successor REO Trust Mortgage Loan with respect thereto) are no longer
Nonrecoverable P&I Advances. Following a determination of nonrecoverability by
the Master Servicer in accordance with this paragraph or by another party
responsible for making delinquency advances similar to P&I Advances with respect
to a securitized Pari Passu Non-Trust Mortgage Loan (or any successor REO
Mortgage Loan or comparable deemed mortgage loan with respect thereto) in
accordance with the preceding paragraph, prior to the Master Servicer resuming
P&I Advances with respect to the related Combination Trust Mortgage Loan (or any
successor REO Trust Mortgage Loan with respect thereto), the Master Servicer
shall consult with its counterparts under the securitizations of any such Pari
Passu Non-Trust Mortgage Loans regarding whether circumstances with respect to
the subject mortgage loans have changed such that a proposed future P&I Advance
would not be 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 Trust Master Servicer
Remittance Date. Interest so accrued on any P&I Advance made under this Section
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4.03 shall be payable: (i) first, in accordance with Sections 3.05(a) and 3.26,
out of any Default Charges on deposit in the Pool Custodial Account that were
collected on or in respect of the particular Trust Mortgage Loan or REO Trust
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 Pool Custodial Account; provided that, in the case of P&I
Advances with respect to an Outside Serviced Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto, the Master Servicer
shall, no less often than monthly, notify the related Outside Master Servicer of
the interest accruing on such P&I Advances in accordance with this Section
4.03(d) and, to the maximum extent permitted by the related Co-Lender Agreement,
prior to paying such interest on such P&I Advances out of general collections in
respect of the Mortgage Pool on deposit in the Pool Custodial Account, shall
seek payment for such interest on such P&I Advances from the related Outside
Master Servicer out of amounts otherwise payable with respect to the Outside
Serviced Loan Combination that includes such Outside Serviced Trust Mortgage
Loan or any successor REO Trust Mortgage Loan with respect thereto, to the
maximum extent permitted by, and out of amounts specified for such purpose
under, the related Co-Lender Agreement; and provided, further, that, if such P&I
Advance was made with respect to a Serviced Combination Trust Mortgage Loan or
any REO Trust Mortgage Loan with respect thereto, then such interest on such P&I
Advance shall first be payable out of amounts on deposit in the related Serviced
Loan Combination Custodial Account in accordance with, and to the extent
provided in, Section 3.05A. The Master Servicer shall, in accordance with
Section 3.05(a) and/or Section 3.05A, 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.
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
(exclusive of the Floating Rate Certificates) and the Group FL REMIC III Regular
Interests, exceeds (ii)
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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 (exclusive of the Floating Rate Certificates) and the Group FL
REMIC III Regular Interests shall be reduced sequentially as follows, in each
case to zero if necessary, until such remaining excess is eliminated: first, to
the extent necessary, the Class Principal Balance of the Class A-J Certificates
shall be reduced; second, if and to the extent necessary, the Class Principal
Balances of the Class A-M Certificates and the Class A-MFL REMIC III Regular
Interest shall be reduced to zero, on a pro rata basis in accordance with the
respective outstanding Class Principal Balances thereof; and last, if and to the
extent necessary, the respective Class Principal Balances of the various Classes
of the Senior Class A Certificates (exclusive of the Class A-2FL Certificates)
and the Class A-2FL REMIC III Regular Interest shall be reduced, on a pro rata
basis in accordance with the respective outstanding Class Principal Balances
thereof. Any Realized Losses and Additional Trust Fund Expenses allocated to the
Class A-2FL REMIC III Regular Interest shall, in turn, be deemed allocated to
the Class A-2FL Certificates; and any Realized Losses and Additional Trust Fund
Expenses allocated to the Class A-MFL REMIC III Regular Interest shall, in turn,
be deemed allocated to the Class A-MFL Certificates.
Any and all such reductions in the Class Principal Balances of the
respective Classes of the Principal Balance Certificates and the respective
Group FL REMIC III Regular Interests 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 (exclusive of the Floating Rate Certificates) or any Group
FL REMIC III Regular Interest is reduced on any Distribution Date pursuant to
Section 4.04(a), then the Uncertificated Principal Balance of such Class's or
such Group FL REMIC III Regular Interest'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(n), 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 Trust Mortgage Loan or REO Trust 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.
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(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(o), 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 Trust Mortgage Loan or any successor REO Trust Mortgage
Loan with respect thereto, as the case may 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 (exclusive of the Floating Rate Certificates) and the Group FL
REMIC III Regular Interests. 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 (exclusive of the Class A-2FL
Certificates) and the Class A-2FL REMIC III Regular Interest, 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 and such Group FL REMIC III
Regular Interest 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-M
Certificates and the Class A-MFL REMIC III Regular Interest, up to, and on a pro
rata basis in accordance with, the respective Loss Reimbursement Amounts, if
any, for the Class A-M Certificates and the Class A-MFL REMIC III Regular
Interest with respect to such Distribution Date (minus any amount reimbursed in
respect of such respective Loss Reimbursement Amounts on the subject
Distribution Date pursuant to Section 4.01(a)); third, to the Class A-J
Certificates, up to the Loss Reimbursement Amount, if any, 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 or a particular Group FL REMIC III Regular
Interest shall be: (i) referred to herein as the "Class Principal Reinstatement
Amount" in respect of such Class of Principal Balance Certificates or such Group
FL REMIC III Regular Interest, as the case may be, for such Distribution Date;
and (ii) added to the Class Principal Balance of such Class of Principal Balance
Certificates or such Group FL REMIC III Regular Interest, as the case may be, 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 or any Group FL REMIC III Regular Interest 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
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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 or Group FL REMIC III Regular Interests 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 or the respective Group FL REMIC III
Regular Interests 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 or any Group FL REMIC III Regular
Interest, 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
subject Distribution Date. Once determined, such lost Distributable Certificate
Interest in respect of any particular Class of Regular Interest Certificates or
Group FL REMIC III Regular Interest 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 or such
Group FL REMIC III Regular Interest, as the case may be, from prior Distribution
Dates. All such reinstated Distributable Certificate Interest in respect of any
particular Class of Regular Interest Certificates or any Group FL REMIC III
Regular Interest shall be treated the same as any other unpaid Distributable
Certificate Interest in respect of such Class of Regular Interest Certificates
or such Group FL REMIC III Regular Interest, as the case may be.
(c) If the Class Principal Balance of any Class of Principal
Balance Certificates (exclusive of the Floating Rate Certificates) or any Group
FL REMIC III Regular Interest is increased on any Distribution Date pursuant to
Section 4.05(a), then the Uncertificated Principal Balance of such Class's or
such Group FL REMIC III Regular Interest'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 or any Group FL REMIC
III Regular Interest 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 or such Group FL REMIC III Regular
Interest'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.
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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 and the Floating Rate
Certificates shall initially be held and transferred through the book-entry
facilities of the Depository. The Regular Interest Certificates and the Floating
Rate 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 X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, 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 the Floating Rate 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
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the Closing Date, at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, Attention: Global Securities and Trust Services--LB-UBS Commercial
Mortgage Trust 2007-C6. 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, any Mortgage Loan Seller, any Swap Counterparty, the Master Servicer,
the Special Servicer, any Sub-Servicer, any Person responsible for servicing an
Outside Serviced Trust Mortgage Loan or administering an Outside Administered
REO Property, any Exemption-Favored Party or any Mortgagor with respect to Trust
Mortgage Loans constituting more than 5% of the aggregate unamortized principal
balance of all the Trust Mortgage Loans determined as of the Closing Date, or by
any Affiliate of such Person, and (Z) agrees that it will obtain from each of
its
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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 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), and (if the subject Certificate is a Floating Rate
Certificate and the related Swap Agreement is still in effect) a second
certification to the effect that such Transferee's acquisition and holding of
such Floating Rate Certificate or an interest therein are eligible for the
exemptive relief available under at least one of Prohibited Transaction
Exemption 84-14, 90-1, 91-38, 95-60 or 96-23; 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. Each beneficial owner of a
Floating Rate Certificate, or any interest therein, is hereby deemed to have
represented by virtue of its acquisition of such Certificate, that either (i) it
is not a Plan or person using plan assets or (ii) both (a) it is an "accredited
investor" as defined in Rule 501(a)(1) under the Securities Act, and PTE 91-14
and (b) its acquisition and holding of that certificate or interest therein are
eligible for the exemptive relief available under at least one of Prohibited
Transaction Exemption 84-14, 90-1, 91-38, 96-23 or 95-60.
(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.
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(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 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
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Section 5.02(d) or for making any payments due on such Certificate to the
Holder thereof or for taking any other action with respect to such Holder
under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a
Residual Interest Certificate in violation of the
restrictions in this Section 5.02(d), then, to the extent
that retroactive restoration of the rights of the preceding
Holder of such Residual Interest Certificate as described in
clause (ii)(A) above shall be invalid, illegal or
unenforceable, the Trustee shall have the right but not the
obligation, to cause the Transfer of such Residual Interest
Certificate to a Permitted Transferee selected by the
Trustee on such terms as the Trustee may choose, and the
Trustee shall not be liable to any Person having an
Ownership Interest in such Residual Interest Certificate as
a result of the Trustee's exercise of such discretion. Such
purported Transferee shall promptly endorse and deliver such
Residual Interest Certificate in accordance with the
instructions of the Trustee. Such Permitted Transferee may
be the Trustee itself or any Affiliate of the Trustee.
(iii) The Tax Administrator shall make available to the IRS and to
those Persons specified by the REMIC Provisions all information furnished
to it by the other parties hereto necessary to compute any tax imposed (A)
as a result of the Transfer of an Ownership Interest in a Residual
Interest Certificate to any Person who is a Disqualified Organization,
including the information described in Treasury regulations sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions"
of such Residual Interest Certificate and (B) as a result of any regulated
investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of
the Code that holds an Ownership Interest in a Residual Interest
Certificate having as among its record holders at any time any Person
which is a Disqualified Organization, and each of the other parties hereto
shall furnish to the Tax Administrator all information in its possession
necessary for the Tax Administrator to discharge such obligation. The
Person holding such Ownership Interest shall be responsible for the
reasonable compensation of the Tax Administrator for providing information
thereto pursuant to this subsection (d)(iii) and Section 10.01(h)(i).
(iv) The provisions of this Section 5.02(d) set forth prior to
this clause (iv) may be modified, added to or eliminated, provided that
there shall have been delivered to the Trustee and the Tax Administrator
the following:
(A) written confirmation from each Rating Agency to the
effect that the modification of, addition to or
elimination of such provisions will not cause an
Adverse Rating Event 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
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Permitted Transferee or (2) cause a Person other than
the prospective Transferee to be subject to a
REMIC-related tax caused by the Transfer of a Residual
Interest Certificate to a Person that is not a
Permitted Transferee.
(e) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of an
interest in a Book-Entry Non-Registered Certificate, to the Certificate Owner
that is transferring such interest) a certification to the effect that, and such
other evidence as may be reasonably required by the Trustee (or such Certificate
Owner) to confirm that, it has (i) sole investment discretion with respect to
each such account and (ii) full power to make the applicable foregoing
acknowledgments, representations, warranties, certifications and agreements with
respect to each such account as set forth in subsections (b), (c) and/or (d), as
appropriate, of this Section 5.02.
(f) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class evidencing a like aggregate Percentage Interest
in such Class.
(g) At the option of any Holder, its Certificates may be exchanged
for other Certificates of authorized denominations of the same Class evidencing
a like aggregate Percentage Interest in such Class upon surrender of the
Certificates to be exchanged at the offices of the Certificate Registrar
maintained for such purpose. Whenever any Certificates are so surrendered for
exchange, the Certificate Registrar shall execute and the Authenticating Agent
shall authenticate and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(h) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(i) No service charge shall be imposed for any transfer or
exchange of Certificates, but the Trustee or Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
(j) All Certificates surrendered for transfer and exchange shall
be physically canceled by the Certificate Registrar, and the Certificate
Registrar shall dispose of such canceled Certificates in accordance with its
standard procedures.
SECTION 5.03. Book-Entry Certificates.
(a) Each Class of Regular Interest Certificates and each Class of
Floating Rate 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
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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 A-2FL, Class
A-MFL, 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 A-2FL, Class A-MFL, 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 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.
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Upon surrender to the Certificate Registrar of the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, the Definitive Certificates in respect of such Class to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar shall
be liable for any delay in delivery of such instructions, and each of them may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates for purposes of evidencing
ownership of any Class of Registered Certificates, the registered holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) Notwithstanding any other provisions contained herein, neither
the Trustee nor the Certificate Registrar shall have any responsibility
whatsoever to monitor or restrict the Transfer of ownership interests in any
Certificate (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 Grantor
Trust, 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 or
any class of Specially Designated Non-Trust Mortgage Loan Securities 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, the
Certificateholders or the Serviced Non-Trust Mortgage Loan Noteholders for any
action taken, or not taken, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect the
Depositor, the Master Servicer or the Special Servicer against any liability to
the Trust Fund, the Trustee, the Certificateholders or the Serviced Non-Trust
Mortgage Loan Noteholders for the breach of a representation or warranty made
herein by such party, or against any expense or liability specifically required
to be borne by such party without right of reimbursement pursuant to the terms
hereof, or against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of its
obligations or duties hereunder or negligent disregard of such obligations or
duties. The Depositor, the Master Servicer, the Special Servicer and any
director, manager, member, officer, employee or agent of the Depositor, the
Master Servicer or the Special Servicer may rely in good faith on any document
of any kind which, prima facie, is properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Master Servicer,
the Special Servicer and any director, manager, member, officer, employee or
agent of the Depositor, the Master Servicer or the Special Servicer shall be
indemnified and held harmless by the Trust Fund out of the Pool Custodial
Account against any loss, liability or reasonable expense (including reasonable
legal fees and expenses) incurred in connection with (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 2.03(i)
hereof or Section 5(i) of a UMLS/Depositor 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; provided that, if a Serviced
Loan Combination is involved, such indemnity shall be payable out of the related
Loan Combination Custodial Account pursuant to Section 3.05A and, if and to the
extent not solely attributable to one or more Serviced Non-Trust Mortgage Loans
(or any successor REO Mortgage Loan(s) with respect thereto) included in such
Serviced Loan Combination, shall also be payable out of the Pool Custodial
Account if amounts on deposit in the related Loan Combination Custodial
Account(s) are insufficient therefor; and provided, further, that in making a
determination as to whether any such indemnity is solely attributable to one or
more Serviced Non-Trust Mortgage Loans (or any successor REO Mortgage Loan(s)
with respect thereto), the fact that any related legal action was instituted by
or against a related Serviced Non-Trust Mortgage Loan Noteholder shall not
create a presumption that such indemnity is solely attributable thereto. 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
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ultimate expense or liability for which it would not be reimbursed hereunder.
Notwithstanding the foregoing, subject to Section 2.03(i) of this Agreement and
Section 5(i) of each UMLS/Depositor 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 (or, if a Serviced Loan
Combination is affected, the rights of the Certificateholders and the related
Serviced Non-Trust Mortgage Loan Noteholder(s) (as a collective whole)). In such
event, the legal expenses and costs of such action, and any liability resulting
therefrom, shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor, the Master Servicer and the Special Servicer shall be entitled to be
reimbursed therefor from the Pool Custodial Account as provided in Section
3.05(a); provided, however, that if and to the extent a Serviced Loan
Combination and/or a Serviced Non-Trust Mortgage Loan Noteholder is involved,
such expenses, costs and liabilities shall be payable out of the related Loan
Combination Custodial Account pursuant to Section 3.05A and, if and to the
extent attributable to one or more Trust Mortgage Loans and/or REO Trust
Mortgage Loans, shall also be payable out of the Pool Custodial Account if
amounts on deposit in the related Loan Combination Custodial Account are
insufficient therefor. In no event shall the Master Servicer or the Special
Servicer be liable or responsible for any action taken or omitted to be taken by
the other of them (unless they are the same Person or Affiliates) or for any
action taken or omitted to be taken by the Depositor, the Trustee, any
Certificateholder or any Serviced Non-Trust Mortgage Loan Noteholder (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).
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(b) Consistent with Section 6.04(a), neither the Master Servicer
nor the Special Servicer shall, except as expressly provided herein, assign or
transfer any of its rights, benefits or privileges hereunder to any other Person
or, except as provided in Sections 3.22, 4.07 and 7.01(d), delegate to or
subcontract with, or authorize or appoint any other Person to perform any of the
duties, covenants or obligations to be performed by it hereunder. If, pursuant
to any provision hereof, the duties of the Master Servicer or the Special
Servicer are transferred to a successor thereto, the Master Servicing Fee, the
Special Servicing Fee, any Workout Fee (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, Trustee and Serviced
Non-Trust Mortgage Loan Noteholders in Respect
of the Master Servicer and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor, each Underwriter, the Trustee and each Serviced Non-Trust Mortgage
Loan Noteholder, upon reasonable notice, during normal business hours access to
all records maintained thereby in respect of its rights and obligations
hereunder. Upon reasonable request, the Master Servicer and the Special Servicer
shall each furnish the Depositor, each Underwriter, the Trustee and each
Serviced Non-Trust Mortgage Loan Noteholder 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.
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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) Subject to Section 6.09(d), 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; provided that the Majority Controlling Class
Certificateholder(s) may not designate any Person to act as successor Special
Servicer with respect to any Serviced Loan Combination (without the consent of
the related Serviced Non-Trust Noteholder(s), such consent not to be
unreasonably withheld) if such Person was previously terminated as Special
Servicer with respect to such Serviced Loan Combination due to an Event of
Default under any of clauses (i) through (v) of Section 7.01(a). 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, each Serviced
Non-Trust Mortgage Loan Noteholder and the existing Special Servicer of a
written notice stating such designation. The Trustee shall, promptly after
receiving any such notice, deliver to the Rating Agencies an executed Notice and
Acknowledgment in the form attached hereto as Exhibit I-1. If 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, and subject to the prior rights of any particular party to appoint a
special servicer with respect to any Serviced Senior/Subordinate Loan
Combination or related REO Property in accordance with Section 6.09(d), the
Trustee shall designate a successor Special Servicer, subject to removal by the
Majority Controlling Class Certificateholder(s) or as and to the extent
otherwise provided in Section 6.09(d) and appointment of a successor thereto
pursuant to the terms of this Section 6.09. Subject to Section 6.09(d) and the
proviso to the first sentence of this Section 6.09(a), 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 or
any outstanding class of Specially Designated Non-Trust Mortgage Loan Securities
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. Subject to Section 6.09(d) and the proviso to the first sentence
of this Section 6.09(a), any existing Special Servicer shall be deemed to have
resigned simultaneously with such designated Person's becoming the Special
Servicer hereunder;
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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 a Custodial Account, a Servicing Account, a Reserve Account or an
REO Account or should have been delivered to the Master Servicer or that are
thereafter received with respect to Specially Serviced Mortgage Loans and
Administered REO Properties. The Trustee shall notify the other parties hereto,
the Certificateholders and the Serviced Non-Trust Mortgage Loan Noteholders 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. The rights of the Majority Controlling
Class Certificateholders to replace the Special Servicer under this Section
6.09(a) shall be subject to Section 6.09(d), as well as to the provisions of the
respective Co-Lender Agreement for each Serviced Loan Combination if and to the
extent that such Co-Lender Agreement entitles one or more of the related
Non-Trust Mortgage Loan Noteholders to be consulted in connection with such
replacement; and it shall be an additional condition to any such replacement
that the Majority Controlling Class Certificateholder(s) shall have fulfilled,
or caused the fulfillment of, any conditions precedent to such replacement that
are set forth in such Co-Lender Agreements.
(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 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
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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 its acquisition of all the Class T Certificates, Five Mile Capital II CMBS
Pooling International LLC 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).
(d) In the case of each of the Innkeepers Portfolio Loan
Combination and, for so long as no Serviced Loan Combination Change of Control
Event has occurred and is continuing with respect thereto, the Bear Canyon Loan
Combination, the related Non-Trust Mortgage Loan Noteholder (or its designee
appointed in accordance with Section 3.02 of the related Co-Lender Agreement)
shall be entitled, solely with respect to such Loan Combination, to exercise any
and all rights to terminate, appoint and/or replace the Special Servicer that
are granted to the Majority Controlling Class Certificateholder(s) pursuant to
the first paragraph of Section 6.09(a), in all cases subject to the same terms,
conditions and limitations as are applicable to any such termination,
appointment and/or replacement by the Majority Controlling Class
Certificateholder(s). Notwithstanding anything herein to the contrary, in the
case of each such Serviced Loan Combination, the related Non-Trust Mortgage Loan
Noteholder (or its designee appointed in accordance with Section 3.02 of the
related Co-Lender Agreement) shall not have any right under such circumstances
to terminate, replace or appoint any party as Special Servicer in respect of any
Mortgage Loan or REO Property other than the subject Serviced Loan Combination
and any related REO Property, and such right shall exist with respect to the
Bear Canyon Loan Combination only if and for so long as no Serviced Loan
Combination Change of Control Event has occurred and is continuing with respect
to the Bear Canyon Loan Combination. Further notwithstanding anything herein to
the contrary, the related Non-Trust Mortgage Loan Noteholder shall not under any
circumstances have any right to terminate the Special Servicer in respect of the
Addison Tower Loan Combination.
Notwithstanding the foregoing, the Majority Controlling Class
Certificateholder(s) shall continue to have all rights to terminate, appoint
and/or replace a Special Servicer in accordance with Section 6.09; provided
that: (i) for so long as no Serviced Loan Combination Change of Control Event
has occurred and is continuing with respect to the Bear Canyon Loan Combination,
the Majority Controlling Class Certificateholder(s) may not terminate or
replace, without cause, any Special Servicer appointed by the related Serviced
Non-Trust Mortgage Loan Noteholder or its designee with respect to the Bear
Canyon Loan Combination or any related REO Property pursuant to this Section
6.09(d); and
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(ii) the Majority Controlling Class Certificateholder(s) may not at any time
terminate or replace, without cause, any Special Servicer appointed by the
related Serviced Non-Trust Mortgage Loan Noteholder or its designee with respect
to the Innkeepers Portfolio Loan Combination or any related REO Property
pursuant to this Section 6.09(d);
If a replacement special servicer is appointed with respect to a
Serviced Loan Combination or any related REO Property at the request of a
related Serviced Non-Trust Mortgage Loan Noteholder in accordance with Section
7.01(d) or with respect to a Serviced Loan Combination or any related REO
Property at the request of any appropriate party in accordance with this Section
6.09(d), and if the Person acting as Loan Combination Special Servicer with
respect to a Serviced Loan Combination or any related REO Property is different
from the Person acting as Special Servicer with respect to the Mortgage Pool
(exclusive of the Serviced Loan Combinations), then the provisions of Section
7.01(e) shall apply to such Loan Combination Special Servicer in respect of such
circumstances.
Pursuant to Section 3(k) of the Potomac Xxxxx Co-Lender Agreement,
the Majority Controlling Class Certificateholder(s) are entitled to remove and
replace the Outside Special Servicer with respect to the Potomac Xxxxx Loan
Combination; provided that the appointment of a successor Special Servicer is
subject to any applicable requirements set forth in the Potomac Xxxxx Servicing
Agreement and to written confirmation by each Rating Agency that such
appointment will not result in an Adverse Rating Event with respect to any Class
of Certificates or any class of Specially Designated Non-Trust Mortgage Loan
Securities backed by the Potomac Xxxxx Non-Trust Mortgage Loan.
Pursuant to Section 2(k) of the Och-Ziff Retail Portfolio Co-Lender
Agreement, the Majority Controlling Class Certificateholder(s) are entitled to
remove and replace the Outside Special Servicer with respect to the Och-Ziff
Retail Portfolio Loan Combination, subject to consultation on a non-binding
basis with the majority holder(s) of the controlling class under the
securitization(s) relating to the Och-Ziff Retail Portfolio Non-Trust Mortgage
Loan; provided that the Majority Controlling Class Certificateholder(s) are not
obligated to follow the advice of such other majority holder(s); and provided
further that the appointment of a successor Special Servicer is subject to any
applicable requirements set forth in the Och-Ziff Retail Portfolio Servicing
Agreement and to written confirmation by each Rating Agency that such
appointment will not result in an Adverse Rating Event with respect to any Class
of Certificates or any class of Specially Designated Non-Trust Mortgage Loan
Securities backed by the Och-Ziff Retail Portfolio Non-Trust Mortgage Loan.
(e) Any Loan Combination Special Servicer removed pursuant to
Section 6.09(d) shall be deemed to have resigned simultaneously with its
replacement becoming the new Loan Combination Special Servicer hereunder with
respect to the subject Loan Combination or any related REO Property; provided,
however, that (i) the outgoing Loan Combination 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, in respect of the subject Loan
Combination or any related REO Property, (ii) if the outgoing Loan Combination
Special Servicer was terminated without cause, it shall be entitled to a portion
of certain Workout Fees thereafter payable with respect to any Corrected
Mortgage Loan(s) constituting the subject Loan Combination, but only if and to
the extent permitted by Section 3.11(c), and (iii) the outgoing Loan Combination
Special Servicer shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such resignation. The outgoing Loan Combination Special
Servicer shall cooperate with the Trustee and its replacement in effecting the
termination of the responsibilities and rights
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hereunder of the outgoing Loan Combination Special Servicer, including the
transfer within two (2) Business Days to the replacement Loan Combination
Special Servicer for administration by it of all cash amounts relating to the
subject Loan Combination or any related REO Property that shall at the time be
or should have been credited by the outgoing Loan Combination Special Servicer
to a Custodial Account, a Servicing Account, a Reserve Account or an REO Account
or should have been delivered to the Master Servicer or that are thereafter
received with respect to the subject Loan Combination and/or any related REO
Property. The Trustee shall notify the other parties hereto and the
Certificateholders of any termination of a Loan Combination Special Servicer
and/or appointment of a new Loan Combination Special Servicer in accordance with
Section 6.09(d).
Any out-of-pocket costs and expenses incurred in connection with the
removal (without cause) of a Loan Combination Special Servicer, and the
appointment of its replacement, pursuant to Section 6.09(d), that are not paid
by the replacement Loan Combination Special Servicer, shall be paid by the
Person(s) effecting the removal in accordance with Section 6.09(d). The rights
of any Serviced Loan Combination Controlling Party with respect to a Serviced
Loan Combination to replace the related Loan Combination Special Servicer under
Section 6.09(d) shall be subject to the provisions of the related Co-Lender
Agreement; and it shall be an additional condition to any such replacement that
such Serviced Loan Combination Controlling Party shall have fulfilled, or caused
the fulfillment of, any conditions precedent to such replacement that are set
forth in the related Co-Lender Agreement.
SECTION 6.10. Master Servicer or Special Servicer as Owner of
a Certificate.
The Master Servicer, the Special Servicer or any Affiliate of either
of them may become the Holder of (or, in the case of a Book-Entry Certificate,
Certificate Owner with respect to) any Certificate with (except as otherwise set
forth in the definition of "Certificateholder") the same rights it would have if
it were not the Master Servicer or the Special Servicer or an Affiliate thereof.
If, at any time during which the Master Servicer or the Special Servicer or an
Affiliate of the Master Servicer or the Special Servicer is the Holder of (or,
in the case of a Book-Entry Certificate, Certificate Owner with respect to) any
Certificate, the Master Servicer or the Special Servicer proposes to take action
(including for this purpose, omitting to take action) that is not expressly
prohibited by the terms hereof and would not, in the Master Servicer's or the
Special Servicer's reasonable, good faith judgment, violate the Servicing
Standard, but that, if taken, might nonetheless, in the Master Servicer's or the
Special Servicer's good faith judgment, be considered by other Persons to
violate the Servicing Standard, then the Master Servicer or the Special Servicer
may (but need not) seek the approval of the Certificateholders to such action by
delivering to the Trustee a written notice that (a) states that it is delivered
pursuant to this Section 6.10, (b) identifies the Percentage Interest in each
Class of Certificates beneficially owned by the Master Servicer or an Affiliate
thereof or the Special Servicer or an Affiliate thereof, as appropriate, and (c)
describes in reasonable detail the action that the Master Servicer or the
Special Servicer proposes to take. The Trustee, upon receipt of such notice,
shall forward it to the Certificateholders (other than the Master Servicer and
its Affiliates or the Special Servicer and its Affiliates, as appropriate),
together with such instructions for response as the Trustee shall reasonably
determine. If at any time Certificateholders holding 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 (with a copy to the related Serviced Non-Trust Mortgage Loan
Noteholder(s), if a Serviced Loan Combination is involved) to the proposal
described in the written notice, and if the Master Servicer or the Special
Servicer shall act as proposed in the written notice within 30 days, such
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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 Serviced
Mortgage Loan and shall provide the Controlling Class Representative with all
reasonably requested information with respect thereto. 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
Serviced Mortgage Loans and any Administered 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 Serviced Mortgage Loan or Administered 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 (b)(iii), clause (b)(viii), clause (b)(x) and, in
the case of Performing Serviced Mortgage Loans, clause (b)(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; and provided, further, that the foregoing rights of
the Controlling Class Representative shall not relate to any Serviced Mortgage
Loan that is part of, or any Administered REO Property that relates to, a
Serviced Loan Combination, regarding which the rights and powers of the
specified Persons set forth under Section 6.12 are instead applicable. Any right
to take any action, grant or withhold any consent or otherwise exercise any
right, election or remedy afforded the Controlling Class Representative under
this Agreement may, unless otherwise expressly provided herein to the contrary,
be affirmatively waived by the Controlling Class Representative by written
notice given to the Trustee, 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
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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 Administered REO Property as the Controlling Class Representative may
deem advisable or as to which provision is otherwise made herein; provided that
the foregoing rights of the Controlling Class Representative shall not relate to
any Specially Serviced Mortgage Loan that is part of, or any Administered REO
Property that relates to, a Serviced Loan Combination. 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 Serviced 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 Serviced Mortgage Loan that is not
part of a Loan Combination even if such release or substitution is required by
the terms of such Serviced Mortgage Loan.
(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection from or by the Controlling Class Representative with
respect to any Serviced Mortgage Loan or Administered 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) 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), subject it to liability or
materially expand the scope of its obligations 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 Trust 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 Trust Mortgage Loan; and
(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 are consistent with the
Servicing Standard.
Also notwithstanding anything herein to the contrary, the provisions
of Section 6.11(a), and the rights and powers of the Controlling Class
Representative provided for in Section 6.11(a), shall not apply to any Serviced
Loan Combination or any related Administered REO Property; provided that this
paragraph is not intended to limit any rights or powers that the Controlling
Class Representative may have under Section 6.12.
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(c) Except as otherwise contemplated by Section 6.09(d), the
Controlling Class Representative is hereby authorized to exercise the rights and
powers of the Trustee, as holder of the Mortgage Note for each Outside Serviced
Trust Mortgage Loan, that would be applicable to it as a Loan Combination
Directing Lender, or that relate to cure or purchase options, under the related
Co-Lender Agreement (and any corresponding provisions of the related Outside
Servicing Agreement), including for purposes of exercising, (i) either
individually or together with related Non-Trust Mortgage Loan Noteholder(s), as
the case may be, consent rights, consultation rights, rights to direct servicing
and rights to replace the related Outside Special Servicer and (ii) any related
purchase option and cure rights; provided that any purchase option or cure
rights may be exercised by the Controlling Class Representative only in its
individual capacity with its own funds. Promptly following the initial such
appointment of a Controlling Class Representative and any subsequent such
appointment of a successor Controlling Class Representative, with respect to
each Outside Serviced Trust Mortgage Loan, the Trustee shall inform the related
Outside Master Servicer, the related Outside Special Servicer and the related
Non-Trust Mortgage Loan Noteholder(s) (and from time to time shall ensure that
such parties remain similarly informed) that the Controlling Class
Representative is entitled, to the fullest extent permitted under the related
Co-Lender Agreement, to exercise such rights and powers of the Trustee, in its
capacity as holder of the Mortgage Note for the subject Outside Serviced Trust
Mortgage Loan, that would be applicable to it as a Loan Combination Directing
Lender, or that relate to cure or purchase options, under the related Co-Lender
Agreement (and any corresponding provisions of the related Outside Servicing
Agreement), and, further, the Trustee shall take such other actions as may be
required under the related Co-Lender Agreement in order to permit the
Controlling Class Representative to exercise such rights and powers. The
Controlling Class Representative shall be subject to the same limitations,
constraints, restrictions and conditions in exercising such rights and powers as
would be applicable to the Trustee, in its capacity as holder of the Mortgage
Note for the subject Outside Serviced Trust Mortgage Loan. In addition, subject
to Section 7.01(f) and each other section hereof that specifically addresses a
particular matter with respect to any Outside Serviced Trust Mortgage Loan, if
the Trustee is requested to take any action in its capacity as holder of the
Mortgage Note for such Outside Serviced Trust Mortgage Loan, pursuant to the
related Co-Lender Agreement and/or the related Outside Servicing Agreement, then
the Trustee will notify (in writing), and act in accordance with the
instructions of, the Controlling Class Representative; provided that, if such
instructions are not provided within the prescribed time period, then the
Trustee, subject to Sections 8.01 and 8.02, shall take such action or inaction
as it deems to be in the best interests of the Certificateholders (as a
collective whole) and shall have all rights and powers incident thereto; and
provided, further, that the Trustee, with respect to any Outside Serviced Trust
Mortgage Loan or Outside Administered REO Property, (i) shall not be required to
take any action that relates to directing or approving any servicing related
action under the related Outside Servicing Agreement or the related Outside
Co-Lender Agreement, to the extent that the Controlling Class Representative has
been notified thereof and has failed to provide instructions with respect to
such action within the prescribed time period, and (ii) shall not take any
action that is not permitted under applicable law or the terms of the related
Co-Lender Agreement or the related Outside Servicing Agreement or any action
that is, in the good faith, reasonable discretion of the Trustee, materially
adverse to the interests of the Certificateholders (as a collective whole).
In connection with the foregoing: (i) pursuant to Section 3(k) of
the Potomac Xxxxx Co-Lender Agreement, any decision to be made with respect to
the Potomac Xxxxx Loan Combination which requires the approval of the
controlling class representative of the securitization relating to the Potomac
Xxxxx Non-Trust Mortgage Loan must be made by the Controlling Class
Representative, on behalf of the Majority Controlling Class
Certificateholder(s), after consultation with such Person(s) as may be
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required by the Potomac Xxxxx Co-Lender Agreement; and (ii) pursuant to Section
2(k) of the Och-Ziff Retail Portfolio Co-Lender Agreement, any decision to be
made with respect to the Och-Ziff Retail Portfolio Loan Combination which
requires the approval of the controlling class of the securitization relating to
the Och-Ziff Retail Portfolio Non-Trust Mortgage Loan must be made by the
Controlling Class Representative, on behalf of Majority Controlling Class
Certificateholder(s), after consultation with such Person(s) as may be required
by the Och-Ziff Retail Portfolio Co-Lender Agreement.
(d) 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 or bad faith in the performance of duties or by
reason of reckless 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.
SECTION 6.12. Certain Matters Regarding the Serviced Loan
Combinations.
(a) Each of the Master Servicer and the Special Servicer, as
applicable, shall notify (in writing and, if applicable, in accordance with the
related Co-Lender Agreement) the Controlling Class Representative, the related
Non-Trust Mortgage Loan Noteholder(s) and, if different, the related Serviced
Loan Combination Controlling Party of its intention to take any Specially
Designated Servicing Action with respect to any Serviced Loan Combination or
related REO Property and shall provide each such party with all reasonably
requested information with respect thereto. Subject to Section 6.12(b), and
further subject to Section 3.01(b), Section 3.01(c) and Section 3.02(b) of the
related Co-Lender Agreement, the applicable Serviced Loan Combination
Controlling Party 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 with respect to a Serviced
Loan Combination or any related REO Property; and, further subject to Section
6.12(b) of this Agreement and Section 3.02(b) of the related Co-Lender
Agreement, neither the Master Servicer nor the Special Servicer shall be
permitted to take (or, in the case of the Special Servicer, if and when
appropriate hereunder, to consent to the Master Servicer's taking) any of the
related Specially Designated Servicing Actions with respect to a Serviced Loan
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Combination or any related REO Property if the applicable Serviced Loan
Combination Controlling Party has objected in writing within the applicable time
period specified in Section 3.02(a) of the related Co-Lender Agreement following
the applicable Serviced Loan Combination Controlling Party having been notified
in writing thereof in compliance with the related Co-Lender Agreement and having
been provided with all reasonably requested information with respect thereto (it
being understood and agreed that if such written objection to the subject action
on the part of the applicable Serviced Loan Combination Controlling Party has
not been received by the Master Servicer or the Special Servicer, as applicable,
within such time period, then the applicable Serviced Loan Combination
Controlling Party will be deemed to have approved of the subject action);
provided that, if the Special Servicer or the Master Servicer, as applicable,
determines that immediate action is necessary to protect the interests of the
Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s) (as a collective whole), then the Special Servicer or the Master
Servicer, as the case may be, may take (or, in the case of the Special Servicer,
if and when appropriate hereunder, may consent to the Master Servicer's taking)
any such action without waiting for the applicable Serviced Loan Combination
Controlling Party's response; and provided, further, that, under circumstances
where the Controlling Class Representative is not, and is not part of, the
applicable Serviced Loan Combination Controlling Party, nothing herein shall be
intended to limit the right of the Controlling Class Representative to consult
with the Master Servicer or the Special Servicer, as applicable, regarding any
Serviced Loan Combination or related REO Property, and during the time period
referred to above (or such shorter period as is contemplated by the immediately
preceding proviso), the Master Servicer or the Special Servicer, as applicable,
shall consult with the Controlling Class Representative regarding its views as
to the proposed action (but may, in its sole discretion, reject any advice,
objection or direction from the Controlling Class Representative) and, upon
reasonable request, the Master Servicer or the Special Servicer, as applicable,
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.
In addition, subject to Section 6.12(b), and further subject to
Section 3.01(b), Section 3.01(c) and Section 3.02(b) of the related Co-Lender
Agreement, if and to the extent provided for under the subject Co-Lender
Agreement, the applicable Serviced Loan Combination Controlling Party may direct
the Special Servicer or the Master Servicer, as appropriate based on their
respective duties hereunder, to take, or to refrain from taking, such actions
with respect to each Serviced Loan Combination or any related REO Property as
the applicable Serviced Loan Combination Controlling Party may deem consistent
with the related Co-Lender Agreement or as to which provision is otherwise made
in the related Co-Lender Agreement. Upon reasonable request, the Special
Servicer or the Master Servicer, as appropriate based on their respective duties
hereunder, shall, with respect to each Serviced Loan Combination or any related
REO Property, provide the applicable Serviced Loan Combination Controlling Party
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). Promptly
following the Special Servicer or the Master Servicer receiving any direction
with respect to a Serviced Loan Combination or any related REO Property from the
applicable Serviced Loan Combination Controlling Party as contemplated by this
paragraph, and in any event prior to acting on such direction, such servicer
shall notify the Trustee, the Controlling Class Representative (if it is not,
and is not part of, the applicable Serviced Loan Combination Controlling Party)
and each related Serviced Non-Trust Mortgage Loan Noteholder (if neither it nor
its designee is, or is part of, the applicable Serviced Loan Combination
Controlling Party).
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Each of the Master Servicer (with respect to Performing Serviced
Mortgage Loans) and the Special Servicer (with respect to Specially Serviced
Mortgage Loans), as applicable, shall notify the related Serviced Non-Trust
Mortgage Loan Noteholder, the Controlling Class Representative and any other
Person that may be the applicable Serviced Loan Combination Controlling Party of
any release or substitution of collateral for a Serviced Loan Combination even
if such release or substitution is required by the terms of such Serviced Loan
Combination.
(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection with respect to any Serviced Loan Combination or related
REO Property from or by the applicable Serviced Loan Combination Controlling
Party, as contemplated by Section 6.12(a), may (and the Special Servicer and the
Master Servicer shall each ignore and act without regard to any such advice,
direction or objection that the Special Servicer or the Master Servicer, as
applicable, has determined, in its reasonable, good faith judgment, will)
require, cause or permit such servicer to violate any provision of the related
Co-Lender Agreement or this Agreement (exclusive of Section 6.12(a)) (including
such servicer's obligation to act in accordance with the Servicing Standard),
the related loan documents or applicable law or result in an Adverse REMIC Event
or an Adverse Grantor Trust Event, subject it to liability or materially expand
the scope of its obligations under this Agreement. Furthermore, neither the
Special Servicer nor the Master Servicer shall be obligated to seek approval
from the applicable Serviced Loan Combination Controlling Party for any actions
to be taken by such servicer with respect to the workout or liquidation of any
Serviced Loan Combination if: (i) such servicer has, as provided in Section
6.12(a), notified the applicable Serviced Loan Combination Controlling Party, in
writing of various actions that such servicer proposes to take with respect to
the workout or liquidation of such Serviced Loan Combination; and (ii) for 60
days following the first such notice, the applicable Serviced Loan Combination
Controlling Party has objected to all of those proposed actions and has failed
to suggest any alternative actions that such servicer considers to be consistent
with the Servicing Standard.
