EXHIBIT 4.1
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
as Depositor,
CAPMARK FINANCE INC.,
as Master Servicer,
MIDLAND LOAN SERVICES, INC.,
as Special Servicer,
and
XXXXX FARGO BANK, N.A.,
as Trustee,
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2007
$3,371,478,040
Commercial Mortgage Pass-Through Certificates
Series 2007-C1
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TABLE OF CONTENTS
Section
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN
CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
Section 1.01 Defined Terms...................................................
Section 1.02 General Interpretive Principles.................................
Section 1.03 Certain Calculations in Respect of the
Mortgage Pool...................................................
Section 1.04 Cross-Collateralized Mortgage Loans.............................
Section 1.05 Certain Adjustments to the Principal
Distributions on the Certificates...............................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF UNCERTIFICATED LOWER-TIER
INTERESTS; EXECUTION OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans....................................
Section 2.02 Acceptance of Mortgage Assets by Trustee........................
Section 2.03 Certain Repurchases and Substitutions of
Mortgage Loans by the Mortgage Loan Sellers
and the Column Performance Guarantor; the
Purchase Price Security Deposit Account and
the Special Reserve Account.....................................
Section 2.04 Representations and Warranties of the
Depositor.......................................................
Section 2.05 Representations and Warranties of the
Master Servicer.................................................
Section 2.06 Representations and Warranties of the
Special Servicer................................................
Section 2.07 Reserved........................................................
Section 2.08 Reserved........................................................
Section 2.09 Representations, Warranties and Covenants
of the Trustee..................................................
Section 2.10 Issuance of Uncertificated Lower-Tier
Interests; Execution of Certificates............................
Section 2.11 Acceptance of Grantor Trust by Trustee;
Issuance of the ClassV and Class A-MFL
Certificates....................................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Mortgage Loans............................
Section 3.02 Collection of Mortgage Loan Payments............................
Section 3.03 Collection of Taxes, Assessments and
Similar Items; Servicing Accounts; Reserve
Accounts........................................................
Section 3.04 Collection Accounts, Distribution Account,
Interest Reserve Account, Excess
Liquidation Proceeds Account, Post-ARD
Additional Interest Distribution Account
and the Floating Rate Account...................................
Section 3.05 Permitted Withdrawals From the Collection
Account, the Distribution Account, the
Interest Reserve Account, the Excess
Liquidation Proceeds Account, the Post-ARD
Additional Interest Distribution Account
and the Floating Rate Account...................................
Section 3.06 Investment of Funds in the Collection
Account, Servicing Accounts, Reserve
Accounts, Distribution Account, Interest
Reserve Account, Excess Liquidation
Proceeds Account, Post-ARD Additional
Interest Distribution Account, Floating
Rate Account and the REO Account................................
Section 3.07 Maintenance of Insurance Policies; Errors
and Omissions and Fidelity Coverage.............................
Section 3.08 Enforcement of Alienation Clauses...............................
Section 3.09 Realization Upon Defaulted Mortgage Loans.......................
Section 3.10 Trustee to Cooperate; Release of Mortgage
Files...........................................................
Section 3.11 Master Servicing and Special Servicing
Compensation; Interest on and Reimbursement
of Servicing Advances; Payment of Certain
Expenses; Obligations of the Trustee
Regarding Back-up Servicing Advances............................
Section 3.12 Property Inspections; Collection of
Financial Statements; Delivery of Certain
Reports.........................................................
Section 3.13 [Reserved]......................................................
Section 3.14 [Reserved]......................................................
Section 3.15 Access to Certain Information...................................
Section 3.16 Title to REO Property; REO Account..............................
Section 3.17 Management of REO Property......................................
Section 3.18 Fair Value Purchase Option; Sale of REO
Properties......................................................
Section 3.19 Additional Obligations of Master Servicer.......................
Section 3.20 Modifications, Waivers, Amendments and
Consents........................................................
Section 3.21 Transfer of Servicing Between Master
Servicer and Special Servicer; Record
Keeping.........................................................
Section 3.22 Sub-Servicing Agreements........................................
Section 3.23 Controlling ClassRepresentative................................
Section 3.24 Certain Rights and Powers of the
Controlling ClassRepresentative................................
Section 3.25 Replacement of Special Servicer.................................
Section 3.26 Application of Default Charges..................................
Section 3.27 Authenticating Agent............................................
Section 3.28 Swap Agreement..................................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions...................................................
Section 4.02 Trustee Report; Certain Other Reports...........................
Section 4.03 P&I Advances....................................................
Section 4.04 Allocation of Realized Losses and
Additional Trust Fund Expenses..................................
Section 4.05 Calculations....................................................
Section 4.06 Grantor Trust Reporting.........................................
Section 4.07 Compliance with Withholding Requirements........................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates................................................
Section 5.02 Registration of Transfer and Exchange of
Certificates....................................................
Section 5.03 Book-Entry Certificates.........................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen
Certificates....................................................
Section 5.05 Persons Deemed Owners...........................................
Section 5.06 Certification by Certificateholders and
Certificate Owners..............................................
Section 5.07 Appointment of Paying Agent.....................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
Section 6.01 Liability of the Depositor, the Master
Servicer and the Special Servicer...............................
Section 6.02 Merger, Consolidation or Conversion of the
Depositor, the Master Servicer or the
Special Servicer................................................
Section 6.03 Limitation on Liability of the Trustee, the
Depositor, the Master Servicer, the Special
Servicer and Others.............................................
Section 6.04 Resignation of the Master Servicer or the
Special Servicer................................................
Section 6.05 Rights of the Depositor and the Trustee in
Respect of the Master Servicer and the
Special Servicer................................................
Section 6.06 Master Servicer or Special Servicer as
Owner of a Certificate..........................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default...............................................
Section 7.02 Trustee to Act; Appointment of Successor........................
Section 7.03 Notification to Certificateholders..............................
Section 7.04 Waiver of Events of Default.....................................
Section 7.05 Trustee Advances................................................
ARTICLE VIII
THE TRUSTEE
Section 8.01 Duties of Trustee...............................................
Section 8.02 Certain Matters Affecting the Trustee...........................
Section 8.03 Trustee Not Liable for Validity or
Sufficiency of Certificates or Mortgage
Loans...........................................................
Section 8.04 Trustee May Own Certificates....................................
Section 8.05 Fees and Expenses of Trustee;
Indemnification of and by Trustee...............................
Section 8.06 Eligibility Requirements for Trustee............................
Section 8.07 Resignation and Removal of Trustee..............................
Section 8.08 Successor Trustee...............................................
Section 8.09 Merger or Consolidation of Trustee..............................
Section 8.10 Appointment of Co-Trustee or Separate
Trustee.........................................................
Section 8.11 Appointment of Custodians.......................................
Section 8.12 Access to Certain Information...................................
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation
of All Mortgage Loans...........................................
Section 9.02 Additional Termination Requirements.............................
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 Tax Administration..............................................
Section 10.02 Depositor, Master Servicer and Special
Servicer to Cooperate with Trustee..............................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.......................................................
Section 11.02 Recordation of Agreement; Counterparts..........................
Section 11.03 Limitation on Rights of Certificateholders
and B Loan Holders..............................................
Section 11.04 Governing Law...................................................
Section 11.05 Notices.........................................................
Section 11.06 Severability of Provisions......................................
Section 11.07 Successors and Assigns; Beneficiaries...........................
Section 11.08 Article and Section Headings....................................
Section 11.09 Notices to and from the Rating Agencies and
the Depositor...................................................
Section 11.10 Notices to Controlling ClassRepresentative.....................
Section 11.11 Complete Agreement..............................................
Section 11.12 Grant of a Security Interest....................................
ARTICLE XII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 12.01 Intent of the Parties; Reasonableness...........................
Section 12.02 Reserved........................................................
Section 12.03 Information to be Provided by the Master
Servicer, the Special Servicer, the Trustee
and each Servicing Function Participant.........................
Section 12.04 Reserved........................................................
Section 12.05 Filing Obligations..............................................
Section 12.06 Form 10-D Filings...............................................
Section 12.07 Form 10-K Filings...............................................
Section 12.08 Xxxxxxxx-Xxxxx Certification....................................
Section 12.09 Form 8-K Filings................................................
Section 12.10 Form 15 Filing; Incomplete Exchange Act
Filings; Amendments to Exchange Act Reports.....................
Section 12.11 Annual Compliance Statements....................................
Section 12.12 Annual Reports on Assessment of Compliance
with Servicing Criteria.........................................
Section 12.13 Annual Independent Public Accountants'
Attestation.....................................................
Section 12.14 Exchange Act Reporting Indemnification..........................
Section 12.15 Amendments......................................................
Section 12.16 Exchange Act Report Signatures; Delivery of
Notices; Interpretation of Grace Periods........................
Section 12.17 Termination of the Trustee......................................
EXHIBITS
EXHIBIT A-1 Form of Class A-SP and Class A-X Certificates
EXHIBIT A-2 Form of Class X-0, Xxxxx X-0, Class A-AB, Class A-3, Class
A-1-A, Class A-M and Class A-J Certificates
EXHIBIT A-3 Form of Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L and Class M, Class N, Class O,
Class P, Class Q, Class S and Class T Certificates
EXHIBIT A-4 Form of Class A-MFL Certificates
EXHIBIT A-5 Form of Class V Certificates
EXHIBIT A-6 Form of Class R and Class LR Certificates
EXHIBIT B-1A Schedule of Original Column Mortgage Loans
EXHIBIT B-1B Schedule of Original Capmark Mortgage Loans
EXHIBIT B-2 Schedule of Exceptions to Mortgage File Delivery
EXHIBIT B-3 Form of Custodial Certification
EXHIBIT B-4 Schedule of Mortgage Loans Covered by
Environmental Insurance
EXHIBIT C [Reserved]
EXHIBIT D-1 Form of Master Servicer Request for Release
EXHIBIT D-2 Form of Special Servicer Request for Release
EXHIBIT E Form of Trustee Report
EXHIBIT F-1A Form I of Transferor Certificate for Transfers of
Non-Registered Certificates
EXHIBIT F-1B Form II of Transferor Certificate for Transfers of
Non-Registered Certificates
EXHIBIT F-1C Form I of Transferor Certificate for Transfers of Interests
in Global Certificates for Classes of Non-Registered Certificates
EXHIBIT F-1D Form II of Transferor Certificate for Transfers of Interests
in Global Certificates for Classes of Non-Registered Certificates
EXHIBIT F-2A Form I of Transferee Certificate for Transfers of
Non-Registered Certificates Held in Physical Form
EXHIBIT F-2B Form II of Transferee Certificate for Transfers of
Non-Registered Certificates Held in Physical Form
EXHIBIT F-2C Form I of Transferee Certificate for Transfers of Interests
in Non-Registered Certificates Held in Book-Entry Form
EXHIBIT F-2D Form II of Transferee Certificate for Transfers of Interests
in Non-Registered Certificates Held in Book-Entry Form
EXHIBIT G-1 Form of Transferee Certificate in Connection with ERISA
(Non-Registered Certificates and Non-Investment Grade
Certificates Held in Fully-Registered, Certificated Form)
EXHIBIT G-2 Form of Transferee Certificate in Connection with ERISA
(Non-Registered Certificates Held in Book-Entry Form)
EXHIBIT H-1 Form of Residual Transfer Affidavit for Transfers of Class R
and Class LR Certificates
EXHIBIT H-2 Form of Transferor Certificate for Transfers of Class R and
Class LR Certificates
EXHIBIT I-1 Form of Notice and Acknowledgment Concerning
Replacement of Special Servicer
EXHIBIT I-2 Form of Acknowledgment of Proposed Special Servicer
EXHIBIT J Schedule of Reference Rates
EXHIBIT K-1 Form of Information Request from Certificateholder
or Certificate Owner
EXHIBIT K-2 Form of Information Request from Prospective
Investor
EXHIBIT L Schedule of Designated Sub-Servicers
EXHIBIT M Form of Xxxxxxxx-Xxxxx Certification
EXHIBIT N [Reserved]
EXHIBIT O [Reserved]
EXHIBIT P Class A-AB Targeted Principal Balance Table
EXHIBIT R [Reserved]
EXHIBIT S [Reserved]
EXHIBIT T [Reserved]
EXHIBIT U Relevant Servicing Criteria
EXHIBIT V Additional Form 10-D Disclosure
EXHIBIT W Additional Form 10-K Disclosure
EXHIBIT X Form 8-K Disclosure
EXHIBIT Y Additional Notification Disclosure
This Pooling and Servicing Agreement is dated and effective
as of March 1, 2007, among CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., as Depositor, CAPMARK FINANCE INC., as Master
Servicer, MIDLAND LOAN SERVICES, INC., as Special Servicer, and XXXXX
FARGO BANK, N.A., as Trustee.
PRELIMINARY STATEMENT:
Column Financial, Inc. (together with its successors in interest,
"Column") has sold to Credit Suisse First Boston Mortgage Securities Corp.
(together with its successors in interest, the "Depositor"), pursuant to the
Mortgage Loan Purchase Agreement dated as of March 1, 2007 (as such may from
time to time hereafter be amended, modified, supplemented and/or restated, the
"Column Mortgage Loan Purchase Agreement"), between Column as seller (in such
capacity, the "Column Mortgage Loan Seller") and the Depositor as purchaser,
those mortgage loans initially identified on the schedule attached hereto as
Exhibit B-1A (such mortgage loans, the "Original Column Mortgage Loans").
Capmark Finance Inc. (together with its successors in interest,
"Capmark") has sold to the Depositor, pursuant to the Mortgage Loan Purchase
Agreement dated as of March 1, 2007 (as such may from time to time hereafter be
amended, modified, supplemented and/or restated, the "Capmark Mortgage Loan
Purchase Agreement"), between Capmark as seller (in such capacity, the "Capmark
Mortgage Loan Seller") and the Depositor as purchaser, those mortgage loans
initially identified on the schedule attached hereto as Exhibit B-1B (such
mortgage loans, the "Original Capmark Mortgage Loans").
The Depositor desires, among other things, to: (i) establish a trust
fund, consisting primarily of the Original Column Mortgage Loans and the
Original Capmark Mortgage Loans (collectively, the "Original Mortgage Loans")
and certain related rights, funds and property; (ii) cause the issuance of
mortgage pass-through certificates in multiple classes, which certificates will,
in the aggregate, evidence the entire beneficial ownership interest in such
trust fund; and (iii) provide for the servicing and administration of the
mortgage loans, including the Original Mortgage Loans, and the other assets that
from time to time constitute part of such trust fund.
Xxxxx Fargo Bank, N.A. (together with its successors in interest,
"Xxxxx Fargo") desires to act as trustee hereunder (in such capacity, the
"Trustee"); Capmark desires to act as master servicer hereunder (in such
capacity, the "Master Servicer"); Midland Loan Services, Inc. (together with its
successors in interest, "Midland") desires to act as special servicer hereunder
(in such capacity, the "Special Servicer").
As provided herein, the Trustee shall elect or shall cause an
election to be made that each of the Upper-Tier REMIC and the Lower-Tier REMIC
(as defined herein) be treated for federal income tax purposes as a "real estate
mortgage investment conduit" (a "REMIC").
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Mortgage Loans and certain other related assets
subject to this Agreement as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as the "Lower-Tier REMIC." The
Class LA-1-1, Class LA-1-2, Class LA-2-1, Class LA-2-2, Class XX-0-0, Xxxxx
XX-XX-0, Class LA-AB-2, Class LA-AB-3, Class LA-AB-4, Class LA-3-1, Class
LA-3-2, Class LA-3-3, Class LA-3-4, Class LA-3-5, Class LA-1-A-1, Class
LA-1-A-2, Class LA-1-A-3, Class LA-1-A-4, Class LA-1-A-5, Class LA-1-A-6, Class
LA-1-A-7, Class LA-1-A-8, Class LA-M, Class LA-MFL, Class LA-J, Class LB, Class
LC-1, Class LC-2, Class LD-1, Class LD-2, Class LE, Class LF-1, Class LF-2,
Class LG, Class LH, Class LJ, Class LK, Class LL, Class LM, Class LN, Class LO,
Class LP, Class LQ, Class LS and Class LT Uncertificated Interests will evidence
"regular interests" in the Lower-Tier REMIC (the "Uncertificated Lower-Tier
Interests") created hereunder. The sole class of "residual interests" in the
Lower-Tier REMIC created hereunder will be evidenced by the Class LR
Certificates.
As further provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the Uncertificated Lower-Tier 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 the "Upper-Tier REMIC." The Class A-1, Class A-2, Class A-AB,
Class A-3, Class A-1-A, Class A-SP, Class A-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 O, Class P, Class Q, Class S, and Class T Certificates
and the Class A-MFL Regular Interest will evidence "regular interests" in the
Upper-Tier REMIC created hereunder. The sole class of "residual interests" in
the Upper-Tier REMIC created hereunder will be evidenced by the Class R
Certificates.
The portion of the Trust Fund representing Post-ARD Additional
Interest and the Post-ARD Additional Interest Distribution Account shall be
treated as a grantor trust under subpart E, Part I of subchapter J of the Code.
The portion of the Trust Fund representing the Class A-MFL Regular Interest, the
Swap Agreement and the Floating Rate Account shall be treated as a grantor trust
under subpart E, Part I of subchapter J of the Code. The Class V Certificates
will represent undivided beneficial interests in the portion of the Trust Fund
consisting of the Post-ARD Additional Interest and the Post-ARD Additional
Interest Distribution Account. The Class A-MFL Certificates will represent
undivided beneficial interests in the Class A-MFL Regular Interest, the Swap
Agreement and the Floating Rate Account. Additionally, the Trust Fund shall not
include any B Loan, any interest of the holders of any B Loan or any A/B Loan
Pair Custodial Account.
The following table sets forth the designation, the initial
pass-through rate (the "Pass-Through Rate"), the aggregate initial principal
amount (the "Original Certificate Balance") or notional balance ("Original Class
Notional Amount"), as applicable, and the initial ratings given each Class (as
indicated below) by the Rating Agencies (as defined herein) for each Class of
Certificates comprising the interests in the Upper-Tier REMIC created hereunder:
UPPER-TIER REMIC
Original Certificate
Balance (or, in the
Initial case of the Class A-X Initial
Class Pass-Through Certificates, Original Ratings(1)
Designation Rate Class Notional Amount) Xxxxx'x/Fitch
----------- ------------ ---------------------- -------------
Class A-1 5.2270% $40,000,000 Aaa/AAA
Class A-2 5.2680% $139,000,000 Aaa/AAA
Class A-AB 5.3360% $98,301,000 Aaa/AAA
Class A-3 5.3830% $758,000,000 Aaa/AAA
Class A-1-A 5.3610% $1,324,733,000 Aaa/AAA
Class A-M 5.4160% $212,148,000 Aaa/AAA
Class A-MFL 5.4160%(2) $125,000,000(3) Aaa/AAA
Class A-J 5.4570%(4) $286,576,000 Aaa/AAA
Class A-SP 0.6211%(5) $3,158,284,000(6) Aaa/AAA
Class A-X 0.0580%(7) $3,371,478,040(6) Aaa/AAA
Class B 5.4870%(8) $25,286,000 Aa1/AA+
Class C 5.5170%(9) $37,929,000 Aa2/AA
Class D 5.5460%(10) $33,715,000 Aa3/AA-
Class E 5.5760%(11) $21,071,000 A1/A+
Class F 5.5960%(12) $29,501,000 A2/A
Class G 5.6250%(13) $33,715,000 A3/A-
Class H 6.0369%(14) $37,929,000 Baa1/BBB+
Class J 6.0369%(14) $33,714,000 Baa2/BBB
Class K 6.0369%(14) $37,930,000 Baa3/BBB-
Class L 5.0500% $8,428,000 Ba1/BB+
Class M 5.0500% $12,643,000 Ba2/BB
Class N 5.0500% $8,429,000 Ba3/BB-
Class O 5.0500% $8,429,000 B1/B+
Class P 5.0500% $8,428,000 B2/B
Class Q 5.0500% $8,429,000 B3/B-
Class S 5.0500% $12,643,000 Caa2/CCC
Class T 5.0500% $29,501,040 NR/NR
Class R None(15) None(15) NR/NR
----------
(1) The Certificates marked "NR" have not been rated by the applicable Rating
Agency.
(2) See definition of "Class A-MFL Regular Interest Pass-Through Rate" herein.
(3) The lesser of 5.4570% and the Weighted Average Net Mortgage Rate.
(4) The Class A-MFL Certificate Balance will equal the Class A-MFL Regular
Interest balance.
(5) The Class A-SP Pass-Through Rate, as defined herein.
(6) Original Class Notional Amount. The Class A-X Certificates will not have a
Class Principal Balance and will not be entitled to receive distributions
of principal.
(7) The Class A-X Pass-Through Rate, as defined herein.
(8) The lesser of 5.4870% and the Weighted Average Net Mortgage Rate.
(9) The lesser of 5.5170% and the Weighted Average Net Mortgage Rate.
(10) The lesser of 5.5460% and the Weighted Average Net Mortgage Rate.
(11) The lesser of 5.5760% and the Weighted Average Net Mortgage Rate.
(12) The lesser of 5.5960% and the Weighted Average Net Mortgage Rate.
(13) The lesser of 5.6250% and the Weighted Average Net Mortgage Rate.
(14) The Weighted Average Net Mortgage Rate.
(15) The Class R Certificates will not have a Class Principal Balance or Class
Notional Amount, will not bear interest and will not be entitled to
distributions of Yield Maintenance Charges. Any Available Distribution
Amounts remaining in the Upper-Tier Distribution Account after all
required distributions under this Agreement have been made to each other
Class of Certificates will be distributed to the Holders of the Class R
Certificates as owners of the residual interests in the Upper-Tier REMIC.
The following table sets forth the original Lower-Tier Principal
Amounts or original Class Notional Amounts, as applicable, and per annum rates
of interest for the Uncertificated Lower-Tier Interests and the Class LR
Certificates:
LOWER-TIER REMIC
Class of Original Lower-Tier
Uncertificated Principal Amount or
Lower-Tier Interest Original Class
Interests Rate Notional Amount
-------------- -------- -------------------
Class LA-1-1 (1) $5,287,000
Class LA-1-2 (1) $34,713,000
Class LA-2-1 (1) $44,834,000
Class LA-2-2 (1) $83,489,000
Class LA-2-3 (1) $10,677,000
Class LA-AB-1 (1) $291,000
Class LA-AB-2 (1) $16,907,000
Class LA-AB-3 (1) $40,527,000
Class LA-AB-4 (1) $40,576,000
Class LA-3-1 (1) $69,870,000
Class LA-3-2 (1) $176,516,000
Class LA-3-3 (1) $54,120,000
Class LA-3-4 (1) $47,303,000
Class LA-3-5 (1) $410,191,000
Class LA-1-A-1 (1) $1,404,000
Class LA-1-A-2 (1) $49,059,000
Class LA-1-A-3 (1) $50,598,000
Class LA-1-A-4 (1) $48,421,000
Class LA-1-A-5 (1) $235,310,000
Class LA-1-A-6 (1) $40,358,000
Class LA-1-A-7 (1) $189,167,000
Class LA-1-A-8 (1) $710,416,000
Class LA-M (1) $212,148,000
Class LA-MFL (1) $125,000,000
Class LA-J (1) $286,576,000
Class LB (1) $25,286,000
Class LC-1 (1) $26,667,000
Class LC-2 (1) $11,262,000
Class LD-1 (1) $15,156,000
Class LD-2 (1) $18,559,000
Class LE (1) $21,071,000
Class LF-1 (1) $12,489,000
Class LF-2 (1) $17,012,000
Class LG (1) $33,715,000
Class LH (1) $37,929,000
Class LJ (1) $33,714,000
Class LK (1) $37,930,000
Class LL (1) $8,428,000
Class LM (1) $12,643,000
Class LN (1) $8,429,000
Class LO (1) $8,429,000
Class LP (1) $8,428,000
Class LQ (1) $8,429,000
Class LS (1) $12,643,000
Class LT (1) $29,501,040
Class LR N/A(2) N/A(2)
------
(1) The interest rate of each of the indicated Classes of Uncertificated
Lower-Tier Interests is the Weighted Average Net Mortgage Rate.
(2) The Class LR Certificates will not have a Class Principal Balance or Class
Notional Amount, will not bear interest and will not be entitled to
distributions of Yield Maintenance Charges. Any Available Distribution
Amounts remaining in the Lower-Tier Distribution Account after
distributing the Lower-Tier Distribution Amount on each Distribution Date
shall be distributed to the Holders of the Class LR Certificates as owners
of the residual interests in the Lower-Tier REMIC.
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN
CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
Section 1.01 Defined Terms
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the meanings specified in this
Section 1.01, subject to modification in accordance with Section 1.04.
"30/360 Basis" shall mean the accrual of interest calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan" shall mean a Mortgage Loan that accrues
interest on a 30/360 Basis.
"A Loan" shall mean, any of the Mortgage Loans secured by the
Mortgaged Properties identified on the Mortgage Loan Schedule as Xxxxxxxx XX,
Xxxxxxxx Xxxx Xxxxxxxxxx, Xxxxxx Xxxxxxx Apartments and Timmaron Apartments,
respectively.
"A Note" shall mean, with respect to any A Loan, the Mortgage Note
included in the Trust, which is senior in right of payment to the related B
Loan, if any, to the extent set forth in the related A/B Intercreditor
Agreement.
"A/B Intercreditor Agreement" shall mean, with respect to each A/B
Loan Pair, the related intercreditor agreement to be entered into by and between
the holders of the related A Loan and the B Loan Holder relating to the relative
rights of such holders of the respective A Loan and B Loan, as the same may be
further amended from time to time in accordance with the terms thereof.
"A/B Loan Pair" shall mean, any A Loan, together with the related B
Loan.
"A/B Loan Pair Custodial Account" shall mean, each of the custodial
sub-account(s) of the Collection Account (but which are not included in the
Trust) created and maintained by the Master Servicer pursuant to Section 3.04 on
behalf of the B Loan Holder. Any such sub-account(s) shall be maintained as a
sub-account of an Eligible Account.
"A/B Material Default" shall mean, with respect to any A/B Loan
Pair, a "Material Default" under, and within the meaning of, the related A/B
Intercreditor Agreement.
"Acquisition Date" shall mean, with respect to any REO Property, the
first day on which such REO Property is considered to be acquired on behalf of
the Trust and the Lower-Tier REMIC (and, if applicable, the holder of any
related B Loans) within the meaning of Treasury Regulations Section
1.856-6(b)(1), which is the first day on which the Lower-Tier REMIC is treated
as the owner of the Trust's interest in such REO Property for federal income tax
purposes.
"Actual/360 Basis" shall mean the accrual of interest calculated on
the basis of the actual number of days elapsed during any calendar month (or
other applicable recurring accrual period) in a year assumed to consist of 360
days.
"Actual/360 Mortgage Loan" shall mean a Mortgage Loan that accrues
interest on an Actual/360 Basis.
"Additional Collateral" shall mean any non-real property collateral
(including any Letter of Credit) pledged and/or delivered by or on behalf of the
related Borrower and held by the related Mortgagee to secure payment on any
Mortgage Loan.
"Additional Disclosure Notification" shall mean the form of
notification to be included with any Additional Form 10-D Disclosure, Additional
Form 10-K Disclosure or Form 8-K Disclosure Information which is attached hereto
as Exhibit Y.
"Additional Form 10-D Disclosure" shall have the meaning assigned
thereto in Section 12.06.
"Additional Form 10-K Disclosure" shall have the meaning assigned
thereto in Section 12.07.
"Additional Master Servicing Compensation" shall have the meaning
assigned thereto in Section 3.11(b).
"Additional Servicer" shall mean, individually or collectively, (x)
each Affiliate of any party as described by Section 1108(a)(2)(ii) of Regulation
AB that Services any of the Mortgage Loans and (y) each Person who is not an
Affiliate of any party as described by Section 1108(a)(2)(iii) of Regulation AB,
other than the Master Servicer, the Special Servicer and the Trustee, who
Services 10% or more of the Mortgage Loans (calculated by Stated Principal
Balance).
"Additional Special Servicing Compensation" shall have the meaning
assigned thereto in Section 3.11(d).
"Additional Trust Fund Expense" shall mean any expense of the Trust
Fund that (i) arises out of a default on a Mortgage Loan or an A/B Loan Pair,
(ii) arises out of an otherwise unanticipated event, (iii) is not covered by a
Servicing Advance or a corresponding collection from the related Borrower and
(iv) does not represent a loss on a Mortgage Loan arising from the inability of
the Master Servicer and/or the Special Servicer to collect all amounts due and
owing under the Mortgage Loan, including by reason of the fraud or bankruptcy of
the Borrower or, to the extent not covered by insurance, a casualty of any
nature at a Mortgaged Property; provided, however, that, "Additional Trust Fund
Expense" shall not include any of the foregoing amounts that have been recovered
from the related Borrower or Mortgaged Property.
"Administrative Fee Rate" shall mean, with respect to each Mortgage
Loan (and any successor REO Mortgage Loan), the sum of the related Master
Servicing Fee Rate, plus the Trustee Fee Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Advance Interest" shall mean the interest accrued on any Advance at
the Reimbursement Rate, which is payable to the party hereto that made that
Advance, all in accordance with Section 3.11(g) or Section 4.03(d), as
applicable.
"Adverse Grantor Trust Event" shall mean either: (i) any impairment
of the status of the Grantor Trust as a "grantor trust"; or (ii) the imposition
of a tax upon the Grantor Trust Pool or any of its assets or transactions.
"Adverse Rating Event" shall mean, with respect to any Class of
Rated Certificates and each Rating Agency that has assigned a rating thereto, as
of any date of determination, the qualification, downgrade or withdrawal of the
rating then assigned to such Class of Rated Certificates by such Rating Agency
(or the placing of such Class of Rated Certificates on "negative credit watch"
status in contemplation of any such action with respect thereto).
"Adverse REMIC Event" shall mean either: (i) any impairment of the
status of either the Upper-Tier REMIC or Lower-Tier REMIC as a REMIC; or (ii)
except as permitted by Section 3.17(a), the imposition of a tax upon either the
Upper-Tier REMIC or Lower-Tier REMIC or any of its assets or transactions
(including the tax on prohibited transactions as defined in Section 860F(a)(2)
of the Code and the tax on contributions set forth in Section 860G(d) 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, as it
may be amended, modified, supplemented or restated following the Closing Date.
"A.M. Best" shall mean A.M. Best Company or its successor in
interest.
"Anthracite" shall mean Anthracite Capital, Inc., the
initial Controlling Class Representative.
"Anticipated Repayment Date" shall mean, with respect to any ARD
Mortgage Loan, the date specified in the related Mortgage Note, as of which
Post-ARD Additional Interest shall begin to accrue on such Mortgage Loan, which
date is prior to the Stated Maturity Date for such Mortgage Loan.
"Appraisal" shall mean, with respect to any Mortgaged Property or
REO Property as to which an appraisal is required to be performed pursuant to
the terms of this Agreement, a narrative appraisal complying with USPAP (or, in
the case of a Mortgage Loan or an REO Mortgage Loan with a Stated Principal
Balance as of the date of such appraisal of $2,000,000 or less, unless the
Controlling Class Representative permits a narrative appraisal, either a limited
appraisal, a summary report or an internal valuation prepared by the Special
Servicer) that (i) indicates the "market value" of the subject property (within
the meaning of 12 C.F.R. ss. 225.62(g)) and (ii) is conducted by a Qualified
Appraiser (except that, in the case of a Mortgage Loan or an REO Mortgage Loan
with a Stated Principal Balance as of the date of such appraisal of $2,000,000
or less, unless the Controlling Class Representative permits the use of a
Qualified Appraiser, the Person performing such limited appraisal, summary
report or internal valuation may be an employee of the Special Servicer, which
employee need not be a Qualified Appraiser but shall have experience in
commercial and/or multifamily properties, as the case may be, and possess
sufficient knowledge to value such a property).
"Appraisal Reduction Amount" shall mean, for any Distribution Date,
with respect to any Required Appraisal Loan, an amount calculated by the Special
Servicer equal to the excess, if any, of:
(1) the sum of (a) the Stated Principal Balance of such Required
Appraisal Loan as of such Determination Date, (b) to the extent not
previously advanced by or on behalf of the Master Servicer or the Trustee,
all unpaid interest (net of Default Interest and, in the case of an ARD
Mortgage Loan after its Anticipated Repayment Date, Post-ARD Additional
Interest) accrued on such Required Appraisal Loan through the most recent
Due Date prior to such Determination Date, (c) all accrued but unpaid
Special Servicing Fees accrued with respect to such Required Appraisal
Loan, (d) all related unreimbursed Advances (or any Advances reimbursed by
the Trust Fund out of general collections on the Mortgage Pool) made by or
on behalf of the Master Servicer, the Special Servicer or the Trustee with
respect to such Required Appraisal Loan, together with all unpaid Advance
Interest accrued on such Advances, and (e) all currently due but unpaid
real estate taxes and assessments, insurance premiums and, if applicable,
ground rents in respect of the related Mortgaged Property or REO Property,
as applicable; over
(2) the sum of (x) the excess, if any, of (i) 90% of the Appraised
Value (subject to such downward adjustment as the Special Servicer deems
appropriate in accordance with the Servicing Standard, without implying
any obligation to do so) of the related Mortgaged Property or REO
Property, as applicable, as determined by the most recent relevant
Appraisal acceptable for purposes of Section 3.19(c) hereof, over (ii) the
amount of any obligation(s) secured by any liens on such Mortgaged
Property or REO Property, as applicable, that are prior to the lien of
such Required Appraisal Loan, and (y) any Escrow Payments, Reserve Funds
and/or Letters of Credit held by the Master Servicer or the Special
Servicer with respect to such Required Appraisal Loan, the related
Mortgaged Property or any related REO Property (exclusive of any such
Escrow Payments and Reserve Funds, the application of which was assumed in
determining the Appraised Value of the related Mortgaged Property or REO
Property, as applicable, referred to in clause (2)(x)(i) of this
definition).
Notwithstanding the foregoing, if (i) an Appraisal Trigger Event
occurs with respect to any Mortgage Loan, (ii) either (A) no Appraisal has been
obtained or conducted, as applicable in accordance with Section 3.19(c), with
respect to the related Mortgaged Property during the 12-month period prior to
the date of such Appraisal Trigger Event or (B) there shall have occurred since
the date of the most recent Appraisal a material change in the circumstances
surrounding the related Mortgaged Property that would, in the Special Servicer's
judgment, materially affect the value of the property as reflected in such
Appraisal, and (iii) no new Appraisal is obtained or conducted, as applicable in
accordance with Section 3.19(c), within 60 days after such Appraisal Trigger
Event, then (x) until such new Appraisal is obtained or conducted, as applicable
in accordance with Section 3.19(c), the Appraisal Reduction Amount shall equal
25% of the Stated Principal Balance of such Required Appraisal Loan, and (y)
upon receipt or performance, as applicable in accordance with Section 3.19(c),
of such new Appraisal by the Special Servicer, the Appraisal Reduction Amount
for such Required Appraisal Loan will be recalculated in accordance with the
preceding sentence of this definition.
Notwithstanding the foregoing, in the case of any A Loan (or any
successor REO Mortgage Loan with respect thereto), any Appraisal Reduction
Amount will be calculated in respect of the subject A/B Loan Pair (or any
successor REO Mortgage Loans with respect thereto), as if it were a single
underlying mortgage loan, and then allocated, first, to the related B Loan (or
any successor REO Mortgage Loan with respect thereto), up to the amount of its
unpaid principal balance, and second, to the subject A Loan (or any successor
REO Mortgage Loan with respect thereto).
"Appraisal Trigger Event" shall mean, with respect to any Mortgage
Loan, any of the following events:
(i) such Mortgage Loan becomes a Modified Mortgage Loan (other
than solely as a result of an extension of the maturity date
for less than six months);
(ii) any Monthly Payment with respect to such Mortgage Loan remains
unpaid for 60 days past the Due Date for such payment (or,
with respect to a Balloon Payment, 90 days past the Due Date
or, if the related Borrower has delivered to the Master
Servicer a refinancing commitment reasonably acceptable to the
Special Servicer and continues to pay the Assumed Monthly
Payment, for such longer period (not to exceed 150 days past
the Due Date for such Balloon Payment) during which such
refinancing would occur);
(iii) the passage of 60 days after the Special Servicer receives
notice that the Borrower under such Mortgage Loan has become
the subject of bankruptcy, insolvency or similar proceedings,
which proceedings remain undischarged and undismissed at the
end of such 60-day period;
(iv) the passage of 60 days after the Special Servicer receives
notice that a receiver or similar official has been appointed
with respect to the related Mortgaged Property (provided that
such receiver or similar official continues in that capacity
at the end of such 60-day period); or
(v) the related Mortgaged Property becomes an REO Property.
"Appraised Value" shall mean with respect to each Mortgaged Property
or REO Property, the appraised value thereof (as is) based upon the most recent
Appraisal obtained or conducted, as appropriate, pursuant to this Agreement or
obtained in connection with the origination of the related Mortgage Loan.
"ARD Mortgage Loan" shall mean a Mortgage Loan that provides for the
accrual of Post-ARD Additional Interest thereon if such Mortgage Loan is not
paid in full on or prior to its Anticipated Repayment Date.
"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 related Borrower in connection with the origination
of the related Mortgage Loan, as such assignment may be amended, modified,
renewed or extended through the date hereof and from time to time hereafter.
"Assumed Monthly Payment" shall mean:
(a) with respect to any Balloon Mortgage Loan delinquent in respect
of its Balloon Payment beyond the Determination Date immediately following
its scheduled maturity date (as such date may be extended in connection
with a bankruptcy, insolvency or similar proceeding involving the related
Borrower or by reason of a modification, waiver or amendment granted or
agreed to by the Master Servicer or the Special Servicer pursuant to
Section 3.20), for that scheduled maturity date and for each subsequent
Due Date as of which such Mortgage Loan remains outstanding and part of
the Trust Fund, the scheduled monthly payment of principal and/or interest
deemed to be due with respect to such Mortgage Loan on such Due Date equal
to the amount that would have been due in respect thereof on such Due Date
(other than any Default Interest) if such Mortgage Loan had been required
to continue to accrue 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 remains part of the Trust Fund, the
scheduled monthly payment of principal and/or interest deemed to be due in
respect thereof on such Due Date equal to the Monthly Payment (or, in the
case of a Balloon Mortgage Loan described in clause (a) of this
definition, the Assumed Monthly Payment) that was due (or deemed due) with
respect to the related Mortgage Loan on the last Due Date prior to its
becoming an REO Mortgage Loan.
"ASTM" shall mean the American Society for Testing and Materials.
"Available Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to the sum (without duplication) of:
(a) the aggregate amount received on the Mortgage Loans (and any
related REO Properties) and on deposit in the Collection Account as of the
close of business on the Business Day preceding the related Master
Servicer Remittance Date, exclusive of the following amounts (without
duplication):
(i) all Monthly Payments collected but due on a Due Date after
the end of the related Collection Period;
(ii) all Principal Prepayments, Balloon Payments, Liquidation
Proceeds, Insurance Proceeds or Condemnation Proceeds, all
amounts paid in connection with Mortgage Loan repurchases
pursuant to Section 2.03(b), and all other unscheduled
recoveries received after the related Determination Date;
(iii) all amounts in the Collection Account that are payable or
reimbursable to any Person from such account pursuant to
clauses (ii) through (xxvii), inclusive, of Section 3.05(a);
(iv) all amounts that are payable or reimbursable to any Person
pursuant to clauses (ii) through (vi), inclusive, of Section
3.05(b);
(v) all Yield Maintenance Charges;
(vi) all amounts deposited in the Collection Account in error;
(vii) any net interest or net investment income on funds on
deposit in the Collection Account or in Permitted
Investments in which such funds may be invested;
(viii) with respect to those Mortgage Loans that are Actual/360
Mortgage Loans and any Distribution Date relating to each
Interest Accrual Period ending in each February and in any
January in a year which is not a leap year (unless, in
either case, the related Distribution Date is the Final
Distribution Date), an amount equal to the Interest Reserve
Amount to the extent such amount is to be deposited in the
Interest Reserve Account and held for future distribution
pursuant to Section 3.04;
(ix) in the case of each REO Property related to an A Loan and
during an A/B Material Default, all amounts received with
respect to the A Loan that are required to be paid to the B
Loan Holder pursuant to the terms of the related B Loan and
the related A/B Intercreditor Agreement (which amounts will
be deposited into the related A/B Loan Pair Custodial
Account pursuant to Section 3.04 and withdrawn from such
accounts pursuant to Section 3.05); and
(x) Post-ARD Additional Interest;
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred with respect to the Mortgage Loans from
the REO Account to the Collection Account for such Distribution Date
pursuant to Section 3.16(c);
(c) the aggregate amount of any P&I Advances made in respect of the
Mortgage Loans by the Master Servicer or the Trustee, as applicable, for
such Distribution Date pursuant to Section 4.03 or Section 7.05 (which P&I
Advances shall not include any related Servicing Fees or Workout Fees);
(d) all funds released from the Interest Reserve Account for
distribution on such Distribution Date.
(e) if and to the extent not already included in clause (a) hereof,
any Cure Payment (except for any portion thereof payable or reimbursable
to the Master Servicer or Special Servicer), made by any B Loan Holder
pursuant to the terms of the related Intercreditor Agreement during the
related Collection Period and allocable to principal or interest with
respect to the related Mortgage Loan; and
(f) all funds released from the Excess Liquidation Proceeds Account
for distribution on such Distribution Date.
"B Loan" shall mean, with respect to each A Loan, the other mortgage
loan that (i) is not included in the Trust Fund, (ii) is subordinate in right of
payment to such A Loan to the extent set forth in the related A/B Intercreditor
Agreement and (iii) is secured by the same Mortgage on the same Mortgaged
Property as such A Loan.
"B Loan Holder" shall mean, with respect to any B Loan,
CBA-Mezzanine Capital Finance, LLC, or its successors and assigns, as the holder
of such B Loan.
"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 (or, in the case of a Replacement Mortgage Loan, as of the related date of
substitution) provides for an amortization schedule extending beyond its Stated
Maturity Date and as to which, in accordance with such terms, a Balloon Payment
is due on its Stated Maturity Date.
"Balloon Payment" shall mean any Monthly Payment payable on a
Mortgage Loan at scheduled maturity that is at least six times as large as the
normal Monthly Payment due on such Mortgage Loan.
"Bankruptcy Code" shall mean the federal Bankruptcy Code, as amended
from time to time (Title 11 of the United States Code).
"Base Interest Fraction" shall mean, with respect to any Principal
Prepayment on any Mortgage Loan and any of the Class X-0, Xxxxx X-0, Class A-AB,
Class A-3, Class A-1-A, 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 and the Class
A-MFL Regular Interest, a fraction (not greater than 1) (a) whose numerator is
the amount, if any, by which (i) the Pass-Through Rate on such Class of
Certificates or the Class A-MFL Regular Interest exceeds (ii) the Yield Rate
used in calculating the Yield Maintenance Charge with respect to such Principal
Prepayment and (b) whose denominator is the amount, if any, by which the (i)
Mortgage Rate on such Mortgage Loan exceeds (ii) the Yield Rate (as provided by
the Master Servicer) used in calculating the Yield Maintenance Charge with
respect to such Principal Prepayment; provided, however, that if such Yield Rate
is greater than or equal to the lesser of (x) the Mortgage Rate on such Mortgage
Loan and (y) the Pass-Through Rate described in clause (a)(i) above, then the
Base Interest Fraction shall be zero.
"Base Prospectus" shall mean that certain prospectus dated October
30, 2006, relating to trust funds established by the Depositor and publicly
offered mortgage pass-through certificates evidencing interests therein.
"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.
"Borrower" shall mean, individually and collectively, as the context
may require, the obligor or obligors under a Mortgage Loan, including any Person
that has not signed the related Mortgage Note but owns an interest in the
related Mortgaged Property, which interest has been encumbered to secure such
Mortgage Loan.
"Breach" shall mean, with respect to any Mortgage Loan, any breach
of representation or warranty made by a Mortgage Loan Seller pursuant to Section
4(b) or 4(d) of the related Mortgage Loan Purchase Agreement.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a day on which banking institutions in New York, New York, Minneapolis,
Minnesota, Pittsburgh, Pennsylvania, the city or cities in which the Primary
Servicing Offices of the Master Servicer and the Special Servicer are located or
the city in which the Corporate Trust Office of the Trustee is located, are
authorized or obligated by law or executive order to remain closed.
"Capmark" shall mean Capmark Finance Inc., and its
successors in interest.
"Capmark Mortgage Loan Purchase Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"Capmark Mortgage Loan Seller" shall mean Capmark, in its capacity
as mortgage loan seller with respect to the Original Capmark Mortgage Loans.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate" shall mean any one of the Depositor's Series 2007-C1
Commercial Mortgage Pass-Through Certificates, as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Factor" shall mean, with respect to any Class of
Regular Certificates or the Class A-MFL Regular Interest, as of any date of
determination, a fraction, expressed as a decimal carried to eight places, the
numerator of which is the related Class Principal Balance or Class Notional
Amount, as the case may be, then outstanding, and the denominator of which is
the related Class Principal Balance or Class Notional Amount, as the case may
be, outstanding as of the Closing Date.
"Certificateholder" or "Holder" shall mean the Person in whose name
a Certificate is registered in the Certificate Register, provided, however,
that: (i) neither a Disqualified Organization nor a Non-United States Tax Person
shall be a "Holder" of, or a "Certificateholder" with respect to, a Class R or
Class LR Certificate for any purpose hereof; and (ii) solely for purposes of
giving any consent, approval, direction or waiver pursuant to this Agreement
that specifically relates to the rights, duties and/or obligations hereunder of
the Depositor, the Master Servicer, the Special Servicer or the Trustee in its
respective capacity as such (other than any consent, approval or waiver
contemplated by any of Sections 3.23, 3.24 and 3.25), any Certificate registered
in the name of such party or in the name of any Affiliate thereof 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
specifically relates to such party has been obtained. The Certificate Registrar
shall be entitled to request and conclusively 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" or "Holders" shall reflect the rights
of Certificate Owners only insofar as they may indirectly exercise such rights
through the Depository and the Depository Participants (except as otherwise
specified herein), it being herein acknowledged and agreed that the parties
hereto shall be required to recognize as a "Certificateholder" or "Holder" only
the Person in whose name a Certificate is registered in the Certificate
Register.
"Certificateholder Reports" shall mean, collectively, the Trustee
Report and the CMSA Investor Reporting Package.
"Certificate Notional Amount" shall mean, with respect to any
Interest Only Certificate, as of any date of determination, the then notional
principal amount on which such Certificate accrues interest, equal to the
product of (a) the then Certificate Factor for the Class of Interest Only
Certificates to which such Certificate belongs, 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 any 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 or the Class A-MFL Regular Interest, as of any
date of determination, the then outstanding principal amount of such Certificate
or the Class A-MFL Regular Interest, as applicable, equal to the product of (a)
the then Certificate Factor for the Class of Principal Balance Certificates or
the Class A-MFL Regular Interest, as applicable, to which such Certificate
belongs, multiplied by (b) the amount specified on the face of such Certificate
as the initial Certificate Principal Balance thereof.
"Certificate Register" and "Certificate Registrar" shall mean the
register maintained and the registrar appointed pursuant to Section 5.02.
"Certification Parties" shall have the meaning assigned thereto in
Section 12.08.
"Certifying Person" shall have the meaning assigned thereto in
Section 12.08.
"Certifying Servicer" shall have the meaning assigned thereto in
Section 12.11.
"Class" shall mean, collectively, all of the Certificates bearing
the same alphabetic and, if applicable, numeric class designation and each
designation of Uncertificated Lower-Tier Interests having the same payment terms
or the Class A-MFL Regular Interest. The respective Classes of Certificates are
designated in Section 5.01(a).
"Class A-1" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-1 Certificates.
"Class A-1 Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-1."
"Class A-1 Pass-Through Rate" shall mean 5.2270% per annum.
"Class A-1-A" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A 1 A Certificates.
"Class A-1-A Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation "A
1 A."
"Class A-1-A Pass-Through Rate" shall mean 5.3610% per annum.
"Class A-2" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-2 Certificates.
"Class A-2 Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-2."
"Class A-2 Pass-Through Rate" shall mean 5.2680% per annum.
"Class A-3" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-3 Certificates.
"Class A-3 Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-3."
"Class A-3 Pass-Through Rate" shall mean 5.3830% per annum.
"Class A-AB" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-AB Certificates.
"Class A-AB Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-AB."
"Class A-AB Pass-Through Rate" shall mean 5.3360% per annum.
"Class A-M" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-M Certificates.
"Class A-M Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-M."
"Class A-M Pass-Through Rate" shall mean 5.4160% per annum.
"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, on or in respect of the Class A-MFL Regular Interest with
respect to such Distribution Date and (ii) the amounts, if any, received from
the Swap Counterparty pursuant to the Swap Agreement for such Distribution Date,
less (b) with respect to interest amounts and Yield Maintenance Charges, the sum
of (i) all regularly scheduled interest amounts, Yield Maintenance Charges
required to be paid to the Swap Counterparty pursuant to the Swap Agreement for
such Distribution Date, (ii) any amount payable to the Trustee as Net Investment
Earnings earned on funds held in the Floating Rate Account and (iii) any amounts
deposited in the Floating Rate Account in error.
"Class A-MFL Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-MFL."
"Class A-MFL Distribution Conversion" shall mean with respect to any
Distribution Date (i) immediately upon and during the continuation of a Swap
Default of the nature described in clause (i) of the definition of "Swap
Default" while the Trustee is pursuing remedies under the Swap Agreement
pursuant to Section 3.28, or (ii) immediately upon and following the termination
of the Swap Agreement, the conversion of distributions to the Class A-MFL
Certificates from distributions based, in part, on floating interest payments
from the Swap Counterparty under the Swap Agreement to distributions based
solely on fixed interest distributions in respect of the Class A-MFL Regular
Interest, as specified in Section 4.01.
"Class A-MFL Fixed Swap Payment" shall mean with respect to any
Distribution Date, the fixed interest amount required to be paid to the Swap
Counterparty by the Trust under the Swap Agreement (prior to any netting against
amounts due from the Swap Counterparty to the Trust) in respect of that
Distribution Date.
"Class A-MFL Floating Swap Payment" shall mean with respect to any
Distribution Date, the floating interest amount required to be paid to the Trust
by the Swap Counterparty under the Swap Agreement (prior to any netting against
amounts due from the Trust to the Swap Counterparty) in respect of that
Distribution Date.
"Class A-MFL Interest Distribution Amount" shall mean with respect
to any Distribution Date, an amount equal to (a) the sum of (i) the Optimal
Interest Distribution Amount with respect to the Class A-MFL Regular Interest
for such Distribution Date, (ii) the Class A-MFL Floating Swap Payment received
from the Swap Counterparty with respect to such Distribution Date and (iii) if
the Swap Agreement is terminated and a replacement Swap Agreement is not
obtained, any Swap Termination Payment collected during the related Collection
Period, less (b) the Class A-MFL Fixed Swap Payment made to the Swap
Counterparty with respect to such Distribution Date.
"Class A-MFL Net Fixed Swap Payment" shall mean with respect to any
Distribution Date, the excess, if any of (i) the Class A-MFL Fixed Swap Payment
for that Distribution Date over (ii) the Class A-MFL Floating Swap Payment in
respect of that Distribution Date.
"Class A-MFL Net Floating Swap Payment" shall mean with respect to
any Distribution Date, the excess, if any of (i) the Class A-MFL Floating Swap
Payment for that Distribution Date over (ii) the Class A-MFL Fixed Swap Payment
in respect of that Distribution Date.
"Class A-MFL Pass-Through Rate" shall mean with respect to any
Distribution Date for so long as no Class A-MFL Distribution Conversion has
occurred, LIBOR plus 0.1900%; except that (I) if (a) the total amount of
interest distributions with respect to the Class A-MFL Regular Interest for any
distribution date required (or deemed) to be deposited in the Floating Rate
Account is less than (b) 1/12th of the product of (i) 5.4160%, multiplied by
(ii) the Class Principal Balance of the Class A-MFL Certificates as of the last
day of the calendar month immediately prior to that Distribution Date, then
there will be a proportionate reduction to the amount of interest distributable
on the Class A-MFL Certificates, as provided in the Swap Agreement and (II) if
(a) the total amount of interest distributions with respect to the Class A-MFL
Regular Interest for any distribution date required (or deemed) to be deposited
in the Floating Rate Account exceeds (b) 1/12th of the product of (i) 5.4160%,
multiplied by (ii) the Class Principal Balance of the Class A-MFL Certificates
as of the last day of the calendar month immediately prior to that Distribution
Date, then there will be a proportional increase to the amount of interest
distributable on the Class A-MFL Certificates, as provided in the Swap
Agreement. With respect to any Distribution Date on or after which a Class A-MFL
Distribution Conversion has occurred, "Class A-MFL Pass-Through Rate" shall mean
the Class A-MFL Regular Interest Pass-Through Rate.
"Class A-MFL Principal Distribution Amount" shall mean with respect
to any Distribution Date, an amount equal to the amount of principal allocated
pursuant to Section 4.01 in respect of the Class A-MFL Regular Interest on such
Distribution Date.
"Class A-MFL Regular Interest" shall mean the uncertificated
interest in the Upper-Tier REMIC, designated as "Class A-MFL," constituting a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions
and having the characteristics attributable thereto in this Agreement.
"Class A-MFL Regular Interest Pass-Through Rate" shall mean, with
respect to any Distribution Date, 5.4160% per annum.
"Class A-MFL Swap Payment Date" shall mean, with respect to any
Distribution Date, the Business Day preceding such Distribution Date.
"Class A-J" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-J Certificates.
"Class A-J Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-J."
"Class A-J Pass-Through Rate" shall mean the lesser of (i) 5.4570%
per annum and (ii) the Weighted Average Net Mortgage Rate.
"Class A-P&I Certificates" shall mean, collectively, the Class X-0,
Xxxxx X-0, Class A-AB, Class A-3 and Class A-1-A Certificates.
"Class A-SP" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-SP Certificates.
"Class A-SP Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation
"A-SP."
"Class A-SP Component" shall mean each of Component A-1-2, Component
A-2-1, Component X-0-0, Xxxxxxxxx X-0-0, Xxxxxxxxx X-XX-0, Component X-XX-0,
Xxxxxxxxx X-XX-0, Xxxxxxxxx X-XX-0, Component A-3-1, Component A-3-2, Component
A-3-3, Component A-3-4, Component A-3-5, Component X-0-X-0, Xxxxxxxxx X-0-X-0,
Xxxxxxxxx X-0-X-0, Component X-0-X-0, Xxxxxxxxx X-0-X-0, Component X-0-X-0,
Xxxxxxxxx X-0-X-0, Component A-M, Component A-MFL, Component A-J, Component B,
Component C-1, Component C-2, Component D-1, Component D-2, Component E,
Component F-1, Component F-2 and Component G.
"Class A-SP Notional Amount" shall mean, as of any date of
determination, the sum of the then Component Notional Amounts of the Class A-SP
Components that have not reached their Component Crossover Date.
"Class A-SP Pass-Through Rate" shall mean, as to any Distribution
Date, the per annum rate, expressed as a percentage, equal to the weighted
average of the Class A-SP Strip Rates of the Class A-SP Components (weighted on
the basis of their respective Component Notional Amounts) for such Distribution
Date.
"Class A-SP Strip Rate" shall mean, with respect to each of the
Class A-SP Components for any Distribution Date, a rate per annum equal to (i)
for any Distribution Date occurring on or before the related Component Crossover
Date, (x) the lesser of (I) the Weighted Average Net Mortgage Pass-Through Rate
for such Distribution Date and (II) the Reference Rate for such Distribution
Date minus (y) the Pass-Through Rate for the Related Certificates, (provided
that in no event shall any Class A-SP Strip Rate be less than zero), and (ii)
for any Distribution Date occurring after the related Component Crossover Date,
0% per annum.
"Class A-X" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-X Certificates.
"Class A-X Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation
"A-X."
"Class A-X Component" shall mean any one of the Components.
"Class A-X Notional Amount" shall mean, with respect to the Class
A-X Certificates and any date of determination, the sum of the then Component
Notional Amounts of all of the Components.
"Class A-X Pass-Through Rate" shall mean, as to any Distribution
Date, the per annum rate, expressed as a percentage, equal to the weighted
average of the Class A-X Strip Rates of the Components for such Distribution
Date, weighted on the basis of their respective Component Notional Amounts.
"Class A-X Strip Rate" shall mean, with respect to any Class A-X
Component (other than a Class A-X Component that is also a Class A-SP Component)
for any Distribution Date, a rate per annum equal to (i) the Weighted Average
Net Mortgage Pass-Through Rate for such Distribution Date, minus (ii) the
Pass-Through Rate for the Related Certificates, and in the case of a Class A-X
Component that is also a Class A-SP Component, (A) for any Distribution Date
occurring on or before the related Component Crossover Date, (x) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution Date minus (y) the
sum of the Pass-Through Rate for the Related Certificates for such Distribution
Date and the Class A-SP Strip Rate for such Component for such Distribution
Date, and (B) for any Distribution Date occurring after the related Component
Crossover Date, a rate per annum equal to (x) the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date, minus (y) the Pass-Through Rate
for the Related Certificates (provided that in no event shall any Class A-X
Strip Rate be less than zero).
"Class B" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class B Certificates.
"Class B Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "B."
"Class B Pass-Through Rate" shall mean the lesser of (i) 5.4870% per
annum and (ii) the Weighted Average Net Mortgage Rate.
"Class C" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class C Certificates.
"Class C Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "C."
"Class C Pass-Through Rate" shall mean the lesser of (i) 5.5170% per
annum and (ii) the Weighted Average Net Mortgage Rate.
"Class D" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class D Certificates.
"Class D Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "D."
"Class D Pass-Through Rate" shall mean the lesser of (i) 5.5460% per
annum and (ii) the Weighted Average Net Mortgage Rate.
"Class E" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class E Certificates.
"Class E Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "E."
"Class E Pass-Through Rate" shall mean the lesser of (i) 5.5760% per
annum and (ii) the Weighted Average Net Mortgage Rate.
"Class F" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class F Certificates.
"Class F Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "F."
"Class F Pass-Through Rate" shall mean the lesser of (i) 5.5960% per
annum and (ii) the Weighted Average Net Mortgage Rate.
"Class G" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class G Certificates.
"Class G Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "G."
"Class G Pass-Through Rate" shall mean the lesser of (i) 5.6250% per
annum and (ii) the Weighted Average Net Mortgage Rate.
"Class H" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class H Certificates.
"Class H Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "H."
"Class H Pass-Through Rate" shall mean a per annum rate equal to the
Weighted Average Net Mortgage Rate.
"Class J" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class J Certificates.
"Class J Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "J."
"Class J Pass-Through Rate" shall mean a per annum rate equal to the
Weighted Average Net Mortgage Rate.
"Class K" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class K Certificates.
"Class K Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "K."
"Class K Pass-Through Rate" shall mean a per annum rate equal to the
Weighted Average Net Mortgage Rate.
"Class L" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class L Certificates.
"Class L Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "L."
"Class L Pass-Through Rate" shall mean 5.0500% per annum.
"Class LA-1-1 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-1-2 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-1-A-1 Uncertificated Interest" shall mean a regular
interest in the Lower-Tier REMIC that is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-A-2 Uncertificated Interest" shall mean a regular
interest in the Lower-Tier REMIC that is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-A-3 Uncertificated Interest" shall mean a regular
interest in the Lower-Tier REMIC that is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-A-4 Uncertificated Interest" shall mean a regular
interest in the Lower-Tier REMIC that is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-A-5 Uncertificated Interest" shall mean a regular
interest in the Lower-Tier REMIC that is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-A-6 Uncertificated Interest" shall mean a regular
interest in the Lower-Tier REMIC that is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-A-7 Uncertificated Interest" shall mean a regular
interest in the Lower-Tier REMIC that is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-A-8 Uncertificated Interest" shall mean a regular
interest in the Lower-Tier REMIC that is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-1 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-2-2 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-2-3 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-3-1 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-3-2 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-3-3 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-3-4 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-3-5 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-AB-1 Uncertificated Interest" shall mean a regular
interest in the Lower-Tier REMIC that is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-AB-2 Uncertificated Interest" shall mean a regular
interest in the Lower-Tier REMIC that is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-AB-3 Uncertificated Interest" shall mean a regular
interest in the Lower-Tier REMIC that is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-AB-4 Uncertificated Interest" shall mean a regular
interest in the Lower-Tier REMIC that is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-M Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-MFL Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC, has
the Original Lower-Tier REMIC Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-J Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LB Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LC-1 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LC-2 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LD-1 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LD-2 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LE Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LF-1 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LF-2 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LG Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LH Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LJ Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LK Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LL Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LM Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LN Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LO Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LP Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LQ Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LR" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class LR Certificates.
"Class LR Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "LR."
"Class LS Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LT Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class M" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class M Certificates.
"Class M Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "M."
"Class M Pass-Through Rate" shall mean 5.0500% per annum.
"Class N" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class N Certificates.
"Class N Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "N."
"Class N Pass-Through Rate" shall mean 5.0500% per annum.
"Class Notional Amount" shall mean, with respect to any Class of
Interest Only Certificate, the aggregate hypothetical or notional amount on
which such Class of Interest Only Certificate accrues or is deemed to accrue
interest from time to time. The Class Notional Amount, in the case of the Class
A-X Certificates, shall be the Class A-X Notional Amount and, in the case of the
Class A-SP Certificates, shall be the Class A-SP Notional Amount.
"Class O" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class O Certificates.
"Class O Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "O."
"Class O Pass-Through Rate" shall mean 5.0500% per annum.
"Class P" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class P Certificates.
"Class P Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "P."
"Class P Pass-Through Rate" shall mean 5.0500% per annum.
"Class Principal Balance" shall mean the aggregate principal balance
outstanding from time to time of any Class of Principal Balance Certificates or
of the Class A-MFL Regular Interest, as applicable.
"Class Q" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class Q Certificates.
"Class Q Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "Q."
"Class Q Pass-Through Rate" shall mean 5.0500% per annum.
"Class R" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class R Certificates.
"Class R Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "R."
"Class S" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class S Certificates.
"Class S Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "S."