Also notwithstanding the foregoing, in the case of any Serviced Pari
Passu Loan Combination, if the holder(s) of the promissory notes evidencing the
related Pari Passu Non-Trust Mortgage Loan(s) (or their respective
representatives) and the Trust, as holder of the Mortgage Note for the related
Pari Passu Trust Mortgage Loan, are together acting as the related Serviced Loan
Combination Controlling Party, and if those noteholders or their respective
representatives have not, within the requisite time period provided for in the
related Co-Lender Agreement, executed a mutual consent with respect to any
advice, consent or direction regarding a specified servicing action, the Special
Servicer or Master Servicer, as applicable, will implement the servicing action
that it deems to be in accordance with the Servicing Standard, and the decision
of the Special Servicer or the Master Servicer, as applicable, will be binding
on all such parties.
(c) The Serviced Loan Combination Controlling Party for a Serviced
Loan Combination will not have any liability to the Trust or the
Certificateholders, in the case of a related Serviced Non-Trust Mortgage Loan
Noteholder or its designee acting in such capacity, or to the related Serviced
Non-Trust Mortgage Loan Noteholder(s), in the case of the Controlling Class
Representative acting in such capacity, for any action taken, or for refraining
from the taking of any action, in good faith pursuant to this Agreement or the
related Co-Lender Agreement, or for errors in judgment; provided, however, that
such Serviced Loan Combination Controlling Party will not be protected against
any liability which would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence in the performance of duties or by reason of negligent
disregard of obligations or duties.
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(d) Upon the occurrence and continuance of a Serviced Loan
Combination Change of Control Event (if applicable) with respect to a Serviced
Loan Combination or related REO Property, and/or if and for so long as the
Trust, as holder of the Serviced Combination Trust Mortgage Loan in such
Serviced Loan Combination (or any successor REO Trust Mortgage Loan with respect
thereto), is or may be part of, as applicable, the applicable Serviced Loan
Combination Directing Lender, then the Controlling Class Representative (i) is
hereby designated as the representative of the Trust for purposes of or in
connection with exercising the rights and powers of the applicable Serviced Loan
Combination Directing Lender or Serviced Loan Combination Controlling Party, as
applicable, under Section 3.02 of the related Co-Lender Agreement and (ii) shall
be or may be part of, as applicable, the applicable Serviced Loan Combination
Controlling Party hereunder. The Trustee shall take such actions as are
necessary or appropriate to make such designation effective in accordance with
the related Co-Lender Agreement, including providing notices to the related
Serviced Non-Trust Mortgage Loan Noteholder(s). The Master Servicer, or, if it
becomes aware of such event with respect to a Loan Combination that consists of
one or more Specially Serviced Mortgage Loans, the Special Servicer, shall
provide the parties to this Agreement with notice of the occurrence of a
Serviced Loan Combination Change of Control Event (if applicable) with respect
to any Serviced Loan Combination or related REO Property, promptly upon becoming
aware thereof.
(e) Each related Serviced Non-Trust Mortgage Loan Noteholder shall
be entitled to receive, upon request, a copy of any notice or report required to
be delivered (upon request or otherwise) to the Trustee with respect to a
Serviced Loan Combination or any related REO Property by any other party hereto.
Subject to the related Co-Lender Agreement, any such other party shall be
permitted to require payment of a sum sufficient to cover the reasonable costs
and expenses of providing such copies in accordance with this Section 6.12(e).
(f) Notwithstanding anything herein to the contrary, any appointment
of a successor Special Servicer hereunder, insofar as it affects any Serviced
Loan Combination or any related REO Property, will be subject to any
consultation or consent rights of the related Serviced Non-Trust Mortgage Loan
Noteholder(s) expressly provided for under the related Co-Lender Agreement.
(g) If and to the extent that the Co-Lender Agreement with respect
to any Serviced Senior/Subordinate Loan Combination provides that a related
Serviced Subordinate Non-Trust Mortgage Loan Noteholder may avoid a related
Serviced Loan Combination Change of Control Event by delivering Reserve
Collateral, then: (i) the Special Servicer shall hold all such Reserve
Collateral (in an Eligible Account, in the case of cash) in accordance with the
terms of this Agreement and such Co-Lender Agreement and in a manner that
clearly identifies that such Reserve Collateral is being held for the benefit of
the Certificateholders but, for federal income tax purposes, is beneficially
owned by the subject Serviced Subordinate Non-Trust Mortgage Loan Noteholder;
and (ii) the Special Servicer shall take all actions reasonably necessary to
maintain any perfected security interest on the part of the Trust in and to such
Reserve Collateral. If any letters of credit are furnished as Reserve Collateral
with respect to a Serviced Senior/Subordinate Loan Combination, and (i) if the
subject Serviced Subordinate Non-Trust Mortgage Loan Noteholder has not provided
a replacement letter of credit at least 30 days before the expiration of the
delivered letter of credit or (ii) the long-term or short-term unsecured debt
ratings of the issuer of such letter of credit fall below any applicable minimum
rating requirements specified in such Co-Lender Agreement, then the Special
Servicer shall provide written notice of such event to the Serviced Subordinate
Non-Trust Mortgage Loan Noteholder, and unless the Serviced Subordinate
Non-Trust Mortgage Loan Noteholder shall have replaced such letter of credit
with a letter
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of credit in form and substance satisfactory to the Special Servicer and the
Rating Agencies within the period of time specified in such Co-Lender Agreement,
the Special Servicer shall draw upon such letter of credit and hold the proceeds
thereof as related Reserve Collateral. Upon a Final Recovery Determination with
respect to a Serviced Senior/Subordinate Loan Combination, any related Reserve
Collateral held by the Special Servicer shall be available to reimburse the
Trust for any realized loss of principal and/or interest incurred with respect
to the related Serviced Senior Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan with respect thereto), up to the maximum amount permitted under
the related Co-Lender Agreement, together with all other amounts (including,
without limitation, Additional Trust Fund Expenses related to the subject
Serviced Senior/Subordinate Loan Combination or any related REO Property)
reimbursable under such Co-Lender Agreement and this Agreement. To the extent
necessary to effect such reimbursement, the Special Servicer shall draw down
upon or otherwise liquidate all applicable Reserve Collateral (if any) and shall
forward the reimbursement payment to the Master Servicer for deposit in the Pool
Custodial Account. Such reimbursement of payment shall, except for purposes of
Section 3.11(c) hereof, constitute "Liquidation Proceeds". The Special Servicer
may not release any Reserve Collateral to the Serviced Subordinate Non-Trust
Mortgage Loan Noteholder that delivered such Reserve Collateral, except as
expressly required under the related Co-Lender Agreement (including, in
connection with a Final Recovery Determination with respect to the related
Serviced Senior/Subordinate Loan Combination, following the reimbursement of the
Trust as contemplated above in this Section 6.12(g). Any arrangement by which
any Reserve Collateral may be held shall constitute an "outside reserve fund"
within the meaning of Treasury regulations section 1.860G-2(h) and such property
(and the right to reimbursement of any amounts with respect thereto) shall be
beneficially owned by the Serviced Subordinate Non-Trust Mortgage Loan
Noteholder that delivered such Reserve Collateral, who shall be taxed on all
income with respect thereto. As compensation for maintaining any Reserve
Collateral, the Special Servicer will be entitled to any interest or other
income earned, and will be responsible for any losses on investments, with
respect to such Reserve Collateral in the same manner as it is entitled to
investment income, and is responsible for losses incurred, with respect to
investments of funds in an REO Account.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default and Outside Servicer Defaults.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into a
Custodial Account, any amount 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 an REO
Account or to deposit into, or to remit to the Master Servicer for deposit
into, a Custodial Account, any amount required to be so deposited or
remitted under this Agreement, which failure continues unremedied for one
(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 any failure by the
Master Servicer to make, on a timely basis, any required payment to any
Serviced Non-Trust Mortgage Loan Noteholder, which failure continues
unremedied until 11:00 a.m. (New York City time) on the Business Day next
following the date on which such payment was first required to be made; 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 a Serviced Non-Trust Mortgage Loan
Noteholder (if affected thereby) or 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
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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 and any affected Serviced
Non-Trust Mortgage Loan Noteholder with an Officer's Certificate
certifying that it has diligently pursued, and is diligently continuing to
pursue, a full cure, or (B) in the case of the failure to deliver to the
Trustee, the Depositor and each affected Serviced Non-Trust Mortgage Loan
Noteholder, 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 or any Serviced Non-Trust Mortgage Loan Noteholder
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 a Serviced Non-Trust Mortgage Loan Noteholder (if
affected thereby) or by the Holders of Certificates entitled to at least
25% of the Voting Rights, provided, however, that with respect to any such
breach which is not curable within such 30-day period, 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 and any affected Serviced
Non-Trust Mortgage Loan Noteholder with an Officer's Certificate
certifying that it has diligently pursued, and is diligently continuing to
pursue, a full cure; or
(vii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have
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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
(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 or one or more classes of Specially Designated Non-Trust
Mortgage Loan Securities 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 or Xxxxx'x 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 by Fitch or Xxxxx'x, as the case may be, 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;
(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, as the case may be, and in
either case that rating is not restored within 60 days after the subject
downgrade or withdrawal; or
(xiii) one or more ratings assigned by any Other Rating Agency to
one or more classes of Specially Designated Non-Trust Mortgage Loan
Securities 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 such Other Rating Agency 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.
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
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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 and the Serviced Non-Trust Mortgage Loans, other than its rights, if any,
as a Certificateholder hereunder or as the holder of any Serviced Non-Trust
Mortgage Loan or any interest therein; provided that the Master Servicer may not
be terminated solely for an Event of Default that affects only a Serviced
Non-Trust Mortgage Loan Noteholder or any class of Specially Designated
Non-Trust Mortgage Loan Securities (except that a Sub-Servicer may be appointed
in accordance with Section 7.01(d)); and provided, further, that, except as
provided in Section 7.01(d), the Special Servicer may not be terminated solely
for an Event of Default that affects only a Serviced Non-Trust Mortgage Loan
Noteholder or any class of Specially Designated Non-Trust Mortgage Loan
Securities. 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, the
Serviced Non-Trust Mortgage Loans (other than as a holder thereof or any
interest therein) or otherwise, shall pass to and be vested in the Trustee
pursuant to and under this section, and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of and at the
expense of the Defaulting Party, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Trust Mortgage Loans, the Serviced Non-Trust Mortgage Loans and related
documents, or otherwise. The Master Servicer and the Special Servicer each agree
that, if it is terminated pursuant to this Section 7.01(b), it shall promptly
(and in any event no later than ten (10) Business Days subsequent to its receipt
of the notice of termination) provide the Trustee with all documents and
records, including those in electronic form, requested thereby to enable the
Trustee to assume the Master Servicer's or Special Servicer's, as the case may
be, functions hereunder, and shall cooperate with the Trustee in effecting the
termination of the Master Servicer's or Special Servicer's, as the case may be,
responsibilities and rights hereunder, including (i) if the Master Servicer is
the Defaulting Party, the 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 a 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 Trust Mortgage Loan, any Serviced Non-Trust Mortgage Loan or, to
the extent it relates to the foregoing, any 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 an REO Account, a Custodial Account, a Servicing Account or a
Reserve Account or should have been delivered to the Master Servicer or that are
thereafter received by or on behalf of it with respect to any Trust Mortgage
Loan, any Serviced Non-Trust Mortgage Loan or, to the extent it relates to the
foregoing, any 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
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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), (xii) or (xiii) 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 Serviced Mortgage
Loans and, to the extent applicable, the Outside Serviced Trust Mortgage Loans
under this Agreement from at least three (3) Persons qualified to act as a
successor Master Servicer hereunder in accordance with Section 6.02 and Section
7.02 (any such Person so qualified, a "Qualified Bidder") or, if three (3)
Qualified Bidders cannot be located, then from as many Persons as the Trustee
can determine are Qualified Bidders; provided that at the Trustee's request, the
terminated Master Servicer shall supply the Trustee with the names of Persons
from whom to solicit such bids; and provided, further, that the Trustee shall
not be responsible if less than three (3) or no Qualified Bidders submit bids
for the right to master service the Serviced Mortgage Loans and, to the extent
applicable, the Outside Serviced Trust 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
Serviced 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 Serviced 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 Trust 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.
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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 Serviced Mortgage Loans and, to the extent
applicable, the Outside Serviced Trust 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.
(d) Notwithstanding Section 7.01(b) and Section 7.04: (1) if any
Event of Default on the part of the Master Servicer occurs that affects a
Serviced Non-Trust Mortgage Loan Noteholder or any class of Specially Designated
Non-Trust Mortgage Loan Securities, and if the Master Servicer is not otherwise
terminated in accordance with Section 7.01(b), then the Master Servicer may not
be terminated by or at the direction of the related Serviced Non-Trust Mortgage
Loan Noteholder; and (2) if any Event of Default on the part of the Master
Servicer occurs that affects solely a Serviced Non-Trust Mortgage Loan
Noteholder or any class of Specially Designated Non-Trust Mortgage Loan
Securities (including, without limitation, an Event of Default under Section
7.01(a)(xiii)), then the Master Servicer may not be terminated by the Trustee;
provided, however, in the case of (1) or (2), at the request of an affected
Serviced Non-Trust Mortgage Loan Noteholder in respect of a Serviced Loan
Combination, subject to the terms of the related Co-Lender Agreement, the
Trustee shall require the Master Servicer to appoint, within 30 days of the
Trustee's request, a Sub-Servicer (or, if the related Serviced Loan Combination
is currently being sub-serviced, to replace, within 30 days of the Trustee's
request, the then-current Sub-Servicer with a new Sub-Servicer) with respect to
the related Serviced Loan Combination. In connection with the appointment of a
Sub-Servicer in accordance with this Section 7.01(d), the Master Servicer shall
obtain, at its own expense, written confirmation from each Rating Agency (and,
if applicable, any appropriate Other Rating Agency) that such appointment will
not result in an Adverse Rating Event with respect to any Class of Certificates
or, if the subject Serviced Loan Combination includes a Specially Designated
Securitized Non-Trust Mortgage Loan (or any successor REO Mortgage Loan with
respect thereto), any related class of Specially Designated Non-Trust Mortgage
Loan Securities rated by such rating agency. The related Sub-Servicing Agreement
shall provide that any Sub-Servicer appointed in accordance with this Section
7.01(d) shall be responsible for all duties, and shall be entitled to all
compensation, of the Master Servicer under this Agreement with respect to the
subject Serviced Loan Combination, except that the Master Servicer shall be
entitled to retain that portion of the Master Servicing Fee for the Trust
Mortgage Loan or REO Trust Mortgage Loan included in the subject Serviced Loan
Combination that accrues at a rate equal to 0.01% per annum. Such Sub-Servicing
Agreement shall also provide that such Sub-Servicer shall agree to become
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the master servicer under a separate servicing agreement (as contemplated by the
related Co-Lender Agreement) in the event that the subject Serviced Loan
Combination is no longer to be serviced and administered hereunder, which
separate servicing agreement shall contain servicing and administration,
limitation of liability, indemnification and servicing compensation provisions
substantially similar to the corresponding provisions of this Agreement, except
for the fact that the subject Serviced Loan Combination and the related
Mortgaged Property shall be the sole assets serviced and administered thereunder
and the sole source of funds thereunder. If any Sub-Servicer appointed in
accordance with this Section 7.01(d) shall at any time resign or be terminated,
then (subject to the related Co-Lender Agreement) the Master Servicer shall be
required to promptly appoint a substitute Sub-Servicer, which appointment shall
not result in an Adverse Rating Event with respect to any Class of Certificates
or, if the subject Serviced Loan Combination includes a Specially Designated
Securitized Non-Trust Mortgage Loan (or any successor REO Mortgage Loan with
respect thereto), any related class of Specially Designated Non-Trust Mortgage
Loan Securities rated by any Rating Agency or, if applicable, any Other Rating
Agency (as evidenced in a writing obtained by the Master Servicer, at its own
expense, from each applicable rating agency). In the event that a successor
Master Servicer is acting hereunder and such successor Master Servicer desires
to terminate the Sub-Servicer appointed under this Section 7.01(d), the
terminated Master Servicer that was responsible for the Event of Default that
led to the appointment of such Sub-Servicer shall be responsible for all costs
incurred in connection with such termination, including the payment of any
termination fee.
Further notwithstanding Section 7.01(b) and Section 7.04, if any
Event of Default on the part of the Special Servicer occurs that affects a
Serviced Non-Trust Mortgage Loan Noteholder in respect of a Serviced Loan
Combination, and the Special Servicer is not otherwise terminated in accordance
with Section 7.01(b), then such Serviced Non-Trust Mortgage Loan Noteholder may
require the Trustee to terminate the duties and obligations of the Special
Servicer with respect to the related Serviced Loan Combination only, but as to
no other Serviced Mortgage Loan; and, in such event, subject to any applicable
consultation rights of any particular related Serviced Non-Trust Mortgage Loan
Noteholder under the related Co-Lender Agreement, the appropriate party shall
appoint in accordance with Section 6.09 (or, in the event of the failure of such
party to so appoint, the Trustee shall appoint in accordance with Section 7.02),
within 30 days of such Serviced Non-Trust Mortgage Loan Noteholder's request, a
replacement special servicer with respect to the subject Serviced Loan
Combination. In connection with the appointment of a replacement special
servicer with respect to the subject Serviced Loan Combination at the request of
a related Serviced Non-Trust Mortgage Loan Noteholder in accordance with this
Section 7.01(d), the Trustee shall obtain written confirmation from each Rating
Agency (and, if applicable, each Other Rating Agency) that such appointment will
not result in an Adverse Rating Event with respect to any Class of Certificates
or, if the subject Serviced Loan Combination includes a Specially Designated
Securitized Non-Trust Mortgage Loan (or any successor REO Mortgage Loan with
respect thereto), any related class of Specially Designated Non-Trust Mortgage
Loan Securities rated by such rating agency (such rating confirmation to be an
expense of the terminated Special Servicer or, if not paid thereby, an expense
of the requesting Serviced Non-Trust Mortgage Loan Noteholder). Any replacement
special servicer appointed at the request of a Serviced Non-Trust Mortgage Loan
Noteholder in accordance with this Section 7.01(d) shall be responsible for all
duties, and shall be entitled to all compensation, of the Special Servicer under
this Agreement with respect to the subject Serviced Loan Combination. Any
replacement special servicer appointed at the request of a Serviced Non-Trust
Mortgage Loan Noteholder in accordance with this Section 7.01(d) hereby agrees
to become, upon request, the special servicer under a separate servicing
agreement (as contemplated by the related Co-Lender Agreement) in the event that
the subject Serviced Loan
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Combination is no longer to be serviced and administered hereunder, which
separate servicing agreement shall contain servicing and administration,
limitation of liability, indemnification and servicing compensation provisions
substantially similar to the corresponding provisions of this Agreement, except
for the fact that the subject Serviced Loan Combination and the related
Mortgaged Property shall be the sole assets serviced and administered thereunder
and the sole source of funds thereunder. If any replacement special servicer
appointed at the request of a Serviced Non-Trust Mortgage Loan Noteholder in
accordance with this Section 7.01(d) shall at any time resign or be terminated,
then (subject to any applicable consultation rights of any particular related
Serviced Non-Trust Mortgage Loan Noteholder under the related Co-Lender
Agreement) the appropriate party in accordance with Section 6.09 (or the Trustee
in accordance with Section 7.02, if such party fails to do so) shall be required
to promptly appoint a substitute replacement special servicer, which appointment
shall not result in an Adverse Rating Event (as evidenced in writing by each
Rating Agency and, if applicable, Other Rating Agency) with respect to any Class
of Certificates or, if the subject Serviced Loan Combination includes a
Specially Designated Securitized Non-Trust Mortgage Loan, with respect to any
related class of Specially Designated Non-Trust Mortgage Loan Securities.
In no event shall any waiver of an Event of Default pursuant to
Section 7.04 affect the rights of any Serviced Non-Trust Mortgage Loan
Noteholder under this Section 7.01(d).
(e) If a Loan Combination Special Servicer is appointed with
respect to a Serviced Loan Combination or any related REO Property in accordance
with Section 7.01(d) or Section 6.09(d), such that there are multiple parties
acting as Special Servicer hereunder, then, unless the context clearly requires
otherwise: (i) when used in the context of imposing duties and obligations on
the Special Servicer hereunder or the performance of such duties and
obligations, the term "Special Servicer" shall mean the related Loan Combination
Special Servicer, insofar as such duties and obligations relate to a Serviced
Loan Combination or any related REO Property as to which a Loan Combination
Special Servicer has been appointed, and shall mean the General Special Servicer
(as defined below), in all other cases (provided that, in Section 3.13, Section
3.14 and Section 3.15, the term "Special Servicer" shall mean each of the Loan
Combination Special Servicer(s) and the General Special Servicer); (ii) when
used in the context of identifying the recipient of any information, funds,
documents, instruments and/or other items, the term "Special Servicer" shall
mean the related Loan Combination Special Servicer, insofar as such information,
funds, documents, instruments and/or other items relate to a Serviced Loan
Combination or any related REO Property as to which a Loan Combination Special
Servicer has been appointed, and shall mean the General Special Servicer, in all
other cases; (iii) when used in the context of granting the Special Servicer the
right to purchase Specially Serviced Trust Mortgage Loans pursuant to Section
3.18, the term "Special Servicer" shall mean the related Loan Combination
Special Servicer, if such Specially Serviced Trust Mortgage Loan is a Serviced
Combination Trust Mortgage Loan as to which a Loan Combination Special Servicer
has been appointed, and shall mean the General Special Servicer, in all other
cases; (iv) when used in the context of granting the Special Servicer the right
to purchase all of the Trust Mortgage Loans and any REO Properties remaining in
the Trust Fund pursuant to Section 9.01, the term "Special Servicer" shall mean
the General Special Servicer only; (v) when used in the context of the Special
Servicer being replaced, pursuant to Section 6.09(a), by the Majority
Controlling Class Certificateholder(s), the term "Special Servicer" shall mean
the General Special Servicer or any Loan Combination Special Servicer, as
applicable, taking into account the limitations of Section 6.09(d) (provided
that no Loan Combination Special Servicer can be succeeded by a Person that
itself had been replaced, pursuant to Section 7.01(d), as the Special Servicer
with respect to the subject Serviced Loan Combination); (vi) when used in the
context of granting the Special Servicer any
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protections, limitations on liability, immunities and/or indemnities hereunder,
the term "Special Servicer" shall mean each of the Loan Combination Special
Servicer(s) and the General Special Servicer; and (vii) when used in the context
of requiring indemnification from, imposing liability on, or exercising any
remedies against, the Special Servicer for any breach of a representation,
warranty or covenant hereunder or for any negligence, bad faith or willful
misconduct in the performance of duties and obligations hereunder or any
negligent disregard of such duties and obligations or otherwise holding the
Special Servicer responsible for any of the foregoing, the term "Special
Servicer" shall mean the related Loan Combination Special Servicer or the
General Special Servicer, as applicable. References in this Section 7.01(e) to
"General Special Servicer" means the Person performing the duties and
obligations of special servicer with respect to the Mortgage Pool (exclusive of
each Serviced Loan Combination and related REO Property as to which a Loan
Combination Special Servicer has been appointed).
(f) If, pursuant to the terms of any Outside Servicing Agreement
under which any Outside Serviced Trust Mortgage Loan or Administered REO
Property is being serviced and/or administered, an Outside Servicer Default has
occurred with respect to an Outside Servicer under such Outside Servicing
Agreement and remains unremedied, then the Trustee may, if materially and
adversely affected in its capacity as holder of such Outside Serviced Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, to
the fullest extent permitted by such Outside Servicing Agreement, either (i)
waive such Outside Servicer Default (but only if directed to do so in accordance
with Section 7.04), or (ii) absent such waiver, direct the appropriate party
under such Outside Servicing Agreement to exercise such remedies thereunder
regarding the termination and replacement of, or the appointment of a new
subservicer to perform the duties of, the Outside Servicer as to which such
Outsider Servicer Default relates. In connection with the foregoing, the Trustee
may (and, at the direction of the Controlling Class Representative or the
Holders of Certificates entitled to at least 25% of the Voting Rights, is
required to) exercise the rights set forth in clause (ii) of the preceding
sentence as the Holder of the subject Outside Serviced Trust Mortgage Loan or
any successor REO Trust Mortgage Loan with respect thereto; and, furthermore, if
and to the extent necessary, the Trustee shall contact and act with the other
applicable Non-Trust Mortgage Loan Noteholders in exercising such rights.
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, Section 7.01(c) or Section 7.01(d), be
the successor in all respects to the Master Servicer or the Special Servicer, as
the case may be, in its capacity as such under this Agreement and the
transactions set forth or provided for herein and shall have all (and the former
Master Servicer or the Special Servicer, as the case may be, shall cease to have
any) of the responsibilities, duties and liabilities of the Master Servicer or
the Special Servicer, as the case may be, arising thereafter, including, if the
Master Servicer is the resigning or terminated party, the Master Servicer's
obligation to make P&I Advances, including in connection with any termination of
the Master Servicer for an Event of Default described in clause 7.01(a)(iii),
the unmade P&I Advances that gave rise to such Event of Default; provided that
any failure to perform such duties or responsibilities caused by the Master
Servicer's or the Special Servicer's, as the case may be, failure to provide
information or monies required by Section 7.01 shall not be considered a default
by the Trustee hereunder. The Trustee shall not be liable for any of the
representations and warranties of the resigning
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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 (subject, in the case of a resigning
or terminated Special Servicer, to any applicable consultation rights of any
particular related Serviced Non-Trust Mortgage Loan Noteholder(s) under the
related Co-Lender Agreement), 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 and, if applicable, Other Rating Agency, such succession will not result
in an Adverse Rating Event with respect to any Class of Certificates or any
class of Specially Designated Non-Trust Mortgage Loan Securities 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 Serviced Mortgage Loans and the
Administered REO Properties as it and such successor shall agree, subject to the
terms of this Agreement and/or the related Co-Lender Agreement limiting the use
of funds received in respect of a Serviced Loan Combination to matters related
to such Loan Combination; provided, however that no such compensation shall be
in excess of that permitted the resigning or terminated party hereunder. Such
successor and the other parties hereto shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession.
SECTION 7.03. Notification to Certificateholders 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 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, to
the Certificateholders at their respective addresses appearing in the
Certificate Register and to each Serviced Non-Trust Mortgage Loan Noteholder.
Not later than ten (10) days (or, in the case of notice to the Depositor, as
soon as reasonably
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practicable) after a Responsible Officer of the Trustee has received notice of
the occurrence of any resignation, termination or replacement of, or appointment
of a successor to, any Outside Servicer pursuant to the related Outside
Servicing Agreement, the Trustee shall give written notice of such event to the
Depositor and the Certificateholders.
(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 or an
Outside Servicer 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 and Outside Servicer
Defaults.
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 or any Outside Servicer Default under an Outside Servicing Agreement
may waive such Event of Default or direct the Trustee, to the extent it is
permitted to do so under the applicable Outside Servicing Agreement, to waive
such Outside Servicer Default, as the case may be; provided, however, that (A)
an Event of Default under any of clauses (i), (ii), (iii), (x),(xi) and (xii) of
Section 7.01(a) or any comparable Outside Servicer Default 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 or an
Outside Servicer Default, such Event of Default or, to the extent it is in fact
waived under the applicable Outside Servicing Agreement, such Event of Default
or such Outside Servicer Default, as the case may be, shall cease to exist and
shall be deemed to have been remedied for every purpose hereunder (except as
otherwise provided in Section 7.01(d)). No such waiver shall extend to any
subsequent or other Event of Default or Outside Servicer Default, as the case
may be, 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 or Outside Servicer 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 or Outside Servicer Default.
During the continuance of any Event of Default or Outside Servicer
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 and on behalf of any Serviced Non-Trust Mortgage
Loan Noteholder, to take all actions now or hereafter existing at law, in equity
or by statute to enforce its rights and remedies and to protect the interests,
and enforce the rights and remedies, of the Certificateholders and the Serviced
Non-Trust Mortgage Loan Noteholders (including the institution and prosecution
of all judicial, administrative and other proceedings and the filings of proofs
of claim and debt in connection therewith). Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every remedy shall be cumulative and
in addition to any other remedy, and no delay or omission to exercise any right
or
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remedy shall impair any such right or remedy or shall be deemed to be a waiver
of any Event of Default or Outside Servicer 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 or
an Outside Servicer Default and after the curing or waiver of all Events of
Default and all Outside Servicer Defaults 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 or an Outside Servicer 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 or an Outside
Servicer Default, and after the curing of all such Events of Default and
all such Outside Servicer Defaults 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
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and the direction of the Controlling Class or Holders of Certificates
entitled to at least 25% of the Voting Rights, relating to the time,
method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Agreement or, as holder of an Outside Serviced Trust Mortgage
Loan (or any successor REO Trust Mortgage Loan with respect thereto),
under an Outside Servicing 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 or an Outside Servicer 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 or an Outside
Servicer Default, and after the curing of all Events of Default and all
Outside Servicer Defaults that may have occurred, and except as may be
provided in Section 10.01 or 10.02, the Trustee shall not be
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bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates entitled to at
least 25% of the Voting Rights; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such expense or
liability as a condition to taking any such action;
(vi) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys; provided, however, that the Trustee shall remain
responsible for all acts and omissions of such agents or attorneys within
the scope of their employment to the same extent as it is responsible for
its own actions and omissions hereunder; and provided, further, that,
unless and until the Trustee has filed a Form 15 with respect to the Trust
in accordance with Section 8.15, 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 Trust Mortgage Loans
to the Trust Fund, or any funds deposited in or withdrawn from a Custodial
Account or any other account by or on behalf of the Depositor, the Master
Servicer or the Special Servicer. 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 Pool Custodial Account and the Collection Account (and, to the extent
that a Serviced Loan Combination or any related REO Property is affected, by the
Trust Fund and/or the related Serviced Non-Trust Mortgage Loan Noteholder(s) out
of the related Loan Combination Custodial 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 (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 2.03(i) hereof or Section 5(i) of a UMLS/Depositor 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), "AA-" from Fitch and "Aa3" from
Xxxxx'x or, if a Fiscal Agent meeting the requirements of Section 8.17(a) is
then currently acting in such capacity, "A-" from S&P, "A-" from Fitch and "A3"
from Xxxxx'x, 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, any Outside Servicer, the Depositor, or
any obligor with respect to Trust 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 and all Serviced
Non-Trust Mortgage Loan Noteholders. Upon receiving such notice
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of resignation, the Depositor shall promptly appoint a successor trustee
acceptable to the Depositor by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee and to the successor
trustee. A copy of such instrument shall be delivered to the Master Servicer,
the Special Servicer, the Certificateholders and the Serviced Non-Trust Mortgage
Loan Noteholders by the Depositor. 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 and the Serviced Non-Trust Mortgage Loan Noteholders 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 and the Serviced Non-Trust Mortgage
Loan Noteholders by the successor trustee so appointed.
(d) In the event that the Trustee is terminated or removed
pursuant to this Section 8.07, all of its and any corresponding Fiscal Agent's
rights and obligations under this Agreement and (as among the parties hereto) in
and to the Trust Mortgage Loans and the Serviced Non-Trust Mortgage
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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 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, the Certificateholders and the Serviced Non-Trust Mortgage
Loan Noteholders.
(d) Any and all costs and expenses associated with transferring
the duties of a Trustee that has resigned or been removed or terminated, as
contemplated by Section 8.07, to a successor Trustee, including those associated
with transfer of the Mortgage Files and other documents and statements held by
the predecessor Trustee to the successor Trustee, as contemplated by Section
8.08(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
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after they are incurred (provided that such predecessor Trustee or such subject
Certificateholders, as applicable, shall remain liable to the Trust for such
costs and expenses).
SECTION 8.09. Merger or Consolidation of Trustee 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.
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(d) Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall cease to exist, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts 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,
any 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. Any
engagement of a third party to act as Custodian with respect to the Mortgage
File or any portion thereof with respect to a Serviced Loan Combination shall be
subject to any relevant provisions of the related Co-Lender Agreement.
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SECTION 8.12. Appointment of Authenticating Agents.
(a) The Trustee may appoint at the Trustee's expense an
Authenticating Agent, which shall be authorized to act on behalf of the Trustee
in authenticating Certificates. The Trustee shall cause any such Authenticating
Agent to execute and deliver to the Trustee an instrument in which such
Authenticating Agent shall agree to act in such capacity, with the obligations
and responsibilities herein. Each Authenticating Agent must be organized and
doing business under the laws of the United States of America or of any State,
authorized under such laws to carry on a trust business, have a combined capital
and surplus of at least $15,000,000, and be subject to supervision or
examination by federal or state authorities. Each Authenticating Agent shall be
subject to the same obligations, standard of care, protection and indemnities as
would be imposed on, or would protect, the Trustee hereunder. The appointment of
an Authenticating Agent shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible 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
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capacity in accordance with the terms hereof. The appointment of a Tax
Administrator shall not relieve the Trustee from any of its obligations
hereunder, and the Trustee shall remain responsible for all acts and omissions
of the Tax Administrator. The Trustee shall cause any such Tax Administrator
appointed by it to execute and deliver to the Trustee an instrument in which
such Tax Administrator shall agree to act in such capacity, with the obligations
and responsibilities herein.
(b) Any Person into which any Tax Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Tax Administrator shall be a
party, or any Person succeeding to the corporate agency business of any Tax
Administrator, shall continue to be the Tax Administrator without the execution
or filing of any paper or any further act on the part of the Trustee or the Tax
Administrator.
(c) Any Tax Administrator appointed in accordance with this
Section 8.13 may at any time resign by giving at least 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, Certificate Owner or Serviced Non-Trust Mortgage Loan
Noteholder, access to any documentation regarding the Trust Mortgage Loans (or,
in the case of a Serviced Non-Trust Mortgage Loan Noteholder, the related
Serviced Non-Trust Mortgage Loan) 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
Serviced Non-Trust Mortgage Loan Noteholders and their respective designees, the
Controlling Class Representative and, subject to the succeeding paragraph, any
Certificateholder, Certificate Owner or Person identified to the Trustee as a
prospective Transferee of a Certificate or an interest therein, originals and/or
copies of the following items: (i) the Prospectus, 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
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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 Trust
Mortgage Loan or Serviced Non-Trust 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 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) or
Section 6.12(a); (xi) any exception report prepared by the Trustee pursuant to
Section 2.02(b); (xii) all notices of a breach of representation and warranty
given by or received by the Trustee with respect to any party hereto; (xiii) any
Officer's Certificate delivered to the Trustee by the Special Servicer in
connection with a Final Recovery Determination pursuant to Section 3.09(h); and
(xiv) any and all reports, statements and other written or electronic
information relating to an Outside Serviced Trust Mortgage Loan, the related
Mortgaged Property and/or the borrower under such Outside Serviced Trust
Mortgage Loan, to the extent such items were received by the Master Servicer
from a related Outside Servicer or other applicable party under the related
Outside Servicing Agreement and delivered to the Trustee since the Closing Date.
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
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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).
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;
(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
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material respects with the requirements of the Exchange Act, the rules and
regulations promulgated thereunder and applicable "no-action letters"
issued by the Commission, which shall include as exhibits each Annual
Statement of Compliance, Annual Assessment Report and Annual Attestation
Report delivered pursuant to or as contemplated by Section 3.13 and/or
Section 3.14, with respect to 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);
(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) file a Form 12b-25 (17 C.F.R. 249.322) in
connection therewith consistent with Rule 12b-25 of the Exchange Act, each party
hereto shall reasonably cooperate with the Trustee and the Depositor to complete
the subject Exchange Act Report and such Exchange Act Report (or the applicable
portions thereof) shall be filed with the Commission as soon as reasonably
practicable and, if the Depositor is relying upon Rule 12b-25 of the Exchange
Act, within the time frames contemplated thereby; and provided, further, that if
all or any required portion of any Exchange Act Report cannot be timely filed by
the Trustee for the sole reason that the Trustee is unable to file the report in
electronic format, then (i) the Trustee (upon becoming aware thereof or the
reasonable likelihood thereof) shall immediately notify the Depositor and, as
determined by the Depositor, the Depositor and the Trustee shall comply with
either Rule 201 or 202 of Regulation S-T or apply for an adjustment of filing
date pursuant to Rule 13b of Regulation S-T. Each of the other parties to this
Agreement shall deliver to the Trustee in the format required (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), other than the financial statements or other financial
information of a Significant Obligor.
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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 is filed with the Commission with respect to the Trust. The Trustee shall
post each such report on its internet website as soon as reasonably practicable
after the filing thereof with the Commission. In addition, the Trustee shall,
free of charge, upon request, deliver to any Certificateholder, Certificate
Owner or party identified as a prospective Certificateholder or Certificate
Owner copies of all Subsequent Exchange Act Reports that are filed with the
Commission with respect to the Trust. Any request contemplated by the prior
sentence shall be made to LaSalle Bank, N.A., 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxxx (telephone number:
(000) 000-0000), or to such other Person, address and/or phone number as the
Trustee may specify by notice to Certificateholders.
(b) 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 U) 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
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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 15 in any year in which the Trustee will file a Form
10-K for the Trust with respect to any Exchange Act Reportable Event to be
disclosed on Form 10-K, 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. To the extent that the Master Servicer or Special Servicer has actual
knowledge thereof or is acting as the subject Outside Servicer, such servicer
shall provide notice to the Trustee and the Depositor of any event that (if the
Master Servicer has the subject actual knowledge or is acting as the subject
Outside Servicer) would constitute a Master Servicer Reportable Event in respect
of an Outside Master Servicer or any Outside Serviced Trust Mortgage Loan for
which such Outside Master Servicer is responsible or any event that (if the
Special Servicer has the subject actual knowledge or is acting as the subject
Outside Servicer) would constitute a Special Servicer Reportable Event in
respect of an Outside Special Servicer or any Outside Serviced Trust Mortgage
Loan or Outside Administered REO Property for which such Outside Special
Servicer is responsible; and, notwithstanding anything to the contrary contained
herein, except as may be required under Section 8.15(p) or this sentence, this
paragraph shall not otherwise relate to Outside Servicers, Outside Trust
Mortgage Loans and/or Outside Administered REO Properties.
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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 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.
Upon notice that any Serviced Non-Trust Mortgage Loan has been
included in a Non-Trust Mortgage Loan Securitization Trust, then the Form 8-K
Required Information, Form 10-D Required Information and Form 10-K Required
Information required to be reported to the Depositor under this Section 8.15(b)
shall simultaneously be reported to the depositor and trustee in respect of such
Non-Trust Mortgage Loan Securitization Trust to the extent required for such
depositor and/or trustee to satisfy any Exchange Act reporting requirements in
respect of such Non-Trust Mortgage Loan Securitization Trust. Furthermore, if
any Non-Trust Mortgage Loan Securitization Trust containing a Serviced Non-Trust
Mortgage Loan is subject to Exchange Act reporting requirements for any fiscal
year of such trust that does not constitute an Exchange Act Reporting Year in
respect of the Trust, and if the Master Servicer, the Special Servicer and the
Trustee are so notified thereof, then each of the Master Servicer, the Special
Servicer and the Trustee shall report to the depositor and the trustee in
respect of such Non-Trust Mortgage Loan Securitization all Form 8-K Required
Information, Form 10-D Required Information and Form 10-K Required Information
that it would have, and at the same time that it would have, so reported thereto
in accordance with this Section 8.15(b) if it had been an Exchange Act Reporting
Year for the Trust, and shall provide such certifications as are reasonably
requested by the depositor and the trustee; provided, that if and to the extent
any reports and/or certifications required to be provided by the Master
Servicer, the Special Servicer and/or the Trustee pursuant to this sentence
materially increase the obligations of such party from those set forth under
this Agreement (without
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regard to this sentence), then such party shall be reimbursed by the depositor
for the reasonable costs of delivering such report and/or providing such
certification.
(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, 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 reporting requirements under the Exchange Act and shall post such
Form 15 to its internet website.
If at the beginning of any fiscal year for the Trust after the
filing of a Form 15, the number of holders of record of the Registered
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 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,
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
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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 and the Special Servicer. Promptly
upon receipt of any such report and the accompanying exhibits, each of the
Depositor and the Special Servicer shall (and, if and to the extent applicable,
shall cause any Servicing Representative acting on its behalf hereunder to)
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 and the
Special Servicer) prior to the filing of such report and the accompanying
exhibits.
(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 Trust Mortgage
Loans and REO Properties (including any Outside Serviced Trust Mortgage
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Loans and any Outside Administered REO Properties, to the extent required in
accordance with Exhibit Q). In addition, within the time periods set forth in
the related Co-Lender Agreement (or, if no such time periods are set forth
therein, by March 20 of any calendar year in which any Annual Report on Form
10-K is to be filed with respect to the related securitization trust), the
Master Servicer shall execute and deliver to the depositor, trustee and/or other
certifying party and certifying officer executing a Xxxxxxxx-Xxxxx Certification
in connection with any public securitization of any Serviced Non-Trust Mortgage
Loan that either is a Pari Passu Non-Trust Mortgage Loan or has, as of the
Closing Date, an unpaid principal balance in excess of $20,000,000, a master
servicer backup certification covering such Serviced Non-Trust Mortgage Loan
(and that may be relied on by each such party to which it is delivered), which
master servicer backup certification will be substantially similar to the Master
Servicer Backup Certification and will cover only the subject Non-Trust Mortgage
Loan. 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 Trust Mortgage Loans and Administered REO Properties
(together with any Outside Serviced Trust Mortgage Loan that is then specially
serviced under the related Outside Servicing Agreement or any Outside
Administered REO Property, if the Special Servicer is, is an Affiliate of, or
receives a comparable certification relating thereto from, the related Outside
Special Servicer). In addition, within the time periods set forth in the related
Co-Lender Agreement (or, if no such time periods are set forth therein, by March
20 of any calendar year in which any Annual Report on Form 10-K is to be filed
with respect to the related securitization trust), the Special Servicer shall
execute and deliver to the depositor, trustee and/or other certifying party and
certifying officer executing a Xxxxxxxx-Xxxxx Certification in connection with
any public securitization of any Serviced Non-Trust Mortgage Loan that is either
a Pari Passu Non-Trust Mortgage Loan or has, as of the Closing Date an unpaid
principal balance in excess of $20,000,000, a special servicer backup
certification covering such Serviced Non-Trust Mortgage Loan (and that may be
relied on by each such party to which it is delivered), which special servicer
backup certification will be substantially similar to the Special Servicer
Backup Certification and will cover only the subject Non-Trust Mortgage Loan.
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
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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.
(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. 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 1 of the first year in which the Trustee has
filed a Form 15 with the Commission in accordance with this section, if at any
time a Servicing Representative retained or engaged by 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 1 of the
first year in which the Trustee has filed a Form 15 with the Commission in
accordance with this section, if at any time the Depositor delivers a written
notice to 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.
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(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, the Depositor and each affected Serviced
Non-Trust Mortgage Loan Noteholder (which shall relate to a Specially Designated
Securitized Non-Trust Mortgage Loan), 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 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 or any Serviced Non-Trust Mortgage Loan Noteholder; 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.
(p) If any party hereunder is also acting as an Outside Servicer or an Outside
Trustee with respect to an Outside Serviced Trust Mortgage Loan or Outside
Administered REO Property, or is otherwise a party to an Outside Servicing
Agreement that would constitute a Servicer, during any portion of an Exchange
Act Reporting Year in respect of the Trust, then: (i) such party hereunder is
(in such other capacity) hereby notified, and acknowledges, that the Subject
Securitization Transaction is subject to Regulation AB and the Trust is subject
to Exchange Act reporting; and (ii) such party hereunder is shall, in its
capacity as such Outside Servicer, Outside Trustee or other party to an Outside
Servicing Agreement, comply with the provisions of Sections 8.15(b), 8.15(h),
8.15(i), 8.15(j) and Section 8.15(m) applicable to the Master Servicer (if the
subject party is also acting as an Outside Master Servicer), the Special
Servicer (if the subject party is also acting as an Outside Special Servicer) or
the Trustee (if the subject party is also acting as an Outside Trustee or is
acting as a custodian or certificate administrator or another Servicer under the
Outside Servicing Agreement), as applicable, but reflecting that such Outside
Serviced Trust Mortgage Loan or such Outside Administered REO Property is being
serviced and administered under the related Outside Servicing Agreement. The
Trustee shall provide a notice in the form of Exhibit S to each other Outside
Servicer, other Outside Special Servicer, other Outside Trustee and other party
to an Outside Servicing Agreement that would constitute a Servicer that the
Subject Securitization Transaction is subject to Regulation AB and the Trust is
subject to Exchange Act reporting.
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(q) The Master Servicer, if it receives from the Mortgagor the
subject financial statements, shall forward electronically, within one (1)
Business Day of receipt thereof, to all of the respective email addresses for
the parties set forth on the Schedule of Significant Obligor Financial Statement
Recipients attached as Schedule XII hereto, any updated financial statements
with respect to any Significant Obligor covering any period during or preceding
any Exchange Act Reporting Year.
(r) The Master Servicer, with respect to Performing Serviced
Mortgage Loans, shall forward electronically, within seven (7) Business Days of
receipt of financial statements with respect to any Significant Obligor covering
any period during or preceding any Exchange Act Reporting Year, an updated CMSA
NOI Adjustment Worksheet and CMSA Operating Statement Analysis Report with
respect to the related Mortgaged Properties, covering each period covered by
such financial statements that is required to be reported on the related Form
10-D or Form 10-K, as the case may be, following the period for which financial
information required under Regulation AB was previously reported and filed with
Commission for the subject Significant Obligor, and taking into account the
information in such updated financial statements; provided, that such CMSA NOI
Adjustment Worksheet and CMSA Operating Statement Analysis Report shall together
set forth, without limitation and in addition to any other information required
to be provided thereunder, the updated "net operating income" figure as
calculated in accordance with the Servicing Standard and CMSA standards;
provided, that notwithstanding anything to the contrary in Section 8.15(q) or
(r), the Master Servicer shall not be required to deliver any of the items set
forth in Section 8.15(q) or (r) subsequent to the filing of the final Form 10-K
with respect to the Trust. In connection with any financial information
regarding a Significant Obligor required to be delivered to the Trustee in
accordance with Section 8.15(r) and (q), the Depositor shall provide any
information regarding such Significant Obligor that is, under Regulation S-K of
the Securities Act, to be included by the Trustee in the related Form 10-D or
Form 10-K, as applicable. In no event shall the Trustee be required to attach to
such Form 10-D or Form 10-K any related CMSA NOI Adjustment Worksheet or CMSA
Operating Statement Analysis Report.
(s) Notwithstanding anything to the contrary contained herein, if
any party is required to deliver any report, statement, certification or other
document or information to a Serviced Non-Trust Mortgage Loan Noteholder,
pursuant to Section 3.13, 3.14 and/or 8.15, and if the related Non-Trust
Mortgage Loan has been securitized, then such party shall instead deliver such
report, statement, certification or other document or information to the trustee
and depositor for such securitization; provided that such party shall have
received reasonable prior written notice of the identity of such trustee and
depositor.
SECTION 8.16. Representations and Warranties of Trustee.
(a) The Trustee hereby represents and warrants to the Master
Servicer, the Special Servicer and the Depositor and for the benefit of the
Certificateholders and the Serviced Non-Trust Mortgage Loan Noteholders, as of
the Closing Date, that:
(i) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
of America.
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material
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agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) Except to the extent that the laws of certain jurisdictions
in which any part of the Trust Fund may be located require that a
co-trustee or separate trustee be appointed to act with respect to such
property as contemplated by Section 8.10, the Trustee has the full power
and authority to enter into and consummate all transactions contemplated
by this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement, including, but not limited to, its responsibility
to make P&I Advances if the Master Servicer fails to make a P&I Advance,
will not constitute a violation of, any law, any order or decree of any
court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the
Trustee's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Trustee to perform its
obligations under this Agreement or the financial condition of the
Trustee.
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to
the Trustee, would prohibit the Trustee from entering into this Agreement
or, in the Trustee's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Trustee to
perform its obligations under this Agreement or the financial condition of
the Trustee.
(vii) Any consent, approval, authorization or order of any court
or governmental agency or body required for the execution, delivery and
performance by the Trustee of or compliance by the Trustee with this
Agreement, or the consummation of the transactions contemplated by this
Agreement, has been obtained and is effective, except where the lack of
consent, approval, authorization or order would not have a material
adverse effect on the performance by the Trustee under this Agreement.
(viii)The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
(ix) The Trustee is, with respect to each Combination Trust
Mortgage Loan, an entity permitted under the related Co-Lender Agreement
to be a transferee and holder of such Trust Mortgage Loan.
(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
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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), "AA-" from
Fitch and "Aa3" from Xxxxx'x (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).
(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
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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,
the Certificateholders and the Serviced Non-Trust Mortgage Loan Noteholders 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 and the
Serviced Non-Trust Mortgage Loan Noteholders, 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 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.
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(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 Trust Mortgage Loans.
(a) 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 Trust 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 Trust 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 Trust Mortgage Loans and each REO Property remaining in
the Trust Fund in the manner set forth below in this Section 9.01 and (C) the
final payment or other liquidation (or any advance with respect thereto) of the
last Trust Mortgage Loan or REO Property 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-2FL, Class A-3, Class A-AB, Class
A-4, Class A-1A, Class A-M, Class A-MFL, 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 Trust Mortgage Loans and each REO Property remaining in the Trust
Fund as contemplated by clause (i)(B) of the first paragraph of this Section
9.01(a), by giving written notice to all the parties hereto and the Non-Trust
Mortgage Loan Noteholders no later than 60 days prior to the anticipated date of
exchange; provided that no such exchange may occur if any of the remaining REO
Properties relates to a Serviced Loan Combination. In the event that 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 Trust Mortgage Loans and, subject to the proviso to
the preceding sentence, each REO Property remaining in the Trust Fund, the
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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 and owing to the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent pursuant to Section 3.05(a) or Section 3.05A, as applicable, 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 such Custodial
Account and (ii) pay to the Trustee an amount, in immediately available funds,
equal to $5,000.00. In addition, on the Trust 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 Trust Master Servicer Remittance Date from the Pool Custodial
Account pursuant to the first paragraph of Section 3.04(b), together with any
other amounts on deposit in the Pool 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 Trust 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 Trust
Mortgage Loans and REO Properties remaining in the Trust Fund; provided that, if
any Trust Mortgage Loan exchanged pursuant to this Section 9.01 is part of a
Loan Combination, then the release, endorsement or assignment of the documents
constituting the related Mortgage File and Servicing File shall be in the manner
contemplated by Section 3.25. Any transfer of Trust Mortgage Loans pursuant to
this paragraph, except in the case of the Outside Serviced Trust Mortgage Loans,
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 Trust 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 Trust 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 Trust 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 Pool Custodial
Account an amount in immediately available funds equal to the above-described
purchase price (provided, however, that if any REO Property relating to a
Serviced Loan Combination is being purchased pursuant to the foregoing, the
portion of the above-described purchase price allocable to such REO Property
shall initially be deposited into the related Loan
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Combination Custodial Account); 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 Trust 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 Trust Master Servicer
Remittance Date from the Pool Custodial Account pursuant to the first paragraph
of Section 3.04(b), together with any other amounts on deposit in the Pool
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 Files for the remaining Trust 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 Trust 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; provided that, if any Trust Mortgage
Loan purchased pursuant to this Section 9.01 is a Serviced Combination Trust
Mortgage Loan, then the release, endorsement or assignment of the documents
constituting the related Mortgage File and Servicing File shall be in the manner
contemplated by Section 3.25. Any transfer of Trust Mortgage Loans pursuant to
this paragraph, except in the case of the Outside Serviced Trust Mortgage Loans,
shall be on a servicing-released basis.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders and the Non-Trust Mortgage Loan Noteholders 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 Trust 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, the Floating Rate Accounts 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
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pursuant to this Section 9.01 shall not have been surrendered for cancellation
within six months after the time specified in such notice, the Trustee shall
mail a second notice to the remaining non-tendering Certificateholders to
surrender their Certificates for cancellation in order to receive the final
distribution with respect thereto. If within one year after the second notice
all such Certificates shall not have been surrendered for cancellation, the
Trustee, directly or through an agent, shall take such reasonable steps to
contact the remaining non-tendering Certificateholders concerning the surrender
of their Certificates as it shall deem appropriate. 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 Trust 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 Trust 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 Trust
Mortgage Loan and liquidation of any related Loan REMIC if the defeasance
proceeds are less than the Purchase Price of such Early Defeasance Trust
Mortgage Loan, the Mortgagor notifies the Master Servicer of its intent to
defease the Early Defeasance
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Trust 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 Trust Mortgage Loan, under the circumstances described in
Sections 2.03(j) and 2.03(k).
(b) In the event the Trust Fund is to be terminated while any Swap
Agreement is still in effect, the Trustee shall promptly notify the applicable
Swap Counterparty in writing of the date on which the Trust Fund is to be
terminated and that the notional amount of such Swap Agreement will be reduced
to zero on such date. Based on the date of termination, the Trustee, prior to
any final distributions to the Holders of the respective Classes of Floating
Rate Certificates pursuant to Section 4.01, shall remit payments to the
applicable Swap Counterparty in accordance with Section 3.29 of this Agreement.
(c) By their acceptance of Certificates, the Holders thereof
hereby agree to authorize the Tax Administrator to specify the 90-day
liquidation period for each REMIC Pool, which authorization shall be binding
upon all successor Certificateholders.
SECTION 9.03. Outside Administered REO Properties.
References to "REO Property" and "REO Properties" in Sections 9.01
and 9.02 shall be deemed to include the Trust's rights with respect to any
Outside Administered REO Property included in the Trust Fund, and such rights
shall be taken into account in calculating the purchase price payable under
Section 9.01 for the purchase of assets out of the Trust Fund.
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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/Group FL REMIC III Regular Interests (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, each Class of Regular Interest Certificates (or, in the case
of the Class X Certificates, each Class X REMIC III Component), and each Group
FL REMIC III Regular Interest 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
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that involve the IRS or state tax authorities which extraordinary expenses shall
be payable or reimbursable to the Tax Administrator from the Trust Fund
(exclusive of 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
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any action or fail to take any action (whether or not authorized hereunder) as
to which the Tax Administrator has advised it in writing that the Tax
Administrator has received or obtained an Opinion of Counsel to the effect that
an Adverse REMIC Event or an Adverse Grantor Trust Event could result from such
action or failure to act. In addition, prior to taking any action with respect
to 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 Trust 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 portion thereof constituting 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
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any Certificates are outstanding; or (ii) the imposition of any tax on such
REMIC Pool under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(m) None of the Trustee, the Master Servicer and the Special
Servicer shall consent to or, to the extent it is within the control of such
Person, permit: (i) the sale or disposition of any of the Trust Mortgage Loans
(except in connection with (A) the default or reasonably foreseeable material
default of a Trust Mortgage Loan, including, but not limited to, the sale or
other disposition of a Mortgaged Property acquired by deed in lieu of
foreclosure, (B) the bankruptcy of any REMIC Pool, (C) the termination of any
REMIC Pool pursuant to Article IX of this Agreement, or (D) a purchase of Trust
Mortgage Loans pursuant to or as contemplated by Article II or III of this
Agreement); (ii) the sale or disposition of any investments in the Collection
Account, the Interest Reserve Account, the Excess Liquidation Proceeds Account,
any Custodial Account or any 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
Trust Mortgage Loan and other than Permitted Investments acquired in accordance
with Section 3.06 in connection with the investment of funds in a Custodial
Account or an REO Account); in any event unless it has received an Opinion of
Counsel (at the expense of the party seeking to cause such sale, disposition, or
acquisition but in no event at the expense of the Trust Fund 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 each Grantor Trust, for tax
return preparation purposes, as a separate 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. The Class A-2FL
Certificates, the Class A-MFL Certificates and, subject to Section 2.05(b), the
Class V Certificates are hereby designated as representing an undivided interest
in Grantor Trust A-2FL, Grantor Trust A-MFL and Grantor Trust V, respectively.
(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 Trusts (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 each Grantor Trust. The expenses of preparing and
filing such returns shall be borne by the Tax Administrator without any right of
reimbursement therefor.
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(d) Each 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 Tax
Administrator shall assume that the Depository is the only "middleman" (as such
term is defined in the WHFIT Regulations) with respect to the Floating Rate
Certificates unless a beneficial owner thereof or the Depositor provides the
Trust Administrator with the identities of other "middlemen" with respect to the
Floating Rate Certificates. 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 Regulations. The Tax
Administrator shall be entitled to rely on the first sentence of this paragraph
and shall be entitled to indemnification in accordance with the terms of this
Agreement in the event that the IRS makes a determination that the first
sentence of this paragraph is incorrect.
(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 A-2FL, Class A-MFL or Class V Certificate uses the cash or accrual method.
The Tax Administrator will make available (via its website) WHFIT information to
the Holders of the Class A-2FL, Class A-MFL and 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 A-2FL, Class A-MFL
or 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 A-2FL, Class A-MFL or 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 A-2FL, Class A-MFL and 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 each 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.
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(i) The Tax Administrator shall perform its duties hereunder so as
to maintain the status of each 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 any 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 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 any Grantor Trust, or
causing any Grantor Trust to take any action, that is not expressly permitted
under the terms of this Agreement, the Master Servicer and the Special Servicer
shall consult with the Tax Administrator or its designee, in writing, with
respect to whether such action could cause an Adverse 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 any 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 Assets 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 or any of the Non-Trust Mortgage Loan Noteholders, (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 any of the Grantor Trusts 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 Grantor Trust, (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
or Serviced Non-Trust Mortgage Loan Noteholder, 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 Serviced Non-Trust Mortgage Loan Noteholder, as the case may be, 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, or
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that are required to be distributed to any Serviced Non-Trust Mortgage Loan
Noteholder, without the consent of such Serviced Non-Trust Mortgage Loan
Noteholder, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates or the interests of any Serviced Non-Trust
Mortgage Loan Noteholder in a manner other than as described in the immediately
preceding clause (i), without the consent of the Holders of all Certificates of
such Class or the consent of such Serviced Non-Trust Mortgage Loan Noteholder,
as the case may be, (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, any Mortgage Loan Seller
or any Affiliates and/or agents of the Depositor or any Mortgage Loan Seller),
(iv) modify the provisions of this Section 11.01, without the consent of the
Holders of all Certificates then outstanding and the consent of all of the
Serviced Non-Trust Mortgage Loan Noteholders, (v) modify the Servicing Standard
without the consent of the Holders of all Regular Interest Certificates and
Floating Rate 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 any Grantor Trust to fail
to qualify as a grantor trust within the meaning of the Grantor Trust Provisions
at any time that any Certificates are outstanding and (ii) such amendment
complies in all material respects with the provisions of this Section 11.01.
(d) Promptly after the execution of any such amendment, the
Trustee shall send a copy thereof to each Certificateholder and each Serviced
Non-Trust Mortgage Loan Noteholder.
(e) It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) Each 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.
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(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 Pool 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).
(h) Notwithstanding anything to the contrary contained in this
Section 11.01, the parties hereto agree that (i) this Agreement may not be
amended except upon 10 days' prior written notice to the Swap Counterparties and
(ii) this Agreement may not be amended in any manner that has a material adverse
effect on any Swap Counterparty without first obtaining the written consent of
such Swap Counterparty, such consent not to be unreasonably withheld,
conditioned or delayed, where such consent is required herein. The Trustee may
obtain and rely upon an Opinion of Counsel provided to it at the expense of the
party seeking the amendment to the effect that such action will not adversely
affect in any material respect the interests of any Swap Counterparty (or at the
expense of the Trust if the Trustee is the party seeking such amendment and such
amendment benefits the Certificateholders).
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 or, to the
extent that it benefits them, the Serviced Non-Trust Mortgage Loan Noteholders,
but only upon direction accompanied by an Opinion of Counsel (the cost of which
may be paid out of the Pool Custodial Account pursuant to Section 3.05(a) or, to
the extent that it benefits the Serviced Non-Trust Mortgage Loan Noteholders,
out of the Loan Combination Custodial Accounts pursuant to Section 3.05A), to
the effect that such recordation materially and beneficially affects the
interests of the Certificateholders and/or the Serviced Non-Trust Mortgage Loan
Noteholders; 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
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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 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".
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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--LB-UBS Commercial Mortgage Trust 2007-C6,
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: LB-UBS Commercial Mortgage Trust 2007-C6,
facsimile number: (000) 000-0000; (iii) in the case of the Special Servicer,
Midland Loan Services, Inc., 00000 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx
00000 (for deliveries) and X.X. Xxx 00000, Xxxxxxx Xxxxxxx, Xxxxxx 00000 (for
communications by United States mail), Attention: President, facsimile number:
(000) 000-0000, with a copy to Dechert LLP, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxxxx X. Xxxx, facsimile number: (000) 000-0000; (iv)
in the case of the Trustee, LaSalle Bank National Association, 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and
Trust Services--LB-UBS Commercial Mortgage Trust 2007-C6, 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--LB-UBS
Commercial Mortgage Trust 2007-C6, facsimile number: (000) 000-0000, (B) UBS
Securities LLC, 1285 Avenue of the Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: [_______________], facsimile number: [(212) 882-____]; and (C) Banc
of America Securities LLC, NC1-027-22-03, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Telephone No. (000) 000-0000, with a copy to Xxxx X.
Xxxxxxx, Esq., Bank of America Corporation, 000 Xxxxx Xxxxx Xxxxxx, 30th Floor,
NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Telephone No. (000) 000-0000;
(vi) in the case of the Rating Agencies, (A) Xxxxx'x Investor Services, Inc., 0
Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxx, Senior
Vice President, CMBS Surveillance Group, facsimile number: (000) 000-0000, (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 number: (000) 000-0000 and (C) Fitch, Inc.,
Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage
Surveillance, facsimile number: (000) 000-0000; and (vii) in the case of the
initial Controlling Class Representative, Five Mile Capital II CMBS Pooling
International LLC, Three Xxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxxx and Xxxxxx Xxxxxxx, facsimile number: (203)
905-9050; 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.
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SECTION 11.07. Grant of a Security Interest.
The Depositor and the Trustee agree that it is their intent that the
conveyance of the Depositor's right, title and interest in and to the Trust
Mortgage Loans pursuant to this Agreement shall constitute a sale and not a
pledge of security for a loan. If such conveyance is deemed to be a pledge of
security for a loan, however, the Depositor 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 Trust Mortgage Loans, (B) the UMLS/Depositor Mortgage Loan Purchase
Agreement(s), (C) the respective Co-Lender Agreements, (D) 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 Trust 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 (other than those
allocable to the Serviced Non-Trust Mortgage Loans and/or any successor REO
Mortgage Loans with respect thereto) held from time to time in the Custodial
Accounts, the Collection Account, the Interest Reserve Account, the Excess
Liquidation Proceeds Account and, if established, the REO Account(s), 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 Trust Mortgage Loans, and (E) 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.
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.
-379-
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 Non-Trust Mortgage Loan Noteholders and any designees
thereof acting on behalf of or exercising the rights of the Non-Trust Mortgage
Loan Noteholders and any depositors of securitizations including Serviced
Non-Trust Mortgage Loans shall be third-party beneficiaries to this Agreement
with respect to their rights as specifically provided for herein. The Outside
Master Servicer and Outside Special Servicer in respect of each Outside Serviced
Trust Mortgage Loan, and the depositor and trustee for any Non-Trust Mortgage
Loan Securitization Trust, shall each be a third-party beneficiary to this
Agreement with respect to its rights as specifically provided for herein and
under the related Co-Lender Agreement. Each Unaffiliated 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), LBHI
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.
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 or Outside Servicer
Default that has not been cured;
-380-
(iii) the resignation or termination of a Fiscal Agent, the Master
Servicer or the Special Servicer;
(iv) the repurchase of Trust Mortgage Loans by the Depositor or an
Unaffiliated 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 Trust 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 any Custodial Account;
(iii) any assumption of, or release of a Mortgagor under, a Trust
Mortgage Loan that is, or a concentration of Trust Mortgage Loans (by the
related sponsor) that is, one of the ten (10) largest Trust 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 Trust Mortgage Loan that is, or a
concentration of Trust Mortgage Loans (by the related sponsor) that is,
one of the ten (10) largest Trust 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
(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.
-381-
(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 Pool Custodial Account allocable to interest on the
Trust 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 Pool Custodial
Account allocable to interest on the Trust 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.
-382-
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/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
MIDLAND LOAN SERVICES, INC.
Special Servicer
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION
Trustee
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Assistant Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 27th day of August 2007, before me, a notary public in and
for said State, personally appeared Xxxxx Xxxx, known to me to be a Senior Vice
President of STRUCTURED ASSET SECURITIES CORPORATION II, one of the entities
that executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxx Xxxxxxx
------------------------
Notary Public
[Notarial Seal]
My commission expires: March 4, 0000
XXXXX XX XXXXX XXXXXXXX )
) ss.:
COUNTY OF MECKLENBURG )
On the 24th day of August 2007 before me, a notary public in and for
said State, personally appeared Xxxxxxx X. Xxxxxxxx, known to me to be a Vice
President of WACHOVIA BANK, NATIONAL ASSOCIATION, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxx X. Xxxxxx
------------------------
Notary Public
[Notarial Seal]
My commission expires: September 28, 0000
XXXXX XX XXXXXX )
) ss.:
COUNTY OF XXXXXXX )
On the 28th day of August 2007, before me, a notary public in and
for said State, personally appeared Xxxxxxxx X. Xxxxxx, known to me to be a
Senior Vice President of MIDLAND LOAN SERVICES, INC., one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxx
-----------------------
Notary Public
[Notarial Seal]
My commission expires: January 30, 0000
XXXXX XX XXXXXXXX )
) ss.:
COUNTY OF XXXX )
On the 27th day of August 2007, before me, a notary public in and
for said State, personally appeared Xxxxxxx Xxxxxxxxx, known to me to be a
Assistant Vice President of LASALLE BANK NATIONAL ASSOCIATION, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxxxx
-----------------------
Notary Public
[Notarial Seal]
My commission expires: August 23, 2009
SCHEDULE I
TRUST MORTGAGE LOAN SCHEDULE
MORTGAGE LOAN NUMBER PROPERTY NAME ADDRESS
----------------------------------------------------------------------------------------------------------------------------------
1 Innkeepers Portfolio Various
2 PECO PORTFOLIO VARIOUS
2A PECO Portfolio - Xxxxxxxxx Plaza 0000 Xxxxxxxxx Xxxx
2B PECO Portfolio - Xxxxxxxx Xxxxxx Mall 4058 Route 42 North
2C PECO Portfolio - Tops Plaza - Xxxxxxxx Xxxxxxx 0000 Xxxxx 000
0X PECO Portfolio - Tops Plaza - Depew 0000 Xxxxxxxx
2E PECO Portfolio - Tops Plaza - Erie 0000 X. 00xx Xxxxxx
2F PECO Portfolio - Shoppes at Citiside 4430 Xxx Xxxxx
0X XXXX Xxxxxxxxx - Xxxxxxx Xxxxx 6825 Burlington Pike
2H PECO Portfolio - Eastwood Shopping Center 246 Versailles Road
2I PECO Portfolio - University Plaza - Amherst 0000 Xxxx Xxxxxx
0X XXXX Xxxxxxxxx - Xxxxxxxxxx Xxxxxxx 0000 Xxxxxxx Xxxxxxxxx
2K PECO Portfolio - Lake Olympia Square 1489 East Silver Star Road
2L PECO Portfolio - Cedar Springs Crossing 2199 Xxxxxxxxx Xxxx
0X XXXX Xxxxxxxxx - Xxxxxx Xxxxx 429 Highway 00 Xxxx
0X XXXX Xxxxxxxxx - X&X Xxxxx 0000 - 0000 Xxxxxxx Xxxxxx
0X XXXX Xxxxxxxxx - Xxxxxxxx Promenade 0000-0000 Xxxx Xxxxxxxx Xxxxxx
0X PECO Portfolio - Xxxxx Springs Plaza 305 Xxxxx Springs Plaza Road
2Q PECO Portfolio - Redbud Commons 2609 S. New Hope Road
2R PECO Portfolio - Bi-Lo Center - Asheville 000 Xxxxxx Xxxx Xxxxxxx
0X XXXX Xxxxxxxxx - Xxxxxxxxx Xxxxxxx 0000 Xxxxxxx 000 Xxxxx
0X XXXX Xxxxxxxxx - Xxx Xxxxx 000 Xxx Xxxxx Xxxxxxx
0X XXXX Xxxxxxxxx - Xxxxxxxxxxx Marketplace 13180 Xxxx Xxxxxxxx Xxxxx
0X XXXX Xxxxxxxxx - Xxxxxxxxxx Xxxxx 0000 X Xxxxxxxxxx Xxxxxxxxx
0X PECO Portfolio - Crestview Corners 0000 X. Xxxxxx Xxxxxxxxx
0X XXXX Xxxxxxxxx - Xxxxxxx Plaza 207 - 000 Xxxxx Xxxxxx Xxxxxx
0X XXXX Xxxxxxxxx - Xxxxxxxx Plaza 615 - 000 Xxxxx Xxxx 000
0X XXXX Xxxxxxxxx - Xxxxxxxxx Plaza 708-744 Xxxxx Avenue
2AA PECO Portfolio - Xxxxxxxxxx Plaza 000 Xx. Xxxxxxx Xxxx
0XX XXXX Xxxxxxxxx - Xxxxx Xxxxx Bi-Lo Center 0000 Xxxx Xxxxxx XX
2AC PECO Portfolio - Tellico Plaza 000 Xxxxxxx 000 Xxxxx
0XX PECO Portfolio - Pulaski Plaza 1200 East Main Street
2AE PECO Portfolio - Concord Crossing 585 Xxxxxx X. Xxxxxxx Xxxxxxxxx Xxxxx
0XX XXXX Xxxxxxxxx - Xxxxxxxx Xxxxx 0000 Xxxxxxx Xxxx
0XX XXXX Xxxxxxxxx - Xxxxxxx Square 000 Xxxxxxx Xxxxxxx
0XX XXXX Xxxxxxxxx - Xxxxxxxxxx Village 000 Xxxx Xxxxxxx 00/00
0XX XXXX Xxxxxxxxx - Xxxxxxxxx Crossing 000 Xxxxxxxx Xxxxxx
0XX XXXX Xxxxxxxxx - Xxxxxx Xxxx 2702 Pine Hills Road
2AK PECO Portfolio - South Main Street Plaza 2250 S. Main Street
2AL PECO Portfolio - Xxxxxx Xxxx 1407 - 0000 Xxxxx Xxxx Xxxx Xxxx
2AM PECO Portfolio - Palmetto Crossroads 00 Xxx Xxxxxx
3 Potomac Xxxxx 0000 Xxxxxxx Xxxxx Xxxxxx
4 Och-Ziff Retail Portfolio Various
5 One Sansome Street One Sansome Street
6 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
7 XxXxxxxxxx Towers 3945-3955 and 0000 Xxxxxxx Xxxxxx
8 Greensboro Park 0000-0000 Xxxxxxxxxx Xxxxx
9 Islandia Shopping Center 1750 Veterans Memorial Highway
10 Westview Shopping Center 0000 Xxxxxxxxx Xxxxxxxx Xxxx
11 One Fair Oaks Plaza 4114 Legato Road
12 Riverchase Apartments 0000 Xxxxx Xxxxxx
13 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
00 Xxxxx SLC Portfolio Various
00 Xxxxxxx Xxxxxxxxx 0000 Xxx Xxxxxx
00 Xxxxx Xxxxx Plaza 0000 Xxxxx Xxxxx Xxx
17 Barons Apartments 0000 XX-00 Xxxx
00 Xxxxxxxx Xxxx Center 000 X. Xxxxxxxx Xxxxxxxxx
00 00 Xxxx 00xx Xxxxxx 00 Xxxx 00xx Xxxxxx
20 Greenhouse on Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx Xxxx
00 Xxxxx Xxxxxxx 00 Xxxx Xxxxxx
22 Bear Canyon 0000 Xxxx Xxxxxxxx Xxxxxxx
23 Portsmouth Station Shopping Center 10294-10404 Xxxxxxxxxx Xxxx
00 000-000 Xxxxxxxx Xxxxxx 000-000 Xxxxxxxx Xxxxxx
00 Xxx Xxxxxxx Multifamily Portfolio II Various
26 Camelot at Northlake 0000 Xxxxxxxxx Xxxxx
27 Highland Parc 0000 Xxxxxx Xxxxx Xxxxx
00 Xxxxxxxxxx Xxxxxx Apartments 000-000 Xxxxx Xxxxxx Xxxxxx
29 Bradford Plaza 000 Xxxxxxxxxx Xxxx
30 SawGrass Landing 13715-13999 Xxxx Xxxxxxx Xxxxxxxxx
00 Xxxxxx Xxxxxx Xxxx Center 0000 Xxxxx Xxxxxxx Xxxxxxxxx
32 Waxahachie Towne Center 0000-0000 Xxxxx Xxxxxxx 00
00 Xxxxxx Xxxxx 0000 X. Xxxxx Xxxxx
00 Xxxxx Xxxxxx Retail 574 & 000 Xxxxxxx Xxxxxx Xxxxx
35 Hickory Grove 000 Xxxx Xxxx Xxxxxxx
36 Casa Grande Palm Center 000-000 X. Xxxxxx Xxxxxxx
37 Fox and Hounds Apartments 0000 Xxxxxxxxx Xxxx
38 000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx
39 The Annex - Las Vegas Outlet Center 0000 X Xxx Xxxxx Xxxx
40 Walgreens & Schnucks Anchored Shopping Center 0000-0000 Xxxxx Xxxxxx; 0000-0000 Xxxxx Xx. & 602-608 25th
St.
41 Pecan Valley Apartments 3450 Southcross
42 Marketplace at Xxxxxxxxx 0000-0000 Xxxxxxxxx Xxxx
43 00-00 Xxxx 00xx Xxxxxx 00-00 Xxxx 00xx Xxxxxx
00 Xxxxx Xxxxxxx Home Depot 0000 Xxxx Xxxxxxx
45 Xxxxxx'x Crossing 0000 Xxxxxx'x Xxxxxxxx Xxxx
46 0000 00xx Xxxxxx 0000 00xx Xx.