"Class S Pass-Through Rate" shall mean 5.0500% per annum.
"Class T" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class T Certificates.
"Class T Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "T."
"Class T Pass-Through Rate" shall mean 5.0500% per annum.
"Class V" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class V Certificates.
"Class V Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "V."
"Clearstream" shall mean Clearstream Banking, societe anonyme, or
any successor.
"Closing Date" shall mean March 16, 2007.
"CMSA" shall mean the Commercial Mortgage Securities Association, or
any association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry, which is the principal such association or organization in the
commercial mortgage loan securitization industry and one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be selected
by the Master Servicer and reasonably acceptable to the Trustee, the Special
Servicer and the Controlling Class Representative.
"CMSA Advance Recovery Report" shall mean a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Advance Recovery Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage-backed securities transactions generally
(unless the Controlling Class Representative and the Rating Agencies otherwise
consent to an alternative form of such report, and written notice of such
alternative form is provided to the Master Servicer and the Special Servicer).
"CMSA Bond Level File" shall mean a data file substantially in the
form of, and containing the information called for in, the downloadable form of
the "Bond Level File" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally (unless the
Trustee, Controlling Class Representative and the Rating Agencies otherwise
consent to an alternative form of such report and have provided written notice
of such alternative form to the Master Servicer and the Special Servicer).
"CMSA Collateral Summary File" shall mean a data file substantially
in the form of, and containing the information called for in, the downloadable
form of the "Collateral Summary File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage-backed securities transactions generally
(unless the Trustee, Controlling Class Representative and the Rating Agencies
otherwise consent to an alternative form of such report and have provided
written notice of such alternative form to the Master Servicer and the Special
Servicer).
"CMSA Comparative Financial Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "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 recommended by the CMSA for
commercial mortgage-backed securities transactions generally (unless the
Controlling Class Representative and the Rating Agencies otherwise consent to an
alternative form of such report, and written notice of such alternative form is
provided to the Master Servicer and the Special Servicer).
"CMSA Delinquent Loan Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Delinquent Loan Status Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage-backed securities
transactions generally (unless the Controlling Class Representative and the
Rating Agencies otherwise consent to an alternative form of such report, and
written notice of such alternative form is provided to the Master Servicer and
the Special Servicer).
"CMSA Financial File" shall mean a data file substantially in the
form of, and containing the information called for in, the downloadable form of
the "Financial File" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally (unless the
Controlling Class Representative and the Rating Agencies otherwise consent to an
alternative form of such report, and written notice of such alternative form is
provided to the Master Servicer and the Special Servicer).
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report" shall mean a report substantially in the form of, and containing the
information called for in, the downloadable form of the "Historical Loan
Modification and Corrected Mortgage Loan Report" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally (unless the Controlling Class Representative and the
Rating Agencies otherwise consent to an alternative form of such report, and
written notice of such alternative form is provided to the Master Servicer and
the Special Servicer).
"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following seven electronic files: (i) CMSA Loan Setup File,
(ii) CMSA Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA
Bond Level File, (v) CMSA Financial File, (vi) CMSA Collateral Summary
File and (vii) CMSA Special Servicer Loan File; and
(b) the following ten supplemental reports: (i) CMSA Delinquent Loan
Status Report, (ii) CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, (iii) CMSA Total Loan Report, (iv) CMSA REO Status
Report, (v) CMSA Operating Statement Analysis Report, (vi) CMSA
Comparative Financial Status Report, (vii) CMSA Servicer Watch List,
(viii) CMSA Loan Level Reserve/LOC Report, (ix) CMSA NOI Adjustment
Worksheets and (x) CMSA Advance Recovery Report; and
(c) such other reports and data files as CMSA may designate as part
of the "CMSA Investor Reporting Package" from time to time generally,
provided that the requirements of any such report or data file shall not
materially expand the duties of the affected reporting party without such
party's consent (which consent shall not be unreasonably withheld or
delayed).
"CMSA Loan Level Reserve/LOC Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Level Reserve/LOC Report" available as of the
Closing Date on the CMSA Website, or in such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage-backed securities
transactions generally (unless the Controlling Class Representative and the
Rating Agencies otherwise consent to an alternative form of such report, and
written notice of such alternative form is provided to the Master Servicer and
the Special Servicer).
"CMSA Loan Periodic Update File" shall mean a monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Periodic Update File" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally (unless the Trustee, the Controlling Class Representative
and the Rating Agencies otherwise consent to an alternative form of such report,
and written notice of such alternative form is provided to the Master Servicer
and the Special Servicer).
"CMSA Loan Setup File" shall mean a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Mortgage Loan Setup File" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally (unless the
Controlling Class Representative and the Rating Agencies otherwise consent to an
alternative form of such report, and written notice of such alternative form is
provided to the Master Servicer and the Special Servicer).
"CMSA NOI Adjustment Worksheet" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "NOI Adjustment Worksheet" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally (unless the Controlling Class Representative and the
Rating Agencies otherwise consent to an alternative form of such report, and
written notice of such alternative form is provided to the Master Servicer and
the Special Servicer).
"CMSA Operating Statement Analysis Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Operating Statement Analysis Report" available as of
the Closing Date on the CMSA Website or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage-backed securities
transactions generally (unless the Controlling Class Representative and the
Rating Agencies otherwise consent to an alternative form of such report, and
written notice of such alternative form is provided to the Master Servicer and
the Special Servicer).
"CMSA Property File" shall mean a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Property File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally (unless the
Controlling Class Representative and the Rating Agencies otherwise consent to an
alternative form of such report, and written notice of such alternative form is
provided to the Master Servicer and the Special Servicer).
"CMSA Property Inspection Form" shall mean a form of report
substantially in the form of, and containing the information called for in, the
downloadable "Property Inspection Form" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage-backed securities transactions generally
(unless the Controlling Class Representative and the Rating Agencies otherwise
consent to an alternative form of such report, and written notice of such
alternative form is provided to the Master Servicer and the Special Servicer).
"CMSA Realized Loss Report" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Realized Loss Report" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally (unless the
Controlling Class Representative and the Rating Agencies otherwise consent to an
alternative form of such report, and written notice of such alternative form is
provided to the Master Servicer and the Special Servicer).
"CMSA REO Status Report" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "REO Status Report" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally (unless the
Controlling Class Representative and the Rating Agencies otherwise consent to an
alternative form of such report, and written notice of such alternative form is
provided to the Master Servicer and the Special Servicer).
"CMSA Servicer Watch List" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
"Servicer Watch List" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally (unless the
Controlling Class Representative and the Rating Agencies otherwise consent to an
alternative form of such report, and written notice of such alternative form is
provided to the Master Servicer and the Special Servicer).
"CMSA Special Servicer Loan File" shall mean a report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Special Servicer Loan File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage-backed securities transactions generally
(unless the Controlling Class Representative and the Rating Agencies otherwise
consent to an alternative form of such report, and written notice of such
alternative form is provided to the Master Servicer and the Special Servicer).
"CMSA Total Loan Report" shall mean monthly report substantially in
the form of, and containing the information called for in, the downloadable form
of the "CMSA Total Loan Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time be recommended by the
CMSA for commercial mortgage-backed securities transactions generally (unless
the Controlling Class Representative and the Rating Agencies otherwise consent
to an alternative form of such report, and written notice of such alternative
form is provided to the Master Servicer and the Special Servicer).
"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 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 Trust or the Certificates.
"Collection Account" shall mean the segregated account or accounts
created and maintained by the Master Servicer, pursuant to Section 3.04(a), in
trust for the Certificateholders and, after the occurrence of an A/B Material
Default, any related B Loan Holder, which shall be entitled "[Capmark Finance
Inc.][or the name of any successor Master Servicer, as the Master Servicer, in
trust for the registered holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2007-C1,
and the B Loan Holders, as applicable, as their interests may appear, Collection
Account." Any such account or accounts shall be an Eligible Account and shall be
part of the Lower-Tier REMIC other than any funds therein allocable to a B Loan.
"Collection Period" shall mean, with respect to any Distribution
Date, the period commencing on the date immediately following the Determination
Date in the calendar month preceding the month in which such Distribution Date
occurs (or, in the case of the initial Distribution Date, commencing as of the
Closing Date) and ending on and including the Determination Date in the calendar
month in which such Distribution Date occurs.
"Column" shall mean Column Financial, Inc., together with
its successors in interest.
"Column Mortgage Loan" shall mean any Mortgage Loan that is either
an Original Column Mortgage Loan or a Replacement Mortgage Loan that was
delivered under the Column Mortgage Loan Purchase Agreement or the Column
Performance Guarantee in substitution for an Original Column Mortgage Loan.
"Column Mortgage Loan Purchase Agreement" shall have the meaning
assigned thereto in the Preliminary Statement to this Agreement.
"Column Mortgage Loan Seller" shall mean Column, in its capacity as
mortgage loan seller with respect to the Column Mortgage Loans.
"Column Performance Guarantee" shall mean the Guarantee dated as of
March 1, 2007, from the Column Performance Guarantor in favor of the Trustee,
relating to the obligations of Column under Section 5 of the Column Mortgage
Loan Purchase Agreement.
"Column Performance Guarantor" shall mean Credit Suisse
(USA), Inc., its successor in interest or any successor guarantor under
the Column Performance Guarantee.
"Column Primary Servicer" shall mean Column, in its capacity as
Designated Sub-Servicer with respect to the Column Serviced Loans.
"Column Serviced Loan" shall mean any Column Mortgage Loan that is
specified on Exhibit L as being primary serviced by the Column Primary Servicer.
"Commission" shall mean the Securities and Exchange Commission or
any successor thereto.
"Compensating Interest Payment" shall mean, with respect to any
Distribution Date, any payment made by the Master Servicer pursuant to Section
3.19(a) to cover Prepayment Interest Shortfalls incurred during the related
Collection Period.
"Component" shall mean each of Component X-0-0, Xxxxxxxxx X-0-0,
Xxxxxxxxx X-0-0, Component X-0-0, Xxxxxxxxx X-0-0, Xxxxxxxxx X-XX-0, Component
X-XX-0, Xxxxxxxxx X-XX-0, Xxxxxxxxx X-XX-0, Component A-3-1, Component A-3-2,
Component A-3-3, Component A-3-4, Component A-3-5, Component X-0-X-0, Xxxxxxxxx
X-0-X-0, Component X-0-X-0, Xxxxxxxxx X-0-X-0, Component X-0-X-0, Xxxxxxxxx
X-0-X-0, Component X-0-X-0, Xxxxxxxxx X-0-X-0, Component A-M, Component A-MFL,
Component A-J, Component B, Component C-1, Component C-2, Component D-1,
Component D-2, Component E, Component F-1, Component F-2, Component G, Component
H, Component J, Component K, Component L, Component M, Component N, Component O,
Component P, Component Q, Component S and Component T.
"Component A-1-1" shall mean one of the 45 components of the Class
A-X Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1-1 Uncertificated Interest as of
any date of determination.
"Component A-1-2" shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-1-2 Uncertificated Interest as of any date of
determination.
"Component A-1-A-1" shall mean one of the 45 components of the Class
A-X Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1-A-1 Uncertificated Interest as of
any date of determination.
"Component A-1-A-2" shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-1-A-2 Uncertificated Interest as of any date of
determination.
"Component A-1-A-3" shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-1-A-3 Uncertificated Interest as of any date of
determination.
"Component A-1-A-4" shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-1-A-4 Uncertificated Interest as of any date of
determination.
"Component A-1-5" shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-1-A-5 Uncertificated Interest as of any date of
determination.
"Component A-1-A-6" shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-1-A-6 Uncertificated Interest as of any date of
determination.
"Component A-1-A-7" shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-1-A-7 Uncertificated Interest as of any date of
determination.
"Component A-1-A-8" shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-1-A-8 Uncertificated Interest as of any date of
determination.
"Component A-2-1 shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-2-1 Uncertificated Interest as of any date of
determination.
"Component A-2-2 shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-2-2 Uncertificated Interest as of any date of
determination.
"Component A-2-3 shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-2-3 Uncertificated Interest as of any date of
determination.
"Component A-3-1" shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-3-1 Uncertificated Interest as of any date of
determination.
"Component A-3-2" shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-3-2 Uncertificated Interest as of any date of
determination.
"Component A-3-3" shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-3-3 Uncertificated Interest as of any date of
determination.
"Component A-3-4" shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-3-4 Uncertificated Interest as of any date of
determination.
"Component A-3-5" shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-3-5 Uncertificated Interest as of any date of
determination.
"Component A-AB-1" shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-AB-1 Uncertificated Interest as of any date of
determination.
"Component A-AB-2" shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-AB-2 Uncertificated Interest as of any date of
determination.
"Component A-AB-3" shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-AB-3 Uncertificated Interest as of any date of
determination.
"Component A-AB-4" shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-AB-4 Uncertificated Interest as of any date of
determination.
"Component A-M" shall mean one of the 45 components of the Class A-X
Certificates and one of the 32 components of the Class A-SP Certificates having
a Component Notional Amount equal to the then current Lower-Tier Principal
Amount of the Class LA-M Uncertificated Interest as of any date of
determination.
"Component A-MFL" shall mean one of the 45 components of the Class
A-X Certificates and one of the 32 components of the Class A-SP Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LA-MFL Uncertificated Interest as of any date of
determination.
"Component A-J" shall mean one of the 45 components of the Class A-X
Certificates and one of the 32 components of the Class A-SP Certificates having
a Component Notional Amount equal to the then current Lower-Tier Principal
Amount of the Class LA-J Uncertificated Interest as of any date of
determination.
"Component B" shall mean one of the 45 components of the Class A-X
Certificates and one of the 32 components of the Class A-SP Certificates having
a Component Notional Amount equal to the then current Lower-Tier Principal
Amount of the Class LB Uncertificated Interest as of any date of determination.
"Component C-1" shall mean one of the 45 components of the Class A-X
Certificates and one of the 32 components of the Class A-SP Certificates having
a Component Notional Amount equal to the then current Lower-Tier Principal
Amount of the Class LC-1 Uncertificated Interest as of any date of
determination.
"Component C-2" shall mean one of the 45 components of the Class A-X
Certificates and one of the 32 components of the Class A-SP Certificates having
a Component Notional Amount equal to the then current Lower-Tier Principal
Amount of the Class LC-2 Uncertificated Interest as of any date of
determination.
"Component Crossover Date" shall mean, with respect to each Class
A-SP Component, the related Crossover Date as set forth in the table below:
Class A-SP Component Component Crossover Date
------------------------------------------------------------- ----------------------------
Components X-0-0, X-0-0 xxx X-0-X-0 Xxxxx 0000 Distribution Date
Components A-2-2 and A-1-A-3 March 2009 Distribution Date
Components X-0-0, X-0-0 xxx X-0-X-0 Xxxxx 0000 Distribution Date
Components X-XX-0, X-0-0, X-0-X-0, X-0 and G March 2011 Distribution Date
Components X-XX-0, X-0-0, X-0-X-0, X-0, E and F-2 March 2012 Distribution Date
Components X-XX-0, X-0-0, X-0-X-0, X-0 and D-2 March 2013 Distribution Date
Components X-XX-0, X-0-0, X-0-X-0, X-X, X-XXX, X-X, X and C-2 March 2014 Distribution Date
"Component D-1" shall mean one of the 45 components of the Class A-X
Certificates and one of the 32 components of the Class A-SP Certificates having
a Component Notional Amount equal to the then current Lower-Tier Principal
Amount of the Class LD-1 Uncertificated Interest as of any date of
determination.
"Component D-2" shall mean one of the 45 components of the Class A-X
Certificates and one of the 32 components of the Class A-SP Certificates having
a Component Notional Amount equal to the then current Lower-Tier Principal
Amount of the Class LD-2 Uncertificated Interest as of any date of
determination.
"Component E" shall mean one of the 45 components of the Class A-X
Certificates and one of the 32 components of the Class A-SP Certificates having
a Component Notional Amount equal to the then current Lower-Tier Principal
Amount of the Class LE Uncertificated Interest as of any date of determination.
"Component F-1" shall mean one of the 45 components of the Class A-X
Certificates and one of the 32 components of the Class A-SP Certificates having
a Component Notional Amount equal to the then current Lower-Tier Principal
Amount of the Class LF-1 Uncertificated Interest as of any date of
determination.
"Component F-2" shall mean one of the 45 components of the Class A-X
Certificates and one of the 32 components of the Class A-SP Certificates having
a Component Notional Amount equal to the then current Lower-Tier Principal
Amount of the Class LF-2 Uncertificated Interest as of any date of
determination.
"Component G" shall mean one of the 45 components of the Class A-X
Certificates and one of the 32 components of the Class A-SP Certificates having
a Component Notional Amount equal to the then current Lower-Tier Principal
Amount of the Class LG Uncertificated Interest as of any date of determination.
"Component H" shall mean one of the 45 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LH Uncertificated Interest as of any
date of determination.
"Component J" shall mean one of the 45 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LJ Uncertificated Interest as of any
date of determination.
"Component K" shall mean one of the 45 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LK Uncertificated Interest as of any
date of determination.
"Component L" shall mean one of the 45 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LL Uncertificated Interest as of any
date of determination.
"Component M" shall mean one of the 45 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LM Uncertificated Interest as of any
date of determination.
"Component N" shall mean one of the 45 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LN Uncertificated Interest as of any
date of determination.
"Component Notional Amount" shall mean, with respect to each
Component and any date of determination, an amount equal to the then Lower-Tier
Principal Amount of its Related Uncertificated Lower-Tier Interest.
"Component O" shall mean one of the 45 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LO Uncertificated Interest as of any
date of determination.
"Component P" shall mean one of the 45 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LP Uncertificated Interest as of any
date of determination.
"Component Q" shall mean one of the 45 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LQ Uncertificated Interest as of any
date of determination.
"Component S" shall mean one of the 45 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LS Uncertificated Interest as of any
date of determination.
"Component T" shall mean one of the 45 components of the Class A-X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LT Uncertificated Interest as of any
date of determination.
"Condemnation Proceeds" shall mean all cash amounts actually
received by the Trust or by the Master Servicer or the Special Servicer on its
behalf in connection with the taking of all or a part of a Mortgaged Property by
exercise of the power of eminent domain or condemnation, exclusive of any
portion thereof required to be released to the related Borrower or any other
third-party in accordance with applicable law and/or the terms and conditions of
the related Mortgage Loan Documents or any other applicable document.
"Confidential Offering Circular" shall mean the final Confidential
Offering Circular dated March 1, 2007, relating to certain classes of the
Non-Registered Certificates.
"Controlling Class" shall mean, as of any date of determination, the
eligible Class of Principal Balance Certificates with the lowest payment
priority pursuant to Sections 4.01(a) and 4.01(b), that has a then outstanding
Class Principal Balance that is not less than 25% of its initial Class Principal
Balance; provided that, if no eligible Class of Principal Balance Certificates
has a Class Principal Balance that satisfies the foregoing requirement, then the
Controlling Class shall be the eligible Class of Principal Balance Certificates
with the lowest payment priority pursuant to Sections 4.01(a) and 4.01(b), that
has a then outstanding Class Principal Balance greater than zero. For purposes
of this definition, all of the Class A-P&I Certificates shall be treated as a
single Class and, if appropriate under the terms of this definition, shall
collectively constitute the Controlling Class. As of the Closing Date, the
Controlling Class shall be the Class T Certificates.
"Controlling Class Certificateholder" shall mean any Holder of
Certificates of the related Controlling Class.
"Controlling Class Representative" shall have the meaning assigned
thereto in Section 3.23(a).
"Corporate Trust Office" shall mean the 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 (i) for Certificate transfer purposes, at
Sixth & Marquette, Minneapolis, Minnesota 55479-0113, Attention: Corporate Trust
Services - Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2007-C1 and (ii) for all other
purposes, at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Services - Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2007-C1.
"Corrected Mortgage Loan" shall mean any Mortgage Loan that had been
a Specially Serviced Mortgage Loan but as to which all Servicing Transfer Events
have ceased to exist.
"Credit Suisse" shall mean Credit Suisse Securities (USA) LLC or its
successor in interest.
"Cross-Collateralized Group" shall mean any group of Mortgage Loans
that is cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan,
that is, by its terms, cross-defaulted and cross-collateralized with any other
Mortgage Loan. For the avoidance of doubt, no A Loan or B Loan shall be deemed a
Cross-Collateralized Mortgage Loan under this Agreement.
"Crossed Mortgage Loan Repurchase Criteria" shall mean (i) the debt
service coverage ratio for any related Cross-Collateralized Mortgage Loans that
remain in the Trust is not less than the debt service coverage ratio for such
Cross-Collateralized Mortgage Loans, including the affected Cross-Collateralized
Mortgage Loan, immediately preceding the repurchase or substitution and (ii) the
loan-to-value ratio for any related Cross-Collateralized Mortgage Loans that
remain in the Trust is not greater than the loan-to-value ratio for such
Cross-Collateralized Mortgage Loans including the affected Cross-Collateralized
Mortgage Loan immediately preceding the repurchase or substitution.
"Cure Event" shall mean the exercise by any B Loan Holder of the
cure rights, if any, set forth in the related Intercreditor Agreement, in each
case in accordance with the applicable Intercreditor Agreement.
"Cure Payments" shall mean, with respect to any A/B Loan Pair, as to
which the related Intercreditor Agreement provides that a B Loan Holder shall be
entitled to cure a default under the related Mortgage Loan, the payments that
such B Loan Holder makes to the Master Servicer, Special Servicer or Trustee, as
applicable, which payments shall consist (without duplication) of all actual
costs, expenses, losses, obligations, damages, penalties, and disbursements
imposed on or incurred (whether or not yet paid) by the Master Servicer, Special
Servicer or Trustee, as applicable (including, without limitation, all
unreimbursed Advances (without regard to whether such Advance would be a
Nonrecoverable Advance), and any interest accrued thereon, Default Interest and
any servicing compensation incurred with respect to the related Mortgage Loan)
during the period of time from the expiration of the grace period under such
Mortgage Loan that gave rise to such Cure Event until such Cure Payment is made
or such other cure is otherwise effected.
"Custodian" shall mean a Person who is at any time appointed by the
Trustee pursuant to Section 8.11 as a document custodian for the Mortgage Files,
which document custodian shall initially be the Trustee.
"Cut-off Date" shall mean, individually and collectively, the
respective Due Dates for the Original Mortgage Loans in March 2007, except that
in the case of certain of the underlying mortgage loans that have their first
due date in April 2007, the Cut-off Date for those Mortgage Loans will be
considered to be the equivalent day of the month in March 2007 had their first
due date been in March 2007.
"Cut-off Date Principal Balance" shall mean, with respect to any
Original Mortgage Loan, the outstanding principal balance of such Mortgage Loan
as of its Due Date in March 2007, after application of all payments of principal
due on or before such date, whether or not received.
"Default Charges" shall mean Default Interest and/or late payment
charges that are paid or payable, as the context may require, in respect of any
Mortgage Loan or REO Mortgage Loan.
"Defaulted Mortgage Loan" shall mean a Mortgage Loan that is at
least sixty days delinquent in respect of its Monthly Payments, or 90 days
delinquent in respect of its Balloon Payment (or, if the borrower has delivered
a refinancing commitment reasonably acceptable to the Special Servicer, for such
longer period, not to exceed 150 days beyond the date on which that Balloon
Payment was due, during which the refinancing would occur), if any, in each case
without giving effect to any grace period permitted by the related Mortgage or
Note, or if any non-monetary event of default occurs that results in the
Mortgage Loan becoming a Specially Serviced Mortgage Loan; provided, however,
that no Monthly Payment (other than a Balloon Payment) shall be deemed
delinquent if less than ten dollars of all amounts due and payable on such
Mortgage Loan has not been received.
"Default Interest" shall mean, with respect to any Mortgage Loan (or
successor REO Mortgage Loan), any amounts collected thereon, other than late
payment charges, Yield Maintenance Charges, that represent interest (other than,
if applicable, Post-ARD Additional Interest) in excess of interest accrued on
the principal balance of such Mortgage Loan (or REO Mortgage Loan) at the
related Mortgage Rate, such excess interest arising out of a default under such
Mortgage Loan.
"Defaulting Party" shall have the meaning assigned thereto in
Section 7.01(b).
"Defective Mortgage Loan" shall mean any Mortgage Loan as to which
there exists a Material Breach or a Material Document Defect that has not been
cured in all material respects.
"Definitive Certificate" shall have the meaning assigned thereto in
Section 5.03(a).
"Deleted Mortgage Loan" shall mean a Mortgage Loan that is purchased
or repurchased, as the case may be, from the Trust or replaced with one or more
Replacement Mortgage Loans, in either case as contemplated by Section 2.03.
"Depositor" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"Depository" shall mean The Depository Trust Company, or any
successor depository hereafter named. 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.
"Designated Sub-Servicer" shall mean any Sub-Servicer set forth on
Exhibit L hereto and any successor thereto under the related Sub-Servicing
Agreement.
"Designated Sub-Servicer Agreement" shall mean any Sub-Servicing
Agreement between a Designated Sub-Servicer and the Master Servicer.
"Determination Date" shall mean, with respect to any calendar month,
commencing in April 2007, the 11th day of such calendar month (or, if such 11th
day is not a Business Day, the next succeeding Business Day). Each Determination
Date will relate to the Distribution Date in the same calendar month.
"Directly Operate" shall mean, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof that are not (within
the meaning of Treasury Regulations Section 1.512(b)-1(c)(5)) customarily
provided to tenants in connection with the rental of space for occupancy, the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers in the ordinary course of a trade or business,
the performance of any construction work thereon or any use of such REO Property
in a trade or business conducted by the Trust Fund, in each case other than
through an Independent Contractor; provided, however, that the Trustee (or the
Master Servicer or the Special Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an REO Property solely because the Trustee (or
the Master Servicer or the Special 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 (of the type that
would be deductible under Section 162 of the Code) or capital expenditures with
respect to such REO Property.
"Disqualified Organization" shall mean any of the following: (i) the
United States or a possession thereof, any State or any political subdivision
thereof, or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for Xxxxxxx Mac, a majority of its board of directors is not
selected by any such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of either of the
foregoing, (iii) any organization (except certain farmers' cooperatives
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 on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code or (v)
any other Person so designated by the Trustee, based upon an Opinion of Counsel
delivered to the Trustee to the effect that the holding of an Ownership Interest
in a Class R or Class LR Certificate by such Person may cause (A) either of the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or (B)
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 Class R or Class LR 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 Non-United States Tax Person" shall mean, with respect
to any Class R or Class LR Certificate, any Non-United States Tax Person or
agent thereof other than: (1) a Non-United States Tax Person that (a) holds such
Class R or Class LR 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 Class R or Class 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 or Class LR Certificate and
intends to pay taxes associated with holding such Class R or Class LR
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 Class R or Class LR Certificate to it is in
accordance with the requirements of the Code and the regulations promulgated
thereunder and (y) such Transfer of such Class R or Class LR Certificate will
not be disregarded for United States federal income tax purposes.
"Distribution Account" shall mean collectively, the Upper-Tier
Distribution Account, the Lower-Tier Distribution Account and the Post-ARD
Additional Interest Distribution Account, which may be sub-accounts of a single
account.
"Distribution Date" shall mean, with respect to any calendar month,
commencing in April 2007, the fourth Business Day following the Determination
Date in such calendar month.
"Document Defect" shall mean, with respect to any Mortgage Loan,
that any document required to be part of the related Mortgage File has not been
properly executed, is missing, contains information that does not conform in any
material respect with the corresponding information set forth in the Mortgage
Loan Schedule (and the terms of such document have not been modified by written
instrument contained in the related Mortgage File), or does not appear to be
regular on its face.
"Do Not Hire List" shall mean the list, as may be updated at any
time, provided by the Depositor to the Master Servicer, Special Servicer and
Trustee, which lists certain parties identified by the Depositor as having
materially failed to comply with their respective obligations under Article XII
of this Agreement or as having materially failed to comply with any similar
Regulation AB reporting requirements under any pooling and servicing agreement
relating to any other series of certificates offered by the Depositor.
"Due Date" shall mean with respect to any Mortgage Loan (and any
successor REO Mortgage Loan), the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on such Mortgage Loan is first
scheduled to be due (without regard to any applicable grace period).
"Earn-Out Reserve Funds" shall mean Reserve Funds as to which any
release thereof to the related Borrower is tied to conditions relating to the
economic performance, value and/or occupancy of the subject Mortgaged Property.
"XXXXX" shall mean the Electronic Data Gathering, Analysis, and
Retrieval System of the Commission, which is the computer system for the
receipt, acceptance, review and dissemination of documents submitted to the
Commission in electronic format.
"Eligible Account" shall mean any of (i) an account maintained with
a federal or state chartered depository institution or trust company, the
long-term deposit or long-term unsecured debt obligations of which are rated no
less than "AA-" by Fitch (or "A+" by Fitch if the short term unsecured debt
obligations thereof are rated at least "A-1" by Fitch) and "Aa3" by Xxxxx'x (if
the deposits are to be held in the account for more than 30 days), or the
short-term deposit or short-term unsecured debt obligations of which are rated
no less than "P-1" by Xxxxx'x and "A-1" by Fitch (if the deposits are to be held
in the account for 30 days or less), in any event at any time funds are on
deposit therein; (ii) a segregated trust account maintained with a federal or
state chartered depository institution or trust company acting in its fiduciary
capacity, which, in the case of a state chartered depository institution or
trust company is subject to regulations regarding fiduciary funds on deposit
therein substantially similar to 12 C.F.R. ss. 9.10(b), and which, in either
case, has a combined capital and surplus of at least $50,000,000 and is subject
to supervision or examination by federal or state authority, and provided
further that either such depository institution or its parent has long-term
unsecured debt obligations which are rated at least "Baa3" by Xxxxx'x; (iii) an
account or accounts maintained with PNC (A) so long as PNC's long-term unsecured
debt rating shall be at xxxxx "X0" from Xxxxx'x and "A" from Fitch and its
short-term unsecured debt rating is at least "A-1" from Fitch (if the deposits
are to be held in the account for more than 30 days) or (B) PNC's short-term
deposit or short-term unsecured debt rating shall be at least "P-1" from Xxxxx'x
and "A-1" from Fitch (if the deposits are to be held in the account for 30 days
or less); (iv) for so long as Capmark Finance Inc. is acting as the Master
Servicer, a segregated trust account or accounts maintained at Escrow Bank,
Midvale, Utah ("Escrow Bank"), provided that Escrow Bank has corporate trust
powers, is acting in its fiduciary capacity and is subject to regulations
regarding fiduciary funds on deposit therein substantially similar to 12 C.F.R.
ss. 9.10(b); and (v) any other account that is acceptable to the Rating Agencies
(as evidenced by written confirmation to the Trustee from each Rating Agency
that the use of such account would not, in and of itself, result in an Adverse
Rating Event with respect to any Class of Rated Certificates).
"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.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Payment" shall mean any payment received by the Master
Servicer or the Special Servicer for the account of any Borrower for application
toward the payment of real estate taxes, assessments, insurance premiums
(including with respect to any Environmental Insurance Policy), ground rents (if
applicable) and similar items in respect of the related Mortgaged Property.
"Euroclear" shall mean The Euroclear System.
"Event of Default" shall have the meaning assigned thereto in
Section 7.01(a).
"Excess Liquidation Proceeds" shall mean the excess, if any, of (a)
the Net Liquidation Proceeds from the sale or liquidation of a Specially
Serviced Mortgage Loan or REO Property, over (b) the sum of (i) the amount
needed to pay all principal, interest (including Additional Interest (if
applicable) and Default Interest) or Yield Maintenance Charges (as applicable)
and late payment charges payable with respect to such Mortgage Loan or related
REO Loan in full (or if such amount relates to an A/B Loan Pair, the amount
needed to pay off such A/B Loan Pair in full), (ii) any other fees that would
constitute Additional Master Servicing Compensation and/or Additional Special
Servicing Compensation, (iii) any related unreimbursed Servicing Advances, (iv)
all unpaid Advance Interest on any related Advances, and (v) any related
Liquidation Fee and/or Special Servicing Fees paid or payable in respect of such
Mortgage Loan or the related REO Loan and (vi) any other Additional Trust Fund
Expenses paid or payable in respect of such Mortgage Loan.
"Excess Liquidation Proceeds Account" shall mean the account or
sub-account of the Distribution Account created and maintained by the Trustee
pursuant to Section 3.04(d) in trust for the Certificateholders, which shall be
entitled "Xxxxx Fargo Bank, N.A. [or the name of any successor Trustee], as
Trustee, in trust for the registered holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2007-C1, Excess Liquidation Proceeds Account." Any such account shall be an
Eligible Account and shall be an asset of the Lower-Tier REMIC.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exemption-Favored Party" shall mean any of (i) Credit Suisse, (ii)
any Person directly or indirectly, through one or more intermediaries,
controlling, controlled by or under common control with Credit Suisse, 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 Certificates (other than the Class R, Class LR and Class V
Certificates) that is investment grade rated by at least one Rating Agency.
"Fair Value" shall have the meaning assigned thereto in Section
3.18(b).
"Xxxxxx Xxx" shall mean the Federal National Mortgage Association or
any successor.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation or any
successor.
"Final Distribution Date" shall mean the final Distribution Date on
which any distributions are to be made on the Certificates as contemplated by
Section 9.01.
"Final Recovery Determination" shall mean a determination made by
the Special Servicer, in its reasonable judgment, with respect to any Specially
Serviced Mortgage Loan or REO Property (other than a Mortgage Loan that is paid
in full and other than a Mortgage Loan or REO Property, as the case may be, that
is repurchased or replaced by a Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement, purchased or replaced by the Column
Performance Guarantor pursuant to the Column Performance Guarantee, purchased by
the Master Servicer, the Special Servicer or any Certificateholder(s) of a
Controlling Class pursuant to Section 9.01 or otherwise acquired by the Sole
Certificateholder(s) in exchange for all the Certificates pursuant to Section
9.01), that there has been a recovery of all related Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and other payments or recoveries
that will ultimately be recoverable.
"Fitch" shall mean Fitch, Inc. or its successor in interest. If
neither such rating agency nor any successor remains in existence, "Fitch" shall
be deemed to refer to such other nationally recognized statistical rating agency
or other comparable Person designated by the Depositor, notice of which
designation shall be given to the other parties hereto, and specific ratings of
Fitch, Inc. herein referenced shall be deemed to refer to the equivalent ratings
of the party so designated; provided, however, that if such designated party has
not then assigned a rating to a depository institution, insurer or any other
Person or item, then any failure to satisfy a requirement under this Agreement
to meet or maintain such equivalent rating shall not be deemed an Event of
Default or breach of the Servicing Standard solely as a result of such failure.
References herein to "applicable rating category" (other than such references to
"highest applicable rating category") shall, in the case of Fitch, be deemed to
refer to such applicable rating category of Fitch, without regard to any plus or
minus or other comparable rating qualification.
"Floating Rate Account" shall mean the account, accounts or, subject
to Section 3.04(i), sub-accounts created and maintained by the Trustee, pursuant
to Section 3.04(g), in trust for the Class A-MFL Certificateholders, which,
subject to Section 3.04(i), shall be entitled "Xxxxx Fargo Bank N.A., as
Trustee, for the benefit of registered holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2007-C1, Class A-MFL, Floating Rate Account." Any such account or sub-account
shall be an Eligible Account or, subject to Section 3.04(i), a sub-account of an
Eligible Account.
"FNMA" shall mean the Federal National Mortgage Association or any
successor thereto
"Form 8-K Disclosure Information" shall have the meaning assigned
thereto in Section 12.09.
"Xxxxxxx Mac" shall mean the Federal Home Loan Mortgage Corporation
or any successor.
"GAAP" shall mean generally accepted accounting principles in the
United States.
"Global Certificate" shall mean, with respect to any Class of
Non-Registered Certificates, any related Regulation S Global Certificate or Rule
144A Global Certificate.
"Grantor Trust" shall mean a grantor trust as defined under subpart
E of Part 1 of subchapter J of the Code.
"Grantor Trust Pool" shall mean the Grantor Trust Pool designated as
such in Section 2.11.
"Grantor Trust Provisions" shall mean Sections 671-679 of the Code
(including Treasury Regulations thereunder) and Treasury Regulations Section
301.7701-4(c).
"Ground Lease" shall mean the ground lease pursuant to which any
Borrower holds a leasehold interest in the related Mortgaged Property, together
with any estoppels or other agreements executed and delivered by the ground
lessor in favor of the lender under the related Mortgage Loans.
"Group Environmental Insurance Policy" shall mean an Environmental
Insurance Policy that is maintained from time to time in respect of more than
one Mortgaged Property or REO Property.
"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
("PCBs"), radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory," "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"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 Trustee,
the Controlling Class Representative and any and all Affiliates thereof, (ii)
does not have any direct financial interest in or any material indirect
financial interest in any of the Depositor, any Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Trustee, the Controlling Class
Representative or any Affiliate thereof, and (iii) is not connected with the
Depositor, any Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the Controlling Class Representative or any Affiliate thereof as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, however, that a Person shall not fail to
be Independent of the Depositor, any Mortgage Loan Seller, the Master Servicer,
the Special Servicer, the Trustee, the Controlling Class Representative or any
Affiliate thereof merely because such Person is the beneficial owner of 1% or
less of any class of debt or equity securities issued by the Depositor, such
Mortgage Loan Seller, such Master Servicer, such Special Servicer, the Trustee,
the Controlling Class Representative or any such Affiliate thereof, as the case
may be, provided such ownership constitutes less than 1% of the total assets of
such Person.
"Independent Contractor" shall mean: (i) any Person that would be an
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership test set forth in that Section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class of Certificates, or such other interest in any Class of
Certificates as is set forth in an Opinion of Counsel, which shall be at no
expense to the Trustee, the Master Servicer or the Trust, delivered to the
Trustee and the Master Servicer), so long as the Trust Fund does not receive or
derive any income from such Person and provided that the relationship between
such Person and the Trust Fund is at arm's length, all within the meaning of
Treasury Regulations Section 1.856-4(b)(5) (except that the Master Servicer or
the Special Servicer shall not be considered to be an Independent Contractor
under the definition in this clause (i) unless an Opinion of Counsel (at the
expense of the party seeking to be deemed an Independent Contractor) has been
delivered to the Trustee to that effect), or (ii) any other Person (including
the Master Servicer and the Special Servicer) upon receipt by the Trustee and
the Master Servicer of an Opinion of Counsel (at the expense of the party
seeking to be deemed an Independent Contractor), to the effect that the taking
of any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code, or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Initial Pool Balance" shall mean the aggregate Cut-off Date
Principal Balance of all the Original Mortgage Loans.
"Initial Purchaser" shall mean Credit Suisse, as initial purchaser
of the Non-Registered Certificates.
"Initial Resolution Period" shall have the meaning assigned thereto
in Section 2.03(b).
"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 or
REO Property, any hazard insurance policy, flood insurance policy, title
insurance policy, earthquake insurance policy, Environmental Insurance Policy,
business interruption insurance policy or other insurance policy that is
maintained from time to time in respect of such Mortgage Loan (or the related
Mortgaged Property) or such REO Property, as the case may be.
"Insurance Proceeds" shall mean proceeds paid under any Insurance
Policy, to the extent such proceeds actually received by the Trust are not
applied to the restoration of the related Mortgaged Property or REO Property or
released to the related Borrower or any other third-party in accordance with
applicable law and/or the terms and conditions of the related Mortgage Loan
Documents or any other applicable document.
"Insured Environmental Event" shall have the meaning assigned
thereto in Section 3.07(c).
"Interest Accrual Basis" shall mean the basis on which interest
accrues in respect of any Mortgage Loan, any Class of Regular Certificates or
any Uncertificated Lower-Tier Interest, consisting of one of the following: (i)
a 30/360 Basis; or (ii) an Actual/360 Basis.
"Interest Accrual Period" shall mean, with respect to any Class of
Regular Certificates (other than the Class A-MFL Certificates), the Class A-MFL
Regular Interest or Uncertificated Lower-Tier Interests, for any Distribution
Date, the calendar month immediately preceding the month in which such
Distribution Date occurs. With respect to the Class A-MFL Certificates for any
Distribution Date, the period from and including the Distribution Date in the
month preceding the month in which the related Distribution Date occurs (or, in
the case of the first Distribution Date, from and including the Closing Date)
to, but excluding, the related Distribution Date; except that, if the Swap
Agreement is terminated and not replaced or if there exists a continuing payment
default by the Swap Counterparty under the Swap Agreement, then the Interest
Accrual Period with respect to the Class A-MFL Certificate for any Distribution
Date will be the same as the Interest Accrual Period for the Class A-MFL Regular
Interest. Each Interest Accrual Period with respect to any Class of Regular
Certificates (other than the Class A-MFL Certificates) and the Class A-MFL
Regular Interest shall be deemed for purposes of this definition to consist of
30 days. Each Interest Accrual Period with respect to the Class A-MFL
Certificates shall be based upon the actual number of days in the related
Interest Accrual Period; except that, if the Swap Agreement is terminated and
not replaced or if there exists a continuing payment default by the Swap
Counterparty under the Swap Agreement, then any Interest Accrual Period with
respect to the Class A-MFL Certificates will also be deemed to consist of 30
days.
"Interest Only Certificates" shall mean the Class A-X and Class A-SP
Certificates.
"Interest Reserve Account" shall mean the segregated account or
sub-account created and maintained by the Trustee pursuant to Section 3.04(c) in
trust for the Certificateholders, which shall be entitled "Xxxxx Fargo Bank,
N.A. [or the name of any successor Trustee], as Trustee, in trust for the
registered holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2007-C1, Interest Reserve
Account." The Interest Reserve Account shall be an asset of the Lower-Tier
REMIC.
"Interest Reserve Amount" shall mean, with respect to each Interest
Reserve Mortgage Loan and each Distribution Date that occurs during the month of
February of 2008 and each year thereafter or during the month of January of 2009
and each year thereafter that is not a leap year (unless, in either case, the
related Distribution Date is the Final Distribution Date), an amount equal to
one day's interest at the related Net Mortgage Rate on the Stated Principal
Balance of such Interest Reserve Mortgage Loan as of the end of the related
Collection Period (but prior to the application of any amounts due on such Due
Date), to the extent that a Monthly Payment is received in respect thereof for
such Due Date on or before the related Master Servicer Remittance Date or a P&I
Advance is made in respect thereof for such Due Date on the related Master
Servicer Remittance Date.
"Interest Reserve Mortgage Loan" shall mean any Actual/360 Mortgage
Loan (or successor REO Mortgage Loan).
"Interest Shortfall" shall mean, as to any Distribution Date and any
Class of Regular Certificates, when the amount distributed on such Distribution
Date in respect of interest is less than the Optimal Interest Distribution
Amount.
"Interest Shortfall Amount" shall mean, as to any Distribution Date
and any Class of Regular Certificates (other than the Class A-MFL Certificates)
or the Class A-MFL Regular Interest, the amount, if any, by which the amount
distributed on such Class on such Distribution Date in respect of interest is
less than the related Optimal Interest Distribution Amount.
"Interested Person" shall mean the Depositor, the Master Servicer,
the Special Servicer, any Independent Contractor engaged by the Special
Servicer, any Holder of a Certificate or any Affiliate of any such Person.
"Investment Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended.
"IRS" shall mean the Internal Revenue Service or any successor.
"Issue Price" shall mean, with respect to each Class of
Certificates, the "issue price" as defined in the REMIC Provisions.
"Late Collections" shall mean: (a) with respect to any Mortgage
Loan, all amounts (except Default Charges) received by or on behalf of the Trust
thereon during any Collection Period, whether as payments, Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds or otherwise, which represent late
collections of the principal and/or interest portions of a Monthly Payment
(other than a Balloon Payment) or an Assumed Monthly Payment in respect of such
Mortgage Loan due or deemed due on a Due Date in a previous Collection Period or
on a Due Date during or prior to March 2007, and not previously recovered; and
(b) with respect to any REO Mortgage Loan, all amounts (except Default Charges)
received by or on behalf of the Trust in connection with the related REO
Property during any Collection Period, whether as Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
represent late collections of the principal and/or interest portions of a
Monthly Payment (other than a Balloon Payment) or an Assumed Monthly Payment in
respect of the predecessor Mortgage Loan or late collections of the principal
and/or interest portions of an Assumed Monthly Payment in respect of such REO
Mortgage Loan due or deemed due on a Due Date in a previous Collection Period,
and not previously recovered.
"Latest Possible Maturity Date" shall mean, with respect to any
Class of Regular Certificates, Uncertificated Lower-Tier Interests or the Class
A-MFL Regular Interest, the date designated as the "latest possible maturity
date" thereof solely for purposes of satisfying Treasury Regulations Section
1.860G-1(a)(4)(iii).
"Letter of Credit" shall mean, with respect to any Mortgage Loan,
any third-party letter of credit delivered by or at the direction of the
Borrower pursuant to the terms of such Mortgage Loan in lieu of the
establishment of, or deposit otherwise required to be made into, a Reserve Fund.
"LIBOR" shall mean, with respect to the Class A-MFL Certificates,
the LIBOR rate referred to under the heading "Floating Rate Option" in the Swap
Agreement.
"Liquidation Event" shall mean: (a) with respect to any Mortgage
Loan, any of the following events-(i) such Mortgage Loan is paid in full, (ii) a
Final Recovery Determination is made with respect to such Mortgage Loan, (iii)
such Mortgage Loan is repurchased or replaced by a Mortgage Loan Seller pursuant
to the related Mortgage Loan Purchase Agreement or purchased or replaced by the
Column Performance Guarantor pursuant to the Column Performance Guarantee, in
each case as contemplated by Section 2.03, (iv) such Mortgage Loan is purchased
by the Special Servicer, any Certificateholder(s) of a Controlling Class or any
assignee of the foregoing pursuant to Section 3.18 or by the Master Servicer,
the Special Servicer or any Certificateholder(s) of the Controlling Class
pursuant to Section 3.18 or Section 9.01, (v) the purchase of the related
Mortgage Loan by the related mezzanine lender pursuant to the related mezzanine
intercreditor agreement, (vi) in the case of any A/B Loan Pair, the purchase of
the related A Loan by the related B Loan Holder pursuant to the related A/B
Intercreditor Agreement, or (vii) such Mortgage Loan is acquired by the Sole
Certificateholder(s) in exchange for all of the Certificates pursuant to Section
9.01; and (b) with respect to any REO Property (and the related REO Mortgage
Loan), any of the following events-(i) a Final Recovery Determination is made
with respect to such REO Property, (ii) such REO Property is purchased by the
Master Servicer, the Special Servicer or any Certificateholder(s) of the
Controlling Class pursuant to Section 9.01, or (iii) such REO Property is
acquired by the Sole Certificateholder(s) in exchange for all of the
Certificates pursuant to Section 9.01.
"Liquidation Expenses" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses due and owing (but not otherwise
covered by Servicing Advances) in connection with the liquidation of any
Specially Serviced Mortgage Loan or REO Property pursuant to Section 3.09 or
Section 3.18 or final payoff of a Corrected Mortgage Loan (including legal fees
and expenses, committee or referee fees and, if applicable, brokerage
commissions and conveyance taxes, any Liquidation Fee or Workout Fee associated
with a final payoff of a Corrected Mortgage Loan and any other unreimbursed
Additional Trust Fund Expenses associated with such Mortgage Loan).
"Liquidation Fee" shall mean, with respect to each Specially
Serviced Mortgage Loan or REO Property (other than any Specially Serviced
Mortgage Loan or REO Property that is (i) purchased by the Special Servicer or
any Certificateholder(s) of a Controlling Class or any assignee of the foregoing
pursuant to Section 3.18; provided that if any such party assigns its Purchase
Option to an unaffiliated third party without any consideration therefor (other
than nominal consideration), a Liquidation Fee shall be payable pursuant to
Section 3.11, (ii) purchased by the Master Servicer, the Special Servicer or any
Certificateholder(s) of the Controlling Class pursuant to Section 9.01, (iii)
acquired by the Sole Certificateholder(s) in exchange for all of the
Certificates pursuant to Section 9.01, (iv) purchased by the related B Loan
Holder pursuant to the related A/B Intercreditor Agreement so long as such
Specially Serviced Mortgage Loan or REO Property is purchased within 90 days of
the right to purchase arising (or such shorter time period as may be specified
in such related A/B Intercreditor Agreement), (v) repurchased or replaced no
later than the end of the applicable Initial Resolution Period and any
applicable Resolution Extension Period, as a result of a Material Breach or a
Material Document Defect, by a Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement or by the Column Performance Guarantor pursuant
to the Column Performance Guarantee, or (vi) the actual purchase of a Mortgage
Loan by a mezzanine lender pursuant to the terms of any related intercreditor
agreement within 90 days (or, with respect to any such Mortgage Loan, any
shorter time frame as set forth in the related intercreditor agreement) of such
Mortgage Loan becoming specially serviced to the extent not collected from the
related mezzanine lender pursuant to the related intercreditor agreement) the
fee designated as such and payable to the Special Servicer pursuant to the third
paragraph of Section 3.11(c).
"Liquidation Fee Rate" shall mean, with respect to each Specially
Serviced Mortgage Loan or REO Property as to which a Liquidation Fee is payable,
1.0% (100 basis points).
"Liquidation Proceeds" shall mean all cash amounts (other than
Insurance Proceeds, Condemnation Proceeds and REO Revenues) actually received by
the Trust in connection with: (i) the liquidation of a Mortgaged Property or
other collateral constituting security for a defaulted Mortgage Loan, through
trustee's sale, foreclosure sale, REO Disposition or otherwise, exclusive of any
portion thereof required to be released to the related Borrower in accordance
with applicable law and/or the terms and conditions of the related Mortgage Note
and Mortgage; (ii) the realization upon any deficiency judgment obtained against
a Borrower; (iii) the purchase of a Defaulted Mortgage Loan by the Special
Servicer, any Certificateholder(s) of a Controlling Class or any assignee of the
foregoing pursuant to Section 3.18; (iv) the repurchase of a Mortgage Loan by a
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement or
the purchase of a Column Mortgage Loan by the Column Performance Guarantor
pursuant to the Column Performance Guarantee; (v) the substitution of one or
more Replacement Mortgage Loans for a Deleted Mortgage Loan by a Mortgage Loan
Seller pursuant to the related Mortgage Loan Purchase Agreement or by the Column
Performance Guarantor pursuant to the Column Performance Guarantee (such cash
amounts being any Substitution Shortfall Amounts); (vi) the purchase of a
Mortgage Loan or REO Property by the Master Servicer, the Special Servicer or
any Certificateholder(s) of the Controlling Class pursuant to Section 9.01;
(vii) the acquisition of any Mortgage Loan or REO Property by the Sole
Certificateholder(s) in exchange for all the Certificates pursuant to Section
9.01; (viii) the purchase of an A Loan by the related B Loan Holder pursuant to
the related A/B Intercreditor Agreement or (ix) the purchase of a Mortgage Loan
by the related mezzanine lender pursuant to the related mezzanine intercreditor
agreement. Except for the purposes of Section 3.11(c), "Liquidation Proceeds"
shall also include any payments to the Trust by a Mortgage Loan Seller or the
Column Performance Guarantor as contemplated by the second paragraph of Section
2.03(b), and any amounts transferred from a Purchase Price Security Deposit
Account to the Collection Account pursuant to Section 2.03(b) and from a Special
Reserve Account to the Collection Account pursuant to Section 2.03(d).
"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 Mortgage
Loans that are identified on the Mortgage Loan Schedule as belonging to Loan
Group No. 1 and any successor REO Mortgage Loans with respect thereto.
"Loan Group No. 2" shall mean, collectively, all of the
Mortgage Loans that are identified on the Mortgage Loan Schedule as
belonging to Loan Group No. 2 and any successor REO Mortgage Loans with
respect thereto.
"Loan-to-Value Ratio" shall mean, with respect to any Mortgage Loan,
as of any date of determination, the fraction, expressed as a percentage, the
numerator of which is the principal balance of such Mortgage Loan (or, in the
case of any A Loan, of the A/B Loan Pair) at the time of determination, and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"LOC Cash Reserve" shall have the meaning assigned thereto in the
definition of "Mortgage File."
"Lower-Tier Distribution Account" shall mean the account, accounts
or sub-accounts created and maintained by the Trustee, pursuant to Section
3.04(b), in trust for the Certificateholders, which shall be entitled "Xxxxx
Fargo Bank, N.A., as Trustee, for the benefit of the registered holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 0000-X0, Xxxxx-Xxxx Distribution Account." Any
such account or accounts shall be an Eligible Account or a subaccount of an
Eligible Account.
"Lower-Tier Distribution Amount" shall have the meaning assigned
thereto in Section 4.01.
"Lower-Tier Principal Amount" shall mean, with respect to any Class
of Uncertificated Lower-Tier Interests, (i) on or prior to the first
Distribution Date, an amount equal to the Original Lower-Tier Principal Amount
of such Class as specified in the Preliminary Statement hereto, and (ii) as of
any date of determination after the first Distribution Date, an amount equal to
the Class Principal Balance of the Class of Related Certificates on the
Distribution Date immediately prior to such date of determination (determined
after taking into account any distributions made on such Distribution Date
pursuant to Section 4.01(a) and (b) and any Realized Loss allocated to such
Class pursuant to Section 4.04).
"Lower-Tier REMIC" shall mean, one of two separate REMICs comprising
the Trust Fund, the assets of which consist of the Mortgage Loans (exclusive of
Post-ARD Additional Interest), any REO Property with respect thereto (exclusive
of any interest therein that a B Loan Holder may have), such amounts as shall
from time to time be held in any Collection Account, the Interest Reserve
Account, any REO Account (exclusive of any such amounts that are allocable to a
B Loan), the Excess Liquidation Proceeds Account (exclusive of any such amounts
that are allocable to a B Loan), if any, the Lower-Tier Distribution Account,
any A/B Loan Pair Custodial Account (exclusive of any such amounts that are
allocable to a B Loan) and, except as otherwise provided in this Agreement, all
other property included in the Trust Fund (other than Post-ARD Additional
Interest and the Post-ARD Additional Interest Distribution Account) that is not
in the Upper-Tier REMIC or the Grantor Trust Pool.
"Majority Controlling Class Certificateholder" shall mean, as of any
date of determination, any single Holder or group of Holders of Certificates
representing a majority of the Voting Rights allocated to the Class of Principal
Balance Certificates that constitutes, or the Classes of Principal Balance
Certificates that constitute, the Controlling Class as of such date of
determination.
"Master Servicer" shall mean Capmark, in its capacity as master
servicer with respect to the Mortgage Pool and any related REO Properties
hereunder, or any successor master servicer with respect to the Mortgage Pool
and any related REO Properties appointed as provided herein.
"Master Servicer Remittance Amount" shall mean, with respect to the
Master Servicer for any Master Servicer Remittance Date, an amount equal to (a)
all amounts on deposit in such Master Servicer's Collection Account as of the
commencement of business on such Master Servicer Remittance Date, net of (b) any
portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments that are
due on a Due Date following the end of the related Collection Period, (ii) any
payments of principal (including Principal Prepayments) and interest (including
Post-ARD Additional Interest), Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received by or on behalf of the Trust after the end of the
related Collection Period, (iii) any Yield Maintenance Charges received by or on
behalf of the Trust after the end of the related Collection Period, (iv) any
Excess Liquidation Proceeds, (v) any amounts payable or reimbursable to any
Person from such Collection Account pursuant to clauses (ii) through (xxii),
(xxiv) and (xxvii) of Section 3.05(a), and (vi) any amounts deposited in such
Collection Account in error; provided that the Master Servicer Remittance
Amount, with respect to the Master Servicer, for the Master Servicer Remittance
Date that occurs in the same calendar month as the anticipated Final
Distribution Date shall be calculated without regard to clauses (b)(i), (b)(ii)
and (b)(iii) of this definition.
"Master Servicer Remittance Date" shall mean the Business Day
preceding each Distribution Date commencing in April 2007.
"Master Servicing Fee" shall mean, with respect to each Mortgage
Loan and REO Mortgage Loan, the fee designated as such and payable to the Master
Servicer pursuant to Section 3.11(a), which Master Servicing Fee shall include
any Primary Servicing Fee.
"Master Servicing Fee Rate" shall mean, with respect to each
Mortgage Loan and any successor REO Mortgage Loan, the rate per annum specified
with respect to such Mortgage Loan under the heading "Master Servicing Fee Rate"
in the Mortgage Loan Schedule.
"Material Breach" shall mean: (a) with respect to any Mortgage Loan,
any Breach that materially and adversely affects the value of, or the interests
of any Certificateholder in, such Mortgage Loan or the value of the related
Mortgaged Property; and (b) with respect to any REO Property, any Breach that
materially and adversely affects the value of, or the interests of any
Certificateholder in, such REO Property.
"Material Document Defect" shall mean: (a) with respect to any
Mortgage Loan, any Document Defect that materially and adversely affects the
value of, or the interests of any Certificateholder in, such Mortgage Loan or
the value of the related Mortgaged Property; and (b) with respect to any REO
Property, any Document Defect that materially and adversely affects the value
of, or the interests of any Certificateholder in, such REO Property; provided
that, without limiting the generality of the foregoing, the absence of a
Specially Designated Mortgage Loan Document shall automatically be a Material
Document Defect with respect to the affected Mortgage Loan.
"Midland" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
"Modified Mortgage Loan" shall mean any Mortgage Loan as to which
any Servicing Transfer Event has occurred and which has been modified by the
Special Servicer pursuant to Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing Monthly
Payments current with respect to such Mortgage Loan and/or extending the
maturity date for the Mortgage Loan for less than six months);
(b) except as expressly contemplated by the related Mortgage Loan
Documents, results 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, 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 Borrower and upon which the Special Servicer may
conclusively rely); or
(c) in the reasonable 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 Interest Distribution Amount" shall mean, with respect to
any Distribution Date and any Class of Regular Certificates (other than the
Class A-X and Class A-SP Certificates) and the Class A-MFL Regular Interest, the
amount of interest accrued for the related Interest Accrual Period at the
related Pass-Through Rate on the Class Principal Balance of such Class as of
such Distribution Date, reduced by such Class's pro rata share (based on accrued
interest) of the Net Aggregate Prepayment Interest Shortfall. As to any
Distribution Date and the Class A-X and Class A-SP Certificates, the amount of
interest accrued during the related Interest Accrual Period at the Pass-Through
Rate thereof on the Class Notional Amount thereof as of such Distribution Date,
reduced by such Class's pro rata share (based on accrued interest) of the Net
Aggregate Prepayment Interest Shortfall for such Distribution Date. The Monthly
Interest Distribution Amount for each such Class (other than the Class A-MFL
Certificates) shall be calculated on the basis of a 360-day year composed of
twelve 30-day months. The Monthly Interest Distribution Amount for the Class
A-MFL Certificates for any Distribution Date, for so long as the Swap Agreement
is in effect and no payment default by the Swap Counterparty exists under the
Swap Agreement, shall be calculated on the basis of the actual number of days in
that Interest Accrual Period and the assumption that each year consists of 360
days, except that, if the Swap Agreement is terminated and not replaced or if
there exists a continuing payment default by the Swap Counterparty under the
Swap Agreement, then the calculation with respect to the Class A-MFL
Certificates will be on the same basis as the Class A-MFL Regular Interest.
"Monthly Payment" shall mean, with respect to any Mortgage Loan as
of any Due Date, the scheduled monthly payment (or, in the case of an ARD
Mortgage Loan after its Anticipated Repayment Date, the minimum required monthly
payment) of principal and/or interest on such Mortgage Loan, including any
Balloon Payment, that is actually payable by the related Borrower 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, insolvency or similar proceeding
involving the related Borrower or by reason of a modification, waiver or
amendment granted or agreed to by the Master Servicer or the Special Servicer
pursuant to Section 3.20); provided that the Monthly Payment due in respect of
any ARD Mortgage Loan after its Anticipated Repayment Date shall not include
Post-ARD Additional Interest.
"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 other parties
hereto, 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; provided, however, that if such designated party has not then
assigned a rating to a depository institution, insurer or any other Person or
item, then any failure to satisfy a requirement under this Agreement to meet or
maintain such equivalent rating shall not be deemed an Event of Default or
breach of the Servicing Standard solely as a result of such failure. References
herein to "applicable rating category" (other than such references to "highest
applicable rating category") shall, in the case of Moody's, be deemed to refer
to such applicable rating category of Moody's, without regard to any plus or
minus or other comparable rating qualification.
"Mortgage" shall mean, with respect to any Mortgage Loan, separately
and collectively, as the context may require, each mortgage, deed of trust, deed
to secure debt or similar document that secures the related Mortgage Note and
creates a lien on the related Mortgaged Property.
"Mortgage File" shall mean, with respect to any Mortgage Loan,
subject to Sections 1.04 and 2.01, the following documents on a collective
basis:
(i) the original Note (or a lost note affidavit and indemnity),
bearing, or accompanied by, all prior and intervening
endorsements or assignments showing a complete chain of
endorsement, assignment or allonge from the applicable
Mortgage Loan Originator either in blank or to the Mortgage
Loan Seller, and further endorsed (at the direction of the
Depositor given pursuant to the Mortgage Loan Purchase
Agreement) by the Mortgage Loan Seller, on its face or by
allonge attached thereto, without recourse, in blank or to the
order of the Trustee in the following form: "Pay to the order
of Xxxxx Fargo Bank, N.A., as trustee for the registered
Holders of Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2007-C1, without recourse";
(ii) a duplicate original Mortgage or a counterpart thereof, or if
such Mortgage has been returned by the related recording
office, (A) an original, (B) a certified copy or (C) a copy
thereof from the applicable recording office, and originals or
counterparts (or originals or copies of certified copies from
the applicable recording office) of any intervening
assignments thereof from the related Mortgage Loan Originator
to the Mortgage Loan Seller, in each case in the form
submitted for recording or, if recorded, 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) and of any
intervening assignments thereof that precede the assignment
referred to in clause (v) of this definition, in each case
(unless the particular item has not been returned from the
applicable recording office) with evidence of recording
indicated thereon or certified as to recording by the
applicable recording office;
(iv) an original executed assignment of the Mortgage, in blank or
in favor of Xxxxx Fargo, as trustee for the registered holders
of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2007-C1,
in recordable form (except for any missing recording
information with respect to such Mortgage);
(v) an original executed assignment of any related Assignment of
Leases (if such item is a document separate from the
Mortgage), in blank or in favor of Xxxxx Fargo, as trustee for
the registered holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2007-C1, in recordable form (except for
any missing recording information with respect to such
Assignment of Leases);
(vi) originals or copies of any written assumption, modification,
written assurance and substitution agreements in those
instances where the terms or provisions of the Mortgage or
Mortgage Note have been modified or the Mortgage Loan has been
assumed, in each case (unless the particular item has not been
returned from the applicable recording office) with evidence
of recording indicated thereon or certified as to recording by
the applicable recording office if the instrument being
modified or assumed is a recordable document;
(vii) the original or a copy of the policy of lender's title
insurance or, if such policy has not yet been issued, a
"marked-up" pro forma title policy or commitment for title
insurance marked as binding and countersigned by the title
insurer or its authorized agent either on its face or by an
acknowledged closing instruction or escrow letter with the
original title insurance policy delivered by September 30,
2008;
(viii) certified or other copies of all UCC Financing Statements and
continuation statements which show the filing or recording
thereof or copies thereof in the form submitted for filing or
recording sufficient to perfect (and maintain the perfection
of) the security interest held by the Mortgage Loan Originator
(and each assignee of record prior to the Trustee) in and to
the personalty of the Borrower at the Mortgaged Property that
is described in the related Mortgage or a separate security
agreement, and original UCC Financing Statement assignments in
a form suitable for filing or recording, sufficient to
transfer such to the Trustee;
(ix) an original or copy of any related Loan Agreement (if separate
from the related Mortgage) and an original or copy of any
related lock-box agreement or cash collateral agreement (if
separate from the related Mortgage and Loan Agreement;
(x) the original or a copy of any power of attorney, guaranty, or
cash management agreement relating to such Mortgage Loan;
(xi) any original documents (including any Letter(s) of Credit)
evidencing or constituting Additional Collateral and, if
applicable, the originals or copies of any amendments or
intervening assignments thereof, provided that in connection
with the delivery of the Mortgage File to the Trust, the
original of each Letter of Credit (and any related amendment
or assignment) shall be delivered to the Master Servicer and a
copy thereof shall be delivered to the Trustee or a Custodian
on its behalf;
(xii) the original or a copy of any security agreement relating to
Additional Collateral and an executed assignment thereof in
blank or in favor of Xxxxx Fargo, as trustee, for the
registered holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Pass-Through Certificates, Series
2007-C1, in recordable form;
(xiii) the original or a copy of any intercreditor agreement
(including any A/B Intercreditor Agreement), subordination
agreement, standstill agreement, co-lender agreement or
similar agreement relating to such Mortgage Loan together
with, if the Mortgage Loan is an A Loan, a copy of the
promissory note for the related B Loan and, with respect to
any debt of a Borrower or mezzanine borrower permitted under
the Mortgage Loan, copies of any related mezzanine loan
documents or preferred equity documents;
(xiv) any environmental insurance policies and any environmental
guaranty or indemnity agreements or copies thereof;
(xv) the original or copy of any Ground Lease, Ground Lease
estoppels and any amendments thereto, if any;
(xvi) the original or copy of any property management agreement
(provided that no property management agreement shall be
required to be part of the Mortgage File, if an original or
copy of such property management agreement is included in the
related Servicing File);
(xvii) copies of franchise agreements and franchisor comfort
letters, if any, for hospitality properties and any applicable
transfer or assignment documents;
(xviii) any additional documents required to be added to the
Mortgage File pursuant to this Agreement; and
(xix) the checklist of the related Mortgage Loan Documents, if any,
that is included in the Mortgage File for the related Mortgage
Loan;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian or, if applicable, the Master
Servicer on its behalf such term shall be deemed not to include such documents
and instruments required to be included therein unless they are actually so
received; and provided, further, that the Mortgage File for any Mortgage Loan
need not include any Letter of Credit referred to in item (xi) of this
definition if, in lieu thereof, the related Mortgage Loan Seller has, on behalf
of the related Borrower, either (1) delivered to the Trustee a substitute letter
of credit, in the same amount and with the same draw conditions and renewal
rights as, and otherwise substantially similar to, that Letter of Credit and
issued by an obligor that meets any criteria in the related Mortgage Loan
Documents applicable to the issuer of that Letter of Credit or (2) delivered to
the Master Servicer a cash reserve in an amount equal to the amount of that
Letter of Credit (the "LOC Cash Reserve"), which substitute letter of credit can
be drawn on, or which cash reserve can be applied, to cover the same items as
that Letter of Credit was intended to cover. If any B Loan is being serviced and
administered in accordance herewith, the Mortgage File for the related A Loan
shall also constitute the Mortgage File for such B Loan.
"Mortgage Loan" shall mean each of the Original Mortgage Loans and
Replacement Mortgage Loans that are from time to time held in the Trust Fund,
including any such Original Mortgage Loan or Replacement Mortgage Loan that has
been wholly or partially defeased. As used herein, the term "Mortgage Loan"
includes the related Mortgage Loan Documents.
"Mortgage Loan Documents" shall mean, with respect to any Mortgage
Loan, the documents included or required to be included, as the context may
require, in the related Mortgage File and Servicing File.
"Mortgage Loan Purchase Agreement" shall mean any of the Column
Mortgage Loan Purchase Agreement and the Capmark Mortgage Loan Purchase
Agreement.
"Mortgage Loan Schedule" shall mean, collectively, the two schedules
of Mortgage Loans attached hereto as Exhibit B-1A and Exhibit B-1B,
respectively, as any such schedule may be amended from time to time in
accordance with this Agreement, collectively, which list sets forth the
following information with respect to each Mortgage Loan:
(i) the loan number (as specified in Exhibit A-1 to the
Prospectus Supplement);
(ii) the property name;
(iii) the street address (including city, state and zip code)
of the related Mortgaged Property;
(iv) the Mortgage Rate in effect at the Cut-off Date;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) remaining term to stated maturity, (b) Maturity
Date and (c) with respect to each ARD Mortgage Loan, the Anticipated
Repayment Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date;
(xi) the number of units, pads, rooms or square footage with
respect to the Mortgaged Property;
(xii) the Interest Accrual Period;
(xiii) the applicable Master Servicing Fee Rate (and, in the
case of the Column Mortgage Loans, any applicable Primary Servicing
Fee Rate);
(xiv) the Due Date;
(xv) whether such loan is an ARD Mortgage Loan;
(xvi) whether the Mortgage Loan is subject to
lockout/defeasance;
(xvii) whether the related Mortgaged Property was covered by
earthquake insurance at the time of origination, or if the related
Mortgage Loan Documents require such insurance;
(xviii) whether such Mortgage Loan has the benefit of an
Environmental Insurance Policy;
(xix) whether such Mortgage Loan is secured by the related
Borrower's interest in Ground Leases;
(xx) whether such Mortgage Loan is secured by a Letter of
Credit; and
(xxi) which Loan Group includes such Mortgage Loan.
Such Mortgage Loan Schedule also shall set forth the aggregate of
the amounts described under clause (vii) above for all of the Mortgage Loans.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Mortgage Loan Seller" shall mean the Column Mortgage Loan Seller or
the Capmark Mortgage Loan Seller.
"Mortgage Note" shall mean the original executed note evidencing the
indebtedness of a Borrower under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool" shall mean all of the Mortgage Loans and any
successor REO Mortgage Loans, collectively, as of any particular date of
determination.
"Mortgage Rate" shall mean, with respect to any Mortgage Loan (and
any successor REO Mortgage Loan), the annualized rate at which interest is
scheduled (in the absence of a default) to accrue on such Mortgage Loan from
time to time in accordance with the related Mortgage Note and applicable law, as
such rate may be modified in connection with a bankruptcy, insolvency or similar
proceeding involving the related Borrower or by the Master Servicer or the
Special Servicer in accordance with Section 3.20. In the case of each of the ARD
Mortgage Loans, the related Mortgage Rate will be subject to increase in
accordance with the related Mortgage Note if the particular Mortgage Loan is not
paid in full by its Anticipated Repayment Date.
"Mortgaged Property" shall mean, individually and collectively, as
the context may require, each real property (together with all improvements and
fixtures thereon) subject to the lien of a Mortgage and constituting collateral
for a Mortgage Loan. With respect to any Cross-Collateralized Mortgage Loan, if
and when the context may require, "Mortgaged Property" shall mean, collectively,
all the mortgaged real properties (together with all improvements and fixtures
thereon) securing the relevant Cross-Collateralized Group.
"Mortgagee" shall mean the holder of legal title to any Mortgage
Loan, together with any third parties through which such holder takes actions
with respect to such Mortgage Loan.
"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 in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the amount of any Compensating Interest Payment remitted by
the Master Servicer pursuant to Section 3.19(a) on the Master Servicer
Remittance Date related to such Distribution Date.
"Net Assumption Application Fee" shall have the meaning assigned
thereto in Section 3.08.
"Net Assumption Fee" shall have the meaning assigned thereto in
Section 3.08.
"Net Default Charges" shall mean, with respect to any Mortgage Loan
or REO Mortgage Loan, the Default Charges referred to in clause Fourth of
Section 3.26(a), which are payable to the Master Servicer as Additional Master
Servicing Compensation or the Special Servicer as Additional Special Servicing
Compensation.
"Net Investment Earnings" shall mean, with respect to any Investment
Account for any Collection Period, the amount, if any, by which the aggregate of
all interest and other income realized during such Collection Period in
connection with the investment of funds held in such Investment Account for the
benefit of the Master Servicer, the Special Servicer or the Trustee, as
applicable, in accordance with Section 3.06, exceeds the aggregate of all
losses, if any, incurred during such Collection Period in connection with the
investment of such funds for the benefit of such Master Servicer, such Special
Servicer or the Trustee, as applicable, in accordance with Section 3.06 (other
than losses of what would otherwise have constituted interest or other income
earned on such funds).
"Net Investment Loss" shall mean, with respect to any Investment
Account for any Collection Period, the amount by which the aggregate of all
losses, if any, incurred during such Collection Period in connection with the
investment of funds held in such Investment Account for the benefit of the
Master Servicer, the Special Servicer or the Trustee, as applicable, in
accordance with Section 3.06 (other than losses of what would otherwise have
constituted interest or other income earned on such funds), exceeds the
aggregate of all interest and other income realized during such Collection
Period in connection with the investment of such funds for the benefit of such
Master Servicer, such Special Servicer or the Trustee, as applicable, in
accordance with Section 3.06; provided that, in the case of any Investment
Account and any particular investment of funds in such Investment Account, Net
Investment Loss shall not include any loss with respect to such investment which
is incurred solely as a result of the insolvency of the federal or state
chartered depository institution or trust company that holds such Investment
Account, so long as such depository institution or trust company (i) satisfied
the qualifications set forth in the definition of Eligible Account both at the
time such investment was made and also as of a date not more than 30 days prior
to the date of such loss and (ii) was not such Master Servicer, such Special
Servicer, such Trustee or any Affiliate thereof, as applicable.
"Net Liquidation Proceeds" shall mean the excess, if any, of all
Liquidation Proceeds actually received by the Trust with respect to any
Specially Serviced Mortgage Loan or REO Property, over the amount of all
Liquidation Expenses incurred with respect thereto and all related Servicing
Advances reimbursable therefrom.
"Net Mortgage Pass-Through Rate" shall mean:
(A) With respect to any Mortgage Loan (or any successor REO Mortgage
Loan with respect thereto) that accrues interest on a 30/360 Basis, for any
Distribution Date, an annual rate equal to the original Net Mortgage Rate for
such Mortgage Loan; and
(B) With respect to any Mortgage Loan (or any successor REO Mortgage
Loan with respect thereto) that accrues interest on an Actual/360 Basis, for any
Distribution Date, an annual rate generally equal to twelve times a fraction,
expressed as a percentage:
(1) the numerator of which fraction is, subject to adjustment as
described below in this definition, an amount of interest
equal to the product of (a) the number of days in the related
Interest Accrual Period (disregarding the last sentence of the
definition of Interest Accrual Period), multiplied by (b) the
Stated Principal Balance of such Mortgage Loan (or such REO
Mortgage Loan) immediately preceding such Distribution Date,
multiplied by (c) 1/360, multiplied by (d) the Original Net
Mortgage Rate for such Mortgage Loan; and
(2) the denominator of which is the Stated Principal Balance of
such Mortgage Loan (or such REO Mortgage Loan) immediately
preceding that Distribution Date.
Notwithstanding the foregoing, if the subject Distribution Date
occurs during January, except during a leap year, or February of any year
subsequent to 2007 (unless the Final Distribution Date occurs in such month),
then the amount of interest referred to in the fractional numerator described in
clause (B)(1) above will be decreased to reflect any Withheld Amounts with
respect to the subject Mortgage Loan (or REO Mortgage Loan) transferred from the
Distribution Account to the Interest Reserve Account in such calendar month.
Furthermore, if the subject Distribution Date occurs during March of any year
subsequent to 2007 (or February, if the Final Distribution Date occurs in such
month), then the amount of interest referred to in the fractional numerator
described in clause (B)(1) above will be increased to reflect any Withheld
Amounts with respect to the subject Mortgage Loan (or REO Mortgage Loan)
transferred from the Interest Reserve Account to the Distribution Account for
distribution on such Distribution Date.
"Net Mortgage Rate" shall mean, with respect to any Mortgage Loan
(or successor REO Mortgage Loan), the rate per annum equal to (a) the related
Mortgage Rate minus (b) (i) the related Administrative Fee Rate and (ii) in the
case of an ARD Mortgage Loan after its Anticipated Repayment Date, the related
Post-ARD Additional Interest Rate.
"New Lease" shall mean any lease of an REO Property entered into at
the direction of the Special Servicer on behalf of the Trust, including any
lease renewed, modified or extended on behalf of the Certificateholders, if the
Special Servicer has the right to renegotiate the terms of such lease.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I Advance
or Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance" shall mean the portion of any P&I
Advance previously made or proposed to be made in respect of a Mortgage Loan or
an REO Mortgage Loan (including any P&I Advance that constitutes a
Workout-Delayed Reimbursement Amount) which, in the judgment (in accordance with
the Servicing Standard in the case of judgment by the Master Servicer or the
Special Servicer) of the Master Servicer, the Special Servicer or the Trustee,
as applicable, will not be ultimately recoverable, together with any accrued and
unpaid interest thereon (paid at the Reimbursement Rate), from Late Collections
or any other recovery on or in respect of such Mortgage Loan or REO Mortgage
Loan. "Nonrecoverable P&I Advance" shall also include any Workout-Delayed
Reimbursement Amounts when the Person making such determination in accordance
with the procedures specified herein for Nonrecoverable Servicing Advances or
Nonrecoverable P&I Advances, as applicable, has determined that such amounts
constitute Nonrecoverable Advances. The determination by the Master Servicer,
the Special Servicer or the Trustee, as applicable, that it has made (or, in the
case of a determination made by the Special Servicer, that the Master Servicer
or Trustee has made) a Nonrecoverable P&I Advance or that any proposed P&I
Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be
evidenced by an Officer's Certificate delivered (i) to the Trustee and the
Special Servicer, in the case of the Master Servicer, (ii) to the Master
Servicer and the Trustee in the case of the Special Servicer, (iii) to the
Depositor, the Master Servicer and the Special Servicer, in the case of the
Trustee, and (iv) in each case, to the Controlling Class Representative, each B
Loan Holder or its designee (if any A/B Loan Pair or any related REO Mortgage
Loan is involved) and to any Requesting Subordinate Certificateholder (at the
expense of such Requesting Subordinate Certificateholder) setting forth such
determination of nonrecoverability and the considerations of the Master
Servicer, the Special Servicer or the Trustee, as applicable, forming the basis
of such determination (which shall include but shall not be limited to
information, to the extent available, such as related income and expense
statements, rent rolls, occupancy status, property inspections, and shall
include an Appraisal (provided that if an Appraisal has been obtained within the
past 12 months, no new Appraisal is required) of the related Mortgaged Property,
the cost of which Appraisal shall, subject to Section 3.03(c), be advanced by
the Master Servicer as a Servicing Advance). Such Officer's Certificate shall be
accompanied by the Appraisal and all other supporting documentation relevant to
the subject parties' nonrecoverability determination. The Trustee shall be
entitled to conclusively rely on the Master Servicer's determination that a P&I
Advance is nonrecoverable. The Master Servicer and the Trustee shall
conclusively rely on the Special Servicer's affirmative determination that a P&I
Advance is nonrecoverable after the Special Servicer provides written notice of
such affirmative determination to such parties. In no event shall a
determination by the Special Servicer that a previously made or proposed P&I
Advance would be recoverable be binding on the Master Servicer or Trustee.
"Nonrecoverable Servicing Advance" shall mean the portion of any
Servicing Advance previously made or proposed to be made in respect of a
Mortgage Loan or REO Property (including any Servicing Advance that constitutes
a Workout-Delayed Reimbursement Amount) which, in the judgment (in accordance
with the Servicing Standard in the case of judgment by the Master Servicer or
the Special Servicer) of the Master Servicer, the Special Servicer or the
Trustee, as the case may be, will not be ultimately recoverable, together with
any accrued and unpaid interest thereon (paid at the Reimbursement Rate), from
Late Collections or any other recovery on or in respect of such Mortgage Loan or
REO Property. "Nonrecoverable Servicing Advance" shall also include any
Workout-Delayed Reimbursement Amounts when the Person making such determination
in accordance with the procedures specified for Nonrecoverable Servicing
Advances or Nonrecoverable P&I Advances, as applicable, has determined that such
amounts constitute Nonrecoverable Advances. The determination by the Master
Servicer, the Special Servicer or the Trustee, as the case may be, that it has
made (or, in the case of a determination made by the Special Servicer, that the
Master Servicer, the Special Servicer or the Trustee has made) a Nonrecoverable
Servicing Advance or that any proposed Servicing Advance, if made, would
constitute a Nonrecoverable Servicing Advance, shall be evidenced by an
Officer's Certificate delivered (i) to the Trustee and the Special Servicer, in
the case of the Master Servicer, (ii) to the Master Servicer and the Trustee in
the case of the Special Servicer, (iii) to the Depositor, the Special Servicer
and the Master Servicer, in the case of the Trustee, and (iv) and in each case,
to the Controlling Class Representative, to each B Loan Holder or its designee
(if any A/B Loan Pair or any related REO Property is involved) and to any
Requesting Subordinate Certificateholder (at the expense of such Requesting
Subordinate Certificateholder). The Officer's Certificate shall set forth such
determination of nonrecoverability and the considerations of the Master
Servicer, the Special Servicer or the Trustee, as applicable, forming the basis
of such determination (which shall include but shall not be limited to
information, to the extent available, such as related income and expense
statements, rent rolls, occupancy status and property inspections, and shall
include an Appraisal (provided that if an Appraisal has been obtained within the
past 12 months, no new Appraisal is required) of the related Mortgaged Property,
the cost of which Appraisal shall, subject to Section 3.03(c), be advanced by
the Master Servicer as a Servicing Advance). Such Officer's Certificate shall be
accompanied by the Appraisal and all other supporting documentation relevant to
the subject parties' nonrecoverability determination. The Trustee shall be
entitled to conclusively rely on the Master Servicer's determination that a
Servicing Advance is nonrecoverable. The Master Servicer and the Trustee shall
conclusively rely on the Special Servicer's affirmative determination that a
Servicing Advance is a Nonrecoverable Servicing Advance after the Special
Servicer provides written notice of such affirmative determination to such
parties. In no event shall a determination by the Special Servicer that a
previously made or proposed Servicing Advance would be recoverable be binding on
the Master Servicer or Trustee.
"Non-Registered Certificate" shall mean any Certificate that has not
been subject to registration under the Securities Act. As of the Closing Date,
the Class A-X, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class S,
Class T, Class V, Class R and Class LR Certificates will constitute
Non-Registered Certificates.
"Non-United States Tax Person" shall mean any Person other than a
United States Tax Person.
"Note" shall mean the original executed note (or, if applicable,
multiple notes collectively) evidencing the indebtedness of a Borrower under a
Mortgage Loan, together with any rider, addendum or amendment thereto.
"NRSRO" shall mean a nationally recognized statistical rating
organization as the term is used in federal securities laws.
"Officer's Certificate" shall mean a certificate signed by a
Servicing Officer of the Master Servicer or the Special Servicer or a
Responsible Officer of the Trustee, as the case may be.
"Opinion of Counsel" shall mean a written opinion of counsel (which
counsel, in the case of any such opinion relating to the taxation of the Trust
Fund or any portion thereof or the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC or the status of the Grantor Trust Pool as a grantor
trust for federal income tax purposes, shall be Independent of the Depositor,
each Mortgage Loan Seller, the Master Servicer, the Special Servicer and the
Trustee, but which may act as counsel to such Person) acceptable to and
delivered to the addressee(s) thereof and which Opinion of Counsel, except as
provided herein, shall not be at the expense of the Trustee.
"Optimal Interest Distribution Amount" shall mean, as to any
Distribution Date and any Class of Regular Certificates (other than the Class
A-MFL Certificates) and the Class A-MFL Regular Interest, the sum of the Monthly
Interest Distribution Amount and the Interest Shortfall Amount for such Class
for such Distribution Date. As to any Distribution Date and any Uncertificated
Lower-Tier Interest, the sum of the Monthly Interest Distribution Amount and the
Interest Shortfall Amount for such Uncertificated Lower-Tier Interest for such
Distribution Date.
"Original Capmark Mortgage Loans" shall have the meaning assigned
thereto in the Preliminary Statement to this Agreement.
"Original Certificate Balance" shall mean, with respect to any Class
of Regular Certificates (other than the Class A-SP and Class A-X Certificates)
and the Class A-MFL Regular Interest, the initial aggregate principal amount
thereof as of the Closing Date, in each case as specified in the Preliminary
Statement.
"Original Class Notional Amount" shall mean, with respect to the
Class A-SP and Class A-X Certificates, the initial class notional amount thereof
as of the Closing Date, in each case as specified in the Preliminary Statement.
"Original Column Mortgage Loans" shall have the meaning assigned
thereto in the Preliminary Statement to this Agreement.
"Original Lower-Tier Principal Amount" shall mean, with respect to
any Class of Uncertificated Lower-Tier Interests, the principal amount thereof
as of the Closing Date, in each case as specified in the Preliminary Statement
hereto.
"Original Mortgage Loans" shall have the meaning assigned thereto in
the Preliminary Statement to this Agreement.
"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
"Ownership Interest" shall mean, in the case of 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, with respect to any Mortgage Loan or REO
Mortgage Loan, any advance made by the Master Servicer or the Trustee pursuant
to Section 4.03.
"Pass-Through Rate" shall mean, with respect to each Class of
Certificates and the Class A-MFL Regular Interest, the respective per annum rate
listed below:
Class A-1: Class A-1 Pass-Through Rate
Class A-2: Class A-2 Pass-Through Rate
Class A-AB: Class A-AB Pass-Through Rate
Class A-3: Class A-3 Pass-Through Rate
Class A-1-A: Class A-1-A Pass-Through Rate
Class A-SP: Class A-SP Pass-Through Rate
Class A-X: Class A-X Pass-Through Rate
Class A-M: Class A-M Pass-Through Rate
Class A-MFL Regular Interest: Class A-MFL Regular Interest Pass-Through Rate
Class A-MFL: Class A-MFL Pass-Through Rate
Class A-J: Class A-J Pass-Through Rate
Class B: Class B Pass-Through Rate
Class C: Class C Pass-Through Rate
Class D: Class D Pass-Through Rate
Class E: Class E Pass-Through Rate
Class F: Class F Pass-Through Rate
Class G: Class G Pass-Through Rate
Class H: Class H Pass-Through Rate
Class J: Class J Pass-Through Rate
Class K: Class K Pass-Through Rate
Class L: Class L Pass-Through Rate
Class M: Class M Pass-Through Rate
Class N: Class N Pass-Through Rate
Class O: Class O Pass-Through Rate
Class P: Class P Pass-Through Rate
Class Q: Class Q Pass-Through Rate
Class S: Class S Pass-Through Rate
Class T: Class T Pass-Through Rate
"Paying Agent" shall have the meaning assigned thereto in Section
5.07.
"PCAOB" shall mean the Public Company Accounting Oversight Board.
"Percentage Interest" shall mean (a) with respect to any Regular
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 Class Principal Balance or Class Notional Amount, as the case may
be, of the relevant Class as of the Closing Date; and (b) with respect to a
Class V, Class R or Class LR Certificate, the percentage interest in
distributions to be made with respect to the relevant Class, as stated on the
face of such Certificate.
"Performance Certification" shall have the meaning set forth in
Section 12.08.
"Performing Mortgage Loan" shall mean, as of any date of
determination, any Mortgage Loan as to which no Servicing Transfer Event then
exists.
"Performing Party" shall have the meaning assigned thereto in
Section 12.14.
"Permitted Investments" shall mean any one or more of the following
obligations or securities, regardless whether issued by the Depositor, the
Master Servicer, the Special Servicer or the Trustee or any of their respective
Affiliates and having the required ratings, if any, provided for in this
definition::
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America, FNMA, FHLMC or any agency or instrumentality of the United
States of America; provided that such obligations have a remaining
term to maturity of one year or less from the date of acquisition
and which are backed by the full faith and credit of the United
States of America; provided, further, that any obligation of, or
guarantee by, FNMA or FHLMC, other than an unsecured senior debt
obligation of FNMA or FHLMC, shall be a Permitted Investment only if
such investment would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each Rating
Agency to any Certificate as confirmed in writing;
(ii) time deposits, unsecured certificates of deposit or
bankers' acceptances that mature in one year or less after the date
of issuance and are issued or held by any depository institution or
trust company incorporated or organized under the laws of the United
States of America or any State thereof and subject to supervision
and examination by federal or state banking authorities, so long as
the commercial paper or other short-term debt obligations of such
depository institution or trust company are rated in the highest
short-term debt rating category of each Rating Agency or such other
ratings as will not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each Rating
Agency to any Certificate, as confirmed in writing by such Rating
Agency;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a
remaining maturity of one year or less and where such repurchase
obligation has been entered into with a depository institution or
trust company (acting as principal) described in clause (ii) above;
(iv) debt obligations maturing in one year or less from the
date of acquisition bearing interest or sold at a discount issued by
any corporation incorporated under the laws of the United States of
America or any state thereof, which securities have (A) ratings in
the highest long-term unsecured debt rating category of each Rating
Agency or (B) such other ratings (as confirmed by the applicable
Rating Agency in writing) as will not result in a downgrade,
qualification or withdrawal of the then-current rating of the
Certificates that are currently being rated by such Rating Agency;
provided, however, that securities issued by any particular
corporation will not be Permitted Investments to the extent that
investment therein will cause the then outstanding principal amount
of securities issued by such corporation and held in the accounts
established hereunder to exceed 10% of the sum of the aggregate
principal balance and the aggregate principal amount of all
Permitted Investments in such accounts;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations) payable on
demand or on a specified date maturing in one year or less after the
date of issuance thereof and which is rated in the highest
short-term unsecured debt rating category of each Rating Agency;
(vi) units of investment funds that maintain a constant net
asset value and money market funds having the highest rating from
each Rating Agency for money market funds; and
(vii) any other demand, money market or time deposit,
obligation, security or investment, with respect to which each
Rating Agency shall have confirmed in writing that such investment
will not result in a downgrade, qualification or withdrawal of the
then-current rating of the Certificates that are currently being
rated by such Rating Agency;
provided that such instrument or security qualifies as a "cashflow investment"
pursuant to Section 860G(a)(6) of the Code; and provided (a) it shall have a
predetermined fixed dollar of principal due at maturity that cannot vary or
change and (b) any such investment that provides for a variable rate of interest
must have an interest rate that is tied to a single interest rate index plus a
fixed spread, if any, and move proportionately with such index.
"Permitted Transferee" shall mean any Transferee of a Class R or
Class LR Certificate other than a Disqualified Organization, a Non-United States
Tax Person or a foreign permanent establishment or fixed base (each within the
meaning of the applicable income tax treaty) of a United States Tax Person;
provided, however, that if a Transferee is classified as a partnership under the
Code, such Transferee shall only be a Permitted Transferee if all of its direct
or indirect (except through a U.S. corporation) beneficial owners are (and must
be, under the applicable partnership agreement) United States Tax Persons and
the governing documents of the Transferee prohibit a transfer of any interest in
the Transferee to any Non-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.
"Phase I Environmental Assessment" shall mean a "Phase I assessment"
as described in and meeting the criteria of the American Society for Testing and
Materials, Designation E-1527.
"Plan" shall mean any of those retirement plans and other employee
benefit plans, 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 are subject to Title I of ERISA, Section 4975 of the Code or
Similar Law.
"Plurality Class LR Certificateholder" shall mean, as to any taxable
year of the Lower-Tier REMIC, the Holder of Certificates evidencing the largest
Percentage Interest in the Class LR Certificates.
"Plurality Class R Certificateholder" shall mean, as to any taxable
year of the Upper-Tier REMIC, the Holder of Certificates evidencing the largest
Percentage Interest in the Class R Certificates.
"PNC" shall mean PNC Bank, National Association.
"Post-ARD Additional Interest" shall mean, with respect to any ARD
Mortgage Loan after its Anticipated Repayment Date, all interest accrued on the
principal balance of such ARD Mortgage Loan at the Post-ARD Additional Interest
Rate (the payment of which interest shall, under the terms of such Mortgage
Loan, be deferred until the principal balance of such Mortgage Loan has been
paid in full), together with all interest, if any, accrued at the related
Mortgage Rate on such deferred interest.
"Post-ARD Additional Interest Distribution Account" shall mean the
trust account, accounts or subaccount created and maintained by the Trustee,
which may be a subaccount of the Distribution Account, pursuant to Section
3.04(b), which shall be entitled "Xxxxx Fargo Bank, N.A., as Trustee, in trust
for the registered holders of Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2007-C1, Post-ARD
Additional Interest Distribution Account" and which shall be an Eligible
Account. The Post-ARD Additional Interest Distribution Account shall be an asset
of the Grantor Trust Pool and not an asset of the Lower-Tier REMIC or the
Upper-Tier REMIC.
"Post-ARD Additional Interest Rate" shall mean, with respect to any
ARD Mortgage Loan after its Anticipated Repayment Date, the incremental increase
in the Mortgage Rate for such Mortgage Loan resulting from the passage of such
Anticipated Repayment Date.
"Prepayment Assumption" shall mean, for purposes of determining the
accrual of original issue discount, market discount and premium, if any, on the
Mortgage Loans and the Certificates for federal income tax purposes, the
assumptions that each ARD Mortgage Loan is paid in its entirety on its
Anticipated Prepayment Date and that no Mortgage Loan is otherwise voluntarily
prepaid prior to its Stated Maturity Date.
"Prepayment Interest Excess" shall mean, with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or in part, or
any early collection of principal in the form of Insurance Proceeds or
Condemnation Proceeds received, made after the Due Date for such Mortgage Loan
in any Collection Period, any payment of interest (net of related Master
Servicing Fees and, further, net of any portion of such interest that represents
Default Interest or Post-ARD Additional Interest) actually collected from the
related Borrower or out of such Insurance Proceeds or Condemnation Proceeds, as
the case may be, and intended to cover the period from and after such Due Date
to, but not including, the date of prepayment (exclusive, however, of any
related Yield Maintenance Charge that may have been collected).
"Prepayment Interest Shortfall" shall mean with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or in part, or
any early collection of principal in the form of Insurance Proceeds or
Condemnation Proceeds received, made prior to the Due Date for such Mortgage
Loan in any Collection Period, the amount of interest, to the extent not
collected from the related Borrower or out of such Insurance Proceeds or
Condemnation Proceeds, as the case may be (without regard to any Yield
Maintenance Charge that may have been collected), that would have accrued on the
amount of such Principal Prepayment or other early collection of Insurance
Proceeds or Condemnation Proceeds during the period from the date of prepayment
to, but not including, such Due Date (less the amount of related Master
Servicing Fees and, if applicable, exclusive of Default Interest and Post-ARD
Additional Interest).
"Primary Servicing Fee" shall mean any primary servicing fee payable
to a Designated Sub-Servicer pursuant to a Designated Sub-Servicer Agreement.
"Primary Servicing Fee Rate" shall mean, with respect to each
Mortgage Loan and any successor REO Mortgage Loan, the rate per annum specified
with respect to such Mortgage Loan under the heading "Primary Servicing Fee
Rate" in the Mortgage Loan Schedule.
"Primary Servicing Office" shall mean the office of the Master
Servicer or the Special Servicer, as the context may require, that is primarily
responsible for such party's servicing obligations hereunder.
"Prime Rate" shall mean the "prime rate" published in the "Money
Rates" section of The Wall Street Journal, as such "prime rate" may change from
time to time. If The Wall Street Journal ceases to publish the "prime rate,"
then the Trustee, in its sole discretion, shall select an equivalent publication
that publishes such "prime rate"; and if such "prime rate" is no longer
generally published or is limited, regulated or administered by a governmental
or quasi- governmental body, then the Trustee shall select a comparable interest
rate index. In either case, such selection shall be made by the Trustee in its
sole discretion and the Trustee shall notify the Master Servicer and the Special
Servicer in writing of its selection.
"Principal Balance Certificates" shall mean, collectively, the Class
A-P&I Certificates and the Subordinate Principal Balance Certificates.
"Principal Distribution Adjustment Amount" shall mean, as to any
Distribution Date, the sum of (i) the amount of any Nonrecoverable Advance that
was reimbursed to the Master Servicer, Special Servicer or Trustee and that was
deemed to have been reimbursed out of the Principal Distribution Amount, in each
case, with interest on such Advance (accrued at the Reimbursement Rate), during
the period since the preceding Distribution Date, (ii) any Workout-Delayed
Reimbursement Amount that was reimbursed to the Master Servicer, Special
Servicer or Trustee and that was deemed to have been reimbursed out of the
Principal Distribution Amount, in each case, with interest on such Advance
(accrued at the Reimbursement Rate), during the period since the preceding
Distribution Date and (iii) if any Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds were received with respect to any Mortgage Loan or REO
Property, and/or any Mortgage Loan or REO Property is otherwise liquidated
(including by means of a Final Recovery Determination or the receipt of full,
partial, or discounted payoff), during the related Collection Period, an amount
equal to any Workout Fees and/or Liquidation Fees payable in connection
therewith
"Principal Distribution Amount" shall mean:
(a) with respect to any Distribution Date prior to the Final
Distribution Date, an amount equal to the aggregate (without duplication)
of the following-
(i) all payments of principal (including Principal Prepayments)
received by or on behalf of the Trust with respect to the
Mortgage Loans during the related Collection Period, in each
case net of any portion of the particular payment that
represents a Late Collection of principal for which a P&I
Advance was previously made for a prior Distribution Date or
that represents the principal portion of a Monthly Payment due
on or before the related Due Date in March 2007 or on a Due
Date subsequent to the end of the related Collection Period,
(ii) all scheduled payments of principal due in respect of the
Mortgage Loans for their respective Due Dates occurring during
the related Collection Period that were received by or on
behalf of the Trust (other than as part of a Principal
Prepayment) prior to the related Collection Period,
(iii) all Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds and proceeds of any purchase or repurchase of a
Mortgage Loan pursuant to this Agreement or any A/B
Intercreditor Agreement, received by or on behalf of the Trust
with respect to any of the Mortgage Loans during the related
Collection Period that were identified and applied as
recoveries of principal of such Mortgage Loans in accordance
with Section 1.03, in each case net of any portion of such
proceeds that represents a Late Collection of principal due on
or before the related Due Date in March 2007 or for which a
P&I Advance was previously made for a prior Distribution Date,
(iv) all Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds and REO Revenues received by or on behalf of the
Trust in respect of any REO Properties during the related
Collection Period that were identified and applied as
recoveries of principal of the related REO Mortgage Loans in
accordance with Section 1.03, in each case net of any portion
of such proceeds and/or revenues that represents a Late
Collection of principal due on or before the related Due Date
in March 2007 or for which a P&I Advance was previously made
for a prior Distribution Date, and
(v) the respective principal portions of all P&I Advances made in
respect of the Mortgage Loans and any REO Mortgage Loans with
respect to such Distribution Date; and
with respect to the Final Distribution Date, an amount equal to the
aggregate Stated Principal Balance of the entire Mortgage Pool outstanding
immediately prior to the Final Distribution Date.
Notwithstanding the foregoing, (i) the Principal Distribution Amount
will be reduced for any Loan Group as to which funds were used therefrom
to reimburse Nonrecoverable Advances or Workout-Delayed Reimbursement
Amounts (as described in Section 1.05) on any Distribution Date by an
amount equal to the Principal Distribution Adjustment Amount calculated
with respect to such Distribution Date and (ii) the Principal Distribution
Amount will be increased for any Loan Group as to which funds were used
therefrom to reimburse Nonrecoverable Advances or Workout-Delayed
Reimbursement Amounts on any Distribution Date by the amount of any
recovery occurring during the related Collection Period of an amount that
was previously advanced with respect to a Mortgage Loan if such
Nonrecoverable Advance or any Workout-Delayed Reimbursement Amount was
previously reimbursed from Principal Distribution Amounts from such Loan
Group in a manner that resulted in a Principal Distribution Adjustment
Amount for such Loan Group on a prior Distribution Date.
"Principal Prepayment" shall mean any voluntary payment of principal
made by the Borrower on a Mortgage Loan that is received in advance of its
scheduled Due Date and that is not accompanied by an amount of interest (without
regard to any Yield Maintenance Charge and/or Post-ARD Additional Interest 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; provided
that "Principal Prepayment" shall not include any such payment of principal made
out of Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds.
"Private Certificate" shall mean any Class A-X, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class Q, Class S, Class T or Class V Certificate.
"Privileged Persons" shall mean the Depositor and any designee
thereof, the Master Servicer, the Special Servicer, the Underwriters, the Rating
Agencies, the Controlling Class Representative, each Certificateholder, each
Mortgage Loan Seller, to the extent that the Trustee has in accordance with
Section 5.06(b) confirmed the Ownership Interest in the Certificates held
thereby, each Certificate Owner and any prospective transferee provided such
party provides the Trustee with a certification substantially in the form of
Exhibit K-2 hereto.
"Prohibited Party" shall mean any party that (i) is listed on the
Depositor's Do Not Hire List or (ii) is a proposed Servicing Function
Participant for which the Master Servicer, the Special Servicer or the Trustee
that seeks to retain such Servicing Function Participant has actual knowledge
that such party at any point prior to such hiring, assignment or transfer failed
to comply in all material respects with such proposed Servicing Function
Participant's obligations under Regulation AB with respect to any other
securitization.
"Proposed Plan" shall have the meaning assigned thereto in Section
3.17(a).
"Prospectus" shall mean the Base Prospectus and the Prospectus
Supplement, together.
"Prospectus Supplement" shall mean that certain prospectus
supplement dated March 1, 2007, relating to the Registered Certificates, that is
a supplement to the Base Prospectus.
"PTE" shall mean a prohibited transaction exemption, as issued by
the United States Department of Labor.
"Public Certificate" shall mean any Class A-1, Class A-2, Class
A-AB, Class A-3, Class A-1-A, Class A-M, Class A-MFL, Class A-J or Class A-SP
Certificate.
"Purchase Price" shall mean, with respect to any Mortgage Loan (or
REO Property), a cash price equal to the aggregate of (a) the outstanding
principal balance of such Mortgage Loan (or the related REO Mortgage Loan) as of
the date of purchase, (b) all accrued and unpaid interest on such Mortgage Loan
(or the related REO Mortgage Loan) at the related Mortgage Rate (exclusive of
any portion of such interest that represents Post-ARD Additional Interest) to,
but not including, the Due Date occurring in the Collection Period during which
the applicable purchase or repurchase occurs, (c) all related unreimbursed
Servicing Advances (or such Servicing Advance reimbursed by the Trust Fund from
general collections on the Mortgage Pool), (d) all accrued and unpaid Advance
Interest with respect to any related Advances (including any Advance Interest
reimbursed from general collections on the Mortgage Pool), and (e) solely in the
case of a repurchase or substitution by a Mortgage Loan Seller pursuant to the
related Mortgage Loan Purchase Agreement or by the Column Performance Guarantor
pursuant to the Column Performance Guarantee, (i) all related Special Servicing
Fees, Workout Fees (only if (x) such repurchase or substitution occurs after the
expiration of the applicable Initial Resolution Period and any applicable
Resolution Extension Period and (y) no Liquidation Fee is also payable in
connection with such repurchase or substitution by the Mortgage Loan Seller or
the Column Performance Guarantor, as applicable), Liquidation Fees (only if such
repurchase or substitution occurs after the expiration of the applicable Initial
Resolution Period and any applicable Resolution Extension Period), Advance
Interest (to the extent not otherwise included in the amount described in clause
(d) of this definition) and other related Additional Trust Fund Expenses (to the
extent not otherwise included in the amount described in clause (c) or clause
(d) of this definition), whether paid or then owing that have not been offset by
Default Charges related to such Mortgage Loan (or any successor REO Loan) or by
any Additional Master Servicing Compensation or Additional Special Servicer
Compensation related to such Mortgage Loan (or any successor REO Loan), and (ii)
to the extent not otherwise included in the amount described in clause (c),
clause (d) or clause (e)(i) 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 repurchase or replace such
Mortgage Loan or REO Property.
With respect to any Defaulted Mortgage Loan to be purchased by the
Controlling Class Representative (or any assignee thereof) or the Special
Servicer (or any Affiliate thereof) pursuant to Section 3.18(b) or 3.18(c)
following determination of Fair Value, the Purchase Price will equal the Fair
Value of such Defaulted Mortgage Loan (which shall include a Liquidation Fee if
the purchase option has been assigned without consideration to an unaffiliated
third party and such third party is exercising the purchase option). With
respect to any REO Property to be sold pursuant to Section 3.18(e), the Purchase
Price will equal the amount calculated in accordance with the second preceding
sentence in respect of the related REO Mortgage Loan (or, if such REO Property
relates to any A/B Loan Pair, in respect of all of the related REO Mortgage
Loans and treating the B Loans as if they were Mortgage Loans).
"Purchase Price Security Deposit" shall have the meaning assigned
thereto in Section 2.03(b).
"Purchase Price Security Deposit Account" shall mean a segregated
custodial account or accounts created by and maintained by the Master Servicer,
pursuant to Section 2.03(b), on behalf of the Trustee in trust for the
Certificateholders and the related Mortgage Loan Seller, which shall be entitled
"Capmark Finance Inc., as the Master Servicer, in trust for the registered
holders of Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2007-C1, and [name of the related
Mortgage Loan Seller], Purchase Price Security Deposit Account."
"Qualified Appraiser" shall mean, in connection with the appraisal
of any Mortgaged Property or REO Property, an Independent MAI-designated
appraiser with at least five years of experience in respect of the relevant
geographic location and property type.
"Qualified Institutional Buyer" or "QIB" shall mean a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer" shall mean (i) with respect to any Mortgage
Loan, Mortgaged Property or REO Property, an insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction and that has a claims paying ability that is rated (or is
guaranteed or backed in writing by an entity with long-term unsecured debt that
is rated) at least "A" by Fitch and "A2" by Xxxxx'x (if then rated by Xxxxx'x),
(ii) with respect to the fidelity bond and errors and omissions Insurance Policy
required to be maintained pursuant to Section 3.07(c), an insurance company that
has a claims paying ability that is rated (or is guaranteed or backed by an
entity with long-term unsecured debt that is rated) no lower than two ratings
(without regard to pluses and minuses (in the case of Fitch) or numerical
designations (in the case of Xxxxx'x)) below the rating assigned to the then
highest rated outstanding Certificate, but in no event lower than "A3" by
Xxxxx'x (if then rated by Xxxxx'x) and "A" by Fitch or, in the case of clauses
(i) and (ii), such other rating as each Rating Agency shall have confirmed in
writing will not cause such Rating Agency to downgrade, qualify or withdraw the
then-current rating assigned to any of the Certificates that are then currently
being rated by such Rating Agency.
"Qualifying Substitute Mortgage Loan" shall mean, in connection with
the replacement of a Defective Mortgage Loan as contemplated by Section 2.03,
any other mortgage loan which, on the date of substitution, (i) has a principal
balance, after deduction of the principal portion of any unpaid Monthly Payment
due on or before the date of substitution, not in excess of the Stated Principal
Balance of the Defective Mortgage Loan; (ii) is accruing interest at a fixed
rate of interest at least equal to, and not more than one percentage point in
excess of, that of the Defective Mortgage Loan; (iii) has the same Due Date as,
and a grace period for delinquent Monthly Payments that is no longer than, the
Due Date and grace period, respectively, of the Defective Mortgage Loan; (iv) is
accruing interest on the same Interest Accrual Basis as the Defective Mortgage
Loan; (v) has a remaining term to stated maturity not greater than, and not more
than one year less than, that of the Defective Mortgage Loan and, in any event,
has a Stated Maturity Date not later than two years prior to the Rated Final
Distribution Date; (vi) has a then current loan-to-value ratio not higher than,
and a then current debt service coverage ratio not lower than, the loan-to-value
ratio and debt service coverage ratio, respectively, of the Defective Mortgage
Loan as of the Closing Date; (vii) has comparable prepayment restrictions to
those of the Defective Mortgage Loan; (viii) will comply (except in a manner
that would not be adverse to the interests of the Certificateholders (as a
collective whole) in or with respect to such mortgage loan), as of the date of
substitution, with all of the representations relating to the Defective Mortgage
Loan set forth in or made pursuant to the related Mortgage Loan Purchase
Agreement; (ix) has a Phase I Environmental Assessment relating to the related
Mortgaged Property in its Servicing File, which Phase I Environmental Assessment
will evidence that there is no material adverse environmental condition or
circumstance at the related Mortgaged Property for which further remedial action
may be required under applicable law; and (x) constitutes a "qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of the Code;
provided, however, that if more than one mortgage loan is to be substituted for
any Defective Mortgage Loan, then all such proposed Replacement Mortgage Loans
shall, in the aggregate, satisfy the requirement specified in clause (i) of this
definition and each such proposed Replacement Mortgage Loan shall, individually,
satisfy each of the requirements specified in clauses (ii) through (x) of this
definition; and provided, further, that no mortgage loan shall be substituted
for a Defective Mortgage Loan unless (x) such prospective Replacement Mortgage
Loan shall be acceptable to the Controlling Class Representative (or, if there
is no such Controlling Class Representative then serving, to the Holders of
Certificates representing a majority of the Voting Rights allocated to the
Controlling Class), in its (or their) absolute sole discretion, and (y) each
Rating Agency shall have confirmed in writing to the Trustee that such
substitution will not in and of itself result in an Adverse Rating Event with
respect to any Class of Rated Certificates (such written confirmation to be
obtained by the party (i.e., the related Mortgage Loan Seller or the Column
Performance Guarantor) effecting the substitution.
"Rated Certificate" shall mean any of the Certificates to which a
rating has been assigned by either Rating Agency at the request of the
Depositor.
"Rated Final Distribution Date" shall mean the Distribution Date
occurring in February 2040.
"Rating Agency" shall mean either of Xxxxx'x and Fitch.
"Realized Loss" shall mean:
(1) with respect to each defaulted Mortgage Loan as to which a Final
Recovery Determination has been made, or with respect to any successor REO
Mortgage Loan as to which a Final Recovery Determination has been made as
to the related REO Property, an amount (not less than zero) equal to (a)
the unpaid principal balance of such Mortgage Loan or REO Mortgage Loan,
as the case may be, as of the commencement of the Collection Period in
which the Final Recovery Determination was made, plus (b) without taking
into account the amount described in subclause (1)(c) of this definition,
all unpaid interest accrued in respect of such Mortgage Loan or REO
Mortgage Loan, as the case may be, to but not including the related Due
Date in the Collection Period in which the Final Recovery Determination
was made, exclusive, however, of any portion of such unpaid interest that
constitutes Default Interest or, in the case of an ARD Mortgage Loan after
its Anticipated Repayment Date, Post-ARD Additional Interest, all Special
Servicing Fees, Workout Fees, Advance Interest or other fees, expenses or
items with respect to such Mortgage Loan or REO Mortgage Loan that cause
an Interest Shortfall to occur in any prior Interest Accrual Period, minus
(c) all payments and proceeds, if any, received in respect of such
Mortgage Loan or REO Mortgage Loan, as the case may be, during the
Collection Period in which such Final Recovery Determination was made (net
of any related Servicing Advances reimbursed therefrom and any related
Liquidation Expenses paid therefrom);
(2) with respect to each defaulted Mortgage Loan as to which any
portion of the principal or past due interest payable thereunder was
canceled in connection with a bankruptcy, insolvency or similar proceeding
involving the related Borrower or a modification, waiver or amendment of
such Mortgage Loan granted or agreed to by the Master Servicer or the
Special Servicer pursuant to Section 3.20, the amount of such principal or
past due interest (other than any Default Interest and, in the case of an
ARD Mortgage Loan after its Anticipated Repayment Date, Post-ARD
Additional Interest) so canceled; and
(3) with respect to each defaulted Mortgage Loan as to which the
Mortgage Rate thereon has been permanently reduced and not recaptured for
any period in connection with a bankruptcy, insolvency or similar
proceeding involving the related Borrower or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master
Servicer or the Special Servicer pursuant to Section 3.20, the amount of
any consequent reduction in the interest portion of each successive
Monthly Payment due thereon (each such Realized Loss to be deemed to have
been incurred on the Due Date for each affected Monthly Payment).
"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.
"Recording Omission" shall mean, with respect to any Mortgage Loan,
any Material Document Defect that exists, as of any date coinciding with or
following September 30, 2008, as a result of the omission from the Mortgage File
for such Mortgage Loan of the original or a copy of any document referred to in
clause (ii), clause (iii), clause (iv), clause (v) or, in the case of a
Mortgaged Property operated as a hospitality property, clause (viii) of the
definition of "Mortgage File," with evidence of recording or filing thereon or a
receipt or other certification evidencing recording or filing, because such
document (i) was not delivered by or on behalf of the related Mortgage Loan
Seller either as a recorded or filed document or in proper form for recording or
filing in the appropriate recording or filing office or (ii) was returned
unrecorded or unfiled as a result of an actual or purported defect therein.
"Recording Omission Credit" shall mean, with respect to any Mortgage
Loan as to which there exists a Recording Omission as of September 30, 2008, a
letter of credit in the amount of 25% of the then outstanding principal amount
of such Mortgage Loan and otherwise satisfying the criteria set forth in the
related Mortgage Loan Purchase Agreement.
"Recording Omission Reserve" shall mean, with respect to any
Mortgage Loan as to which there exists a Recording Omission as of September 30,
2008, a cash deposit in the amount of 25% of the then outstanding principal
amount of such Mortgage Loan.
"Reference Rate" shall mean, with respect to any Distribution Date
from and including the April 2007 Distribution Date to and including the March
2014 Distribution Date, the corresponding rate per annum set forth on Exhibit J
hereto.
"Registered Certificate" shall mean any Certificate that has been
subject to registration under the Securities Act. As of the Closing Date, the
Class X-0, Xxxxx X-0, Class A-AB, Class A-3, Class A-1-A, Class A-M, Class
A-MFL, Class A-J and Class A-SP Certificates constitute Registered Certificates.
"Regular Certificates" shall mean any Public Certificates
or Private Certificates.
"Regulation AB" shall mean Subpart 229.1100 - Asset Backed
Securities (Regulation AB), 17 C.F.R. xx.xx. 229.1100 - 229.1123, as such may be
amended from time to time, and subject to such clarification and interpretation
as have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506 - 1,631 (Jan.
7, 2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Global 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, a single temporary global
Certificate, in definitive, fully registered form without interest coupon, which
Certificate bears a Regulation S Legend.
"Regulation S Legend" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside the United
States in reliance on Regulation S, a legend generally to the effect that such
Certificates may not be offered, sold, pledged or otherwise transferred in the
United States or to a United States Securities Person prior to the Release Date
except pursuant to an exemption from the registration requirements of the
Securities Act.
"Reimbursement Rate" shall mean the rate per annum applicable to the
accrual of Advance Interest, which rate per annum is equal to the Prime Rate.
"Related Certificates," "Related Uncertificated Lower-Tier Interest"
and "Related Component" shall mean, for the following Classes of Uncertificated
Lower-Tier Interests and Components, the related Class of Certificates or Class
A-MFL Regular Interest set forth below; for the following Classes of
Certificates or Class A-MFL Regular Interest, the related Class or Classes of
Uncertificated Lower-Tier Interests and Components set forth below; and for the
following Components, the related Class of Certificates, Class A-MFL Regular
Interest or Class of Uncertificated Lower-Tier Interests set forth below:
Related
Component
of Class
Related Uncertificated A-X and A-SP
Related Certificates Lower-Tier Interest(1) Certificates(1)
---------------------------- -------------------------------------- ----------------
Class A-1 Certificate Class LA-1-1 Uncertificated Interest Component A-1-1
Class LA-1-2 Uncertificated Interest Component A-1-2
Class A-2 Certificate Class LA-2-1 Uncertificated Interest Component A-2-1
Class LA-2-2 Uncertificated Interest Component A-2-2
Class LA-2-3 Uncertificated Interest Component A-2-3
Class A-AB Certificate Class LA-AB-1 Uncertificated Interest Component A-AB-1
Class LA-AB-2 Uncertificated Interest Component A-AB-2
Class LA-AB-3 Uncertificated Interest Component A-AB-3
Class LA-AB-4 Uncertificated Interest Component A-AB-4
Class A-3 Certificate Class LA-3-1 Uncertificated Interest Component A-3-1
Class LA-3-2 Uncertificated Interest Component A-3-2
Class LA-3-3 Uncertificated Interest Component A-3-3
Class LA-3-4 Uncertificated Interest Component A-3-4
Class LA-3-5 Uncertificated Interest Component A-3-5
Class A-1-A Certificate Class LA-1-A-1 Uncertificated Interest Component A-1-A-1
Class LA-1-A-2 Uncertificated Interest Component A-1-A-2
Class LA-1-A-3 Uncertificated Interest Component A-1-A-3
Class LA-1-A-4 Uncertificated Interest Component A-1-A-4
Class LA-1-A-5 Uncertificated Interest Component A-1-A-5
Class LA-1-A-6 Uncertificated Interest Component A-1-A-6
Class LA-1-A-7 Uncertificated Interest Component A-1-A-7
Class LA-1-A-8 Uncertificated Interest Component A-1-A-8
Class A-M Certificate Class LA-M Uncertificated Interest Component A-M
Class A-MFL Regular Interest Class LA-MFL Uncertificated Interest Component A-MFL
Class A-J Certificate Class LA-J Uncertificated Interest Component A-J
Class B Certificate Class LB Uncertificated Interest Component B
Class C Certificate Class LC-1 Uncertificated Interest Component C-1
Class LC-2 Uncertificated Interest Component C-2
Class D Certificate Class LD-1 Uncertificated Interest Component D-1
Class LD-2 Uncertificated Interest Component D-2
Class E Certificate Class LE Uncertificated Interest Component E
Class F Certificate Class LF-1 Uncertificated Interest Component F-1
Class LF-2 Uncertificated Interest Component F-2
Class G Certificate Class LG Uncertificated Interest Component G
Class H Certificate Class LH Uncertificated Interest Component H
Class J Certificate Class LJ Uncertificated Interest Component J
Class K Certificate Class LK Uncertificated Interest Component K
Class L Certificate Class LL Uncertificated Interest Component L
Class M Certificate Class LM Uncertificated Interest Component M
Class N Certificate Class LN Uncertificated Interest Component N
Class O Certificate Class LO Uncertificated Interest Component O
Class P Certificate Class LP Uncertificated Interest Component P
Class Q Certificate Class LQ Uncertificated Interest Component Q
Class S Certificate Class LS Uncertificated Interest Component S
Class T Certificate Class LT Uncertificated Interest Component T
----------
(1) The Uncertificated Lower-Tier Interests and the Components of the Class
A-X and Class A-SP Certificates that correspond to any particular Class of
Certificates or the Class A-MFL Regular Interest set forth in the table
above also correspond to each other and, accordingly, constitute the
"Related Uncertificated Lower-Tier Interests" and the "Related
Components," respectively, with respect to each other.
"Release Date" shall mean, with respect to any Class of
Non-Registered Certificates (other than the Class R, Class LR and Class V
Certificates), the date that is 40 days following the later of (i) the
commencement of the offering of such Non-Registered Certificates to Persons
other than distributors in reliance upon Regulation S under the Securities Act
and (ii) the date of closing of such offering.
"Relevant Servicing Criteria" shall mean the Servicing Criteria
applicable to each Reporting Servicer (as set forth, with respect to the Master
Servicer, the Special Servicer and the Trustee, on Exhibit U attached hereto).
For clarification purposes, multiple Reporting Servicers can have responsibility
for the same Relevant Servicing Criteria, and some of the Servicing Criteria
will not be applicable to certain Reporting Servicers. With respect to a
Servicing Function Participant engaged by the Trustee, the Master Servicer or
the Special Servicer, the term "Relevant Servicing Criteria" refers to the items
of the Relevant Servicing Criteria applicable to the Trustee, the Master
Servicer or the Special Servicer that engaged such Servicing Function
Participant that are applicable to such Servicing Function Participant based on
the functions it has been engaged to perform.
"Remaining Principal Distribution Amount" shall mean, as to any
Distribution Date and any Class of Subordinate Certificates, the amount, if any,
by which the Principal Distribution Amount for such Distribution Date exceeds
the aggregate amount distributed in respect of Principal Distribution Amounts on
such Distribution Date to all Classes senior to such Class.
"REMIC" shall mean a "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC Provisions" shall mean the provisions of the federal income
tax law relating to real estate mortgage investment conduits, which appear at
Sections 860A through 860G of Subchapter M of Chapter 1 of Subtitle A 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 a segregated custodial account or accounts
created and maintained by the Special Servicer, pursuant to Section 3.16(b), on
behalf of the Trustee in trust for the Certificateholders and the related B Loan
Holder in connection with an A/B Loan Pair, which shall be entitled "Midland
Loan Services, Inc. [or the name of any successor Special Servicer], as Special
Servicer, on behalf of Xxxxx Fargo Bank, N.A. [or the name of any successor
Trustee], in trust for the registered holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass Through Certificates and the
related B Loan Holder, Series 2007-C1, REO Account."
"REO Acquisition" shall mean the acquisition of any REO Property
pursuant to Section 3.09.
"REO Disposition" shall mean the sale or other disposition of any
REO Property pursuant to Section 3.18.
"REO Extension" shall have the meaning assigned thereto in Section
3.16(a).
"REO Mortgage Loan" shall mean the mortgage loan deemed for purposes
hereof to be outstanding with respect to each REO Property. Each REO Mortgage
Loan shall be deemed to 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 or
the Trust's acquisition of the subject REO Property). Each REO Mortgage Loan
shall be deemed to have an initial unpaid principal balance and Stated Principal
Balance equal to the unpaid principal balance and Stated Principal Balance,
respectively, of its predecessor Mortgage Loan as of the date of the related REO
Acquisition. All Monthly Payments (other than any 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 (including, without limitation, those Nonrecoverable Advances
and Workout Delayed Reimbursement Amounts and interest thereon that were
reimbursed from collections of principal on the Mortgage Pool), shall be deemed
to continue to be due and owing in respect of an REO Mortgage Loan. In addition,
all amounts payable or reimbursable to the Master Servicer, the Special Servicer
or the Trustee in respect of the predecessor Mortgage Loan as of the date of the
related REO Acquisition, including any unpaid or unreimbursed Servicing Fees and
Advances (together with any related unpaid Advance Interest), shall continue to
be payable or reimbursable in the same priority and manner pursuant to Section
3.05(a) to such Master Servicer, such Special Servicer or the Trustee, as the
case may be, in respect of an REO Mortgage Loan.
"REO Property" shall mean a Mortgaged Property acquired by or
otherwise on behalf of the Trust for the benefit of the Certificateholders and,
if such property relates to an A/B Loan Pair, the related B Loan Holder, through
foreclosure, acceptance of a deed in lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues" shall mean all income, rents, profits and proceeds
derived from the ownership, operation or leasing of any REO Property. With
respect to an REO Property that had been security for an A Loan, the portion of
the amounts described above received with respect to such REO Property and
allocable to the related A Note pursuant to the related A/B Intercreditor
Agreement.
"REO Tax" shall have the meaning assigned thereto in Section
3.17(a).
"Replacement Mortgage Loan" shall mean any mortgage loan that is
substituted by a Mortgage Loan Seller or the Column Performance Guarantor for a
Defective Mortgage Loan as contemplated by Section 2.03.
"Reportable Event" shall have the meaning assigned thereto in
Section 12.09.
"Reporting Servicer" shall mean the Master Servicer, the Special
Servicer, the Trustee and any Servicing Function Participant, as the case may
be.
"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.
"Requesting Subordinate Certificateholder" shall mean the Holder of
any of the Class L, Class M, Class N, Class O, Class P, Class Q, Class S or
Class T Certificates, that delivers notice to the Trustee, the Master Servicer
and the Special Servicer indicating that such Holder is a "Requesting
Subordinate Certificateholder."
"Required Appraisal Loan" shall mean any Mortgage Loan (and any
successor REO Mortgage Loan) as to which an Appraisal Trigger Event has
occurred; provided that a Mortgage Loan shall cease to be a Required Appraisal
Loan if and when, following the occurrence of the most recent Appraisal Trigger
Event with respect thereto, such Mortgage Loan has become a Corrected Mortgage
Loan and no other Servicing Transfer Event or Appraisal Trigger Event has
occurred with respect thereto during the preceding three months.
"Reserve Account" shall mean any of the accounts established and
maintained pursuant to Section 3.03(e).
"Reserve Funds" shall mean, with respect to any Mortgage Loan, any
amounts delivered by the related Borrower to be held in escrow by or on behalf
of the mortgagee representing: (i) reserves for repairs, replacements, capital
improvements and/or environmental testing and remediation with respect to the
related Mortgaged Property; (ii) reserves for tenant improvements and leasing
commissions; (iii) reserves for debt service; or (iv) amounts to be applied as a
Principal Prepayment on such Mortgage Loan or held as Additional Collateral in
the event that certain leasing or other economic criteria in respect of the
related Mortgaged Property are not met.