00 Xxxxxxx Xxx Xxxxxxx Xxxxxxxxx 0000 Xxxxx Xxxxx Xxxx
48 Paradise Vista Apartments 0000 Xxxxx 00xx Xxx
49 Addison Tower 00000 Xxxxxxx Xxxx
50 Citizens Portfolio 3 Various
51 Harbor Plaza Shopping Center 0000 Xxxxx Xxxxxxx Xxxxxxx
00 Xxxxxxxxx Xxxxx 0000 X. Xxxx Xxxxxx
53 Homewood Suites Memphis Southwind 0000 Xxxxx Xxxxx Xxxx
54 Extra Space Storage 160 Xxxx St.
55 Citizens Portfolio 2 Various
56 00 Xxxxxxxxxxxx Xxx 00 Xxxxxxxxxxxx Xxxxxx
57 315-321 6th Avenue 000-000 0xx Xxxxxx
58 Citizens Portfolio 1 Various
59 Dolphin Landing 6402 Xxxxx Road
60 Torrance Self Storage 0000 Xxxx 000xx Xxxxxx
00 Xxxx Xxxx Xxxxxxxxxx 00000 Harwin Drive
62 Bristol Square Apts 00000 Xxxx 00xx Xxxxxx
00 Xxx Xxxxxxx Multifamily Portfolio I Various
00 Xxxxx Xxxxx 0000-0000 Xxxxx Xxxxx Xxxxxx
00 Xxxxxxxxxxx Xxxxxx 3507-3555 Xxxx Xxxxxxxxxxx Xxxx,00000 Xxxxx 00xx Xxxxxx
66 000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx
67 Willowind Apartments 0000 Xxxxxxxxx Xxxxx
68 00000 Xxxxx Xxxxxx 00000 Xxxxx Xxxxxx
00 Xxxxxxxx Xxxxx Shopping Center Wrap SEC Los Angeles Avenue and Park Lane
00 Xxxxx Xxxx Xxxxxx 0000 Xxxxx Xxxx
71 Xxxxxxx Place Shopping Center 0000 XX Xxxxxxx 00
72 Mercede Park 0000 XX 0 Xxxxxx
73 000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx
00 Xxxxxxx Xxx Xxxxxxx - Xxxxxxxxx 0000 Xxxxxxxxx Xxxxxxx
75 1523 Xxxxxxxxx 0000 Xxxxxxxxx Xxxxxx
76 Xxxxxxx Hills Shopping Center 0000 X. XxxxXxxxxxxx Xxxx
77 Sun Forest Apartments 000 Xxxxxxx Xxxxx
00 Xxxxxxxxx - Xxxxxx Xxx Xxxxxx 000 Xxxxxxxxxx Xxxx
00 Xxxxx Xxxx Xxxxxx 0000-0000 Xxxxx Xxxxxxxx
80 000 Xxxxxxxx Xxxxxxx 000 Xxxxxxxx Xxxxxxx
81 NorthPointe 000 Xxxxxxxx Xxxxxx
00 Xxxxxxxxx - Xxxxxxxx 000 Xxxx Xxx Xxxxxx
83 000 Xxxx Xxxxx Xxxxxx 000 Xxxx Xxxxx Xxxxxx
84 Sunridge Apartments 000 Xxxx Xxxxxxx Xxxxxxx
85 Franklin Properties Apartments Various
86 Loop 1604 Self Storage 00000 Xxxxxxxxxxx Xxxx & 0000 Xxxxxx Xxxx
87 The Ice Xxxxx Xxxxxx Xxxxxxxx 000 Xxxxxxxxx Xxxxx
88 Cross Creek Apartments 0000 Xxxxx Xxxxx Xxxxx
89 Walgreen's Bronx 0000 Xxxxx Xxxxxx Xxxx
90 CVS Rockville 000 Xxxx Xxxx Xxxxxx
91 Dogwood Creek Apartments 0000 Xxxxxxxxxxx Xxxxxx
92 Champion Forest Self Storage 00000 Xxxxxx Xxxx
00 Xxxxx Xxxxxxx Mini Storage 00000 X. Xxxxxxxx Xxxxxxx
94 Citizens Portfolio 6 Various
95 Walgreens Wichita 0000 X 00xx Xxxxxx
00 Xxxx Xxxx Xxxxxxx 000-00 Xxxxxxx Xxxxxx
97 000 Xxxxx Xxxx Xxxxx 000 Xxxxx Xxxx
00 Xxxxx Xxx Xxxxx 000 Xxxxxxxxxx Xxxx
00 Xxxx Xxxx Self Storage 000 Xxxx Xxxx Xxxx
000 Xxxx Xxxx Mobile Home Park 0000 Xxxxxx Xxxx
101 Our Town Shopping Center 000 Xxxxx Xxxx Xxxxxx
000 Xxxxxxxxx Xxxxxxx 0000 Xxx Xxxxxx
000 Xxxxxxx Supply Lubbock 0000 00xx Xxxxxx
104 Skyline Building 0000 0xx Xxxxxx Xxxxx
105 Imperial Mobile Home Park & Clarks Run Portfolio Various
106 Citizens Portfolio 16 Various
107 Blessing Mobile Home Park 0000 Xxxxxx Xxxxxx
108 0000 Xxxxxxxxx Xxxxx 0000 Xxxxxxxxx Xxxxx
109 Cottages at Northern Hills 800 North Xxxxxxxx
110 1738 House Apartments 000 Xxxx Xxxxxx
111 Xxxxxxx Industrial 0000 Xxxxxxx Xxxx
112 Citizens Portfolio 29 Various
113 Dakota Marketplace 0000 Xxxxxx Xxxxxx Xxxxx
000 Xxxx Xxxxx Xxxxxxxxxx 000, 945, 000 Xxxx 0xx Xxxxxx
115 000 Xxxxx Xxxxxxx 000 Xxxxx Xxxxxxx
000 Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxxx Xxxxxx
117 Wellington Apartments 0000-0000 00xx Xx. & 0000-0000 00xx Xx.
118 Tractor Supply Granbury 0000 X. Xxxxxxx 000
119 Lock-Ur-Own Self Storage 0000 Xxxx 00xx Xxxxxx
120 Tradewinds 000 Xxxxxxxx Xxxx
000 0X Xxxxxxxxxxx Office/Warehouse SE Xxxx Xxxxxx Drive
122 The Shoppes at Kettering Pointe 0000-0000 X. Xxxxxxxxxx Xxxx
123 Xxxxxxxx Apartments 0000 Xxxxxxxx Xxxxxx
124 Surrey Park Apartments 7 - 00 Xxxx Xxxxx
000 Xxxxxx Xxxxx Apartments 0000 Xxxxxx Xxxx
126 Gateway Retail 0000-0000 Xxxxxx Xxxxx and 00 Xxxxxx Xxxxx
127 One Westgate 0000 Xxxx Xxxxxxxxxx 00
000 Xxxxxxx Xxxxx 0000 Xxx Xxxxx Xxxx
129 Citizens Portfolio 8 Various
130 Tractor Supply Carthage 0000 X. Xxxxxx Xxxxxx
131 Walgreens San Antonio 00000 Xxxxx Xxx Xxxxxxx
132 West Oaks Retail Center 0000 Xxxxxxx 0 X.
000 XXX Centura Bank 0000 Xxxxxxxxxxxxx-Xxxxxxx Xxxx
134 Xxxxxxx Crossing 0000 Xxxxxxxx Xxxxx
000 Xxxxxxx Professional 0000 Xxxxx Xxxxxxx Xxxxxx
136 Rainforest Village 000 Xxxx Xxxxxxx Xxxxxx
137 Louisiana Purchase Center 0000-0000 Xxxxxxxxx Xxxxxx
138 Flyer Shoppes 0000 Xxxxx Xxxxxx
139 000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
140 Family Dollar Portfolio Various
141 Shoppes of Moyock 000 Xxxxxxxxx Xxxxxxxxxx Xxxxx
142 Englewood Crossing 000 Xxxxx Xxxx Xxxxxx
143 Pompano Center 0000 X Xxxxxxx Xxxxxxx
XXXXXXXX LOAN NUMBER CITY STATE ZIP CODE CUT-OFF DATE BALANCE MONTHLY P&I PAYMENT MORTGAGE RATE
---------------------------------------------------------------------------------------------------------------------------
1 Various Various Various 412,701,271.00 2,666,493.25 6.7125
2 VARIOUS VARIOUS VARIOUS 323,860,000.00 2,036,438.01 6.4500
2A Xxxxxxxxx XX 00000 21,792,000.00 136,025.00 6.3800
2B Xxxxxxxx XX 00000 18,400,000.00 118,853.23 6.7100
2C Xxxxxxxx XX 00000 17,424,000.00 108,760.08 6.3800
2D Xxxxx XX 00000 16,424,000.00 102,518.11 6.3800
2E Xxxx XX 00000 15,225,000.00 95,033.99 6.3800
2F Xxxxxxxxx XX 00000 10,696,000.00 66,764.11 6.3800
2G Xxxxxxxx XX 00000 10,626,000.00 66,327.17 6.3800
2H Xxxxxxxxx XX 00000 9,987,000.00 62,338.55 6.3800
2I Xxxxxxx XX 00000 9,975,000.00 64,432.66 6.7100
2J Xxxxxxxxxx XX 00000 9,890,000.00 62,056.93 6.4300
2K Xxxxx XX 00000 9,837,000.00 61,402.25 6.3800
2L Xxxxxxxxxxx XX 00000 9,437,000.00 58,905.47 6.3800
2M Xxxxxxx XX 00000 9,200,000.00 57,727.38 6.4300
2N Xxxxxxx XX 00000 9,150,000.00 57,413.64 6.4300
2O Xxxxxxxxx XX 00000 9,037,000.00 56,408.68 6.3800
2P Xxxxxxxx XX 00000 8,870,000.00 55,656.72 6.4300
2Q Xxxxxxxx XX 00000 8,700,000.00 56,196.91 6.7100
2R Xxxxxxxxx XX 00000 6,925,000.00 44,731.44 6.7100
2S Xxxxxxxx XX 00000 6,920,000.00 43,421.03 6.4300
2T Xxxxxxxx XX 00000 6,720,000.00 42,166.09 6.4300
2U Xxxxxxx XX 00000 6,688,000.00 41,746.29 6.3800
2V Xxxxxxxxxxx XX 00000 6,418,000.00 40,060.96 6.3800
2W Xxxxxxxxx XX 00000 6,380,000.00 40,032.68 6.4300
2X Xxxxxxx XX 00000 6,280,000.00 39,405.21 6.4300
2Y Xxxxxxx XX 00000 6,260,000.00 39,279.72 6.4300
2Z Xxxxxxxxx XX 00000 6,088,000.00 38,001.11 6.3800
2AA Xxxxxxxx XX 00000 6,080,000.00 38,150.27 6.4300
2AB Xxxxx XX 00000 5,750,000.00 37,141.63 6.7100
2AC Xxxxxx Xxxx XX 00000 5,500,000.00 34,510.93 6.4300
2AD Xxxxxxx XX 00000 5,120,000.00 32,126.54 6.4300
2AE Xxxxxxx XX 00000 5,098,000.00 31,821.56 6.3800
2AF Xxxxxxxxx XX 00000 4,968,000.00 31,010.10 6.3800
2AG Xxxxxx Xxxxxx XX 00000 4,718,000.00 29,449.61 6.3800
2AH Xxxxxxxxx XX 00000 4,438,000.00 27,701.86 6.3800
2AI Xxxxxxxxxxxxxx XX 00000 4,250,000.00 27,452.51 6.7100
2AJ Xxxxxxx XX 00000 4,240,000.00 26,604.79 6.4300
2AK Xxxxxxxxxxxxxx XX 00000 4,099,000.00 25,585.83 6.3800
2AL Xxxxxx XX 00000 3,410,000.00 21,396.78 6.4300
2AM Xxxxxx Xxxx Xxxxxx XX 00000 2,840,000.00 17,820.19 6.4300
3 Xxxxxxxxxx XX 00000 246,000,000.00 1,211,645.38 5.8295
4 Various Various Various 144,000,000.00 767,960.00 6.3120
5 Xxx Xxxxxxxxx XX 00000 139,569,073.00 727,584.56 6.1700
6 Xxx Xxxx XX 00000 117,399,060.00 619,945.84 6.2500
7 Xxxxx Xxxxx XX 00000 116,426,461.00 738,192.97 6.5300
8 XxXxxx XX 00000 108,926,767.00 579,808.10 6.3000
9 Xxxxxxxx XX 00000 73,600,000.00 353,149.67 5.6790
10 Xxxxxxxxx XX 00000 56,500,000.00 283,917.40 5.9475
11 Xxxxxxx XX 00000 52,399,975.22 279,363.43 6.3100
00 Xxxxxx Xxxxxxxx XX 00000 51,214,000.00 254,546.50 5.8826
13 Xxxxxx XX 00000 42,000,000.00 199,999.72 5.6360
14 Various TX Various 39,000,000.00 203,540.73 6.1770
15 Xxxxxxx XX 00000 32,000,000.00 193,711.68 6.0900
00 Xxx Xxxx Xxxxxx XX 00000 32,000,000.00 162,222.22 6.0000
17 Xxxxxxxx XX 00000 30,200,000.00 177,969.43 5.8400
18 Xxxxxxxx XX 00000 25,100,000.00 132,968.99 6.2700
19 Xxx Xxxx XX 00000 25,000,000.00 153,604.26 6.2300
20 Xxxxxxx XX 00000 23,900,000.00 147,156.42 6.2500
00 Xxxxxxx XX 00000 23,500,000.00 151,328.69 6.6800
22 Xxxxxx XX 00000 22,500,000.00 118,450.10 6.2308
23 Xxxxxxxx XX 00000 20,838,000.00 136,960.45 6.8800
24 Xxx Xxxx XX 00000 20,700,000.00 107,858.26 6.1670
25 Los Angeles CA Various 20,538,000.00 100,819.24 5.8100
26 Xxxxxxx XX 00000 20,375,000.00 106,285.34 6.1740
27 Xxxxxxxx XX 00000 20,200,000.00 124,374.83 6.2500
28 Xxxxxxxx XX 00000 20,000,000.00 115,750.77 5.6740
00 Xxxx Xxxxxxx XX 00000 19,100,000.00 117,229.57 6.2200
30 Xxxxxxx XX 00000 18,250,000.00 117,400.29 6.6700
31 Xxx Xxxxx XX 00000 17,575,000.00 115,513.96 6.8800
32 Xxxxxxxxxx XX 00000 16,750,000.00 104,224.48 6.3500
33 Xxxxxxxxx XX 00000 16,240,000.00 99,359.60 6.1900
34 Xxxx Xxxxxxx XX 00000 14,894,000.00 97,892.74 6.8800
35 Xxxxxxxxx XX 00000 14,500,000.00 91,268.76 6.4600
00 Xxxx Xxxxxx XX 00000 14,337,244.82 83,560.47 5.7300
37 Xxxxxxxx XX 00000 14,250,000.00 69,855.68 5.8020
38 Xxx Xxxx XX 00000 12,910,000.00 70,300.48 6.4450
39 Xxx Xxxxx XX 00000 12,500,000.00 61,783.85 5.8500
00 Xxxx Xx. Xxxxx XX 00000 12,100,000.00 76,162.21 6.4600
41 Xxx Xxxxxxx XX 00000 12,000,000.00 70,333.97 5.7900
42 Xxxxxx XX 00000 12,000,000.00 58,602.78 5.7800
43 Xxx Xxxx XX 00000 11,940,000.00 60,529.17 6.0000
44 Xxxxx Xxxxxxx XX 00000 11,600,000.00 68,359.12 5.8400
45 Xxxxxxx XX 00000 11,600,000.00 68,507.21 5.8600
46 Xxxxx Xxxxxx XX 00000 11,525,000.00 57,451.59 5.9000
47 Xxxxxxx XX 00000 11,491,586.37 72,385.57 6.4600
48 Xxxxxxxx XX 00000 11,250,000.00 70,885.84 6.4700
49 Xxxxxxx XX 00000 11,100,000.00 70,378.69 6.5300
50 Various MI Various 10,781,058.00 56,393.79 6.1910
51 Xxxxxx Xxxxx XX 00000 10,500,000.00 53,051.74 5.9800
52 Xxxxxxxx XX 00000 10,450,000.00 63,427.74 6.1150
53 Xxxxxxx XX 00000 9,992,683.81 62,943.97 6.4600
54 Xxxxxxxx XX 00000 9,700,000.00 60,928.35 6.4400
55 Various MI Various 9,613,114.00 50,284.49 6.1910
56 Xxxxxx XX 00000 9,500,000.00 59,609.79 6.4300
57 Xxx Xxxx XX 00000 9,500,000.00 50,246.64 6.2600
58 Various MI Various 9,430,675.00 49,330.18 6.1910
59 Xxxxxx Xxxxxxx XX 00000 9,220,173.62 57,836.31 6.4200
60 Xxxxxxxx XX 00000 9,000,000.00 56,767.80 6.4800
61 Xxxxxxx XX 00000 9,000,000.00 52,350.16 5.7200
62 Xxxxxxxxxxxx XX 00000 8,000,000.00 48,015.49 6.0100
63 Los Angeles CA Various 8,000,000.00 43,462.04 6.4300
64 Xxxxxxxxxxx XX 00000 7,500,000.00 49,344.85 6.8900
65 Xxxxxxx XX 00000 7,200,000.00 42,567.71 5.8700
66 Xxx Xxxx XX 00000 7,200,000.00 37,595.00 6.1800
67 Xxxxx XX 00000 7,100,000.00 43,091.69 6.1144
68 Xxxxxxxxx XX 00000 7,093,721.19 41,433.67 5.7500
69 Xxxxxxxx XX 00000 7,000,000.00 44,129.74 6.4750
70 Xxxxxxxxxxxx XX 00000 7,000,000.00 43,739.59 6.3900
71 Xxxxxxxx XX 00000 7,000,000.00 42,487.48 6.1150
72 Xxxxxxx Xxxxx XX 00000 6,500,000.00 38,304.68 5.8400
73 Xxx Xxxx XX 00000 6,500,000.00 33,830.09 6.1600
74 Xxxxxxx XX 00000 6,400,000.00 43,053.43 6.4600
75 Xxxxxxxxx XX 00000 6,200,000.00 36,893.57 5.9300
76 Xxxxxx XX 00000 5,960,794.33 36,553.69 6.1500
00 Xxxx Xxxxxxx XX 00000 5,850,000.00 38,332.66 6.8500
00 Xxxxxx Xxx Xxxxxx XX 00000 5,500,000.00 26,627.26 5.7300
79 Xxxxxxx XX 00000 5,440,000.00 34,170.12 6.4400
80 Xxxxxxxx XX 00000 5,360,000.00 31,963.81 5.9500
81 Xxxxx XX 00000 5,300,000.00 33,639.15 6.5400
82 Xxxxxxxx XX 00000 5,100,000.00 27,233.06 6.3200
83 Xxxxxxx XX 00000 5,100,000.00 24,776.91 5.7500
84 Xxxxx Xxxxxxx XX 00000 5,050,000.00 31,159.44 6.2700
85 Various RI Various 5,000,000.00 33,644.58 6.7700
86 Xxx Xxxxxxx XX 00000 4,400,000.00 28,392.23 6.7000
87 Xxxxx XX 00000 4,396,168.28 25,845.16 5.8100
88 Xxxxxxxxx XX 00000 4,375,000.00 25,949.72 5.9000
89 Xxxxx XX 00000 4,274,298.45 26,380.09 5.4900
90 Xxxxxxxxx XX 00000 4,200,000.00 21,149.72 5.9600
91 Xxxxxxxxxx XX 00000 4,175,000.00 26,581.33 6.5700
92 Xxxxxxx XX 00000 4,100,000.00 25,324.46 6.2800
93 Xxxxxxxxxx XX 00000 4,000,000.00 25,177.59 6.4600
94 Various IL Various 3,746,984.00 19,944.88 6.3000
95 Xxxxxxx XX 00000 3,741,854.11 22,901.89 5.9300
96 Xxx Xxxx XX 00000 3,720,000.00 19,581.24 6.2300
97 Xxxxxxxxx XX 00000 3,700,000.00 23,143.72 6.4000
98 Xxxxxxxxxx XX 00000 3,700,000.00 22,088.31 5.9600
00 Xxx Xxxxx XX 00000 3,577,013.29 21,800.71 6.0800
000 Xxxxx Xxxxxxxx Xxxxxxxx XX 00000 3,494,016.56 21,664.05 6.3000
000 Xxxxxxxxxxx XX 00000 3,425,000.00 21,828.84 6.5800
102 Xxxxxxxxxx XX 00000 3,400,000.00 19,949.60 5.8000
000 Xxxxxxx XX 00000 3,153,000.00 15,424.52 5.7900
000 Xx. Xxxxxxxxxx XX 00000 3,000,000.00 14,954.86 5.9000
105 Xxxxxxxx XX 00000 3,000,000.00 18,335.15 6.1800
106 Various MI Various 2,962,352.00 15,768.35 6.3000
000 Xxxxx Xxxx XX 00000 2,928,003.62 18,926.08 6.7100
000 Xxxxx XX 00000 2,877,724.65 17,601.75 6.1800
000 Xxxxxx XX 00000 2,800,000.00 16,180.31 5.6600
000 Xxxxxxxxxx XX 00000 2,800,000.00 16,949.77 6.0900
111 Xxxxxxx XX 00000 2,800,000.00 17,605.93 6.4500
112 Xxxxxxxxx XX 00000 2,785,256.00 14,825.69 6.3000
000 Xxxxx XX 00000 2,728,286.62 17,551.39 6.1300
114 Xxxxxx XX 00000 2,650,000.00 17,258.37 6.7900
000 Xxxxxxxx XX 00000 2,650,000.00 16,924.46 6.6000
000 Xxxxxxx XX 00000 2,628,347.25 16,189.89 6.2300
000 Xxxxxxx XX 00000 2,600,000.00 15,371.67 5.8700
000 Xxxxxxxx XX 00000 2,586,000.00 12,650.75 5.7900
119 Xxxxxx XX 00000 2,550,000.00 15,700.79 6.2500
000 Xxxxxxxxxx XX 00000 2,515,642.49 15,516.07 6.2500
000 Xxxxxxxxxxx XX 00000 2,450,000.00 15,793.06 6.6900
122 Xxxxxxxxx XX 00000 2,440,000.00 14,270.19 5.7700
000 Xxxxxx Xxxxxxx XX 00000 2,425,000.00 15,279.84 6.4700
000 Xxxxxx XX 00000 2,350,000.00 13,938.71 5.9000
000 Xxxxx Xxxxxxxxxx XX 00000 2,325,408.94 13,990.49 5.9900
000 Xxxxxxxxx XX 00000 2,295,659.20 13,583.33 5.8600
000 Xxxxxxx XX 00000 2,240,000.00 14,114.16 6.4700
000 Xxxxxxxxx XX 00000 2,200,000.00 10,669.49 5.7400
129 Various IL Various 2,193,306.00 11,674.79 6.3000
000 Xxxxxxxx XX 00000 2,192,000.00 10,723.29 5.7900
000 Xxx Xxxxxxx XX 00000 2,098,325.22 12,786.99 6.1450
000 Xxxxxxx XX 00000 2,024,000.00 12,793.06 6.5000
000 Xxxxxxx XX 00000 2,015,000.00 12,315.11 6.1800
000 Xxxxxxxx XX 00000 2,000,000.00 13,051.83 6.8100
000 Xxxxx XX 00000 1,950,000.00 12,274.07 6.4600
136 Xxxxxxxxxxx XX 00000 1,860,000.00 12,138.20 6.8100
000 Xxxxxxxx XX 00000 1,850,000.00 11,802.97 6.5900
138 Xxxxxx XX 00000 1,740,000.00 10,176.29 5.7700
139 Xxxxx XX 00000 1,595,822.99 9,685.58 6.0900
140 Various Various Various 1,589,586.44 10,538.14 6.2000
141 Xxxxxx XX 00000 1,450,000.00 9,308.49 6.6500
000 Xxxxxxxxx XX 00000 1,110,000.00 6,491.77 5.7700
000 Xxxxxxx Xxxxx XX 00000 700,000.00 4,360.22 6.3600
MORTGAGE LOAN NUMBER REMAINING TERM TO MATURITY MATURITY DATE REMAINING AMORTIZATION TERM INTEREST ACCRUAL BASIS
------------------------------------------------------------------------------------------------------------------------
1 119 7/9/2017 360 Act/360
2 119 7/11/2017 360 ACT/360
2A 119 7/11/2017 360 Act/360
2B 119 7/11/2017 360 Act/360
2C 119 7/11/2017 360 Act/360
2D 119 7/11/2017 360 Act/360
2E 119 7/11/2017 360 Act/360
2F 119 7/11/2017 360 Act/360
2G 119 7/11/2017 360 Act/360
2H 119 7/11/2017 360 Act/360
2I 119 7/11/2017 360 Act/360
2J 119 7/11/2017 360 Act/360
2K 119 7/11/2017 360 Act/360
2L 119 7/11/2017 360 Act/360
2M 119 7/11/2017 360 Act/360
2N 119 7/11/2017 360 Act/360
2O 119 7/11/2017 360 Act/360
2P 119 7/11/2017 360 Act/360
2Q 119 7/11/2017 360 Act/360
2R 119 7/11/2017 360 Act/360
2S 119 7/11/2017 360 Act/360
2T 119 7/11/2017 360 Act/360
2U 119 7/11/2017 360 Act/360
2V 119 7/11/2017 360 Act/360
2W 119 7/11/2017 360 Act/360
2X 119 7/11/2017 360 Act/360
2Y 119 7/11/2017 360 Act/360
2Z 119 7/11/2017 360 Act/360
2AA 119 7/11/2017 360 Act/360
2AB 119 7/11/2017 360 Act/360
2AC 119 7/11/2017 360 Act/360
2AD 119 7/11/2017 360 Act/360
2AE 119 7/11/2017 360 Act/360
2AF 119 7/11/2017 360 Act/360
2AG 119 7/11/2017 360 Act/360
2AH 119 7/11/2017 360 Act/360
2AI 119 7/11/2017 360 Act/360
2AJ 119 7/11/2017 360 Act/360
2AK 119 7/11/2017 360 Act/360
2AL 119 7/11/2017 360 Act/360
2AM 119 7/11/2017 360 Act/360
3 119 7/11/2017 0 Act/360
4 84 8/6/2014 0 Act/360
5 58 6/11/2012 0 Act/360
6 58 6/11/2012 0 Act/360
7 118 6/11/2017 360 Act/360
8 58 6/11/2012 0 Act/360
9 119 7/9/2017 0 Act/360
10 118 6/9/2017 0 Act/360
11 58 6/11/2012 0 Act/360
12 117 5/11/2017 0 Act/360
13 121 9/11/2017 0 Act/360
14 57 5/11/2012 0 Act/360
15 118 6/11/2017 360 Act/360
16 118 6/11/2017 0 Act/360
17 118 6/11/2017 360 Act/360
18 118 6/11/2017 0 Act/360
19 120 8/9/2017 360 Act/360
20 58 6/11/2012 360 Act/360
21 59 7/9/2012 360 Act/360
22 59 7/11/2012 0 Act/360
23 179 7/11/2022 360 Act/360
24 119 7/9/2017 0 Act/360
25 55 3/11/2012 0 Act/360
26 119 7/10/2017 0 Act/360
27 59 7/11/2012 360 Act/360
28 119 7/9/2017 360 Act/360
29 83 7/9/2014 360 Act/360
30 120 8/11/2017 360 Act/360
31 179 7/11/2022 360 Act/360
32 120 8/11/2017 360 Act/360
33 118 6/11/2017 360 Act/360
34 179 7/11/2022 360 Act/360
35 119 7/11/2017 360 Act/360
36 119 7/11/2017 359 Act/360
37 59 7/9/2012 0 Act/360
38 120 8/9/2017 0 Act/360
39 56 4/9/2012 0 Act/360
40 120 8/11/2017 360 Act/360
41 113 1/11/2017 360 Act/360
42 118 6/11/2017 0 Act/360
43 118 6/9/2017 0 Act/360
44 120 8/11/2017 360 Act/360
45 118 6/11/2017 360 Act/360
46 118 6/11/2017 0 Act/360
47 119 7/11/2017 359 Act/360
48 119 7/11/2017 360 Act/360
49 119 7/11/2017 360 Act/360
50 108 8/11/2016 0 Act/360
51 118 6/9/2017 0 Act/360
52 118 6/11/2017 360 Act/360
53 119 7/11/2017 359 Act/360
54 120 8/11/2017 360 Act/360
55 108 8/11/2016 0 Act/360
56 120 8/11/2017 360 Act/360
57 119 7/9/2017 0 Act/360
58 108 8/11/2016 0 Act/360
59 119 7/11/2017 359 Act/360
60 120 8/9/2017 360 Act/360
61 117 5/11/2017 360 Act/360
62 118 6/11/2017 360 Act/360
63 55 3/11/2012 0 Act/360
64 121 9/11/2017 360 Act/360
65 117 5/11/2017 360 Act/360
66 83 7/10/2014 0 Act/360
67 82 6/9/2014 360 Act/360
68 119 7/11/2017 359 Act/360
69 119 7/11/2017 360 Act/360
70 120 8/11/2017 360 Act/360
71 118 6/11/2017 360 Act/360
72 118 6/11/2017 360 Act/360
73 118 6/11/2017 0 Act/360
74 120 8/11/2017 300 Act/360
75 83 7/11/2014 360 Act/360
76 77 1/11/2014 353 Act/360
77 121 9/11/2017 360 Act/360
78 117 5/11/2017 0 Act/360
79 120 8/11/2017 360 Act/360
80 120 8/11/2017 360 Act/360
81 120 8/11/2017 360 Act/360
82 120 8/9/2017 0 Act/360
83 116 4/11/2017 0 Act/360
84 118 6/1/2017 360 Act/360
85 60 8/11/2012 324 Act/360
86 121 9/11/2017 360 Act/360
87 119 7/11/2017 359 Act/360
88 118 6/11/2017 360 Act/360
89 116 4/11/2017 296 Act/360
90 118 6/11/2017 0 Act/360
91 120 8/11/2017 360 Act/360
92 119 7/11/2017 360 Act/360
93 119 7/11/2017 360 Act/360
94 48 8/11/2011 0 Act/360
95 118 6/9/2017 334 Act/360
96 119 7/9/2017 0 Act/360
97 120 8/11/2017 360 Act/360
98 118 6/11/2017 360 Act/360
99 112 12/11/2016 352 Act/360
100 118 6/11/2017 358 Act/360
101 120 8/11/2017 360 Act/360
102 118 6/11/2017 360 Act/360
103 119 7/11/2017 0 Act/360
104 57 5/11/2012 0 Act/360
105 117 5/11/2017 360 Act/360
106 48 8/11/2011 0 Act/360
107 83 7/11/2014 359 Act/360
108 119 7/11/2017 359 Act/360
109 117 5/11/2017 360 Act/360
110 115 3/11/2017 360 Act/360
111 120 8/11/2017 360 Act/360
112 48 8/11/2011 0 Act/360
113 118 6/11/2017 310 Act/360
114 120 8/11/2017 360 Act/360
115 120 8/11/2017 360 Act/360
116 117 5/11/2017 357 Act/360
117 116 4/11/2017 360 Act/360
118 119 7/11/2017 0 Act/360
119 118 6/11/2017 360 Act/360
120 118 6/11/2017 358 Act/360
121 121 9/11/2017 360 Act/360
122 119 7/11/2017 360 Act/360
123 120 8/11/2017 360 Act/360
124 118 6/11/2017 360 Act/360
125 115 3/11/2017 355 Act/360
126 118 6/11/2017 358 Act/360
127 119 7/11/2017 360 Act/360
128 116 4/11/2017 0 Act/360
129 48 8/11/2011 0 Act/360
130 117 5/11/2017 0 Act/360
131 119 7/9/2017 359 Act/360
132 119 7/11/2017 360 Act/360
133 118 6/11/2017 360 Act/360
134 121 9/11/2017 360 Act/360
135 119 7/11/2017 360 Act/360
136 120 8/9/2017 360 Act/360
137 120 8/11/2017 360 Act/360
138 119 7/11/2017 360 Act/360
139 117 5/11/2017 357 Act/360
140 113 1/11/2017 293 Act/360
141 120 8/11/2017 360 Act/360
142 119 7/11/2017 360 Act/360
143 119 7/11/2017 360 Act/360
MORTGAGE LOAN NUMBER ADMINISTRATIVE COST RATE (%) OUTSIDE SERVICING FEE RATE (%) GROUND LEASE? MORTGAGE LOAN SELLER
------------------------------------------------------------------------------------------------------------------------------
1 0.02053 0.02 Fee Simple/Leasehold LB
2 0.02053 0.02 LB
2A 0.02053 0.02 Fee Simple LB
2B 0.02053 0.02 Fee Simple LB
2C 0.02053 0.02 Fee Simple LB
2D 0.02053 0.02 Fee Simple LB
2E 0.02053 0.02 Fee Simple LB
2F 0.02053 0.02 Fee Simple LB
2G 0.02053 0.02 Fee Simple LB
2H 0.02053 0.02 Fee Simple LB
2I 0.02053 0.02 Leasehold LB
2J 0.02053 0.02 Fee Simple LB
2K 0.02053 0.02 Fee Simple LB
2L 0.02053 0.02 Fee Simple LB
2M 0.02053 0.02 Fee Simple LB
2N 0.02053 0.02 Fee Simple LB
2O 0.02053 0.02 Fee Simple LB
2P 0.02053 0.02 Fee Simple LB
2Q 0.02053 0.02 Fee Simple LB
2R 0.02053 0.02 Fee Simple LB
2S 0.02053 0.02 Fee Simple LB
2T 0.02053 0.02 Fee Simple LB
2U 0.02053 0.02 Fee Simple LB
2V 0.02053 0.02 Fee Simple LB
2W 0.02053 0.02 Fee Simple LB
2X 0.02053 0.02 Fee Simple LB
2Y 0.02053 0.02 Fee Simple LB
2Z 0.02053 0.02 Fee Simple LB
2AA 0.02053 0.02 Fee Simple LB
2AB 0.02053 0.02 Fee Simple LB
2AC 0.02053 0.02 Fee Simple LB
2AD 0.02053 0.02 Fee Simple LB
2AE 0.02053 0.02 Fee Simple LB
2AF 0.02053 0.02 Fee Simple LB
2AG 0.02053 0.02 Fee Simple LB
2AH 0.02053 0.02 Fee Simple LB
2AI 0.02053 0.02 Leasehold LB
2AJ 0.02053 0.02 Fee Simple LB
2AK 0.02053 0.02 Fee Simple LB
2AL 0.02053 0.02 Fee Simple LB
2AM 0.02053 0.02 Fee Simple LB
3 0.02053 0.01 Fee Simple UBS
4 0.02053 0.01 Fee Simple UBS
5 0.02053 0.02 Fee Simple LB
6 0.02053 0.02 Fee Simple LB
7 0.02053 0.02 Fee Simple LB
8 0.02053 0.02 Fee Simple LB
9 0.02053 0.02 Fee Simple UBS
10 0.03053 0.02 Fee Simple UBS
11 0.02053 0.02 Fee Simple LB
12 0.02053 0.02 Fee Simple UBS
13 0.02053 0.02 Fee Simple LB
14 0.02053 0.02 Fee Simple LB
15 0.02053 0.02 Fee Simple UBS
16 0.02053 0.02 Fee Simple UBS
17 0.02053 0.02 Fee Simple LB
18 0.02053 0.02 Fee Simple UBS
19 0.02053 0.02 Fee Simple UBS
20 0.02053 0.02 Fee Simple LB
21 0.02053 0.02 Fee Simple UBS
22 0.02053 0.02 Fee Simple LB
23 0.02053 0.02 Fee Simple LB
24 0.02053 0.02 Fee Simple UBS
25 0.02053 0.02 Fee Simple UBS
26 0.02053 0.02 Fee Simple UBS
27 0.02053 0.02 Fee Simple LB
28 0.02053 0.02 Fee Simple UBS
29 0.02053 0.02 Fee Simple UBS
30 0.02053 0.02 Fee Simple LB
31 0.02053 0.02 Fee Simple LB
32 0.02053 0.02 Fee Simple LB
33 0.06053 0.06 Fee Simple LB
34 0.02053 0.02 Fee Simple LB
35 0.02053 0.02 Fee Simple LB
36 0.02053 0.02 Fee Simple LB
37 0.02053 0.02 Fee Simple UBS
38 0.02053 0.02 Fee Simple UBS
39 0.02053 0.02 Fee Simple UBS
40 0.02053 0.02 Fee Simple LB
41 0.08053 0.08 Fee Simple LB
42 0.02053 0.02 Fee Simple UBS
43 0.02053 0.02 Fee Simple UBS
44 0.02053 0.02 Fee Simple LB
45 0.02053 0.02 Fee Simple LB
46 0.02053 0.02 Fee Simple UBS
47 0.02053 0.02 Fee Simple LB
48 0.02053 0.02 Fee Simple LB
49 0.02053 0.02 Fee Simple LB
50 0.02053 0.02 Fee Simple UBS
51 0.02053 0.02 Fee Simple UBS
52 0.02053 0.02 Fee Simple LB
53 0.02053 0.02 Fee Simple LB
54 0.02053 0.02 Fee Simple LB
55 0.02053 0.02 Fee Simple UBS
56 0.02053 0.02 Fee Simple LB
57 0.02053 0.02 Fee Simple UBS
58 0.02053 0.02 Fee Simple UBS
59 0.02053 0.02 Fee Simple LB
60 0.02053 0.02 Leasehold UBS
61 0.02053 0.02 Fee Simple UBS
62 0.02053 0.02 Fee Simple UBS
63 0.02053 0.02 Fee Simple UBS
64 0.02053 0.02 Fee Simple LB
65 0.08053 0.08 Fee Simple LB
66 0.02053 0.02 Fee Simple UBS
67 0.02053 0.02 Fee Simple UBS
68 0.02053 0.02 Fee Simple LB
69 0.02053 0.02 Fee Simple LB
70 0.02053 0.02 Fee Simple LB
71 0.02053 0.02 Fee Simple LB
72 0.02053 0.02 Fee Simple LB
73 0.02053 0.02 Fee Simple UBS
74 0.02053 0.02 Fee Simple LB
75 0.02053 0.02 Fee Simple LB
76 0.07053 0.02 Fee Simple LB
77 0.02053 0.02 Fee Simple LB
78 0.02053 0.02 Fee Simple UBS
79 0.02053 0.02 Fee Simple LB
80 0.02053 0.02 Fee Simple LB
81 0.02053 0.02 Fee Simple LB
82 0.02053 0.02 Fee Simple UBS
83 0.02053 0.02 Fee Simple UBS
84 0.08053 0.08 Fee Simple LB
85 0.02053 0.02 Fee Simple LB
86 0.02053 0.02 Fee Simple LB
87 0.02053 0.02 Fee Simple LB
88 0.02053 0.02 Fee Simple UBS
89 0.02053 0.02 Fee Simple UBS
90 0.02053 0.02 Fee Simple UBS
91 0.02053 0.02 Fee Simple LB
92 0.02053 0.02 Fee Simple LB
93 0.02053 0.02 Fee Simple LB
94 0.02053 0.02 Fee Simple UBS
95 0.02053 0.02 Fee Simple UBS
96 0.02053 0.02 Fee Simple UBS
97 0.02053 0.02 Fee Simple LB
98 0.02053 0.02 Fee Simple LB
99 0.02053 0.02 Fee Simple LB
100 0.02053 0.02 Fee Simple UBS
101 0.02053 0.02 Fee Simple LB
102 0.02053 0.02 Fee Simple LB
103 0.02053 0.02 Fee Simple UBS
104 0.04053 0.04 Fee Simple LB
105 0.02053 0.02 Fee Simple UBS
106 0.02053 0.02 Fee Simple UBS
107 0.06053 0.06 Fee Simple LB
108 0.02053 0.02 Fee Simple LB
109 0.02053 0.02 Fee Simple LB
110 0.08053 0.08 Fee Simple LB
111 0.02053 0.02 Fee Simple LB
112 0.02053 0.02 Fee Simple UBS
113 0.02053 0.02 Fee Simple LB
114 0.07053 0.02 Fee Simple LB
115 0.02053 0.02 Fee Simple LB
116 0.02053 0.02 Fee Simple LB
117 0.02053 0.02 Fee Simple LB
118 0.02053 0.02 Fee Simple UBS
119 0.09053 0.09 Fee Simple LB
120 0.02053 0.02 Fee Simple UBS
121 0.02053 0.02 Fee Simple LB
122 0.06053 0.06 Fee Simple LB
123 0.02053 0.02 Fee Simple LB
124 0.02053 0.02 Fee Simple UBS
125 0.02053 0.02 Fee Simple UBS
126 0.02053 0.02 Fee Simple UBS
127 0.02053 0.02 Fee Simple LB
128 0.02053 0.02 Fee Simple LB
129 0.02053 0.02 Fee Simple UBS
130 0.02053 0.02 Fee Simple UBS
131 0.02053 0.02 Fee Simple UBS
132 0.02053 0.02 Fee Simple LB
133 0.02053 0.02 Fee Simple UBS
134 0.02053 0.02 Fee Simple LB
135 0.02053 0.02 Fee Simple LB
136 0.02053 0.02 Fee Simple UBS
137 0.02053 0.02 Fee Simple LB
138 0.06053 0.06 Fee Simple LB
139 0.02053 0.02 Fee Simple LB
140 0.02053 0.02 Fee Simple UBS
141 0.02053 0.02 Fee Simple LB
142 0.06053 0.06 Leasehold LB
143 0.02053 0.02 Fee Simple LB
MORTGAGE LOAN NUMBER DEFEASANCE ARD MORTGAGE LOAN ANTICIPATED REPAYMENT DATE ADDITIONAL INTEREST RATE
---------------------------------------------------------------------------------------------------------------------------
1 Defeasance N/A N/A N/A
2 DEFEASANCE N/A N/A N/A
2A Defeasance N/A N/A N/A
2B Defeasance X/X X/X X/X
0X Xxxxxxxxxx X/X X/X X/X
2D Defeasance N/A N/A N/A
2E Defeasance N/A N/A N/A
2F Defeasance X/X X/X X/X
0X Xxxxxxxxxx X/X X/X N/A
2H Defeasance N/A N/A N/A
2I Defeasance X/X X/X X/X
0X Xxxxxxxxxx X/X X/X N/A
2K Defeasance X/X X/X X/X
0X Xxxxxxxxxx X/X X/X N/A
2M Defeasance X/X X/X X/X
0X Xxxxxxxxxx X/X X/X N/A
2O Defeasance N/A N/A N/A
2P Defeasance X/X X/X X/X
0X Xxxxxxxxxx X/X X/X N/A
2R Defeasance X/X X/X X/X
0X Xxxxxxxxxx X/X X/X N/A
2T Defeasance N/A N/A N/A
2U Defeasance X/X X/X X/X
0X Xxxxxxxxxx X/X X/X N/A
2W Defeasance X/X X/X X/X
0X Xxxxxxxxxx X/X X/X N/A
2Y Defeasance X/X X/X X/X
0X Xxxxxxxxxx X/X X/X N/A
2AA Defeasance N/A N/A N/A
2AB Defeasance N/A N/A N/A
2AC Defeasance N/A N/A N/A
2AD Defeasance N/A N/A N/A
2AE Defeasance N/A N/A N/A
2AF Defeasance N/A N/A N/A
2AG Defeasance N/A N/A N/A
2AH Defeasance N/A N/A N/A
2AI Defeasance N/A N/A N/A
2AJ Defeasance N/A N/A N/A
2AK Defeasance X/X X/X X/X
0XX Xxxxxxxxxx X/X X/X X/X
2AM Defeasance X/X X/X X/X
0 Xxxxxxxxxx X/X X/X X/X
4 Yield Maintenance X/X X/X X/X
0 Xxxxxxxxxx X/X X/X X/X
6 Defeasance N/A N/A N/A
7 Defeasance N/A N/A N/A
8 Defeasance X/X X/X X/X
0 Xxxxxxxxxx X/X X/X X/X
10 Defeasance N/A N/A N/A
11 Defeasance N/A N/A N/A
12 Defeasance N/A N/A N/A
13 Defeasance N/A N/A N/A
14 Yield Maintenance X/X X/X X/X
00 Xxxxxxxxxx X/X X/X X/X
16 Defeasance N/A N/A N/A
17 Defeasance N/A N/A N/A
18 Defeasance N/A N/A N/A
19 Defeasance N/A N/A N/A
20 Yield Maintenance N/A N/A N/A
21 Yield Maintenance X/X X/X X/X
00 Xxxxxxxxxx X/X X/X X/X
23 Yield Maintenance X/X X/X X/X
00 Xxxxxxxxxx X/X X/X X/X
25 Defeasance N/A N/A N/A
26 Defeasance N/A N/A N/A
27 Yield Maintenance X/X X/X X/X
00 Xxxxxxxxxx X/X X/X X/X
29 Yield Maintenance X/X X/X X/X
00 Xxxxxxxxxx X/X X/X X/X
31 Yield Maintenance N/A N/A N/A
32 Yield Maintenance X/X X/X X/X
00 Xxxxxxxxxx X/X X/X X/X
34 Yield Maintenance X/X X/X X/X
00 Xxxxxxxxxx X/X X/X X/X
36 Defeasance N/A N/A N/A
37 Defeasance N/A N/A N/A
38 Defeasance N/A N/A N/A
39 Defeasance N/A N/A N/A
40 Defeasance N/A N/A N/A
41 Defeasance N/A N/A N/A
42 Defeasance N/A N/A N/A
43 Defeasance N/A N/A N/A
44 Defeasance N/A N/A N/A
45 Defeasance N/A N/A N/A
46 Defeasance N/A N/A N/A
47 Defeasance N/A N/A N/A
48 Defeasance N/A N/A N/A
49 Yield Maintenance N/A N/A N/A
50 Yield Maintenance/Defeasance X/X X/X X/X
00 Xxxxxxxxxx X/X X/X X/X
52 Defeasance N/A N/A N/A
53 Defeasance X/X X/X X/X
00 Xxxxxxxxxx X/X X/X X/X
55 Yield Maintenance/Defeasance X/X X/X X/X
00 Xxxxxxxxxx X/X X/X X/X
57 Defeasance N/A N/A N/A
58 Yield Maintenance/Defeasance X/X X/X X/X
00 Xxxxxxxxxx X/X X/X X/X
60 Defeasance N/A N/A N/A
61 Defeasance N/A N/A N/A
62 Defeasance N/A N/A N/A
63 Prepayment Fee X/X X/X X/X
00 Xxxxxxxxxx X/X X/X X/X
65 Defeasance N/A N/A N/A
66 Defeasance N/A N/A N/A
67 Yield Maintenance X/X X/X X/X
00 Xxxxxxxxxx X/X X/X X/X
69 Defeasance N/A N/A N/A
70 Defeasance N/A N/A N/A
71 Defeasance N/A N/A N/A
72 Defeasance N/A N/A N/A
73 Defeasance N/A N/A N/A
74 Defeasance N/A N/A N/A
75 Yield Maintenance X/X X/X X/X
00 Xxxxxxxxxx X/X X/X X/X
77 Yield Maintenance X/X X/X X/X
00 Xxxxxxxxxx X/X X/X X/X
79 Defeasance N/A N/A N/A
80 Defeasance N/A N/A N/A
81 Defeasance N/A N/A N/A
82 Defeasance N/A N/A N/A
83 Defeasance N/A N/A N/A
84 Defeasance N/A N/A N/A
85 Defeasance N/A N/A N/A
86 Defeasance N/A N/A N/A
87 Defeasance N/A N/A N/A
88 Defeasance N/A N/A N/A
89 Defeasance N/A N/A N/A
90 Defeasance N/A N/A N/A
91 Defeasance N/A N/A N/A
92 Defeasance X/X X/X X/X
00 Xxxxxxxxxx X/X X/X X/X
94 Yield Maintenance/Defeasance X/X X/X X/X
00 Xxxxxxxxxx X/X X/X X/X
96 Defeasance N/A N/A N/A
97 Defeasance N/A N/A N/A
98 Defeasance X/X X/X X/X
00 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxx Xxxxxxxxxxx/Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxx Xxxxxxxxxxx/Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxx Xxxxxxxxxxx X/X X/X X/X
000 Xxxxx Xxxxxxxxxxx X/X X/X X/X
000 Xxxxx Xxxxxxxxxxx/Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxx Xxxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxx Xxxxxxxxxxx/Xxxxxxxxxx X/X X/X X/X
119 Yield Maintenance X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
127 Yield Maintenance X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxx Xxxxxxxxxxx/Xxxxxxxxxx X/X X/X X/X
000 Xxxxx Xxxxxxxxxxx/Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxx Xxxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
000 Xxxxxxxxxx X/X X/X X/X
143 Defeasance N/A N/A N/A
MORTGAGE LOAN NUMBER CROSS COLLATERALIZED MORTGAGE LOAN GROUP LENDING ENTITY
-----------------------------------------------------------------------------------------------
1 No 70412004 Xxxxxx Brothers Ali, Inc.
2 N/A XXXXXX BROTHERS HOLDINGS, INC.
2A Yes (LB-1) 70608013 Xxxxxx Brothers Holdings, Inc.