"Residual Transfer Affidavit" shall have the meaning assigned
thereto in Section 5.02(d).
"Resolution Extension Period" shall have the meaning assigned
thereto in Section 2.03(b).
"Responsible Officer" shall mean (i) any officer of the Global
Securitization Trust Services Group of the Trustee (and, in the event that the
Trustee is the Certificate Registrar or the Paying Agent, of the Certificate
Registrar or the Paying Agent, as applicable) and (ii) when used with respect to
the initial Trustee, any Vice President, Assistant Vice President, corporate
trust officer or assistant corporate trust officer of the Trustee having direct
responsibility for the administration of this Agreement, and with respect to any
successor Trustee, any officer or assistant officer in the corporate trust
department of the Trustee or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers to whom a particular matter is referred by the Trustee because of such
officer's knowledge of and familiarity with the particular subject.
"Restricted Servicer Reports" shall mean collectively, to the extent
not filed with the Commission, each of the CMSA Servicer Watch List, the CMSA
Operating Statement Analysis Report, the CMSA NOI Adjustment Worksheet, CMSA
Financial File and the CMSA Comparative Financial Status Report.
"Rule 144A Global Certificate" shall mean, with respect to any Class
of Book-Entry Non-Registered Certificates, a single global Certificate
registered in the name of the Depository or its nominee, in definitive, fully
registered form without interest coupons, which Certificate bears a Qualified
Institutional Buyer CUSIP number and does not bear a Regulation S Legend.
"Xxxxxxxx-Xxxxx Act" shall mean the Xxxxxxxx-Xxxxx Act of 2002 and
the rules and regulations of the Commission promulgated thereunder (including
any interpretations thereof by the Commission's staff).
"Xxxxxxxx-Xxxxx Certification" shall have the meaning set forth in
Section 12.08.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations thereunder.
"Security Agreement" shall mean, with respect to any Mortgage Loan,
any security agreement or equivalent instrument, whether contained in the
related Mortgage or executed separately, creating in favor of the holder of such
Mortgage a security interest in the personal property constituting security for
repayment of such Mortgage Loan.
"Security Position Listing" shall mean a listing prepared by the
Depository of the holdings of Depository Participants with respect to the
Certificates.
"Senior Certificates" shall mean, collectively, the Class X-0, Xxxxx
X-0, Class A-AB, Class A-3, Class A-1-A, Class A-SP and Class A-X Certificates.
"Senior Principal Distribution Cross-Over Date" shall mean the first
Distribution Date as of which the aggregate of the Class Principal Balances of
the Class A-1, Class A-2, Class A-AB, Class A-3 and Class A-1-A Certificates
outstanding immediately prior thereto equals or exceeds the sum of (a) the
aggregate Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date, plus (b) the lesser of (i) the
Principal Distribution Amount for such Distribution Date and (ii) the portion of
the Available Distribution Amount for such Distribution Date that will remain
after all distributions of interest to be made on the Senior Certificates on
such Distribution Date pursuant to Section 4.01(a) have been so made.
"Servicer" shall have the meaning set forth in Section 12.03.
"Service(s)(ing)" shall mean, in accordance with Regulation AB, the
act of servicing and administering the Mortgage Loans or any other assets of the
Trust by an entity that meets the definition of "servicer' set forth in Item
1101 of Regulation AB and is subject to the disclosure requirements set forth in
1108 of Regulation AB. For clarification purposes, any uncapitalized occurrence
of this term shall have the meaning commonly understood by participants in the
commercial mortgage-backed securitization market.
"Servicing Account" shall mean any of the accounts established and
maintained pursuant to Section 3.03(a).
"Servicing Advances" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses, including attorneys' fees and
expenses, paid or to be paid, as the context requires, out of its own funds, by
the Master Servicer or the Special Servicer (or, if applicable, the Trustee) in
connection with the servicing of a Mortgage Loan as to which a default,
delinquency or other unanticipated event has occurred or is reasonably
foreseeable, or in connection with the administration of any REO Property,
including (1) any such costs and expenses associated with (a) compliance with
the obligations of the Master Servicer and/or the Special Servicer set forth in
Sections 2.03, 3.03(c) and 3.09, (b) the preservation, insurance, restoration,
protection and management of a Mortgaged Property, including the cost of any
"force placed" insurance policy purchased by the Master Servicer or the Special
Servicer to the extent such cost is allocable to a particular Mortgaged Property
that the Master Servicer or the Special Servicer is required to cause to be
insured pursuant to Section 3.07(a), (c) obtaining any Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds in respect of any such Mortgage
Loan or any REO Property, (d) any enforcement or judicial proceedings with
respect to any such Mortgage Loan, including foreclosures and similar
proceedings, (e) the operation, leasing, management, maintenance and liquidation
of any REO Property, (f) obtaining any Appraisal or environmental report
required to be obtained hereunder, and (g) UCC filings (to the extent that the
costs thereof are not reimbursed by the related Borrower), (2) the reasonable
and direct out-of-pocket travel expenses incurred by the Special Servicer in
connection with performing inspections pursuant to Section 3.12(a), and (3) any
other expenditure which is expressly designated as a Servicing Advance herein;
provided that, notwithstanding anything to the contrary, "Servicing Advances"
shall not include (A) allocable overhead of the Master Servicer or the Special
Servicer, such as costs for office space, office equipment, supplies and related
expenses, employee salaries and related expenses and similar internal costs and
expenses, (B) costs incurred by either such party or any Affiliate thereof in
connection with its purchase of any Mortgage Loan or REO Property pursuant to
any provision of this Agreement or (C) costs or expenses expressly required
under this Agreement to be borne by the Master Servicer or the Special Servicer.
"Servicing Criteria" shall mean the criteria set forth in paragraph
(d) of Item 1122 of Regulation AB as such may be amended from time to time.
"Servicing Fees" shall mean, with respect to any Mortgage Loan or
REO Mortgage Loan, the Master Servicing Fee and the Special Servicing Fee.
"Servicing File" shall mean any documents, certificates, opinions
and reports (other than documents required to be part of the related Mortgage
File) delivered by the related Borrower in connection with or relating to the
origination and servicing of any Mortgage Loan or B Loan or which are reasonably
required for the ongoing administration of such Mortgage Loan or B Loan, as the
case may be, including property management agreements, appraisals, surveys,
engineering reports, environmental reports, financial statements, leases, rent
rolls and tenant estoppels, but excluding any other documents and writings that
have been prepared by the related Mortgage Loan Seller or any of its Affiliates
solely for internal credit analysis or other internal uses or any
attorney-client privileged communication, together with copies of documents
required to be part of the related Mortgage File.
"Servicing Function Participant" shall mean any Person, other than
the Master Servicer, the Special Servicer and the Trustee, that is
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, unless such Person's activities relate only to 5% or less of the
Mortgage Loans (calculated by Stated Principal Balance) or unless such Person is
not viewed, for the purposes of Exchange Act reporting requirements, as a party
participating in the servicing function separate and apart from the Master
Servicer, the Special Servicer or the Trustee, as the case may be, pursuant to
applicable SEC guidance.
"Servicing Officer" shall mean any officer or employee of the Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by such party to the
Trustee and the Depositor on the Closing Date, as such list may be amended from
time to time by such Master Servicer or such Special Servicer.
"Servicing Return Date" shall mean, with respect to any Corrected
Mortgage Loan, the date that servicing thereof is returned by the Special
Servicer to the Master Servicer pursuant to Section 3.21(a).
"Servicing Standard-General" shall mean, with respect to the Special
Servicer and each servicer other than the Master Servicer (including without
limitation any Sub-Servicer), to service and administer the Mortgage Loans and
REO Properties for which it is responsible hereunder: (a) with the same care,
skill, prudence and diligence as is normal and usual in its general mortgage
servicing and REO property management activities on behalf of third parties or
on behalf of itself, whichever is higher, with respect to mortgage loans and REO
properties that are comparable to those for which it is responsible hereunder,
giving due consideration to customary and usual standards of practice of prudent
institutional commercial mortgage loan servicers used with respect to mortgage
loans and REO properties comparable to those for which it is responsible
hereunder; (b) with a view to the timely collection of all scheduled payments of
principal and interest under the Mortgage Loans and any B Loan, the full
collection of all Yield Maintenance Charges that may become payable under the
Mortgage Loans and, in the case of the Special Servicer, if a Mortgage Loan or
any B Loan comes into and continues in default and if, in the good faith and
reasonable judgment of the Special Servicer, no satisfactory arrangements can be
made for the collection of the delinquent payments (including payments of Yield
Maintenance Charges), the maximization of the recovery on such Mortgage Loan to
the Certificateholders (as a collective whole) (or in the case of any A/B Loan
Pair and its related B Loan, if any, the maximization of recovery on the A/B
Loan Pair to the Certificateholders and the B Loan Holder, as applicable, all
taken as a collective whole and taking into account the subordination of the B
Loan) on a present value basis (the relevant discounting of anticipated
collections that will be distributable to Certificateholders to be performed at
the related Net Mortgage Rate) as determined by the Special Servicer or Master
Servicer, as the case may be, in its reasonable judgment; and (c) without regard
to: (i) any relationship that the Master Servicer (or any Affiliate thereof) or
the Special Servicer (or any Affiliate thereof), as the case may be, may have
with the related Borrower or with any other party to this Agreement; (ii) the
ownership of any Certificate by the Master Servicer (or any Affiliate thereof)
or the Special Servicer (or any Affiliate thereof), as the case may be; (iii)
the obligation of the Master Servicer to make Advances, (iv) the obligation of
the Special Servicer to make, or direct the Master Servicer to make, Servicing
Advances; (v) the right of the Master Servicer (or any Affiliate thereof) or the
Special Servicer (or any Affiliate thereof), as the case may be, to receive
reimbursement of costs, or the sufficiency of any compensation payable to it,
hereunder or with respect to any particular transaction; (vi) any obligation
that the Master Servicer or Special Servicer, as the case may be, or any of its
affiliates, may have to cure a Breach or a Document Defect or to repurchase or
replace a Defective Mortgage Loan; (vii) any ownership, servicing and/or
management by the Master Servicer (or any Affiliate thereof) or the Special
Servicer (or any Affiliate thereof), as the case may be, of any other mortgage
loans or real property; or (viii) the ownership by the Master Servicer or
Special Servicer, as the case may be, or any of its Affiliates of any other debt
owed by, or secured by ownership interests in, any of the Borrowers or any
Affiliate of a Borrower.
"Servicing Standard-Capmark" shall mean, with respect to the Master
Servicer, to service and administer the Mortgage Loans hereunder in accordance
with applicable law, the terms of this Agreement, the respective terms of the
Mortgage Loans and, to the extent not inconsistent with the foregoing, further
as follows: (a) with the same care, skill and diligence as is normal and usual
in Capmark's (as a master servicer) mortgage servicing activities on behalf of
third parties or on behalf of itself, whichever is higher, with respect to
mortgage loans that are comparable to the Mortgage Loans; (b) with a view to the
timely collection of all scheduled payments of principal and interest under the
Mortgage Loans and the maximization of the recovery on the Mortgage Loans to the
Certificateholders (as a collective whole) (or in the case of any A/B Loan Pair
and its related B Loan, if any, the maximization of recovery on the A/B Loan
Pair to the Certificateholders and the B Loan Holder, as applicable, all taken
as a collective whole and taking into account the subordination of the B Loan)
on a net present value basis; and (c) without regard to- (i) any relationship
that the Master Servicer, or any Affiliate thereof, may have with the related
Borrower, (ii) the ownership of any certificate, Mezzanine Loan or any B Loans
by the Master Servicer, or by any Affiliate thereof, (iii) the Master Servicer's
obligation to make advances, (iv) the right of the Master Servicer, or any
Affiliate thereof, to receive reimbursement of costs, or the sufficiency of any
compensation payable to it, hereunder or with respect to any particular
transaction, or (v) any obligation of the Master Servicer or any of its
Affiliates (in their capacity as a Mortgage Loan Seller) to cure a breach of a
representation or warranty or repurchase the Mortgage Loan.
"Servicing Standard" shall mean, with respect to the Master
Servicer, the Servicing Standard-Capmark and, with respect to any other servicer
(including without limitation the Special Servicer and any Sub-Servicer), the
Servicing Standard-General.
"Servicing Transfer Event" shall mean, with respect to any Mortgage
Loan, any of the following events:
(a) the related Borrower has failed to make when due any Monthly
Payment (including a Balloon Payment) or any other payment required under
the related Mortgage Loan Documents (including, in the case of an A/B Loan
Pair, any scheduled payment of principal or interest on any B Loan), which
failure continues, or the Master Servicer determines, in its reasonable
judgment, will continue, unremedied for the following time periods-(i)
except in the case of a delinquent Balloon Payment, for 60 days beyond the
date on which the subject payment was due and (ii) solely in the case of a
delinquent Balloon Payment, for 90 days beyond the related maturity date
or, if the related Borrower has delivered to the Master Servicer a
refinancing commitment reasonably acceptable to the Special Servicer and
continues to pay the Assumed Monthly Payment, for such longer period, not
to exceed 150 days beyond the related maturity date, during which the
refinancing would occur; or
(b) the Master Servicer has determined, in its reasonable judgment,
that a default in making a Monthly Payment (including a Balloon Payment)
or any other material payment required under the related Mortgage Loan
Documents is likely to occur within 30 days and either (i) the related
Borrower has requested a material modification of the payment terms of the
related Mortgage Loan, or (ii) such default is likely to remain unremedied
for at least the period contemplated by clause (a) of this definition; or
(c) the Master Servicer or Special Servicer (with the consent of the
Controlling Class Representative in the case of a determination by the
Special Servicer) has determined, in its reasonable judgment, that a
default, other than as described in clause (a) or (b) of this definition,
has occurred that may materially impair the value of the related Mortgaged
Property as security for the Mortgage Loan, which default has continued
unremedied for the applicable cure period under the terms of the Mortgage
Loan (or, if no cure period is specified, for 60 days), provided, that the
failure of the related Borrower to obtain all-risk casualty insurance
which does not contain any carve-out for terrorist or similar acts (other
than such amounts as are specifically allowed by the related Loan
Agreement) shall not apply with respect to this clause if the Master
Servicer has determined (which determination shall be subject to the
approval of the Controlling Class Representative and the limitations of
Section 3.24(b); provided that the Controlling Class Representative's
failure to respond to a request for such approval within five (5) Business
Days of such request shall be deemed approval) in accordance with the
Servicing Standard that either (a) such insurance is not available at
commercially reasonable rates or that such hazards are not at the time
commonly insured against for properties similar to the Mortgaged Property
and located in or around the region in which such Mortgaged Property is
located or (b) such insurance is not available at any rate; or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary action against the
related Borrower under any present or future federal or state bankruptcy,
insolvency or similar law or the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against the related
Borrower and such decree or order shall have remained in force
undismissed, undischarged or unstayed for a period of 60 days; or
(e) the related Borrower shall have consented to the appointment of
a conservator, receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceeding of or
relating to such Borrower or of or relating to all or substantially all of
its property; or
(f) the related Borrower shall have admitted in writing its
inability to pay its debts generally as they become due, filed a petition
to take advantage of any applicable insolvency or reorganization statute,
made an assignment for the benefit of its creditors, or voluntarily
suspended 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.
A Servicing Transfer Event with respect to any Mortgage Loan shall cease to
exist:
(w) in the case of the circumstances described in clause (a)
above, if and when the related Borrower has made three
consecutive full and timely Monthly Payments under the
terms of such Mortgage Loan and any related B Loan (as such
terms may be changed or modified in connection with a
bankruptcy or similar proceeding involving the related
Borrower or by reason of a modification, waiver or
amendment granted or agreed to by the Master Servicer or
the Special Servicer pursuant to Section 3.20);
(x) in the case of the circumstances described in clauses (b), (d), (e)
and (f) above, if and when such circumstances cease to exist in the
reasonable judgment of the Special Servicer;
(y) in the case of the circumstances described in clause (c) above, if
and when such default is cured in the reasonable judgment of the
Special Servicer; and
(z) in the case of the circumstances described in clause (g) above, if
and when such proceedings are terminated.
"Significant Mortgage Loan" shall mean, at any time, (a) any
Mortgage Loan (i) whose principal balance is $20,000,000 or more at such time or
(ii) that is (x) a Mortgage Loan, (y) part of a group of Crossed Mortgage Loans
or (z) part of a group of Mortgage Loans made to affiliated Borrowers that, in
each case, in the aggregate, represents 5% or more of the aggregate outstanding
principal balance of the Mortgage Pool at such time or (b) any one of the ten
largest Mortgage Loans (which for the purposes of this definition shall include
groups of Crossed Mortgage Loans and groups of Mortgage Loans made to affiliated
Borrowers) by outstanding principal balance at such time.
"Similar Law" shall mean any federal, state or local law materially
similar to the provisions of Title I of ERISA or Section 4975 of the Code.
"Sole Certificateholder(s)" shall mean any Holder or group of
Holders, as the case may be, of 100% of the then outstanding Certificates (other
than the Class R and Class V Certificates).
"Special Reserve Account" shall mean a segregated custodial account
or accounts created and maintained by the Master Servicer, pursuant to Section
2.03(d), on behalf of the Trustee in trust for the Certificateholders and the
related Mortgage Loan Seller, which shall be entitled "Capmark Finance Inc., as
the Master Servicer, in trust for the registered holders of Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2007-C1, and [name of the related Mortgage Loan Seller], Special Reserve
Account."
"Special Servicer" shall mean Midland, in its capacity as special
servicer with respect to the Mortgage Pool and any related REO Properties
hereunder, or any successor special servicer with respect to the Mortgage Pool
and any related REO Properties appointed as provided herein.
"Special Servicing Fee" shall mean, with respect to each Specially
Serviced Mortgage Loan and each REO Mortgage Loan, the fee designated as such
and payable to the Special Servicer pursuant to the first paragraph of Section
3.11(c).
"Special Servicing Fee Rate" shall mean, with respect to each
Specially Serviced Mortgage Loan and each REO Mortgage Loan, 0.25% (25 basis
points) per annum.
"Specially Designated Mortgage Loan Documents" shall mean, with
respect to any Mortgage Loan, subject to Sections 1.04 and 2.01, the following
documents on a collective basis:
(i) the original executed Mortgage Note or, alternatively, if the
original executed Mortgage Note has been lost, a lost note
affidavit and indemnity with a copy of such Mortgage Note;
(ii) an original or a copy of the Mortgage (with or without
recording information);
(iii) the original or a copy of the policy of lender's title
insurance or, if such policy has not yet been issued, a
"marked-up" pro forma title policy or commitment for title
insurance marked as binding and countersigned or evidenced as
binding by escrow letter or closing instructions;
(iv) an original or copy of any Ground Lease; and
(v) any original Letter of Credit constituting Additional
Collateral and originals or copies of related amendment,
assignment or transfer documents; provided that in connection
with the delivery of the Mortgage File to the Trust, the
original of each Letter of Credit (and any related amendment,
assignment or transfer document) shall be delivered to the
Master Servicer and a copy thereof shall be delivered to the
Trustee or a Custodian on its behalf;
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 shall not be deemed to include such documents and
instruments referred to in items (i) through (v) of this definition unless they
are actually so received; and provided, further, that the Specially Designated
Mortgage Loan Documents for any Mortgage Loan need not include any Letter of
Credit referred to in item (v) of this definition if, in lieu thereof, the
related Mortgage Loan Seller has, on behalf of the related Borrower, either (1)
delivered to the Trustee a substitute letter of credit, in the same amount and
with the same draw conditions and renewal rights as, and otherwise substantially
similar to, that Letter of Credit and issued by an obligor that meets any
criteria in the related Mortgage Loan Documents applicable to the issuer of that
Letter of Credit or (2) delivered to the Master Servicer a cash reserve in an
amount equal to the amount of that Letter of Credit, which substitute letter of
credit can be drawn on, or which cash reserve can be applied, to cover the same
items as that Letter of Credit was intended to cover.
"Specially Serviced Mortgage Loan" shall mean any Mortgage Loan as
to which there then exists a Servicing Transfer Event. Upon the occurrence of a
Servicing Transfer Event with respect to any Mortgage Loan, such Mortgage Loan
shall remain a Specially Serviced Mortgage Loan until the earliest of (i) its
removal from the Trust Fund, (ii) an REO Acquisition with respect to the related
Mortgaged Property, and (iii) the cessation of all existing Servicing Transfer
Events with respect to such Mortgage Loan.
"Startup Day" shall mean the Closing Date.
"State Tax Laws" shall mean the state and local tax laws of the
state in which the office of the Trustee from which the Trust is administered is
located, and any other state, the applicability of which to the Trust Fund or
the Trust REMICs shall have been confirmed to the Trustee in writing either by
the delivery to the Trustee of an Opinion of Counsel to such effect (which
Opinion of Counsel shall not be at the expense of the Trustee), or by the
delivery to the Trustee of a written notification to such effect by the taxing
authority of such state.
"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 or, in the case of a Replacement Mortgage Loan, on the related date
of substitution) on which the last payment of principal is due and payable under
the terms of such Mortgage Note, without regard to any change in or modification
of such terms in connection with a bankruptcy or similar proceeding involving
the related Borrower or a modification, waiver or amendment of such Mortgage
Loan granted or agreed to by the Master Servicer or the Special Servicer
pursuant to Section 3.20 and, in the case of an ARD Mortgage Loan, without
regard to its Anticipated Repayment Date.
"Stated Principal Balance" shall mean, with respect to any Mortgage
Loan (and any successor REO Mortgage Loan), a principal balance which (a)
initially shall equal the unpaid principal balance thereof as of the related Due
Date in March 2007 or, in the case of any Replacement Mortgage Loan, as of the
related date of substitution, in any event after application of all payments of
principal due thereon on or before such date, whether or not received, and (b)
shall be permanently reduced on each subsequent Distribution Date (to not less
than zero) by (i) that portion, if any, of the Principal Distribution Amount for
such Distribution Date attributable to such Mortgage Loan (or successor REO
Mortgage Loan), and (ii) the principal portion of any Realized Loss incurred in
respect of such Mortgage Loan (or successor REO Mortgage Loan) during the
related Collection Period; provided that, if a Liquidation Event occurs in
respect of any Mortgage Loan or REO Property, then the "Stated Principal
Balance" of such Mortgage Loan or of the related REO Mortgage Loan, as the case
may be, shall be zero commencing as of the Distribution Date in the Collection
Period next following the Collection Period in which such Liquidation Event
occurred.
"Subordinate Certificates" shall mean, collectively, the Class A-M,
Class A-MFL (through the Class A-MFL Regular Interest), Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class P, Class Q, Class S, Class T, Class R and Class
LR Certificates.
"Subordinate Principal Balance Certificates" shall mean,
collectively, all of the Subordinate Certificates other than the Class R and
Class LR Certificates.
"Sub-Servicer" shall mean any Person with which the Master Servicer
or the Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement" shall mean any sub-servicing agreement or
primary servicing agreement (including any Designated Sub-Servicer Agreement)
between the Master Servicer or the Special Servicer, on the one hand, and any
Sub-Servicer, on the other hand, relating to servicing and administration of
Mortgage Loans as provided in Section 3.22.
"Substitution Shortfall Amount" shall mean, in connection with the
substitution of one or more Replacement Mortgage Loans for any Defective
Mortgage Loan, the amount, if any, by which the Purchase Price for such
Defective Mortgage Loan (calculated as if it were to be repurchased, instead of
replaced, on the relevant date of substitution), exceeds the Stated Principal
Balance or the aggregate Stated Principal Balance, as the case may be, of such
Replacement Mortgage Loan(s) as of the date of substitution.
"Swap Agreement" shall mean the 1992 ISDA (Multi-Currency
Cross-Border) Master Agreement together with the related schedule, confirmation
and any annexes thereto, dated as of March 16, 2007, by and among the Swap
Counterparty and the Trustee, solely in its capacity as Trustee, on behalf of
the Trust, or any replacement interest rate swap agreement entered into by the
Trustee in accordance with the terms of Section 3.28.
"Swap Counterparty" shall mean Credit Suisse International and its
successors in interest or any swap counterparty under a replacement Swap
Agreement.
"Swap Default" shall mean any failure on the part of the Swap
Counterparty to (i) make a required payment under the Swap Agreement as and when
due thereunder, (ii) post acceptable collateral, find an acceptable replacement
Swap Counterparty or find a guarantor acceptable to the Rating Agencies that
will guarantee the Swap Counterparty's obligations under the Swap Agreement
after a Collateralization Event (as defined in the Swap Agreement) has occurred
as required by Part 5, paragraph (b)(1) of the Schedule to the Master Agreement
in the related Swap Agreement or (iii) find an acceptable replacement Swap
Counterparty (or, with respect to Xxxxx'x, find a guarantor acceptable to
Xxxxx'x that will guarantee the Swap Counterparty's obligations under the Swap
Agreement) after a Rating Agency Trigger Event has occurred as required by Part
5, paragraph (b)(2) of the Schedule to the Master Agreement in the related Swap
Agreement.
"Swap Upfront Payment" shall mean any payment made by the Swap
Counterparty to the Trustee (on behalf of the Depositor) on the Closing Date,
representing amounts due from the Swap Counterparty to the Depositor.
"Swap Termination Fees" shall mean any fees, costs or expenses
payable by the Swap Counterparty to the Trust in connection with a Swap Default,
termination of the Swap Agreement or liquidation of the Swap Agreement, as
specified in the Swap Agreement
"Tax Matters Person" shall mean, with respect to the Upper-Tier or
the Lower-Tier REMIC, the Person designated as the "tax matters person" of such
REMIC in the manner provided under Treasury Regulations Section 1.860F-4(d) and
Temporary Treasury Regulations Section 301.6231(a)(7)-1T, which Person shall,
pursuant to Section 10.01(b), be the Plurality Class R Certificateholder or the
Plurality Class LR Certificateholder, respectively.
"Tax Returns" shall mean the federal income tax return on IRS Form
1066, U.S. Real Estate Mortgage Investment Conduit Income (REMIC) Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holder of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC due to its
classification as a REMIC under the REMIC Provisions, and the federal income tax
return on IRS Form 1041 or such other form required under the Grantor Trust
Provisions to be filed on behalf of the Grantor Trust Pool, 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 or local tax laws.
"Termination Price" shall have the meaning assigned thereto in
Section 9.01(a).
"Transfer" shall mean any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee" shall mean any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing by Transfer of
any Ownership Interest in a Certificate.
"Trust" shall mean the trust created hereby.
"Trust Assets" shall mean the assets comprising the Trust Fund.
"Trust Fund" shall mean, collectively, all of the assets of the
Upper-Tier REMIC, the Lower-Tier REMIC and Grantor Trust Pool, together with the
Purchase Price Security Deposit Accounts, the Special Reserve Accounts and any
Recording Omission Reserves and Recording Omission Credits delivered by any
Mortgage Loan Seller or the Column Performance Guarantor to the Master Servicer
as contemplated by Section 2.03.
"Trust REMIC" shall mean the Lower-Tier REMIC or the Upper-Tier
REMIC.
"Trustee" shall mean Xxxxx Fargo, in its capacity as trustee
hereunder, or any successor trustee appointed as provided herein.
"Trustee Fee" shall mean, with respect to any Mortgage Loan or REO
Mortgage Loan, the fee designated as such and payable to the Trustee pursuant to
Section 8.05(a).
"Trustee Fee Rate" shall mean 0.00066% per annum.
"Trustee Report" shall have the meaning assigned thereto in Section
4.02(a).
"UCC" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction.
"UCC Financing Statement" shall mean a financing statement executed
and filed pursuant to the Uniform Commercial Code, as in effect in any relevant
jurisdiction.
"Uncertificated Lower-Tier Interests" shall mean any of the Class
LA-1-1, Class LA-1-2, Class LA-2-1, Class LA-2-2, Class XX-0-0, Xxxxx XX-XX-0,
Class LA-AB-2, Class LA-AB-3, Class LA-AB-4, Class LA-3-1, Class LA-3-2, Class
LA-3-3, Class LA-3-4, Class LA-3-5, Class LA-1-A-1, Class LA-1-A-2, Class
LA-1-A-3, Class LA-1-A-4, Class LA-1-A-5, Class LA-1-A-6, Class LA-1-A-7, Class
LA-1-A-8, Class LA-M, Class LA-MFL, Class LA-J, Class LB, Class LC-1, Class
LC-2, Class LD-1, Class LD-2, Class LE, Class LF-1, Class LF-2, Class LG, Class
LH, Class LJ, Class LK, Class LL, Class LM, Class LN, Class LO, Class LP, Class
LQ, Class LS and Class LT Uncertificated Interests.
"Underwriters" shall mean, collectively, Credit Suisse,
Capmark Securities Inc., California Fina Group, Inc. (DBA: Finacorp
Securities), Greenwich Capital Markets, Inc. and Wachovia Capital
Markets, LLC.
"Underwriter Exemption" shall mean PTE 89-90, as amended by XXX
00-00, XXX 0000-00 and PTE 2002-41, and as may be subsequently amended following
the Closing Date.
"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 (except to the extent provided in
applicable Treasury regulations), or other entity (including any entity treated
as a corporation or partnership for federal income tax purposes) created or
organized in, or under the laws of, the United States, any State thereof or the
District of Columbia, or an estate whose income from sources outside the United
States is includible in gross income for United States federal income tax
purposes regardless of its connection with the conduct of a trade or business
within the United States, or a trust if a court within the United States is able
to exercise primary supervision over the administration of the trust and one or
more United States Tax Persons have the authority to control all substantial
decisions of the trust, all within the meaning of Section 7701(a)(30) of the
Code (including certain trusts in existence on August 20, 1996 that are eligible
to elect to be treated as United States Tax Persons).
"Unrestricted Servicer Reports" shall mean, collectively, any
reports and files that are included in the CMSA Investor Reporting Package and
do not constitute Restricted Master Servicer Reports.
"Upper-Tier Distribution Account" shall mean the account, accounts
or sub-account created and maintained by the Trustee, pursuant to Section
3.04(b) in trust for the Certificateholders, which shall be entitled "Xxxxx
Fargo Bank, N.A., as Trustee, for the registered holders of Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2007-C1, Upper-Tier Distribution Account." Any such account or accounts
shall be an Eligible Account or a subaccount of an Eligible Account.
"Upper-Tier REMIC" shall mean one of two separate REMICs comprising
the Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"USAP" shall mean the Uniform Single Attestation Program for
Mortgage Bankers established by the Mortgage Bankers Association of America.
"USPAP" shall mean the Uniform Standards of Professional Appraisal
Practices.
"Voting Rights" shall mean the voting rights evidenced by the
respective Certificates. At all times during the term of this Agreement, (i)
99.0% of the Voting Rights shall be allocated among all the Holders of the
various Classes of Principal Balance Certificates (so long as any such Class of
Certificates has been transferred by the Initial Purchaser or an Affiliate
thereof as part of the initial offering of the Certificates and therefore such
Class of Certificates is not part of the Initial Purchaser's unsold allotment),
in proportion to the respective Class Principal Balances of such Classes, (ii)
1.0% of the Voting Rights shall be allocated between the Holders of the Class
A-X and Class A-SP Certificates, in proportion to the respective Class Notional
Amounts of such Classes and (iii) 0% for any Class of Principal Balance
Certificates for as long as any such Class of Certificates has not been
transferred by the Initial Purchaser or an Affiliate thereof as part of the
initial offering of the Certificates (which Class of Certificates is therefore
part of the Initial Purchaser's unsold allotment), in each case, determined as
of the Distribution Date immediately preceding such date of determination.
Voting Rights allocated to a particular Class of Certificateholders shall be
allocated among such Certificateholders in proportion to the respective
Percentage Interests evidenced by their respective Certificates. No Voting
Rights shall be allocated to the Class R, Class LR or Class V Certificates.
"Website" shall mean the internet website maintained by the Trustee
initially located at "xxx.xxxxxxx.xxx," or the internet website of the Master
Servicer initially located at "xxx.xxxxxxx.xxx."
"Weighted Average Net Mortgage Rate" shall mean, as to any
Distribution Date, the average, as of such Distribution Date, of the Net
Mortgage Pass-Through Rates of the Mortgage Loans weighted by the Stated
Principal Balances thereof; provided that such rate shall not take into account
any modification of the Mortgage Rate after the Closing Date or any modification
of the Mortgage Rate in connection with a bankruptcy, insolvency or similar
proceeding involving the related Borrower.
"Xxxxx Fargo" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"Workout-Delayed Reimbursement Amount" shall mean, with respect to
any Mortgage Loan, the amount of any Advance made with respect to such Mortgage
Loan on or before the date such Mortgage Loan becomes a Corrected Mortgage Loan,
together with (to the extent accrued and unpaid) interest on such Advances, to
the extent that (i) such Advance is not reimbursed to the Person who made such
Advance on or before the date, if any, on which such Mortgage Loan becomes a
Corrected Mortgage Loan and (ii) the amount of such Advance becomes an
obligation of the Borrower to pay such amount under the terms of the modified
Loan Documents. The fact that any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit the right of
any Person hereunder to determine that such amount instead constitutes a
Nonrecoverable Advance.
"Workout Fee" shall mean, with respect to each Corrected Mortgage
Loan, the fee designated as such and payable to the Special Servicer pursuant to
the second paragraph of Section 3.11(c).
"Workout Fee Rate" shall mean, with respect to each Corrected
Mortgage Loan, 1.0% (100 basis points).
"Yield Maintenance Certificates" shall mean the Class A-1, Class
A-2, Class A-AB, Class X-0, Xxxxx, X-0-X, 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.
"Yield Maintenance Charge" shall mean, with respect to any Mortgage
Loan, any premium, fee or other additional amount paid or payable, as the
context requires, by a Borrower in connection with a Principal Prepayment on, or
other early collection of principal of, a Mortgage Loan, calculated, in whole or
in part, pursuant to a yield maintenance formula or otherwise pursuant to a
formula that reflects the lost interest, including a Yield Maintenance Minimum
Amount.
"Yield Maintenance Minimum Amount" shall mean, with respect to a
Mortgage Loan that provides for a Yield Maintenance Charge to be paid in
connection with any Principal Prepayment thereon or other early collection of
principal thereof, any specified amount or specified percentage of the amount
prepaid which constitutes the minimum amount that such Yield Maintenance Charge
may be.
"Yield Rate" shall mean, with respect to any Mortgage Loan, subject
to Section 2.01(d)(i), a rate equal to a per annum rate calculated by the linear
interpolation of the yields, as reported in the most recent "Federal Reserve
Statistical Release H.15 - Selected Interest Rates" under the heading U.S.
Government Securities/Treasury constant maturities published prior to the date
of the relevant prepayment of any Loan, of U.S. Treasury constant maturities
with maturity dates (one longer, one shorter) most nearly approximating the
maturity date (or, with respect to ARD Mortgage Loans, the Anticipated Repayment
Date) of the Loan being prepaid or the monthly equivalent of such rate. If
Federal Reserve Statistical Release H.15 - Selected Interest Rates is no longer
published, the Master Servicer, on behalf of the Trustee, will select a
comparable publication to determine the Yield Rate.
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 have the meanings assigned
to them in this Agreement and 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 as in effect from time to time;
(iii) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein," "hereof," "hereunder," "hereto," "hereby"
and other words of similar import refer to this Agreement as a whole and
not to any particular provision; and
(vi) the terms "include" and "including" shall mean without
limitation by reason of enumeration.
Section 1.03 Certain Calculations in Respect of the Mortgage Pool
(a) All amounts collected by or on behalf of the Trust in respect of
any Cross-Collateralized Group in the form of payments from Borrowers, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds, shall be applied among
the Mortgage Loans constituting such Cross-Collateralized Group in accordance
with the express provisions of the related Mortgage Loan Documents and, in the
absence of such express provisions, in accordance with the Servicing Standard.
All amounts collected by or on behalf of the Trust in respect of or allocable to
any particular Mortgage Loan (whether or not such Mortgage Loan constitutes part
of a Cross-Collateralized Group) in the form of payments from Borrowers,
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds shall be
applied to amounts due and owing under the related Mortgage Note and Mortgage
(including for principal and accrued and unpaid interest) in accordance with the
express provisions of the related Mortgage Loan Documents and, in the absence of
such express provisions or if and to the extent that such terms authorize the
lender to use its discretion, shall be applied: first, as a recovery of any
related and unreimbursed Servicing Advances, if applicable, unpaid Liquidation
Expenses and, to the extent not covered by Liquidation Expenses, Additional
Trust Fund Expenses and other fees and expenses payable to the Master Servicer,
the Special Servicer or the Trustee and attributable to such Mortgage Loan;
second, as a recovery of any related Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts (and Advance Interest thereon) that were paid from
collections of principal on the Mortgage Loans, third, as a recovery of accrued
and unpaid interest on such Mortgage Loan to, but not including, the date of
receipt by or on behalf of the Trust (or, in the case of a full Monthly Payment
from any Borrower, through the related Due Date), exclusive, however, of any
portion of such accrued and unpaid interest that constitutes Default Interest
or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date,
that constitutes Post-ARD Additional Interest; fourth as a recovery of principal
of such Mortgage Loan then due and owing, including by reason of acceleration of
the Mortgage Loan following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage Loan, as a recovery of principal to the
extent of its entire remaining unpaid principal balance); fifth, unless a
Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery
of amounts to be currently applied to the payment of, or escrowed for the future
payment of, real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items; sixth, unless a Liquidation Event has occurred in
respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then
required to be held in escrow; seventh, as a recovery of any Yield Maintenance
Charge then due and owing under such Mortgage Loan; eighth, as a recovery of any
Default Charges then due and owing under such Mortgage Loan; ninth, as a
recovery of any assumption fees and modification fees then due and owing under
such Mortgage Loan; tenth, as a recovery of any other amounts then due and owing
under such Mortgage Loan other than remaining unpaid principal and, in the case
of an ARD Mortgage Loan after its Anticipated Repayment Date, other than
Post-ARD Additional Interest; eleventh, as a recovery of any remaining principal
of such Mortgage Loan to the extent of its entire remaining unpaid principal
balance; and, twelfth, in the case of an ARD Mortgage Loan after its Anticipated
Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest
on such ARD Mortgage Loan to but not including the date of receipt by or on
behalf of the Trust.
(b) Collections by or on behalf of the Trust in respect of each REO
Property (exclusive of amounts to be applied to the payment of the costs of
operating, managing, maintaining and disposing of such REO Property) shall be
treated: first, as a recovery of any related and unreimbursed Servicing Advances
and, if applicable, unpaid Liquidation Expenses and, to the extent not covered
by Liquidation Expenses, Additional Trust Fund Expenses or other fees and
expenses payable to the Master Servicer, the Special Servicer or the Trustee and
attributable to such REO Property or the related REO Mortgage Loan; second, as a
recovery of any related Nonrecoverable Advances (and Advance Interest thereon)
and Workout-Delayed Reimbursement Amounts that were paid from collections of
principal on the Mortgage Loan; third, as a recovery of accrued and unpaid
interest on the related REO Mortgage Loan to, but not including, the Due Date in
the Collection Period of receipt, by or on behalf of the Trust exclusive,
however, of any portion of such accrued and unpaid interest that constitutes
Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD
Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD
Additional Interest; fourth as a recovery of principal of the related REO
Mortgage Loan to the extent of its entire unpaid principal balance; fifth, as a
recovery of any Yield Maintenance Charge deemed to be due and owing in respect
of the related REO Mortgage Loan; sixth, as a recovery of any Default Charges
deemed to be due and owing in respect of the related REO Mortgage Loan; seventh,
as a recovery of any other amounts deemed to be due and owing in respect of the
related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that
relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued
and unpaid Post-ARD Additional Interest); and eighth, in the case of an REO
Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated
Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional
Interest on such REO Mortgage Loan to but not including the date of receipt by
or on behalf of the Trust.
(c) For the purposes of this Agreement, Post-ARD Additional Interest
on an ARD Mortgage Loan or a successor REO Mortgage Loan 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
successor REO Mortgage Loan, notwithstanding that the terms of the related
Mortgage Loan Documents so permit. To the extent any Post-ARD Additional
Interest is not paid on a current basis, it shall be deemed to be deferred
interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or
REO Property and allocable to shared fees and shared charges owing in respect of
such Mortgage Loan or the related REO Mortgage Loan, as the case may be, that
constitute Additional Master Servicing Compensation payable to the Master
Servicer and/or Additional Special Servicing Compensation payable to the Special
Servicer, are insufficient to cover the full amount of such fees and charges,
such amounts shall be allocated between such of those fees and charges as are
payable to the Master Servicer, on the one hand, and such of those fees and
charges as are payable to the Special Servicer, on the other, pro rata in
accordance with their respective entitlements.
(e) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the appropriate monthly report from such Master Servicer and in the
appropriate monthly Trustee Report as provided in Section 4.02.
Section 1.04 Cross-Collateralized Mortgage Loans
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that the groups of Mortgage Loans identified on the Mortgage Loan
Schedule as being cross-collateralized with each other are, in the case of each
such particular group of Mortgage Loans, by their terms, cross-defaulted and
cross-collateralized with each other. For purposes of reference only in this
Agreement, and without in any way limiting the servicing rights and powers of
the Master Servicer and/or the Special Servicer, with respect to any
Cross-Collateralized Mortgage Loan (or successor REO Mortgage Loan), the
Mortgaged Property (or REO Property) that relates or corresponds thereto shall
be the property identified in the Mortgage Loan Schedule as corresponding
thereto. The provisions of this Agreement, including each of the defined terms
set forth in Section 1.01, shall be interpreted in a manner consistent with this
Section 1.04; provided that, if there exists with respect to any
Cross-Collateralized Group only one original or certified copy of any document
referred to in the definition of "Mortgage File" covering all the Mortgage Loans
in such Cross-Collateralized Group, then the inclusion of the original or
certified copy of such document in the Mortgage File for any of the Mortgage
Loans constituting such Cross-Collateralized Group shall be deemed an inclusion
of such original or certified copy in the Mortgage File for each such Mortgage
Loan.
Section 1.05 Certain Adjustments to the Principal Distributions on
the Certificates
(a) If, in accordance with the provisions of this Agreement, any
party hereto is reimbursed out of general collections (but solely collections of
principal with respect to Workout-Delayed Reimbursement Amounts unless it has
been determined in accordance with this Agreement that such Workout-Delayed
Reimbursement Amounts are Nonrecoverable Advances) on the Mortgage Pool on
deposit in the Collection Account for any Nonrecoverable Advance or any
Workout-Delayed Reimbursement Amount (in each case, together with interest
accrued and payable thereon), then (for purposes of calculating distributions on
the Certificates) such reimbursement and/or such payment of interest shall be
deemed to have been made:
first, out of any amounts then on deposit in the Collection Account
representing payments or other collections of principal received by the Trust
with respect to the Loan Group to which such Mortgage Loan generating the
Nonrecoverable Advance or Workout-Delayed Reimbursement Amount belongs that, but
for their application to reimburse a Nonrecoverable Advance or Workout-Delayed
Reimbursement Amount, as applicable, and/or to pay interest thereon, would be
included in the Available Distribution Amount for any subsequent Distribution
Date;
second, out of any amounts (but solely collections of principal with
respect to Workout-Delayed Reimbursement Amounts unless it has been determined
in accordance with this Agreement that such Workout-Delayed Reimbursement
Amounts are Nonrecoverable Advances) representing payments or other collections
of principal received by the Trust with respect to the Loan Group to which such
Mortgage Loan generating the Nonrecoverable Advance or Workout-Delayed
Reimbursement Amount belongs that, but for their application to reimburse a
Nonrecoverable Advance or Workout-Delayed Reimbursement Amount, as applicable,
and/or to pay interest thereon, would be included in the Available Distribution
Amount for any subsequent Distribution Date; and
third, out of any other amounts (but solely collections of principal
with respect to Workout-Delayed Reimbursement Amounts unless it has been
determined in accordance with this Agreement that such Workout-Delayed
Reimbursement Amounts are Nonrecoverable Advances) representing payments or
other collections of principal received by the Trust with respect to the Loan
Group to which such Mortgage Loan generating the Nonrecoverable Advance or
Workout-Delayed Reimbursement Amount belongs that may be available in the
Collection Account to reimburse the subject Nonrecoverable Advance or
Workout-Delayed Reimbursement Amount, as applicable, and/or to pay interest
thereon.
(b) If and to the extent that any payment or other collection of
principal of any Mortgage Loan or REO Mortgage Loan is deemed to be applied in
accordance with clauses first and/or second of the preceding paragraph to
reimburse a Nonrecoverable Advance or Workout-Delayed Reimbursement Amount, as
applicable, or in each case, to pay interest thereon, (and further if and to the
extent that such payment or other collection of principal constitutes part of
the Total Principal Distribution Amount for any Distribution Date, then the
Principal Distribution Amount for such Distribution Date shall be reduced by the
portion, if any, of such payment or other collection of principal that, but for
the application of this paragraph, would have been included as part of such
Principal Distribution Amount) then (for purposes of calculating distributions
on the Certificates) such reimbursement and/or such payment of interest shall be
deemed to have been made out of any amounts then on deposit in the Distribution
Account that represent payments or other collections of principal received by
the Trust first, from such principal payments or collections that are allocated
to the Loan Group to which such Mortgage Loan generating the Nonrecoverable
Advance or Workout-Delayed Reimbursement Amount belongs and second, from such
principal payments or collections allocated to the other Loan Group, that in
either case, but for their application to reimburse a Nonrecoverable Advance or
Workout-Delayed Reimbursement Amount and/or to pay interest thereon, would be
included in the Available Distribution Amount for any Distribution Date.
(c) If and to the extent that any Advance is determined to be a
Nonrecoverable Advance or Workout-Delayed Reimbursement Amount, as applicable,
such Advance and/or interest thereon is reimbursed out of general collections on
the Mortgage Pool as contemplated by Section 1.05(a) above and the particular
item for which such Nonrecoverable Advance or Workout-Delayed Reimbursement
Amount was originally made is subsequently collected out of payments or other
collections in respect of the related Mortgage Loan, then the Principal
Distribution Amount for the Distribution Date that corresponds to the Collection
Period in which such item was recovered shall be increased by an amount equal to
the lesser of (A) the amount of such item and (B) any previous reduction in the
Principal Distribution Amount for a prior Distribution Date pursuant to Section
1.05(b) above resulting from the reimbursement of the subject Advance and/or the
payment of interest thereon.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF UNCERTIFICATED LOWER-TIER
INTERESTS; EXECUTION OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans
(a) It is the intention of the parties hereto that a common law
trust be established under the laws of the State of New York pursuant to this
Agreement and, further, that such trust be designated as "Credit Suisse
Commercial Mortgage Trust 2007-C1." Xxxxx Fargo is hereby appointed, and does
hereby agree, to act as Trustee hereunder and, in such capacity, to hold the
Trust Fund in trust for the exclusive use and benefit of all present and future
Certificateholders, the Swap Counterparty and B Loan Holders (as their interests
may appear). It is not intended that this Agreement create a partnership or a
joint-stock association.
The Depositor, concurrently with the execution and delivery hereof,
does hereby assign, sell, transfer, set over and otherwise convey to the
Trustee, without recourse, for the benefit of the Certificateholders all the
right, title and interest of the Depositor, including any security interest
therein for the benefit of the Depositor, in, to and under (i) the Original
Mortgage Loans, (ii) the Mortgage Loan Purchase Agreements and (iii) all other
assets included or to be included in the Trust Fund. Such assignment includes
all interest and principal received or receivable on or with respect to the
Original Mortgage Loans (other than payments of principal and interest due and
payable on the Original Mortgage Loans on or before the Cut-off Date and
Principal Prepayments paid on or before the Cut-off Date). The transfer of the
Original Mortgage Loans and the related rights and property accomplished hereby
is absolute and, notwithstanding Section 11.12, is intended by the parties to
constitute a sale.
Under GAAP, the Depositor shall report and cause all of its records
to reflect: (i) its acquisition of the Original Column Mortgage Loans from
Column, pursuant to the Column Mortgage Loan Purchase Agreement, as a purchase
of such Mortgage Loans from Column, (ii) its acquisition of the Original Capmark
Mortgage Loans (excluding (A) any rights of the lender under the related
Mortgage Loan Documents to establish and/or own a successor borrower in
connection with a defeasance of a such Mortgage Loan and (B) in the case of the
Mortgage Loan identified on the Mortgage Loan Schedule as Woodbrook Lane, any
related exit fees provided for under the related Mortgage Loan Documents) from
the Capmark Mortgage Loan Seller, pursuant to the Capmark Mortgage Loan Purchase
Agreement, as a purchase of such Mortgage Loans from the Capmark Mortgage Loan
Seller and (iii) its transfer of the Original Mortgage Loans to the Trust,
pursuant to this Section 2.01(a), as a sale of such Mortgage Loans to the Trust;
provided that, in the case of the transactions described in clauses (i) and (ii)
of this sentence, the Depositor shall do so only upon the sale of Certificates
representing at least 15% of the aggregate fair value of all the Certificates to
parties that are not Affiliates of the Depositor. Regardless of its treatment of
the transfer of the Original Mortgage Loans to the Trust under GAAP, the
Depositor shall at all times following the Closing Date cause all of its records
and financial statements and any relevant consolidated financial statements of
any direct or indirect parent clearly to reflect that the Original Mortgage
Loans have been transferred to the Trust and are no longer available to satisfy
claims of the Depositor's creditors.
(b) The conveyance of the Original Mortgage Loans and the related
rights and property accomplished hereby is absolute and is intended by the
parties hereto to constitute an absolute transfer of such Mortgage Loans and
such other related rights and property by the Depositor to the Trustee for the
benefit of the Certificateholders. Furthermore, it is not intended that such
conveyance be a pledge of security for a loan. If such conveyance is determined
to be a pledge of security for a loan, however, the Depositor and the Trustee
intend 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) this Agreement shall
constitute a security agreement under applicable law, (ii) the Depositor shall
be deemed to have granted to the Trustee (in such capacity) a first priority
security interest in all of the Depositor's right, title and interest in and to
the assets constituting the Trust Fund, including the Mortgage Loans subject
hereto from time to time, all principal and interest received on or with respect
to such Mortgage Loans after the Closing Date (other than scheduled payments of
interest and principal due and payable on such Mortgage Loans on or prior to the
related Due Date in March 2007 or, in the case of a Replacement Mortgage Loan,
on or prior to the related date of substitution), all amounts held from time to
time in each Collection Account, the Distribution Account, the Interest Reserve
Account, the Excess Liquidation Proceeds Account and, if established, the REO
Account, each Purchase Price Security Deposit Account and/or each Special
Reserve Account and all reinvestment earnings on such amounts, and all of the
Depositor's right, title and interest under the Mortgage Loan Purchase
Agreements and the Column Performance Guarantee, (iii) the possession by the
Trustee or its agent of the Mortgage Notes with respect to the Mortgage Loans
subject hereto from time to time and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" or possession by a purchaser or person
designated by such secured party for the purpose of perfecting such security
interest under applicable law, and (iv) notifications to, and acknowledgments,
receipts or confirmations from, Persons holding such property, shall be deemed
to be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents (as applicable) of the Trustee for
the purpose of perfecting such security interest under applicable law.
(c) In connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated each Mortgage Loan Seller, at such Mortgage Loan
Seller's expense, pursuant to the related Mortgage Loan Purchase Agreement, to
deliver to and deposit with, or cause to be delivered to and deposited with, the
Trustee or a Custodian appointed thereby, on or before the Closing Date, the
Mortgage File and any Additional Collateral (other than Reserve Funds) for each
Original Mortgage Loan acquired by the Depositor from such Mortgage Loan Seller;
provided that in connection with the delivery of the Mortgage File to the Trust,
the original of each Letter of Credit (and any related amendment or assignment)
shall be delivered to the Master Servicer and copy thereof shall be delivered to
the Trustee or the Custodian appointed thereby. The Depositor shall deliver to
the Trustee on or before the Closing Date a fully executed counterpart of each
Mortgage Loan Purchase Agreement and the Column Performance Guarantee.
Notwithstanding the foregoing, if any Mortgage Loan Seller is unable
to deliver any Letter of Credit constituting Additional Collateral for any of
its Original Mortgage Loans, then that Mortgage Loan Seller may, in lieu
thereof, deliver on behalf of the related Borrower, to be used for the same
purposes as such missing Letter of Credit either: (i) a substitute instrument
substantially comparable to, but in all cases in the same amount and with the
same draw conditions and renewal rights as, that Letter of Credit and issued by
an obligor that meets any criteria in the related Mortgage Loan Documents
applicable to the issuer of that Letter of Credit; or (ii) a LOC Cash Reserve in
an amount equal to the amount of that Letter of Credit. For purposes of the
delivery requirements of this Section 2.01, any such substitute instrument shall
be deemed to be Additional Collateral of the type covered by the prior paragraph
of this Section 2.01(d) and any such LOC Cash Reserve shall be deemed to be
Reserve Funds of the type covered by Section 2.01(f).
Notwithstanding the foregoing, if the Mortgage Loan Seller cannot
deliver, or cause to be delivered, as to any Mortgage Loan, any of the documents
and/or instruments referred to in clauses (ii), (iii), (viii) (other than
assignments of UCC Financing Statements to be filed in accordance with the
transfer contemplated by the Mortgage Loan Purchase Agreement), (x) and (xii) of
the definition of "Mortgage File," with evidence of recording or filing thereon,
solely because of a delay caused by the public recording or filing office where
such document or instrument has been delivered for recordation or filing, the
delivery requirements of the Mortgage Loan Purchase Agreement and this Section
2.01(b) shall be deemed to have been satisfied and such non-delivered document
or instrument shall be deemed to have been included in the Mortgage File if: (i)
a photocopy or duplicate original of such non-delivered document or instrument
(certified by the applicable public recording or filing office, the applicable
title insurance company or the Mortgage Loan Seller to be a true and complete
copy of the original thereof submitted for recording or filing) is delivered to
the Trustee, on or before the Closing Date; and (ii) either the original of such
non-delivered document or instrument, or a photocopy thereof (certified by the
appropriate public recording or filing office to be a true and complete copy of
the original thereof submitted for recording or filing), with evidence of
recording or filing thereon, is delivered to the Trustee within 120 days of the
Closing Date, which period may be extended up to two times, in each case for an
additional period of 45 days (provided that the Mortgage Loan Seller, as
certified in writing to the Trustee prior to each such 45-day extension, is in
good faith attempting to obtain from the appropriate recording or filing office
such original or photocopy).
Notwithstanding the foregoing, if the applicable Mortgage Loan
Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of
the documents and/or instruments referred to in clauses (ii), (iii), (viii)
(other than assignments of UCC Financing Statements to be filed in accordance
with the transfer contemplated by the Mortgage Loan Purchase Agreement), (x) and
(xii) of the definition of "Mortgage File," with evidence of recording or filing
thereon, for any other reason, including, without limitation, that such
non-delivered document or instrument has been lost, the delivery requirements of
the related Mortgage Loan Purchase Agreement and this Section 2.01(c) shall be
deemed to have been satisfied and such non-delivered document or instrument
shall be deemed to have been included in the Mortgage File if a photocopy or
duplicate original of such non-delivered document or instrument (with evidence
of recording or filing thereon and certified by the appropriate recording or
filing office to be a true and complete copy of the original thereof submitted
for recording or filing) is delivered to the Trustee (with a copy to the Master
Servicer) on or before the Closing Date.
Notwithstanding the foregoing, if any Mortgage Loan Seller fails to
deliver a UCC Financing Statement assignment on or before the Closing Date as
required above solely because the related UCC Financing Statement has not been
returned to the Mortgage Loan Seller by the applicable filing office and the
Mortgage Loan Seller has so notified the Trustee, the Mortgage Loan Seller shall
not be in breach of its obligations with respect to such delivery; provided that
the Mortgage Loan Seller promptly forwards such UCC Financing Statement to the
Trustee upon its return, together with the related original UCC Financing
Statement assignment in a form appropriate for filing.
None of the Trustee, the Master Servicer or the Special Servicer
shall be liable for any failure by any Mortgage Loan Seller or the Depositor to
comply with the delivery requirements of the related Mortgage Loan Purchase
Agreement and this Section 2.01(c).
(d) At the expense of the Mortgage Loan Seller, the Trustee
(directly or through its designee) shall, as to each Mortgage Loan, use its best
efforts to promptly (and in any event no later than the later of (i) 90 days
after the Closing Date (or, in the case of a Replacement Mortgage Loan, the
related date of substitution) and (ii) 60 days from receipt of documents in form
suitable for recording or filing, as applicable, including, without limitation,
all necessary recording and filing information) cause to be submitted for
recording or filing, as the case may be, each assignment referred to in clauses
(iv) and (v) of the definition of "Mortgage File" and each UCC Financing
Statement assignment to the Trustee referred to in clause (viii) of the
definition of "Mortgage File." Unless otherwise indicated on any documents
provided to the Trustee, the Trustee shall file each such UCC Financing
Statement assignment in the state of incorporation or organization of the
related Borrower; provided that the Mortgage Loan Seller shall have filed, if
necessary, an initial UCC Financing Statement under the Revised Article 9 in
lieu of continuation in such jurisdiction. Each such assignment shall reflect
that it should be returned by the public recording office to the Trustee
following recording, and each such UCC Financing Statement assignment shall
reflect that the file copy thereof should be returned to the Trustee following
filing. If any such document or instrument is lost or returned unrecorded or
unfiled because of a defect therein, the Trustee shall prepare or cause to be
prepared a substitute therefor or cure such defect, as the case may be, and
thereafter the Trustee shall upon receipt thereof cause the same to be duly
recorded or filed, as appropriate. The respective Mortgage Loan Purchase
Agreements provide for the reimbursement of the Trustee, in each case by the
Mortgage Loan Seller, for the Trustee's costs and expenses incurred in
performing its obligation under this Section 2.01(c).
Notwithstanding the foregoing, any Mortgage Loan Seller may elect,
at its sole cost and expense, to engage a third party contractor to prepare or
complete in proper form for filing and recording any and all of the assignments
described in the immediately preceding paragraph, including UCC-2 and UCC-3
assignments, with respect to the Original Mortgage Loans conveyed by it to the
Depositor (or, in the case of a Replacement Mortgage Loan, to the Trustee) under
the applicable Mortgage Loan Purchase Agreement, to submit such assignments for
filing and recording, as the case may be, in the applicable public filing and
recording offices and to deliver such assignments to the Trustee or its designee
as such assignments (or certified copies thereof) are received from the
applicable filing and recording offices with evidence of such filing and
recording indicated thereon.
(e) In connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated each Mortgage Loan Seller, at such Mortgage Loan
Seller's expense, pursuant to the related Mortgage Loan Purchase Agreement, to
deliver to and deposit with, or cause to be delivered to and deposited with, the
Master Servicer within three (3) Business Days after the Closing Date, the
following items (except to the extent any of the following items are to be
retained by a Sub-Servicer that will continue to act on behalf of the Master
Servicer): (i) originals or copies of all financial statements, appraisals,
environmental/engineering reports, leases, rent rolls, third-party underwriting
reports, insurance policies, legal opinions, tenant estoppels and any other
relevant documents that the Master Servicer or Special Servicer reasonably deems
necessary to service the subject Mortgage Loan in the possession or under the
control of such Mortgage Loan Seller that relate to the Original Mortgage Loans
transferred by it to the Depositor, copies of all documents required to be
delivered by such Mortgage Loan Seller to the Trustee or Custodian as a part of
a Mortgage File and, to the extent they are not required to be a part of a
Mortgage File for any such Original Mortgage Loan, originals or copies of all
documents, certificates and opinions in the possession or under the control of
such Mortgage Loan Seller that were delivered by or on behalf of the related
Borrowers in connection with the origination of such Original Mortgage Loans
(provided, however, that such Mortgage Loan Seller shall not be required to
deliver any attorney-client privileged communication or any other documents or
materials prepared by it or its Affiliates solely for internal credit analysis
or other internal uses); and (ii) all unapplied Reserve Funds and Escrow
Payments in the possession or under the control of such Mortgage Loan Seller
that relate to the Original Mortgage Loans transferred by such Mortgage Loan
Seller to the Depositor. The Master Servicer shall hold all such documents,
records and funds that it so receives on behalf of the Trustee in trust for the
benefit of the Certificateholders and, insofar as such items relate to a B Loan,
the related B Loan Holder.
In addition, with respect to each Mortgage Loan under which any
Additional Collateral is in the form of a Letter of Credit as of the Closing
Date, the Depositor hereby represents and warrants that it has contractually
obligated the related Mortgage Loan Seller to cause to be prepared, executed and
delivered to the issuer of each such Letter of Credit such notices, assignments
and acknowledgments as are required under such Letter of Credit to assign,
without recourse, to (and vest in) the Trustee such party's rights as the
beneficiary thereof and drawing party thereunder, such assignment to be
evidenced by an acknowledgement of the issuer or a reissued letter of credit
delivered to the Master Servicer or the Trustee.
(f) Also in connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor shall deliver to and deposit with, or cause
to be delivered to and deposited with, the Master Servicer, on or before the
Closing Date, the original or a copy of any Group Environmental Insurance Policy
(and, if not included in the Servicing File for the subject Mortgage Loan, any
other Environmental Insurance Policy) acquired by the Depositor or an Affiliate
of the Depositor.
(g) The Depositor shall use reasonable efforts to require that,
promptly after the Closing Date, but in all events within three Business Days
after the Closing Date, each of the Mortgage Loan Sellers shall cause all funds
on deposit in escrow accounts maintained with respect to the Original Mortgage
Loans in the name of the Mortgage Loan Seller or any other name, to be
transferred to the Master Servicer (or to a Designated Sub-Servicer) for deposit
into Servicing Accounts.
(h) For purposes of this Section 2.01, and notwithstanding any
contrary provision hereof or of the definition of "Mortgage File," if there
exists with respect to any group of Crossed Mortgage Loans only one original or
certified copy of any document or instrument described in the definition of
"Mortgage File" which pertains to all of the Crossed Mortgage Loans in such
group of Crossed Mortgage Loans, the inclusion of the original or certified copy
of such document or instrument in the Mortgage File for any of such Crossed
Mortgage Loans and the inclusion of a copy of such original or certified copy in
each of the Mortgage Files for the other Crossed Mortgage Loans in such group of
Crossed Mortgage Loans shall be deemed the inclusion of such original or
certified copy in the Mortgage Files for each such Crossed Mortgage Loan.
Section 2.02 Acceptance of Mortgage Assets by Trustee
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it, subject to the provisions of Sections 2.01 and
2.02(c), to any exceptions noted on the Trustee Exception Report, and to the
further review provided for in Section 2.02(b), of the Notes, fully executed
original counterparts of the Mortgage Loan Purchase Agreements and of all other
assets included in the Trust Fund, in good faith and without notice of any
adverse claim, and declares that it holds and will hold such documents and any
other documents delivered or caused to be delivered by the Mortgage Loan Sellers
constituting the Mortgage Files, and that it holds and will hold such other
assets included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders; provided that to the extent that a
Mortgage File relates to an A Loan, the Trustee shall also hold such Mortgage
File in the trust on behalf of the related B Loan Holders; provided, further,
that the Trustee or any Custodian appointed by the Trustee pursuant to Section
8.12 shall hold any Letter of Credit in a custodial capacity only and shall have
no obligation to maintain, extend the term of, enforce or otherwise pursue any
rights under such Letter of Credit which obligation the Master Servicer hereby
undertakes.
In connection with the foregoing, the Trustee hereby certifies to
each of the other parties hereto and the Mortgage Loan Sellers that, as to each
Original Mortgage Loan, except as to any LOC Cash Reserve and except as
specifically identified in the Schedule of Exceptions to Mortgage File Delivery
attached hereto as Exhibit B-2, (i) the Specially Designated Mortgage Loan
Documents and all Mortgage Note allonges are in its possession or the possession
of a Custodian on its behalf, and (ii) such Specially Designated Mortgage Loan
Documents, and all Mortgage Note allonges, 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 Borrower), (B) appear to have been executed and (C) purport to
relate to such Mortgage Loan; provided that with respect to any Letters of
Credit, the Trustee's certification shall be based upon copies of the Letters of
Credit (including related amendment, assignment and transfer documents)
delivered to the Trustee or its Custodian. To the extent that the contents of
the Mortgage File for any A Loan relate to the corresponding B Loan, the Trustee
will also hold such Mortgage File in trust for the benefit of the holder of the
related B Loan.
(b) On or about the 90th day following the Closing Date (and, if any
exceptions are noted or if the recordation/filing contemplated by Section
2.01(e) has not been completed (based solely on receipt by the Trustee of the
particular documents showing evidence of the recordation/filing), every 90 days
thereafter until the earliest of (i) the date on which such exceptions are
eliminated and such recordation/filing has been completed, and (ii) the date on
which all the affected Mortgage Loans are removed from the Trust Fund), the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to each Original Mortgage Loan, and the Trustee
shall, subject to Sections 1.04, 2.02(c) and 2.02(d), certify in writing
(substantially in the form of Exhibit B-3) to each of the other parties hereto,
the Mortgage Loan Sellers and the Controlling Class Representative that, as to
each Original Mortgage Loan then subject to this Agreement (except as to any LOC
Cash Reserve and except as specifically identified in any exception report
annexed to such certification): (i) the original Mortgage Note specified in
clause (i) of the definition of "Mortgage File" and all allonges thereto, if any
(or a copy of such Mortgage Note, together with a lost note affidavit certifying
that the original of such Mortgage Note has been lost), the original or copy of
documents specified in clauses (ii) through (v), (vii), (ix), (xi), (xii), (xv),
(xvi), (xvii) and (xix) of the definition of "Mortgage File" and, in the case of
a hospitality property, the documents specified in clause (viii) of the
definition of "Mortgage File" (without regard to the parenthetical), and any
other Specially Designated Mortgage Loan Documents, have been received by it or
a Custodian on its behalf; (ii) if such report is due more than 180 days after
the Closing Date, the recordation/filing contemplated by Section 2.01(d) has
been completed (based solely on receipt by the Trustee of the particular
recorded/filed documents or an appropriate receipt of recording/filing
therefor); (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 Borrower),
(B) appear to have been executed and (C) purport to relate to such Mortgage
Loan. Further, with respect to the documents described in clause (viii) of the
definition of "Mortgage File," the Trustee may assume, for purposes of the
certification delivered pursuant to this Section 2.02(b), that the related
Mortgage File should include one state level UCC Financing Statement filing in
the state of incorporation of the related Borrower for each Mortgaged Property,
or, with respect to any Mortgage Loan that has two or more Borrowers, one state
level UCC Financing Statement filing in the state of incorporation of each such
Borrower. The Trustee shall, upon request, provide the Master Servicer with
recording and filing information as to recorded Mortgages, Assignments of Lease
and UCC Financing Statements to the extent that the Trustee receives them from
the related recording offices.
If a Mortgage Loan Seller or the Column Performance Guarantor
substitutes a Replacement Mortgage Loan for any Defective Mortgage Loan as
contemplated by Section 2.03, the Trustee or a Custodian on its behalf shall
review the documents delivered to it or such Custodian with respect to such
Replacement Mortgage Loan, and the Trustee shall deliver a certification
comparable to that described in the prior paragraph, in respect of such
Replacement Mortgage Loan, on or about the 30th day following the related date
of substitution (and, if any exceptions are noted, every 90 days thereafter
until the earliest of (i) the date on which such exceptions are eliminated and
all related recording/filing has been completed, and (ii) the date on which such
Replacement Mortgage Loan is removed from the Trust Fund).
(c) It is herein acknowledged that the Trustee is not under any duty
or obligation (A) to determine whether any of the documents specified in clauses
(vi), (x), (xiii), (xiv), (xvi), (xvii) and (xviii) of the definition of
"Mortgage File" and all documents specified on the Mortgage Loan checklist
referred to in clause (xix) of the definition of "Mortgage File" exist or are
required to be delivered by the Depositor, the Mortgage Loan Seller or any other
Person other than to the extent identified on the related Mortgage Loan
Schedule, or (B) 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, in
recordable form, genuine, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. To the extent the Trustee has actual knowledge or is notified of any
fixture or real property UCC Financing Statements, the Trustee shall file an
assignment to the Trust with respect to such UCC Financing Statements in the
appropriate jurisdiction under the UCC at the expense of the Mortgage Loan
Seller.
(d) If, in the process of reviewing the Mortgage Files or at any
time thereafter, the Trustee finds that a Defect exists with respect to any
Mortgage File, the Trustee shall promptly so notify the Depositor, the Master
Servicer, the Special Servicer and the Mortgage Loan Seller (and, solely with
respect to any A/B Loan Pair, the related B Loan Holder(s), as applicable), by
providing a written report (the "Trustee Exception Report") setting forth for
each affected Mortgage Loan, with particularity, the nature of such Defect. The
Trustee shall not be required to verify the conformity of any document with the
Mortgage Loan Schedule, except that such documents have been properly executed
or received, have been recorded or filed (if recordation is specified for such
document in the definition of "Mortgage File"), appear to be related to the
Mortgage Loans identified on the Mortgage Loan Schedule, appear to be what they
purport to be, or have not been torn, mutilated or otherwise defaced.
Section 2.03 Certain Repurchases and Substitutions of Mortgage
Loans by the Mortgage Loan Sellers and the
Column Performance Guarantor; the Purchase
Price Security Deposit Account and the Special
Reserve Account
(a) If any party hereto discovers, or receives notice from a
non-party, that a Document Defect or Breach exists with respect to any Mortgage
Loan, then such party shall give prompt written notice thereof to the other
parties hereto, including (unless it is the party that discovered the Document
Defect or Breach) the Trustee. Upon the Trustee's discovery or receipt of notice
that a Document Defect or Breach exists with respect to any Mortgage Loan, the
Trustee shall notify the Controlling Class Representative, the Depositor, the
related Mortgage Loan Seller and the Column Performance Guarantor (if a Column
Mortgage Loan is involved).
If necessary, the Trustee shall request each Mortgage Loan Seller to
comply with the second paragraph of Section 2(c) of the related Mortgage Loan
Purchase Agreement with respect to any Document Defect or other deficiency in a
Mortgage File relating to an Original Mortgage Loan transferred by such Mortgage
Loan Seller to the Depositor. If the Trustee becomes aware of any failure on the
part of any Mortgage Loan Seller to do so, the Trustee shall promptly notify the
Master Servicer and the Special Servicer.
(b) Promptly upon its becoming aware of any Material Document Defect
or Material Breach with respect to any Mortgage Loan, the Master Servicer shall
(and the Special Servicer may) notify the related Mortgage Loan Seller and, if
the affected Mortgage Loan is a Column Mortgage Loan, the Column Performance
Guarantor, in writing of such Material Document Defect or Material Breach, as
the case may be, and direct the related Mortgage Loan Seller and, if the
affected Mortgage Loan is a Column Mortgage Loan, the Column Performance
Guarantor, that it or they, as the case may be, must, not later than 90 days
(or, in the case of a Material Document Defect that consists of the failure to
deliver a Specially Designated Mortgage Loan Document with respect to any
Mortgage Loan, 15 days) from the receipt by the related Mortgage Loan Seller
and, if the affected Mortgage Loan is a Column Mortgage Loan, the Column
Performance Guarantor, of such notice (or any earlier discovery by the related
Mortgage Loan Seller of the subject Material Document Defect or Material Breach,
as the case may be) (such 90-day (or, if applicable, 15-day) period, the
"Initial Resolution Period"), correct or cure such Material Document Defect or
Material Breach, as the case may be, in all material respects or, subject to the
next paragraph and Section 2.03(d) below, repurchase the affected Mortgage Loan
(as, if and to the extent required by the related Mortgage Loan Purchase
Agreement or the Column Performance Guarantee, as applicable), at the applicable
Purchase Price; provided that if the related Mortgage Loan Seller or,
alternatively, if the affected Mortgage Loan is a Column Mortgage Loan, the
Column Performance Guarantor, certifies to the Trustee in writing (i) that such
Material Document Defect or Material Breach, as the case may be, does not relate
to whether the affected Mortgage Loan is or, as of the Closing Date, was a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, (ii)
that such Material Document Defect or Material Breach, as the case may be, is
capable of being cured but not within the applicable Initial Resolution Period,
(iii) that the related Mortgage Loan Seller or, alternatively, if the affected
Mortgage Loan is a Column Mortgage Loan, the Column Performance Guarantor, has
commenced and is diligently proceeding with the cure of such Material Document
Defect or Material Breach, as the case may be, within the applicable Initial
Resolution Period, (iv) what actions the related Mortgage Loan Seller or,
alternatively, if the affected Mortgage Loan is a Column Mortgage Loan, the
Column Performance Guarantor, is pursuing in connection with the cure of such
Material Document Defect or Material Breach, as the case may be, and (v) that
the related Mortgage Loan Seller or, alternatively, if the affected Mortgage
Loan is a Column Mortgage Loan, the Column Performance Guarantor, anticipates
that such Material Document Defect or Material Breach, as the case may be, will
be cured within an additional period equal to any such applicable Resolution
Extension Period (a copy of which certification shall be delivered by the
Trustee to the Master Servicer, the Special Servicer and the Controlling Class
Representative), then the related Mortgage Loan Seller and, if the affected
Mortgage Loan is a Column Mortgage Loan, the Column Performance Guarantor, shall
have an additional period equal to any such applicable Resolution Extension
Period to complete such correction or cure (or, upon failure to complete such
correction or cure, to repurchase the affected Mortgage Loan); and provided,
further, that, in lieu of effecting any such repurchase (but, in any event, no
later than such repurchase would have to have been completed), the related
Mortgage Loan Seller and, if the affected Mortgage Loan is a Column Mortgage
Loan, the Column Performance Guarantor, shall be permitted, during the
three-month period following the Closing Date (or during the two-year period
following the Closing Date if the affected Mortgage Loan is a "defective
obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the Code and
Treasury Regulations Section 1.860G-2(f)), to replace the affected Mortgage Loan
with one or more Qualifying Substitute Mortgage Loans and to pay a cash amount
equal to the applicable Substitution Shortfall Amount, subject to any other
applicable terms and conditions of the related Mortgage Loan Purchase Agreement
or the Column Performance Guarantee, as applicable, and this Agreement. If any
Mortgage Loan is to be repurchased or replaced as contemplated by this Section
2.03, the Master Servicer shall designate the Collection Account as the account
to which funds in the amount of the applicable Purchase Price or Substitution
Shortfall Amount (as the case may be) are to be wired, and such Master Servicer
shall promptly notify the Trustee when such deposit is made. Any such repurchase
or replacement of a Mortgage Loan shall be on a whole loan, servicing released
basis.
Notwithstanding the foregoing, if there exists a Breach of any
representation or warranty on the part of a Mortgage Loan Seller set forth in,
or made pursuant to, Section 4(b) or 4(d) of the related Mortgage Loan Purchase
Agreement that the Mortgage Loan Documents or any particular Mortgage Loan
Document requires the related Borrower to bear the costs and expenses associated
with any particular action or matter under such Mortgage Loan Document(s), then
the Master Servicer shall (and the Special Servicer may) direct the related
Mortgage Loan Seller in writing to wire transfer to the Collection Account,
within 90 days of such Mortgage Loan Seller's receipt of such direction, the
amount of any such costs and expenses borne by the Trust that are the basis of
such Breach and have not been reimbursed by the related Borrower; provided,
however, that in the event any such costs and expenses exceed $10,000, the
related Mortgage Loan Seller shall have the option to repurchase such Mortgage
Loan at the applicable Purchase Price, substitute for such Mortgage Loan
(subject to the criteria for substitution) and pay the applicable Substitution
Shortfall Amount or pay such costs and expenses. Except as provided in the
proviso to the immediately preceding sentence, the related Mortgage Loan Seller
shall remit the amount of such costs and expenses and upon its making such
deposit, the related Mortgage Loan Seller shall be deemed to have cured such
Breach in all respects. Provided such payment is made, this paragraph describes
the sole remedy available to the Certificateholders and the Trustee on their
behalf regarding any such Breach, regardless of whether it constitutes a
Material Breach, and neither the related Mortgage Loan Seller nor, if the
affected Mortgage Loan is a Column Mortgage Loan, the Column Performance
Guarantor, shall be obligated to repurchase or otherwise cure such Breach under
any circumstances. Amounts deposited in the Collection Account pursuant to this
paragraph shall constitute "Liquidation Proceeds" for all purposes of this
Agreement (other than Section 3.11(c)).
"Resolution Extension Period" shall mean:
(i) for purposes of remediating a Material Breach with respect to
any Mortgage Loan, 90 days;
(ii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is and remains a Performing Mortgage
Loan throughout the applicable Initial Resolution Period, the period
commencing at the end of the applicable Initial Resolution Period and
ending on, and including, the earlier of (A) the 90th day following the
end of such Initial Resolution Period and (B) the 45th day following the
related Mortgage Loan Seller's receipt of written notice from the Trustee,
the Master Servicer or the Special Servicer of the occurrence of any
Servicing Transfer Event with respect to such Mortgage Loan subsequent to
the end of such Initial Resolution Period;
(iii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Performing Mortgage Loan as of the
commencement of the applicable Initial Resolution Period, but as to which
a Servicing Transfer Event occurs during such Initial Resolution Period,
the period commencing at the end of the applicable Initial Resolution
Period and ending on, and including, the 90th day following the earlier of
(A) the end of such Initial Resolution Period and (B) the related Mortgage
Loan Seller's receipt of written notice from the Trustee, the Master
Servicer or the Special Servicer of the occurrence of such Servicing
Transfer Event; and
(iv) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Specially Serviced Mortgage Loan as
of the commencement of the applicable Initial Resolution Period, zero
(-0-) days, except that, if the related Mortgage Loan Seller did not
receive written notice from the Trustee, the Master Servicer or the
Special Servicer of the relevant Servicing Transfer Event as of the
commencement of the applicable Initial Resolution Period, then such
Servicing Transfer Event will be deemed to have occurred during such
Initial Resolution Period and clause (iii) of this definition will be
deemed to apply;
provided that, except as otherwise set forth in the following two provisos,
there shall be no Resolution Extension Period in respect of a Material Document
Defect involving a Specially Designated Mortgage Loan Document for any Mortgage
Loan; and provided, further, that if a Material Document Defect exists with
respect to any Mortgage Loan, and if the related Mortgage Loan Seller or the
Column Performance Guarantor, as the case may be, escrows with the Master
Servicer, prior to the end of the Initial Resolution Period and any Resolution
Extension Period otherwise applicable to the remediation of such Material
Document Defect without regard to this proviso, cash in the amount of the then
Purchase Price for such Mortgage Loan and subsequently delivers to the Master
Servicer, on a monthly basis, such additional cash as may be necessary to
maintain a total escrow equal to the Purchase Price for such Mortgage Loan as
such amount may increase over time (the total amount of cash delivered to the
Master Servicer with respect to any Mortgage Loan as contemplated by this
proviso or the immediately following proviso, the "Purchase Price Security
Deposit"), then the Resolution Extension Period applicable to the remediation of
such Material Document Defect shall be extended until the earliest of (i) the
second anniversary of the Closing Date, (ii) the date on which such Mortgage
Loan is no longer outstanding and part of the Trust Fund and (iii) if such
Mortgage Loan becomes a Specially Serviced Mortgage Loan, and if the Special
Servicer determines in its reasonable judgment that such Material Document
Defect will materially interfere with or delay the realization against the
related Mortgaged Property or materially increase the cost thereof, the 30th day
following the related Mortgage Loan Seller's receipt of written notice from the
Special Servicer of the occurrence of the related Servicing Transfer Event and
of such determination; and provided, further, that if the Material Document
Defect referred to in the preceding proviso consists of a failure to deliver a
Specially Designated Mortgage Loan Document with respect to a Mortgage Loan, and
if the related Mortgage Loan Seller or the Column Performance Guarantor, as the
case may be, delivers to the Master Servicer a Purchase Price Security Deposit
equal to 25% of the outstanding principal balance of the subject Mortgage Loan,
then the Resolution Extension Period applicable to the remediation of such
Material Document Defect shall be extended to the 15th day following the end of
the applicable Initial Resolution Period.
The Master Servicer shall establish, and maintain any Purchase Price
Security Deposit delivered to it with respect to any Mortgage Loan in, one or
more accounts (individually and collectively, a "Purchase Price Security Deposit
Account"), each of which shall be an Eligible Account, and shall be entitled to
make withdrawals from the Purchase Price Security Deposit for any Mortgage Loan
maintained in such account(s) for the following purposes: (i) to cover any costs
and expenses resulting from the applicable Material Document Defect; (ii) upon
any discounted payoff or other liquidation of such Mortgage Loan, to cover any
Realized Loss related thereto; and (iii) if the related Mortgage Loan Seller
(or, if it is the party that delivered the subject Purchase Price Security
Deposit, the Column Performance Guarantor) so directs, or if the balance on
deposit in such Purchase Price Security Deposit Account declines, and for 45
days remains, below the Purchase Price for such Mortgage Loan (except where a
Purchase Price Security Deposit equal to 25% of the outstanding principal
balance of the subject Mortgage Loan is permitted to be delivered in order to
obtain a 15-day Resolution Extension Period with respect to the failure to
deliver a Specially Designated Mortgage Loan Document), or if such Material
Document Defect is not remedied on or before the second anniversary of the
Closing Date, or if such Mortgage Loan becomes a Specially Serviced Mortgage
Loan and the Special Servicer determines, in its reasonable judgment that such
Material Document Defect will materially interfere with or delay the realization
against the related Mortgaged Property or materially increase the cost thereof
and the related Mortgage Loan Seller has received 30 days' prior written notice
from the Special Servicer of the occurrence of the related Servicing Transfer
Event and of such determination, to apply the Purchase Price Security Deposit to
a full or partial, as applicable, payment of the Purchase Price for such
Mortgage Loan. Any amounts withdrawn by the Master Servicer from the Purchase
Price Security Deposit Account for any Mortgage Loan shall be deposited by the
Master Servicer into the Collection Account. Any withdrawals from a Purchase
Price Security Deposit Account shall be deemed to be "Liquidation Proceeds" for
the purposes of this Agreement (other than Section 3.11(c)). Any Purchase Price
Security Deposit Account, and any Purchase Price Security Deposit, shall (a) be
part of the Trust Fund but outside either Trust REMIC or the Grantor Trust Pool
and (b) be an "outside reserve fund" within the meaning of the REMIC Provisions,
beneficially owned by the related Mortgage Loan Seller or the Column Performance
Guarantor, as applicable, for federal income tax purposes, which shall be
taxable on all reinvestment income, if any, thereon. The investment of funds in
the Purchase Price Security Deposit Accounts shall be governed by the terms of
the respective Mortgage Loan Purchase Agreements. The related Mortgage Loan
Seller (or, if it is the party that delivered such amount, the Column
Performance Guarantor) may obtain a release of the Purchase Price Security
Deposit for any Mortgage Loan (net of any amounts payable therefrom as
contemplated by the first sentence of this paragraph) upon such Mortgage Loan's
being paid in full or otherwise satisfied, liquidated or removed from the Trust
Fund or upon the subject Material Document Defect's being remedied in all
material respects. Any such repurchase or replacement of a Mortgage Loan shall
be on a whole loan, servicing released basis.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased or replaced by a Mortgage Loan
Seller or the Column Performance Guarantor, as contemplated by this Section
2.03, then, prior to the subject repurchase or substitution, the Master Servicer
shall use its reasonable efforts, subject to the terms of the affected Mortgage
Loans, to prepare and, to the extent necessary and appropriate, have executed by
the related Borrower and record, such documentation as may be necessary to
terminate the cross-collateralization between the Mortgage Loans in such
Cross-Collateralized Group that are to be repurchased or replaced, on the one
hand, and the remaining Mortgage Loans therein, on the other hand, such that
those two groups of Mortgage Loans are each secured only by the Mortgaged
Properties identified in the Mortgage Loan Schedule as directly corresponding
thereto; provided that no such termination shall be effected unless and until
the related Mortgage Loan Seller or the Column Performance Guarantor, as
applicable, delivers to the Trustee and the Master Servicer (i) an Opinion of
Counsel addressed to the Trustee and the Master Servicer from Independent
counsel to the effect that such termination will not cause an Adverse REMIC
Event to occur with respect to the Upper-Tier REMIC or Lower-Tier REMIC or an
Adverse Grantor Trust Event with respect to the Grantor Trust Pool, (ii) written
confirmation from each Rating Agency that such termination will not cause an
Adverse Rating Event to occur with respect to any Class of Rated Certificates
and (iii) written consent from the Controlling Class Representative (which
consent may be given or withheld in its sole discretion); and provided, further,
that the related Mortgage Loan Seller or the Column Performance Guarantor, as
applicable, may, at its option, repurchase or replace the entire
Cross-Collateralized Group without termination of the cross-collateralization.
If any Mortgage Loan Seller or the Column Performance Guarantor repurchases one
or more (but not all) of the Mortgage Loans constituting a Cross-Collateralized
Group as contemplated in this paragraph, in addition to the satisfaction of the
delivery of the items set forth in the immediately preceding sentence, the
Crossed Mortgage Loan Repurchase Criteria shall have been satisfied. The Master
Servicer shall advance all costs and expenses incurred by the Trustee and the
Master Servicer with respect to any Cross-Collateralized Group pursuant to this
paragraph, and such advances shall (i) constitute and be reimbursable as
Servicing Advances and (ii) be included in the calculation of Purchase Price for
the Mortgage Loan(s) to be repurchased or replaced. Neither the Master Servicer
nor the Special Servicer shall be liable to any Certificateholder or any other
party hereto if the cross-collateralization of any Cross-Collateralized Group
cannot be terminated as contemplated by this paragraph for any reason beyond the
control of the Master Servicer or the Special Servicer, as the case may be.
If the cross-collateralization of any Cross-Collateralized Group of
Mortgage Loans cannot be terminated as contemplated by the prior paragraph for
any reason (including, but not limited to, the failure of the related Mortgage
Loan Seller or the Column Performance Guarantor, as the case may be, to satisfy
any of the conditions set forth in the first proviso to the first sentence of
the prior paragraph), and if the related Mortgage Loan Seller or the Column
Performance Guarantor, as the case may be, has not elected to purchase the
entire affected Cross-Collateralized Group, then the affected
Cross-Collateralized Group will be treated as a single Mortgage Loan for
purposes of (i) determining whether the subject Breach or Document Defect is a
Material Breach or a Material Document Defect, as the case may be, and (ii)
applying remedies, including repurchase and substitution.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan by a Mortgage Loan Seller or the Column Performance Guarantor, as
contemplated by this Section 2.03, the Master Servicer shall direct the party
effecting the substitution to deliver the related Mortgage File to the Trustee,
to certify that such substitute mortgage loan satisfies or such substitute
mortgage loans satisfy, as the case may be, all of the requirements of the
definition of "Qualifying Substitute Mortgage Loan" and to send such
certification to the Trustee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 2.03 if the Mortgage
Loan to be replaced was itself a Replacement Mortgage Loan, in which case,
absent a cure of the relevant Material Breach or Material Document Defect, the
affected Mortgage Loan will be required to be repurchased as contemplated
hereby. Monthly Payments due with respect to each Replacement Mortgage Loan (if
any) after the related date of substitution, and Monthly Payments due with
respect to each corresponding Deleted Mortgage Loan (if any) after the related
Due Date in March 2007 and received by the Master Servicer or the Special
Servicer on behalf of the Trust on or prior to the related date of substitution,
shall be part of the Trust Fund. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each corresponding
Deleted Mortgage Loan (if any) and received by the Master Servicer or the
Special Servicer on behalf of the Trust after the related date of substitution,
shall not be part of the Trust Fund and are to be remitted by the Master
Servicer to the party effecting the related substitution promptly following
receipt.
If any Mortgage Loan is to be repurchased or replaced by a Mortgage
Loan Seller or the Column Performance Guarantor, as contemplated by this Section
2.03, the Master Servicer shall direct such Mortgage Loan Seller or the Column
Performance Guarantor, as the case may be, to amend the Mortgage Loan Schedule
to reflect the removal of any Deleted Mortgage Loan and, if applicable, the
substitution of the related Replacement Mortgage Loan(s); and, upon its receipt
of such amended Mortgage Loan Schedule, the Master Servicer shall deliver or
cause the delivery of such amended Mortgage Loan Schedule to the other parties
hereto. Upon any substitution of one or more Replacement Mortgage Loans for a
Deleted Mortgage Loan, such Replacement Mortgage Loan(s) shall become part of
the Trust Fund and be subject to the terms of this Agreement in all respects.
The reasonable "out-of-pocket" costs and expenses incurred by the
Master Servicer, the Special Servicer and/or the Trustee pursuant to this
Section 2.03(b), including reasonable attorney fees and expenses, shall
constitute Servicing Advances to the extent not collected from the related
Mortgage Loan Seller or the Column Performance Guarantor or reimbursed from a
Purchase Price Security Deposit Account or a Special Reserve Account or under a
Recording Omission Credit or directly from the Collection Account.
(c) Upon receipt of two copies of a Request for Release signed by a
Servicing Officer from the Master Servicer to the effect that the full amount of
the Purchase Price or Substitution Shortfall Amount (as the case may be) for any
Mortgage Loan repurchased or replaced by the related Mortgage Loan Seller or the
Column Performance Guarantor, as contemplated by this Section 2.03, has been
deposited in the Collection Account, and further, if applicable, upon receipt of
the Mortgage File for each Replacement Mortgage Loan (if any) to be substituted
for a Deleted Mortgage Loan, together with any certifications and/or opinions
required pursuant to Section 2.03(b) to be delivered by the party effecting the
repurchase/substitution, the Trustee shall (i) release or cause the release of
the Mortgage File and any Additional Collateral held by or on behalf of the
Trustee for the Deleted Mortgage Loan to the party effecting the
repurchase/substitution or its designee and (ii) execute and deliver such
endorsements and instruments of release, transfer and/or assignment, in each
case without recourse, as shall be provided to it and are reasonably necessary
to vest in the party effecting the repurchase/substitution or its designee the
legal and beneficial ownership of the Deleted Mortgage Loan (including any
property acquired in respect thereof or proceeds of any insurance policy with
respect thereto) and the related Mortgage Loan Documents, and the Master
Servicer shall notify the affected Borrowers of the transfers of the Deleted
Mortgage Loan(s) and any Replacement Mortgage Loan(s). In connection with any
such repurchase or substitution by the related Mortgage Loan Seller or the
Column Performance Guarantor, each of the Master Servicer and the Special
Servicer shall deliver to the party effecting the repurchase/substitution or its
designee any portion of the related Servicing File, together with any Escrow
Payments, Reserve Funds and Additional Collateral, held by or on behalf of the
Master Servicer or the Special Servicer, as the case may be, with respect to the
Deleted Mortgage Loan, in each case at the expense of the party effecting the
repurchase/substitution. The Master Servicer shall notify the related B Loan
Holder of any repurchase regarding an A Loan. The reasonable "out-of-pocket"
costs and expenses, including reasonable attorneys' fees and expenses, incurred
by the Master Servicer, the Special Servicer and/or the Trustee pursuant to this
Section 2.03(c), to the extent not collected from the related Mortgage Loan
Seller or the Column Performance Guarantor or reimbursed from a Purchase Price
Security Deposit Account or a Special Reserve Account or under a Recording
Omission Credit, shall be reimbursable to each of them as Servicing Advances in
respect of the affected Mortgage Loan.
(d) If, on or after September 30, 2008, any Mortgage Loan Seller or
the Column Performance Guarantor receives notice of a Material Document Defect
with respect to any of its Mortgage Loans, which Material Document Defect
constitutes a Recording Omission, then such Mortgage Loan Seller or the Column
Performance Guarantor, as the case may be, may, with the written consent of the
Controlling Class Representative, which consent may be granted or withheld in
its sole discretion, and written confirmation from each Rating Agency that the
following arrangement will not result in an Adverse Rating Event with respect to
any Class of Rated Certificates, in lieu of repurchasing or replacing such
Mortgage Loan (as and to the extent contemplated by Section 2.03(b) above), but
in no event later than such repurchase would have to have been completed,
establish a Recording Omission Credit or a Recording Omission Reserve with the
Master Servicer; provided that if such Mortgage Loan Seller or the Column
Performance Guarantor, as the case may be, has already established a Purchase
Price Security Deposit with respect to such Mortgage Loan in accordance with
Section 2.03(b) due to a Material Document Defect, which constitutes a Recording
Omission, the outstanding balance of such Purchase Price Security Deposit (when,
if applicable, combined with an additional amount being tendered by such
Mortgage Loan Seller or the Column Performance Guarantor) is not less than the
amount of the required Recording Omission Reserve and the establishment of a
Recording Omission Reserve will not result in an Adverse Rating event with
respect to any Class of Rated Certificates, then the existing Purchase Price
Security Deposit (when, if applicable, combined with an additional amount being
tendered by such Mortgage Loan Seller or the Column Performance Guarantor) shall
constitute the establishment of a Recording Omission Reserve with respect to
such Mortgage Loan for purposes of this Section 2.03(d). In furtherance of the
preceding sentence, (A) the Master Servicer shall establish one or more accounts
(collectively, the "Special Reserve Account") with respect to the subject
Mortgage Loan, each of which shall be an Eligible Account; (B) the Master
Servicer shall deposit any Recording Omission Reserve into the Special Reserve
Account within one Business Day after receipt; and (C) the Master Servicer shall
administer the Special Reserve Account in accordance with the terms of the
related Mortgage Loan Purchase Agreement. In the event that such Master Servicer
is entitled to apply any related Recording Omission Reserve or to draw upon any
related Recording Omission Credit to cover losses or expenses directly incurred
by the Trust as a result of a Recording Omission with respect to any Mortgage
Loan, then prior to making a Servicing Advance or incurring an Additional Trust
Fund Expense to cover any losses or expenses directly resulting from such
Recording Omission, such Master Servicer shall draw upon such related Recording
Omission Reserve (out of the Special Reserve Account) or upon such related
Recording Omission Credit, as the case may be, up to the amount of such losses
or expenses, and shall deposit the funds from such draw into the Collection
Account, and such amounts shall be deemed to be "Liquidation Proceeds" for all
purposes of this Agreement (other than Section 3.11(c)) and shall be applied to
cover such losses or expenses. The Recording Omission Reserve or Recording
Omission Credit (or any unused balance thereof) delivered by any Mortgage Loan
Seller or the Column Performance Guarantor with respect to any Mortgage Loan
shall be released to such Mortgage Loan Seller or the Column Performance
Guarantor, as the case may be, by the Master Servicer upon the earlier of (i)
the curing of all Recording Omissions with respect to such Mortgage Loan and
(ii) the removal of such Mortgage Loan from the Trust Fund. The Special Reserve
Account, and any Recording Omission Reserves and Recording Omission Credits,
shall (a) be part of the Trust Fund but outside either Trust REMIC or the
Grantor Trust Pool and (b) be an "outside reserve fund" within the meaning of
the REMIC Provisions, beneficially owned by the related Mortgage Loan Seller or
the Column Performance Guarantor, as applicable, for federal income tax
purposes, which shall be taxable on all reinvestment income, if any, thereon.
The investment of funds in the Special Reserve Account shall be governed by the
terms of the respective Mortgage Loan Purchase Agreements.
(e) If the Mortgage Loan Seller disputes that a Material Document
Defect or Material Breach exists with respect to a Mortgage Loan or otherwise
refuses (i) to effect a correction or cure of such Material Document Defect or
Material Breach, (ii) to repurchase the affected Mortgage Loan from the Trust or
(iii) to replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan,
each in accordance with the related Mortgage Loan Purchase Agreement, then
provided that (i) at least the applicable Initial Resolution Period has expired
and (ii) the Mortgage Loan is then in default and is then a Specially Serviced
Mortgage Loan, the Special Servicer may, subject to the Servicing Standard,
modify, work-out or foreclose, sell or otherwise liquidate (or permit the
liquidation of) the Mortgage Loan pursuant to the terms of this Agreement, while
pursuing the repurchase claim, and such action shall not be a defense to the
repurchase claim or alter the applicable Purchase Price (it being understood and
agreed that the foregoing is not intended to otherwise delay the actions of the
Special Servicer with respect to a Specially Serviced Mortgage Loan).
The related Mortgage Loan Seller shall be notified promptly and in
writing by the Special Servicer of any offer that it receives to purchase an REO
Property as to which there is any alleged Material Document Defect or Material
Breach. Upon the receipt of such notice by the related Mortgage Loan Seller, the
related Mortgage Loan Seller shall then have the right to repurchase such REO
Property from the Trust at a purchase price equal to the amount of such offer.
The related Mortgage Loan Seller shall have three (3) Business Days to purchase
such REO Property from the date that it was notified of such offer. The Special
Servicer shall be obligated to provide the related Mortgage Loan Seller with the
most recent appraisal or other third-party reports relating to such REO Property
within its possession to enable the related Mortgage Loan Seller to evaluate
such REO Property. Any sale of a Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of an REO Property, to a Person other than the related
Mortgage Loan Seller shall be (i) without recourse of any kind (either expressed
or implied) by such Person against the related Mortgage Loan Seller or, if
applicable, the Column Performance Guarantor and (ii) without representation or
warranty of any kind (either expressed or implied) by the related Mortgage Loan
Seller or, if applicable, the Column Performance Guarantor to or for the benefit
of such person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the subject Mortgage Loan or REO Property) shall not prejudice any claim against
the related Mortgage Loan Seller for repurchase of the subject Mortgage Loan or
REO Property. The provisions of this Section 2.03 regarding remedies against the
related Mortgage Loan Seller for a Material Breach or Material Document Defect
with respect to any Mortgage Loan shall also apply to the related REO Property.
If the related Mortgage Loan Seller fails to correct or cure the
Material Document Defect or Material Breach or purchase the REO Property, then
the provisions above regarding notice of offers related to such REO Property and
the related Mortgage Loan Seller's right to purchase such REO Property shall
apply. If a court of competent jurisdiction issues a final order that the
related Mortgage Loan Seller is or was obligated to repurchase the related
Mortgage Loan or REO Property or the related Mortgage Loan Seller otherwise
accepts liability, then, after the expiration of any applicable appeal period,
but in no event later than the termination of the Trust pursuant to this
Agreement, the related Mortgage Loan Seller will be obligated to pay to the
Trust the amount, if any, by which the applicable Purchase Price exceeds any
Liquidation Proceeds received upon such liquidation (including those arising
from any sale to the related Mortgage Loan Seller); provided that the prevailing
party in such action shall be entitled to recover all costs, fees and expenses
(including reasonable attorneys' fees) related thereto.
(f) The related Mortgage Loan Purchase Agreement and, in the case of
Column Mortgage Loans, the Column Performance Guarantee, provide the sole
remedies available to the Certificateholders, or the Trustee on their behalf,
respecting any Breach or Document Defect. If, in connection with any unremedied
Material Breach or Material Document Defect, a Mortgage Loan Seller (or, in the
case of a Column Mortgage Loan, each of Column and the Column Performance
Guarantor) defaults on its obligations to repurchase or replace, to post cash or
a letter of credit with respect to, or to reimburse the Trust for certain costs
and expenses relating to, any Mortgage Loan as contemplated by this Section
2.03, the Master Servicer shall (and the Special Servicer may) promptly notify
the Trustee, and the Trustee shall notify the Certificateholders and the Swap
Counterparty. Thereafter, the Master Servicer shall (and the Special Servicer
may) take such actions on behalf of the Trust with respect to the enforcement of
such repurchase/substitution obligations (and if the Master Servicer (or the
Special Servicer) is notified or otherwise becomes aware of a default on the
part of any Mortgage Loan Seller in respect of its obligations under the second
paragraph of Section 2(c) of the related Mortgage Loan Purchase Agreement, the
Master Servicer shall (and the Special Servicer may) also take such actions on
behalf of the Trust with respect to the enforcement of such obligations of such
Mortgage Loan Seller), including the institution and prosecution of appropriate
legal proceedings, as the Master Servicer (or, if applicable, the Special
Servicer) shall determine are in the best interests of the Certificateholders
(taken as a collective whole). Any and all reasonable "out-of-pocket" costs and
expenses incurred by the Master Servicer, the Special Servicer and/or the
Trustee pursuant to this Section 2.03(f), including, reasonable attorney's fees
and expenses, to the extent not collected from the related Mortgage Loan Seller
or the Column Performance Guarantor or reimbursed from a Purchase Price Security
Deposit Account or a Special Reserve Account or under a Recording Omission
Credit, shall constitute Servicing Advances in respect of the affected Mortgage
Loan.
(g) If the applicable Mortgage Loan Seller or the Column Performance
Guarantor (in the case of a Column Mortgage Loan), incurs any expense in
connection with the curing of any Breach which also constitutes a default under
the related Mortgage Loan, such Mortgage Loan Seller or the Column Performance
Guarantor, as the case may be, shall have a right, and shall be subrogated to
the rights of the Trustee, as the holder of such Mortgage Loan, to recover the
amount of such expenses from the related Borrower; provided, however, that the
rights of such Mortgage Loan Seller or the Column Performance Guarantor, as the
case may be, pursuant to this Section 2.03(g) shall be junior, subject and
subordinate to the rights of the Trust Fund, the Master Servicer and the Special
Servicer to recover amounts owed by the related Borrower under the terms of such
Mortgage Loan, including, without limitation, the rights to recover unreimbursed
Advances, accrued and unpaid interest on Advances at the Reimbursement Rate and
unpaid or unreimbursed expenses of the Trust Fund, the Master Servicer or the
Special Servicer allocable to such Mortgage Loan; provided, further, that if and
to the extent that such expenses of such Mortgage Loan Seller or the Column
Performance Guarantor, as the case may be, in connection with such Mortgage Loan
exceed 5% of the then outstanding principal balance of such Mortgage Loan, then
its rights to reimbursement pursuant to this Section 2.03(g) with respect to
such Mortgage Loan and such excess expenses shall not be exercised until the
payment in full of such Mortgage Loan (as such Mortgage Loan may be amended or
modified pursuant to the terms of this Agreement). Notwithstanding any other
provision of this Agreement to the contrary, the Master Servicer or, with
respect to a Specially Serviced Mortgage Loan, the Special Servicer, shall not
have any obligation pursuant to this Agreement to collect such reimbursable
amounts on behalf of such Mortgage Loan Seller or the Column Performance
Guarantor, as the case may be; provided, however, that the preceding clause
shall not operate to prevent the Master Servicer or, with respect to a Specially
Serviced Mortgage Loan, the Special Servicer, from using reasonable efforts,
exercised in its sole discretion, to collect such amounts to the extent
consistent with the Servicing Standard, so long as the Master Servicer or, with
respect to a Specially Serviced Mortgage Loan, the Special Servicer determines
in the exercise of its sole discretion consistent with the Servicing Standard
that its actions to collect such amounts will not impair the Master Servicer's
and/or the Special Servicer's collection and recovery of principal, interest and
other sums due with respect to the related Mortgage Loan and, if applicable, B
Loan, which would otherwise be payable to the Trust, the Master Servicer, the
Special Servicer, the Trustee or the Certificateholders and, if applicable, the
B Loan Holder, pursuant to the terms of this Agreement, provided, that in no
event will the failure of Borrower to pay such reimbursable amounts result in
the Borrower being called in default under the Mortgage Loan, either the Master
Servicer or the Special Servicer accelerating the Mortgage Loan or taking any
enforcement action beyond making demand for such reimbursable amount but,
provided, further, in the event of the Special Servicer otherwise commencing
enforcement action with respect to a default other than the Borrower's failure
to pay such reimbursable amounts, the Special Servicer may include such
reimbursable amounts in the amount sought from the Borrower in such enforcement
action but payment of any such reimbursable amounts shall be subordinate to the
payment of all other sums owed by the Borrower under the Mortgage Loan and
payable to the Trust, the Master Servicer, the Special Servicer or the Trustee.
Any amounts reimbursed to a Mortgage Loan Seller or the Column Performance
Guarantor from either Trust REMIC with respect to any amounts paid from the
Purchase Price Security Deposit Account, Special Reserve Account or any
Recording Omission Reserve or Recording Omission Credits shall be treated as
distributions from such Trust REMIC to such Mortgage Loan Seller or the Column
Performance Guarantor, as applicable, as beneficial owners of such Purchase
Price Security Deposit Account, Special Reserve Account, Recording Omission
Reserve or Recording Omission Credit, as applicable.
Section 2.04 Representations and Warranties of the Depositor
(a) The Depositor hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders, 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 Depositor's execution and delivery of, performance under,
and compliance with this Agreement, will not violate the Depositor's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which default
or breach, in the good faith and reasonable judgment of the Depositor, 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.
(iii) The Depositor has the full power and authority to own its
properties, to conduct its business as presently conducted by it and to
enter into and consummate all transactions involving the Depositor
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, receivership, 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, performance under and compliance with 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) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Depositor of the transactions contemplated herein,
except (A) for those consents, approvals, authorizations or orders that
previously have been obtained, (B) such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and sale of
the Certificates by the Underwriters, and (C) any recordation of the
assignments of Mortgage Loan Documents to the Trustee pursuant to Section
2.01(e), which has not yet been completed.
(vii) The Depositor's transfer of the Original 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.
(viii) The Depositor is not transferring the Original Mortgage Loans
to the Trustee with any intent to hinder, delay or defraud its present or
future creditors.
(ix) The Depositor has been solvent at all relevant times prior to,
and will not be rendered insolvent by, its transfer of the Original
Mortgage Loans to the Trustee, pursuant to Section 2.01(b).
(x) After giving effect to its transfer of the Original Mortgage
Loans to the Trustee, pursuant to Section 2.01(b), the value of the
Depositor's assets, either taken at their present fair saleable value or
at fair valuation, will exceed the amount of the Depositor's debts and
obligations, including contingent and unliquidated debts and obligations
of the Depositor, and the Depositor will not be left with unreasonably
small assets or capital with which to engage in and conduct its business.
(xi) 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.
(xii) No proceedings looking toward merger, liquidation, dissolution
or bankruptcy of the Depositor are pending or contemplated.
(xiii) 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.
(xiv) Immediately prior to the transfer of the Original Mortgage
Loans to the Trustee for the benefit of the Certificateholders pursuant to
this Agreement, the Depositor had such right, title and interest in and to
each Original Mortgage Loan as was transferred to it by the related
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase
Agreement. The Depositor has not transferred any of its right, title and
interest in and to the Original Mortgage Loans to any Person other than
the Trustee.
(xv) The Depositor is transferring all of its right, title and
interest in and to the Original Mortgage Loans to the Trustee for the
benefit of the Certificateholders free and clear of any and all liens,
pledges, charges, security interests and other encumbrances created by or
through the Depositor.
(xvi) Except for any actions that are the express responsibility of
another party hereunder or under any Mortgage Loan Purchase Agreement, 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 all of
its right, title and interest in and to the Original Mortgage Loans by the
Depositor to the Trustee.
(b) The representations and warranties of the Depositor set forth in
Section 2.04(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any party hereto of
any breach of any of such representations and warranties that materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall give prompt written notice thereof to
the other parties hereto.
Section 2.05 Representations and Warranties of the Master Servicer
(a) The Master Servicer hereby represents and warrants to each of
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Master Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of California,
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 ensure
the enforceability of each Mortgage Loan and to perform its obligations
under this Agreement.
(ii) The Master Servicer's execution and delivery of, performance
under and compliance with this Agreement, will not violate the Master
Servicer's organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
material instrument to which it is a party or by which it is bound, which
default or breach, in the reasonable judgment of the Master Servicer, 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.
(iii) The Master Servicer has the full corporate power and authority
to enter into and consummate all transactions involving the Master
Servicer 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, insolvency, reorganization, receivership,
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 Master Servicer is not in violation of, and its execution
and delivery of, performance under and compliance with 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 reasonable judgment, is likely to affect materially and
adversely either the ability of the Master Servicer to perform its
obligations under this Agreement or the financial condition of the Master
Servicer.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Master Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders
that previously have been obtained or where the lack of such consent,
approval, authorization or order would not have a material adverse effect
on the ability of the Master Servicer to perform its obligations under
this Agreement.
(vii) 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 reasonable judgment, would prohibit the
Master Servicer from entering into this Agreement or that, in the Master
Servicer's reasonable judgment, is likely to materially and adversely
affect either the ability of the Master Servicer to perform its
obligations under this Agreement or the financial condition of the Master
Servicer.
(viii) The Master Servicer has errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(d).
(ix) The Master Servicer has examined each of the Sub-Servicing
Agreements entered into by the Master Servicer that will be in effect as
of the Closing Date with respect to the Mortgage Loans, and each such
Sub-Servicing Agreement complies with the requirements of Section 3.22(a)
in all material respects.
(b) The representations and warranties of the Master Servicer set
forth in Section 2.05(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 remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of 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 2.05(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.05(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 2.06 Representations and Warranties of the Special Servicer
(a) The Special Servicer hereby represents and warrants to each of
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Special Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
the Special Servicer is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and to perform its obligations under
this Agreement.
(ii) The Special Servicer's execution and delivery of, performance
under and compliance with this Agreement will not violate the Special
Servicer's organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or by which it is bound, which default
or breach, in the reasonable judgment of the Special Servicer, 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.
(iii) The Special Servicer has the full corporate power and
authority to enter into and consummate all transactions involving the
Special Servicer 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, receivership,
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, performance under 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 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 consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Special Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders
that previously have been obtained or where the lack of such consent,
approval, authorization or order would not have a material adverse effect
on the ability of the Special Servicer to perform its obligations under
this Agreement.
(vii) 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 reasonable judgment, would prohibit
the Special Servicer from entering into this Agreement or that, in the
Special Servicer's reasonable judgment, is likely to materially and
adversely affect either the ability of the Special Servicer to perform its
obligations under this Agreement or the financial condition of the Special
Servicer.
(viii) The Special Servicer has errors and omissions insurance in
the amounts and with the coverage required by Section 3.07(d).
(ix) As of the Closing Date, the Special Servicer is not a party to
any Sub-Servicing Agreement providing for the performance of duties of the
Special Servicer by any Sub-Servicers with respect to any of the Mortgage
Loans or REO Properties.
(b) The representations and warranties of the Special Servicer set
forth in Section 2.06(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 remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Any successor Special Servicer shall be deemed to have made, as
of the date of its succession, each of the representations and warranties set
forth in Section 2.06(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.06(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 2.07 Reserved.
Section 2.08 Reserved.
Section 2.09 Representations, Warranties and Covenants of the
Trustee
The Trustee hereby represents and warrants to the Depositor, the
Master Servicer and the Special Servicer and for the benefit of the
Certificateholders and the B Loan Holders, 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;
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) 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 each of 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 the rights of creditors of
banks specifically 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 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 the ability of the
Trustee to perform its obligations under this Agreement;
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which 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 the
ability of the Trustee to perform its obligations under this Agreement;
and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has not been obtained or cannot be obtained prior to the actual
performance by the Trustee of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Trustee to perform its obligations hereunder.
(b) The representations, warranties and covenants of the Trustee set
forth in Section 2.09(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 remains in existence. Upon discovery by any
party hereto of a breach of any such representations, warranties and covenants
that materially and adversely affects the interests of the Certificateholders or
any party hereto, 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 2.09(a), subject to such appropriate modifications to the
representation, warranty and covenant set forth in Section 2.09(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 2.10 Issuance of Uncertificated Lower-Tier Interests;
Execution of Certificates
(a) The Trustee hereby acknowledges the assignment to it of the
Mortgage Loans and the delivery of the Mortgage Files and fully executed
original counterparts of the Mortgage Loan Purchase Agreements, together with
the assignment to it of all other assets included in the Trust Fund.
Concurrently with such assignment and delivery and in exchange therefor, the
Trustee acknowledges the issuance of the Uncertificated Lower-Tier Interests to
the Depositor and the Class LR and Class V Certificates to or upon the order of
the Depositor, in exchange for the Mortgage Loans, receipt of which is hereby
acknowledged, and immediately thereafter, the Trustee acknowledges that (A)
pursuant to the written request of the Depositor executed by an officer of the
Depositor, it has executed, authenticated and, upon the order of the Depositor,
shall deliver, (i) the Regular Certificates (other than the Class A-MFL
Certificates), the Class A-MFL Regular Interest and the Class R Certificates in
exchange for the Uncertificated Lower-Tier Interests and (ii) the Class V
Certificates in exchange for the right to receive Post-ARD Additional Interest
and (B) it has executed and caused the Certificate Registrar to authenticate and
to deliver to or upon the order of the Depositor, in exchange for the Class
A-MFL Regular Interest and the Swap Agreement, the Class A-MFL Certificates, and
the Depositor hereby acknowledges the receipt by it or its designees, of all
such Certificates.
Section 2.11 Acceptance of Grantor Trust by Trustee; Issuance of
the Class V and Class A-MFL Certificates
The parties intend that the portions of the Trust Fund consisting of
(i) Post-ARD Additional Interest and the Post-ARD Additional Interest
Distribution Account, beneficially owned by the Holders of the Class V
Certificates and (ii) the Class A-MFL Regular Interest, the Swap Agreement and
the Floating Rate Account, beneficially owned by the Holders of the Class A-MFL
Certificates (the "Grantor Trust Pool") shall constitute, and that the affairs
of such portions of the Trust Fund shall be conducted so as to qualify such
portions as, a "grantor trust" under subpart E, Part I of subchapter J of the
Code, and the provisions hereof shall be interpreted consistently with this
intention.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Mortgage Loans
(a) The Master Servicer shall be the Master Servicer with respect to
all the Trust Assets and, as such, subject to Section 3.21, shall service and
administer such of the Trust Assets as constitute Performing Mortgage Loans and
shall continue to collect such information and prepare such reports to the
Trustee, and shall render such other incidental services, as shall be required
of such Master Servicer hereunder with respect to such of the Trust Assets as
constitute Specially Serviced Mortgage Loans and REO Properties. The Special
Servicer shall be the Special Servicer with respect to all the Trust Assets and,
as such, subject to Section 3.21, shall service and administer such of the Trust
Assets as constitute Specially Serviced Mortgage Loans and REO Properties and
shall render such incidental services as are required of such Special Servicer
with respect to such of the Trust Assets as constitute Performing Mortgage
Loans.
(b) Capmark as Master Servicer shall service and administer the
Mortgage Loans and any REO Properties that it is obligated to service and
administer pursuant to this Agreement in accordance with the Servicing
Standard-Capmark and the REMIC Provisions. The Special Servicer and any
successor Master Servicer shall service and administer the Mortgage Loans and
any REO Properties that it is obligated to service and administer pursuant to
this Agreement, for the benefit of the Certificateholders (as a collective
whole), in accordance with: (i) any and all applicable laws; (ii) the express
terms of this Agreement and the respective Mortgage Loan Documents (and, in the
case of each A/B Loan Pair, the related A/B Intercreditor Agreement); and (iii)
the REMIC Provisions and, to the extent consistent with the foregoing, the
Servicing Standard-General. Subject to the foregoing, the Master Servicer and
Special Servicer shall each have full power and authority, acting alone or
through Sub-Servicers, to do or cause to be done any and all things in
connection with such servicing and administration which it may deem necessary or
desirable. Without limiting the generality of the foregoing, the Master Servicer
(with respect to those Performing Mortgage Loans that it is obligated to service
and administer pursuant to this Agreement) and Special Servicer (with respect to
Specially Serviced Mortgage Loans that it is obligated to service and administer
pursuant to this Agreement), in its own name or in the name of the Trustee, is
hereby authorized and empowered by the Trustee and obligated to execute and
deliver, on behalf of the Certificateholders, any affected B Loan Holder and the
Trustee 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 other related collateral; (ii) any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, or of partial or full defeasance and all other comparable
instruments; and (iii) subject to Sections 3.08, 3.20 and 3.24, any and all
assumptions, modifications, waivers, substitutions, extensions, amendments and
consents. Subject to Section 3.10, the Trustee shall, at the written request of
a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or
cause to be so furnished, to such Master Servicer or Special Servicer, as
appropriate, any limited powers of attorney and other documents necessary or
appropriate to enable the Master Servicer or Special Servicer, as the case may
be, to carry out its servicing and administrative duties hereunder; provided,
however, that the Trustee shall not be held liable for any negligence with
respect to, or misuse of any such power of attorney by the Master Servicer or
the Special Servicer; provided, further, 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 relationship of each of the Master Servicer and the Special
Servicer to the Trustee and, unless they are the same Person, 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 agent.
(d) In the event that an A/B Material Default occurs with respect to
any A/B Loan Pair, and for so long as such A/B Material Default is continuing,
the Master Servicer and/or the Special Servicer, as applicable, shall be
obligated to service the related B Loan on behalf of the related B Loan Holder,
subject to the terms and conditions of the related A/B Intercreditor Agreement;
provided that in no event shall the Master Servicer have any obligation to make
any Advance with respect to a B Loan. In such event, all references herein to
"Mortgage Loan" (and, if the related A Loan is a Specially Serviced Mortgage
Loan, all references herein to "Specially Serviced Mortgage Loan"), other than
provisions pertaining to the making of Advances, shall include a B Loan that is
being serviced under this Agreement.
Section 3.02 Collection of Mortgage Loan Payments
The Master Servicer (with respect to Performing Mortgage Loans) and
the Special Servicer (with respect to Specially Serviced Mortgage Loans) shall
undertake reasonable efforts to collect all payments called for under the terms
and provisions of the Mortgage Loans and shall follow such collection procedures
as are consistent with applicable law, the express terms of this Agreement, the
related Mortgage Loan Documents, in the case of any B Loan, the related A/B
Intercreditor Agreement and, to the extent consistent with the foregoing, the
Servicing Standard; provided that neither such Master Servicer nor such Special
Servicer shall, with respect to any ARD Mortgage Loan after its Anticipated
Repayment Date, take any enforcement action with respect to the payment of
Post-ARD Additional Interest (other than the making of requests for its
collection), unless (i) the taking of an enforcement action with respect to the
payment of other amounts due under such Mortgage Loan is, in the reasonable
judgment of the Special Servicer, and without regard to such Post-ARD Additional
Interest, also necessary, appropriate and consistent with the Servicing Standard
or (ii) all other amounts due under such Mortgage Loan have been paid, the
payment of such Post-ARD Additional Interest has not been forgiven in accordance
with Section 3.20 and, in the 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 Advance Interest. Consistent with the
foregoing, the Master Servicer (as to Performing Mortgage Loans) and the Special
Servicer (as to Specially Serviced Mortgage Loans) each may waive any Default
Charges in connection with any specific delinquent payment on a Mortgage Loan it
is obligated to service hereunder; provided that, to the extent the Master
Servicer (as to Performing Mortgage Loans) and the Special Servicer (as to
Specially Serviced Mortgage Loans) waives any Default Charges, any outstanding
interest on Advances and Additional Trust Fund Expenses with respect to the
related Mortgage Loan that would otherwise have been paid out of such Default
Charges shall be paid out of the Additional Master Servicing Compensation
payable to the Master Servicer or Additional Special Servicing Compensation
payable to such Special Servicer, as the case may be, with respect to that
Mortgage Loan.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts
(a) The Master Servicer shall establish and maintain one or more
accounts (the "Servicing Accounts"), in which all Escrow Payments received by it
with respect to the Mortgage Loans shall be deposited and retained. The Master
Servicer shall maintain the Servicing Accounts with respect to the Mortgage
Loans (including any such Mortgage Loans that are Specially Serviced Mortgage
Loans). Subject to any terms of the related Mortgage Loan Documents and the
terms of any related A/B Intercreditor Agreement that specify the nature of the
account in which Escrow Payments shall be held, each Servicing Account shall be
an Eligible Account. Withdrawals of amounts so collected in respect of any
Mortgage Loan (and interest earned thereon) from a Servicing Account may be made
only: (i) 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 related Mortgaged
Property; (ii) to reimburse such Master Servicer, such Special Servicer or the
Trustee, as applicable, for any unreimbursed Servicing Advances (together with
Advance Interest Accrued thereon) made thereby with respect to such Mortgage
Loan to cover any of the items described in the immediately preceding clause
(i); (iii) to refund to the related Borrower any sums as may be determined to be
overages; (iv) to pay interest or other income, if required and as described
below, to the related Borrower on balances in the Servicing Account (or, if and
to the extent not payable to the related Borrower to pay such interest or other
income (up to the amount of any Net Investment Earnings in respect of such
Servicing Account for each Collection Period) to the Master Servicer as
Additional Master Servicer Servicing Compensation); (v) to withdraw amounts
deposited in error; (vi) after an event of default, to pay the principal of,
accrued interest on and any other amounts payable with respect to such Mortgage
Loan; or (vi) to clear and terminate the Servicing Account at the termination of
this Agreement in accordance with Section 9.01. The Master Servicer shall pay or
cause to be paid to the Borrowers interest and other income, if any, earned on
the investment of funds in Servicing Accounts maintained thereby, if and to the
extent required by law or the terms of the related Mortgage Loan Documents. 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.
Promptly after any Escrow Payments are received by the Special Servicer from any
Borrower, and in any event within two Business Days after any such receipt, such
Special Servicer shall remit such Escrow Payments to the Master Servicer for
deposit in the applicable Servicing Account(s).
(b) The Master Servicer shall as to each Mortgage Loan (including
each Specially 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 consistent with the Servicing Standard
to obtain, from time to time, all bills for the payment of such items (including
renewal premiums) and effect payment thereof prior to the applicable penalty or
termination date. For purposes of effecting any such payment, such Master
Servicer shall apply Escrow Payments as allowed under the terms of the related
Mortgage Loan Documents; provided that if such Mortgage Loan does not require
the related Borrower to escrow for the payment of real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items,
each of the Master Servicer and the Special Servicer shall, as to those Mortgage
Loans it is obligated to service hereunder, and subject to and in accordance
with the Servicing Standard, use efforts consistent with the Servicing Standard
to enforce the requirement of the related Mortgage that the Borrower make
payments in respect of such items at the time they first become due.
(c) In accordance with the Servicing Standard, but subject to
Section 3.11(h), the Master Servicer shall make a Servicing Advance with respect
to each Mortgaged Property (including each Mortgaged Property relating to a
Specially Serviced Mortgage Loan and each Mortgaged Property that secures an A/B
Loan Pair, provided that the Master Servicer shall not be obligated to make such
a Servicing Advance with respect to an A/B Loan Pair after the principal balance
of the related A Loan is zero) all such funds as are necessary for the purpose
of effecting the timely payment of (i) real estate taxes, assessments and other
similar items, (ii) ground rents (if applicable), and (iii) premiums on
Insurance Policies (including, premiums on any Environmental Insurance Policy),
in each instance prior to the applicable penalty or termination date if and to
the extent that (x) Escrow Payments (if any) collected from the related Borrower
are insufficient to pay such item when due, and (y) the related Borrower has
failed to pay such item on a timely basis; provided that, in the case of amounts
described in the preceding clause (i), the Master Servicer shall not make a
Servicing Advance of any such amount if such Master Servicer reasonably
anticipates (in accordance with the Servicing Standard) that such amounts will
be paid by the related Borrower on or before the applicable penalty date, in
which case such Master Servicer shall use its best efforts consistent with the
Servicing Standard to confirm whether such amounts have been paid and shall make
a Servicing Advance of such amounts, if necessary, not later than five Business
Days following confirmation by such Master Servicer that such amounts have not
been paid by the applicable penalty date. All such Advances and interest thereon
shall be reimbursable in the first instance from related collections from the
Borrowers and further as provided in Section 3.05(a). No costs incurred by the
Master Servicer in effecting the payment of real estate taxes, assessments and,
if applicable, ground rents on or in respect of such Mortgaged Properties shall,
for purposes hereof, including calculating monthly distributions to
Certificateholders, be added to the respective unpaid principal balances or
Stated Principal Balances of the related Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit; provided that this sentence shall
not be construed to limit the rights of such Master Servicer on behalf of the
Trust to enforce any obligations of the related Borrower under such Mortgage
Loan.
If the Master Servicer is required under any provision of this
Agreement to make a Servicing Advance, but it does not do so when 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, give written notice of such failure
to the Master Servicer. If such Servicing Advance is not made by the Master
Servicer within three Business Days after such notice is given to the Master
Servicer, then (subject to Section 7.05) the Trustee shall, within one Business
Day thereafter, make such Servicing Advance.