2B Yes (LB-1) 70608024 Xxxxxx Brothers Holdings, Inc.
2C Yes (LB-1) 70608025 Xxxxxx Brothers Holdings, Inc.
2D Yes (LB-1) 70608007 Xxxxxx Brothers Holdings, Inc.
2E Yes (LB-1) 70608026 Xxxxxx Brothers Holdings, Inc.
2F Yes (LB-1) 70608020 Xxxxxx Brothers Holdings, Inc.
2G Yes (LB-1) 70608027 Xxxxxx Brothers Holdings, Inc.
2H Yes (LB-1) 70608009 Xxxxxx Brothers Holdings, Inc.
2I Yes (LB-1) 70608028 Xxxxxx Brothers Holdings, Inc.
2J Yes (LB-1) 70607018 Xxxxxx Brothers Holdings, Inc.
2K Yes (LB-1) 70608016 Xxxxxx Brothers Holdings, Inc.
2L Yes (LB-1) 70608004 Xxxxxx Brothers Holdings, Inc.
2M Yes (LB-1) 70607016 Xxxxxx Brothers Holdings, Inc.
2N Yes (LB-1) 70607012 Xxxxxx Brothers Holdings, Inc.
2O Yes (LB-1) 70608005 Xxxxxx Brothers Holdings, Inc.
2P Yes (LB-1) 70607015 Xxxxxx Brothers Holdings, Inc.
2Q Yes (LB-1) 70608019 Xxxxxx Brothers Holdings, Inc.
2R Yes (LB-1) 70608001 Xxxxxx Brothers Holdings, Inc.
2S Yes (LB-1) 70607014 Xxxxxx Brothers Holdings, Inc.
2T Yes (LB-1) 70607010 Xxxxxx Brothers Holdings, Inc.
2U Yes (LB-1) 70608002 Xxxxxx Brothers Holdings, Inc.
2V Yes (LB-1) 70608015 Xxxxxx Brothers Holdings, Inc.
2W Yes (LB-1) 70607011 Xxxxxx Brothers Holdings, Inc.
2X Yes (LB-1) 70607013 Xxxxxx Brothers Holdings, Inc.
2Y Yes (LB-1) 70607025 Xxxxxx Brothers Holdings, Inc.
2Z Yes (LB-1) 70608022 Xxxxxx Brothers Holdings, Inc.
2AA Yes (LB-1) 70607021 Xxxxxx Brothers Holdings, Inc.
2AB Yes (LB-1) 70608018 Xxxxxx Brothers Holdings, Inc.
2AC Yes (LB-1) 70607024 Xxxxxx Brothers Holdings, Inc.
2AD Yes (LB-1) 70607020 Xxxxxx Brothers Holdings, Inc.
2AE Yes (LB-1) 70608006 Xxxxxx Brothers Holdings, Inc.
2AF Yes (LB-1) 70608017 Xxxxxx Brothers Holdings, Inc.
2AG Yes (LB-1) 70608014 Xxxxxx Brothers Holdings, Inc.
2AH Yes (LB-1) 70608023 Xxxxxx Brothers Holdings, Inc.
2AI Yes (LB-1) 70608008 Xxxxxx Brothers Holdings, Inc.
2AJ Yes (LB-1) 70607023 Xxxxxx Brothers Holdings, Inc.
2AK Yes (LB-1) 70608021 Xxxxxx Brothers Holdings, Inc.
2AL Yes (LB-1) 70607017 Xxxxxx Brothers Holdings, Inc.
2AM Yes (LB-1) 70607019 Xxxxxx Brothers Holdings, Inc.
3 No 2
4 No 1
5 No 70306012 Xxxxxx Brothers Ali, Inc.
6 No 70306006 Xxxxxx Brothers Holdings, Inc.
7 No 70507001 Xxxxxx Brothers Ali, Inc.
8 No 70306010 Xxxxxx Brothers Holdings, Inc.
9 Xx 0
00 Xx 0
00 Xx 70306011 Xxxxxx Brothers Holdings, Inc.
12 No 8
13 No 70503007 Xxxxxx Brothers Bank, FSB
14 No 70405001 Xxxxxx Brothers Holdings, Inc.
15 Xx 00
00 Xx 00
00 Xx 70304002 Xxxxxx Brothers Bank, FSB
18 Xx 00
00 Xx 00
00 Xx 70313003 Xxxxxx Brothers Holdings, Inc.
21 No 66
22 No 70417001 Xxxxxx Brothers Holdings, Inc.
23 No 70215006 Xxxxxx Brothers Bank, FSB
24 Xx 00
00 Xx 00
00 Xx 16
27 No 70605001 Xxxxxx Brothers Holdings, Inc.
28 Xx 00
00 Xx 00
00 Xx 60221002 Xxxxxx Brothers Bank, FSB
31 No 70215004 Xxxxxx Brothers Bank, FSB
32 No 70501008 Xxxxxx Brothers Bank, FSB
33 No 70323004 Xxxxxx Brothers Bank, FSB
34 No 70215008 Xxxxxx Brothers Bank, FSB
35 No 70215001 Xxxxxx Brothers Bank, FSB
36 No 60919006 Xxxxxx Brothers Bank, FSB
37 Xx 00
00 Xx 00
00 Xx 23
40 No 70418005 Xxxxxx Brothers Bank, FSB
41 No 61103003 Xxxxxx Brothers Bank, FSB
42 Xx 00
00 Xx 00
00 Xx 70402002 Xxxxxx Brothers Bank, FSB
45 No 61024007 Xxxxxx Brothers Bank, FSB
46 No 26
47 No 70307009 Xxxxxx Brothers Bank, FSB
48 No 70411011 Xxxxxx Brothers Bank, FSB
49 No 70508002 Xxxxxx Brothers Bank, FSB
50 No 69
51 No 27
52 Yes (LB-2) 70424011 Xxxxxx Brothers Bank, FSB
53 No 70307010 Xxxxxx Brothers Bank, FSB
54 No 70423008 Xxxxxx Brothers Bank, FSB
55 No 30
56 No 70307008 Xxxxxx Brothers Bank, FSB
57 Xx 00
00 Xx 00
00 Xx 70307006 Xxxxxx Brothers Bank, FSB
60 Xx 00
00 Xx 00
00 Xx 36
63 No 37
64 No 70424005 Xxxxxx Brothers Bank, FSB
65 No 70117006 Xxxxxx Brothers Bank, FSB
66 Xx 00
00 Xx 00
00 Xx 70307007 Xxxxxx Brothers Bank, FSB
69 No 60612007 Xxxxxx Brothers Bank, FSB
70 No 70507007 Xxxxxx Brothers Bank, FSB
71 Yes (LB-2) 70424010 Xxxxxx Brothers Bank, FSB
72 No 70209007 Xxxxxx Brothers Bank, FSB
73 No 42
74 No 70401003 Xxxxxx Brothers Bank, FSB
75 No 70426001 Xxxxxx Brothers Bank, FSB
76 No 60717010 Xxxxxx Brothers Bank, FSB
77 No 70524004 Xxxxxx Brothers Bank, FSB
78 No 45
79 No 70214001 Xxxxxx Brothers Bank, FSB
80 No 60419006 Xxxxxx Brothers Bank, FSB
81 No 70424004 Xxxxxx Brothers Bank, FSB
82 Xx 00
00 Xx 00
00 Xx 70404004 Xxxxxx Brothers Bank, FSB
85 No 61102001 Xxxxxx Brothers Holdings, Inc.
86 No 70522001 Xxxxxx Brothers Bank, FSB
87 No 70103003 Xxxxxx Brothers Bank, FSB
88 Xx 00
00 Xx 00
00 Xx 49
91 No 70506001 Xxxxxx Brothers Bank, FSB
92 No 70405002 Xxxxxx Brothers Bank, FSB
93 No 70220010 Xxxxxx Brothers Bank, FSB
94 Xx 00
00 Xx 00
00 Xx 50
97 No 70507008 Xxxxxx Brothers Bank, FSB
98 No 70129002 Xxxxxx Brothers Bank, FSB
99 No 60920003 Xxxxxx Brothers Bank, FSB
100 No 52
101 No 70424003 Xxxxxx Brothers Bank, FSB
102 No 70215015 Xxxxxx Brothers Bank, FSB
103 Yes (UBS-1) 63
104 No 70123007 Xxxxxx Brothers Bank, FSB
105 Xx 00
000 Xx 00
000 Xx 70226002 Xxxxxx Brothers Bank, FSB
108 No 70103004 Xxxxxx Brothers Bank, FSB
109 No 70103005 Xxxxxx Brothers Bank, FSB
110 No 70117001 Xxxxxx Brothers Bank, FSB
111 No 70413001 Xxxxxx Brothers Bank, FSB
112 No 72
113 No 70124004 Xxxxxx Brothers Bank, FSB
114 No 70326004 Xxxxxx Brothers Bank, FSB
115 No 60309010 Xxxxxx Brothers Bank, FSB
116 No 70209006 Xxxxxx Brothers Bank, FSB
117 No 70131010 Xxxxxx Brothers Bank, FSB
118 Yes (UBS-1) 64
119 No 70329002 Xxxxxx Brothers Bank, FSB
120 No 54
121 No 70530003 Xxxxxx Brothers Bank, FSB
122 No 70323010 Xxxxxx Brothers Bank, FSB
123 No 70328034 Xxxxxx Brothers Bank, FSB
124 Xx 00
000 Xx 00
000 Xx 57
127 No 70330009 Xxxxxx Brothers Bank, FSB
128 No 70125006 Xxxxxx Brothers Bank, FSB
129 No 73
130 Yes (UBS-1) 65
131 No 58
132 No 70402009 Xxxxxx Brothers Bank, FSB
133 No 60
134 No 70326003 Xxxxxx Brothers Bank, FSB
135 No 70214004 Xxxxxx Brothers Bank, FSB
136 No 59
137 No 70207002 Xxxxxx Brothers Bank, FSB
138 No 70323006 Xxxxxx Brothers Bank, FSB
139 No 61220015 Xxxxxx Brothers Bank, FSB
140 No 68
141 No 70424002 Xxxxxx Brothers Bank, FSB
142 No 70323007 Xxxxxx Brothers Bank, FSB
143 No 61212004 Xxxxxx Brothers Bank, FSB
SCHEDULE II
REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR
(i) Trust Mortgage Loan Schedule. The information pertaining
to such Mortgage Loan set forth in the Trust Mortgage Loan Schedule was
true and correct in all material respects as of its Cut-off Date.
(ii) Legal Compliance. If such Mortgage Loan was originated by
a Xxxxxx Mortgage Loan Seller or another Affiliate of the Depositor, then,
as of the date of its origination, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of federal,
state or local law relating to the origination of such Mortgage Loan; and,
if such Mortgage Loan was not originated by the Xxxxxx Mortgage Loan
Seller or another Affiliate of the Depositor, then such mortgage loan is
listed on Schedule III-(ii) and, to the Depositor's actual knowledge,
after having performed the type of due diligence customarily performed in
the origination of comparable mortgage loans by the Xxxxxx Mortgage Loan
Seller, as of the date of its origination, such Mortgage Loan complied in
all material respects with, or was exempt from, all requirements of
federal, state or local law relating to the origination of such Mortgage
Loan.
(iii) Ownership of Xxxxxx Trust Mortgage Loan. The Depositor
owns such Mortgage Loan, has good title thereto, has full right, power and
authority to sell, assign and transfer such Mortgage Loan and is
transferring such Mortgage Loan free and clear of any and all liens,
pledges, charges or security interests of any nature encumbering such
Mortgage Loan, exclusive of the servicing rights pertaining thereto; no
provision of the Mortgage Note, Mortgage(s) or other loan documents
relating to such Mortgage Loan prohibits or restricts the Depositor's
right to assign or transfer such Mortgage Loan to the Trustee (except in
the case of a Loan Combination, which may, pursuant to the related
Co-Lender Agreement, require notice to one or more rating agencies or
another lender which, if required, has already been provided); no
governmental or regulatory approval or consent is required for the sale of
such Mortgage Loan by the Depositor; and the Depositor has validly
conveyed to the Trustee a legal and beneficial interest in and to such
Mortgage Loan free and clear of any lien, claim or encumbrance of any
nature.
(iv) No Holdback. The proceeds of such Mortgage Loan have been
fully disbursed (except in those cases where the full amount of such
Mortgage Loan has been disbursed but a portion thereof is being held in
escrow or reserve accounts to be released pending the satisfaction of
certain conditions relating to leasing, repairs or other matters with
respect to the related Mortgaged Property) and there is no requirement for
future advances thereunder.
(v) Loan Document Status. Each of the related Mortgage Note,
Mortgage(s), Assignment(s) of Leases, if separate from the related
Mortgage, and other agreements executed in favor of the lender in
connection therewith is the legal, valid and binding obligation of the
maker thereof (subject to the non-recourse provisions therein and any
state anti-deficiency legislation), enforceable in accordance with its
terms, except that (A) such enforcement may be limited by (1) bankruptcy,
insolvency, receivership, reorganization, liquidation, voidable
preference, fraudulent conveyance and transfer, moratorium and/or other
similar laws affecting the enforcement of creditors' rights generally, and
(2) general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and (B) certain provisions in the subject
agreement or instrument may be further limited or rendered unenforceable
by applicable law, but subject to the limitations set forth in the
foregoing clause (A), such limitations will not render that subject
agreement or instrument invalid as a whole or substantially interfere with
the mortgagee's realization of the principal benefits and/or security
provided by the subject agreement or instrument. Such Mortgage Loan is
non-recourse to the Mortgagor or any other Person except to the extent
provided in certain nonrecourse carveouts and/or in any applicable
guarantees. A natural person as individual guarantor has agreed, in
effect, to be liable for all liabilities, costs, losses, damages or
expenses suffered or incurred by the mortgagee under such Mortgage Loan by
reason of or in connection with and to the extent of (A) any material
intentional fraud or material intentional misrepresentation by the related
mortgagor; (B) any breach on the part of the related mortgagor of any
environmental representations warranties and covenants contained in the
related Mortgage Loan documents; (C) misapplication or misappropriation of
rents (received after an event of default), insurance proceeds or
condemnation awards; and (D) the filing of a voluntary bankruptcy or
insolvency proceeding by the related mortgagor; provided that, instead of
any breach described in clause (B) of this paragraph, such entity (or
individual) may instead be liable for liabilities, costs, losses, damages,
expenses and claims resulting from a breach of the obligations and
indemnities of the related mortgagor under the related Mortgage Loan
documents relating to hazardous or toxic substances, radon or compliance
with environmental laws.
(vi) No Right of Rescission. Subject to the limitations and
exceptions as to enforceability set forth in paragraph (v) above, there is
no valid offset, defense, counterclaim or right of rescission, abatement
of amounts due under the Mortgage Note or diminution of amounts due under
the Mortgage Note with respect to any of the related Mortgage Note,
Mortgage(s) or other agreements executed in connection with such Mortgage
Loan and, as of the Closing Date, to the actual knowledge of the
Depositor, no such claim has been asserted.
(vii) Assignments. The assignment of the related Mortgage(s) and
Assignment(s) of Leases to the Trustee (or, in the case of an Outside
Serviced Trust Mortgage Loan, to the related Outside Trustee) constitutes
the legal, valid, binding and, subject to the limitations and exceptions
as to enforceability set forth in paragraph (v) above, enforceable
assignment of such documents (provided that the unenforceability of any
such assignment based on bankruptcy, insolvency, receivership,
reorganization, liquidation, moratorium and/or other similar laws
affecting the enforcement of creditors' rights generally or based on
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) shall be a breach of this
representation and warranty only upon the declaration by a court with
jurisdiction in the matter that such assignment is to be unenforceable on
such basis).
(viii) First Lien. Each related Mortgage is a valid and, subject
to the limitations and exceptions in paragraph (v) above, enforceable
first lien on the related Mortgaged Property including all improvements
thereon (other than any tenant owned improvements) and appurtenances and
rights related thereto, which Mortgaged Property is free and clear of all
encumbrances and liens having priority over or on a parity with the first
lien of such Mortgage, except for the following (collectively, the
"Permitted Encumbrances"): (A) the lien for real estate taxes, water
charges, sewer rents and assessments not yet due and payable; (B)
covenants, conditions and restrictions, rights of way, easements and other
matters that are of public record
or that are omitted as exceptions in the related lender's title insurance
policy (or, if not yet issued, omitted as exceptions in a fully binding
pro forma title policy or title policy commitment); (C) the rights of
tenants (as tenants only) under leases (including subleases) pertaining to
the related Mortgaged Property; (D) condominium declarations of record and
identified in the related lender's title insurance policy (or, if not yet
issued, identified in a pro forma title policy or title policy
commitment); and (E) if such Xxxxxx Trust Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another
Mortgage Loan contained in the same Cross-Collateralized Group; provided
that, in the case of a Xxxxxx Trust Mortgage Loan that is part of a Loan
Combination, such Mortgage also secures the other mortgage loan(s) in such
Loan Combination. With respect to such Xxxxxx Trust Mortgage Loan, such
Permitted Encumbrances do not, individually or in the aggregate,
materially and adversely interfere with the benefits of the security
intended to be provided by the related Mortgage, the current principal use
or operation of the related Mortgaged Property or the ability of the
related Mortgaged Property to generate sufficient cashflow to enable the
related Mortgagor to timely pay in full the principal and interest on the
related Mortgage Note (other than a Balloon Payment, which would require a
refinancing). If the related Mortgaged Property is operated as a nursing
facility or a hospitality property, the related Mortgage, together with
any security agreement, chattel mortgage or similar agreement and UCC
financing statement, if any, establishes and creates a first priority,
perfected security interest (subject only to any prior purchase money
security interest, revolving credit lines and any personal property
leases), to the extent such security interest can be perfected by the
recordation of a Mortgage or the filing of a UCC financing statement, in
all material personal property owned by the Mortgagor that is used in, and
is reasonably necessary to, the operation of the related Mortgaged
Property as presently operated by the Mortgagor, and that is located on
the related Mortgaged Property, which personal property includes, in the
case of Mortgaged Properties operated by the related Mortgagor as a
nursing facility or hospitality property, all furniture, fixtures,
equipment and other personal property located at the subject Mortgaged
Property that are owned by the related Mortgagor and reasonably necessary
or material to the operation of the subject Mortgaged Property. In the
case of any Xxxxxx Trust Mortgage Loan secured by a hotel, the related
loan documents contain such provisions as are necessary and UCC financing
statements have been filed as necessary, in each case, to perfect a valid
first priority security interest, to the extent such security interest can
be perfected by the inclusion of such provisions and the filing of a UCC
financing statement, in the Mortgagor's right to receive related hotel
room revenues with respect to such Mortgaged Property.
(ix) Taxes and Assessments. All taxes, governmental
assessments, water charges, sewer rents or similar governmental charges
which, in all such cases, were directly related to the related Mortgaged
Property and could constitute liens on the related Mortgaged Property
prior to the lien of the related Mortgage, together with all ground rents,
that prior to the related Cut-off Date became due and payable in respect
of, and materially affect, any related Mortgaged Property have been paid
or are escrowed for or are not yet delinquent, and the Depositor knows of
no unpaid tax, assessment, ground rent, water charges or sewer rent,
which, in all such cases, were directly related to the subject Mortgaged
Property and could constitute liens on the subject Mortgaged Property
prior to the lien of the related Mortgage that prior to the Closing Date
became due and delinquent in respect of any related Mortgaged Property, or
in any such case an escrow of funds in an amount sufficient to cover such
payments has been established.
(x) No Material Damage. As of the date of origination of such
Mortgage Loan and, to the actual knowledge of the Depositor, as of the
Closing Date, there was no pending proceeding for the total or partial
condemnation of any related Mortgaged Property that materially affects the
value thereof and such Mortgaged Property is free of material damage.
Except for certain amounts not greater than amounts which would be
considered prudent by an institutional commercial mortgage lender with
respect to a similar mortgage loan and which are set forth in the related
Mortgage or other loan documents relating to such Mortgage Loan, (and
subject to any rights of the lessor under any related Ground Lease) the
related Mortgage Loan documents provide that any condemnation awards will
be applied (or, at the discretion of the mortgagee, will be applied) to
either the repair or restoration of all or part of the related Mortgaged
Property or the reduction of the outstanding principal balance of such
Mortgage Loan.
(xi) Title Insurance. Each related Mortgaged Property is
covered by an ALTA (or its equivalent) lender's title insurance policy
issued by a nationally recognized title insurance company, insuring that
each related Mortgage is a valid first lien on such Mortgaged Property in
the original principal amount of such Mortgage Loan (or, if such Mortgage
Loan is part of a Loan Combination, in the original principal amount of
such Loan Combination) after all advances of principal, subject only to
Permitted Encumbrances and, in the case of a Xxxxxx Trust Mortgage Loan
that is part of a Loan Combination, further subject to the fact that the
related Mortgage also secures the related Non-Trust Mortgage Loan(s) (or,
if such policy has not yet been issued, such insurance may be evidenced by
a binding commitment or binding pro forma marked as binding and signed
(either thereon or on a related escrow letter attached thereto) by the
title insurer or its authorized agent) from a title insurer qualified
and/or licensed in the applicable jurisdiction, as required, to issue such
policy; such title insurance is in full force and effect, all premiums
have been paid, is freely assignable and will inure to the benefit of the
Trustee (or, in the case of an Outside Serviced Trust Mortgage Loan, the
benefit of the related Outside Trustee) as sole insured as mortgagee of
record, or any such commitment or binding pro forma is a legal, valid and
binding obligation of such insurer; no claims have been made by the
Depositor, the applicable Xxxxxx Mortgage Loan Seller or any prior holder
of such Mortgage Loan (other than a prior holder unaffiliated with the
Depositor or the applicable Xxxxxx Mortgage Loan Seller from whom the
Depositor or the applicable Xxxxxx Mortgage Loan Seller has taken by
assignment) under such title insurance; and neither the Depositor nor the
applicable Xxxxxx Mortgage Loan Seller (or any of its Affiliates) has
done, by act or omission, anything that would materially impair the
coverage of any such title insurance policy; such policy or commitment or
binding pro forma contains no exclusion for (or alternatively it insures
over such exclusion, unless such coverage is unavailable in the relevant
jurisdiction) (A) access to a public road, (B) that there is no material
encroachment by any improvements on the related Mortgaged Property either
to or from any adjoining property or across any easements on the related
Mortgaged Property, and (C) that the land shown on the survey materially
conforms to the legal description of the related Mortgaged Property.
(xii) Property Insurance. As of the date of its origination and,
to the Depositor's actual knowledge, as of the Cut-off Date, all insurance
required under each related Mortgage (except where an investment grade
tenant, or one or more tenants which in the aggregate do not represent
more than 10% of the net operating income with respect to the entire
related Mortgaged Property, is or are permitted to insure or self-insure
under a lease) was in full force and effect with respect to each related
Mortgaged Property; such insurance included
(A) fire and extended perils insurance included within the classification
"All Risk of Physical Loss" or the equivalent thereof in an amount
(subject to a customary deductible) at least equal to the lesser of (1)
100% of the full insurable value of the improvements located on such
Mortgaged Property and (2) the outstanding principal balance of such
Mortgage Loan or the portion thereof allocable to such Mortgaged Property)
and, if applicable, the related hazard insurance policies or certificates
of insurance contain appropriate endorsements to avoid application of
co-insurance, (B) business interruption or rental loss insurance for a
period of not less than 12 months, (C) comprehensive general liability
insurance in an amount not less than $1 million per occurrence, (D)
workers' compensation insurance (if the related Mortgagor has employees
and if required by applicable law), and (E) if (1) such Mortgage Loan is
secured by a Mortgaged Property located in the State of California or in
"seismic zone" 3 or 4 and (2) a seismic assessment as described below
revealed a maximum probable or bounded loss in excess of 20% of the amount
of the estimated replacement cost of the improvements on such Mortgaged
Property, seismic insurance; it is an event of default under such Mortgage
Loan if the above-described insurance coverage is not maintained by the
related Mortgagor (except where an investment grade tenant, or one or more
tenants which in the aggregate do not represent more than 10% of the net
operating income with respect to the entire related Mortgaged Property, is
or are permitted to insure or self-insure under a lease) and the related
loan documents provide (in either a general cost and expense recovery
provision or a specific provision with respect to recovery of insurance
costs and expenses) that any reasonable out-of-pocket costs and expenses
incurred by the mortgagee in connection with such default in obtaining
such insurance coverage may be recovered from the related Mortgagor; the
related Evidence of Property Insurance and certificate of liability
insurance (which may be in the form of an Xxxxx 27 or an Xxxxx 25,
respectively), or forms substantially similar thereto, provide that the
related insurance policy may not be terminated or reduced without at least
10 days prior notice to the mortgagee and (other than those limited to
liability protection) name the mortgagee and its successors as loss payee;
no notice of termination or cancellation with respect to any such
insurance policy has been received by the Depositor or the applicable
Xxxxxx Mortgage Loan Seller or, to the actual knowledge of the Depositor,
by any prior mortgagee under such Mortgage Loan (other than, with respect
to a related Mortgaged Property located in New York and Florida, a prior
mortgagee unaffiliated with the Depositor or the applicable Xxxxxx
Mortgage Loan Seller from whom the Depositor or the applicable Xxxxxx
Mortgage Loan Seller has taken the related Mortgage Note and Mortgage by
assignment and has amended and restated such Mortgage Note and Mortgage);
all premiums under any such insurance policy have been paid through the
Cut-off Date; the insurance policies specified in clauses (A), (B) and (C)
above are required to be maintained with insurance companies having
"financial strength" or "claims paying ability" ratings of at least
"A:VII" from A.M. Best Company or at least "BBB+" (or equivalent) from a
nationally recognized statistical rating agency (or, with respect to
certain blanket insurance policies, such other ratings as are in
compliance with S&P's applicable criteria for rating the Certificates);
and, except for certain amounts not greater than amounts which would be
considered prudent by an institutional commercial mortgage lender with
respect to a similar mortgage loan and which are set forth in the related
Mortgage or other loan documents relating to such Mortgage Loan, and
subject to the related exception schedules, the related Mortgage Loan
documents provide that any property insurance proceeds will be applied
(or, at the discretion of the mortgagee, will be applied) either to the
repair or restoration of all or part of the related Mortgaged Property or
the reduction of the outstanding principal balance of such Mortgage Loan;
provided that the related Mortgage Loan documents may entitle the related
Mortgagor to any portion of such proceeds remaining after completion of
the repair or restoration of the related Mortgaged Property or payment of
amounts
due under such Mortgage Loan. Notwithstanding anything to the contrary in
this paragraph (xii), with regard to insurance for acts of terrorism, any
such insurance and the amount thereof may be limited by the commercial
availability of such coverage, whether the mortgagee may reasonably
require such insurance, certain limitations with respect to the cost
thereof and/or whether such hazards are at the time commonly insured
against for property similar to the related Mortgaged Property. If the
related Mortgaged Property is located in the State of California or in
"seismic zone" 3 or 4, then: (A) either a seismic assessment was conducted
with respect to the related Mortgaged Property in connection with the
origination of such Mortgage Loan or earthquake insurance was obtained;
and (B) the probable maximum loss for the related Mortgaged Property as
reflected in such seismic assessment, if any, was determined based upon a
return period of not less than 475 years, an exposure period of 50 years
and a 10% probability of incidence. Schedule III-(xii) attached hereto is
true and correct in all material respects.
(xiii) No Material Defaults. Other than payments due but not yet
30 days or more delinquent, there is (A) no material default, breach,
violation or event of acceleration existing under the related Mortgage
Note, the related Mortgage or other loan documents relating to such
Mortgage Loan, and (B), to the knowledge of the Depositor as of the
Closing Date, no event which, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute a material
default, breach, violation or event of acceleration under any of such
documents; provided, however, that this representation and warranty does
not cover any default, breach, violation or event of acceleration (A) that
specifically pertains to or arises out of the subject matter otherwise
covered by any other representation and warranty made by the Depositor in
this Schedule II or (B) with respect to which: (1) neither the Depositor
nor the applicable Xxxxxx Mortgage Loan Seller has any actual knowledge as
of the Closing Date; and (2) written notice of the discovery thereof is
not delivered to the Depositor by the Trustee or the Master Servicer on or
prior to the date occurring 12 months after the Closing Date. None of the
Depositor, the applicable Xxxxxx Mortgage Loan Seller or any prior holder
of such Mortgage Loan (other than, with respect to a related Mortgaged
Property located in New York and Florida, a prior holder unaffiliated with
the Depositor or the applicable Xxxxxx Mortgage Loan Seller from whom the
Depositor or the applicable Xxxxxx Mortgage Loan Seller has taken the
related Mortgage Note and Mortgage by assignment and has amended and
restated such Mortgage Note and Mortgage) has waived, in writing or with
knowledge, any material default, breach, violation or event of
acceleration under any of such documents. Under the terms of such Mortgage
Loan, no person or party other than the mortgagee or its servicing agent
may declare an event of default or accelerate the related indebtedness
under such Mortgage Loan.
(xiv) No Payment Delinquency. As of the Closing Date, such
Mortgage Loan is not, and in the prior 12 months (or since the date of
origination if such Mortgage Loan has been originated within the past 12
months), has not been, 30 days or more past due in respect of any Monthly
Payment.
(xv) Interest Accrual Basis. Such Mortgage Loan accrues
interest on an Actual/360 Basis, an Actual/Actual Basis or a 30/360 Basis;
and such Mortgage Loan accrues interest (payable monthly in arrears) at a
fixed rate of interest throughout the remaining term thereof (except if
such Mortgage Loan is an ARD Mortgage Loan, in which case the accrual rate
for interest will increase after its Anticipated Repayment Date, and
except in connection with the occurrence of a default and the accrual of
default interest).
(xvi) Subordinate Debt. Each related Mortgage or other loan
document relating to such Mortgage Loan does not provide for or permit,
without the prior written consent of the holder of the related Mortgage
Note, any related Mortgaged Property or any direct controlling interest in
the Mortgagor to secure any other promissory note or debt (other than
another Mortgage Loan in the Trust Fund and, if such Mortgage Loan is part
of a Loan Combination, the other mortgage loan(s) that are part of such
Loan Combination, as applicable).
(xvii) Qualified Mortgage. Such Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code.
Accordingly, either as of the date of origination or the Closing Date, the
fair market value of the real property securing such Mortgage Loan was not
less than 80% of the "adjusted issue price" (within the meaning of the
REMIC Provisions) of such Mortgage Loan. For purposes of the preceding
sentence, the fair market value of the real property securing such
Mortgage Loan was first reduced by the amount of any lien on such real
property that is senior to the lien that secures such Mortgage Loan, and
was further reduced by a proportionate amount of any lien that is on a
parity with the lien that secures such Mortgage Loan. No action that
occurs by operation of the terms of such Mortgage Loan would cause such
Mortgage Loan to cease to be a "qualified mortgage" and such Mortgage Loan
does not permit the release or substitution of collateral if such release
or substitution (A) would constitute a "significant modification" of such
Mortgage Loan within the meaning of Treasury regulations section
860G-2(b), (B) would cause such Mortgage Loan not to be a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (without
regard to clauses (A)(i) or (A)(ii) thereof) or (C) would cause a
"prohibited transaction" within the meaning of Section 860F(a)(2) of the
Code. The related Mortgaged Property, if acquired in connection with the
default or imminent default of such Mortgage Loan, would constitute
"foreclosure property" within the meaning of Section 860G(a)(8) of the
Code.
(xviii) Prepayment Consideration. Prepayment Premiums and Yield
Maintenance Charges payable with respect to such Mortgage Loan, if any,
constitute "customary prepayment penalties" within the meaning of Treasury
regulations section 1.860G-1(b)(2).
(xix) Environmental Conditions. One or more environmental site
assessments (or updates thereof) in each instance meeting American Society
of Testing and Materials requirements were performed by an environmental
consulting firm independent of the Depositor and the Depositor's
Affiliates with respect to each related Mortgaged Property during the
12-month period preceding the Cut-off Date, and the Depositor, having made
no independent inquiry other than to review the report(s) prepared in
connection with the assessment(s) and/or update(s) referenced herein, has
no knowledge of, and has not received actual notice of, any material and
adverse environmental condition or circumstance affecting such Mortgaged
Property that was not disclosed in such report(s); and none of the
environmental reports reveal any circumstances or conditions that are in
violation of any applicable environmental laws, or if such report does
reveal such circumstances, then (1) the same have been remediated in all
material respects, (2) sufficient funds have been escrowed or a letter of
credit, guaranty or other instrument has been delivered for purposes of
covering the estimated costs of such remediation, (3) the related
Mortgagor or other responsible party set forth on Schedule I (which
Mortgagor or other responsible party has been reasonably determined by the
Depositor or the applicable Xxxxxx Mortgage Loan Seller to have the
creditworthiness to do so (such determination by the Depositor or the
applicable Xxxxxx Mortgage Loan Seller to be based on review of (i) the
financial statements provided to the Depositor or the applicable Xxxxxx
Mortgage Loan Seller
by the Mortgagor or other responsible party, as applicable, and (ii) the
reasonable cost of remediation of the circumstances or conditions that are
in violation of the applicable environmental laws as set forth in the
applicable environmental report)) is currently taking remedial or other
appropriate action to address the environmental issue consistent with the
recommendations in such site assessment, (4) the cost of the environmental
issue relative to the value of such Mortgaged Property was de minimis, or
(5) environmental insurance has been obtained.
The Mortgagor with respect to such Mortgage Loan has represented,
warranted and covenanted generally to the effect that, to its knowledge,
except as set forth in the environmental reports described above, it has
not used, caused or permitted to exist, and will not use, cause or permit
to exist, on the related Mortgaged Property, any Hazardous Materials in
any manner which violates applicable federal, state or local laws
governing the use, storage, handling, production or disposal of Hazardous
Materials at the related Mortgaged Property and (A) the related Mortgagor
and a natural person have agreed to indemnify the mortgagee under such
Mortgage Loan, and its successors and assigns, against any losses,
liabilities, damages, penalties, fines, claims and reasonable out of
pocket expenses (excluding lost profits, consequential damages and
diminution of value of the related Mortgaged Property, provided that no
Xxxxxx Trust Mortgage Loan with an original principal balance equal to or
greater than $15,000,000 contains an exclusion for "diminution of value"
of the related Mortgaged Property) paid, suffered or incurred by such
mortgagee resulting from such Mortgagor's material violation of any
environmental law or a material breach of the environmental
representations and warranties or covenants given by the related Mortgagor
in connection with such Mortgage Loan or (B) environmental insurance has
been obtained. If such Mortgage Loan is a Mortgage Loan as to which
neither a natural person has provided the indemnity set forth above nor
environmental insurance has been obtained, such Mortgage Loan is set forth
on Schedule III-(xix).
The Depositor has not taken any action with respect to such Mortgage
Loan or the related Mortgaged Property that could subject the Depositor or
its successors and assigns in respect of such Mortgage Loan to liability
under CERCLA or any other applicable federal, state or local environmental
law. The related Mortgage or other loan documents require the related
Mortgagor to comply with all applicable federal, state and local
environmental laws and regulations.
(xx) Realization Against Real Estate Collateral. The related
Mortgage Note, Mortgage(s), Assignment(s) of Leases and other loan
documents securing such Mortgage Loan, if any, contain customary and,
subject to the limitations and exceptions as to enforceability in
paragraph (v) above, enforceable provisions such as to render the rights
and remedies of the holder thereof adequate for the practical realization
against the related Mortgaged Property or Properties of the principal
benefits of the security intended to be provided thereby, including
realization by judicial or, if applicable, non-judicial foreclosure.
(xxi) Bankruptcy. The related Mortgagor is not a debtor in any
bankruptcy, reorganization, insolvency or comparable proceeding; provided,
however, that this representation and warranty does not cover any such
bankruptcy, reorganization, insolvency or comparable proceeding with
respect to which: (1) neither the Depositor nor the applicable Xxxxxx
Mortgage Loan Seller has any actual knowledge and (2) written notice of
the discovery thereof is not
delivered to the Depositor by the Trustee or the Master Servicer on or
prior to the date occurring twelve months after the Closing Date.
(xxii) Loan Security. Such Mortgage Loan is secured by a Mortgage
on a fee simple interest and/or a leasehold estate in a commercial
property or multifamily property, including the related Mortgagor's
interest in the improvements on the related Mortgaged Property.
(xxiii) Amortization. Such Mortgage Loan does not provide for
negative amortization unless such Mortgage Loan is an ARD Mortgage Loan,
in which case it may occur only after the Anticipated Repayment Date.
(xxiv) Whole Loan. Such Mortgage Loan is a whole loan, contains
no equity participation by the lender or shared appreciation feature and
does not provide for any contingent interest in the form of participation
in the cash flow of the related Mortgaged Property.
(xxv) Due-on-Encumbrance. Each Xxxxxx Trust Mortgage Loan
contains provisions for the acceleration of the payment of the unpaid
principal balance of such Mortgage Loan if, without the prior written
consent of the mortgagee or Rating Agency confirmation that an Adverse
Rating Event with respect to any Class of Certificates would not occur,
any related Mortgaged Property or any direct controlling interest in the
Mortgagor is directly encumbered in connection with subordinate financing;
and, except in the case of a Xxxxxx Trust Mortgage Loan that is part of a
Loan Combination (for which such consent has been granted with respect to
the other mortgage loan(s) in such Loan Combination), and except for the
respective Xxxxxx Trust Mortgage Loans secured by the Mortgaged Properties
listed on Schedule III-(xxv) (for which such consent has been granted with
respect to mezzanine debt), no such consent has been granted by the
applicable Xxxxxx Mortgage Loan Seller. To the Depositor's knowledge, no
related Mortgaged Property is encumbered in connection with subordinate
financing (except that each Mortgaged Property securing a Xxxxxx Trust
Mortgage Loan that is part of a Loan Combination also secures the other
mortgage loan(s) in such Loan Combination); however, if the related
Mortgaged Property is listed on Schedule III-(xxv), then certain direct
controlling equity holders in the related Mortgagor are known to the
Depositor to have incurred debt secured by their ownership interest in the
related Mortgagor.
(xxvi) Due-on-Sale. Except with respect to transfers of certain
non-controlling and/or minority interests in the related Mortgagor as
specified in the related Mortgage or with respect to transfers of
interests in the related Mortgagor between immediate family members and
with respect to transfers by devise, by descent or by operation of law or
otherwise upon the death or incapacity of a person having an interest in
the related Mortgagor, each Xxxxxx Trust Mortgage Loan contains either (A)
provisions for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if any related Mortgaged Property or
interest therein is directly or indirectly transferred or sold without the
prior written consent of the mortgagee or rating agency confirmation, or
(B) provisions for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if any related Mortgaged Property or
interest therein is directly or indirectly transferred or sold without the
related Mortgagor having satisfied certain conditions specified in the
related Mortgage with respect to permitted transfers (which conditions are
consistent with the practices of prudent commercial mortgage lenders (as
defined below)). The Mortgage (under either specific or general expense
provisions) requires the Mortgagor to
pay all reasonable fees and expenses associated with securing the consent
or approval of the holder of the Mortgage for all actions involving the
transfer of interest in such Mortgagor requiring such consent or approval
under the Mortgage.
(xxvii) Mortgagor Concentration. Except in the case of the Trust
Mortgage Loans listed on Schedule III (xxvii), such Mortgage Loan,
together with any other Xxxxxx Trust Mortgage Loan made to the same
Mortgagor or to an Affiliate of such Mortgagor, does not represent more
than 5% of the Initial Pool Balance.
(xxviii) Waivers; Modifications. Except as set forth in a written
instrument included in the related Mortgage File, the (A) material terms
of the related Mortgage Note, the related Mortgage(s) and any related loan
agreement and/or lock-box agreement have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded by the
mortgagee in any manner, and (B) no portion of a related Mortgaged
Property has been released from the lien of the related Mortgage, in the
case of (A) and/or (B), to an extent or in a manner that in any such event
materially interferes with the security intended to be provided by such
document or instrument. Schedule III (xxviii) identifies each Mortgage
Loan (if any) as to which, since the latest date any related due diligence
materials were delivered to Five Mile Capital Partners LLC or its
Affiliate (or its designee), there has been (in writing) given, made or
consented to a material alteration, material modification or assumption of
the terms of the related Mortgage Note, Mortgage(s) or any related loan
agreement and/or lock-box agreement and/or as to which, since such date,
there has been (in writing) a waiver other than as related to routine
operational matters or minor covenants.
(xxix) Inspection. Each related Mortgaged Property was inspected
by or on behalf of the related originator during the six-month period
prior to the related origination date.