(d) In connection with its recovery of any Servicing Advance out of
the Collection Account pursuant to clauses (v) or (vi) of Section 3.05(a), from
an A/B Loan Pair Custodial Account pursuant to Section 3.04 or from a Servicing
Account pursuant to Section 3.03(a)(ii), the Master Servicer, the Special
Servicer and the Trustee shall each be entitled to receive, first out of any
Default Charges with respect to the related Mortgage Loan or REO Mortgage Loan,
and then out of any other amounts then on deposit in the Collection Account,
interest at the Reimbursement Rate in effect from time to time, accrued on the
amount of such Servicing Advance from and including the date made to, but not
including, the date of reimbursement. The Master Servicer shall reimburse
itself, the Special Servicer or the Trustee, as the case may be, for any
outstanding Servicing Advance made by the Master Servicer, the Special Servicer
or the Trustee as soon as practically possible after funds available for such
purpose are deposited in the Collection Account or, if applicable, the related
A/B Loan Pair Custodial Account; provided that, upon a determination that a
previously made Servicing Advance is a Nonrecoverable Servicing Advance with
respect to any Mortgage Loan or REO Mortgage Loan the Master Servicer may
reimburse itself, the Special Servicer or the Trustee, as applicable, for such
Advance (in each case, together with interest accrued at the Reimbursement Rate)
immediately from general collections in the Collection Account (such
reimbursement to be deemed made first out of amounts distributable as
principal). Notwithstanding the foregoing, as contemplated by Section
3.05(a)(vii), instead of obtaining reimbursement out of general collections on
the Mortgage Pool immediately, if and to the extent that there are insufficient
amounts that would otherwise be distributable as principal to fully reimburse
such Nonrecoverable Servicing Advance, the Master Servicer, the Special Servicer
or the Trustee, as applicable, may, in its sole discretion as an accommodation
to the Trust, elect to obtain reimbursement for such Nonrecoverable Servicing
Advance over a period of time (not to exceed 12 months), with interest thereon
at the Reimbursement Rate (except that at any time after such a determination to
obtain reimbursement over time in accordance with this proviso, the Master
Servicer, the Special Servicer or the Trustee, as applicable, may, in its sole
discretion, decide to obtain reimbursement from general collections on the
Mortgage Pool immediately, first from the Loan Group from which the
Nonrecoverable Servicing Advance relates and, then to the extent amounts from
such Loan Group are insufficient, from the other Loan Group), provided, however,
that the Master Servicer, the Special Servicer or the Trustee, as applicable,
must first reimburse itself to the extent of funds in the Collection Account
otherwise distributable as principal. The fact that a decision to recover any
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 the
Special Servicer or a breach of any fiduciary duty owed to the
Certificateholders by the Trustee, or a breach of any other contractual
obligation owed to the Certificateholders by any party to this Agreement.
(e) The Master Servicer shall establish and maintain, as applicable,
one or more accounts (the "Reserve Accounts"), in which all Reserve Funds, if
any, received by it with respect to the Mortgage Loans shall be deposited and
retained. As and to the extent consistent with the Servicing Standard and the
related Mortgage Loan Documents, the Master Servicer may make withdrawals of
amounts so deposited, and draws under any Letter of Credit delivered in lieu of
Reserve Funds, to pay for, or to reimburse the related Borrower in connection
with, the costs associated with the related tenant improvements, leasing
commissions, repairs, replacements, capital improvements and/or environmental
testing and remediation, litigation and/or other special expenses at or with
respect to the related Mortgaged Property for which such Reserve Funds were
intended or such Letter of Credit was delivered and, in the case of a Reserve
Account constituting debt service reserve accounts, to apply amounts on deposit
therein in respect of principal and interest on the related Mortgage Loan. In
addition, as and to the extent consistent with the Servicing Standard and the
related Mortgage Loan Documents, the Master Servicer may make withdrawals of
amounts so deposited, and draws under any Letter of Credit so delivered, to
prepay the Mortgage Loan in the event certain leasing or other economic criteria
are not satisfied at the related Mortgaged Property (but only if such prepayment
is required by the related Mortgage Loan Documents or continuing to hold such
funds or Letter of Credit as Additional Collateral is not consistent with the
Servicing Standard), to pay amounts due and owing under the Mortgage Loan
following an event of default, or to release such amounts to the related
Borrower or otherwise apply such amounts for any other appropriate purpose in
the event that such criteria are satisfied, and the Master Servicer may return
any Letter of Credit so delivered to the related Borrower; provided that,
notwithstanding the foregoing (unless otherwise required under the related
Mortgage Loan Documents), such Master Servicer shall not release any Earn-Out
Reserve Funds, or return any related Letter of Credit delivered in lieu of
Earn-Out Reserve Funds, to the related Borrower, unless and until: (i) such
Master Servicer has so notified the Special Servicer in writing and has provided
such Special Servicer with any written or electronic information in such Master
Servicer's possession regarding such Mortgage Loan or the related Mortgaged
Property that such Special Servicer may reasonably request within ten Business
Days of receiving such written notice; and (ii) subject to Section 3.24, the
Special Servicer has consented to such release of any such Earn-Out Reserve
Funds or return of any related Letter of Credit (such consent to be given or
withheld in accordance with the Servicing Standard and to be deemed given if the
Special Servicer does not object in writing to such release of any such Earn-Out
Reserve Funds or return of any such Letter of Credit within fifteen (15)
Business Days after receiving such additional information from the Master
Servicer (or, if it did not request additional information, within ten Business
Days after receiving such notice)). Subject to the terms of the related Mortgage
Loan Documents, each Reserve Account shall be an Eligible Account. It is hereby
acknowledged that, subject to the Servicing Standard and the foregoing proviso,
the Master Servicer shall be entitled to conclusively rely on the determination
of the Column Primary Servicer as to the amount of any withdrawal to be made
from the Reserve Accounts (or, any draw under the applicable Letter of Credit,
as the case may be) with respect to the Column Serviced Loans under this Section
3.03(e).
Interest and other income, if any, earned on funds on deposit in any
Reserve Account held by the Master Servicer (to the extent of any Net Investment
Earnings with respect to such Reserve Account for any Collection Period), shall
be for the benefit of and payable to such Master Servicer, unless otherwise
required to be paid to the related Borrower by law or the terms of the related
Mortgage Loan. If the Master Servicer shall deposit in a Reserve Account
maintained by it any amount not required to be deposited therein, it may at any
time withdraw such amount from such Reserve Account, any provision herein to the
contrary notwithstanding. Any out-of-pocket expenses incurred by the Master
Servicer to enable such Master Servicer to make any draw under any Letter of
Credit shall constitute a Servicing Advance, and such Master Servicer shall make
reasonable efforts to recover such expenses from the related Borrower to the
extent the Borrower is required to pay such expenses under the terms of the
related Mortgage Loan.
(f) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan, the Master
Servicer shall request from the Borrower written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any other
action or remediation with respect to environmental matters is required to have
been taken or completed pursuant to the terms of a Mortgage Loan, the Master
Servicer shall request from the Borrower written confirmation of such action and
remediations within a reasonable time after the later of the Closing Date and
the date as of which such action or remediations are required to have been taken
or completed. To the extent that a Borrower fails to promptly respond to any
inquiry described in this Section 3.03(f), the Master Servicer shall notify the
Trustee, the Special Servicer and the Controlling Class Representative. The
Master Servicer shall promptly notify the Trustee, the Special Servicer and the
Controlling Class Representative if the Master Servicer shall determine that any
Borrower has failed to perform its obligations under the related Mortgage Loan
in respect of environmental matters.
(g) Subject to applicable law and the terms of the related Mortgage
Loan Documents, funds in the Servicing Accounts and the Reserve Accounts may be
invested only in Permitted Investments in accordance with the provisions of
Section 3.06.
Section 3.04 Collection Accounts, Distribution Account, Interest
Reserve Account, Excess Liquidation Proceeds
Account, Post-ARD Additional Interest
Distribution Account and the Floating Rate
Account
(a) The Master Servicer shall segregate and hold all funds collected
and received by it in connection with the Mortgage Pool separate and apart from
its own funds and general assets. In connection therewith, the Master Servicer
shall establish and maintain one or more segregated accounts (collectively, the
"Collection Account"), in which the funds described below are to be deposited
and held on behalf of the Trustee in trust for the benefit of the
Certificateholders. Each account that constitutes the Collection Account shall
be an Eligible Account. The Master Servicer shall deposit or cause to be
deposited in the applicable Collection Account, within two Business Days of
receipt by it (in the case of payments by Borrowers or other collections on the
Mortgage Loans) or as otherwise required hereunder, the following payments and
collections received or made by or on behalf of such Master Servicer in respect
of the Mortgage Pool subsequent to the Closing Date (other than in respect of
scheduled payments of principal and interest due and payable on the Mortgage
Loans on or before their respective Due Dates in March 2007 (or, in the case of
a Replacement Mortgage Loan, on or before the related date of substitution),
which payments shall be delivered promptly to the related Mortgage Loan Seller
or its designee, with negotiable instruments endorsed as necessary and
appropriate without recourse):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal of the Mortgage Loans,
including Principal Prepayments;
(ii) all payments, from whatever source, or transfers from a debt
service reserve account, on account of interest on the Mortgage Loans and
any B Loan, including Default Interest and Post-ARD Additional Interest;
(iii) all Yield Maintenance Charges and late payment charges
received in respect of the Mortgage Loans;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of the Mortgage Loans together with any
amounts representing recoveries of Workout-Delayed Reimbursement Amounts
or Nonrecoverable Advances in respect of the related Mortgage Loans;
(v) any amounts required to be deposited by such Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Collection Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket or master force placed
hazard insurance policy (solely to the extent that such losses exceed any
losses that would have been incurred under a single insurance policy);
(vii) any amounts required to be transferred from any REO Account
pursuant to Section 3.16(c) or from an A/B Loan Pair Custodial Account
pursuant to Section 3.04(f);
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by a Borrower specifically to cover items for which a
Servicing Advance has been made or that represent a recovery of property
protection expenses from a Borrower;
(ix) any amounts received pursuant to Section 3.18 in connection
with the liquidation of a Defective Mortgage Loan or pursuant to Section
3.09 in connection with the liquidation of a Defaulted Mortgage Loan;
(x) any amounts paid by a Mortgage Loan Seller or the Column
Performance Guarantor, as the case may be, in connection with the
repurchase or substitution of a Mortgage Loan by such party pursuant to
Section 2.03;
(xi) any amounts paid to purchase or otherwise acquire all the
Mortgage Loans and any REO Properties in connection with the termination
of the Trust Fund pursuant to Section 9.01; and
(xii) any amounts paid by the B Loan Holder or mezzanine lender in
connection with any cure or purchase option exercised pursuant to the
terms of the A/B Intercreditor Agreement, or related mezzanine
intercreditor agreement, as applicable.
The foregoing requirements for deposit in the Collection Account
shall be exclusive. Without limiting the generality of the foregoing, actual
payments from Borrowers in the nature of Escrow Payments, assumption fees,
assumption application fees, defeasance fees, earn-out fees, extension fees,
modification fees, charges for beneficiary statements or demands, amounts
collected for checks returned for insufficient funds and other fees and amounts
collected from Borrowers that constitute Additional Master Servicing
Compensation and/or Additional Special Servicing Compensation, need not be
deposited by the Master Servicer in the Collection Account. The Master Servicer
shall promptly deliver to the Special Servicer any of the foregoing items
received by it, if and to the extent that such items constitute Additional
Special Servicing Compensation. If the Master Servicer shall deposit in the
Collection Account any amount not required to be deposited therein, it may at
any time withdraw such amount from such Master Servicer's Collection Account,
any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) of the first paragraph of this Section 3.04(a) with respect to
any Mortgage Loan, the Special Servicer shall promptly, but in no event later
than one Business Day after receipt, remit such amounts to the Master Servicer
for deposit into the Collection Account, unless such Special Servicer
determines, consistent with the Servicing Standard, that a particular item
should not be deposited because of a restrictive endorsement. With respect to
any such amounts paid by check to the order of such Special Servicer, such
Special Servicer shall endorse such check to the order of the Master Servicer
(in its capacity as such), without recourse, representation or warranty, 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. Any such amounts received by the Special Servicer with respect to
an REO Property shall be deposited by such Special Servicer into the REO Account
and remitted to the Master Servicer for deposit into such Master Servicer's
Collection Account pursuant to Section 3.16(c) (or, if such REO Property relates
to an A/B Loan Pair, into the related A/B Loan Pair Custodial Account).
(b) The Trustee shall establish and maintain one or more segregated
accounts (collectively, the "Distribution Account"), to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the
Distribution Account shall be an Eligible Account. By 1:00 p.m. (New York City
time) on each Master Servicer Remittance Date, the Master Servicer shall deliver
to the Trustee, for deposit in the Distribution Account, an aggregate amount of
immediately available funds equal to the Master Servicer's Master Servicer
Remittance Amount for such Master Servicer Remittance Date. Immediately upon
deposit of any Master Servicer Remittance Amount for any Master Servicer
Remittance Date into the Distribution Account, any portion thereof that
represents any Post-ARD Additional Interest related to the ARD Mortgage Loans
shall be deemed to have been deposited into the Post-ARD Additional Interest
Distribution Account, and the remaining portion thereof shall be deemed to have
been deposited into the Lower-Tier Distribution Account. In addition, the Master
Servicer shall, as and when required hereunder, deliver to the Trustee for
deposit in the Lower-Tier Distribution Account any P&I Advances and Compensating
Interest Payments required to be made by such Master Servicer hereunder.
Furthermore, any amounts paid by any party hereto to indemnify the Trust Fund
pursuant to any provision hereof shall be delivered to the Trustee for deposit
in the Lower-Tier Distribution Account. The Trustee shall, upon receipt, deposit
in the Lower-Tier Distribution Account any and all amounts received or, pursuant
to Section 4.03, advanced by the Trustee that are required by the terms of this
Agreement to be deposited therein. As and when required pursuant to Section
3.05(c), the Trustee shall transfer Interest Reserve Amounts in respect of the
Interest Reserve Mortgage Loans from the Interest Reserve Account to the
Lower-Tier Distribution Account. On each Distribution Date, the Trustee shall
deliver to the Swap Counterparty, the Class A-MFL Net Fixed Swap Payment due to
the Swap Counterparty with respect to such Distribution Date that was deposited
in the Floating Rate Account on the preceding Class A-MFL Swap Payment Date
pursuant to Section 3.04(g), and such portion shall be deemed to have been
distributed in respect of the Class LA-MFL Uncertificated Interest and the Class
A-MFL Regular Interest pursuant to the terms of this Agreement. On each
Distribution Date (prior to distributions on the Certificates being made on that
date), the Trustee shall also deposit in the Distribution Account any amounts
required to be deposited by the Trustee pursuant to Section 3.06 in connection
with losses incurred with respect Permitted Investments of funds held in the
Distribution Account. Furthermore, as and when required pursuant to Section
3.05(d), the Trustee shall transfer monies from the Excess Liquidation Proceeds
Account to the Lower-Tier Distribution Account. If the Trustee shall deposit in
the Lower-Tier Distribution Account any amount not required to be deposited
therein, it may at any time withdraw such amount from the Lower-Tier
Distribution Account, any provision herein to the contrary notwithstanding.
On each Distribution Date, the Trustee shall deposit or be deemed to
have deposited in the Upper-Tier Distribution Account an aggregate amount of
immediately available funds equal to the Lower-Tier Distribution Amount (with a
credit for any Class A-MFL Net Fixed Swap Payment deemed distributed on the
preceding Class A-MFL Swap Payment Date pursuant to Section 4.01(c)) and the
amount of any Yield Maintenance Charges for such Distribution Date allocated in
payment of the Uncertificated Lower-Tier Interests as specified in Section 4.01.
(c) The Trustee shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account") to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the Interest
Reserve Account shall be an Eligible Account. On the Distribution Date in
January (except during a leap year) and February of each calendar year,
commencing in 2008, prior to any distributions being made in respect of the
Certificates on such Distribution Date, the Trustee shall, with respect to each
Interest Reserve Mortgage Loan, withdraw from the Distribution Account and
deposit in the Interest Reserve Account an amount equal to the Interest Reserve
Amount, if any, in respect of such Interest Reserve Mortgage Loan for such
Distribution Date; provided that no such transfer of monies from the
Distribution Account to the Interest Reserve Account shall be made on the Final
Distribution Date. The Trustee shall also deposit in the Interest Reserve
Account any amounts required to be deposited by the Trustee pursuant to Section
3.06 in connection with losses incurred with respect to Permitted Investments of
funds held in the Interest Reserve Account.
(d) If any Excess Liquidation Proceeds are received, the Trustee
shall establish and maintain one or more accounts (collectively, the "Excess
Liquidation Proceeds Account") to be held in trust for the benefit of the
Certificateholders. Each account that constitutes the Excess Liquidation
Proceeds Account shall be an Eligible Account. On each Master Servicer
Remittance Date, the Master Servicer shall withdraw from the Collection Account
and remit to the Trustee for deposit in the Excess Liquidation Proceeds Account
all Excess Liquidation Proceeds received by it during the Collection Period
ending on the Determination Date immediately prior to such Master Servicer
Remittance Date; provided, however, that if such Excess Liquidation Proceeds
relate to an A/B Loan Pair, the amount allocable to the related B Loan shall be
deposited in the A/B Loan Pair Custodial Account. The Trustee shall also deposit
in the Excess Liquidation Proceeds Account any amounts required to be deposited
by the Trustee pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the Excess Liquidation
Proceeds Account.
(e) Funds in a Collection Account, the Upper-Tier Distribution
Account, the Lower-Tier Distribution Account, the Interest Reserve Account, the
Floating Rate Account, the Post-ARD Additional Interest Distribution Account and
the Excess Liquidation Proceeds Account may be invested in Permitted Investments
in accordance with the provisions of Section 3.06. The Master Servicer shall
give notice to the other parties hereto of the location of the Collection
Account as of the Closing Date and of the new location of the Collection Account
prior to any change thereof. The Upper-Tier Distribution Account, Lower-Tier
Distribution Account, Interest Reserve Account, Floating Rate Account, Post-ARD
Additional Interest Distribution Account and Excess Liquidation Proceeds Account
shall each be established at the Corporate Trust Office of the Trustee as of the
Closing Date, and the Trustee shall give notice to the other parties hereto of
the new location of each of the Upper-Tier Distribution Account, Lower-Tier
Distribution Account, Interest Reserve Account and Excess Liquidation Proceeds
Account prior to any change thereof.
(f) If (i) any A/B Material Default occurs and is continuing (and,
as a result, the related B Loan is being serviced hereunder) or (ii) the
Mortgaged Property securing any A/B Loan Pair has become REO Property, the
Master Servicer shall establish and maintain, or cause to be established and
maintained, an A/B Loan Pair Custodial Account (which may be a sub-account of
the Collection Account), into which the Master Servicer shall deposit or cause
to be deposited on a daily basis (and in no event later than the Business Day
following the receipt of available funds), except as otherwise specifically
provided herein, the following payments and collections received after the
Cut-off Date (other than payments of principal and interest on the applicable
A/B Loan Pair due and payable on or before the Cut-off Date) and 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, including Principal
Prepayments, on such A/B Loan Pair; and
(ii) all payments on account of interest, including Post-ARD
Additional Interest, on such A/B Loan Pair; and
(iii) all Insurance Proceeds and Condemnation Proceeds received in
respect of such A/B Loan Pair together with any amounts representing
recoveries of Workout-Delayed Reimbursement Amounts or Nonrecoverable
Advances in respect of the related A/B Loan Pair; and
(iv) all Liquidation Proceeds with respect to such A/B Loan Pair;
and
(v) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c);
(vi) 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 A/B Loan Pair Custodial
Account;
(vii) 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 such A/B Loan Pair resulting from a deductible clause in a blanket or
force placed hazard insurance policy (solely to the extent that such
losses exceed any losses that would have been incurred under a single
insurance policy); and
(viii) any amounts paid by the holder of any A Loan or any holder of
a related mezzanine loan in connection with any purchase option exercised
pursuant to the terms of the related A/B Intercreditor Agreement or
mezzanine intercreditor agreement, as applicable, that are distributable
to the related B Loan Holder.
The foregoing requirements for deposit by the Master Servicer in an
A/B Loan Pair Custodial Account shall be exclusive, it being understood and
agreed that actual payments from a Borrower in the nature of Escrow Payments,
charges for beneficiary statements or demands, assumption fees, modification
fees, extension fees, amounts collected for Borrower checks returned for
insufficient funds or other amounts that the Master Servicer or the Special
Servicer is entitled to retain as additional servicing compensation pursuant to
Section 3.11 need not be deposited by the Master Servicer in such A/B Loan Pair
Custodial Account. If the Master Servicer shall deposit in any A/B Loan Pair
Custodial Account any amount not required to be deposited therein, it may at any
time withdraw such amount from such A/B Loan Pair Custodial Account.
Within one Business Day of receipt of any of the amounts described
in the second preceding paragraph with respect to any Specially Serviced
Mortgage Loan that is part of an A/B Loan Pair during the period that the
related B Loan is being serviced hereunder, the Special Servicer shall remit
such amounts to the Master Servicer for deposit in the related A/B Loan Pair
Custodial Account pursuant to the second preceding paragraph. Any amounts
received by the Special Servicer with respect to an REO Property that relates to
an A/B Loan Pair shall be deposited into the REO Account and remitted to the
Master Servicer for deposit into the related A/B Loan Pair Custodial Account
pursuant to Section 3.16(c).
If any B Loan is being serviced hereunder, or if the Mortgaged
Property securing any A/B Loan Pair has become REO Property, then as and when
required pursuant to the related A/B Intercreditor Agreement (and in any event
on the Business Day following each Determination Date, or if received after such
Determination Date, two Business Days after receipt), the Master Servicer shall
withdraw from the related A/B Loan Pair Custodial Account and pay to the
applicable parties hereunder such amounts as is permitted under the related A/B
Intercreditor Agreement for purposes of the reimbursement of Advances, the
payment of interest on Advances, the payment of Master Servicing Fees, Special
Servicing Fees, Workout Fees and Liquidation Fees and the payment of any other
servicing expenses, indemnification and fees relating to the subject A/B Loan
Pair or any related REO Property and, further, pay to the Trust, as "A Note
Holder" under the related A/B Intercreditor Agreement, and to the B Loan Holder
all amounts to which each of them is entitled in respect of the subject A Loan
and B Loan, respectively, in accordance with the related A/B Intercreditor
Agreement. The foregoing payments shall be made in accordance with the
priorities set forth in the related A/B Intercreditor Agreement. Payments to the
Trust shall be made by transfer of the applicable funds to the Collection
Account, and payments to the B Loan Holder shall be made in accordance with the
related A/B Intercreditor Agreement.
(g) The Trustee, on behalf of the Trust Fund, shall establish and
maintain the Floating Rate Account in trust for the benefit of the Swap
Counterparty and the Holders of the Class A-MFL Certificates. The Floating Rate
Account shall be an asset of the Grantor Trust Pool and not of either Trust
REMIC. The Trustee shall make or be deemed to have made deposits in and
withdrawals from the Floating Rate Account in accordance with the terms of this
Agreement. On the Business Day preceding each Distribution Date, the Trustee
shall deposit in the 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 the Floating
Rate Account and, to the extent permitted by Section 3.06, shall be permitted to
withdraw any Net Investment Earnings from the Floating Rate Account. On each
Class A-MFL Swap Payment Date, following any deposit to the Distribution Account
on or prior to such date, the Trustee shall be deemed to deposit into the
Floating Rate Account (i) the Class A-MFL Net Fixed Swap Payment distributable
with respect to the Class LA-MFL Uncertificated Interest and the Class A-MFL
Regular Interest pursuant to Section 3.04(b) and payable to the Swap
Counterparty for such Distribution Date (such amounts to be credited against
amounts otherwise distributable in respect of the Class LA-MFL Uncertificated
Interest and the Class A-MFL Regular Interest pursuant to Section 4.01(a) in
respect of such Distribution Date) and (ii) all amounts received from the Swap
Counterparty under the Swap Agreement.
(h) The Trustee shall establish and maintain the Post-ARD Additional
Interest Distribution Account in the name of the Trustee for the benefit of the
Holders of the Class V Certificates. The Post-ARD Additional Interest
Distribution Account shall be established and maintained as an Eligible Account
or, subject to Section 3.04(i), a subaccount of an Eligible Account. On or
before each Master Servicer Remittance Date, the Master Servicer shall remit to
the Trustee for deposit in the Post-ARD Additional Interest Distribution Account
an amount equal to the Post-ARD Additional Interest received on the respective
ARD Mortgage Loans (or any successor REO Mortgage Loans with respect thereto)
during the related Collection Period. On each Distribution Date, the Trustee
shall withdraw the Post-ARD Additional Interest on deposit therein from the
Post-ARD Additional Interest Distribution Account for distribution pursuant to
Section 4.01(e). On each Distribution Date, the Trustee shall deposit any Net
Investment Loss into the Post-ARD Additional Interest Distribution Account and
shall be permitted to withdraw any Net Investment Earnings from the Post-ARD
Additional Interest Distribution Account. Following the distribution of Post-ARD
Additional Interest to Holders of the Class V Certificates on the first
Distribution Date after which no ARD Mortgage Loan and no successor REO Mortgage
Loan with respect to an ARD Mortgage Loan remains part of the Mortgage Pool, the
Trustee shall terminate the Post-ARD Additional Interest Distribution Account.
(i) Notwithstanding the foregoing or any other provision to the
contrary in this Agreement, the Trustee may maintain the Distribution Account,
the Interest Reserve Account, the Excess Liquidation Proceeds Account, the
Post-ARD Additional Interest Distribution Account and the Floating Rate Account
as five separate subaccounts of a single Eligible Account; provided that: (i)
all deposits into and withdrawals from such single Eligible Account shall be
made in the same manner as would be the case if the Distribution Account, the
Interest Reserve Account, the Excess Liquidation Proceeds Account, the Post-ARD
Additional Interest Distribution Account and the Floating Rate Account were
maintained as four separate accounts; (ii) all distributions on the Certificates
will be calculated and made in the same manner as would be the case if the
Distribution Account, the Interest Reserve Account, the Excess Liquidation
Proceeds Account, the Post-ARD Additional Interest Distribution Account and the
Floating Rate Account were maintained as five separate accounts; (iii) the
Trustee shall make debits and credits to those five subaccounts in a manner
consistent with the provisions of this Agreement governing transfers of funds
between the Distribution Account, the Interest Reserve Account, the Excess
Liquidation Proceeds Account, the Post-ARD Additional Interest Distribution
Account and the Floating Rate Account, as the case may be; (iv) the Trustee's
maintaining the Distribution Account, the Interest Reserve Account, the Excess
Liquidation Proceeds Account, the Post-ARD Additional Interest Distribution
Account and the Floating Rate Account as four separate subaccounts of a single
Eligible Account (as opposed to in the form of three separate Eligible Accounts)
shall not materially and adversely affect any of the Certificateholders; and (v)
such single Eligible Account shall be entitled "Xxxxx Fargo Bank, N.A., as
Trustee, in trust for the registered holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass Through Certificates, Series
2007-C1, Distribution Account, Interest Reserve Account, Excess Liquidation
Proceeds Account, the Post-ARD Additional Interest Distribution Account and the
Floating Rate Account."
Section 3.05 Permitted Withdrawals From the Collection Account,
the Distribution Account, the Interest Reserve
Account, the Excess Liquidation Proceeds
Account, the Post-ARD Additional Interest
Distribution Account and the Floating Rate
Account
(a) The Master Servicer may, from time to time, make withdrawals
from the applicable Collection Account for any of the following purposes (the
order set forth below not constituting an order of priority for such
withdrawals):
(i) to remit to the Trustee for deposit in the Lower-Tier
Distribution Account as provided in the first paragraph of Section 3.04(b)
or in Post-ARD Additional Interest Distribution Account as provided in
Section 3.04(h), the Master Servicer Remittance Amount with respect to
such Master Servicer for each Master Servicer Remittance Date and any
amounts that may be applied by such Master Servicer to make P&I Advances
pursuant to Section 4.03(a);
(ii) to reimburse itself or the Trustee, as applicable, for
xxxxxxxxxxxx X&X Advances (to the extent not previously reimbursed in the
form of a cure payment from the B Loan Holder) made thereby (in each case,
with its own funds), with respect to the Mortgage Loans and/or any
successor REO Loans in respect thereof, such Master Servicer's and, the
Trustee's, as the case may be, respective rights to reimbursement pursuant
to this clause (ii) with respect to any P&I Advance (other than
Nonrecoverable P&I Advances, which are reimbursable pursuant to clause
(vii) below) being limited to amounts that represent Late Collections of
interest and principal received in respect of the particular Mortgage Loan
or REO Mortgage Loan as to which such P&I Advance was made (net of related
Master Servicing Fees and/or Workout Fees); provided, however, that if
such P&I Advance becomes a Workout-Delayed Reimbursement Amount, then such
P&I Advance shall thereafter be reimbursed from the portion of general
collections and recoveries on or in respect of the Mortgage Loans and REO
Properties on deposit in the Collection Account from time to time that
represent collections or recoveries of principal, first from such amounts
that are allocated to the Loan Group to which such Mortgage Loan belongs
and second from such amounts that are allocated to the other Loan Group;
provided, further, however, that if such Workout-Delayed Reimbursement
Amount becomes a Nonrecoverable Advance, then such Nonrecoverable Advance
shall thereafter be reimbursable pursuant to clause (vii) below;
(iii) [reserved]
(iv) to pay the Special Servicer, out of general collections on the
Mortgage Loans in, and any REO Properties relating to, earned and unpaid
Special Servicing Fees in respect of each related Specially Serviced
Mortgage Loan and related REO Mortgage Loan;
(v) to pay the Special Servicer (or, if applicable, any predecessor
thereto) earned and unpaid Workout Fees and Liquidation Fees to which it
is entitled pursuant to, and from the sources contemplated by, the second
and third paragraphs of Section 3.11(c);
(vi) to reimburse itself, the Special Servicer or the Trustee, as
applicable, for any unreimbursed Servicing Advances made thereby (in each
case, with its own funds), the Master Servicer's, the Special Servicer's
and the Trustee's, as the case may be, respective rights to reimbursement
pursuant to this clause (vi) with respect to any Servicing Advance (other
than Nonrecoverable Servicing Advances, which are reimbursable pursuant to
clause (vii) below) being limited to (A) payments made by the related
Borrower that are allocable to cover the item in respect of which such
Servicing Advance was made, and (B) Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and, if applicable, REO Revenues received
in respect of the particular Mortgage Loan or REO Property as to which
such Servicing Advance was made; provided, however, that if such Servicing
Advance becomes a Workout-Delayed Reimbursement Amount, then such
Servicing Advance shall thereafter be reimbursed from the portion of
general collections and recoveries on or in respect of the Mortgage Loans
and REO Properties on deposit in the Collection Account from time to time
that represent collections or recoveries of principal, first from such
amounts that are allocated to the Loan Group to which such Mortgage Loan
belongs and second from such amounts that are allocated to the other Loan
Group; provided, further, however, that if such Workout-Delayed
Reimbursement Amount becomes a Nonrecoverable Advance, then such
Nonrecoverable Advance shall thereafter be reimbursable pursuant to clause
(vii) below;
(vii) to reimburse itself, the Special Servicer or the Trustee, as
applicable, out of general collections on the Mortgage Loans and any REO
Properties, for (A) any unreimbursed Advances made thereby that have been
determined to be Nonrecoverable Advances, provided that the Master
Servicer may reimburse itself in installments as it may choose in its sole
discretion pursuant to Sections 3.03(d), 3.11(g) and/or 4.03(d), as the
case may be;
(viii) to pay itself, the Special Servicer or the Trustee, as
applicable, any Advance Interest then due and owing to such Person, out of
Default Charges collected on the Mortgage Loan or REO Mortgage Loan, as
the case may be, as to which the related Advance was made, as and to the
extent contemplated by Section 3.26;
(ix) to reimburse itself, the Special Servicer, the Depositor or the
Trustee, as the case may be, for any unreimbursed expenses reasonably
incurred by such Person in respect of any Breach or Defect relating to a
Mortgage Loan and giving rise to a repurchase obligation of any Mortgage
Loan Seller under Section 7 of the Mortgage Loan Purchase Agreement or
under the Column Performance Guarantee, including, any expenses arising
out of the enforcement of the repurchase obligation, each such Person's
right to reimbursement pursuant to this clause (ix) with respect to any
Mortgage Loan being limited to that portion of the Purchase Price paid for
such Mortgage Loan that represents such expense in accordance with clause
(e) of the definition of Purchase Price;
(x) subject to Section 2.03(g), to reimburse itself, the Trustee or
the Special Servicer, as the case may be, first out of Liquidation
Proceeds and Insurance and Condemnation Proceeds with respect to the
subject Mortgage Loan and then out of general collections on the Mortgage
Loans and REO Properties, for any unreimbursed expense reasonably incurred
by such Person relating to a Mortgage Loan in connection with the
enforcement of the Mortgage Loan Seller's obligations under Section 7 of
the Mortgage Loan Purchase Agreement, but only to the extent that such
expenses are not reimbursable pursuant to clause (ix) above or otherwise;
(xi) to the extent that, during any Collection Period, such Master
Servicer has reimbursed or is reimbursing itself, the Special Servicer or
the Trustee, as applicable, for any unreimbursed Advance pursuant to
clause (ii), (vi) or (vii) above or pursuant to Section 3.03(c), and
insofar as payment has not already been made, and the related Default
Charges then on deposit in the Collection Account are not sufficient to
make such payment pursuant to clause (viii) above, to pay itself, such
Special Servicer or the Trustee, as the case may be, out of general
collections on the Mortgage Loans and any REO Properties, any related
Advance Interest accrued and payable on the portion of such Advance so
reimbursed or being reimbursed;
(xii) to pay any outstanding expense, other than Advance Interest,
that was incurred with respect to any related Mortgage Loan or related REO
Property and that, if paid from a source other than Default Charges on
such Mortgage Loan or the related REO Mortgage Loan, as the case may be,
would constitute an Additional Trust Fund Expense, such payment to be
made, as and to the extent contemplated by Section 3.26, out of Default
Charges collected on the Mortgage Loan or REO Mortgage Loan, as the case
may be, that relates to such expense;
(xiii) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Special Servicer any items of Additional
Special Servicing Compensation, in each case on deposit in the Collection
Account from time to time;
(xiv) to pay any unpaid Liquidation Expenses incurred with respect
to any related Mortgage Loan or REO Property, such payments to be made,
first, out of Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds and, if applicable, REO Revenues received in respect of such
Mortgage Loan or REO Property, as the case may be, and then, out of
general collections on other Mortgage Loans and any REO Properties;
(xv) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Loans and any REO Properties relating thereto,
certain servicing expenses related to the Mortgage Loans and REO
Properties that would, if advanced, constitute Nonrecoverable Servicing
Advances;
(xvi) to pay, out of general collections on the Mortgage Loans and
any REO Properties, costs and expenses incurred by the Trust pursuant to
Section 3.09(c) with respect to any Mortgage Loan or REO Property (other
than the costs of environmental testing, which are to be covered by, and
reimbursable as, a Servicing Advance);
(xvii) to pay itself, the Special Servicer, the Depositor, the
Trustee or any of their respective directors, officers, members, managers,
employees and agents, as the case may be, out of general collections on
the Mortgage Loans and any REO Properties relating thereto, any amounts
payable to any such Person pursuant to Section 6.03, Section 7.01(b),
Section 8.05(b), or Section 8.13, as applicable;
(xviii) to pay, out of general collections on the Mortgage Loans and
any REO Properties relating thereto, any reasonable out-of-pocket cost or
expense (including the reasonable fees of tax accountants and attorneys)
incurred by the Trustee pursuant to Section 3.17(a)(iii) in connection
with providing advice to the Special Servicer with respect to any REO
Property;
(xix) to pay to itself, the Special Servicer, the Trustee or the
Depositor, as the case may be, any amount that is specifically required to
be paid to such Person at the expense of the Trust Fund under any
provision of this Agreement and to which reference is not made in any
other clause of this Section 3.05(a), it being acknowledged that this
clause (xix) shall not be construed to modify any limitation otherwise set
forth in this Agreement on the time at which any Person is entitled to
payment or reimbursement of any amount or the funds from which any such
payment or reimbursement is permitted to be made;
(xx) to pay itself, the Special Servicer, a Mortgage Loan Seller, a
Certificateholder or any other particular Person, as the case may be, with
respect to each Mortgage Loan and that was previously purchased or
otherwise removed from the Trust Fund by such Person pursuant to or as
contemplated by this Agreement, all amounts received thereon subsequent to
the date of purchase;
(xxi) to pay amounts payable to any B Loan Holder under the related
A/B Intercreditor Agreement;
(xxii) to reimburse itself for any prior Advance, including any
interest accrued and payable thereon, made for which a cure payment from
the B Loan Holder has been received, from such cure payment;
(xxiii) to transfer Excess Liquidation Proceeds to the Excess
Liquidation Proceeds Account in accordance with Section 3.04(d);
(xxiv) to pay for the cost of any Opinion of Counsel for purposes of
REMIC administration or amending this Agreement pursuant to Section 11.01,
in each case, to the extent payable out of the Trust Fund, and to pay for
the cost of obtaining any extensions from the IRS in connection with the
sale of any REO Property;
(xxv) to pay, out of general collections, any and all federal, state
and local taxes imposed on either the Upper-Tier REMIC or Lower-Tier
REMIC;
(xxvi) to pay for the recording cost of this Agreement;
(xxvii) to pay to the respective Mortgage Loan Sellers, amounts that
represent Monthly Payments due on the Mortgage Loans on or before their
respective Due Dates in March 2007 or, in the case of a Replacement
Mortgage Loan, on or before the date on which such loan was added to the
Trust Fund, if any, or in the case of a Deleted Mortgage Loan, amounts
collected or received by the Trust with respect to such Mortgage Loan
after the related date of replacement pursuant to Section 2.03(b);
(xxviii) to withdraw amounts deposited in such Collection Account in
error; and
(xxix) to clear and terminate such Collection Account at the
termination of this Agreement pursuant to Section 9.01.
No party hereto shall be entitled to payment or reimbursement of any
amount from the Collection Account with respect to any A Loan or related REO
Property for which it can be reimbursed out of amounts then or thereafter on
deposit in the related A/B Loan Pair Custodial Account and, in the case of the B
Loans:
(A) the Master Servicer shall be entitled to make transfers from
time to time, from the related A/B Loan Pair Custodial Account to the portion of
the Collection Account that does not constitute the A/B Loan Pair Custodial
Account, of amounts necessary for the payment and/or reimbursement of amounts
described in any one or more of clauses (i), (ii), (iii), (iv), (v), (vi),
(vii), (viii), (ix), (xi) and (xiv) above, but only insofar as the payment or
reimbursement described therein arises from or is related solely to an A Loan,
is allocable to the related A Loan pursuant to this Agreement and is allocable
to the related B Note pursuant to the A/B Intercreditor Agreement, and the
Master Servicer shall also be entitled to make transfers from time to time, from
the related A/B Loan Pair Custodial Account to the portion of the Collection
Account that does not constitute the A/B Loan Pair Custodial Account, of amounts
transferred to such related A/B Loan Pair Custodial Account in error, and
amounts necessary for the clearing and termination of the Collection Account
pursuant to Section 9.01;
(B) the Master Servicer shall be entitled to make transfers from
time to time, from the related A/B Loan Pair Custodial Account to the portion of
the Collection Account that does not constitute the A/B Loan Pair Custodial
Account, of amounts not otherwise described in clause (A) above to which the
holder of an A Note is entitled under the related A/B Intercreditor Agreement
(including in respect of interest, principal and Yield Maintenance Charges due
in respect of the A Note (whether or not by operation of any provision of the
related A/B Intercreditor Agreement that entitles the holder of such A Note to
receive remittances in amounts calculated without regard to any modification,
waiver or amendment of the economic terms of such A Note));
(C) the Master Servicer shall on the second Business Day following
receipt of payment from the related Borrower, remit to the B Loan Holder any
amounts on deposit in such A/B Loan Pair Custodial Account (net of amounts
permitted or required to be transferred therefrom as described in clauses (A)
and/or (B) above), to the extent that the B Loan Holder is entitled thereto
under the related A/B Intercreditor Agreement (including by way of the operation
of any provision of the related A/B Intercreditor Agreement that entitles the B
Loan Holder to reimbursement of cure payments made by it).
Expenses incurred with respect to any B Loan shall be allocated in
accordance with the related A/B Intercreditor Agreement. The Master Servicer
shall keep and maintain a separate accounting for each Mortgage Loan and B Loan
for the purpose of justifying any withdrawal or transfer from the Collection
Account and any A/B Loan Pair Custodial Account. The Master Servicer shall not
be permitted to withdraw any funds from the portion of the Collection Account
that does not constitute the A/B Loan Pair Custodial Account unless there are no
remaining funds in the related A/B Loan Pair Custodial Account available. If the
Master Servicer is entitled to make any payment or reimbursement described above
and such payment or reimbursement relates to a B Loan but is not limited to a
specific source of funds (other than the requirement that it must be made by
withdrawal from the A/B Loan Pair Custodial Account insofar as it relates to a B
Loan and is permitted pursuant to the A/B Intercreditor Agreement), the Master
Servicer shall, if funds on deposit in such A/B Loan Pair Custodial Account are
insufficient therefor, request the B Loan Holder to make such payment or
reimbursement to the extent the B Loan Holder is obligated to make such payment
or reimbursement pursuant to the A/B Intercreditor Agreement. If the B Loan
Holder fails to make such payment or reimbursement that it is obligated to make
within three Business Days following such request and the Master Servicer deems
the payment or reimbursement necessary to protect the related Mortgaged Property
from a default, delinquency or other anticipated event that is imminent with
respect to the related Mortgage Loan in its reasonable judgment and in
accordance with the Servicing Standard, the Master Servicer shall be entitled to
make such payment or reimbursement from the Collection Account. If such payment
or reimbursement is subsequently recovered from the B Loan Holder (including, if
permitted by the related A/B Intercreditor Agreement, by offset against
subsequent amounts payable to the B Loan Holder), to the extent that any amounts
were previously taken by the Master Servicer from the Collection Account, the
amount recovered shall be deposited into the Collection Account and shall not be
deposited into the A/B Loan Pair Custodial Account; provided that with respect
to any Servicing Advance previously made by the Master Servicer that becomes a
Nonrecoverable Advance, such Advance shall be reimbursed out of the Collection
Account.
The Master Servicer shall pay to the Special Servicer from the
Collection Account amounts permitted to be paid to it therefrom promptly upon
receipt of a certificate of a Servicing Officer of the Special Servicer
describing the item and amount to which such Special Servicer is entitled. The
Master Servicer may rely conclusively on any such certificate and shall have no
duty to re-calculate the amounts stated therein. The Special Servicer shall keep
and maintain separate accounting for each Specially Serviced Mortgage Loan and
REO Property, on a loan-by-loan and property-by-property basis, for the purpose
of justifying any request thereby for withdrawal from a Collection Account.
If at any time the Master Servicer (or the Trustee) determines that
the reimbursement of a Nonrecoverable Advance during a Collection Period will
exceed the full amount of the principal portion of general collections received
on the Mortgage Loans during such Collection Period, then the Master Servicer
(or the Trustee) shall use its reasonable efforts to give the Rating Agencies at
least 15 days' notice prior to any reimbursement to it of Nonrecoverable
Advances from amounts in the Collection Account allocable to interest on the
Mortgage Loans unless extraordinary or unanticipated circumstances, including,
without limitation, the following, make such notice impractical (1) the Master
Servicer (or the Trustee) determines in its sole discretion that waiting 15 days
after such a notice could jeopardize the Master Servicer's (or the Trustee's)
ability to recover such Nonrecoverable Advance, (2) changed circumstances or new
or different information becomes known to the Master Servicer (or the Trustee)
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 such Master
Servicer to consider in determining whether to defer reimbursement of a
Nonrecoverable Advance (or the Trustee has not timely received from the Master
Servicer information requested by the Trustee to consider in determining whether
to defer reimbursement of a Nonrecoverable Advance); provided, however, that, if
clause (1), (2) or (3) apply, the Master Servicer (or, if applicable, the
Trustee) shall use reasonable efforts to give Rating Agencies notice of an
anticipated reimbursement to it of Nonrecoverable Advances from amounts in the
Collection Account allocable to interest on the Mortgage Loans as soon as
reasonably practicable in such circumstances. The failure to give any notice
contemplated by this paragraph to the Rating Agencies shall not give rise to any
liability whatsoever on the part of the Master Servicer or Trustee, shall not
constitute an Event of Default hereunder and shall not be a condition for
reimbursement of a Nonrecoverable Advance.
(b) The Trustee shall, from time to time, make or be deemed to make
withdrawals from the Lower-Tier Distribution Account for each of the following
purposes (the order set forth below not constituting an order of priority for
such withdrawals):
(i) to make distributions or deemed distributions of the Lower-Tier
Distribution Amount pursuant to Section 3.04(g) and Section 4.01 and the
amount of any Yield Maintenance Charges distributable pursuant to Section
4.01(c) to the Upper-Tier Distribution Account;
(ii) to pay itself or any of its directors, officers, employees and
agents, as the case may be, any amounts payable or reimbursable to any
such Person pursuant to Section 8.05, including the Trustee Fee;
(iii) [reserved]
(iv) [reserved]
(v) to pay for the cost of the Opinions of Counsel contemplated by
Section 11.01(a) or Section 11.01(c) in connection with any amendment to
this Agreement requested by the Trustee;
(vi) to pay any and all federal, state and local taxes imposed the
Upper-Tier REMIC or Lower-Tier REMIC created hereunder, together with all
incidental costs and expenses, and any and all expenses relating to tax
audits, if and to the extent that either (A) none of the parties hereto
are liable therefor pursuant to Section 10.01(b) and/or Section 10.01(f)
or (B) any such Person that may be so liable has failed to timely make the
required payment;
(vii) to recoup any amounts deposited in the Distribution Account in
error;
(viii) to pay the Trustee any Net Investment Earnings on funds in
the Distribution Account pursuant to Section 3.06;
(ix) to transfer or be deemed to transfer Interest Reserve Amounts
in respect of the Interest Reserve Mortgage Loans to the Interest Reserve
Account as and when required by Section 3.04(c); and
(x) to clear and terminate the Lower-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(c) The Trustee, may make withdrawals from the Upper Tier
Distribution Account for any of the following purposes: (i) to make
distributions to Certificateholders (other than Holders of the Class A-MFL
Certificates, Class S Certificates and Class LR Certificates) on each
Distribution Date pursuant to Section 4.01 or Section 9.01, as applicable; (ii)
to make or be deemed to make distributions to the Floating Rate Account in
respect of the Class A-MFL Regular Interest pursuant to Section 3.04(g) and
Section 4.01 or Section 9.01, as applicable; (iii) to recoup any amounts
deposited in the Upper Tier Distribution Account in error; and (iv) to clear and
terminate the Upper Tier Distribution Account at the termination of this
Agreement pursuant to Section 9.01.
(d) Notwithstanding anything herein to the contrary, with respect to
any Mortgage Loan, if amounts on deposit in the Collection Account are not
sufficient to reimburse the full amount of, together with interest on, Advances
listed in Sections 3.05(a)(ii), (vi), (vii), (viii) and (xi), then
reimbursements shall be paid first to the Trustee and then to the Master
Servicer.
(e) On the Master Servicer Remittance Date in March of each year
(commencing in March 2008), and in any event on the Master Servicer Remittance
Date that occurs in the same calendar month as the Final Distribution Date, the
Trustee shall withdraw or be deemed to withdraw from the Interest Reserve
Account and deposit or be deemed to deposit in the Distribution Account all
Interest Reserve Amounts in respect of the Interest Reserve Mortgage Loans then
on deposit in the Interest Reserve Account.
(f) On the Business Day prior to each Distribution Date, the Trustee
shall withdraw or be deemed to withdraw from the Excess Liquidation Proceeds
Account and deposit or be deemed to deposit in the Distribution Account, for
distribution on such 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 on
such Distribution Date pursuant to Sections 4.01(a) and 4.01(b), over the
Available Distribution Amount for such Distribution Date (calculated without
regard to such transfer from the Excess Liquidation Proceeds Account to the
Distribution Account); provided that on the Business Day prior to the Final
Distribution Date, the Trustee shall withdraw from the Excess Liquidation
Proceeds Account and deposit in the Distribution Account, for distribution on
such Distribution Date, any and all amounts then on deposit in the Excess
Liquidation Proceeds Account. The Trustee shall, from time to time, make
withdrawals from the Excess Liquidation Proceeds Account to pay itself interest
or other income earned on deposits in the Excess Liquidation Proceeds Account,
in accordance with Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to the Excess Liquidation Proceeds Account for
each Collection Period).
(g) The Trustee may from time to time make withdrawals from the
Floating Rate Account for (but only for) the following purposes:
(i) to make regularly scheduled payments of the Class A-MFL Net
Fixed Swap Payment to the Swap Counterparty pursuant to Section 3.28(e),
to the extent such payment is required under the Swap Agreement;
(ii) to make distributions to the Class A-MFL Certificateholders on
each Distribution Date pursuant to Section 4.01(f);
(iii) to pay itself Net Investment Earnings earned on funds held in
the Floating Rate Account;
(iv) to pay to the Persons entitled thereto any amounts deposited in
the Floating Rate Account in error; and
(v) to clear and terminate the Floating Rate Account pursuant to
Section 9.01.
(h) The Trustee, the Depositor, the Master Servicer and the Special
Servicer, as applicable, shall in all cases have a right prior to the
Certificateholders to any particular funds on deposit in a Collection Account
and the Distribution Account from time to time for the reimbursement or payment
of compensation, Advances (with interest thereon at the Reimbursement Rate) and
their respective expenses hereunder, but only if and to the extent such
compensation, Advances (with interest) and expenses are to be reimbursed or paid
from such particular funds on deposit in a Collection Account or the
Distribution Account pursuant to the express terms of this Agreement.
Section 3.06 Investment of Funds in the Collection Account,
Servicing Accounts, Reserve Accounts,
Distribution Account, Interest Reserve Account,
Excess Liquidation Proceeds Account, Post-ARD
Additional Interest Distribution Account,
Floating Rate Account and the REO Account
(a) The Master Servicer may direct (pursuant to a standing order or
otherwise) any depository institution (including the Trustee) maintaining a
Collection Account, any A/B Loan Pair Custodial Account, any Servicing Account,
the Special Reserve Account, the Purchase Price Security Deposit Account or any
Reserve Account held by it, and the Special Servicer may direct (pursuant to a
standing order or otherwise) any depository institution maintaining an REO
Account and the Trustee may direct (pursuant to a standing order or otherwise)
any depository institution maintaining the Distribution Account, the Interest
Reserve Account, the Excess Liquidation Proceeds Account, the Post-ARD
Additional Interest Distribution Account or the Floating Rate Account, to
invest, or if it is such depository institution, may itself invest, the funds
held therein (each such account, for purposes of this Section 3.06, an
"Investment Account") in (but only in) one or more Permitted Investments bearing
interest or sold at a discount, and maturing, unless payable on demand, no later
than the Business Day immediately preceding the next succeeding date on which
such funds are required to be withdrawn from such account pursuant to this
Agreement or the related Mortgage Loan Documents, as applicable, or with respect
to Permitted Investments of funds held in the Distribution Account no later than
12:00 p.m. on the next succeeding Distribution Date; provided that any such
investment of funds in any Servicing Account or Reserve Account shall be subject
to applicable law and the terms of the related Mortgage Loan Documents; and
provided, further, that the funds in any Investment Account shall remain
uninvested unless and until the Master Servicer, the Special Servicer or the
Trustee, as applicable, gives timely investment instructions with respect
thereto pursuant to this Section 3.06. All such Permitted Investments shall be
held to maturity, unless payable on demand. Any investment of funds in an
Investment Account shall be made in the name of the Trustee (in its capacity as
such).
The Master Servicer (in the case of any account held under this
Agreement by the Master Servicer) or the Special Servicer (in the case of the
REO Account), on behalf of the Trustee (in the case of any Trustee Account)
shall be the "entitlement holder," as such term is defined in the UCC, of any
Permitted Investment that is a "security entitlement," as such term is defined
in the UCC, and maintain continuous possession of any Permitted Investment of
amounts in such accounts that is either (i) a "certificated security," as such
term is defined in the UCC or (ii) other property in which a secured party may
perfect its security interest by possession under the UCC or any other
applicable law. Possession of any such Permitted Investment by the Master
Servicer or Special Servicer shall constitute possession by the Trustee, as
secured party, for purposes of Section 9-313 of the UCC and any other applicable
law. In the event 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 Servicer Account), the Special Servicer (in the case of
the REO Account) or the Trustee (in the case of any Trustee Account) shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount at least equal to 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, such 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 a Collection Account or any A/B Loan Pair Custodial Account, interest
and investment income realized on funds deposited therein, to the extent of the
Net Investment Earnings, if any, for such Investment Account for each Collection
Period, shall be for the sole and exclusive benefit of such Master Servicer and
shall be subject to its withdrawal in accordance with Section 3.05(a). Whether
or not the Master Servicer directs the investment of funds in any Servicing
Account or Reserve Account maintained by it, interest and investment income
realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for such Investment Account for each Collection Period, and
subject to the requirements of applicable law or the terms of the related
Mortgage Loan regarding the payment of such interest and investment income to
the related Borrower, shall be for the sole and exclusive benefit of the Master
Servicer and shall be subject to withdrawal from time to time in accordance with
Section 3.03. Whether or not the Special Servicer directs the investment of
funds in an REO Account, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of such Special Servicer and shall be subject to its
withdrawal in accordance with Section 3.16(b). Whether or not the Trustee
directs the investment of funds in the Distribution Account, the Interest
Reserve Account, the Excess Liquidation Proceeds Account, the Post-ARD
Additional Interest Distribution Account or the Floating Rate Account, interest
and investment income realized on funds deposited therein, to the extent of any
Net Investment Earnings, if any, for such Account for each Collection Period,
shall be for the sole and exclusive benefit of the Trustee and shall be subject
to its withdrawal in accordance with Section 3.05(b). If any loss shall be
incurred in respect of any Permitted Investment on deposit in any Investment
Account (other than a loss of what would otherwise have constituted investment
earnings), the Master Servicer (in the case of a Collection Account and any
Servicing Account or Reserve Account), the Special Servicer (in the case of an
REO Account) and the Trustee (in the case of the Distribution Account, the
Interest Reserve Account, the Excess Liquidation Proceeds Account, the Post-ARD
Additional Interest Distribution Account or the Floating Rate Account) shall
promptly deposit therein (or, solely to the extent that the loss is of an amount
credited to an A/B Loan Pair Custodial Account, deposit to the related A/B Loan
Pair Custodial Account, as the case may be) from its own funds, without right of
reimbursement, no later than the end of the Collection Period during which such
loss was incurred, the amount of the Net Investment Loss, if any, in respect of
such Investment Account for such Collection Period (or, in the case of a
Servicing Account or Reserve Account, the entire amount of such loss), except
(in the case of any such loss with respect to a Servicing Account or Reserve
Account) to the extent the loss amounts were invested for the benefit of a
Borrower under the terms of a Mortgage Loan or applicable law and such Borrower
has no recourse against the Trust in respect of such loss.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of any payment due (or in any other performance
required) under any Permitted Investment, and if the Master Servicer (if such
default is in respect of a Permitted Investment of funds in a Collection Account
or in any Reserve Account or Servicing Account) or the Special Servicer (if such
default is in respect of a Permitted Investment of funds in an REO Account), as
applicable, is in default of its obligations under Section 3.06(b), the Trustee
may (and, subject to Section 8.02, upon the request of Holders of Certificates
entitled to not less than 25% of the Voting Rights allocated to any Class of
Regular Certificates, the Trustee shall) take such action as may be appropriate
to enforce such payment or performance, including the institution and
prosecution of appropriate legal proceedings. Any costs incurred by the Trustee
in taking any such action shall be reimbursed to it by the Master Servicer if
the default is in respect of a Permitted Investment of funds in a Collection
Account or in any Reserve Account or Servicing Account or by the Special
Servicer if the default is in respect of a Permitted Investment of funds in an
REO Account. This provision is in no way intended to limit any actions that the
Master Servicer or the Special Servicer may take in this regard at its own
expense.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including the calculation
of the Available Distribution Amount and the Master Servicer Remittance Amount,
the amounts so invested shall be deemed to remain on deposit in such Investment
Account.
Section 3.07 Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage
(a) The Master Servicer shall use reasonable efforts consistent with
the Servicing Standard to cause each Borrower to maintain from Qualified
Insurers, and, if the Borrower does not so maintain, such Master Servicer will
itself cause to be maintained, for each Mortgaged Property (including each
Mortgaged Property relating to any Specially Serviced Mortgage Loan) all
insurance coverage as is required, subject to applicable law, under the related
Mortgage Loan Documents; 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 Borrower is required
to maintain, such Master Servicer shall exercise such discretion in a manner
consistent with the Servicing Standard (taking into account the insurance in
place at the closing of the related Mortgage Loan), with a view towards
requiring insurance comparable to that required under other Mortgage Loans with
express provisions governing such matters and, in any event, business
interruption or rental loss insurance for at least 12 months; and provided,
further, that, if and to the extent that any such Mortgage so permits, the
related Borrower shall be required to obtain the required insurance coverage
from Qualified Insurers that, in each case, have a financial strength or
claims-paying rating no lower than two rating categories below the highest rated
Certificates outstanding, and in any event no lower than "A" from Fitch and "A2"
from Xxxxx'x (or in such other form and amount or issued by an insurer with such
other financial strength or claims-paying ability as would not, as confirmed in
writing by the relevant Rating Agency, result in an Adverse Rating Event); and
provided, further, that such Master Servicer shall be required to maintain such
insurance coverage upon the related Borrower's failure to do so only to the
extent that (i) the Trustee as mortgagee has an insurable interest, (ii) such
insurance is available at commercially reasonable rates (as determined by the
Special Servicer and approved by the Controlling Class Representative, subject
to Section 3.24(b)) and (iii) any related Servicing Advance is deemed by the
Master Servicer to be recoverable from collections on the related Mortgage Loan;
provided, that if such Servicing Advance is deemed nonrecoverable the Master
Servicer (or, at the direction of the Special Servicer if a Specially Serviced
Mortgage Loan or an REO Property is involved) shall pay such amounts out of the
applicable Collection Account provided, further, that the Master Servicer (or
the Special Servicer, if a Specially Serviced Mortgage Loan or an REO Property
is involved) has determined in accordance with the Servicing Standard that
making such payment is in the best interests of the Certificateholders (as a
collective whole), as evidenced in each case by any Officer's Certificate
delivered promptly to the Trustee, the Depositor and the Controlling Class
Representative, setting forth the basis for such determination and accompanied
by any information that such Person may have obtained that supports such
determination. Subject to Section 3.17(b), the Special Servicer shall also cause
to be maintained for each REO Property no less insurance coverage (to the extent
available at commercially reasonable rates, as determined by the Special
Servicer with the consent of the Controlling Class Representative, subject to
Section 3.24(b)) than was previously required of the Borrower under the related
Mortgage and, at a minimum, (i) hazard insurance with a replacement cost rider,
(ii) business interruption or rental loss insurance for at least 12 months, and
(iii) commercial general liability insurance, in each case, in an amount
customary for the type and geographic location of such REO Property and
consistent with the Servicing Standard; provided that all such insurance shall
be obtained from Qualified Insurers that, in each case, shall have a financial
strength or claims-paying rating no lower than two rating categories below the
highest rated Certificates outstanding, and in any event no lower than "A" from
Fitch and "A2" from Xxxxx'x (or in such other form and amount or issued by an
insurer with such other financial strength or claims-paying ability as would
not, as confirmed in writing by the relevant Rating Agency, result in an Adverse
Rating Event). All such insurance policies shall contain (if they insure against
loss to property) a "standard" mortgagee clause, with loss payable to the Master
Servicer on behalf of the Trustee (in the case of insurance maintained in
respect of Mortgage Loans), or shall name the Trustee as the insured, with loss
payable to the Special Servicer on behalf of the Trustee (in the case of
insurance maintained in respect of REO Properties), and shall be issued by an
insurer authorized under applicable law to issue such insurance. 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
Borrower, in each case in accordance with the Servicing Standard) shall be
deposited in the Collection Account or any related A/B Loan Pair Custodial
Account, subject to withdrawal pursuant to Section 3.05(a), in the case of
amounts received in respect of a Mortgage Loan, or in the REO Account, subject
to withdrawal pursuant to Section 3.16(c), in the case of amounts received in
respect of an REO Property. Any cost incurred by the Master Servicer or the
Special Servicer in maintaining any such insurance shall not, for purposes
hereof, including calculating monthly distributions to Certificateholders, be
added to unpaid principal balance or Stated Principal Balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit;
provided, however, that this sentence shall not limit the rights of the Master
Servicer on behalf of the Trust to enforce any obligations of the related
Borrower under such Mortgage Loan. Costs to the Master Servicer or the Special
Servicer of maintaining insurance policies and enforcing the obligations of
Borrowers pursuant to this Section 3.07 shall be paid by and reimbursable to
such Master Servicer or Special Servicer, as applicable, as a Servicing Advance.
Subject to the preceding paragraph, the Master Servicer shall use
reasonable efforts to cause the Borrower to maintain or, if the Borrower does
not so maintain, the Master Servicer will maintain all-risk casualty insurance
or extended coverage insurance (with special form coverage) (the cost of which
will be payable as a Servicing Advance), which does not contain any carve-out
for terrorist or similar acts; provided, however, the Master Servicer shall not
require any Borrower to obtain or maintain insurance in excess of the amounts of
coverage and deductibles required by the related Mortgage Loan Documents or the
related Mortgage Loan Seller in connection with the origination of a Mortgage
Loan unless such Master Servicer determines, in accordance with the Servicing
Standard, that such insurance required at origination would not be prudent for
Mortgaged Property of the same type as the related Mortgaged Property. The
Master Servicer shall not be required to call a default under a Mortgage Loan if
the related Borrower fails to maintain such insurance, and the Master Servicer
shall not be required to maintain such insurance, to the extent, if any, that
the cost of such insurance exceeds the maximum cost that the related Borrower is
required to incur under the related Mortgage Loan Documents, or if the Special
Servicer has determined in accordance with the Servicing Standard that either
(i) such insurance is not available at commercially reasonable rates or that
such hazards are not at the time commonly insured against for properties similar
to the Mortgaged Property and located in or around the region in which such
Mortgaged Property is located (which determination shall be subject to the
approval of the Controlling Class Representative, subject to the limitations of
Section 3.24(b)), or (ii) such insurance is not available at any rate.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy or master
force placed policy insuring against hazard losses on all of the Mortgage Loans
or REO Properties, as applicable, that it is required to service and administer,
then, to the extent such policy (i) is obtained from a Qualified Insurer having
a financial strength or claims-paying rating no lower than "A" from Fitch and
"A2" from Xxxxx'x or having such other financial strength or claims-paying
ability rating as would not, as confirmed in writing by the relevant Rating
Agency, result in an Adverse Rating Event, and (ii) provides protection
equivalent to the individual policies otherwise required, such Master Servicer
or 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 or REO Properties, as applicable. Such policy may
contain a deductible clause (not in excess of a customary amount), in which case
the Master Servicer or the Special Servicer, as appropriate, shall, if there
shall not have been maintained on the related Mortgaged Property or REO Property
a hazard insurance policy complying with the requirements of Section 3.07(a),
and there shall have been one or more losses that would have been covered by
such an individual policy, promptly deposit into the Collection Account from its
own funds the amount not otherwise payable under the blanket or master force
placed policy in connection with such loss or losses because of such deductible
clause to the extent that any such deductible exceeds the deductible limitation
that pertained to the related Mortgage Loan (or, in the absence of any such
deductible limitation, the deductible limitation for an individual policy which
is consistent with the Servicing Standard). The Master Servicer or the Special
Servicer, as appropriate, shall prepare and present, on behalf of itself, the
Trustee and Certificateholders, claims under any such blanket or master force
placed policy in a timely fashion in accordance with the terms of such policy.
(c) Promptly after (but in no event more than 30 days after) the
Closing Date, with respect to each of the Mortgage Loans covered by an
Environmental Insurance Policy as identified on Exhibit B-4, the Master Servicer
shall notify the insurer under such Environmental Insurance Policy and take all
other action necessary for the Trustee, on behalf of the Certificateholders, to
be an insured (and for such Master Servicer, on behalf of the Trust, to make
claims) under such Environmental Insurance Policy. In the event that the Master
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 Mortgage Loan covered thereby, such Master Servicer shall, in accordance
with the terms of such Environmental Insurance Policy and the Servicing
Standard, timely make a claim thereunder with the appropriate insurer and shall
take such other actions in accordance with the Servicing Standard which are
necessary under such Environmental Insurance Policy in order to realize the full
value thereof for the benefit of the Certificateholders. If any other party
hereto has actual knowledge of an Insured Environmental Event with respect to
any Mortgage Loan covered by an Environmental Insurance Policy to this
Agreement, such party shall promptly so notify the Master Servicer. Any legal
fees, premiums or other out-of-pocket costs incurred in accordance with the
Servicing Standard in connection with any such claim under an Environmental
Insurance Policy shall be paid by the Master Servicer and shall be reimbursable
to it as a Servicing Advance. With respect to each Environmental Insurance
Policy that relates to one or more Mortgage Loans, the Master Servicer shall
review and familiarize itself with the terms and conditions relating to
enforcement of claims and shall monitor the dates by which any claim must be
made or any action must be taken under such policy to realize the full value
thereof for the benefit of the Certificateholders in the event the Master
Servicer has actual knowledge of an Insured Environmental Event giving rise to a
claim under such policy.
In the event that the Master Servicer receives notice of any
termination of any Environmental Insurance Policy that relates to one or more
Mortgage Loans, such Master Servicer shall, within five Business Days after
receipt of such notice, notify the Special Servicer, the Controlling Class
Representative, the Rating Agencies and the Trustee of such termination in
writing. Upon receipt of such notice, such Master Servicer shall address such
termination in accordance with Section 3.07(a) in the same manner as it would
the termination of any other Insurance Policy required under the related
Mortgage Loan Documents. Any legal fees, premiums or other out-of-pocket costs
incurred in accordance with the Servicing Standard in connection with a
resolution of such termination of an Environmental Insurance Policy shall be
paid by the Master Servicer and shall be reimbursable to it as a Servicing
Advance.
(d) 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 during which Specially Serviced
Mortgage Loans or REO Properties exist as part of the Trust Fund) keep in force
with a Qualified Insurer having a financial strength or claims-paying rating no
lower than two rating categories below the highest rated Certificates
outstanding, and in any event no lower than "A" from Fitch and "A2" from
Xxxxx'x, a fidelity bond 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 or issued by an insurer with such other financial strength
or claims-paying ability rating as would not result in an Adverse Rating Event
with respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by the relevant Rating Agency)). 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. Such fidelity bond shall provide
that it may not be canceled without ten days' prior written notice to the
Trustee.
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 during which Specially Serviced
Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep
in force with a Qualified Insurer having a financial strength or claims-paying
rating no lower than two rating categories below the highest rated Certificates
outstanding, and in any event no lower than "A" from Fitch and "A2" from
Xxxxx'x, 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 or issued by an
insurer with such other financial strength or claims-paying rating as would not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee by the relevant Rating
Agency)). 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. Any such errors and omissions policy shall provide that it may not be
canceled without ten days' prior written notice to the Trustee.
Section 3.08 Enforcement of Alienation Clauses
The Master Servicer (with respect to Performing Mortgage Loans) and
the Special Servicer (with respect to Specially Serviced Mortgage Loans), on
behalf of the Trustee as the mortgagee of record, shall enforce any
restrictions, contained in the related Mortgage or other related Mortgage Loan
Document on transfers or further encumbrances of the related Mortgaged Property
and on transfers or encumbrances of interests in the related Borrower, unless
the Master Servicer or the Special Servicer, as the case may be, has determined,
in its reasonable judgment, that waiver of such restrictions would be in
accordance with the Servicing Standard; provided that, subject to the related
Mortgage Loan Documents and applicable law, neither the Master Servicer nor the
Special Servicer shall waive any right it has, or grant any consent it is
otherwise entitled to withhold, under any related "due-on-sale" clause or
"due-on-encumbrance" clause until it has received written confirmation from each
Rating Agency that such action would not result in an Adverse Rating Event with
respect to any Class of Rated Certificates, if (but only if) with respect to a
"due-on-sale" clause, such "due-on-sale" clause involves any Mortgage Loan that,
individually or together with all other Mortgage Loans, if any, that are in the
same Cross-Collateralized Group as such Mortgage Loan, with respect to Fitch or
Xxxxx'x, has an original principal balance that is one of the ten highest
original principal balances in the Mortgage Pool or, with respect to the
enforcement of a "due-on-encumbrance" clause, such Mortgage Loan or group of
Cross-Collateralized Mortgage Loans, with respect to Fitch, either (A) has an
original principal balance that is one of the ten highest original principal
balances in the Mortgage Pool or (B) by itself, or as part of a Crossed Mortgage
Loan group or group of Mortgage Loans with affiliated Borrowers has (a) a
Loan-to-Value Ratio equal to or greater than 85% or (b) a Debt Service Coverage
Ratio equal to or less than 1.2x (in each case, treating the existing debt on
the subject Mortgaged Property and the proposed additional debt as if such total
debt were a single Mortgage Loan) or, with respect to Xxxxx'x, has an original
principal balance that is one of the ten highest original principal balances in
the Mortgage Pool, and provided, further, that the Master Servicer shall not
waive any right it has, or grant any consent it is otherwise entitled to
withhold under any "due-on-sale" or "due-on-encumbrance" clause under any
Mortgage Loan until it has received the consent of the Special Servicer (the
giving of which consent shall be subject to Section 3.24; and provided, further,
that, subject to the related Mortgage Loan Documents and applicable law, neither
such Master Servicer nor such Special Servicer shall waive any right it has, or
grant any consent it is otherwise entitled to withhold, under any related
"due-on-sale" or "due-on-encumbrance" clause under any Mortgage Loan, or approve
the assumption of any Mortgage Loan, unless in any such case, all associated
costs and expenses are covered without any expense to the Trust (it being
understood and agreed that, except as expressly provided herein, neither such
Special Servicer nor such Master Servicer shall be obligated to cover or assume
any such costs or expenses); and provided, further, that neither the Master
Servicer nor the Special Servicer shall (to the extent that it is within the
control thereof to prohibit such event) consent to the transfer of any Mortgaged
Property which secures a Cross-Collateralized Group unless (i) all of the
Mortgaged Properties securing such Cross-Collateralized Group are transferred
simultaneously by the respective Borrower or (ii) it obtains the consent of the
Controlling Class Representative, subject to the limitations of Section 3.24(b).
The Master Servicer and the Special Servicer shall each provide the other and
the Controlling Class Representative with all such information as each may
reasonably request in order to make any determination required under this
paragraph.
In connection with any permitted assumption of any Mortgage Loan or
waiver of a "due-on-sale" or "due-on-encumbrance" clause thereunder, the Master
Servicer (in the case of a Performing Mortgage Loan ) or the Special Servicer
(in the case of a Specially Serviced Mortgage Loan) shall prepare all documents
necessary and appropriate for such purposes and shall coordinate with the
related Borrower for the due execution and delivery of such documents.
Notwithstanding the foregoing, it is hereby acknowledged that the
Column Primary Servicer will perform the Master Servicer's duties under this
Section 3.08 with respect to the Column Serviced Loans pursuant to and in
accordance with the related Designated Sub-Servicing Agreement, and that the
Master Servicer shall have no obligation to approve or oversee the performance
of any such duties by the Column Primary Servicer. The Master Servicer shall
have no liability for any claims, losses, damages, penalties, fines,
forfeitures, reasonable legal fees and expenses and related costs, judgments or
other costs and expenses arising from (i) a breach of such duties by the Column
Primary Servicer or (ii) negligence, bad faith or willful misconduct in the
performance of such duties by the Column Primary Servicer.
If the Master Servicer or the Special Servicer collects an
assumption fee or an assumption application fee in connection with any transfer
or proposed transfer of any interest in a Borrower or a Mortgaged Property, then
such Master Servicer or such Special Servicer, as applicable, will apply that
fee to cover the costs and expenses associated with that transfer or proposed
transfer that are not otherwise paid by the related Borrower and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses, to the extent such fees and expenses are expressly
required to be paid by the related Borrower under the related Mortgage Loan
Document or applicable law. Any remaining portion of such assumption fee (such
remaining portion, a "Net Assumption Fee") or of such assumption application fee
(such remaining portion, a "Net Assumption Application Fee") will be applied as
additional compensation to the Master Servicer or the Special Servicer in
accordance with Section 3.11. Neither the Master Servicer nor the Special
Servicer shall waive any assumption fee or assumption application fee, to the
extent it would constitute additional compensation for the other such party,
without the consent of such other party.
Section 3.09 Realization Upon Defaulted Mortgage Loans
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), 3.09(d) and 3.24, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of the real property and other collateral securing any Mortgage Loan
that comes into and continues 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 the Master Servicer shall not, with
respect to any ARD Mortgage Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Post-ARD Additional Interest
(other than the making of requests for its collection), and such Special
Servicer may do so only if (i) the taking of an enforcement action with respect
to the payment of other amounts due under such Mortgage Loan is, in the
reasonable judgment of the Special Servicer, and without regard to such Post-ARD
Additional Interest, also necessary, appropriate and consistent with the
Servicing Standard or (ii) all other amounts due under such Mortgage Loan have
been paid, the payment of such Post-ARD Additional Interest has not been
forgiven in accordance with Section 3.20 and, in the 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 Advance Interest. In
connection with the foregoing, in the event of a default under any Mortgage Loan
or Cross-Collateralized Group that is secured by real properties located in
multiple states, and such states include California or another state with a
statute, rule or regulation comparable to California's "one action rule," then
the Special Servicer shall consult Independent counsel regarding the order and
manner in which such Special Servicer should foreclose upon or comparably
proceed against such properties. The reasonable costs of such consultation shall
be paid by, and reimbursable to, the Master Servicer as a Servicing Advance. In
addition, all other costs and expenses incurred in any foreclosure sale or
similar proceeding shall be paid by, and reimbursable to, the Master Servicer as
a Servicing Advance. Nothing contained in this Section 3.09 shall be construed
so as to require the Special Servicer, on behalf of the Trust, 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 such Special
Servicer taking into account the factors described in Section 3.18 and the
results of any appraisal obtained pursuant to the following sentence or
otherwise, all such cash bids to be made in a manner consistent with the
Servicing Standard. If and when the Special Servicer deems it necessary in
accordance with the Servicing Standard for purposes of establishing the fair
market value of any Mortgaged Property securing a defaulted Mortgage Loan,
whether for purposes of bidding at foreclosure or otherwise, such Special
Servicer is authorized to have an Appraisal completed with respect to such
property (the cost of which appraisal shall be paid by, and reimbursable to, the
Master Servicer as a Servicing Advance). The Master Servicer shall not foreclose
upon or otherwise comparably convert, including by taking title thereto, any
real property or other collateral securing a defaulted Mortgage Loan.
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Trust under such circumstances, in such manner or pursuant to such terms as
would (i) cause such Mortgaged Property to fail to qualify for purposes of
Section 860D(a) of the Code as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (unless the portion of such REO Property that is
not treated as "foreclosure property" and that is held by the Lower-Tier REMIC
at any given time constitutes not more than a de minimis amount of the assets of
such Lower-Tier REMIC within the meaning of Treasury Regulations Section
1.860D-1(b)(3)(i) and (ii)), or (ii) except as permitted by Section 3.17(a),
subject the Trust to the imposition of any federal income or prohibited
transaction taxes under the Code. Subject to the foregoing, however, a Mortgaged
Property may be acquired through a single member limited liability company. In
addition, except as permitted under Section 3.17(a), the Special Servicer shall
not acquire any personal property on behalf of the Trust pursuant to this
Section 3.09 unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by such Special
Servicer; or
(ii) such Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be paid by and reimbursable to the Master
Servicer as a Servicing Advance) to the effect that the holding of such
personal property as part of the Trust Fund will not result in an Adverse
REMIC Event with respect to the Upper-Tier REMIC or the Lower-Tier REMIC
or in an Adverse Grantor Trust Event with respect to the Grantor Trust
Pool.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trust, 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 an A/B Loan Pair, the related B Loan
Holder) or any other specified person, could, in the reasonable judgment of the
Special Servicer, exercised in accordance with the Servicing Standard, be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA or
any comparable law, unless:
(i) such Special Servicer has previously determined in accordance
with the Servicing Standard, based on a Phase I Environmental Assessment
(and any additional environmental testing that the Special Servicer deems
necessary and prudent) of such Mortgaged Property conducted by an
Independent Person who regularly conducts Phase I Environmental
Assessments and performed during the 12-month period preceding any such
acquisition of title or other action, that (x) the Mortgaged Property is
in compliance with applicable environmental laws and regulations and (y)
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
(ii) in the event that the determination described in clause (c)(i)
above cannot be made, such Special Servicer has previously determined in
accordance with the Servicing Standard, on the same basis as described in
clause (c)(i) above, and taking into account the coverage provided under
the related Environmental Insurance Policy, that it would maximize the
recovery to the Certificateholders (and the B Loan Holder if in connection
with a B Loan, taken 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 Net Mortgage Rate) to
acquire title to or possession of the Mortgaged Property and to take such
remedial, corrective and/or other further actions as are necessary to
bring the Mortgaged Property into compliance with applicable environmental
laws and regulations and to appropriately address any of the circumstances
and conditions referred to in clause (c)(i)(y) above.
Any such determination by the Special Servicer contemplated by
clause (c)(i) or clause (c)(ii) of the preceding paragraph shall be evidenced by
an Officer's Certificate to such effect delivered to the Trustee, the Master
Servicer and the Controlling Class Representative, specifying all of the bases
for such determination, such Officer's Certificate to be accompanied by all
related environmental reports. The cost of such Phase I Environmental Assessment
and any such additional environmental testing shall be advanced by the Master
Servicer at the direction of the Special Servicer given in accordance with the
Servicing Standard; provided, however, that the Master Servicer shall not be
obligated in connection therewith to advance any funds which, if so advanced,
would constitute a Nonrecoverable Servicing Advance. Amounts so advanced shall
be subject to reimbursement as Servicing Advances in accordance with Section
3.05(a). The cost of any remedial, corrective or other further action
contemplated by clause (c)(ii) of the preceding paragraph shall be payable out
of the Master Servicer's Collection Account pursuant to Section 3.05.
(d) If neither of the conditions set forth in clauses (i) and (ii)
of the first paragraph of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trust, release all or a portion of such
Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall provide written reports to the
Trustee, the Master Servicer and the Controlling Class Representative monthly in
writing as to any actions taken by such Special Servicer with respect to any
Mortgaged Property as to which neither of the conditions set forth in clauses
(i) and (ii) of the first paragraph of Section 3.09(c) has been satisfied, in
each case until the earliest to occur of satisfaction of either of such
conditions, release of the lien of the related Mortgage on such Mortgaged
Property and the related Mortgage Loan's becoming a Corrected Mortgaged Loan.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the Mortgage Loan permit such an action and shall, in accordance
with the Servicing Standard, seek such deficiency judgment if it deems
advisable.
(g) Annually in each January, the Special Servicer shall on a timely
basis forward to the Master Servicer, who shall promptly file same with the IRS
on a timely basis, the information returns with respect to the reports of
foreclosures and abandonments and reports relating to any cancellation of
indebtedness income with respect to any Mortgaged Property required by Sections
6050H (as applicable), 6050J and 6050P of the Code. Contemporaneously, the
Special Servicer shall deliver to the Master Servicer, who shall promptly
forward it to the Trustee, an Officer's Certificate stating that all such
information returns relating to Specially Serviced Mortgage Loans and REO
Properties that were required to be filed during the prior twelve (12) months
have been properly completed and timely provided to such Master Servicer. The
Master Servicer shall prepare and file the information returns with respect to
the receipt of any mortgage interest received in a trade or business from
individuals with respect to any Mortgage Loan as required by Section 6050H of
the Code. All information returns shall be in form and substance sufficient to
meet the reporting requirements imposed by the relevant sections of the Code.
(h) Within three Business Days from the date on which the Special
Servicer makes a Final Recovery Determination with respect to any Mortgage Loan
or related REO Property, it shall deliver to the Trustee, the Master Servicer
and the Controlling Class Representative an Officer's Certificate evidencing
such determination. The Special Servicer shall maintain accurate records,
prepared by a Servicing Officer, of each such Final Recovery Determination (if
any) and the basis thereof.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files
(a) Upon the payment in full of any Mortgage Loan, the purchase of
an A Loan by a related B Loan Holder pursuant to the related A/B Intercreditor
Agreement, the purchase of any Mortgage Loan by the holder of a related
mezzanine loan in connection with a default pursuant to any related mezzanine
intercreditor agreement or the receipt by the Master Servicer or the Special
Servicer, as the case may be, of a notification that payment in full shall be
escrowed in a manner customary for such purposes, the Master Servicer or Special
Servicer, as the case may be, will promptly notify the Trustee and request
delivery of the related Mortgage File and, in the case of the payment in full of
any B Loan or the purchase thereof by the holder of a related mezzanine loan,
the Master Servicer or the Special Servicer, as the case may be, shall promptly
so notify each related B Loan Holder and request delivery to it of the related
Note. Any such notice and request shall be in the form of a Request for Release
(and shall include two copies) signed by a Servicing Officer (or in a mutually
agreeable electronic format that will, in lieu of a signature on its face,
originate from a Servicing Officer) 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 Collection Account or an A/B Loan Pair
Custodial Account, as applicable pursuant to Section 3.04, or remitted to the
Master Servicer to enable such deposit, have been or will be so deposited.
Within six Business Days (or within such shorter period as release can
reasonably be accomplished if the Master Servicer or Special Servicer notifies
the Trustee of an exigency) of receipt of such notice and request, the Trustee
(or, to the extent provided in Section 3.01(b), the Master Servicer or the
Special Servicer, as applicable) shall execute such instruments of satisfaction,
deeds of reconveyance and other documents as shall have been furnished to it by
the Master Servicer or the Special Servicer, and the Trustee shall release and
deliver the related Mortgage File to the Master Servicer or Special Servicer, as
the case may be. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Collection
Account or any A/B Loan Pair Custodial Account.
(b) From time to time as is appropriate for servicing or foreclosure
of any Mortgage Loan, the Master Servicer or the Special Servicer, as
applicable, shall deliver to the Trustee two copies of a Request for Release
signed by a Servicing Officer (or in a mutually agreeable electronic format that
will, in lieu of a signature on its face, originate from a Servicing Officer).
Upon receipt of the foregoing, the Trustee shall deliver the Mortgage File or
any document therein to the Master Servicer or the Special Servicer (or a
designee), as the case may be. Upon return of the Mortgage File to the Trustee,
the Trustee shall execute an acknowledgment of receipt.
(c) Within five Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents necessary to the release of the lien of a Mortgage, or to
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Borrower on the Note or Mortgage
or to obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Note or Mortgage or otherwise available at law or in equity. The
Special Servicer shall be responsible for the preparation of all such documents
and pleadings. When submitted to the Trustee and, if applicable, the related B
Loan Holder(s) for signature, such documents or pleadings shall be accompanied
by a certificate of a Servicing Officer requesting that such pleadings or
documents be executed by the Trustee or any related B Loan Holder and certifying
as to the reason such documents or pleadings are required, that the proposed
action is in the best interest of the Certificateholders (and, in the case of an
A/B Loan Pair, the related B Loan Holder(s)) (as a collective whole) and that
the execution and delivery thereof by the Trustee and any related B Loan Holder,
as the case may be, 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. Any power of attorney granted by the Trustee to
the Special Servicer in accordance with Section 3.01(b) may allow for the
Special Servicer (subject to the limitations on the use of such power of
attorney, as described in Section 3.01(b)) to take action on behalf of the
Trustee with respect to the matters described in this Section 3.10(c).
(d) From time to time as is appropriate for servicing or foreclosure
of any B Loan, the Master Servicer or Special Servicer, as applicable, subject
to the related intercreditor, co-lender or similar agreement, shall request the
original of the related Note from the related B Loan Holder.
Section 3.11 Master Servicing and Special Servicing Compensation;
Interest on and Reimbursement of Servicing
Advances; Payment of Certain Expenses;
Obligations of the Trustee Regarding Back-up
Servicing Advances
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan and each REO Mortgage Loan. As to each such Mortgage Loan and
REO Mortgage Loan, the Master Servicing Fee shall accrue each calendar month (or
portion thereof), commencing on the respective March 2007 Cut-off Date, at the
related Master Servicing Fee Rate on the same principal amount as interest
accrues from time to time during such calendar month (or portion thereof) on
such Mortgage Loan or is deemed to accrue from time to time during such calendar
month (or portion thereof) on such REO Mortgage Loan, as the case may be, and
shall be calculated on the same Interest Accrual Basis as is applicable for such
Mortgage Loan or REO Mortgage Loan, as the case may be. The Master Servicing Fee
with respect to any Mortgage Loan or REO Mortgage Loan shall cease to accrue if
a Liquidation Event occurs in respect thereof. Master Servicing Fees earned with
respect to any Mortgage Loan or REO Mortgage Loan shall be payable monthly from
payments of interest on such Mortgage Loan or REO Revenues allocable as interest
on such REO Mortgage Loan, as the case may be. The Master Servicer shall be
entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan
or REO Mortgage Loan out of the portion any related Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds allocable as interest on such
Mortgage Loan or REO Mortgage Loan, as the case may be.
(b) Subject to offset as provided in Section 3.02, the Master
Servicer shall be entitled to receive the following items as additional
servicing compensation with respect to the Mortgage Loans (the following items,
collectively, "Additional Master Servicing Compensation"):
(i) any and all Net Default Charges collected with respect to a
Performing Mortgage Loan;
(ii) 100% of any and all Net Assumption Application Fees and
defeasance fees and 50% of Net Assumption Fees, modification fees,
extension fees, consent fees, waiver fees and earn-out fees actually paid
by a Borrower with respect to a Performing Mortgage Loan;
(iii) any and all charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and other
loan processing fees actually paid by a Borrower with respect to a
Performing Mortgage Loan and, in the case of checks returned for
insufficient funds, with respect to a Specially Serviced Mortgage Loan;
(iv) any and all Prepayment Interest Excesses and defeasance fees
collected on the Mortgage Loans; and
(v) interest or other income earned on deposits in the Investment
Accounts maintained by such Master Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to any such Investment Account for each Collection Period
and, further, in the case of a Servicing Account or Reserve Account, only
to the extent such interest or other income is not required to be paid to
any Borrower under applicable law or under the related Mortgage).
The Master Servicer shall not be entitled to any Master Servicing
Fees or any other compensation from the Trust Fund hereunder with respect to the
B Loans
To the extent that any of the amounts described in the preceding
paragraph are collected by the Special Servicer, such Special Servicer shall
promptly pay such amounts to the Master Servicer.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive monthly the Special Servicing Fee with
respect to each Specially Serviced Mortgage Loan and each REO Mortgage Loan. As
to each such Specially Serviced Mortgage Loan and REO Mortgage Loan, for any
particular calendar month or applicable portion thereof, the Special Servicing
Fee shall accrue at the Special Servicing Fee Rate on the same principal amount
as interest accrues from time to time during such calendar month (or portion
thereof) on such Specially Serviced Mortgage Loan or is deemed to accrue from
time to time during such calendar month (or portion thereof) on such REO
Mortgage Loan, as the case may be, and shall be calculated on the same Interest
Accrual Basis as is applicable for such Specially Serviced Mortgage Loan or REO
Mortgage Loan, as the case may be. 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, in the case of a
Specially Serviced Mortgage Loan, as of the date it becomes a Corrected Mortgage
Loan. Earned but unpaid Special Servicing Fees shall be payable monthly out of
general collections on the Mortgage Loans, and any REO Properties relating
thereto, on deposit in the Collection Account pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan. As to each such Corrected Mortgage Loan, the Workout
Fee shall be payable out of, and shall be calculated by application of the
Workout Fee Rate to, (i) each payment of interest (other than Default Interest
and Post-ARD Additional Interest) and principal received from the related
Borrower on such Mortgage Loan for so long as it remains a Corrected Mortgage
Loan and (ii) the interest (other than Advance Interest) and principal portions
of any Liquidation Proceeds received on such Mortgage Loan while it is a
Corrected Mortgage Loan in connection with the repurchase or replacement thereof
subsequent to the end of the applicable Initial Resolution Period and any
applicable Resolution Extension Period, as a result of a Material Breach or a
Material Document Defect, by the related Mortgage Loan Seller pursuant to the
related Mortgage Loan Purchase Agreement or, if applicable, by the Column
Performance Guarantor pursuant to the Column Performance Guarantee. The Workout
Fee with respect to any Corrected Mortgage Loan will cease to be payable if a
new Servicing Transfer Event occurs with respect thereto or if the related
Mortgaged Property becomes an REO Property; provided that a new Workout Fee
would become payable if and when such Mortgage Loan again became a Corrected
Mortgage Loan with respect to such new Servicing Transfer Event. If the Special
Servicer is terminated, including pursuant to Section 3.25, or resigns in
accordance with Section 6.04, it shall retain the right to receive any and all
Workout Fees payable in respect of (i) any Mortgage Loans for which it acted as
Special Servicer that became Corrected Mortgage Loans during the period that it
acted as Special Servicer and that were still Corrected Mortgage Loans at the
time of such termination or resignation and (ii) any Specially Serviced Mortgage
Loans with respect to which it acted as Special Servicer for which the Special
Servicer has resolved the circumstances and/or conditions causing any such
Mortgage Loan to be a Specially Serviced Mortgage Loan, but which had not as of
the time it was terminated or resigned become a Corrected Mortgage Loan solely
because the related Borrower had not made three consecutive timely Monthly
Payments and which subsequently becomes a Corrected Mortgage Loan as a result of
the related Borrower making such three consecutive timely Monthly Payments (and
the successor Special Servicer will not be entitled to any portion of such
Workout Fees), in each case until the Workout Fee for any such loan ceases to be
payable in accordance with the preceding sentence; provided that, in the case of
any Specially Serviced Mortgage Loan described in clause (ii) of this sentence,
the terminated Special Servicer shall immediately deliver the related Servicing
File to the Master Servicer, and such Master Servicer shall (without additional
compensation) monitor that all conditions precedent to such Mortgage Loan's
becoming a Corrected Mortgage Loan are satisfied and, further, shall immediately
transfer such Servicing File to the new Special Servicer if and when it becomes
apparent to such Master Servicer that such conditions precedent will not be
satisfied.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Mortgage Loan or REO Property related thereto as to
which it receives any full, partial or discounted payoff from the related
Borrower or any Condemnation Proceeds or Liquidation Proceeds (other than any
Specially Serviced Mortgage Loan or REO Property that is (i) purchased by the
Special Servicer or any Holders of Certificate(s) of a Controlling Class or any
assignee of the foregoing pursuant to Section 3.18; provided that if any such
party assigns their Purchase Option to an unaffiliated third party without any
consideration therefor (other than nominal consideration), a Liquidation Fee
shall be payable, (ii) purchased by the Master Servicer, the Special Servicer or
any Certificateholder(s) of the Controlling Class pursuant to Section 9.01,
(iii) acquired by the Sole Certificateholder(s) in exchange for all the
Certificates pursuant to Section 9.01, (iv) purchased by the related B Loan
Holder pursuant to the related A/B Intercreditor Agreement so long as such
Specially Serviced Mortgage Loan or REO Property is purchased within 90 days of
the right to purchase arising (or any shorter time period specified in such
related A/B Intercreditor Agreement), (v) purchased by a mezzanine lender
pursuant to the terms of any related intercreditor agreement within 90 days (or
with respect to any Mortgage Loan, any shorter time frame as set forth in the
related intercreditor agreement) of such Mortgage Loan becoming a Specially
Serviced Mortgage Loan to the extent not collected from the related mezzanine
lender pursuant to the related intercreditor agreement or (vi) repurchased or
replaced no later than the end of the applicable Initial Resolution Period and
any applicable Resolution Extension Period, as a result of a Material Breach or
a Material Document Defect, by a Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement or by the Column Performance Guarantor pursuant
to the Column Performance Guarantee). As to each such Specially Serviced
Mortgage Loan or REO Property, the Liquidation Fee shall be payable out of, and
shall be calculated by application of the Liquidation Fee Rate to, any such
full, partial or discounted payoff, Condemnation Proceeds and/or Liquidation
Proceeds received or collected in respect thereof (other than any portion of
such payment or proceeds that represents Liquidation Expenses and Default
Charges). The Liquidation Fee with respect to any such Specially Serviced
Mortgage Loan will not be payable if such Mortgage Loan becomes a Corrected
Mortgage Loan.
The Special Servicer's right to receive the Special Servicing Fee,
the Workout Fee and/or the Liquidation Fee may not be transferred in whole or in
part except in connection with the transfer of all of such Special Servicer's
responsibilities and obligations under this Agreement and except as otherwise
expressly provided herein.
(d) Subject to offset as provided in Section 3.02, the Special
Servicer shall be entitled to receive the following items as additional special
servicing compensation with respect to the Specially Serviced Mortgage Loans or
REO Mortgage Loans and Performing Mortgage Loans (the following items,
collectively, the "Additional Special Servicing Compensation"):
(i) any and all Net Default Charges collected with respect to a
Specially Serviced Mortgage Loan or an REO Mortgage Loan;
(ii) any and all Net Assumption Fees, Net Assumption Application
Fees, modification fees, extension fees, consent fees, waiver fees,
earn-out fees and charges for beneficiary statements or demands that are
actually received on or with respect to Specially Serviced Mortgage Loans
or REO Mortgage Loans;
(iii) 50% of any and all Net Assumption Fees, modification fees,
extension fees, consent fees, waiver fees and earn-out fees that are
actually received on or with respect to a Performing Mortgage Loan; and
(iv) interest or other income earned on deposits in the REO Account
maintained by such Special Servicer, if established, in accordance with
Section 3.06(b) (but only to the extent of the Net Investment Earnings, if
any, with respect to the REO Account for each Collection Period).
The Special Servicer shall be entitled to such compensation with
respect to the B Loans as is provided under the respective A/B Intercreditor
Agreements; provided that, in no such case, shall the payment of any such
compensation reduce amounts otherwise payable to the Certificateholders with
respect to the related A Loan.
To the extent that any of the amounts described in the preceding
paragraph are collected by the Master Servicer with respect to Specially
Serviced Mortgage Loans, such Master Servicer shall promptly pay such amounts to
the Special Servicer and shall not be required to deposit such amounts in the
Collection Account pursuant to Section 3.04(a).
(e) The Master Servicer and the Special Servicer shall be required
(subject to Section 3.11(h) below) 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 Sub-Servicers retained by it
(including any termination fees) and the premiums for any blanket policy or the
standby fee or similar premium, if any, 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 a Collection
Account, A/B Loan Pair Custodial Account, Purchase Price Security Deposit
Account, Special Reserve Account, the Servicing Accounts, the Reserve Accounts
or the REO Account, and neither the Master Servicer nor the Special Servicer
shall be entitled to reimbursement for any such expense incurred by it except as
expressly provided in this Agreement. If the Master Servicer is required to make
any Servicing Advance hereunder at the discretion of the Special Servicer in
accordance with Section 3.19 or otherwise, such Special Servicer shall promptly
provide such Master Servicer with such documentation regarding the subject
Servicing Advance as the Master Servicer may reasonably request.
(f) [Reserved]
(g) The Master Servicer, the Special Servicer and the Trustee shall
each be entitled to receive interest at the Reimbursement Rate in effect from
time to time, 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 with respect to any Servicing Advances shall be payable: (i) first, in
accordance with Sections 3.05 and 3.26, out of any Default Charges subsequently
collected on or in respect of the particular Mortgage Loan or REO Mortgage Loan
as to which such Servicing Advance relates; and (ii) then, after such Servicing
Advance is reimbursed, but only if and to the extent that such Default Charges
are insufficient to cover such Advance Interest, out of general collections on
the Mortgage Loans and any REO Properties relating thereto, on deposit in the
Master Servicer's Collection Account. The Master Servicer shall reimburse
itself, the Special Servicer or the Trustee, as appropriate, for any Servicing
Advance made by any such Person with respect to any Mortgage Loan or REO
Property as soon as practicable after funds available for such purpose are
deposited in the Collection Account. The Master Servicer shall not be entitled
to Advance Interest to the extent a payment is received but is being held by the
Master Servicer in suspense. The Master Servicer shall reimburse itself, the
Special Servicer or the Trustee, as the case may be, for any outstanding
Servicing Advance made by the Master Servicer, the Special Servicer or the
Trustee as soon as practically possible after funds available for such purpose
are deposited in the Collection Account; provided that, upon a determination
that a previously made Servicing Advance is a Nonrecoverable Servicing Advance
with respect to any Mortgage Loan or REO Mortgage Loan the Master Servicer may
reimburse itself, the Special Servicer or the Trustee, as applicable,
immediately from general collections in the Collection Account (such
reimbursement to be deemed made first out of amounts distributable as
principal). Notwithstanding the foregoing, as contemplated by Section
3.05(a)(vii), instead of obtaining reimbursement out of general collections on
the Mortgage Pool immediately, if and to the extent that there are insufficient
amounts that would otherwise be distributable as principal to fully reimburse
such Nonrecoverable Servicing Advance, the Master Servicer, the Special Servicer
or the Trustee, 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), with interest thereon at the Reimbursement Rate
(except that at any time after such a determination to obtain reimbursement over
time in accordance with this proviso, the Master Servicer, the Special Servicer
or the Trustee, as applicable, may, in its sole discretion, decide to obtain
reimbursement from general collections on the Mortgage Pool immediately),
provided, however, that the Master Servicer, the Special Servicer or the
Trustee, as applicable, must reimburse itself to the extent of funds in the
Collection Account otherwise distributable as principal. The fact that a
decision to recover any 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 the Special Servicer or a breach of any fiduciary duty owed to the
Certificateholders by the Trustee, or a breach of any other contractual
obligation owed to the Certificateholders by any party to this Agreement.
(h) Notwithstanding anything to the contrary set forth herein, none
of the Master Servicer, the Special Servicer or the Trustee shall be required to
make any Servicing Advance that it determines in its reasonable judgment (in
accordance with the Servicing Standard in the case of the Master Servicer or
Special Servicer) would constitute a Nonrecoverable Servicing Advance. The
determination by any Person with an obligation hereunder to make Servicing
Advances that it has made a Nonrecoverable Servicing Advance or that any
proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing
Advance, shall be made by such Person in its reasonable judgment and shall be
evidenced by an Officer's Certificate delivered promptly to the Depositor, the
Trustee (unless it is the Person making such determination) and the Controlling
Class Representative setting forth the basis for such determination, accompanied
by a copy of an Appraisal of the related Mortgaged Property or REO Property
performed within the 12 months preceding such determination, and further
accompanied by any other information, including engineers' reports,
environmental surveys or similar reports, that such Person may have obtained and
that support such determination.
In making such recoverability determination, such Person will be
entitled to (i) give due regard to the existence of any Nonrecoverable Advance
or Workout-Delayed Reimbursement Amount with respect to other Mortgage Loans,
the recovery of which, at the time of such consideration, is being deferred or
delayed by the Master Servicer, the Special Servicer or the Trustee, as
applicable, in light of the fact that proceeds on the related Mortgage Loan are
a source of recovery not only for the Servicing Advance under consideration, but
also as a potential source of recovery of such Nonrecoverable Advance or
Workout-Delayed Reimbursement Amount which is being or may be deferred or
delayed and (ii) consider (among other things) the obligations of the Borrower
under the terms of the related Mortgage Loan (or the related A/B Loan Pair, as
applicable) as it may have been modified, (iii) consider (among other things)
the related Mortgaged Properties in their "as is" or then current conditions and
occupancies, as modified by such party's assumptions (consistent with the
applicable Servicing Standard in the case of the Master Servicer or the Special
Servicer) regarding the possibility and effects of future adverse changes with
respect to such Mortgaged Properties, (iv) estimate and consider (consistent
with the Servicing Standard in the case of the Master Servicer or the Special
Servicer) (among other things) future expenses and (v) estimate and consider
(among other things) the timing of recoveries.
If an Appraisal of the related Mortgaged Property shall not have
been obtained within the prior 12 month period (and the Master Servicer and the
Trustee shall each request any such appraisal from the Special Servicer prior to
ordering an Appraisal pursuant to this sentence) or if such an Appraisal shall
have been obtained but as a result of unforeseen occurrences, such Appraisal
does not, in the good faith determination of the Master Servicer, the Special
Servicer or the Trustee, reflect current market conditions, and the Master
Servicer or the Trustee, as applicable, and the Special Servicer cannot agree on
the appropriate downward adjustment to such Appraisal, the Master Servicer, the
Special Servicer or the Trustee, as the case may be, may, subject to its
reasonable and good faith determination that such Appraisal will demonstrate the
nonrecoverability of the related Advance, obtain an Appraisal for such purpose
at the expense of the Trust Fund (and, in the case of any A/B Loan Pair, first
of the related B Loan Holders, if any, and second, to the extent such expense
remains unpaid, of the Trust Fund).
Notwithstanding the foregoing, the Trustee shall be entitled to
conclusively rely on any determination of nonrecoverability that may have been
made by the Master Servicer or the Special Servicer with respect to a particular
Servicing Advance, and the Master Servicer and the Special Servicer shall each
be entitled to conclusively rely on any determination of nonrecoverability that
may have been made by the other such party with respect to a particular
Servicing Advance. A copy of any such Officer's Certificate (and accompanying
information) of the Master Servicer shall also be delivered promptly to the
Special Servicer, a copy of any such Officer's Certificate (and accompanying
information) of the Special Servicer shall also be promptly delivered to the
Master Servicer, and a copy of any such Officer's Certificates (and accompanying
information) of the Trustee shall also be promptly delivered to the Master
Servicer and the Special Servicer.
(i) Notwithstanding anything to the contrary set forth herein, the
Master Servicer may (and, at the direction of the Special Servicer if a
Specially Serviced Mortgage Loan or an REO Property is involved, shall) pay
directly out of the Collection Account, but only as and to the extent
contemplated by Section 3.05(a), any servicing expense that, if paid by such
Master Servicer or the Special Servicer, would constitute a Nonrecoverable
Servicing Advance; provided that such Master Servicer (or the Special Servicer,
if a Specially Serviced Mortgage Loan or an REO Property is involved) has
determined in accordance with the Servicing Standard that making such payment is
in the best interests of the Certificateholders (as a collective whole), as
evidenced by an Officer's Certificate delivered promptly to the Depositor, the
Trustee and the Controlling Class Representative, setting forth the basis for
such determination and accompanied by any information that such Person may have
obtained that supports such determination. A copy of any such Officer's
Certificate (and accompanying information) of the Master Servicer shall also be
delivered promptly 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.
Section 3.12 Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable (but in any
event not later than 60 days) after the related Mortgage Loan becomes a
Specially Serviced Mortgage Loan (and, in cases where the related Mortgage Loan
has become a Specially Serviced Mortgage Loan, such Special Servicer shall
continue to perform or cause to be performed a physical inspection of the
subject Mortgaged Property at least once per calendar year thereafter for so
long as the related Mortgage Loan remains a Specially Serviced Mortgage Loan or
if such Mortgaged Property becomes an REO Property); provided that such Special
Servicer shall be entitled to reimbursement of the reasonable and direct
out-of-pocket expenses incurred by it in connection with each such inspection as
Servicing Advances. Beginning in 2008, the Master Servicer shall at its expense
perform or cause to be performed an inspection of each Mortgaged Property at
least once per calendar year (or, in the case of each Mortgage Loan with an
unpaid principal balance of under $2,000,000, once every two years), if the
Special Servicer has not already done so during that period pursuant to the
preceding sentence. The Master Servicer and the Special Servicer shall prepare
(and, promptly following preparation deliver to the Controlling Class
Representative and, with respect to the Special Servicer, to the Master
Servicer; provided, that such report, complete with photographs, shall be
delivered to the Controlling Class Representative upon request) a written report
of each such inspection performed by it or on its behalf that sets forth in
detail the condition of the Mortgaged Property and that contains the information
called for in the standard CMSA Property Inspection Form. The Master Servicer
and the Special Servicer shall deliver to the Trustee, upon written request, and
the Controlling Class Representative, a copy (or image in suitable electronic
media) of each such written report prepared by it (provided, that such report,
complete with photographs, shall be delivered to the Controlling Class
Representative upon request), within 30 days following the later of completion
of the related inspection if the inspection is performed by such Master Servicer
or Special Servicer, as applicable, or receipt of the related inspection report
if the inspection is performed by a third-party. Upon request, the Trustee shall
request from such Master Servicer or Special Servicer, as applicable, and, to
the extent such items have been delivered to the Trustee, upon written request,
by such Master Servicer or Special Servicer, as applicable, deliver to each of
the Depositor, the related Mortgage Loan Seller, any Certificateholder or, if
the Trustee has in accordance with Section 5.06(b) confirmed the Ownership
Interest in Certificates held thereby, any Certificate Owner, a copy (or image
in suitable electronic media) of each such written report prepared by the Master
Servicer or the Special Servicer.
(b) Commencing with respect to the calendar quarter ended September
30, 2007, the Special Servicer, in the case of any Specially Serviced Mortgage
Loan, and the Master Servicer, in the case of each Performing Mortgage Loan,
shall make reasonable efforts to collect promptly from each related Borrower
quarterly and annual operating statements, budgets and rent rolls of the related
Mortgaged Property, and quarterly and annual financial statements of such
Borrower, whether or not delivery of such items is required pursuant to the
terms of the related Mortgage. In addition, the Special Servicer shall cause
quarterly and annual operating statements, budgets and rent rolls to be
regularly prepared in respect of each REO Property and shall collect all such
items promptly following their preparation. The Special Servicer shall deliver
copies (or images in suitable electronic media) of all of the foregoing items so
collected or obtained by it to the Master Servicer, the Trustee and the
Controlling Class Representative within 30 days of its receipt thereof.
The Master Servicer shall maintain a CMSA Operating Statement
Analysis Report with respect to each Mortgaged Property and REO Property related
to each Mortgage Loan. Within 60 days after receipt by the Master Servicer from
the related Borrower or otherwise (as to a Performing Mortgage Loan), and within
30 days after receipt by the Master Servicer from the Special Servicer or
otherwise (as to a Specially Serviced Mortgage Loan and REO Property), of any
annual operating statements or rent rolls with respect to any Mortgaged Property
or REO Property, such Master Servicer shall, based upon such operating
statements or rent rolls, prepare (or, if previously prepared, update) the CMSA
Operating Statement Analysis Report for the subject Mortgaged Property or REO
Property. The Master Servicer shall remit a copy of each CMSA Operating
Statement Analysis Report prepared or updated by it (promptly following initial
preparation and each update thereof), together with, if so requested and not
already provided pursuant to the preceding paragraph, the underlying operating
statements and rent rolls, to the Trustee, the Special Servicer and the
Controlling Class Representative. All CMSA Operating Statement Analysis Reports
shall be maintained by the Master Servicer with respect to each Mortgaged
Property and REO Property. The Trustee shall, upon request, request from the
Master Servicer (if necessary) and, to the extent such items have been delivered
to the Trustee by such Master Servicer, deliver to the Controlling Class
Representative, any Certificateholder or, if the Trustee has in accordance with
Section 5.06(b) confirmed the Ownership Interest in the Certificates held
thereby, any Certificate Owner, a copy of such CMSA Operating Statement Analysis
(or update thereof) and, if requested, the related operating statement or rent
rolls.
Within 60 days (or, in the case of items received from the Special
Servicer with respect to Specially Serviced Mortgage Loans and REO Properties,
30 days) after receipt by the Master Servicer of any quarterly or annual
operating statements with respect to any Mortgaged Property or REO Property,
such Master Servicer shall prepare or update and forward to the Trustee, the
Special Servicer and the Controlling Class Representative (in an electronic
format reasonably acceptable to the Trustee and such Special Servicer) a CMSA
NOI Adjustment Worksheet for such Mortgaged Property or REO Property, together
with, if so requested, the related quarterly or annual operating statements.
If, with respect to any Mortgage Loan (other than a Specially
Serviced Mortgage Loan), the Special Servicer has any questions for the related
Borrower based upon the information received by such Special Servicer pursuant
to Section 3.12(a) or 3.12(b), the Master Servicer shall, in this regard and
without otherwise changing or modifying its duties hereunder, reasonably
cooperate with such Special Servicer in assisting such Special Servicer to
contact and solicit information from such Borrower.
(c) Not later than 4:00 p.m. (New York City time) on each
Determination Date, the Special Servicer shall prepare and deliver or cause to
be delivered to the Master Servicer, the Controlling Class Representative and
shall contemporaneously provide a copy of such materials as they relate to an A
Loan to the B Loan Holder the following reports (or data files relating to
reports of the Master Servicer) with respect to the Specially Serviced Mortgage
Loans serviced by such Special Servicer and any related REO Properties,
providing the required information as of such Determination Date: (i) a CMSA
Property File; and (ii) a CMSA Loan Periodic Update File (which, in each case,
if applicable, will identify each Mortgage Loan by loan number and property
name). At or before 4:00 p.m. (New York City time) on each Determination Date,
such Special Servicer shall prepare and deliver or cause to be delivered to the
Master Servicer the following reports or the related data fields reflected in
the reports reasonably requested with respect to the Specially Serviced Mortgage
Loans and any REO Properties, providing the information required of such Special
Servicer pursuant to Section 3.12(e) as of such Determination Date: (i) a CMSA
Delinquent Loan Status Report; (ii) a CMSA Comparative Financial Status Report;
(iii) a CMSA Historical Loan Modification Report; and (iv) a CMSA REO Status
Report. In addition, the Special Servicer shall from time to time provide the
Master Servicer with such information in such Special Servicer's possession
regarding the Specially Serviced Mortgage Loans and related REO Properties as
may be requested by the Master Servicer and is reasonably necessary for such
Master Servicer to prepare each report and any supplemental information required
to be provided by such Master Servicer to the Trustee.
(d) Not later than 1:00 p.m. (New York City time) on the second
Business Day following each Determination Date, the Master Servicer shall
prepare (if and to the extent necessary) and deliver or cause to be delivered to
the Trustee (and shall contemporaneously provide a copy of such materials and
related reports as they relate to an A Loan to the B Loan Holder), in a
computer-readable medium downloadable by the Trustee, each of the files and
reports comprising the CMSA Investor Reporting Package (other than the CMSA Loan
Periodic Update File, which shall be delivered as set forth in Section 4.02(b)
and excluding any CMSA Operating Statement Analysis Report, any CMSA NOI
Adjustment Worksheet, the CMSA Bond Level File, the CMSA Collateral Summary File
and the CMSA Loan Setup File), in each case providing the most recent
information with respect to the Mortgage Loans and REO Properties as of the
related Determination Date (and which, in each case, if applicable, will
identify each subject Mortgage Loan by loan number and property name); provided
that such Master Servicer shall not be required to prepare and deliver any of
the files and reports comprising the CMSA Investor Reporting Package (other than
the CMSA Loan Periodic Update File) before the second Business Day following the
third Determination Date following the Closing Date.
The Master Servicer may, but is not required to, make any of the
reports or files comprising the CMSA Investor Reporting Package (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee), available each month on such Master Servicer's Website only with
the use of a password, in which case such Master Servicer shall provide such
password to (i) the other parties to this Agreement, who by their acceptance of
such password shall be deemed to have agreed not to disclose such password to
any other Person, (ii) the Rating Agencies and the Controlling Class
Representative, and (iii) each Certificateholder and Certificate Owner who
requests such password, provided that any such Certificateholder or Certificate
Owner, as the case may be, has delivered a certification substantially in the
form of Exhibit K-1 to the Trustee (with a copy to the Master Servicer). In
connection with providing access to the Master Servicer's Website, such Master
Servicer may require registration and the acceptance of a disclaimer and
otherwise (subject to the preceding sentence) adopt reasonable rules and
procedures, which may include, to the extent such Master Servicer deems
necessary or appropriate, conditioning access on execution of an agreement
governing the availability, use and disclosure of such information, and which
may provide indemnification to such Master Servicer for any liability or damage
that may arise therefrom.
(e) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12(b) and Section 3.12(c), and the Master
Servicer shall deliver to the Trustee the reports set forth in Section 3.12(d),
in an electronic format reasonably acceptable to such Special Servicer, 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 Section 3.12(c). The Trustee may, absent manifest error,
conclusively rely on the reports to be provided by the Master Servicer pursuant
to Section 3.12(d). In the case of information or reports to be furnished by the
Master Servicer to the Trustee pursuant to Section 3.12(d), to the extent that
such information or reports are, in turn, based on information or reports to be
provided by the Special Servicer pursuant to Section 3.12(b) or Section 3.12(c)
and to the extent that such reports are to be prepared and delivered by the
Special Servicer pursuant to Section 3.12(b) or Section 3.12(c), such Master
Servicer shall have no obligation to provide such information or reports to the
Trustee until it has received the requisite information or reports from the
Special Servicer, and such Master Servicer shall not be in default hereunder due
to a delay in providing the reports required by Section 3.12(d) caused by the
Special Servicer's failure to timely provide any information or report required
under Section 3.12(b) or Section 3.12(c) of this Agreement.
(f) Notwithstanding the foregoing, however, the failure of the
Master Servicer or Special Servicer to disclose any information otherwise
required to be disclosed by this Section 3.12 shall not constitute a breach of
this Section 3.12 to the extent such Master Servicer or Special Servicer so
fails because such disclosure, in the reasonable belief of such Master Servicer
or Special Servicer as the case may be, would violate any applicable law or any
provision of a Mortgage Loan Document prohibiting disclosure of information with
respect to the Mortgage Loans or Mortgaged Properties or would constitute a
waiver of the attorney-client privilege on behalf of the Trust. The Master
Servicer and Special Servicer may disclose any such information or any
additional information to any Person so long as such disclosure is consistent
with applicable law, the related Mortgage Loan Documents and the Servicing
Standard. The Master Servicer or the Special Servicer may affix to any
information provided by it any disclaimer it deems appropriate in its reasonable
discretion (without suggesting liability on the part of any other party hereto).
(g) The Depositor shall provide (or cause to be provided) to the
Master Servicer and the Trustee the initial data (as of the respective Due Dates
for the Original Mortgage Loans in March 2007 or the most recent earlier date
for which such data is available) contemplated by the CMSA Loan Setup File, the
CMSA Loan Periodic Update File, the CMSA Operating Statement Analysis Report and
the CMSA Property File. Absent manifest error of which it has actual knowledge,
the Master Servicer and the Special Servicer may conclusively rely (without
independent verification) on such information provided to it by the Depositor
(or such information which the Depositor has caused to be provided) and shall
not be responsible for the accuracy or completeness of any such information
supplied to it by the Depositor (or such information which the Depositor has
caused to be provided). Notwithstanding anything in this Agreement to the
contrary, the Master Servicer shall only be obligated to provide the CMSA Loan
Setup File, the CMSA Loan Periodic Update File, the CMSA Operating Statement
Analysis Report and the CMSA Property File to the extent that the initial data
contemplated in this Section 3.12(g) is provided to the Master Servicer by the
Depositor (or the Depositor has otherwise caused such information to be
provided).
(h) If the Master Servicer or the Special Servicer is required to
deliver any statement, report or information under any provision of this
Agreement, such Master Servicer or Special Servicer, as the case may be, may
satisfy such obligation by (x) physically delivering a paper copy of such
statement, report or information, (y) delivering such statement, report or
information in a commonly used electronic format or (z) making such statement,
report or information available on such Master Servicer's Website or the
Trustee's Website, unless this Agreement expressly specifies a particular method
of delivery. Notwithstanding the foregoing, the Trustee may request delivery in
paper format of any statement, report or information required to be delivered to
the Trustee and clause (z) shall not apply to the delivery of any information
required to be delivered to the Trustee unless the Trustee consents to such
delivery.
(i) The reporting obligations of the Master Servicer in connection
with an A Loan shall be construed to require such Master Servicer to provide
information regarding the related A Note only, but whenever such Master Servicer
remits funds to the B Loan Holder, it shall thereupon deliver to such holder a
remittance report identifying the amounts in such remittance. The Master
Servicer shall contemporaneously with any related delivery to the Trustee or the
Special Servicer, as applicable, provide any such reports which contain
information related to the related Mortgaged Property or financial information
regarding the borrower to the B Loan Holder. The Master Servicer shall, with the
reasonable cooperation of the other parties hereto, deliver to each B Loan
Holder all documents, statements, reports and information with respect to the
related B Loan and/or the related Mortgaged Property as may be required under
the related A/B Intercreditor Agreement.
Section 3.13 [Reserved]
Section 3.14 [Reserved]
Section 3.15 Access to Certain Information
(a) The Master Servicer and the Special Servicer shall afford to the
Trustee, the Depositor, each Rating Agency, the Controlling Class Representative
and to the OTS, the FDIC and any other banking or insurance regulatory authority
that may exercise authority over any Certificateholder or Certificate Owner,
access to any records regarding the Mortgage Loans and the servicing thereof
within its control, except to the extent it is prohibited from doing so by
applicable law, the terms of the Mortgage Loan Documents or contract entered
into prior to the Closing Date or to the extent such information is subject to a
privilege under applicable law to be asserted on behalf of the
Certificateholders. Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of such Master Servicer or such Special Servicer, as the case may be, designated
by it. The Master Servicer and the Special Servicer shall each be entitled to
affix a reasonable disclaimer to any information provided by it for which it is
not the original source (without suggesting liability on the part of any other
party hereto). In connection with providing access to such records to the
Controlling Class Representative, the Master Servicer and the Special Servicer
may require registration (to the extent access is provided via the Master
Servicer's Website) and the acceptance of a reasonable and customary disclaimer
and otherwise adopt reasonable rules and procedures, which may include, to the
extent the Master Servicer or the Special Servicer, as applicable, deems
necessary or appropriate, conditioning access on the execution and delivery of
an agreement governing the availability, use and disclosure of such information.
(b) Neither of the Master Servicer or the Special Servicer shall be
liable for providing or disseminating information in accordance with the terms
of this Agreement.
(c) On a monthly basis at a time mutually agreed upon by the
Controlling Class Representative and the Master Servicer or the Special
Servicer, the Master Servicer and the Special Servicer shall, without charge,
make a knowledgeable Servicing Officer available, at the option of such
Controlling Class Representative either by telephone or at the office of such
Servicing Officer, to answer questions from such Controlling Class
Representative regarding the performance and servicing of the Mortgage Loans in
and/or REO Properties for which such Master Servicer or Special Servicer, as the
case may be, is responsible.
Section 3.16 Title to REO Property; REO Account
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee, on behalf of
the Certificateholders (and on behalf of the related B Loan Holder if such REO
Property is related to an A/B Loan Pair) or, subject to Section 3.09(b), to a
single member limited liability company of which the Trust is the sole member,
which limited liability company is formed or caused to be formed by the Special
Servicer at the expense of the Trust for the purpose of taking title to one or
more REO Properties pursuant to this Agreement. The limited liability company
shall be a manager-managed limited liability company, with the Special Servicer
to serve as the initial manager to manage the property of the limited liability
company, including any applicable REO Property, in accordance with the terms of
this Agreement as if such property was held directly in the name of the Trust or
Trustee under this Agreement (and for the benefit of the related B Loan Holder
if such REO Property is related to an A/B Loan Pair). The Special Servicer, on
behalf of the Trust (and for the benefit of the related B Loan Holder if such
REO Property is related to an A/B Loan Pair), shall sell any REO Property in
accordance with Section 3.18(d) and, in any event, by the end of the third
calendar year following the year in which the Trust 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 expiration of such
liquidation period, 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, to the effect that the holding by the Trust
of such REO Property subsequent to the end of the third calendar year following
the year in which such acquisition occurred will not result in an Adverse REMIC
Event with respect to either Trust REMIC or an Adverse Grantor Trust Event with
respect to the Grantor Trust Pool. Regardless of whether the Special Servicer
applies for or is granted the REO Extension contemplated by clause (i) of the
immediately preceding sentence or obtains the Opinion of Counsel referred to in
clause (ii) of such sentence, the Special Servicer shall act in accordance with
the Servicing Standard to liquidate such REO Property on a timely basis within a
customary and normal time frame for the sale of comparable properties. If the
Special Servicer is granted such REO Extension or obtains such Opinion of
Counsel, the Special Servicer shall (i) promptly forward a copy of such REO
Extension or Opinion of Counsel to the Trustee, and (ii) sell such REO Property
within such extended period as is permitted by such REO Extension or
contemplated by such Opinion of Counsel, as the case may be. Any expense
incurred by the Special Servicer in connection with its applying for and being
granted the REO Extension contemplated by clause (i) of the third preceding
sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of
the third preceding sentence, and for the creation of and the operating of a
limited liability company, shall be paid by and reimbursable to the Master
Servicer as a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition occurs, the Special
Servicer shall establish and maintain one or more accounts (collectively, the
"REO Account"), to be held on behalf of the Trustee (as holder of the
Uncertificated Lower-Tier Interests) in trust for the benefit of the
Certificateholders (and on behalf of the related B Loan Holder if such REO
Property is related to an A/B Loan Pair), for the retention of revenues and
other proceeds derived from each REO Property. Each account that constitutes the
REO Account shall be an Eligible Account. The Special Servicer shall deposit, or
cause to be deposited, in the REO Account, within two Business Days following
receipt, all REO Revenues, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of an REO Property. Funds in the REO
Account may be invested in Permitted Investments in accordance with Section
3.06. The Special Servicer shall be entitled to make withdrawals from the REO
Account to pay itself, as Additional Special Servicing Compensation, interest
and investment income earned in respect of amounts held in the REO Account as
provided in Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to the REO Account for any Collection Period).
The Special Servicer shall give notice to the other parties hereto of the
location of the REO Account when first established and of the new location of
the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. Within two Business Days
following the end of each Collection Period, the Special Servicer shall withdraw
from the REO Account and deposit into the Collection Account (or, if the subject
REO Property relates to an A/B Loan Pair, into the related A/B Loan Pair
Custodial Account) or deliver to the Master Servicer (which shall deposit such
amounts into the Collection Account) (or, if the subject REO Property relates to
an A/B Loan Pair, into the related A/B Loan Pair Custodial Account) the
aggregate of all amounts received in respect of each REO Property during such
Collection Period, net of any withdrawals made out of such amounts pursuant to
the preceding sentence and Section 3.17 below; provided that the Special
Servicer may retain in the REO Account such portion of such proceeds and
collections as may be necessary to maintain a reserve of sufficient funds for
the proper operation, management, leasing, maintenance and disposition of the
related REO Property (including the creation of a reasonable reserve for
repairs, replacements, necessary capital improvements and other related
expenses), such reserve not to exceed an amount sufficient to cover such items
reasonably expected to be incurred during the following 12-month period.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or
3.16(c).
Section 3.17 Management of REO Property
(a) Prior to the acquisition of title to any Mortgaged Property
securing a defaulted Mortgage Loan, the Special Servicer shall review the
operation of such Mortgaged Property and determine the nature of the income that
would be derived from such property if it were acquired by the Trust. 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 to the tax imposed on
"prohibited transactions" under Section 860F of the Code (either such tax
referred to herein as an "REO Tax"), such Mortgaged Property may be
Directly Operated by the Special Servicer as REO Property (other than
holding such REO Property primarily for sale to customers, or the
performance of any construction work thereon) by such Special Servicer as
REO Property;
(ii) Directly Operating such Mortgaged Property as an 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 such
Special Servicer may (provided that in the judgment of such Special
Servicer, exercised in accordance with the Servicing Standard, it is
commercially reasonable) so lease or otherwise operate such REO Property
or, in accordance with the Servicing Standard, the Special Servicer
determines the income or earnings with respect to such REO Property will
offset any REO Tax and will maximize the net recovery from the REO
Property to the Certificateholders then the Special Servicer may so
operate the 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 incurring or possibly incurring an REO Tax
on income from such property, such Special Servicer shall deliver to the
Trustee and the Controlling Class Representative, in writing, a proposed
plan (the "Proposed Plan") to manage such property as REO Property. Such
plan shall include potential sources of income and good faith estimates of
the amount of income from each such source. Within a reasonable period of
time after receipt of such plan, the Trustee shall consult with such
Special Servicer regarding the Trust's federal income tax reporting
position with respect to the various sources of income that the Trust
would derive under the Proposed Plan. In addition, the Trustee shall (to
the maximum extent reasonably possible) inform such Special Servicer of
the estimated amount of taxes that the Trust would be required to pay with
respect to each such source of income. After receiving the information
described in the two preceding sentences from the Trustee, such Special
Servicer shall either (A) implement the Proposed Plan (after acquiring the
respective Mortgaged Property as REO Property) or (B) manage and operate
such property in a manner that would not result in the imposition of an
REO Tax on the income derived from such property.