(xxx) Property Release. The terms of the related Mortgage Note,
Mortgage(s) or other loan document securing such Mortgage Loan do not
provide for the release from the lien of such Mortgage of any material
portion of the related Mortgaged Property that is necessary to the
operation of such Mortgaged Property or was given material value in the
underwriting of such Mortgage Loan at origination, without (A) payment in
full of such Mortgage Loan, (B) delivery of Defeasance Collateral in the
form of "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act of 1940, as amended (the "Investment Company
Act"), (C) payment of a release price equal to at least 125% of the amount
of such Mortgage Loan allocated to the related Mortgaged Property subject
to the release or (D) with respect to mortgage loans listed on Schedule
III-(xxx), the satisfaction of certain underwriting and legal requirements
which the applicable Xxxxxx Mortgage Loan Seller required in the
origination of comparable mortgage loans.
(xxxi) Qualifications; Licensing; Zoning. The related Mortgagor
has covenanted in the related Mortgage Loan documents to maintain the
related Mortgaged Property in compliance in all material respects with, to
the extent it is not grandfathered under, all applicable laws, zoning
ordinances, rules, covenants and restrictions affecting the construction,
occupancy, use and operation of such Mortgaged Property, and the related
originator performed the type of due diligence in connection with the
origination of such Mortgage Loan customarily performed by prudent
commercial mortgage lenders (as defined below) with respect to the
foregoing matters; the Depositor has received no notice of any material
violation of, to the extent
is has not been grandfathered under, any applicable laws, zoning
ordinances, rules, covenants or restrictions affecting the construction,
occupancy, use or operation of the related Mortgaged Property (unless
affirmatively covered by the title insurance referred to in paragraph (xi)
above (or an endorsement thereto)); to the Depositor's knowledge (based on
surveys, opinions, letters from municipalities and/or title insurance
obtained in connection with the origination of such Mortgage Loan), no
improvement that was included for the purpose of determining the appraised
value of the related Mortgaged Property at the time of origination of such
Mortgage Loan lay outside the boundaries and building restriction lines of
such property, in effect at the time of origination of such Mortgage Loan,
to an extent which would have a material adverse affect on the related
Mortgagor's use and operation of such Mortgaged Property (unless
grandfathered with respect thereto or affirmatively covered by the title
insurance referred to in paragraph (xi) above (or an endorsement
thereto)), and no improvements on adjoining properties encroached upon
such Mortgaged Property to any material extent. For purposes of this
paragraph, a Mortgaged Property shall be deemed "grandfathered" with
respect to any laws, zoning ordinances, rules, covenants or restrictions
affecting the construction, occupancy, use or operation of the related
Mortgaged Property, if and to the extent that any of the construction,
occupancy, use and operation of such Mortgaged Property: (A) conformed in
all material respects with such laws, zoning ordinances, rules, covenants
and restrictions affecting the improvements on the related Mortgaged
Property at the time the improvements on the related Mortgaged Property
were initially constructed or put into operation; and/or (B) was not
addressed or otherwise prohibited by any such laws, zoning ordinances,
rules, covenants and restrictions affecting the related Mortgaged Property
at the time the improvements on the related Mortgaged Property were
initially constructed or put into operation.
(xxxii) Property Financial Statements. The related Mortgagor has
covenanted in the related Mortgage Loan documents to deliver to the
mortgagee annual operating statements, rent rolls and related information
of each related Mortgaged Property and annual financial statements. If
such Mortgage Loan had an original principal balance greater than $15
million, the related Mortgagor has covenanted to provide such operating
statements, rent rolls and related information on a quarterly basis. If
such Mortgage Loan has an original principal balance equal to or greater
than $20 million, the related Mortgagor, if it obtains an audited
financial statement, is required to provide a copy thereof to the holder
of such Mortgage Loan at the related mortgagee's request.
(xxxiii) Single Purpose Entity. If such Mortgage Loan has a Cut-off
Date Balance in excess of $25 million, then the related Mortgagor is
obligated by its organizational documents and the related Mortgage Loan
documents to be a Single Purpose Entity for so long as such Mortgage Loan
is outstanding; and, if such Mortgage Loan has a Cut-off Date Balance
greater than $5 million and less than $25 million, then the related
Mortgagor is obligated by its organizational documents and/or the related
Mortgage Loan documents to own the related Mortgaged Property and no other
material assets, except such as are incidental to the ownership of such
Mortgaged Property for so long as such Mortgage Loan is outstanding. For
purposes of this representation, "Single Purpose Entity" means an entity
whose organizational documents or the related Mortgage Loan documents
provide substantially to the effect that such entity: (A) is formed or
organized solely for the purpose of owning and operating one or more of
the Mortgaged Properties securing such Mortgage Loan, (B) may not engage
in any business unrelated to the related Mortgaged Property or Mortgaged
Properties, (C) does not have any material assets other than those related
to its interest in and operation of such Mortgaged
Property or Mortgaged Properties and (D) may not incur indebtedness other
than as permitted by the related Mortgage or other Mortgage Loan
documents. If such Mortgage Loan has an initial principal balance of $25
million and above and the related Mortgagor is a single member limited
liability company, such Mortgagor's organizational documents provide that
such Mortgagor shall not dissolve or liquidate upon the bankruptcy,
dissolution, liquidation or death of its sole member and is organized in a
jurisdiction that provides for such continued existence and there was
obtained opinion of counsel confirming such continued existence. If such
Mortgage Loan has, or is part of a group of Xxxxxx Trust Mortgage Loans
with affiliated Mortgagors having, a Cut-off Date Balance equal to or
greater than 2% of the Initial Pool Balance, or if such Mortgage Loan has
an original principal balance equal to or greater than $25 million, there
was obtained an opinion of counsel regarding non-consolidation of such
Mortgagor.
(xxxiv) Advancing of Funds. No advance of funds has been made,
directly or indirectly, by the originator or the Depositor to the related
Mortgagor other than pursuant to the related Mortgage Note; and, to the
actual knowledge of the Depositor, no funds have been received from any
Person other than such Mortgagor for or on account of payments due on the
related Mortgage Note.
(xxxv) Legal Proceedings. To the Depositor's actual knowledge,
there are no pending actions, suits or proceedings by or before any court
or governmental authority against or affecting the related Mortgagor or
any related Mortgaged Property that, if determined adversely to such
Mortgagor or Mortgaged Property, would materially and adversely affect the
value of such Mortgaged Property or the ability of such Mortgagor to pay
principal, interest or any other amounts due under such Mortgage Loan.
(xxxvi) Originator Duly Authorized. To the extent required under
applicable law as of the Closing Date, the originator of such Mortgage
Loan was qualified and authorized to do business in each jurisdiction in
which a related Mortgaged Property is located at all times when it held
such Mortgage Loan to the extent necessary to ensure the enforceability of
such Mortgage Loan.
(xxxvii) Trustee under Deed of Trust. If the related Mortgage is a
deed of trust, a trustee, duly qualified under applicable law to serve as
such, is properly designated and serving under such Mortgage, and no fees
and expenses are payable to such trustee except in connection with a
trustee sale of the related Mortgaged Property following a default or in
connection with the release of liens securing such Mortgage Loan and any
such fees and expenses are the obligation of the Mortgagor under the terms
of the Mortgage.
(xxxviii) Cross-Collateralization. The related Mortgaged Property is
not, to the Depositor's knowledge, collateral or security for any mortgage
loan that is not in the Trust Fund and, if such Mortgage Loan is
cross-collateralized, it is cross-collateralized only with other Mortgage
Loans in the Trust Fund, except that a Xxxxxx Trust Mortgage Loan that is
part of a Loan Combination is secured by one or more Mortgaged Properties
that also secure the related Non-Trust Mortgage Loan(s). The security
interest/lien on each material item of collateral for such Mortgage Loan
has been assigned to the Trustee (or, in the case of an Outside Serviced
Trust Mortgage Loan, to the related Outside Trustee).
(xxxix) Flood Hazard Insurance. None of the improvements on any
related Mortgaged Property are located in a flood hazard area as defined
by the Federal Insurance
Administration or, if any portion of the improvements on the related
Mortgaged Property are in an area identified in the Federal Register by
the Federal Emergency Management Agency as having special flood hazards
falling within zones A or V in the national flood insurance program, the
Mortgagor has obtained and is required to maintain flood insurance.
(xl) Engineering Assessments. One or more engineering
assessments or updates of a previously conducted engineering assessment
were performed by an Independent engineering consulting firm with respect
to each related Mortgaged Property during the 12-month period preceding
the Cut-off Date, and the Depositor having made no independent inquiry
other than to review the report(s) prepared in connection with such
assessment(s) and or update(s), does not have any knowledge of any
material and adverse engineering condition or circumstance affecting such
Mortgaged Property that was not disclosed in such report(s); and, to the
extent such assessments revealed deficiencies, deferred maintenance or
similar conditions, either (A) the estimated cost has been escrowed or a
letter of credit has been provided, (B) repairs have been made or (C) the
scope of the deferred maintenance relative to the value of such Mortgaged
Property was de minimis.
(xli) Escrows. All escrow deposits and payments relating to such
Mortgage Loan are under control of the Depositor or the servicer of such
Mortgage Loan and all amounts required as of the date hereof under the
related Mortgage Loan documents to be deposited by the related Mortgagor
have been deposited. The Depositor is transferring to the Trustee (or, in
the case of an Outside Serviced Trust Mortgage Loan, to the related
Outside Trustee) all of its right, title and interest in and to such
amounts.
(xlii) Licenses, Permits and Authorizations. The related
Mortgagor has represented in the related Mortgage Loan documents that, and
to the actual knowledge of the Depositor, as of the date of origination of
such Mortgage Loan, all material licenses, permits and authorizations then
required for use of the related Mortgaged Property by such Mortgagor, the
related lessee, franchisor or operator have been issued and were valid and
in full force and effect.
(xliii) Servicing and Collection Practices. The servicing and
collection practices used by the Depositor and the applicable Xxxxxx
Mortgage Loan Seller or, to the Depositor's knowledge, any other prior
holder of the related Mortgage Note with respect to such Mortgage Loan
have been in all respects legal and have met customary industry standards.
(xliv) Fee Simple. Unless such Mortgage Loan is covered by the
representation and warranty in the immediately following paragraph (xlv),
such Mortgage Loan is secured in whole or in material part by a fee simple
interest.
(xlv) Leasehold Interest Only. If such Mortgage Loan is secured
in whole or in material part by the interest of the related Mortgagor as a
lessee under a Ground Lease but not by the related fee interest, then:
(A) such Ground Lease or a memorandum thereof has been or will be
duly recorded and such Ground Lease permits the interest of
the lessee thereunder to be encumbered by the related Mortgage
or, if consent of the lessor thereunder is required, it has
been obtained prior to the Closing Date;
(B) upon the foreclosure of such Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such Ground
Lease is assignable to the Trustee (or, in the case of an
Outside Serviced Trust Mortgage Loan, to the related Outside
Trustee) without the consent of the lessor thereunder (or, if
any such consent is required, it has been obtained prior to
the Closing Date) and, in the event that it is so assigned, is
further assignable by the Trustee (or, in the case of an
Outside Serviced Trust Mortgage Loan, by the related Outside
Trustee) and its successors without a need to obtain the
consent of such lessor (or, if any such consent is required,
it has been obtained prior to the Closing Date or may not be
unreasonably withheld);
(C) such Ground Lease may not be amended or modified without the
prior written consent of the mortgagee under such Mortgage
Loan and any such action without such consent is not binding
on such mortgagee, its successors or assigns;
(D) unless otherwise set forth in such Ground Lease, such Ground
Lease does not permit any increase in the amount of rent
payable by the ground lessee thereunder during the term of
such Mortgage Loan;
(E) such Ground Lease was in full force and effect as of the date
of origination of the related Mortgage Loan and, at the
Closing Date, such Ground Lease is in full force and effect;
to the actual knowledge of the Depositor, except for payments
due but not yet 30 days or more delinquent, (1) there is no
material default under such Ground Lease, and (2) there is no
event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a
material default under such Ground Lease;
(F) such Ground Lease, or an estoppel or consent letter received
by the mortgagee under such Mortgage Loan from the lessor,
requires the lessor thereunder to give notice of any default
by the lessee to such mortgagee; and such Ground Lease, or an
estoppel or consent letter received by the mortgagee under
such Mortgage Loan from the lessor, further provides either
(1) that no notice of termination given under such Ground
Lease is effective against such mortgagee unless a copy has
been delivered to the mortgagee in the manner described in
such Ground Lease, estoppel or consent letter or (2) that upon
any termination of such Ground Lease the lessor will enter
into a new lease with such mortgagee upon such mortgagee's
request;
(G) based upon the related policy of title insurance, the ground
lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with,
the related Mortgage, other than the related ground lessor's
related fee interest and any Permitted Encumbrances;
(H) the mortgagee under such Mortgage Loan is permitted a
reasonable opportunity to cure any curable default under such
Ground Lease (not less
than the time provided to the related lessee under such Ground
Lease to cure such default) before the lessor thereunder may
terminate or cancel such Ground Lease;
(I) such Ground Lease has a currently effective term (including
any options exercisable by the holder of the related Mortgage)
that extends not less than 20 years beyond the Stated Maturity
Date of the related Mortgage Loan;
(J) under the terms of such Ground Lease, any estoppel or consent
letter received by the mortgagee under such Mortgage Loan from
the lessor and the related Mortgage Loan documents, taken
together, any related insurance proceeds, other than de
minimis amounts for minor casualties, with respect to the
leasehold interest, or condemnation proceeds will be applied
either to the repair or restoration of all or part of the
related Mortgaged Property, with the mortgagee or a trustee
appointed by it having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in
such cases where a provision entitling another party to hold
and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or to
the payment of the outstanding principal balance of the
Mortgage Loan, together with any accrued interest thereon;
(K) such Ground Lease does not impose any restrictions on use or
subletting which would be viewed as commercially unreasonable
by a prudent commercial mortgage lender;
(L) upon the request of the mortgagee under such Mortgage Loan,
the ground lessor under such Ground Lease is required to enter
into a new lease upon termination of the Ground Lease for any
reason prior to the expiration of the term thereof, including
as a result of the rejection of the Ground Lease in a
bankruptcy of the related Mortgagor unless the mortgagee under
such Mortgage Loan fails to cure a default of the lessee under
such Ground Lease following notice thereof from the lessor;
and
(M) the terms of the related Ground Lease have not been waived,
modified, altered, satisfied, impaired, canceled, subordinated
or rescinded in any manner which materially interferes with
the security intended to be provided by such Mortgage, except
as set forth in an instrument or document contained in the
related Mortgage File.
(xlvi) Fee Simple and Leasehold Interest. If such Mortgage Loan
is secured by the interest of the related Mortgagor under a Ground Lease
and by the related fee interest, then (A) such fee interest is subject,
and subordinated of record, to the related Mortgage, (B) the related
Mortgage does not by its terms provide that it will be subordinated to the
lien of any other mortgage or other lien upon such fee interest, and (C)
upon occurrence of a default under the terms of the related Mortgage by
the related Mortgagor, the mortgagee under such Mortgage Loan has the
right (subject to the limitations and exceptions set forth in paragraph
(v) above) to foreclose upon or otherwise exercise its rights with respect
to such fee interest.
(xlvii) Tax Lot; Utilities. Each related Mortgaged Property
constitutes one or more complete separate tax lots (or the related
Mortgagor has covenanted to obtain separate tax lots and an escrow of
funds in an amount sufficient to pay taxes resulting from a breach thereof
has been established) or is subject to an endorsement under the related
title insurance policy; and each related Mortgaged Property is served by a
public or other acceptable water system, a public sewer (or,
alternatively, a septic) system, and other customary utility facilities.
(xlviii) Defeasance. If such Trust Mortgage Loan is a Defeasance
Mortgage Loan, the related Mortgage Loan documents require the related
Mortgagor to pay all reasonable costs associated with the defeasance
thereof, and either: (A) require the prior written consent of, and
compliance with the conditions set by, the holder of such Trust Mortgage
Loan for defeasance or (B) require that (1) defeasance may not occur prior
to the second anniversary of the Closing Date, (2) the Defeasance
Collateral must be government securities within the meaning of Treasury
regulations section 1.860G-2(a)(8)(i) and must be sufficient to make all
scheduled payments under the related Mortgage Note when due (assuming for
each ARD Mortgage Loan that it matures on its Anticipated Repayment Date
or on the date when any open prepayment period set forth in the related
Mortgage Loan documents commences) or, in the case of a partial defeasance
that effects the release of a material portion of the related Mortgaged
Property, to make all scheduled payments under the related Mortgage Note
on that part of such Mortgage Loan equal to at least 110% of the allocated
loan amount of the portion of the Mortgaged Property being released, (3)
an independent accounting firm (which may be the Mortgagor's independent
accounting firm) certify that the Defeasance Collateral is sufficient to
make such payments, (4) such Mortgage Loan be assumed by a successor
entity designated by the holder of such Mortgage Loan (or by the Mortgagor
with the approval of such lender), and (5) counsel provide an opinion
letter to the effect that the Trustee (or, in the case of an Outside
Serviced Trust Mortgage Loan, the related Outside Trustee) has a perfected
security interest in such Defeasance Collateral prior to any other claim
or interest.
(xlix) Primary Servicing Rights. Except with respect to the
Outside Servicers, no Person has been granted or conveyed the right to
primary service such Mortgage Loan or receive any consideration in
connection therewith except (A) as contemplated in this Agreement with
respect to primary servicers that are to be sub-servicers of the Master
Servicer, (B) as has been conveyed to the Master Servicer, in its capacity
as a primary servicer, or (C) as has been terminated.
(l) Mechanics' and Materialmen's Liens. As of origination and,
to the Depositor's actual knowledge, as of the Closing Date, (A) the
related Mortgaged Property is free and clear of any and all mechanics' and
materialmen's liens that are not bonded, insured against or escrowed for,
and (B) no rights are outstanding that under law could give rise to any
such lien that would be prior or equal to the lien of the related Mortgage
(unless affirmatively covered by the title insurance referred to in
paragraph (xi) above (or an endorsement thereto)). The Depositor has not
received actual notice with respect to such Mortgage Loan that any
mechanics' and materialmen's liens have encumbered such Mortgaged Property
since origination that have not been released, bonded, insured against or
escrowed for.
(li) Due Date. Subject to any business day convention imposed
by the related loan documents, the Due Date for such Mortgage Loan is
scheduled to be the first day, the seventh day, the tenth day or the
eleventh day of each month.
(lii) Assignment of Leases. Subject only to Permitted
Encumbrances, the related Assignment of Leases set forth in or separate
from the related Mortgage and delivered in connection with such Mortgage
Loan establishes and creates a valid and, subject only to the exceptions
and limitations in paragraph (v) above, enforceable first priority lien
and first priority security interest in the related Mortgagor's right to
receive payments due under any and all leases, subleases, licenses or
other agreements pursuant to which any Person is entitled to occupy, use
or possess all or any portion of the related Mortgaged Property subject to
the related Mortgage, except that a license may have been granted to the
related Mortgagor to exercise certain rights and perform certain
obligations of the lessor under the relevant lease or leases; and each
assignor thereunder has the full right to assign the same.
(liii) Mortgagor Formation or Incorporation. To the Depositor's
knowledge, the related Mortgagor is a Person formed or incorporated in a
jurisdiction within the United States.
(liv) No Ownership Interest in Mortgagor. The Depositor has no
ownership interest in the related Mortgaged Property or the related
Mortgagor other than as the holder of such Mortgage Loan being sold and
assigned, and neither the Depositor nor any affiliate of the Depositor has
any obligation to make any capital contributions to the related Mortgagor
under the Mortgage or any other related Mortgage Loan document.
(lv) No Undisclosed Common Ownership. To the Depositor's
knowledge, except where multiple properties secure an individual Xxxxxx
Trust Mortgage Loan and except for properties securing Xxxxxx Trust
Mortgage Loans that are cross-defaulted and cross-collateralized and
except as listed on Schedule III-(lv), no two properties securing Xxxxxx
Trust Mortgage Loans are directly or indirectly under common ownership.
(lvi) Loan Outstanding. Such Mortgage Loan has not been
satisfied in full, and except as expressly contemplated by the related
loan agreement or other documents contained in the related Mortgage File,
no material portion of the related Mortgaged Property has been released.
(lvii) Usury. Such Mortgage Loan complied with or was exempt from
all applicable usury laws in effect at its date of origination.
(lviii) ARD Mortgage Loan. If such Mortgage Loan is an ARD
Mortgage Loan, then:
(A) the related Anticipated Repayment Date is not less than five
years from the origination date for such Mortgage Loan;
(B) such Mortgage Loan provides that from the related Anticipated
Repayment Date through the maturity date for such Mortgage
Loan, all excess cash flow (net of normal monthly debt service
on such Mortgage Loan, monthly expenses reasonably related to
the operation of the related Mortgaged Property, amounts due
for reserves established under such Mortgage Loan, and
payments for any other expenses, including capital expenses,
related to such Mortgaged Property which are approved by
mortgagee) will be applied to repay principal due under such
Mortgage Loan;
(C) no later than the related Anticipated Repayment Date, the
related Mortgagor is required (if it has not previously done
so) to enter into a "lockbox agreement" whereby all revenue
from the related Mortgaged Property will be deposited directly
into a designated account controlled by the mortgagee under
such Mortgage Loan; and
(D) the interest rate of such Mortgage Loan will increase by at
least two (2) percentage points in connection with the passage
of its Anticipated Repayment Date.
(lix) Appraisal. An appraisal of the related Mortgaged Property
was conducted in connection with the origination of such Mortgage Loan;
and such appraisal satisfied either (A) the requirements of the "Uniform
Standards of Professional Appraisal Practice" as adopted by the Appraisal
Standards Board of the Appraisal Foundation, or (B) the guidelines in
Title XI of the Financial Institutions Reform, Recovery and Enforcement
Act of 1989, in either case as in effect on the date such Mortgage Loan
was originated.
For purposes of the foregoing representations and warranties in this
Schedule II, the phrases "to the knowledge of the Depositor" or "to the
Depositor's knowledge" shall mean, except where otherwise expressly set forth
above, the actual state of knowledge of the Depositor and the applicable Xxxxxx
Mortgage Loan Seller at the time of the origination of the particular Xxxxxx
Trust Mortgage Loan regarding the matters referred to, in each case after having
conducted such inquiry and due diligence into such matters as is customarily
performed by the Depositor or the applicable Xxxxxx Mortgage Loan Seller in
connection with such matters with respect to the origination by the applicable
Xxxxxx Mortgage Loan Seller of multifamily or commercial (as applicable)
mortgage loans intended for securitization, and the phrases "to the actual
knowledge of the Depositor" or "to the Depositor's actual knowledge" shall mean,
except where otherwise expressly set forth above, the actual state of the
Depositor's and the applicable Xxxxxx Mortgage Loan Seller's knowledge, at the
time of the origination of the particular Xxxxxx Trust Mortgage Loan regarding
the matters referred to, in each case without any express or implied obligation
to make any inquiry or conduct any due diligence.
For purposes of the foregoing representations and warranties, the
phrases "would be considered prudent by an institutional commercial mortgage
lender" or "consistent with the practices of prudent commercial mortgage
lenders" or "customarily performed by prudent commercial mortgage lenders" or
"would not be viewed as commercially unreasonable by a prudent commercial
mortgage lender" and/or other references to "prudent commercial mortgage
lender(s)" shall, in each case, mean the subject action, inaction,
consideration, determination, or lending practice would be reasonably consistent
with the practices or procedures commonly followed (at the time the subject
action, inaction, consideration, determination, or lending practice occurred) by
commercial mortgage lenders originating fixed-rate mortgage loans for
securitization similar to the Trust Mortgage Loans, which practices or
procedures, in each case, would be commonly applicable at such time taking into
account the facts, circumstances and characteristics of the subject Xxxxxx Trust
Mortgage Loan.
SCHEDULE III
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR
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REPRESENTATION FROM SCHEDULE II PROPERTY AND EXCEPTION
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(i) Mortgage Loan Schedule
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(ii) Legal Compliance
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(iii) Ownership of Mortgage Loan
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(iv) No Holdback
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(v) Loan Document Status 00 Xxxxxxxxxxxx Xxxxxx, 000 Xxxx Xxxxxx, 000 Xxxxx Xxxxxx,
0000 Xxxxxxxxx, Xxxxxxx Place Shopping Center, Belvedere
Plaza, Greenhouse on Xxxxxxx Bridge, Greensboro Park,
Hickory Grove, Highland Parc, Innkeepers Portfolio,
XxXxxxxxxx Towers, NorthPointe, One Fair Oaks Plaza, One
Sansome Street, Paradise Vista Apartments, PECO Portfolio,
Pompano Center, Portsmouth Station Shopping Center, South
Plaza, Southwood Village, Spring Valley Town Center, Texas
SLC Portfolio and Tower Square Retail. There is no natural
person as non-recourse guarantor or environmental
indemnitor.
000 Xxxxx Xxxx Xxxxx, Xxxxxx Xxxxxxxxxx, Xxxxxxxxx Purchase
Center and South Road Square. There is no natural person as
environmental indemnitor.
NorthPointe, Our Town Shopping Center, Shoppes of Moyock,
Xxxxx Xxx Xxxxx, Xxxxx Xxxxx and Southwood Village. The
non-recourse guaranty provides that the non-recourse
guarantor shall have no liability under the non-recourse
guaranty except to the extent such guaranteed recourse
obligations of the Mortgagor result from the act or omission
of the non-recourse guarantor or any other person controlled
by the non-recourse guarantor (which shall include Mortgagor
so long as the non-recourse guarantor either has control of
the Mortgagor or has relinquished control of the Mortgagor
in a manner which violates the terms of the loan documents).
Xxxxxxx Place Shopping Center and Belvedere Plaza. The
non-recourse guaranty provides that the liability of the
non-recourse guarantor is limited to an amount equal to the
principal balance of the loan, together with interest and
other sums payable with respect to the loan and collection
costs, including, but not limited to all sums advanced
pursuant to the Mortgage and other loan documents to protect
and preserve the Mortgaged Property. There is a net worth
requirement for the non-recourse guarantor.
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REPRESENTATION FROM SCHEDULE II PROPERTY AND EXCEPTION
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(vi) No Right of Rescission
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(vii) Assignments
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(viii) First Lien PECO Portfolio (1) With respect to the Mortgaged Property
known as Palmetto Crossroads, pursuant to a recorded
declaration, Sea Pines Plantation Company has a right of
first offer to purchase such Mortgaged Property, which right
may apply to a foreclosure or deed in lieu thereof; (2) With
respect to the Mortgaged Properties known as Xxxxxx Xxxx and
Westdale Plaza, K-Mart, a tenant of the related Mortgaged
Property, has a right of first offer to purchase such
Mortgaged Property, which right may apply to a foreclosure
or deed in lieu thereof, (3) With respect to the Mortgaged
Property known as Delavan Plaza, Jondex Corp. d/b/a Pick N'
Save, a tenant of the Mortgaged Property, has a right of
first refusal to purchase an out parcel portion of the
Mortgaged Property, which right may apply to a foreclosure
or deed in lieu thereof, (4) With respect to the Mortgaged
Property known as Kensington Place, Bi-Lo, L.P. I ("Bi-Lo"),
a tenant of the Mortgaged Property, has a right to purchase
the Mortgaged Property at fair market value pursuant to the
terms of its lease, but only in the event of a casualty
occurring in the last two (2) years of the lease term, and
provided the casualty causes damage to the extent of fifty
percent (50%) or more of the replacement cost of the demised
premises or the Mortgaged Property, and Bi-Lo elects not to
terminate the lease and Mortgagor elects not to rebuild the
Mortgaged Property; which right is not subordinate to the
Mortgage, (5) With respect to the Mortgaged Property known
as Tops Plaza - Xxxxxxxx Xxxxxxx, Mortgagor obtained only
legal title with respect to a 6 acre tract of unimproved
land comprising a portion of such Mortgaged Property
("Unimproved Parcel"), which Unimproved Parcel is used as a
retention pond area for such Mortgaged Property. Equitable
title to the Unimproved Parcel was expressly reserved by the
seller in the purchase and sale agreement pursuant to which
Mortgagor acquired the Mortgaged Property. Mortgagor is
required to reconvey legal title to the prior owner of the
Unimproved Parcel at such time as a subdivision of land,
delineating the Unimproved Parcel as a separate parcel from
the remainder of the Mortgaged Property, has been approved
by the applicable municipality. The Mortgaged Property is
benefited by a recorded declaration that creates easements
for use of such Unimproved Area as a retention pond along
with necessary drainage lines, (6) with respect to the
Mortgaged property known xx Xxxxxxxx Square Mall, (i) Home
Depot, a tenant of the Mortgaged property, has a right of
first refusal to purchase the portion of the Mortgaged
Property demised under its lease, which right does not apply
to a foreclosure or deed in lieu thereof of the Mortgagee
encumbering the Mortgaged Property as a whole, nor does such
right apply to a sale of the Mortgaged Property as a whole
and (ii) Home Depot has an option to purchase a portion of
the Mortgaged Property, being the land on which Home Depot's
improvements are situated, on or about the period occurring
between February 1, 2013 and May 1, 2013, for a purchase
price equal to $4,500,000, which option is not subordinated
to the Mortgage, (7) With respect to the Mortgaged
Properties known as North Aiken Bi-Lo Center, Redbud Commons
and Bi-Lo Center-Ashville, Bi-Lo, a tenant of each such
Mortgaged Property, has a right of first refusal to purchase
such Mortgaged Property, which right may apply to a
foreclosure or
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REPRESENTATION FROM SCHEDULE II PROPERTY AND EXCEPTION
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deed in lieu thereof and (8) With respect to the Mortgaged
Property known as University Plaza-Amherst, the prime Ground
Lease provides that the lessee under the prime Ground Lease
is required to subordinate its leasehold estate to fee
mortgages encumbering the Mortgaged Property granted by the
ground lessor, provided the principal amount of such fee
mortgages do not exceed $3,600,000 and further provided that
the lessee under the prime Ground Lease receives a written
non-disturbance agreement from the holder of such fee
mortgages in form reasonably acceptable to such lessee. As
of the Closing Date, a non-disturbance agreement has not
been delivered by the holder of the existing fee mortgage
encumbering the Mortgaged Property.
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REPRESENTATION FROM SCHEDULE II PROPERTY AND EXCEPTION
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Belvedere Plaza. McDonald's, a tenant of an out parcel
portion of the Mortgaged Property, has an option to purchase
its demised premises for an amount equal to $450,000, which
option is subordinate to the Mortgage.
Champion Forest Self Storage. Pursuant to a recorded
reciprocal easement, if Mortgagor converts the Mortgaged
Property (currently used as a self storage facility) for use
as a convenience store, for the sale of gasoline products or
for operation as an unattended car wash, Mortgagor must give
the adjacent property owner a right of first refusal to
either (1) purchase or lease the Mortgaged Property or any
portion thereof, or (2) lease a portion of the Mortgaged
Property on such terms as the Mortgagor would lease to a
third party bona fide purchaser or tenant. Such right is not
subordinate to the Mortgage.
Hickory Grove. Xxxx'x Home Centers, Inc., a tenant of the
Mortgaged Property, has a right of first refusal to purchase
the premises demised under its lease, which right shall be
subordinate to the mortgage lender in the event of a
foreclosure or deed-in-lieu thereof.
Greenhouse on Xxxxxxx Bridge. The Mortgaged Property is
subject to a Land Use Restriction Agreement which requires
that 20% of the units must be occupied by low to moderate
income tenants, whose incomes are no greater than 80% of the
median gross income, as determined by HUD.
Park Place Apartments. The Mortgage (but not the Assignment
of Leases and Rents) is subordinate to (i) the Regulatory
Agreement and Declaration of Restrictive Covenants between
the Redevelopment Agency of the City of Corona (the
"Agency") and the Mortgagor, (ii) the Operating and
Maintenance Agreement between the Agency and the Mortgagor,
and (iii) the Affordable Housing Agreement between the
Agency and the Mortgagor, all of which have been amended to
provide that the mortgage lender shall receive notice and
opportunity to cure any default of Mortgagor under any of
the agreements.
The Ice House Office Building. James, Bates, Xxxx & Xxxxxx,
LLP, a tenant of the Mortgaged Property, has a right of
first refusal to purchase the premises demised under its
lease, which right is subordinated to the Mortgage and shall
automatically terminate in the event of a foreclosure.
000 Xxxxxxxx Xxxxxxx. Money Mailer, the sole tenant of the
Mortgaged Property, has a right of first refusal to purchase
the Mortgaged Property, which right shall not apply to a
foreclosure or deed in lieu thereof, but shall continue in
existence following such foreclosure or deed in lieu.
Walgreens & Schnucks Anchored Shopping Center. Bond Drug
Company d/b/a Walgreen's, a tenant at the Mortgaged
Property, has a right of first refusal to purchase the
Mortgaged Property, which right shall not apply to a
foreclosure or deed-in-lieu thereof.
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REPRESENTATION FROM SCHEDULE II PROPERTY AND EXCEPTION
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3M Bentonville Office/Warehouse. 3M ESE OMNI Preventative
Care, Inc., the sole tenant of the Mortgaged Property, has a
right of first refusal to purchase the Mortgaged Property,
which right shall not apply to a foreclosure or deed in lieu
thereof, but shall continue in existence following such
foreclosure or deed in lieu.
Waxahachie Towne Center. Xxxx'x Home Centers, Inc., a tenant
of the Mortgaged Property, has a right of first offer to
purchase the Mortgaged Property, which right may apply in
connection with a foreclosure or deed in lieu thereof.
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(ix) Taxes and Assessments
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(x) No Material Damage PECO Portfolio. With respect to the Mortgaged Properties
known as Indian Hills and Habersham Village, there are
public road widening projects in the vicinity of such
Mortgaged Properties that may affect such Mortgaged
Properties.
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(xi) Title Insurance See Section (viii) titled First Lien.
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(xii) Property Insurance With respect to substantially all of the Xxxxxx Trust
Mortgage Loans, the related Mortgages require that any
"financial strength" or "claims paying ability rating from
A.M. Best to be at least "A-/VIII"; provided the foregoing
shall not apply to 000 Xxxx Xxxxxx, 000 Xxxxx Xxxxxx, One
Fair Oaks Plaza, One Sansome Street, Greensboro Park,
Innkeepers Portfolio, XxXxxxxxxx Towers, and Texas SLC
Portfolio (however, see exceptions below for 000 Xxxx
Xxxxxx, One Sansome Street, Greensboro Park, XxXxxxxxxx
Towers, and Texas SLC Portfolio).
000 Xxxx Xxxxxx, One Sansome Street, One Fair Oaks Plaza,
and Greensboro Park. The Mortgage allows for Mortgagor to
carry insurance with insurers with a claims paying
ability/financial strength rating equal to "A:X" or better
by A.M. Best and "A/A2" (or its equivalent) or better by at
least two (2) Ratings Agencies (one of which will be S&P and
one of which will be Xxxxx'x), provided that if any
insurance required is provided by a syndicate of insurers,
the insurers with respect to such insurance shall be
acceptable if: (i) the first layer of coverage under such
insurance shall be provided by carriers with a minimum
financial strength rating from S&P of "A" or better; (ii)
sixty percent (60%) (seventy-five percent (75%) if there are
four or fewer members in the syndicate) of the aggregate
limits under such insurance policies must be provided by
carriers with a minimum financial strength rating from S&P
of "A" or better; and (iii) the financial strength rating
from S&P for each carrier in the syndicate shall have a
financial strength rating from S&P of at least "BBB."
Texas SLC Portfolio. The Mortgage allows for Mortgagor to
provide Mortgagee with a cut through endorsement by an
insurer maintaining at least an "A" rating by S&P in the
event that Mortgagor's insurers or reinsurance carriers fail
to provide or maintain an "A" rating by S&P. Notwithstanding
the foregoing, (A) with respect to (i) the insurance
coverage described in the Mortgage, so long as (a) Mortgagor
at all times maintains at least $100,000,000.00 of primary
insurance coverage
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REPRESENTATION FROM SCHEDULE II PROPERTY AND EXCEPTION
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and (2) at least 60% of such primary insurance coverage is
provided by carriers maintaining a claims paying ability
rating by S&P equal to or better than "A", then Factory
Mutual Insurance Company (or a subsidiary thereof) shall be
an acceptable insurer of the insurance coverage required for
only such time as the claims paying ability rating given by
S&P for Factory Mutual Insurance Company or such subsidiary
is maintained at "BBB" or better (and if such rating falls
below "BBB", Mortgagor shall replace Factory Mutual
Insurance Company or such subsidiary with an insurer that
maintains a rating equal to or better than "A" by S&P) and
(B) Mortgagee shall accept Essex Insurance Co. as an excess
property insurance carrier for the Mortgaged Property
provided that Essex Insurance Co. maintains a rating equal
to or better than A:XI by A.M. Best. In the event that Essex
Insurance Co. fails to maintain such a rating, Mortgagor
shall be required to replace Essex Insurance Co. with an
insurer maintaining a claims paying ability rating of equal
to or better than "A" by S&P.
XxXxxxxxxx Towers. The Mortgage allows for Mortgagor to
carry insurance with insurers with a claims paying
ability/financial strength rating equal to or better than
the Minimum Required Rating (as hereinafter defined) S&P and
Xxxxx'x, or if only one rating agency is rating the
securities in connection with the Mortgage, then only by
such rating agency. The insurance company or companies
issuing any insurance policy shall be deemed to have been
assigned the "Minimum Required Rating" by any rating agency
if, (A) in the case of an insurance policy issued by four
(4) or fewer insurance companies, (1) at least 75% of such
insurance companies have been assigned a claims paying
ability/financial strength rating equal to or better than
"A-" and (2) no such insurance companies which provide, in
the aggregate, coverage in an amount up to and including the
greater of (a) the outstanding principal amount of the loan
and (b) the full replacement cost of the Mortgaged Property,
have been assigned a claims paying ability/financial
strength rating below BBB- or its equivalent by applicable
rating agencies, (B) in the case of an insurance policy
issued by five (5) or more insurance companies, (1) at least
sixty percent (60%) of such insurance companies have been
assigned a claims paying ability/financial strength rating
equal to or better than "A-" (or its equivalent) by such
rating agency, and (2) no such insurance companies which
provide, in the aggregate, coverage in an amount up to and
including the greater of (a) the outstanding principal
amount of the mortgage loan and (b) the full replacement
cost of the Mortgaged Property, has been assigned a claims
paying ability/financial strength rating below BBB- or its
equivalent by such rating agency.
Sawgrass Landing. The condominium association is entitled to
receive casualty insurance proceeds with respect to any
policy it obtains and maintains and shall apply such
proceeds pursuant to the terms of the declaration of
condominium.
Xxxxxxx Place Shopping Center, Belvedere Plaza and PECO
Portfolio. The Mortgage permits the deductible for
earthquake, flood and windstorm coverage to be $100,000.
Louisiana Purchase Center. Mortgagor is only obligated to
obtain
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REPRESENTATION FROM SCHEDULE II PROPERTY AND EXCEPTION
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earthquake insurance to the extent it is available to
Mortgagor at commercially reasonable rates.
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(xiii) No Material Defaults
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(xiv) No Payment Delinquency
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(xv) INTEREST ACCRUAL BASIS Highland Parc. On July 11, 2010 and July 11, 2011, Mortgagor
may exercise its option to make interest only payments
pursuant to the terms of such Mortgage Loan documents.
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(xvi) Subordinate Debt With respect to substantially all of the Xxxxxx Trust
Mortgage Loans for which future mezzanine financing is
permitted subject to certain requirements including debt
service coverage ratio requirements, in the event that such
mezzanine financing bears interest at a floating rate, the
Seller may determine the debt service coverage ratio on the
basis of a market-based constant reasonably determined by
the mortgage lender.
Bear Canyon. There currently exists a junior bridge equity
loan secured by a pledge of the indirect equity interests in
the Mortgagor.
000 Xxxx Xxxxxx, Xxxxxxxxxx on Xxxxxxx Bridge, Greensboro
Park, Highland Parc, XxXxxxxxxx Towers, Xxx Xxxx Xxxx Xxxxx,
Xxx Xxxxxxx Xxxxxx. There is currently existing mezzanine
financing which is secured by a pledge of direct or indirect
ownership interest in the Mortgagor.
000 Xxxx Xxxxxx, Xxxxxxx Professional, Xxxxxxx Place
Shopping Center, Barons Apartments, Belvedere Plaza, Casa
Grande Palm Center, Dogwood Creek Apartments, Forest Ridge,
Greensboro Park, Innkeepers Portfolio, Xxxxxxx Hills
Shopping Center, Xxxxxx'x Crossing, NorthPointe, One Fair
Oaks Plaza, One Sansome Street, Our Town Square Shopping
Center, Paradise Vista Apartments, PECO Portfolio,
Portsmouth Station Shopping Center, Shoppes at Mayock, South
Elm Plaza, South Plaza, Southwood Village, Spring Valley
Town Center, Sunridge Apartments, Tower Square Retail and
Waxahachie Towne Center. The equity holders of the Mortgagor
have the right to obtain mezzanine financing, secured by
pledges of partnership or other equity interests in the
Mortgagor, provided that certain requirements, among others,
are satisfied: (a) achievement of a certain minimum debt
service coverage ratio and a certain combined maximum
loan-to-value ratio; (b) the mortgage lender receives
written rating agency approval; and (c) execution of a
subordination agreement by the mortgage lender and the
mezzanine lender in form and content acceptable to the
mortgage lender.
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(xvii) Qualified Mortgage
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(xviii) Prepayment Consideration
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(xix) Environmental Conditions See the entries in section "(v) Loan Document Status" for a
list of the exceptions related to the parties who are liable
on the environmental indemnities and certain other matters
related to the environmental
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REPRESENTATION FROM SCHEDULE II PROPERTY AND EXCEPTION
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indemnity.
With respect to substantially all of the Xxxxxx Trust
Mortgage Loans, environmental insurance is not required to
be carried.
Barclays Place Shopping Center, Belvedere Plaza and PECO
Portfolio. The environmental indemnity does not provide for,
and excludes, any liability for diminution of value of the
Mortgaged Property, provided that such exclusion shall not
include sums credited by any Indemnified Party to a
purchaser of all or any portion of the Mortgaged Property,
based on the Indemnified Party's reasonable estimate of
losses ("Losses") to be incurred by such purchaser in
connection with the remediation of identified hazardous
materials which could reasonably be suspected to exist on
the Mortgage Property at the time of such sale, and such
sums shall be included within the term "Losses."
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(xx) Realization Against Real Estate Collateral
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(xxi) Bankruptcy
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(xxii) Loan Security
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(xxiii) Amortization
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(xxiv) Whole Loan
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(xxv) Due-on-Encumbrance See Section (xvi) titled Subordinate Debt.
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(xxvi) Due-on-Sale With respect to substantially all of the Xxxxxx Trust
Mortgage Loans for which future or existing mezzanine
financing is permitted, including without limitation, loans
listed in sections "(xvi) Subordinate Debt" and "(xxv)
Due-on-Encumbrance," upon satisfaction of certain
conditions, including but not limited to, execution of a
subordination and intercreditor agreement between the
mezzanine lender and the mortgage lender, upon an event of
default of the mezzanine loan, the mezzanine lender may
accelerate and foreclose on its security interest in the
pledged equity interests of the Mortgagor without further
consent from the mortgage lender if the conditions set forth
in the related intercreditor agreement are satisfied.
Barclays Place Shopping Center and Belvedere Plaza. The
Mortgage permits the following transfers: (a) the sale or
transfer of equity interests in any Restricted Party
(defined below) so long as at all times following such a
transfer, a Qualified Equity Owner (defined below) shall be
the direct or indirect owner of at least 15% of the equity
interests and all of the controlling interests in Mortgagor,
provided that in no event shall this clause (a) permit any
sale or transfer as shall result in a breach of the terms
and conditions of the non-recourse guaranty and (b)
transfers of shares in PE Ltd. GP in connection with a
public offering (and/or any other transfer required in order
to effectuate such public offering), provided that upon such
transfer either Xxxxxxx Xxxxxx or Xxxxxxx X. Xxxxxxxx ("PE
Principals") shall occupy the position of chief executive
officer, chairman of the board of directors or
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REPRESENTATION FROM SCHEDULE II PROPERTY AND EXCEPTION
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president of such entity without any intention or plan for
their removal or resignation from such position. The term
"Qualified Equity Owner" shall mean any person or entity
that has a market capitalization net worth of not less than
Twenty-Five Million and No/100 Dollars and is controlled by
either or both of the PE Principals. The term "Restricted
Party" shall mean Mortgagor, PE Ltd., PE Ltd. GP, any
non-recourse guarantor, any environmental indemnitor or any
shareholder, partner, member or non-member manager, or any
direct or indirect legal or beneficial owner of Mortgagor,
PE Ltd., PE Ltd. GP or any non-recourse guarantor or any
environmental indemnitor or any shareholder, partner, member
or non-member manager of any of the foregoing.
PECO Portfolio. The Mortgage permits the following
transfers: (a) the sale or transfer of equity interests in
any Restricted Party (defined below) so long as at all times
following such a transfer, a Qualified Equity Owner (defined
below) shall be the direct or indirect owner of at least 8%
of the equity interests and all of the controlling interests
in Mortgagor, provided that in no event shall this clause
(a) permit any sale or transfer as shall result in a breach
of the terms and conditions of the non-recourse guaranty and
(b) transfers of shares in Xxxxxxxx Xxxxxx & Company, Inc.
("REC") or Philips Edison Shopping Center REIT, Inc. ("PEC
REIT") in connection with a public offering (and/or any
other transfer required in order to effectuate such public
offering), provided that upon such transfer either Xxxxxxx
Xxxxxx or Xxxxxxx X. Xxxxxxxx ("PE Principals") shall occupy
the position of chief executive officer, chairman of the
board of directors or president of such entity without any
intention or plan for their removal or resignation from such
position. The term "Qualified Equity Owner" shall mean any
person or entity that has a market capitalization net worth
of not less than Twenty-Five Million and No/100 Dollars and
is controlled by either or both of the PE Principals. The
term "Restricted Party" shall mean Mortgagor, PE Fund III,
PEC, PEC REIT, any non-recourse guarantor, any environmental
indemnitor or any shareholder, partner, member or non-member
manager, or any direct or indirect legal or beneficial owner
of Mortgagor, PE Fund III, PEC, PEC REIT or any non-recourse
guarantor or any environmental indemnitor or any
shareholder, partner, member or non-member manager of any of
the foregoing.
Greenhouse on Xxxxxxx Bridge and Highland Parc. The
following transfers of equity interests in Mortgagor are
permitted: (1) transfers of the membership interests in
Mortgagor, directly or indirectly, (including the issuance
of new direct or indirect interests, or the redemption of
direct or indirect interests, in Mortgagor) provided that
following any such transfer Mortgagor remains directly or
indirectly under the control of (i) General Xxxxxxx Xxxx
("Lyon") or his spouse or children, or (ii) a "Qualified
Transferee" (defined, generally, as an entity having minimum
assets and net worth) and/or an Approved Transferee (defined
as a Person whose control over Mortgagor (I) has been
approved by the mortgage lender and (II) has been confirmed
in writing by the Rating Agencies selected by the mortgage
lender to not result in a downgrade, qualification or
withdrawal of any rating then assigned to any class of
Securities); and (2) transfers by the members of the sole
member of the respective Mortgagor (the "Sole Member"), of
their membership interests among themselves or their
wholly-owned
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REPRESENTATION FROM SCHEDULE II PROPERTY AND EXCEPTION
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affiliates, one or more times, so long as (x) Lyon or
members of his immediate family or the Stoneridge Beneficial
Owners directly or indirectly owns at least 51% of the Sole
Member and (y) Mortgagor is directly or indirectly
controlled by Lyon or his spouse or children or the
Stoneridge Beneficial Owners.
00 Xxxxxxxxxxxx Xxxxxx. The Mortgage permits (a) transfers
of equity interests in Mortgagor between and among
Mortgagor's partners, members or shareholders, or (b)
transfers of equity interests in Mortgagor's partners,
members or shareholders between and among the partners,
members or shareholders thereof, without the consent of
mortgage lender.
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(xxvii) Mortgagor Concentration Barclays Place Shopping Center, Belvedere Plaza, PECO
Portfolio.
Greensboro Park, One Fair Oaks Plaza, One Sansome Street,
000 Xxxx Xxxxxx.
Innkeepers Portfolio.
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(xxviii) Waivers; Modifications Barclays Place Shopping Center, Bear Canyon, Belvedere
Plaza, Innkeepers Portfolio, XxXxxxxxxx Towers, PECO
Portfolio, One Sansome Street, 000 Xxxx Xxxxxx, Xxxxxxxxxx
Park, and One Fair Oaks Plaza.
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(xxix) Inspection
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(xxx) Property Release Innkeepers Portfolio. With respect to the Mortgaged Property
known as Residence Inn Cherry Hill, the Mortgagor may obtain
a release of an unimproved specified outparcel portion of
such Mortgaged Property upon payment of a release price
equal to $1,300,000, plus a yield maintenance prepayment
consideration, in accordance with the criteria set forth in
the loan documents, if such release (made in connection with
a prepayment) occurs prior to the second anniversary of the
Closing Date (if such release occurs on or after the second
anniversary of the Closing Date, such release may only occur
in connection with a partial defeasance).
PECO Portfolio. With respect to the Mortgaged Properties
known as Cedar Springs Crossings, Xxxxxxxxx Plaza, Lake
Olympia Square and Tops Plaza-Xxxxxxxx Xxxxxxx, the
Mortgagor may obtain a release of an unimproved specified
portion of the Mortgaged Property for no consideration in
accordance with the criteria set forth in the Mortgage.
Texas SLC Portfolio. Individual Mortgaged Properties may be
released from the Mortgage upon the payment of a release
price equal to 110% of the allocated loan amount for each
individual Mortgaged Property, plus, if the prepayment
occurs prior to the open prepayment period (which is the
last 13 months of the loan term), a yield maintenance
prepayment premium, in accordance with criteria set forth in
the Mortgage.
Xxxxxxx Hills Shopping Center, South Elm Plaza and
Thunderbird
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REPRESENTATION FROM SCHEDULE II PROPERTY AND EXCEPTION
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Square. The Mortgagor may obtain a release of an unimproved
specified portion of the Mortgaged Property for no
consideration in accordance with criteria set forth in the
Mortgage.
Waxahachie Towne Center. The Mortgagor may obtain a release
of improved specified parcels of the Mortgaged Property upon
payment of release prices allocated to such released parcels
set forth in the Mortgage, plus a yield maintenance
prepayment consideration, in accordance with the criteria
set forth in the Mortgage.
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(xxxi) Qualifications; Licensing; Zoning PECO Portfolio. (1) With respect to the Mortgaged Properties
known as Delavan Plaza, Xxxxxx Xxxx, Xxxxxxxxxx Commons and
Palmetto Crossroads, there exists numerous fire code
violations on the Mortgaged Properties and (2) with respect
to the Mortgaged Property known as Habersham Village, there
exists certain zoning code violations relating to signage at
the Mortgaged Property.
Sun Forest Apartments. A survey obtained in connection with
the closing of the Mortgage Loan indicates that there are
338 parking spaces at the Mortgaged Property, and the
municipal zoning requires 356 parking spaces to be provided
at the Mortgaged Property. Also, a letter from the City of
Lake Jackson, Texas indicates that the Mortgaged Property
exceeds municipal density requirements by approximately 58
apartment units.
Homewood Suites Memphis Southwind. There are open zoning
violations at the Mortgaged Property relating to landscaping
and a fence relocation.
Hampton Inn Memphis Southwind. There are open zoning
violations at the Mortgaged Property relating to landscaping
and a closed access drive.
South Road Square. Four (4) tenants at the Mortgaged
Property do not have their respective certificate of
occupancy.
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(xxxii) Property Financial Statements Certain of the Mortgaged Properties are hotels and therefore
rent rolls are not required.
Innkeepers Portfolio. On an annual basis, Mortgagor is
required to furnish a complete copy of the audited
consolidated annual financial statements of Grand Prix
Acquisition Trust, a Maryland real estate investment trust.
These financial statements will include a supplemental
consolidating schedule or note to the financial statements
presenting a combined income statement and balance sheet for
each of the Mortgaged Properties for each person comprising
Mortgagor and a combined income statement and balance sheet
for all other properties and non-property specific items
directly or indirectly owned by Grand Prix Acquisition
Trust. The auditing accountant is not required to issue an
opinion on the financial information included in the
combined income statement and balance sheet for any
individual Mortgaged Property or person comprising
Mortgagor. In addition to the foregoing, Mortgagor shall
also provide the following unaudited items on an
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REPRESENTATION FROM SCHEDULE II PROPERTY AND EXCEPTION
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annual basis: (i) a comparison of the budgeted income and
expenses and the actual income and expenses for the prior
fiscal year; (ii) a certificate executed by a responsible
officer or other appropriate officer of Grand Prix
Acquisition Trust, stating that each such consolidated
annual financial statement presents fairly the financial
condition and the results of operations of Grand Prix
Acquisition Trust and the Mortgagor and the Mortgaged
Property being reported upon and has been prepared in
accordance with GAAP; (iii) a list of tenants, if any,
occupying more than twenty (20%) percent of the total floor
area of the improvements at each Mortgaged Property; (iv) an
annual occupancy report for such year, including the average
daily room rate for such year for each Mortgaged Property;
and (v) a schedule certified by a responsible officer which
includes amounts representing annual net cash flow, net
operating income, gross income from operations and operating
expenses, in addition to a schedule reconciling net
operating income to net cash flow.
Barclays Place Shopping Center and Belvedere Plaza. So long
as 100% of the equity interests in Mortgagor are directly or
indirectly owned by PE Ltd., Mortgagor shall furnish to
mortgage lender an annual balance sheet and profit and loss
statement for PE Ltd. prepared by an independent certified
public accountant and which includes supplemental
information on an individual property basis and which
otherwise complies with the requirements of the Mortgage.
Extra Space Storage. Mortgagor is not required to deliver
quarterly operating statements to mortgage lender.
PECO Portfolio. So long as 99% of the equity interests in
Mortgagor are directly or indirectly owned by PE Fund III,
Mortgagor shall furnish to mortgage lender an annual balance
sheet and profit and loss statement for PE Fund III prepared
by an independent certified public accountant and which
includes supplemental information on an individual property
basis and which otherwise complies with the requirements of
the Mortgage.
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(xxxiii) Single Purpose Entity Barons Apartments. A non-consolidation opinion was not
obtained.
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(xxxiv) Advancing of Funds
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(xxxv) Legal Proceedings Innkeepers Portfolio. Three class action lawsuits were filed
by shareholders of Innkeepers USA in Palm Beach County,
Florida Circuit Court with respect to the acquisition by
Apollo Investment Corporation of all of the outstanding
shares of Innkeepers USA. The parties to each of these
actions reached a settlement through the execution of a
Memorandum of Understanding dated May 25, 2007, which
contemplates a class-wide settlement with class-wide
releases subject to court approval.
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(xxxvi) Originator Duly Authorized
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(xxxvii) Trustee Under Deed of Trust
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REPRESENTATION FROM SCHEDULE II PROPERTY AND EXCEPTION
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(xxxviii) Cross-Collateralization
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(xxxix) Flood Hazard Insurance
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(xl) Engineering Assessments
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(xli) Escrows
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(xlii) Licenses, Permits and Authorizations
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(xliii) Servicing and Collection Practices
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(xliv) Fee Simple
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(xlv) Leasehold Interest Only Innkeepers Portfolio. With respect to the Mortgaged Property
known as Courtyard Fort Lauderdale: (i) the term of the
Ground Lease extends seventeen (17) years beyond the Stated
Maturity of the Mortgage Loan; (ii) the proceeds of a
condemnation which relate to the ground lessor's fee
interest are payable to the ground lessor, rather than the
ground lessee or mortgage lender; (iii) casualty insurance
proceeds payable to the ground lessee are deposited in a
commercial national bank, as trustee, located in Fort
Lauderdale, Florida, selected by the ground lessor, and such
funds are to be used for reconstruction or repair of the
Mortgaged Property; and (iv) subletting requires the express
written consent of ground lessor, authorized by the
appropriate municipal action of the City of Fort Lauderdale,
Florida, which consent shall not be unreasonably withheld.
PECO Portfolio. (1) With respect to the Mortgaged Property
known as University Plaza-Amherst, (i) the Ground Lease does
not provide that amendments or modifications made without
the consent of the mortgage lender are not binding on such
mortgage lender or its successors and/or assigns, (ii) the
Ground Lease gives the mortgage lender the right to receive
a notice of default under the Ground Lease, and a right to
cure such default, however, the Ground Lease does not
specifically provide that a notice of lease termination is
not effective unless a copy of such notice of lease
termination has been delivered to mortgage lender; (iii) the
mortgage lender is only entitled to a new lease if the
Ground Lease is terminated due to an uncured non-monetary
default or in a bankruptcy proceeding, (iv) the Ground Lease
permits the ground lessor to subject its fee interest to
mortgage(s), (which are superior to the Mortgage) of up to
$3,600,000, provided the ground lessor provides a non
disturbance agreement from the holders of such mortgages in
form reasonably acceptable to ground lessee (as of the at
Closing Date the Mortgaged Property was subject to a
superior fee mortgage) in the amount of approximately
$1,600,000, but no non-disturbance has been delivered); (v)
the ground lessor under the Ground Lease has the right to
require Mortgagor to purchase the fee interest in the
Mortgaged Property for $3,600,000 at any time prior to the
seventh month of the twenty-fourth (24th) year of the Ground
Lease and (vi) in the event of a condemnation of all or any
part of the Mortgaged Property, the award relating to the
ground lessor's interests in the Mortgaged Property or
improvements existing prior to the
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REPRESENTATION FROM SCHEDULE II PROPERTY AND EXCEPTION
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commencement of the term of the ground lease is paid to the
ground lessor rather than to the ground lessee or mortgage
lender, (2) With respect to the Ground Lease for the major
portion of the Mortgaged Property known as Xxxxxxxxx
Crossing (Xxx X. Xxxxxx as ground lessor), (i) the Ground
Lease does not provide that amendments or modifications made
without the consent of the mortgage lender are not binding
on such mortgage lender or its successors and/or assigns,
(ii) the Ground Lease provides for increases in ground rent
to the extent of the payment of additional rent equal to
certain percentage rent more particularly described in the
Ground Lease, (iii) the Ground Lease does not provide that
the ground lessor will enter into a new lease with mortgage
lender upon termination of such Ground Lease, (iv) the
period within which mortgage lender may cure defaults under
the Ground Lease is not tolled if mortgage lender is stayed
from foreclosing on the Mortgaged Property in connection
with a bankruptcy (or similar proceeding); (v) Pursuant to
the Second Amendment to Ground Lease, the Ground Lease
terminates on October 31, 2013 (less than the Stated
Maturity Date of the related Mortgage Loan), however, while
the Ground Lease provides for ten (10) remaining five-year
extension periods, which are automatically deemed exercised
unless the ground lessee elects not to extend the Ground
Lease, the mortgage lender is not entitled to notice from
the ground lessor and the right to exercise such extension
options on behalf of the ground lessee in the event ground
lessee elects not to extend; (vi) the Ground Lease gives the
mortgage lender the right to receive a notice of default
under the Ground Lease, and a right to cure such default,
however, the Ground Lease does not specifically provide that
a notice of lease termination is not effective unless a copy
of such notice of lease termination has been delivered to
mortgage lender; and (vii) in the event of a condemnation of
all or any part of the Mortgaged Property, the award
relating to the ground lessor's interests in the Mortgaged
Property shall be paid in the following manner: (a) if the
ground lessee exercises its option to terminate the Ground
Lease, the award is first applied in the reduction of any
mortgage or deed of trust on the Mortgaged Property, with
any remaining amount paid to the ground lessor and ground
lessee, and (b) in the event of a partial taking, the award
is first given to the ground lessee for restoration, and any
amounts remaining thereafter are applied to the reduction of
any mortgage or deed of trust on the Mortgaged Property, and
(3) With respect to the Ground Lease for the smaller portion
of the Mortgaged Property known as Xxxxxxxxx Crossing (Xxxx
X. Xxxxxx, Xx. as ground lessor), (i) the time period within
which the mortgage lender may cure defaults under the Ground
Lease is not tolled if mortgage lender is stayed from
foreclosing on the Mortgaged Property in connection with a
bankruptcy (or similar proceeding) and (ii) in the event of
a condemnation of all or any part of the Mortgaged Property,
the award relating to the ground lessor's interests in the
Mortgaged Property is paid to the ground lessor rather than
to the ground lessee or mortgage lender.
Englewood Crossing. In the event of a condemnation of all or
any part of the Mortgaged Property, the award shall be
divided between the Mortgagor and ground lessor to
compensate each for their respective interest in the
Mortgaged Property.
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
REPRESENTATION FROM SCHEDULE II PROPERTY AND EXCEPTION
--------------------------------------------------------------------------------------------------------
(xlvi) Fee Simple and Leasehold Interest
--------------------------------------------------------------------------------------------------------
(xlvii) Tax Lot; Utilities
--------------------------------------------------------------------------------------------------------
(xlviii) Defeasance Some of the Xxxxxx Trust Mortgage Loans which are not ARD
loans contemplate scheduled defeasance payments calculated
as if the Mortgage Note matures upon commencement of the
open prepayment periods.
--------------------------------------------------------------------------------------------------------
(xlix) Primary Servicing Rights
--------------------------------------------------------------------------------------------------------
(l) Mechanics' and Materialmen's Liens Under the law of the State of Illinois, subsequently filed
mechanic's liens can be superior to the lien of a mortgage.
Any related mortgaged real property which is subject to
condominium documents may become subject to a lien for the
failure to pay certain common charges owed pursuant to such
documents, and that lien would be prior to the related
mortgage.
--------------------------------------------------------------------------------------------------------
(li) Due Date Innkeepers Portfolio. The Due Date is the ninth (9th) day of
each calendar month, or if such day is not a business day,
the immediately preceding business day.
--------------------------------------------------------------------------------------------------------
(lii) Assignment of Leases
--------------------------------------------------------------------------------------------------------
(liii) Mortgagor Formation or Incorporation
--------------------------------------------------------------------------------------------------------
(liv) No Ownership Interest in Mortgagor
--------------------------------------------------------------------------------------------------------
(lv) Common Ownership PECO Portfolio, Belvedere Plaza, Barclays Place Shopping
Center
000 Xxxx Xxxxxx, Xxxxxxxxxx Park, Xxx Xxxx Xxxx Xxxxx, Xxx
Xxxxxxx Xxxxxx.
Portsmouth Station Shopping Center, Spring Valley Town
Center, Tower Square Retail.
Englewood Crossing, Flyer Shoppes, The Shoppes at Kettering
Pointe.
0000 Xxxxxxxxx Xxxxx, The Ice House Office Building.
Greenhouse on Xxxxxxx Bridge, Highland Parc.
Hampton Inn Memphis Southwind, Homewood Suites Memphis
Southwind.
Waxahachie Towne Center, Xxxxxx'x Crossing.
--------------------------------------------------------------------------------------------------------
(lvi) Loan Outstanding
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
REPRESENTATION FROM SCHEDULE II PROPERTY AND EXCEPTION
--------------------------------------------------------------------------------------------------------
(lvii) Usury
--------------------------------------------------------------------------------------------------------
(lviii) ARD Mortgage Loan
--------------------------------------------------------------------------------------------------------
(lix) Appraisal
--------------------------------------------------------------------------------------------------------
SCHEDULE IV
SCHEDULE OF ENVIRONMENTALLY INSURED MORTGAGE LOANS
------------------------------------------------------------------------------------------------------------------------------
MORTGAGE MORTGAGE
LOAN NUMBER PROPERTY NAME PROPERTY ADDRESS LOAN SELLER
------------------------------------------------------------------------------------------------------------------------------
0000 Xxxxxxxxx Xxxx,
0X XXXX Xxxxxxxxx - Xxxxxxxxx Xxxxx Xxxxxxxxx, XX 00000 LBHI
0000 Xxxxxxxx, Xxxxx, XX
2D PECO Portfolio - Tops Plaza 14043 LBHI
6825 Burlington Pike,
2G PECO Portfolio - Xxxxxxx Xxxxx Xxxxxxxx, XX 00000 LBHI
246 Versailles Road,
2H PECO Portfolio - Xxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 LBHI
0000 Xxxx Xxxxxx, Xxxxxxx,
0X PECO Portfolio - Xxxxxxxxxx Xxxxx XX 00000 LBHI
708-744 Xxxxx Avenue,
2Z PECO Portfolio - Xxxxxxxxx Xxxxx Xxxxxxxxx, XX 00000 LBHI
50 Citizens Portfolio 3 Various UBS
55 Citizens Portfolio 2 Various UBS
58 Citizens Portfolio 1 Various UBS
Torrance Self Storage - 0000 Xxxx 000xx Xxxxxx, 0000 Xxxx 000xx Xxxxxx,
00 Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000 UBS
000 Xxxxxxxx Xxxxxx, Xxxxx,
00 XxxxxXxxxxx XX 00000 LBHI
94 Citizens Portfolio 6 Various UBS
0000 Xxxxxx Xxxx, Xxxxx
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
000 Xxxx Xxxx Xxxxxx Xxxx Xxxx Xxxxxxxx Xxxx, XX 00000 UBS
106 Citizens Portfolio 16 Various UBS
112 Citizens Portfolio 29 Various UBS
129 Citizens Portfolio 8 Various UBS
------------------------------------------------------------------------------------------------------------------------------
SCHEDULE V
SCHEDULE OF INITIAL DEPOSIT MORTGAGE LOANS
------------------------------------------------------------------------------------------------------------------------------
MORTGAGE INITIAL DEPOSIT
LOAN NUMBER PROPERTY NAME PROPERTY ADDRESS AMOUNT
------------------------------------------------------------------------------------------------------------------------------
PECO Portfolio - Xxxxxxxx Xxxxxx
2B Mall 0000 Xxxxx 00 Xxxxx, Xxxxxxxx, XX 00000 $13,718.22
PECO Portfolio - Xxxxxxxxxx Xxxxx -
0X Xxxxxxx 0000 Xxxx Xxxxxx, Xxxxxxx, XX 00000 $ 7,436.92
2Q PECO Portfolio - Redbud Commons 0000 X. Xxx Xxxx Xxxx, Xxxxxxxx, XX 00000 $ 6,486.33
PECO Portfolio Bi-Lo Center
2R -Ashville 000 Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx, XX 00000 $ 5,162.97
PECO Portfolio - North Aiken Bi-Lo
2AB Center 0000 Xxxx Xxxxxx XX, Xxxxx, XX 00000 $ 4,286.94
2AI PECO Portfolio - Xxxxxxxxx Crossing 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxxxxxx, XX 00000 $ 3,168.61
13 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx, Xxxxxx, XX 00000 $13,150.67
1200-1280 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx,
00 Xxxxx Xxxxx XX 00000 $ 4,306.25
77 Sun Forest Apartments 000 Xxxxxxx Xxxxx, Xxxx Xxxxxxx, XX 00000 $ 5,565.63
00000 Xxxxxxxxxxx Xxxx & 000, Xxx Xxxxxxx,
00 Xxxx 0000 Xxxx Xxxxxxx XX 00000 $ 3,275.56
121 0X Xxxxxxxxxxx Office/Warehouse XX Xxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000 $ 2,731.75
000 Xxxxxxx Xxxxxxxx 0000 Xxxxxxxx Xxxxx, Xxxxxxxx, XX 00000 $ 1,513.33
------------------------------------------------------------------------------------------------------------------------------
SCHEDULE VI
SCHEDULE OF MORTGAGE LOANS SECURED BY
A HOSPITALITY PROPERTY OR NURSING FACILITY
------------------------------------------------------------------------------------------------------------------------------
MORTGAGE MORTGAGE
LOAN PROPERTY NAME PROPERTY TYPE OF LOAN
NUMBER ADDRESS PROPERTY SELLER
------------------------------------------------------------------------------------------------------------------------------
1 Innkeepers Portfolio Various Hotel LBHI
14 Texas SLC Portfolio Various Nursing Facility LBHI
21 Dolce Norwalk 00 Xxxx Xxxxxx, Xxxxx XXX
Xxxxxxx, XX 00000
0000 Xxxxx Xxxxx
Xxxx, Xxxxxxx, XX
00 Xxxxxxx Xxx Xxxxxxx Xxxxxxxxx 00000 Hotel LBHI
3583 Hacks Cross
00 Xxxxxxxx Xxxxxx Xxxxxxx Xxxxxxxxx Xxxx, Xxxxxxx, XX Hotel LBHI
38125
6687 Southwest
74 Holiday Inn Express - Hillcroft Freeway, Houston, TX Hotel LBHI
77074
------------------------------------------------------------------------------------------------------------------------------
SCHEDULE VII
SCHEDULE OF EARLY DEFEASANCE MORTGAGE LOANS
NONE.
SCHEDULE VIII
SCHEDULE OF ADDITIONAL MORTGAGE LOAN ORIGINATION DOCUMENTS
NONE.
SCHEDULE IX
SCHEDULE OF ADDITIONAL SECTION 2.03 DOCUMENTS
NONE.
SCHEDULE X
[RESERVED]
SCHEDULE XI
SCHEDULE OF CLASS A-AB PLANNED PRINCIPAL BALANCES
MONTH AND YEAR CLASS A-AB PLANNED
OF DISTRIBUTION DATE PRINCIPAL BALANCE
---------------------------- ------------------------
September 2007 $67,000,000.00
October 2007 $67,000,000.00
November 2007 $67,000,000.00
December 2007 $67,000,000.00
January 2008 $67,000,000.00
February 2008 $67,000,000.00
March 2008 $67,000,000.00
April 2008 $67,000,000.00
May 2008 $67,000,000.00
June 2008 $67,000,000.00
July 2008 $67,000,000.00
August 2008 $67,000,000.00
September 2008 $67,000,000.00
October 2008 $67,000,000.00
November 2008 $67,000,000.00
December 2008 $67,000,000.00
January 2009 $67,000,000.00
February 2009 $67,000,000.00
March 2009 $67,000,000.00
April 2009 $67,000,000.00
May 2009 $67,000,000.00
June 2009 $67,000,000.00
July 2009 $67,000,000.00
August 2009 $67,000,000.00
September 2009 $67,000,000.00
October 2009 $67,000,000.00
November 2009 $67,000,000.00
December 2009 $67,000,000.00
January 2010 $67,000,000.00
February 2010 $67,000,000.00
March 2010 $67,000,000.00
April 2010 $67,000,000.00
May 2010 $67,000,000.00
June 2010 $67,000,000.00
July 2010 $67,000,000.00
August 2010 $67,000,000.00
September 2010 $67,000,000.00
October 2010 $67,000,000.00
November 2010 $67,000,000.00
December 2010 $67,000,000.00
MONTH AND YEAR CLASS A-AB PLANNED
OF DISTRIBUTION DATE PRINCIPAL BALANCE
---------------------------- ------------------------
January 2011 $67,000,000.00
February 2011 $67,000,000.00
March 2011 $67,000,000.00
April 2011 $67,000,000.00
May 2011 $67,000,000.00
June 2011 $67,000,000.00
July 2011 $67,000,000.00
August 2011 $67,000,000.00
September 2011 $67,000,000.00
October 2011 $67,000,000.00
November 2011 $67,000,000.00
December 2011 $67,000,000.00
January 2012 $67,000,000.00
February 2012 $67,000,000.00
March 2012 $67,000,000.00
April 2012 $67,000,000.00
May 2012 $67,000,000.00
June 2012 $67,000,000.00
July 2012 $65,551,054.98
August 2012 $64,671,000.00
September 2012 $63,717,000.00
October 2012 $62,489,000.00
November 2012 $61,485,000.00
December 2012 $60,245,000.00
January 2013 $59,228,000.00
February 2013 $58,206,000.00
March 2013 $56,491,000.00
April 2013 $55,453,000.00
May 2013 $54,181,000.00
June 2013 $53,130,000.00
July 2013 $51,845,000.00
August 2013 $50,782,000.00
September 2013 $49,712,000.00
October 2013 $48,409,000.00
November 2013 $47,326,000.00
December 2013 $46,010,000.00
January 2014 $39,476,000.00
February 2014 $38,382,000.00
March 2014 $36,605,000.00
April 2014 $35,494,000.00
May 2014 $34,152,000.00
June 2014 $33,028,000.00
July 2014 $32,000,000.00
August 2014 $31,500,109.57
September 2014 $30,376,000.00
October 2014 $29,026,000.00
MONTH AND YEAR CLASS A-AB PLANNED
OF DISTRIBUTION DATE PRINCIPAL BALANCE
---------------------------- ------------------------
November 2014 $27,889,000.00
December 2014 $26,525,000.00
January 2015 $25,374,000.00
February 2015 $24,217,000.00
March 2015 $22,394,000.00
April 2015 $21,220,000.00
May 2015 $19,820,000.00
June 2015 $18,632,000.00
July 2015 $17,218,000.00
August 2015 $16,015,000.00
September 2015 $14,806,000.00
October 2015 $13,371,000.00
November 2015 $12,147,000.00
December 2015 $10,698,000.00
January 2016 $9,459,000.00
February 2016 $8,213,000.00
March 2016 $6,526,000.00
April 2016 $5,263,000.00
May 2016 $3,777,000.00
June 2016 $2,500,000.00
July 2016 $999,000.00
August 2016 and thereafter $0.00
SCHEDULE XII
SCHEDULE OF SIGNIFICANT OBLIGOR FINANCIAL STATEMENT RECIPIENTS
Xxxxxx X. Xxxx
Phone: (000) 000-0000
Email: xxxxx@xxxxxx.xxx
Xxxxx Xxxx
Phone: (000) 000-0000
Email: xxxxx@xxxxxx.xxx
Xxxxxx Xxxxxxxx
Phone: (000) 000-0000
Email: xxxxxxxx@xxxxxx.xxx
Xxxxxxxxx Xxxxxxx
Phone: (000) 000-0000
Email: xxxxxxxx@xxxxxx.xxx
Xxxxxxxx Xx
Phone: (000) 000-0000
Email: xxxxxxxx.xx@xxxxxx.xxx
Xxxxx Small
Phone: (000) 000-0000
Email: xxxxxx@xxxxxx.xxx / xxxxx.xxxxx@xxxxxx.xxx
Xxxx Xxxxxxxx
Phone: (000) 000-0000
Email: xxxxxxxxx@xxxxxxxxxx.xxx
EXHIBIT A-1
FORM OF CLASS [A-1] [A-2] [A-3] [A-AB] [A-4] [A-1A] CERTIFICATE
LB-UBS COMMERCIAL MORTGAGE TRUST 2007-C6
CLASS [A-1] [A-2] [A-3] [A-AB] [A-4] [A-1A] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-C6
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 one or more trusts (individually and collectively, as the context
may require, 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 Initial Certificate Principal Balance of this
Pooling and Servicing Agreement referred Certificate as of the Closing Date:
to herein $____________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [A-
August 13, 2007 1] [A-2] [A-3] [A-AB] [A-4] [A-1A]
Certificates as of the Closing Date:
$____________
Cut-off Date: August 13, 2007 (or, as to Aggregate unpaid principal balance of the
any Mortgage Loan, if later, the related Mortgage Pool as of the Cut-off Date, after
date of origination) deducting payments of principal due on or
before such date: $2,978,936,714
Closing Date: August 30, 2007
First Distribution Date: September 17,
2007
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National
Association Association
Special Servicer: Midland Loan Services,
Inc.
Certificate No. [A-1] [A-2] [A-3] [A-AB] CUSIP No.: _____________
[A-4] [A-1A]-___
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, MIDLAND
LOAN SERVICES, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling
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), Midland Loan Services, Inc., as special
servicer (the "Special Servicer", which term includes any successor entity under
the Agreement), and LaSalle Bank National Association, as trustee (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 the Record
Date for such distribution or, in the case of the first such distribution, no
later than the Closing Date (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 Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1] [A-2] [A-3] [A-AB] [A-4] [A-1A]
Certificates referred to in the within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:______________________________________
Authorized Officer
A-1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: ______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of Assignor
_________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ______
___________________________) and all applicable statements and notices should be
mailed to _____________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS X CERTIFICATE
LB-UBS COMMERCIAL MORTGAGE TRUST 2007-C6
CLASS X COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C6
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 one or more trusts (individually and collectively, as the context
may require, 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 Initial Certificate Notional Amount of this
Pooling and Servicing Agreement referred Certificate as of the Closing Date:
to herein $____________
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class X
August 13, 2007 Certificates as of the Closing Date:
$2,978,936,714
Cut-off Date: August 13, 2007 (or, as to Aggregate unpaid principal balance of the
any Mortgage Loan, if later, the related Mortgage Pool as of the Cut-off Date, after
date of origination) deducting payments of principal due on or
before such date: $2,978,936,714
Closing Date: August 30, 2007
First Distribution Date: September 17,
2007
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National
Association Association
Special Servicer: Midland Loan Services,
Inc.
Certificate No. X-___ 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.]
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, MIDLAND
LOAN SERVICES, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL
BALANCE AND DOES NOT ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF
PRINCIPAL. THE HOLDER HEREOF WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST
ACCRUED AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN ON
THE CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE, WHICH AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
A-2-2
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), Midland Loan
Services, Inc., as special servicer (the "Special Servicer", which term includes
any successor entity under the Agreement), and LaSalle Bank National
Association, as trustee (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 the Record
Date for such distribution or, in the case of the first such distribution, no
later than the Closing Date (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of
A-2-3
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 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
A-2-4
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-2-5
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the
within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:______________________________________
Authorized Officer
A-2-6
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 [A-M] [A-J] [B] [C] [D] [E] [F] CERTIFICATE
LB-UBS COMMERCIAL MORTGAGE TRUST 2007-C6
CLASS [A-M] [A-J] [B] [C] [D] [E] [F] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-C6
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 one or more trusts (individually and collectively, as the context
may require, 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 Initial Certificate Principal Balance of this
and Servicing Agreement referred to herein Certificate as of the Closing Date:
$____________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [A-M] [A-
August 13, 2007 J] [B] [C] [D] [E] [F] Certificates as of the Closing
Date:
$_____________
Cut-off Date: August 13, 2007 (or, as to any Aggregate unpaid principal balance of the
Mortgage Loan, if later, the related date of Mortgage Pool as of the Cut-off Date, after
origination) deducting payments of principal due on or before
such date: $2,978,936,714
Closing Date: August 30, 2007
First Distribution Date: September 17, 2007
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association
Special Servicer: Midland Loan Services, Inc.
Certificate No. [A-M] [A-J] [B] [C] [D] [E] [F]-___ 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, MIDLAND
LOAN SERVICES, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its
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),
Midland Loan Services, Inc., as special servicer (the "Special Servicer", which
term includes any successor entity under the Agreement), and LaSalle Bank
National Association, as trustee (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 the Record
Date for such distribution or, in the case of the first such distribution, no
later than the Closing Date (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 Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[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.
A-3-5
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-M] [A-J] [B] [C] [D] [E] [F]
Certificates referred to in the within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:______________________________________
Authorized Officer
A-3-6
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 [A-2FL] [A-MFL] [G] [H] [J] [K]
[L] [M] [N] [P] [Q] [S] [T] CERTIFICATE
LB-UBS COMMERCIAL MORTGAGE TRUST 2007-C6
CLASS [A-2FL] [A-MFL] [G] [H] [J] [K] [L] [M] [N] [P]
[Q] [S] [T] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C6
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 one or more trusts (individually and collectively, as the context
may require, 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 Initial Certificate Principal Balance of this
and Servicing Agreement referred to herein Certificate as of the Closing Date:
$____________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [A-2FL]
August 13, 2007 [A-MFL] [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S]
[T] Certificates as of the Closing Date:
$______________
Cut-off Date: August 13, 2007 (or, as to any Aggregate unpaid principal balance of the
Mortgage Loan, if later, the related date of Mortgage Pool as of the Cut-off Date, after
origination) deducting payments of principal due on or before
such date: $2,978,936,714
Closing Date: August 30, 2007
First Distribution Date: September 17, 2007
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association
Special Servicer: Midland Loan Services, Inc.
Certificate No. [A-2FL] [A-MFL] [G] [H] [J] [K] CUSIP No.: _____________
[L] [M] [N] [P] [Q] [S] [T]-___
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, MIDLAND
LOAN SERVICES, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
[FOR ALL CERTIFICATES OTHER THAN FLOATING RATE CERTIFICATES: SOLELY FOR U.S.
FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
A-4-2
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.] [FOR
FLOATING RATE CERTIFICATES: SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS
CERTIFICATE REPRESENTS AN INTEREST IN A GRANTOR TRUST WHOSE ASSETS INCLUDE,
AMONG OTHER THINGS, AN INTEREST RATE SWAP AGREEMENT AND A "REGULAR INTEREST" IN
A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.]
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), between
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), Midland Loan Services, Inc., as special
servicer (the "Special Servicer", which term includes any successor entity under
the Agreement), and LaSalle Bank National Association, as trustee (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 the Record
Date for such distribution or, in the case of the first such distribution, no
later than the Closing Date
A-4-3
(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.
The Certificates are limited in right of distribution to [FOR
FLOATING RATE CERTIFICATES: payments under the related Swap Agreement and]
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
A-4-4
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with the initial issuance of the Certificates or a
Transfer of this Certificate by the Depositor, 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 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--LB-UBS
Commercial Mortgage Trust 2007-C6, facsimile number: (000) 000-0000.
A-4-5
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 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
A-4-6
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 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
A-4-7
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 and (Y) is not sponsored (within the meaning of Section 3(16)(B)
of ERISA) by the Trustee, the Depositor, any Mortgage Loan Seller, any Swap
Counterparty, the Master Servicer, the Special Servicer, any Sub-Servicer, any
Person responsible for servicing an Outside Serviced Trust 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 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) [FOR FLOATING RATE CERTIFICATES: , and
a second certification to the effect that its acquisition and holding of this
Certificate or an interest herein are eligible for the exemptive relief
available under at least one of Prohibited Transaction Exemption 84-14, 90-1,
91-38, 96-23 or 95-60]; 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
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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 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
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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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-2FL] [A-MFL] [G] [H] [J] [K] [L] [M] [N]
[P] [Q] [S] [T] Certificates referred to in the within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:______________________________________
Authorized Officer
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address: ______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of Assignor
_________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ______
______________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
X-0-00
XXXXXXX X-0
FORM OF CLASS [R-I] [R-II] [R-III] [R-LR] CERTIFICATE
LB-UBS COMMERCIAL MORTGAGE TRUST 2007-C6
CLASS [R-I] [R-II] [R-III] [R-LR] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-C6
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 one or more trusts (individually and collectively, as the context
may require, 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: Percentage Interest evidenced by this Certificate in
August 13, 2007 the related Class: ___%
Cut-off Date: August 13, 2007 (or, as to any Aggregate unpaid principal balance of the
Mortgage Loan, if later, the related date of Mortgage Pool as of the Cut-off Date, after
origination) deducting payments of principal due on or before
such date: $2,978,936,714
Closing Date: August 30, 2007
First Distribution Date: September 17, 2007
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association
Special Servicer: Midland Loan Services, Inc.
Certificate No. [R-I] [R-II] [R-III] [R-LR]-___
A-5-1
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, MIDLAND
LOAN SERVICES, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that _______________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate (as
specified above) in that certain beneficial ownership
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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), Midland Loan
Services, Inc., as special servicer (the "Special Servicer", which term includes
any successor entity under the Agreement), and LaSalle Bank National
Association, as trustee (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 the Record
Date for such distribution or, in the case of the first such distribution, no
later than the Closing Date (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain
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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.
LASALLE BANK NATIONAL ASSOCIATION,
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: _____________
LASALLE BANK NATIONAL ASSOCIATION,
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
LB-UBS COMMERCIAL MORTGAGE TRUST 2007-C6
CLASS V COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C6
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 one or more trusts (individually and collectively, as the context
may require, 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: Percentage Interest evidenced by this Certificate in
August 13, 2007 Class V: ___%
Cut-off Date: August 13, 2007 (or, as to any Aggregate unpaid principal balance of the
Mortgage Loan, if later, the related date of Mortgage Pool as of the Cut-off Date, after
origination) deducting payments of principal due on or before
such date: $2,978,936,714
Closing Date: August 30, 2007
First Distribution Date: September 17, 2007
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association
Special Servicer: Midland Loan Services, Inc.
Certificate No. V-___
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, MIDLAND
LOAN SERVICES, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD TRUST 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), Midland Loan Services, Inc., as special servicer (the "Special
Servicer", which term includes any successor entity under the Agreement), and
LaSalle Bank National Association, as trustee (the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. In the event of any conflict between any provision of this
Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
A-6-2
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 the Record
Date for such distribution or, in the case of the first such distribution, no
later than the Closing Date (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
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 imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial
A-6-4
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 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
A-6-5
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.
LASALLE 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: _____________
LASALLE 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: LB-UBS Commercial Mortgage Trust 2007-C6
Commercial Mortgage Pass Through Certificates, Series 2007-C6
(the "Certificates")
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement
dated as of August 13, 2007, relating to the above-referenced Certificates (the
"Agreement"), LaSalle Bank National Association, 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 the
first sentence 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 (except in the case of an Outside Serviced Trust
Mortgage Loan) 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 Trust Mortgage Loan Schedule with
respect to the items specified in clauses (v) and (vi)(B) of the definition of
"Trust 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,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________________
Name:
Title:
C-2
SCHEDULE A
Wachovia Bank, National Association
NC 1075
8739 Research Drive, URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: LB-UBS Commercial Mortgage Trust 2007-C6
Midland Loan Services, Inc.
00000 Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: LB-UBS Commercial Mortgage Trust 2007-C6
Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2007-C6
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2007-C6
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2007-C6
[LUBS Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
UBS Securities LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Facsimile number: (000) 000-0000
with a copy to Xxxxxx X. Xxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Facsimile number: (000) 000-0000
Banc of America Securities LLC
NC1-027-22-03
000 Xxxxx Xxxxx Xxxxxx
X-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2007-C6
Telephone No.: (000) 000-0000
with a copy to Xxxx X. Xxxxxxx, Esq.
Bank of America Corporation
000 Xxxxx Xxxxx Xxxxxx
30th Floor, NC1-002-29-01
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone No. (000) 000-0000
[EACH OF THE NON-TRUST MORTGAGE LOAN NOTEHOLDERS]
C-4
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--
LB-UBS Commercial Mortgage Trust 2007-C6
Re: LB-UBS Commercial Mortgage Trust 2007-C6,
Commercial Mortgage Pass-Through Certificates, Series 2007-C6
In connection with the administration of the Mortgage Files held by or on
behalf of you as Trustee, under that certain Pooling and Servicing Agreement
dated as of August 13, 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"), Midland Loan
Services, Inc., as special servicer (the "Special Servicer"), and LaSalle Bank
National Association, 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 Accounts pursuant to the Pooling
and Servicing Agreement, have been or will be so credited.
______ 2. Other. (Describe) ________________________________________
__________________________________________________________
__________________________________________________________
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing
D-1-1
Agreement and will be returned to you or your designee within ten (10)
days of our receipt thereof, unless the Mortgage Loan has been paid in full, in
which case the Mortgage File (or such portion thereof) will be retained by us
permanently.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
WACHOVIA BANK, NATIONAL ASSOCIATION
By: _________________________________
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
-----------
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--
LB-UBS Commercial Mortgage Trust 2007-C6
Re: LB-UBS Commercial Mortgage Trust 2007-C6,
Commercial Mortgage Pass-Through Certificates, Series 2007-C6
In connection with the administration of the Mortgage Files held by or on
behalf of you as Trustee, under that certain Pooling and Servicing Agreement
dated as of August 13, 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"), Midland Loan
Services, Inc., as special servicer (the "Special Servicer"), and LaSalle Bank
National Association, 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 Accounts pursuant to the Pooling
and Servicing Agreement, have been or will be so credited.
________________________________________________________________________________
________________________________________________________________________________
______ 2. Other. (Describe) ________________________________________
__________________________________________________________
__________________________________________________________
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing
D-2-1
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.
MIDLAND LOAN SERVICES, 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
-----------------------------------------------------------------------------------------------------------------------
PRECEDING
SHORT NAME SCHEDULED PAID FISCAL YR. MOST
PROSPECTUS (WHEN PROPERTY MORTGAGE LOAN THRU CURRENT MATURITY DSCR 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]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--
LB-UBS Commercial Mortgage Trust 2007-C6
Re: LB-UBS Commercial Mortgage Trust 2007-C6, Commercial Mortgage
Pass-Through Certificates, Series 2007-C6, Class _____, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of August 30, 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 August 13, 2007, between Structured Asset
Securities Corporation II, as Depositor, Wachovia Bank, National Association, as
Master Servicer, Midland Loan Services, Inc., as Special Servicer, and LaSalle
Bank National Association, as Trustee. All capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Pooling
and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, and for the benefit of the Trustee
and the Depositor, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any
offer to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security with
any person in any manner, (d) made any general solicitation with respect
to any Transferred Certificate, any interest in a Transferred Certificate
or any other similar security by means of general advertising or in any
other manner, or (e) taken any other action with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of the
Transferred Certificates under the Securities Act of 1933, as amended (the
"Securities Act"), would render the disposition of the Transferred
F-1-1
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]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--
LB-UBS Commercial Mortgage Trust 2007-C6
Re: LB-UBS Commercial Mortgage Trust 2007-C6, Commercial Mortgage
Pass-Through Certificates, Series 2007-C6, Class ___, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of August 30, 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 August 13, 2007, between Structured Asset
Securities Corporation II, as Depositor, Wachovia Bank, National Association, as
Master Servicer, Midland Loan Services, Inc., as Special Servicer, and LaSalle
Bank National Association, as Trustee. All capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Pooling
and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, as Certificate Registrar, and for the benefit of the Trustee
and the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the
"Securities Act"), and has completed one of the forms of certification to
that effect attached hereto as Annex 1 and Annex 2. The Transferee is
aware that the sale to it is being made in reliance on Rule 144A. The
Transferee is acquiring the Transferred Certificates for its own account
or for the account of another Qualified Institutional Buyer, and
understands that such Transferred Certificates may be resold, pledged or
transferred only (a) to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own account or for the account
of another Qualified Institutional Buyer and to whom notice is given that
the resale, pledge or transfer is being made in reliance on Rule 144A, or
(b) pursuant to another exemption from registration under the Securities
Act.
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
F-2A-1
of the Trust 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.
F-2A-7
8. Capitalized terms used but not defined herein have the
respective meanings ascribed thereto in the Pooling and Servicing
Agreement pursuant to which the Transferred Certificates were issued.
_____________________________________
Print Name of Transferee or Adviser
By: _________________________________
Name:
Title:
Date:
IF 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]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--
LB-UBS Commercial Mortgage Trust 2007-C6
Re: LB-UBS Commercial Mortgage Trust 2007-C6, Commercial Mortgage
Pass-Through Certificates, Series 2007-C6, Class _____, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of August 30, 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 August 13, 2007, between Structured Asset
Securities Corporation II, as Depositor, Wachovia Bank, National Association, as
Master Servicer, Midland Loan Services, Inc., as Special Servicer, and LaSalle
Bank National Association, as Trustee. All capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Pooling
and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, as Certificate Registrar, and for the benefit of the Trustee
and the Depositor, that:
1. The Transferee is acquiring the Transferred Certificates
for its own account for investment and not with a view to or for sale or
transfer in connection with any distribution thereof, in whole or in part,
in any manner which would violate the Securities Act of 1933, as amended
(the "Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Transferred
Certificates have not been and will not be registered under the Securities
Act or registered or qualified under any applicable state securities laws,
(b) none of the Depositor, the Trustee or the Certificate Registrar is
obligated so to register or qualify the Class of Certificates to which the
Transferred Certificates belong, and (c) neither a Transferred Certificate
nor any security issued in exchange therefor or in lieu thereof may be
resold or transferred unless it is (i) registered pursuant to the
Securities Act and registered or qualified pursuant to any applicable
state securities laws or (ii) sold or transferred in transactions which
are exempt from such registration and qualification and the Certificate
Registrar has received: (A) a certification from the Certificateholder
desiring to effect such transfer substantially in the form attached as
Exhibit F-1 to the Pooling and Servicing
F-2B-1
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 manner, (d) made any general solicitation with respect
to any Transferred Certificate, any
F-2B-2
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.
F-2B-3
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:
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: LB-UBS Commercial Mortgage Trust 2007-C6, Commercial Mortgage
Pass-Through Certificates, Series 2007-C6, Class _____, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of August 30, 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 August 13, 2007, between Structured Asset Securities
Corporation II, as Depositor, Wachovia Bank, National Association, as Master
Servicer, Midland Loan Services, Inc., as Special Servicer, and LaSalle Bank
National Association, as Trustee. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
and agrees with you, and for the benefit of the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the
"Securities Act"), and has completed one of the forms of certification to
that effect attached hereto as Annex 1 and Annex 2. The Transferee is
aware that the Transfer to it of the Transferor's interest in the
Transferred Certificates is being made in reliance on Rule 144A. The
Transferee is acquiring such interest in the Transferred Certificates for
its own account or for the account of another Qualified Institutional
Buyer.
2. The Transferee understands that (a) the Transferred
Certificates have not been and will not be registered under the Securities
Act or registered or qualified under any applicable state securities laws,
(b) none of the Depositor, the Trustee or the Certificate Registrar is
obligated so to register or qualify the Transferred Certificates and (c)
no interest in the Transferred Certificates may be resold or transferred
unless (i) such Certificates are registered 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--LB-UBS Commercial Mortgage Trust 2007-C6, 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
$____________(2) in securities (other than the excluded securities
referred to below) as of the end of such entity's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
______ Corporation, etc. The Transferee is a corporation (other
than a bank, savings and loan association or similar
institution), Massachusetts or similar business trust,
partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as
amended.
______ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of
which is substantially confined to banking and is
supervised by the state or territorial banking commission
or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a
date not more than 16 months preceding the date of sale of
the Transferred Certificates in the case of a U.S. bank,
and not more than 18 months preceding such date of sale in
the case of a foreign bank or equivalent institution.
______ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative
bank, homestead association or similar institution, which
is supervised and examined by a state or federal authority
__________________________
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.
F-2C-8
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:
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: LB-UBS Commercial Mortgage Trust 2007-C6, Commercial Mortgage
Pass-Through Certificates, Series 2007-C6, Class _____, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of August 30, 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 August 13, 2007, between Structured Asset Securities
Corporation II, as Depositor, Wachovia Bank, National Association, as Master
Servicer, Midland Loan Services, Inc., as Special Servicer, and LaSalle Bank
National Association, as Trustee. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
and agrees with you, and for the benefit of the Depositor, that 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__
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--
LB-UBS Commercial Mortgage Trust 2007-C6
Re: LB-UBS Commercial Mortgage Trust 2007-C6, Commercial Mortgage
Pass-Through Certificates, Series 2007-C6 (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 August 30, 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 August 13, 2007, between Structured Asset
Securities Corporation II, as depositor, Wachovia Bank, National Association, as
master servicer, Midland Loan Services, Inc., as special servicer, and LaSalle
Bank National Association, as trustee. All capitalized terms used but not
otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to 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, any Swap Counterparty, the Master Servicer, the
Special Servicer, any Sub-Servicer, any Person responsible
for servicing an Outside Serviced Trust 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); and, if
the Transferred Certificates are Floating Rate
Certificates, such Plan's acquisition and holding of the
Transferred Certificates or an interest therein are
eligible for the exemptive relief available under at least
one of Prohibited Transaction Exemption 84-14, 90-1,
91-38, 96-23 or 95-60.
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: LB-UBS Commercial Mortgage Trust 2007-C6, Commercial Mortgage
Pass-Through Certificates, Series 2007-C6 (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 August 30, 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 August 13,
2007 (the "Pooling and Servicing Agreement"), among Structured Asset Securities
Corporation II, as depositor, Wachovia Bank, National Association, as master
servicer, Midland Loan Services, Inc., as special servicer, and LaSalle Bank
National Association, as trustee. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
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, any Swap
Counterparty, the Master Servicer, the Special Servicer,
any Sub-Servicer, any Person responsible for servicing an
Outside Serviced Trust 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); and, if
the Transferred Certificates are Floating Rate
Certificates, such Plan's acquisition and holding of the
Transferred Certificates or an interest therein are
eligible for the exemptive relief available under at least
one of Prohibited Transaction Exemption 84-14, 90-1,
91-38, 96-23 or 95-60.
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: LB-UBS Commercial Mortgage Trust 2007-C6, Commercial Mortgage
Pass-Through Certificates, Series 2007-C6 (the "Certificates"),
issued pursuant to the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of August 13, 2007, between
Structured Asset Securities Corporation II, as Depositor, Wachovia
Bank, National Association, as Master Servicer, Midland Loan
Services, Inc., as Special Servicer, and LaSalle Bank National
Association, as Trustee
STATE OF __________________________ )
) ss.: ____________________________
COUNTY OF ________________________ )
The undersigned declares that, to the best knowledge and belief of
the undersigned, the following representations are true, correct and complete:
1. ______________________________ (the "Purchaser"), is
acquiring [Class R-I] [Class R-II] [Class R-III] [Class R-LR] 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] [Class R-LR] 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
H-1-1
are subject to tax (except for the Federal Home Loan Mortgage Corporation) and a
majority of its board of directors is not selected by such governmental unit.
The terms "United States" and "international organization" shall have the
meanings set forth in Section 7701 of the Code.
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] [Class R-LR]
Certificates to a Disqualified Organization.
4. The Purchaser will not transfer the [Class R-I]
[Class R-II] [Class R-III] [Class R-LR] 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] [Class R-LR]
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] [Class R-LR] 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] [Class R-LR] 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] [Class R-LR]
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.
H-1-2
iv. The Purchaser will not cause the income from the [Class R-I] [Class
R-II] [Class R-III] [Class R-LR] Certificates to be attributable to
a foreign permanent establishment or fixed base (within the meaning
of any applicable income tax treaty between the United States and
any foreign jurisdiction) of a United States Tax Person.
[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] [Class R-LR] 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] [Class R-LR]
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
0 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] [Class R-LR] 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] [Class R-LR]
Certificate;
c) intends to pay the taxes associated with holding a [Class
R-I] [Class R-II] [Class R-III] [Class R-LR] Certificate;
d) is not classified as a partnership under the Code (or, if
so classified, all of its beneficial owners either satisfy
clauses (a), (b) and (c) of this sentence or are United
States persons); and
e) has furnished the Transferor and the Trustee with an
effective IRS Form W-8ECI or successor form and will
update such form as may be required under the applicable
Treasury regulations.
Capitalized terms used but not defined herein have the
meanings assigned thereto in the Pooling and Servicing Agreement.
H-1-4
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
duly executed on its behalf by its duly authorized officer this _______ day of
___________________________.
By: _________________________________
Name: _______________________________
Title: ______________________________
Personally appeared before me __________________________________ 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]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--
LB-UBS Commercial Mortgage Trust 2007-C6
Re: LB-UBS Commercial Mortgage Trust 2007-C6, Commercial Mortgage
Pass-Through Certificates, Series 2007-C6 (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] [Class R-LR] Certificates evidencing a
____% Percentage Interest in such Class (the "Residual Interest Certificates").
The Certificates, including the Residual Interest Certificates, were issued
pursuant to the Pooling and Servicing Agreement, dated as of August 13, 2007
(the "Pooling and Servicing Agreement"), between Structured Asset Securities
Corporation II, as depositor, Wachovia Bank, National Association, as master
servicer, Midland Loan Services, Inc., as special servicer, and LaSalle Bank
National Association, as trustee. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferor hereby certifies, represents and warrants to
you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of
the Residual 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 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
H-2-1
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
Xxxxx'x Investors Service, Inc.
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: CMBS Surveillance Group
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 August 13, 2007 and relating to
LB-UBS Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 2007-C6 (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-Trust Mortgage Loan Noteholder has] designated
________________ to serve as the Special Servicer under the Agreement with
respect to [the ______________ [Loan Combination] [Trust Mortgage Loan] or any
related REO Property] [the Mortgage Pool [(other than __________________)]].
The designation of __________________ as Special Servicer with
respect to [the ______________ [Loan Combination] [Trust 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] [Trust 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,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By: _________________________________
Name:
Title:
Receipt acknowledged:
FITCH, INC.
By: ________________________________
Name:
Title:
Date:
XXXXX'X INVESTORS SERVICE, 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: LB-UBS Commercial Mortgage Trust 2007-C6, Commercial Mortgage
Pass-Through Certificates, Series 2007-C6
Ladies and Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement,
dated as of August 13, 2007, relating to LB-UBS Commercial Mortgage Trust
2007-C6, Commercial Mortgage Pass-Through Certificates, Series 2007-C6 (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 ______________ [Loan Combination]
[Trust 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] [Trust 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 LaSalle Bank National Association, as trustee for the holders of the LB-UBS
Commercial Mortgage Trust 2007-C6, Commercial Mortgage Pass-Through
Certificates, Series 2007-C6 (referred to as the "Secured Party" for purposes of
this financing statement only), under that certain Pooling and Servicing
Agreement, dated as of August 13, 2007 (the "Pooling and Servicing Agreement"),
between the Debtor, as depositor, the Secured Party, as trustee (the "Trustee"),
Wachovia Bank, National Association, as master servicer (the "Master Servicer"),
and Midland Loan Services, Inc., as special servicer (the "Special Servicer"),
relating to the issuance of the LB-UBS Commercial Mortgage Trust 2007-C6,
Commercial Mortgage Pass-Through Certificates, Series 2007-C6 (the "Series
2007-C6 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 Trust 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) (a) the UBS/Depositor Mortgage Loan Purchase Agreement;
and (b) the respective Co-Lender Agreements;
(4) (a) the Custodial Accounts 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 Accounts 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 Accounts 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 Accounts, (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, any Loss of Value
Reserve Fund 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, any Loss of Value Reserve Fund 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-C6 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- Trust Mortgage Loan Schedule)
J-4
EXHIBIT K
SUB-SERVICERS IN RESPECT OF WHICH SUB-SERVICING AGREEMENTS ARE IN
EFFECT OR BEING NEGOTIATED AS OF THE CLOSING DATE
Capmark Finance, Inc.
CBRE Melody of Texas, LP
Collateral Real Estate Capital, LLC
Holiday Xxxxxxxx Xxxxxx, X.X.
Xxxxxx, Xxxxxxxx & Xxxxxxx, Inc., d/b/a Xxxxxxx Capital Group of Colorado
Midland Loan Services, Inc.
Northmarq Capital, Inc.
K-1
EXHIBIT L-1
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION
FOR WEBSITE ACCESS FROM CERTIFICATE [HOLDER] [OWNER]
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--
LB-UBS Commercial Mortgage Trust 2007-C6
Wachovia Bank, National Association
NC 1075
8739 Research Drive, URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: LB-UBS Commercial Mortgage Trust 2007-C6
Re: LB-UBS Commercial Mortgage Trust 2007-C6, Commercial Mortgage
Pass-Through Certificates, Series 2007-C6
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of August 13, 2007 (the "Pooling and Servicing Agreement"),
between Structured Asset Securities Corporation II, as depositor (the
"Depositor"), Wachovia Bank, National Association, as master servicer, Midland
Loan Services, Inc., as special servicer, and LaSalle Bank National Association,
as trustee (the "Trustee"), with respect to LB-UBS Commercial Mortgage Trust
2007-C6, Commercial Mortgage Pass-Through Certificates, Series 2007-C6 (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 LB-UBS Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2007-C6, 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
L-1-2
or another Certificateholder, Certificate Owner or 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]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--
LB-UBS Commercial Mortgage Trust 2007-C6
Wachovia Bank, National Association
NC 1075
8739 Research Drive, URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: LB-UBS Commercial Mortgage Trust 2007-C6
Re: LB-UBS Commercial Mortgage Trust 2007-C6, Commercial Mortgage
Pass-Through Certificates, Series 2007-C6
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of August 13, 2007 (the "Pooling and Servicing Agreement"),
between Structured Asset Securities Corporation II, as depositor (the
"Depositor"), Wachovia Bank, National Association, as master servicer, Midland
Loan Services, Inc., as special servicer, and LaSalle Bank National Association,
as trustee (the "Trustee") with respect to LB-UBS Commercial Mortgage Trust
2007-C6, Commercial Mortgage Pass-Through Certificates, Series 2007-C6 (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 LB-UBS Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2007-C6, 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
(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
L-2-2
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 $35,000,000 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: 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
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
From: _____________________________________, in its capacity as master servicer
(the "Master Servicer") under the Pooling and Servicing Agreement dated as
of August 13, 2007 (the "Pooling and Servicing Agreement"), between
Structured Asset Securities Corporation II, as depositor, the Master
Servicer, Midland Loan Services, Inc., as special servicer, and LaSalle
Bank National Association, as trustee (the "Trustee").
Date: _________, 20___
Re: LB-UBS Commercial Mortgage Trust 2007-C6,
Commercial Mortgage Pass-Through Certificates, Series 2007-C6
Mortgage loan (the "Mortgage Loan") identified by loan number _____ on the Trust
Mortgage Loan Schedule attached to the Pooling and Servicing Agreement and
heretofore secured by the Mortgaged [Property] [Properties] identified on the
Trust 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:
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:
M-2
______ 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
______ 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.
M-3
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 intermediary for administering the defeasance
and the securities account and all fees and expenses of maintaining the
existence of the Defeasance Obligor.
M-4
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 $35,000,000 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/DEPOSITOR NOTIFICATION
[Date]
[Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx]
[Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
[UBS Securities LLC
0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx]
[with a copy to Xxxxxx X. Xxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000]
[UBS Real Estate Securities Inc.
0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx]
[with a copy to Xxxxxx X. Xxxxxxx
1285 Avenue of the Americas
New York, New York 10019]
[Banc of America Securities LLC
NC1-027-22-03
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: LB-UBS Commercial Mortgage
Trust 2007-C6] [with a copy to Xxxx
X. Xxxxxxx, Esq.
Bank of America Corporation
000 Xxxxx Xxxxx Xxxxxx
30th Floor, NC1-002-29-01
Charlotte, North Carolina 28255]
Wachovia Bank, National Association
NC 1075
8739 Research Drive, URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: LB-UBS Commercial Mortgage Trust 2007-C6
[Midland Loan Services, Inc.
00000 Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: LB-UBS Commercial Mortgage Trust 2007-C6]
[LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services- LB-UBS
Commercial Mortgage Trust 2007-C6]
[Controlling Class Representative (if known)]
N-1
Re: LB-UBS Commercial Mortgage Trust 2007-C6,
Commercial Mortgage Pass-Through Certificates, Series 2007-C6
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 2.03 of the
Pooling and Servicing Agreement, dated as of August 13, 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 Trust Mortgage Loan Schedule as Mortgage Loan number [__], and
secured by the Mortgaged Property identified on the Trust Mortgage Loan Schedule
as _________________ (the "Subject Trust Mortgage Loan")]; [the Mortgage
Loan/Loans identified on Exhibit A to Schedule I attached hereto (the "Subject
Trust Mortgage Loans")].
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 Trust 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 Trust Mortgage [Loan] [Loans]
within the time period and subject to the conditions
provided for in [Section 2.03(a) of the Agreement]
[Section 5(a) of the UBS/Depositor 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/Depositor 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/Depositor Notification).
______ Under the circumstances contemplated by the last paragraph
of [Section 2.03(a) of the Agreement] [Section 5(a) of the
UBS/Depositor 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 Trust Mortgage [Loan] [Loans];
therefore, we hereby direct
N-2
you to cure the subject Material Document Defect in all
material respects within 15 days of receipt of this
Seller/Depositor 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-3
______ We hereby request that you repurchase the Subject Trust
Mortgage [Loan] [Loans] or any related REO Property to the
extent required by [Section 2.03(a) of the Agreement]
[Section 5(a) of the UBS/Depositor Mortgage Loan Purchase
Agreement].
Very truly yours,
[LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By: _________________________________
Name:
Title:]
[WACHOVIA BANK, NATIONAL ASSOCIATION
as Master Servicer
By: _________________________________
Name:
Title:]
[MIDLAND LOAN SERVICES, INC.,
as Special Servicer
By: _________________________________
Name:
Title:]
In the event this notice constitutes a request to repurchase the
Subject Trust Mortgage [Loan] [Loans], a copy of this Seller/Depositor
Notification has been delivered to each of:
(i) Internal Counsel to the Depositor/Lehman Mortgage Loan
Seller:
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx;
And
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(ii) Counsel to UBS Mortgage Loan Seller:
Cadwalader, Xxxxxxxxxx & Xxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
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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: ___________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
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EXHIBIT O
FORM OF CONTROLLING CLASS REPRESENTATIVE
CONFIDENTIALITY AGREEMENT
[Date]
[LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--
LB-UBS Commercial Mortgage Trust 2007-C6]
Wachovia Bank, National Association
NC 1075
8739 Research Drive, URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: LB-UBS Commercial Mortgage Trust 2007-C6
Midland Loan Services, Inc.
00000 Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: LB-UBS Commercial Mortgage Trust 2007-C6
Re: LB-UBS Commercial Mortgage Trust 2007-C6,
Commercial Mortgage Pass-Through Certificates, Series 2007-C6
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of August 13, 2007 the ("Pooling and Servicing Agreement"),
between Structured Asset Securities Corporation II, as depositor (the
"Depositor"), Wachovia Bank, National Association, as master servicer, Midland
Loan Services, Inc., as special servicer, and LaSalle Bank National Association,
as trustee (the "Trustee"), with respect to LB-UBS Commercial Mortgage Trust
2007-C6, Commercial Mortgage Pass-Through Certificates, Series 2007-C6 (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); 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
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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:
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EXHIBIT P
FORM OF TRUSTEE BACKUP CERTIFICATION
TO BE PROVIDED TO DEPOSITOR
Re: LB-UBS Commercial Mortgage Trust 2007-C6 (the "Trust") Commercial
Mortgage Pass-Through Certificates, Series 2007-C6 (the
"Certificates")
Pursuant to Section 8.15 of the Pooling and Servicing Agreement,
dated as of August 13, 2007 (the "Pooling and Servicing Agreement"), between
Structured Asset Securities Corporation II as depositor (the "Depositor"),
LaSalle Bank National Association as trustee (the "Trustee"), Wachovia Bank,
National Association as master servicer (the "Master Servicer") and Midland Loan
Services, 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
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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: LB-UBS Commercial Mortgage Trust 2007-C6 (the "Trust") Commercial
Mortgage Pass-Through Certificates, Series 2007-C6 (the
"Certificates")
Pursuant to Section 8.15 of the Pooling and Servicing Agreement,
dated as of August 13, 2007 (the "Pooling and Servicing Agreement"), between
Structured Asset Securities Corporation II as depositor (the "Depositor"),
LaSalle Bank National Association as trustee (the "Trustee"), Wachovia Bank,
National Association as master servicer (the "Master Servicer") and Midland Loan
Services, 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, or someone under my supervision has, 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 Trust 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
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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 Trust
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 review 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
significant deficiencies 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.
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 Servicing Agreement, beyond the corresponding certification
actually provided by such Outside
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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:
[NAME OF MASTER SERVICER]
By: _________________________________
Name:
Title:
Q-2
EXHIBIT R
FORM OF SPECIAL SERVICER BACKUP CERTIFICATION
TO BE PROVIDED TO DEPOSITOR/MASTER SERVICER
Re: LB-UBS Commercial Mortgage Trust 2007-C6 (the "Trust") Commercial
Mortgage Pass-Through Certificates, Series 2007-C6 (the
"Certificates")
Pursuant to Section 8.15 of the Pooling and Servicing Agreement,
dated as of August 13, 2007 (the "Pooling and Servicing Agreement"), between
Structured Asset Securities Corporation II as depositor (the "Depositor"),
LaSalle Bank National Association as trustee (the "Trustee"), Wachovia Bank,
National Association as master servicer (the "Master Servicer") and Midland Loan
Services, 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
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conducted in preparing the Special Servicer's Annual Statement of Compliance
under the Pooling and 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
FORM OF OUTSIDE SERVICER/TRUSTEE NOTICE
[Date]
[OUTSIDE MASTER SERVICER]
[OUTSIDE SPECIAL SERVICER]
[OUTSIDE TRUSTEE]
[OTHER SERVICERS UNDER OUTSIDE SERVICING AGREEMENT]
Re: Co-Lender Agreement, dated as of [_________], 200____ (the
"Co-Lender Agreement") among [SPECIFY PARTIES]
Ladies and Gentlemen:
This notice is being delivered to you in connection with the
Co-Lender Agreement and pursuant to Section 3.02(c) and Section 6.11(c) of the
Pooling and Servicing Agreement dated as of August 13, 2007 (the "Agreement")
between Structured Asset Securities Corporation II, as depositor, Wachovia Bank,
National Association, as master servicer (the "Master Servicer", which term
includes any successor entity under the Agreement), Midland Loan Services, Inc.,
as special servicer, and LaSalle Bank National Association, as trustee (the
"Trustee", which term includes any successor entity under the Agreement), which
Agreement relates to the issuance of the LB-UBS Commercial Mortgage Trust
2007-C6, Commercial Mortgage Pass-Through Certificates, Series 2007-C6. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Co-Lender Agreement.
[Notice is hereby given that as of ____________, the "Closing Date"
under the Agreement, the Trustee is the holder of [the Note ___ Mortgage Loan]
[Loan ___] (as defined in the Co-Lender Agreement), and, in that capacity, the
Trustee assumes the rights and obligations of the [Note ____ Lender] [_____
Noteholder] under the Co-Lender Agreement.]
[You are hereby directed to remit to the Master Servicer all amounts
payable to the [Note ___ Lender] [__ Noteholder] under the Co-Lender Agreement
and the governing [Servicing Agreement], to the following account:
[Account holder]
[Address]
ABA: [ ]
Acct: [ ]
Acct #: [ ]
Ref: [Potomac Xxxxx, Loan # [ ]] [Och-Ziff Retail Portfolio, Loan # [ ]]
Location: [________________]
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[You are hereby further directed to forward, deliver, or otherwise
make available to the Master Servicer (and, in the case of CMSA reports, files
and templates the Trustee), all reports, statements, documents, communications
and other information that are to be forwarded, delivered or otherwise made
available to the [Note ___ Lender] [___ Noteholder] under the Co-Lender
Agreement and the governing [Servicing Agreement], to the following: [name of
Master Servicer/address/facsimile number/email address/telephone number], with
(in the case of CMSA reports, files and templates) a copy to [name of
Trustee/address/facsimile number/email address/telephone number.] In connection
with the forgoing, a request is hereby made for the contemporaneous delivery of
all reports (including without limitation all CMSA reports, files and
templates), statements, documents, communications and other information relating
to [the Note _ Mortgage Loan] [Loan _], the related mortgaged real property or
other related collateral, the related borrower or any related guarantor or other
related mortgage loan or mezzanine loan, that you make provide, deliver or
otherwise make available to any other party to the applicable [Servicing
Agreement] or a controlling class representative, operating adviser or similar
party under the applicable [Servicing Agreement].
You are hereby further notified that the trust formed pursuant to
the Agreement is subject to the reporting obligations of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the requirements of Regulation
AB. Please forward all reports, documents and other information required by such
trust with respect to you, your affiliates and/or [the Note _ Mortgage Loan]
[Loan _] as a result thereof, to the Master Servicer and the Trustee at the
addresses stated in the preceding paragraph].
[Please also be advised that [______________], as the initial
"Controlling Class Representative" under the Agreement is, to the fullest extent
permitted under the Co-Lender Agreement, entitled to exercise any rights and
powers of the Trustee, in its capacity as [Note ___ Lender] [___ Noteholder],
under Section ___ of the Co-Lender Agreement.]
[Please also be advised that a new Controlling Class Representative
has been appointed in accordance with Section 6.09(b) of the Agreement, which
new Controlling Class Representative is _________________________ [include
notice information] and such party is, to the fullest extent permitted under the
Co-Lender Agreement, entitled to exercise any rights and powers of the Trustee,
in its capacity as [Note ___ Lender] [___ Noteholder], under Section ___ of the
Co-Lender Agreement.]
Very truly yours,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By: _________________________________
Name:
Title:
c.c. [OTHER RELATED NON-TRUST MORTGAGE LOAN NOTEHOLDERS]
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EXHIBIT T
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 Not Applicable
servicer 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 Trustee
of 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 Special Servicer,
of receipt, or such other number of days specified in the transaction Trustee
agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an Master Servicer,
investor are made only by authorized personnel. Special Servicer,
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
-----------------------------------------------------------------------------------------------------------------------------------
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-----------------------------------------------------------------------------------------------------------------------------------
1122 ITEM DESCRIPTION OF SERVICING CRITERIA RESPONSIBLE PARTY*
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed Master Servicer,
securities related bank accounts, including custodial accounts and related Special Servicer,
bank clearing accounts. These reconciliations: (A) Are mathematically accurate; Trustee
(B) Are 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.
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INVESTOR REMITTANCES AND REPORTING
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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 Special Servicer,
Commission requirements. Specifically, such reports: Trustee
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1122(d)(3)(i)(A) (A) Are prepared in accordance with timeframes and other terms set forth in Master Servicer,
the transaction agreements; Special Servicer,
Trustee
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1122(d)(3)(i)(B) (B) Provide information calculated in accordance with the terms specified in Trustee
the transaction agreements;
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1122(d)(3)(i)(C) (C) Are filed with the Commission as required by its rules and regulations; Trustee
and
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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.
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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.
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1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to Trustee
the servicer's investor records, or such other number of days specified in the
transaction agreements.
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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.
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POOL ASSET ADMINISTRATION
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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,
Trustee
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Master Servicer,
1122(d)(4)(ii) Pool assets and related documents are safeguarded as required by the Special Servicer,
transaction agreements. Trustee
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1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed Master Servicer,
and approved in accordance with any conditions or requirements in the Special Servicer,
transaction agreements. Trustee
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T-2
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1122 ITEM DESCRIPTION OF SERVICING CRITERIA RESPONSIBLE PARTY*
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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.
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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.
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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 Special Servicer
authorized personnel in accordance with the transaction agreements and
related pool asset documents.
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1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications Special Servicer
and deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the transaction agreements.
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1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a Master Servicer,
pool asset is delinquent in accordance with the transaction agreements. Such Special Servicer
records are maintained on at least a monthly basis, or such other period
specified in the transaction agreements, and describe the entity's activities in
monitoring delinquent pool assets including, for example, phone calls, letters
and payment rescheduling plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
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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.
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1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts)
See followings:
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(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;
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(B) Interest on such funds is paid, or credited, to obligors in accordance with Master Servicer
applicable pool asset documents and state laws; and
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(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.
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1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) Master Servicer
are made on or before the related penalty or expiration dates, as indicated on
the appropriate bills or notices for such payments, provided that such support
has been received by the servicer at least 30 calendar days prior to these
dates, or such other number of days specified in the transaction agreements.
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T-3
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1122 ITEM DESCRIPTION OF SERVICING CRITERIA RESPONSIBLE PARTY*
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1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on Master Servicer
behalf of an obligor are paid from the servicer's funds and not charged to the
obligor, unless the late payment was due to the obligor's error or omission.
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1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business Master Servicer
days to the obligor's records maintained by the servicer, or such other
number of days specified in the transaction agreements.
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1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and Master Servicer,
recorded in accordance with the transaction agreements. Special Servicer
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1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1) Not Applicable
through (3) or Item 1115 of this Regulation AB, is maintained as set forth in
the transaction agreements.
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With respect to each Servicing Criteria set forth above in this Exhibit T,
"Responsible Party" shall additionally include any Sub-Servicer, sub-contractor,
vendor, agent, custodian or other Person acting on behalf of such Responsible
Party, which Sub-Servicer, sub-contractor, vendor, agent, custodian 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.
T-4
EXHIBIT U
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: LB-UBS Commercial Mortgage Trust 2007-C6--SEC REPORT PROCESSING
VIA FAX: (000) 000-0000
VIA EMAIL: XXXXX@XXXXXXX.XXX
VIA OVERNIGHT MAIL:
LaSalle Bank National Association, as Trustee
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--LB-UBS Commercial
Mortgage Trust 2007-C6--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 August 13, 2007, between Structured Asset Securities
Corporation II, as Depositor, Wachovia Bank, National Association, as Master
Servicer, Midland Loan Services, Inc., as Special Servicer, and LaSalle Bank
National Association, as Trustee, the undersigned, as [____________], hereby
notifies you that certain events have come to our attention that [will] [may]
need to be disclosed on Form [10-D] [10-K] [8-K].
Description of Exchange Act Reportable Event:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
U-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:
U-2
EXHIBIT V
FORM OF MASTER SERVICER CERTIFICATION
_______________, 2007
To the parties listed on the attached Schedule A
Re: LB-UBS Commercial Mortgage Trust 2007-C6
Commercial Mortgage Pass-Through Certificates, Series 2007-C6
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")]
[______________ (the "Unaffiliated Mortgage Loan Seller") to the LB-UBS
Commercial Mortgage Trust 2007-C6 (the "Trust"), pursuant to that certain
Pooling and Servicing Agreement dated as of August 13, 2007 (the "Pooling and
Servicing Agreement"), between Structured Asset Securities Corporation II as
depositor, Wachovia Bank, National Association ("Wachovia") as master servicer,
Midland Loan Services, Inc. as special servicer and LaSalle Bank National
Association as trustee, the [Depositor] [the Unaffiliated 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] [the Unaffiliated 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] [the Unaffiliated Mortgage Loan Seller] or any affiliate thereof
relating to receipt or delivery of the Mortgage Loan Origination Documents.
V-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:
V-2
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--LB-UBS Commercial Mortgage Trust 2007-C6
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 #: (000) 000-0000
and a copy to:
Midland Loan Services, Inc.
00000 Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: LB-UBS Commercial Mortgage Trust 2007-C6
V-3
SCHEDULE A
(IN THE CASE OF A MASTER SERVICER CERTIFICATION TO AN
UNAFFILIATED MORTGAGE LOAN SELLER)
UBS Real Estate Securities Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
with a copy to Xxxxxx X. Xxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
with a copy to:
Five Mile Capital II CMBS Pooling International LLC
Three Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx and Xxxxxx Xxxxxxx
Facsimile number: (000) 000-0000
and a copy to:
Midland Loan Services, Inc.
00000 Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: LB-UBS Commercial Mortgage Trust 2007-C6
V-1
SCHEDULE B
LB-UBS SERIES 2007-C6
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OPINION GUARANTOR
FINAL FINAL LETTERS OF OR INDEMNITOR
ID LOAN NUMBER/ FINAL FINAL ENGINEERING ENVIRONMENTAL COUNSEL TO ESCROW RESERVE BORROWER ORG. DOCS.
PROPERTY NAME APPRAISAL SURVEY REPORT REPORT BORROWER AGREEMENTS AGREEMENTS ORG. DOCS. IF ENTITY ONLY
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V-2
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INSURANCE GUARANTOR OR
CERTIFICATES MAJOR LEASES FINAL PROPERTY INDEMNITOR PROPERTY CASH
OR INSURANCE (> 10% OF SEISMIC MANAGEMENT OPERATING STATEMENT MANAGEMENT LOCKBOX ZONING LETTERS
REVIEW REPORTS ANNUAL INCOME) REPORT AGREEMENT RENT ROLL AND FINANCIAL STATEMENT AGREEMENT AGREEMENT OR ZONING REPORTS
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V-3