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall, subject to Section 3.17(b), be in accordance with
the Servicing Standard. Neither the Special Servicer nor the Trustee shall be
liable to the Certificateholders, the Trust, the other parties hereto or each
other for errors in judgment made in good faith in the exercise of their
discretion while performing their respective responsibilities under this Section
3.17(a). Nothing in this Section 3.17(a) is intended to prevent the sale of an
REO Property pursuant to the terms and subject to the conditions of Section
3.18.
(b) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect, operate and lease such REO Property for the
benefit of the Certificateholders (and for the benefit of the holder of the B
Loan Holder if such REO Property is related to an A/B Loan Pair) solely for the
purpose of its prompt disposition and sale in accordance with Section 3.18, in a
manner that does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code for purposes of
Section 860D(a) of the Code or, except as contemplated by Section 3.17(a),
result in the receipt by either Trust REMIC of any "income from non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code, in an Adverse
REMIC Event with respect to any Trust REMIC or in an Adverse Grantor Trust Event
with respect to the Grantor Trust Pool. Subject to the foregoing, however, the
Special Servicer shall have full power and authority to do any and all things in
connection therewith as are consistent with the Servicing Standard and,
consistent therewith, shall withdraw from the REO Account, to the extent of
amounts on deposit therein with respect to any REO Property, funds necessary for
the proper operation, management, leasing, 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 other costs and expenses necessary to maintain, lease,
sell, protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account with
respect to any REO Property are insufficient for the purposes contemplated by
the preceding sentence with respect to such REO Property, the Master Servicer
shall, at the direction of the Special Servicer, make a Servicing Advance of
such amounts as are necessary for such purposes unless such Master Servicer or
such Special Servicer determines, in its reasonable judgment, that such advances
would, if made, be Nonrecoverable Servicing Advances; provided, however, that
such Master Servicer may in its sole discretion make any such Servicing Advance
without regard to recoverability (and be reimbursed for such Advance as a
Nonrecoverable Advance) 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:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will
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 any REO Property,
other than the repair or maintenance thereof or the completion of a
building or other improvement thereon, and then only if more than 10% of
the construction of such building or other improvement was completed
before default on the related Mortgage Loan became imminent, all within
the meaning of Section 856(e)(4)(B) of the Code; or
(iv) except as provided for in Section 3.17(a)(i) and (a)(ii) above,
Directly Operate, or allow any other Person, other than an Independent
Contractor, to Directly Operate, any REO Property on any date more than 90
days after its Acquisition Date;
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 as a Servicing
Advance unless non-recoverable) to the effect that such action will not cause
such REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code at any time that it is held by the
Trust Fund, in which case the Special Servicer may take such actions as are
specified in such Opinion of Counsel. Except as limited above in this Section
3.17 and by Section 3.17(d), the Special Servicer shall be permitted to cause
the Trust Fund to earn "net income from foreclosure property," subject to the
Servicing Standard.
(d) The Special Servicer may, and if so required for any REO
Property to qualify or remain qualified as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code, shall contract with any Independent
Contractor for the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust) shall be reasonable and customary in consideration
of the nature and locality of the REO Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor, in a timely manner, (A) pay all
costs and expenses incurred in connection with the operation and
management of such REO Property, including those listed in Section 3.17(b)
above, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to such Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve such Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) such Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of such Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with any
Independent Contractor for the operation and management of any REO Property are
greater that the revenues available from such property, such excess costs shall
be paid by and reimbursable to the Master Servicer as a Servicing Advance.
(e) When and as necessary, the Special Servicer shall send to the
Trustee and the Master Servicer a statement prepared by the Special Servicer
setting forth the amount of net income or net loss, as determined for federal
income tax purposes, resulting from the operation and management of a trade or
business on, the furnishing or rendering of a non-customary service to the
tenants of, or the receipt of any other amount not constituting Rents from Real
Property in respect of, any REO Property in accordance with Sections 3.17(b) and
3.17(c).
Section 3.18 Fair Value Purchase Option; Sale of REO Properties
(a) The Special Servicer may sell or purchase, or permit the sale or
purchase of, a Mortgage Loan or REO Property only on the terms and subject to
the conditions set forth in this Section 3.18 or as otherwise expressly provided
in or contemplated by Section 2.03 and Section 9.01 of this Agreement; the
Mortgage Loan Purchase Agreement; the Column Performance Guarantee; the related
Mortgage Loan Documents and/or, any related intercreditor, co-lender and/or
similar agreement(s).
(b) If any Mortgage Loan becomes a Defaulted Mortgage Loan, then the
Special Servicer shall promptly so notify in writing the Trustee, the Master
Servicer and the Controlling Class Representative, and with respect to any
related B Loan of a A/B Loan Pair, any related B Loan Holder(s). The Controlling
Class Representative and the Special Servicer, in that order of priority, may,
at its option, purchase any Defaulted Mortgage Loan out of the Trust Fund at a
cash price equal to the applicable Purchase Price. The Controlling Class
Representative may, after receipt of the notice described in the first sentence
of this Section 3.18(b), assign its option under the preceding sentence to any
party (including, without limitation, in connection with an A Loan, any related
B Loan Holder), other than to a Person whose purchase of the related Mortgage
Loan would violate the terms of any related Intercreditor Agreement or Mezzanine
Loan intercreditor agreement; provided that the Controlling Class
Representative, in connection therewith, shall deliver to the Trustee and the
Special Servicer a copy of the related written assignment executed by the
Controlling Class Representative, provided, further, that with respect to any A
Loan, the option holder's rights under this Section 3.18(b) are subject to the
rights of the holder of the related B Loan to purchase such A Loan pursuant to
the terms of a related Intercreditor Agreement or by a Mezzanine Loan Holder
pursuant to the related Mezzanine Loan intercreditor agreement. The option with
respect to an A Loan shall terminate upon the purchase of such A Loan by the
holder of the related B Loan pursuant to the related Intercreditor Agreement or
by a Mezzanine Loan Holder pursuant to the related Mezzanine Loan intercreditor
agreement. The applicable Purchase Price for any Defaulted Mortgage Loan
purchased under this Section 3.18(b) shall be deposited into the Collection
Account, and the Trustee, upon receipt of a written notice from the Master
Servicer to the effect that such deposit has been made, shall release or cause
to be released to the Person effecting such purchase (or to its designee) the
related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be provided to
it and are reasonably necessary to vest in the Person effecting such purchase
(or its designee) ownership of such Mortgage Loan. In connection with any such
purchase, the Special Servicer shall deliver the related Servicing File to the
Person effecting such purchase (or to its designee).
If not exercised sooner, such purchase option with respect to any
Defaulted Mortgage Loan will automatically terminate upon (i) the related
Borrower's (or, subject to the related Intercreditor Agreement, any B Loan
Holder's) cure of all defaults on the Defaulted Mortgage Loan, (ii) the
acquisition on behalf of the Trust of title to the related Mortgaged Property by
foreclosure or deed in lieu of foreclosure or (iii) the modification, waiver or
pay-off (full or discounted) of the Defaulted Mortgage Loan in connection with a
workout.
The applicable Purchase Price for any Defaulted Mortgage Loan
purchased under this Section 3.18(b) shall, (i) pending determination of the
Fair Value thereof pursuant to the succeeding sentence, be the Purchase Price
calculated in accordance with the definition of Purchase Price, and (ii)
following determination of the Fair Value pursuant to the succeeding sentence,
be the Fair Value. The Special Servicer shall promptly obtain an Appraisal
(unless it has an Appraisal that is less than 12 months old and has no actual
knowledge of, or notice of, any event which in the Special Servicer's judgment
would materially affect the validity of such Appraisal), and shall, within 60
days following the date it receives an Appraisal following the date on which a
Mortgage Loan becomes a Defaulted Mortgage Loan, determine the fair value
thereof in accordance with the Servicing Standard (the "Fair Value"). In
determining the Fair Value of any Defaulted Mortgage Loan, the Special Servicer
shall take into account, among other factors, the period and amount of the
delinquency on such Mortgage Loan, the occupancy level and physical condition of
the related Mortgaged Property, the state of the local economy in the area where
the related Mortgaged Property is located, and the time and expense associated
with a purchaser's foreclosing on the related Mortgaged Property and the
expected recoveries from such Defaulted Mortgage Loan if the Special Servicer
were to pursue a workout or foreclosure strategy instead of selling such
Defaulted Mortgage Loan pursuant to the subject purchase option. In addition,
the Special Servicer shall refer to all relevant information contained in the
Servicing File, including the most recent Appraisal obtained or conducted with
respect to the related Mortgaged Property and available objective third-party
information obtained from generally available sources, as well as information
obtained from vendors providing real estate services to the Special Servicer,
concerning the market for distressed real estate loans and the real estate
market for the subject property type in the area where the related Mortgaged
Property is located based on the Appraisal. The Special Servicer may, to the
extent it is consistent with the Servicing Standard, rely on any opinions or
reports of Independent third parties in making such determination. All
reasonable costs and expenses incurred by the Special Servicer pursuant to this
Section 3.18(b) shall be paid by and reimbursable to the Master Servicer as
Servicing Advances. The other parties to this Agreement shall cooperate with all
reasonable requests for information made by a Special Servicer in order to allow
such Special Servicer to perform its duties pursuant to this Section 3.18(b).
The Special Servicer must give prompt written notice of its Fair Value
determination to the Trustee, the Master Servicer and the Controlling Class
Representative.
The Special Servicer shall be required to change from time to time
thereafter its determination of the Fair Value of a Defaulted Mortgage Loan
based upon changed circumstances, new information or otherwise, in accordance
with the Servicing Standard. If the most recent Fair Value calculation was made
more than 90 days prior to the exercise date of a purchase option (under this
Section 3.18(b) or Section 3.18(c)), then the Special Servicer shall confirm or
revise the Fair Value determination, which Fair Value may be higher or lower.
In the event that the Special Servicer or any affiliate of the
Special Servicer exercises the purchase option (under this Section 3.18(b) or
Section 3.18(c)) with respect to any Defaulted Mortgage Loan, including as the
Controlling Class Representative or as the assignee thereof, then the Master
Servicer or, if the Master Servicer is also the Special Servicer or an affiliate
of the Special Servicer, the Trustee shall determine whether the Special
Servicer's determination of Fair Value for a Defaulted Mortgage Loan is no less
than the amount that the Master Servicer or the Trustee, as applicable,
considers to be the Fair Value of such Defaulted Mortgage Loan. In such event,
the Special Servicer shall promptly deliver to the Master Servicer or the
Trustee, as applicable, in accordance with the foregoing sentence, the most
recent related Appraisal then in the Special Servicer's possession, together
with such other third-party reports and other information then in the Special
Servicer's possession that is relevant to the confirmation of the Special
Servicer's determination of Fair Value, including information regarding any
change in circumstance regarding the Defaulted Mortgage Loan known to the
Special Servicer that has occurred subsequent to, and that would materially
affect the value of the related Mortgaged Property reflected in, the most recent
related Appraisal. Notwithstanding the foregoing, the Master Servicer or the
Trustee, as the case may be, may (at its option) designate an Independent
Qualified Appraiser, selected with reasonable care by the Master Servicer or the
Trustee, as the case may be, to confirm that the Special Servicer's
determination of Fair Value is consistent with or greater than what the
Independent Qualified Appraiser considers to be the Fair Value of such Defaulted
Mortgage Loan. In that event, the Master Servicer or Trustee, as applicable,
will be entitled to rely upon such Independent Qualified Appraiser's
determination. The Master Servicer or Trustee, as applicable, shall be entitled
to a fee of $2,500 in connection with each such Fair Value determination. The
costs of all third party opinions of value and any Appraisals and inspection
reports incurred by the Master Servicer or Trustee, as the case may be, as
contemplated by this paragraph shall be advanced by the Master Servicer or
Trustee, as the case may be, and will constitute, and be reimbursable as, a
Servicing Advance.
Unless and until the purchase option granted hereunder with respect
to a Defaulted Mortgage Loan is exercised, the Special Servicer will be required
to pursue such other resolution strategies available hereunder, including
workout and foreclosure, consistent with the Servicing Standard, but the Special
Servicer will not be permitted to sell the Defaulted Mortgage Loan other than
pursuant to the exercise of such purchase option or as otherwise permitted under
Section 3.18(a).
If the purchase option with respect to any Defaulted Mortgage Loan
is not exercised by the Majority Controlling Class Certificateholder or any
assignee thereof within 30 days after the Fair Value of such Mortgage Loan has
initially been established as provided in Section 3.18(b) above, then the
Majority Controlling Class Certificateholder shall be deemed to have assigned
such Purchase Option, for a 30-day period only, to the applicable Special
Servicer. During the 30-day period following the assignment to it of the
purchase option with respect to any Defaulted Mortgage Loan, the Special
Servicer will be entitled to exercise such purchase option or to assign such
purchase option to a third party other than the Depositor, Column Financial or
one of their respective Affiliates and/or agents (provided that the other
parties hereto are notified in writing of the assignment). If the purchase
option with respect to any Defaulted Mortgage Loan is not exercised by the
Special Servicer or its assignee within the 30-day period following the
assignment of such purchase option to the applicable Special Servicer as
contemplated by clause (iii) above, then such purchase option will automatically
revert to the Majority Controlling Class Certificateholder. The cash price paid
for any such Mortgage Loan purchased under this Section 3.18 shall be paid to
the Master Servicer within 10 Business Days following the date notice is
received that the option is exercised and shall be deposited into the Collection
Account, and the Trustee, upon receipt of written notice from the Master
Servicer to the effect that such deposit has been made, shall release or cause
to be released to the Special Servicer (or the designated Affiliate thereof), as
applicable, the related Mortgage File, and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be provided to it and are reasonably necessary to vest in the Special Servicer
(or the designated Affiliate thereof), as applicable, the ownership of such
Mortgage Loan. Nothing in this Section 3.18(c) shall be deemed to limit the
ability of any B Loan Holder to purchase the related A loan in accordance with
the related Intercreditor Agreement.
(c) The Special Servicer shall use its reasonable efforts,
consistent with the Servicing Standard, to solicit cash bids for each REO
Property in such manner as will be reasonably likely to realize a fair price
(determined pursuant to Section 3.18(e) below) for any REO Property within a
customary and normal time frame for the sale of comparable properties (and, in
any event, within the time period provided for by Section 3.16(a)). Such Special
Servicer shall accept the first (and, if multiple cash bids are received by a
specified bid date, the highest) cash bid received from any Person that
constitutes a fair price (determined pursuant to Section 3.18(e) below) for such
REO Property. If such Special Servicer reasonably believes that it will be
unable to realize a fair price (determined pursuant to Section 3.18(e) below)
with respect to any REO Property within the time constraints imposed by Section
3.16(a), then such Special Servicer shall, consistent with the Servicing
Standard and subject to Section 3.24, dispose of such REO Property upon such
terms and conditions as it shall deem necessary and desirable to maximize the
recovery thereon under the circumstances.
The Special Servicer shall give the Trustee, the Master Servicer and
the Controlling Class Representative not less than five (5) Business Days' prior
written notice of its intention to sell any REO Property pursuant to this
Section 3.18(d). No Interested Person shall be obligated to submit a bid to
purchase any REO Property, and notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates may
bid for or purchase any REO Property pursuant hereto.
(d) Whether any cash bid constitutes a fair price for any REO
Property for purposes of Section 3.18(d), shall be determined by the Special
Servicer or, if such cash bid is from an Interested Person, by the Trustee. In
determining whether any bid received from an Interested Person represents a fair
price for any REO Property, the Trustee shall be supplied with and shall be
entitled to rely on the most recent Appraisal in the related Servicing File
conducted in accordance with this Agreement within the preceding 12-month period
(or, in the absence of any such Appraisal or if there has been a material change
at the subject property since any such Appraisal, on a new Appraisal to be
obtained by the Special Servicer, the cost of which shall be paid by and
reimbursable to the Master Servicer as a Servicing Advance). The appraiser
conducting any such new Appraisal shall be a Qualified Appraiser that is (i)
selected by the Special Servicer if neither such Special Servicer nor any
Affiliate thereof is bidding with respect to the subject REO Property and (ii)
selected by the Trustee if either such Special Servicer or any Affiliate thereof
is so bidding. Where any Interested Person is among those bidding with respect
to any REO Property, the Special Servicer shall require that all bids be
submitted to it (or, if such Special Servicer is bidding, be submitted to the
Trustee) in writing and be accompanied by a refundable deposit of cash in an
amount equal to 5% of the bid amount. In determining whether any bid from a
Person other than an Interested Person constitutes a fair price for any REO
Property, such Special Servicer shall take into account the results of any
Appraisal or updated Appraisal that it or the Master Servicer may have obtained
in accordance with this Agreement within the prior twelve (12) months, as well
as, among other factors, the occupancy level and physical condition of the REO
Property, the state of the then current local economy and commercial real estate
market where the REO Property is located and the obligation to dispose of any
REO Property within a customary and normal time frame for the sale of comparable
properties (and, in any event, within the time period specified in Section
3.16(a)). The Purchase Price for any REO Property shall in all cases be deemed a
fair price. Notwithstanding the other provisions of this Section 3.18, no cash
bid from the Special Servicer or any Affiliate thereof shall constitute a fair
price for any REO Property unless such bid is the highest cash bid received and
at least two Independent bids (not including the bid of such Special Servicer or
any Affiliate) have been received. In the event the bid of the Special Servicer
or any Affiliate thereof is the only bid received or is the higher of only two
bids received, then additional bids shall be solicited. If an additional bid or
bids, as the case may be, are received for any REO Property and the original bid
of such Special Servicer or any Affiliate thereof is the highest of all cash
bids received, then the bid of such Special Servicer or such Affiliate shall be
accepted, provided that the Trustee has otherwise determined, as provided above
in this Section 3.18(e), that such bid constitutes a fair price for the subject
REO Property. Any bid by the Special Servicer for any REO Property shall be
unconditional; and, if accepted, the subject REO Property shall be transferred
to such Special Servicer without recourse, representation or warranty other than
customary representations as to title given in connection with the sale of a
real property.
(e) Subject to Sections 3.18(a) through 3.18(e) above, the Special
Servicer shall act on behalf of the Trustee in negotiating with Independent
third parties in connection with the sale of any REO Property and taking any
other action necessary or appropriate in connection with the sale of any
Defaulted Mortgage Loan or REO Property, and the collection of all amounts
payable in connection therewith. In connection with the sale of any REO
Property, the Special Servicer may charge prospective bidders, and may retain,
fees that approximate such Special Servicer's actual costs in the preparation
and delivery of information pertaining to such sales or evaluating bids without
obligation to deposit such amounts into a Collection Account. Any sale of a
Defaulted Mortgage Loan or any REO Property 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 such Special Servicer or the Trustee.
(f) Any sale of any Defaulted Mortgage Loan or REO Property shall be
for cash only.
(g) The purchase price for any Defaulted Mortgage Loan or REO
Property sold under this Section 3.18 shall be deposited into the Master
Servicer's Collection Account, and the Trustee, upon receipt of written notice
from such Master Servicer to the effect that such deposit has been made (based
upon notification by the Special Servicer to such Master Servicer of the amount
of the purchase price), shall execute and deliver such instruments of transfer
or assignment, in each case without recourse, as shall be provided to it and are
reasonably necessary to vest ownership of such Mortgage Loan or REO Property in
the Person who purchased such Mortgage Loan or REO Property.
(h) The parties hereto acknowledge the purchase option of each B
Loan Holder with respect to the related A Loan provided for in the related A/B
Intercreditor Agreement. The purchase price paid by any B Loan Holder for the
related A Loan in accordance with such purchase option shall be deposited into
the Collection Account, and the Trustee, upon receipt of written notice from the
Master Servicer to the effect that such deposit has been made, shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, as shall be provided to it and are reasonably necessary to vest
ownership of such Mortgage Loan in the related B Loan Holder.
(i) If pursuant to any purchase option provided for in the related
intercreditor, co-lender or similar agreement, a mezzanine loan holder purchases
any Mortgage Loan, then the purchase price paid by such mezzanine loan holder
for such Mortgage Loan in accordance with such purchase option shall be
deposited into the Collection Account, and the Trustee, upon receipt of written
notice from the Master Servicer to the effect that such deposit has been made,
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, as shall be provided to it and are reasonably necessary
to vest ownership of such Mortgage Loan in such mezzanine loan holder.
Section 3.19 Additional Obligations of Master Servicer
(a) The Master Servicer shall deliver to the Trustee for deposit in
the Distribution Account by 1:00 p.m. (New York City time) on each Master
Servicer Remittance Date, without any right of reimbursement therefor, a cash
payment (a "Compensating Interest Payment") in an amount equal to the lesser of
(i) the aggregate amount of Prepayment Interest Shortfalls incurred in
connection with Principal Prepayments received in respect of Performing Mortgage
Loans during the most recently ended Collection Period (other than as a result
of the receipt of Insurance Proceeds and/or Condemnation Proceeds), and (ii) the
aggregate of (A) with respect to such of those Prepayment Interest Shortfalls
incurred, that portion of such Master Servicer's Master Servicing Fees
(excluding Primary Servicing Fees) for the related Collection Period that is, in
the case of each and every Mortgage Loan and REO Mortgage Loan for which such
Master Servicing Fees are being paid in such Collection Period, calculated at
0.005% (0.5 basis points) per annum, and (B) all Prepayment Interest Excesses
received by such Master Servicer during the most recently ended Collection
Period; provided, however, that if a Prepayment Interest Shortfall occurs as a
result of the Master Servicer's allowing the related Borrower to deviate from
the terms of the related Mortgage Loan Documents regarding Principal Prepayments
(other than (W) as a result of the receipt of Insurance Proceeds and/or
Condemnation Proceeds, (X) subsequent to a material default under the related
Mortgage Loan Documents, (Y) pursuant to applicable law or a court order, or (Z)
at the request or with the consent of the Controlling Class Representative),
then, the amount specified in clause (ii)(A) above shall be an amount equal to
the entire Master Servicing Fee with respect to such Collection Period.
(b) The Special Servicer may require the Master Servicer, and such
Master Servicer shall be obligated, out of such Master Servicer's own funds, to
reimburse such Special Servicer for any emergency Servicing Advances (other than
Nonrecoverable Servicing Advances) made by but not previously reimbursed to such
Special Servicer (together with Advance Interest thereon at the Reimbursement
Rate) from the date made to, but not including, the date of reimbursement, upon
such Special Servicer providing an Officer's Certificate to the Master Servicer
setting forth the details of the emergency Servicing Advance upon which such
Master Servicer shall conclusively rely in reimbursing the Special Servicer.
Such reimbursement and any accompanying payment of interest shall be made within
ten Business Days of the written request therefor by wire transfer of
immediately available funds to an account designated by such Special Servicer.
The Master Servicer shall for all purposes of this Agreement be deemed to have
made such Servicing Advance on the date of such reimbursement, and accordingly,
such Master Servicer shall be entitled to reimbursement for such Servicing
Advance (together with Advance Interest thereon at the Reimbursement Rate), at
the same time, in the same manner and to the same extent as such Master Servicer
would otherwise have been entitled if it had actually made such Servicing
Advance on the date of such reimbursement.
Notwithstanding anything to the contrary contained in any other
Section of this Agreement, if the Special Servicer is required under this
Agreement (but subject to the following paragraph), to make any emergency
Servicing Advance but does not desire to do so, such Special Servicer may, in
its sole discretion, request that the Master Servicer make such Servicing
Advance. Any such request shall be made, in writing, in a timely manner that
does not adversely affect the interests of any Certificateholder (and, in any
event, at least five Business Days in advance of the date on which the subject
Servicing Advance is to be made) and shall be accompanied by such information
and documentation regarding the subject Servicing Advance as such Master
Servicer may reasonably request. The Master Servicer shall have the obligation
to make any such Servicing Advance (other than a Nonrecoverable Servicing
Advance) that it is so requested by such Special Servicer to make, by payment of
such amount to such Special Servicer within five Business Days of such Master
Servicer's receipt of such request. Such Special Servicer shall then be
responsible for disbursing such amounts to the appropriate payees. Subject to
the preceding sentence, if the request is timely and properly made, such Special
Servicer shall be relieved of any obligations with respect to a Servicing
Advance that it so requests the Master Servicer to make (regardless of whether
or not the Master Servicer shall make such Servicing Advance). The Master
Servicer shall be entitled to reimbursement for any Servicing Advance made by it
at the direction of the Special Servicer, together with interest thereon in
accordance with Sections 3.05(a) and 3.11(g), at the same time, in the same
manner and to the same extent as such Master Servicer is entitled with respect
to any other Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(b),
the Master Servicer shall not be required to reimburse the Special Servicer for,
or to make at the direction of the Special Servicer, any Servicing Advance if
such Master Servicer determines in its reasonable, good faith judgment that such
Servicing Advance, although not characterized by such Special Servicer as a
Nonrecoverable Servicing Advance, is in fact a Nonrecoverable Servicing Advance.
Such Master Servicer shall notify such Special Servicer in writing of such
determination and, if applicable, such Nonrecoverable Servicing Advance shall be
reimbursed to such Special Servicer pursuant to Section 3.05(a).
(c) Promptly following the occurrence of an Appraisal Trigger Event
with respect to any Mortgage Loan, the Special Servicer shall obtain (or, if
such Mortgage Loan has a Stated Principal Balance of $2,000,000 or less, unless
the Controlling Class Representative permits the Special Servicer to obtain an
Appraisal, conduct) an Appraisal of the related Mortgaged Property, unless an
Appraisal thereof had previously been obtained (or, if applicable, conducted)
within the preceding 12-month period and there has been no subsequent material
change in the circumstances surrounding the related Mortgaged Property that, in
the judgment of the Special Servicer, would materially affect the value of the
property in the earlier Appraisal, and shall deliver a copy of such Appraisal to
the Trustee, the Master Servicer and the Controlling Class Representative. If
such Appraisal is obtained from a Qualified Appraiser, the cost thereof shall be
paid by and reimbursable to the Master Servicer as a Servicing Advance. Promptly
following the receipt of, and based upon, such Appraisal, such Special Servicer
shall determine and report to the Trustee and the Master Servicer and the
Controlling Class Representative the then applicable Appraisal Reduction Amount,
if any, with respect to the subject Required Appraisal Loan.
For so long as any Mortgage Loan or REO Mortgage Loan remains a
Required Appraisal Loan, the Special Servicer shall, within 30 days of each
anniversary of such loan's having become a Required Appraisal Loan, obtain (or,
if such Required Appraisal Loan has a Stated Principal Balance of $2,000,000 or
less, at its discretion, unless the Controlling Class Representative objects,
conduct) an update of the prior Appraisal. If such update is obtained from a
Qualified Appraiser, the cost thereof shall be paid by and reimbursable to the
Master Servicer as a Servicing Advance. Promptly following the receipt of, and
based upon, such update, such Special Servicer shall redetermine, in
consultation with the Controlling Class Representative, and report to the
Trustee and the Master Servicer the then applicable Appraisal Reduction Amount,
if any, with respect to the subject Required Appraisal Loan.
The Controlling Class Representative shall have the right at any
time within six months of the date of the receipt of any Appraisal to require
that the Special Servicer obtain a new Appraisal of the subject Mortgaged
Property in accordance with MAI standards, at the expense of the Controlling
Class Certificateholders, and upon receipt of such Appraisal the Special
Servicer shall redetermine the Appraisal Reduction Amount.
(d) [Reserved]
(e) In connection with each prepayment of principal received
hereunder, the Master Servicer shall calculate any applicable Yield Maintenance
Charge payable under the terms of the related Mortgage Note. Promptly following
its determination thereof, such Master Servicer shall disclose to the Trustee
and, upon request, any Certificateholder its calculation of any such Yield
Maintenance Charge, including the U.S. Treasury rate and, if different, the
Yield Rate used to calculate such Yield Maintenance Charge.
(f) With respect to each Mortgage Loan that provides for defeasance,
the Master Servicer shall, to the extent permitted by the terms of such Mortgage
Loan, require the related Borrower (i) to provide replacement collateral
consisting of government securities within the meaning of Treasury Regulations
Section 1.860G-2(a)(8)(i) (including, if the Mortgage Loan provides only for
U.S. Treasury obligations, such other government securities, within the meaning
of Section 2(a)(16) of the Investment Company Act of 1940, as are acceptable to
the Rating Agencies, provided that the borrower has furnished the Master
Servicer with an Opinion of Counsel that acceptance of such substitute
securities will not cause an Adverse REMIC Event). in an amount sufficient to
make all scheduled payments under the Mortgage Loan (or defeased portion
thereof) when due (and assuming, in the case of an ARD Mortgage Loan, to the
extent consistent with the related Mortgage Loan Documents, that such Mortgage
Loan matures on its Anticipated Repayment Date), (ii) to deliver a certificate
from an independent certified public accounting firm certifying that the
replacement collateral is sufficient to make such payments, (iii) at the option
of the Master Servicer, to designate a single purpose entity (which may be a
subsidiary of such Master Servicer established for the purpose of assuming all
defeased Mortgage Loans) to assume the Mortgage Loan (or defeased portion
thereof) and own the defeasance collateral and, if the subject Mortgage Loan has
a Cut-off Date Principal Balance equal to or greater than $5,000,000, and, if
the related Mortgage Loan Documents permit the lender to require or expressly
requires the borrower to provide an opinion of Counsel to the effect that such
entity will not be consolidated with its principals; provided, that if the
subject Mortgage Loan has a Cut-off Date Principal Balance less than $5,000,000
and the related Mortgage Loan Documents do not require the related Borrower to
pay for, or do not permit the lender to require such Opinion of Counsel, such
requirement shall be waived, (iv) to implement such defeasance only after the
second anniversary of the Closing Date, (v) to provide an Opinion of Counsel
that the Trustee has a perfected, first priority security interest in the new
collateral, and (vi) in the case of a partial defeasance of the Mortgage Loan,
to defease a principal amount equal to at least 125% of the allocated loan
amount for the Mortgaged Property or Properties to be released. If the subject
Mortgage Loan has a Cut-off Date Principal Balance greater than or equal to
$20,000,000 or an outstanding principal balance greater than or equal to 2% of
the aggregate Stated Principal Balance of the Mortgage Pool, or if the terms of
the Mortgage Loan do not permit such Master Servicer to impose such requirements
and such Master Servicer does not satisfy such requirements on its own, then the
Master Servicer shall provide the Rating Agencies and the Controlling Class
Representative with notice that the foregoing requirements have been met and, so
long as such a requirement would not violate applicable law or the Servicing
Standard, obtain a confirmation that such defeasance will not result in an
Adverse Rating Event. Subject to the related Mortgage Loan Documents and
applicable law, the Master Servicer shall not execute a defeasance unless (i)
the Mortgage Loan requires the Borrower to pay all Rating Agency fees associated
with defeasance (if Rating Agency confirmation of no-downgrade is a specific
condition precedent thereto) and all expenses associated with defeasance or
other arrangements for payment of such costs are made at no expense to the Trust
Fund or the Master Servicer (provided, however, that in no event shall such
proposed "other arrangements" result in any liability to the Trust Fund
including any indemnification of the Master Servicer or the Special Servicer
which may result in legal expenses to the Trust Fund), and (ii) the Borrower is
required to provide all Opinions of Counsel, including Opinions of Counsel that
the defeasance will not cause an Adverse REMIC Event or an Adverse Grantor Trust
Event and that the Mortgage Loan Documents are fully enforceable in accordance
with their terms (subject to bankruptcy, insolvency and similar standard
exceptions), and any applicable rating confirmations.
Notwithstanding the foregoing, it is hereby acknowledged that,
pursuant to and in accordance with the related Sub-Servicing Agreement, the
Column Primary Servicer will perform the Master Servicer's duties under this
Section 3.19(f) with respect to the Column Serviced Loans pursuant to and in
accordance with the related Designated Sub-Servicing Agreement, and that the
Master Servicer shall have no obligation to approve or oversee the performance
of any such duties by the Column Primary Servicer. The Master Servicer shall
have no liability for any claims, losses, damages, penalties, fines,
forfeitures, reasonable legal fees and expenses and related costs, judgments or
other costs and expenses arising from (i) a breach of such duties by the Column
Primary Servicer or (ii) negligence, bad faith or willful misconduct in the
performance of such duties by the Column Primary Servicer.
(g) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Borrower under a Ground Lease, promptly
(and in any event within 45 days) after the Closing Date notify the related
ground lessor of the transfer of such Mortgage Loan to the Trust pursuant to
this Agreement and inform such ground lessor that any notices of default under
the related Ground Lease should thereafter be forwarded to such Master Servicer.
(h) If a Mortgage Loan provides or allows that the related
Borrower's failure to make any Monthly Payment due thereunder on the applicable
Due Date will not result in an event of default for which such Mortgage Loan may
be accelerated and/or accrue Default Charges unless and until the Master
Servicer notifies such Borrower of the failure or the elapse of a specified
number of days following such Master Servicer's delivery of such notice, then
such Master Servicer shall promptly (and in any event within two Business Days
following the applicable Due Date) notify the related Borrower of such a
failure.
(i) [Reserved]
(j) To the extent not inconsistent with the related Mortgage Loan
Documents, the Master Servicer or Special Servicer shall not consent to a change
in the property manager with respect to a property securing a Mortgage Loan that
is one of the ten largest Mortgage Loans (which term shall, for the purposes of
this Section 3.29(e), include groups of Crossed Mortgage Loans and groups of
Mortgage Loans made to affiliated Borrowers) by outstanding principal balance at
such time or that has a then-current principal balance of greater than
$35,000,000, unless it obtains written confirmation from each Rating Agency that
the appointment of such new property manager would not, in and of itself, result
in a downgrade, qualification or withdrawal of the then current ratings on any
Class of Certificates. The Master Servicer or Special Servicer, as applicable,
shall require the related Borrower to pay the costs of such confirmation unless
specifically precluded from doing so by the applicable Mortgage Loan Documents,
in which case such amount shall be paid from the Collection Account.
Section 3.20 Modifications, Waivers, Amendments and Consents
(a) The Special Servicer (solely as to the Specially Serviced
Mortgage Loans) or the Master Servicer (solely as to the Performing Mortgage
Loans) may (consistent with the Servicing Standard) agree to any modification,
waiver or amendment of any term of, extend the maturity of, defer or forgive
interest (including Default Interest and Post-ARD Additional Interest) on and
principal of, defer or forgive late payment charges and Yield Maintenance
Charges on, permit the release, addition or substitution of collateral securing,
and/or permit the release, addition or substitution of the Borrower on or any
guarantor of, any Mortgage Loan, subject, however, to Sections 3.08 and 3.24
(and, in the case of any A Loan or B Loan, subject to the terms of the related
A/B Intercreditor Agreement) and, further to each of the following limitations,
conditions and restrictions:
(i) other than as provided in Sections 2.03(b), 3.02, 3.08, 3.20(f)
and 3.20(g), the Master Servicer shall not agree to any modification,
waiver or amendment of any term of, or take any of the other acts
referenced in this Section 3.20(a) with respect to, any Mortgage Loan,
that would affect the amount or timing of any related payment of
principal, interest or other amount payable under such Mortgage Loan or
affect the security for such Mortgage Loan, unless such Master Servicer
has obtained the consent of the Special Servicer (it being understood and
agreed that (A) such Master Servicer shall promptly provide the Special
Servicer with notice of any Borrower request for such modification, waiver
or amendment, such Master Servicer's recommendations and analysis, and
with all information reasonably available to such Master Servicer that the
Special Servicer may reasonably request in order to withhold or grant any
such consent, (B) the Special Servicer shall decide whether to withhold or
grant such consent in accordance with the Servicing Standard and (C) if
any such consent has not been expressly denied within ten Business Days of
the Special Servicer's receipt from such Master Servicer of such Master
Servicer's recommendations and analysis and all information reasonably
requested thereby and reasonably available to such Master Servicer in
order to make an informed decision (or, if the Special Servicer did not
request any information, within 15 Business Days from such notice), such
consent shall be deemed to have been granted);
(ii) other than as provided in Sections 3.02 and 3.08, the Special
Servicer shall not agree to (or, in the case of a Performing Mortgage
Loan, consent to the Master Servicer's agreeing to) any modification,
waiver or amendment of any term of, or take (or, in the case of a
Performing Mortgage Loan, consent to the Master Servicer's taking) any of
the other acts referenced in this Section 3.20(a) with respect to, any
Mortgage Loan that would affect the amount or timing of any related
payment of principal, interest or other amount payable thereunder or, in
the reasonable, good faith judgment of such Special Servicer, would
materially impair the security for such Mortgage Loan, unless a material
default on such Mortgage Loan has occurred or, in the reasonable judgment
of such Special Servicer, a default in respect of payment on such Mortgage
Loan is reasonably foreseeable, and such modification, waiver, amendment
or other action is reasonably likely to produce a greater recovery 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 done at the related Net Mortgage Rate), than
would liquidation;
(iii) the Special Servicer shall not extend (or, in the case of a
Performing Mortgage Loan, consent to the Master Servicer's extending) the
date on which any Balloon Payment is scheduled to be due on any Mortgage
Loan to a date beyond the earliest of (A) the fifth anniversary of such
Mortgage Loan's Stated Maturity Date, (B) three years prior to the Rated
Final Distribution Date for any Class of Rated Certificates, (C) if such
Mortgage Loan is secured by a Mortgage solely or primarily on the related
Borrower's leasehold interest in the related Mortgaged Property, 20 years
(or, to the extent consistent with the Servicing Standard, giving due
consideration to the remaining term of the Ground Lease, 10 years) prior
to the end of the then current term of the related Ground Lease (plus any
unilateral options to extend), and (D) if such Mortgage Loan is covered by
an environmental insurance policy, two years prior to the expiration of
the term of such policy unless the Special Servicer shall have first
determined in its reasonable judgment, based upon a Phase I Environmental
Assessment (and any additional environmental testing that the Special
Servicer deems necessary and prudent) conducted by an Independent Person
who regularly conducts Phase I Environmental Assessments, and at the
expense of the Borrower, that there are no circumstances or conditions
present at the related Mortgaged Property for which investigation,
testing, monitoring, containment, clean-up or remediation would be
required under any then applicable environmental laws or regulations;
(iv) neither the Master Servicer nor the Special Servicer shall make
or permit any modification, waiver or amendment of any term of, or take
any of the other acts referenced in this Section 3.20(a) with respect to,
any Mortgage Loan that would result in an Adverse REMIC Event with respect
to either Trust REMIC or an Adverse Grantor Trust Event with respect to
the Grantor Trust Pool;
(v) subject to applicable law, the related Mortgage Loan Documents
and the Servicing Standard, neither the Master Servicer nor the Special
Servicer shall permit any modification, waiver or amendment of any term of
any Performing Mortgage Loan unless all related fees and expenses are paid
by the Borrower;
(vi) the Special Servicer shall not permit (or, in the case of a
Performing Mortgage Loan, consent to the Master Servicer's permitting) any
Borrower to add or substitute any real estate collateral for its Mortgage
Loan unless the Special Servicer shall have first (A) determined in its
reasonable judgment, based upon a Phase I Environmental Assessment (and
any additional environmental testing that such Special Servicer deems
necessary and prudent) conducted by an Independent Person who regularly
conducts Phase I Environmental Assessments, at the expense of the related
Borrower, that such additional or substitute collateral is in compliance
with applicable environmental laws and regulations and that there are no
circumstances or conditions present with respect to such new collateral
relating to the use, management or disposal of any Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation would be required under any then applicable environmental laws
or regulations and (B) received, at the expense of the related Borrower,
written confirmation from each Rating Agency that such addition or
substitution of collateral will not, in and of itself, result in an
Adverse Rating Event with respect to any Class of Rated Certificates; and
(vii) the Special Servicer shall not release (or, in the case of a
Performing Mortgage Loan, consent to the Master Servicer's releasing),
including in connection with a substitution contemplated by clause (vi)
above, any real property collateral securing an outstanding Mortgage Loan,
except as provided in Section 3.09(d), or except where a Mortgage Loan
(or, in the case of a Cross-Collateralized Group, where such entire
Cross-Collateralized Group) is satisfied, or except in the case of a
release where (A) either (1) the use of the collateral to be released will
not, in the reasonable judgment of such Special Servicer, materially and
adversely affect the net operating income being generated by or the use of
the related Mortgaged Property, or (2) there is a corresponding principal
pay down of such Mortgage Loan in an amount at least equal to the
appraised value of the collateral to be released (or substitute real
estate collateral with an appraised value at least equal to that of the
collateral to be released, is delivered), (B) with respect to Performing
Mortgage Loans, the remaining Mortgaged Property (together with any
substitute collateral) is, in such Special Servicer's reasonable judgment,
adequate security for the remaining Mortgage Loan and (C) with respect to
Performing Mortgage Loans, such release would not, in and of itself,
result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee by each Rating
Agency);
provided that the limitations, conditions and restrictions set forth in clauses
(i) through (vii) above shall not apply to any act or event (including, without
limitation, a release, substitution or addition of collateral) in respect of any
Mortgage Loan that either occurs automatically, or results from the exercise of
a unilateral option by the related Borrower within the meaning of Treasury
Regulations Section 1.1001-3(c)(2)(iii), in any event under the terms of such
Mortgage Loan in effect on the Closing Date (or, in the case of a Replacement
Mortgage Loan, on the related date of substitution); and provided, further,
that, notwithstanding clauses (i) through (vii) above, neither the Master
Servicer nor the Special Servicer shall be required to oppose the confirmation
of a plan in any bankruptcy or similar proceeding involving a Borrower if, in
its reasonable judgment, such opposition would not ultimately prevent the
confirmation of such plan or one substantially similar; and provided, further,
that, notwithstanding clause (vii) above, neither the Master Servicer nor the
Special Servicer shall be required to obtain any confirmation of the Certificate
ratings from the Rating Agencies in order to grant easements that do not
materially affect the use or value of a Mortgaged Property or the Borrower's
ability to make any payments with respect to the related Mortgage Loan.
(b) Neither of the Special Servicer nor of the Master Servicer shall
have any liability to the Trust, the Certificateholders or any other Person if
its analysis and determination that the modification, waiver, amendment or other
action contemplated by Section 3.20(a) is reasonably likely to produce a greater
recovery to Certificateholders on a present value basis than would liquidation
should prove to be wrong or incorrect, so long as the analysis and determination
were made on a reasonable basis by such Special Servicer or such Master Servicer
and consistent with the Servicing Standard.
(c) Any payment of interest, which is deferred pursuant to Section
3.20(a), shall not, for purposes of calculating monthly distributions and
reporting information to Certificateholders, be added to the unpaid principal
balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit or that such
interest may actually be capitalized; provided, however, that this sentence
shall not limit the rights of the Master Servicer or the Special Servicer on
behalf of the Trust to enforce any obligations of the related Borrower under
such Mortgage Loan.
(d) The Master Servicer and the Special Servicer may, as a condition
to its granting any request by a Borrower for consent, modification, waiver or
indulgence or any other matter or thing, the granting of which is within such
Master Servicer's or such Special Servicer's, as the case may be, discretion
pursuant to the terms of the related Mortgage Loan Documents and is permitted by
the terms of this Agreement, require that such Borrower pay to it a reasonable
or customary fee (which shall in no event exceed 1.0% of the unpaid principal
balance of the related Mortgage Loan) for the additional services performed in
connection with such request, together with any related costs and expenses
incurred by it; provided that the charging of such fee would not constitute a
"significant modification" of such Mortgage Loan within the meaning of Treasury
Regulations Section 1.860G-2(b). All such fees collected by the Master Servicer
and/or the Special Servicer with respect to any Mortgage Loan shall be allocable
between such parties, as Additional Master Servicing Compensation and Additional
Special Servicing Compensation, respectively, as provided in Section 3.11.
(e) All modifications, amendments, material waivers and other
material actions entered into or taken in respect of the Mortgage Loans pursuant
to this Section 3.20 (other than waivers of Default Charges) shall be in
writing. The Special Servicer and the Master Servicer shall notify the other
such applicable party, each Rating Agency, the Trustee and the Controlling Class
Representative, in writing, of any modification, waiver, amendment or other
action entered into or taken thereby in respect of any Mortgage Loan pursuant to
this Section 3.20 (other than waivers of Default Charges) and the date thereof,
and shall deliver to the Trustee or the related Custodian for deposit in the
related Mortgage File (with a copy to the other such party), an original
counterpart of the agreement relating to such modification, waiver, amendment or
other action, promptly (and in any event within ten Business Days) following the
execution thereof. In addition, following the execution of any modification,
waiver or amendment agreed to by the Special Servicer, or by the Master Servicer
with any required consent of the Special Servicer, pursuant to Section 3.20(a)
above, the Special Servicer or the Master Servicer, as applicable, shall deliver
to the other such party, the Trustee and the Rating Agencies an Officer's
Certificate certifying that all of the requirements of Section 3.20(a) have been
met and, in the case of the Special Servicer, setting forth in reasonable detail
the basis of the determination made by it pursuant to Section 3.20(a)(ii);
provided that, if such modification, waiver or amendment involves an extension
of the maturity of any Mortgage Loan, such Officer's Certificate shall be so
delivered before the modification, waiver or amendment is agreed to. The Master
Servicer shall notify the B Loan Holder of any modification of the monthly
payments of the related Loan, and such monthly payments shall be allocated in
accordance with the related A/B Intercreditor Agreements.
(f) With respect to any ARD Mortgage Loan after its Anticipated
Repayment Date, the Master Servicer shall be permitted, with the consent of the
Controlling Class Representative, to waive (such waiver to be in writing
addressed to the related Borrower, with a copy to the Trustee) all or any
portion of the accrued Post-ARD Additional Interest in respect of such ARD
Mortgage Loan if (i) such ARD Mortgage Loan is a Performing Mortgage Loan, (ii)
the related Borrower has requested the right to prepay such ARD Mortgage Loan in
full together with all payments required by the related Mortgage Loan Documents
in connection with such prepayment except for such accrued Post-ARD Additional
Interest, and (iii) the Master Servicer has determined, in its reasonable
judgment, that waiving such Post-ARD Additional Interest is in accordance with
the Servicing Standard. The Master Servicer shall prepare all documents
necessary and appropriate to effect any such waiver and shall coordinate with
the related Borrower for the execution and delivery of such documents.
(g) Notwithstanding anything in this Section 3.20 or in Section 3.08
or Section 3.24 to the contrary, the Master Servicer shall not be required to
seek the consent of or provide prior notice to, the Special Servicer or any
Certificateholder or obtain any confirmation of the Certificate ratings from the
Rating Agencies in order to approve the following modifications, waivers or
amendments of the Mortgage Loans: (i) waivers of minor covenant defaults (other
than financial covenants), including late financial statements; (ii) waiver of
Default Charges, in accordance with Section 3.02; (iii) releases of parcels of a
Mortgaged Property (provided that any such releases are releases as to which the
related Mortgage Loan Documents expressly require the mortgagee thereunder to
make such releases upon the satisfaction of certain conditions and such releases
shall be made as required by the Mortgage Loan Documents or are related to any
pending or threatened condemnation action); (iv) grants of easements or rights
of way that do not materially affect the use or value of a Mortgaged Property or
the Borrower's ability to make any payments with respect to the related Mortgage
Loan; (v) routine leasing activities that affect less than the greater of 20% of
the net rentable area of the Mortgaged Property or 10,000 square feet of the
Mortgaged Property and (vi) approval of annual budgets to operate the Mortgaged
Property; provided that any such modification, waiver or amendment, or agreeing
to any such modification, waiver or amendment, (w) would not in any way affect a
payment term of the Certificates, (x) would not constitute a "significant
modification" of such Mortgage Loan pursuant to Treasury Regulations Section
1.860G-2(b) and would not otherwise constitute an Adverse REMIC Event with
respect to either Trust REMIC or an Adverse Grantor Trust Event with respect to
the Grantor Trust Pool, (y) would be consistent with the Servicing Standard, and
(z) shall not violate the terms, provisions or limitations of this Agreement or
any other document contemplated hereby.
(h) The Master Servicer shall not terminate or replace, or consent
to the termination or replacement of, any property manager with respect to any
Mortgaged Property, and the Master Servicer shall not terminate or change or
consent to the termination or change of the franchise for any Mortgage Property
operated as a hospitality property, in any event without the prior written
consent of the Special Servicer (it being understood and agreed that (A) such
Master Servicer shall promptly provide such Special Servicer with its analysis,
recommendations and all information that such Special Servicer may reasonably
request and which information is in the possession of such Master Servicer, in
order to withhold or grant any such consent, (B) such Special Servicer shall
decide whether to withhold or grant such consent in accordance with the
Servicing Standard and (C) if any such consent has not been expressly denied
within ten Business Days of such Special Servicer's receipt from such Master
Servicer of such analysis, recommendation and all information reasonably
requested thereby in order to make an informed decision (or, if such Special
Servicer did not request any information, within ten Business Days from such
notice), such consent shall be deemed to have been granted.
(i) In connection with granting an extension of the maturity date of
any Mortgage Loan in accordance with Section 3.20(a), the Special Servicer, in
the case of a Specially Serviced Mortgage Loan, and the Master Servicer, in the
case of a Performing Mortgage Loan, shall each cause the related Borrower to
agree, if it has not already done so pursuant to the existing Mortgage Loan
Documents, to thereafter deliver to the Special Servicer, the Trustee and the
Controlling Class Representative audited operating statements on a quarterly
basis with respect to the related Mortgaged Property, provided that the Special
Servicer or the Master Servicer, as the case may be, may, in its sole
discretion, waive the requirement that such statements be audited.
(j) Notwithstanding anything in this Agreement, including this
Section 3.20, to the contrary, for so long as the Master Servicer and the
Special Servicer are the same Person, the Master Servicer shall not be obligated
to obtain the consent or approval of the Special Servicer as otherwise required
in this Agreement but shall instead be required to request the consent or
approval of the Controlling Class Representative (in respect of any matter as to
which such consent is otherwise required hereunder) to the extent, and on the
same terms, subject to the same limitations, restrictions and exclusions and
within the same time periods as, the Special Servicer is required to request
such consent or approval of the Controlling Class Representative pursuant to
Section 3.24 or any other section or provision of this Agreement.
(k) Notwithstanding the foregoing, it is hereby acknowledged that,
pursuant to and in accordance with the related Sub-Servicing Agreement, the
Column Primary Servicer will perform the Master Servicer's duties under this
Section 3.20 with respect to the Column Serviced Loans pursuant to and in
accordance with the related Designated Sub-Servicing Agreement, and that the
Master Servicer shall have no obligation to approve or oversee the performance
of any such duties by the Column Primary Servicer. The Master Servicer shall
have no liability for any claims, losses, damages, penalties, fines,
forfeitures, reasonable legal fees and expenses and related costs, judgments or
other costs and expenses arising from (i) a breach of such duties by the Column
Primary Servicer or (ii) negligence, bad faith or willful misconduct in the
performance of such duties by the Column Primary Servicer.
Section 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan, the Master Servicer shall immediately give
notice thereof to the Controlling Class Representative, and if the Master
Servicer is not also the Special Servicer, such Master Servicer shall
immediately give notice thereof, and shall deliver the related Servicing File,
to the Special Servicer and shall use its best efforts to provide such Special
Servicer with all information, documents (or copies thereof) and records
(including records stored electronically on computer tapes, magnetic discs and
the like) relating to the Mortgage Loan and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto
without acting through a Sub-Servicer. To the extent such is in the possession
of the Master Servicer or any Sub-Servicer thereof, the information, documents
and records to be delivered by such Master Servicer to the Special Servicer
pursuant to the prior sentence shall include, but not be limited to, financial
statements, appraisals, environmental/engineering reports, leases, rent rolls,
title insurance policies, UCC's and tenant estoppels. The Master Servicer shall
use its best efforts to comply with the preceding two sentences within five
Business Days of the occurrence of each related Servicing Transfer Event and the
Master Servicer shall deliver a copy of the related Servicing File in its
possession to the Special Servicer within such five-Business Day period. Upon
determining that a Servicing Transfer Event has occurred, the Master Servicer
shall review the Servicing File and request from the Trustee any material
documents that it is aware are missing from such Servicing File. Any B Loan
shall constitute a Specially Serviced Mortgage Loan for which the Special
Servicer is responsible for so long as the related A Loan is a Specially
Serviced Mortgage Loan.
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, such Special Servicer shall immediately give notice thereof, and shall
return the related Servicing File within five Business Days, to the Master
Servicer; and, upon giving such notice and returning such Servicing File to the
Master Servicer, such Special Servicer's obligation to service such Mortgage
Loan, and such Special Servicer's right to receive the Special Servicing Fee
with respect to such Mortgage Loan, shall terminate, and the obligations of the
Master Servicer to service and administer such Mortgage Loan shall resume.
Notwithstanding anything herein to the contrary, in connection with
the transfer to the Special Servicer of the servicing of a Cross-Collateralized
Mortgage Loan as a result of a Servicing Transfer Event or the re-assumption of
servicing responsibilities by the Master Servicer with respect to any such
Mortgage Loan upon its becoming a Corrected Mortgage Loan, such Master Servicer
and such Special Servicer shall each transfer to the other, as and when
applicable, the servicing of all other Cross-Collateralized Mortgage Loans
constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Mortgage Loan at
anytime that a continuing Servicing Transfer Event exists with respect to
another Cross-Collateralized Mortgage Loan in the same Cross-Collateralized
Group.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Trustee originals of documents contemplated by the
definition of "Mortgage File" and generated while such Mortgage Loan is a
Specially Serviced Mortgage Loan, for inclusion in the related Mortgage File
(with a copy of each such original to the Master Servicer), and copies of any
additional related Mortgage Loan information, including correspondence with the
related Borrower generated while such Mortgage Loan is a Specially Serviced
Mortgage Loan.
(c) The Master Servicer and the Special Servicer shall each furnish
to the other, upon reasonable request, such reports, documents, certifications
and information in its possession, and access to such books and records
maintained thereby, as may relate to the Mortgage Loans and any related REO
Properties and as shall be reasonably required by the requesting party in order
to perform its duties hereunder.
(d) In connection with the performance of its obligations hereunder,
the Master Servicer and the Special Servicer shall be entitled to rely upon
written information provided to it by the other.
Section 3.22 Sub-Servicing Agreements
(a) The Master Servicer and, subject to Section 3.22(f), 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, including any
amendments thereto and modifications thereof: (i) insofar as it affects the
Trust, is consistent with this Agreement, including Section 7.01(a), in all
material respects and requires the Sub-Servicer to comply in all material
respects with all of the applicable conditions of this Agreement; (ii) provides
that if such Master Servicer or such 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 or any other successor to such
Master Servicer or such Special Servicer, as the case may be, may thereupon
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of such Master Servicer or such Special Servicer, as
the case may be, under such agreement or, alternatively, may terminate such
Sub-Servicing Agreement without cause and without payment of any penalty or
termination fee (provided, however, that a Designated Sub-Servicer Agreement may
not be terminated except for cause, which will include the occurrence of any
Adverse Rating Event resulting from the subject Sub-Servicer's acting in such
capacity); (iii) provides that the Trustee, for the benefit of the
Certificateholders, shall be a third-party beneficiary under such agreement, but
that (except to the extent the Trustee or its designee assumes the obligations
of such Master Servicer or such Special Servicer, as the case may be, thereunder
as contemplated by the immediately preceding clause (ii), and except with
respect to the obligations of any successor Master Servicer under the Designated
Sub-Servicer Agreements) none of the Trustee, any successor Master Servicer or
Special Servicer, as the case may be, or any Certificateholder shall have any
duties under such agreement or any liabilities arising therefrom except as
explicitly set forth herein; (iv) permits any purchaser of a Mortgage Loan
pursuant to this Agreement to terminate such agreement with respect to such
purchased Mortgage Loan at its option and without penalty; (v) does not permit
the subject Sub-Servicer to foreclose on a Mortgaged Property or to enter into
or consent to any modification, waiver or amendment or otherwise take any action
on behalf of such Master Servicer or Special Servicer, as the case may be,
contemplated by Section 3.20 hereof without the consent of such Master Servicer
(other than in the case of actions taken by the Column Primary Servicer with
respect to the Column Serviced Loans) or Special Servicer, as the case may be;
(vi) does not permit the Sub-Servicer any rights of indemnification out of the
Trust Fund except through such Master Servicer or the Special Servicer, as the
case may be, have pursuant to Section 6.03; (vii) provides that the Sub-Servicer
shall act in accordance with the Servicing Standard; (viii) provides that in the
event of an act or failure to act by the Sub-Servicer that causes the Master
Servicer or Special Servicer, as applicable, to be in default of its obligations
under this Agreement, the Sub-Servicer shall be in default of its obligations
under such Sub-Servicing Agreement; and (ix) provides that the failure of the
related Sub-Servicer to comply with any of the requirements under Article XII of
this Agreement that are applicable to such Sub-Servicer under such Sub-Servicing
Agreement (or with requirements set forth in such Sub-Servicing Agreement that
are substantially similar in all material respects to the requirements under
Article XII of this Agreement), including the failure to deliver any reports or
certificates at the time such report or certification is required under Article
XII shall constitute an event of default by such Sub-Servicer upon the
occurrence of which either the Master Servicer or the Depositor may immediately
terminate the related Sub-Servicer under the related Sub-Servicing Agreement and
that such termination shall be deemed for cause; provided that the appointment
by such Master Servicer or Special Servicer of a third-party contractor for the
purpose of performing discrete, ministerial functions shall not be subject to
this Section 3.22 (except that such Master Servicer or Special Servicer, as the
case may be, shall remain responsible for the actions of such third-party
contractors and shall pay all fees and expenses of such third-party contractors,
unless otherwise expressly provided herein). No Sub-Servicing Agreement entered
into by the Master Servicer shall purport to delegate or effectively delegate to
the related Sub-Servicer any of the rights or obligations of the Special
Servicer with respect to any Specially Serviced Mortgage Loan or otherwise. Each
Sub-Servicing Agreement entered into by the Special Servicer shall relate only
to Specially Serviced Mortgage Loans for which such Special Servicer acts as
Special Servicer and any related REO Properties and shall not purport to
delegate or effectively delegate to the related Sub-Servicer any of the rights
or obligations of the Master Servicer with respect to any Mortgage Loan,
including any Specially Serviced Mortgage Loan. The Master Servicer and the
Special Servicer shall each notify such other parties, the Trustee and the
Depositor in writing promptly of the appointment by it of any Sub-Servicer
(other than a Designated Sub-Servicer). The Master Servicer and the Special
Servicer shall deliver to the Trustee copies of all Sub-Servicing Agreements,
and 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 Advances shall
be deemed to have been advanced by such Master Servicer or such Special
Servicer, as the case may be, out of its own funds and, accordingly, such
Advances shall be recoverable by such Sub-Servicer in the same manner and out of
the same funds as if such Sub-Servicer were such Master Servicer or such Special
Servicer, as the case may be. Such Advances shall accrue interest in accordance
with Sections 3.11(g) and/or 4.03(d), 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 shall each be deemed to have received any
payment when a Sub-Servicer retained by it receives such payment.
With respect to any Sub-Servicing Agreement entered into by the
Master Servicer after the Closing Date and prior to the date upon which the
Trust's Exchange Act reporting obligations are terminated by the filing of a
Form 15 Suspension Notification as contemplated by Section 12.10, such
Sub-Servicer shall not be a Prohibited Party. Any such Sub-Servicing Agreement
may permit the Sub-Servicer to delegate its duties to agents or subcontractors
so long as the related agreements or arrangements with such agents or
subcontractors are (or may be required to be), to the extent of the services to
be performed, consistent with the provisions of this Section 3.22 (including,
for the avoidance of doubt, that no such agent or subcontractor is a Prohibited
Party prior to the date upon which the Trust's Exchange Act reporting
obligations are terminated by the filing of a Form 15 Suspension Notification as
contemplated by Section 12.10).
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to ensure the
enforceability of the subject Mortgage Loans and to avoid any loss or liability
to the Trust.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders, shall (at no expense to the other such
party or to the Trustee, the Certificateholders or the Trust) monitor the
performance and enforce the obligations of their respective Sub-Servicers under
the related Sub-Servicing Agreements; provided that the Master Servicer shall
have no obligation to approve or oversee the performance by the Column Primary
Servicer of any of the Master Servicer's duties under Sections 3.08, 3.19(f) or
3.20. 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 such Master Servicer or such Special
Servicer, as applicable, in its reasonable judgment, would require were it the
owner of the Mortgage Loans. Subject to the terms of the related Sub-Servicing
Agreement, including any provisions thereof limiting the ability of such Master
Servicer or such Special Servicer, as applicable, to terminate a Sub-Servicer,
such Master Servicer and such Special Servicer shall each have the right to
remove a Sub-Servicer retained by it at any time it considers such removal to be
in the best interests of Certificateholders.
(d) If the Master Servicer or the Special Servicer ceases to serve
as such under this Agreement for any reason (including by reason of an Event of
Default), then the Trustee or other successor Master Servicer or Special
Servicer, as the case may be, shall succeed to the rights and assume the
obligations of such Master Servicer or such Special Servicer under any
Sub-Servicing Agreement unless the Trustee or other successor Master Servicer or
Special Servicer elects to terminate any such Sub-Servicing Agreement in
accordance with its terms and Section 3.22(a)(ii) hereof; provided that no
Designated Sub-Servicer Agreement may be so terminated except for cause, which
will include the occurrence of any Adverse Rating Event resulting from the
subject Sub-Servicer's acting in such capacity. In any event, if a Sub-Servicing
Agreement is to be assumed by the Trustee or other successor Master Servicer or
Special Servicer, then such Master Servicer or such Special Servicer, as
applicable, at its expense shall deliver to the assuming party all documents and
records relating to such Sub-Servicing Agreement and the Mortgage Loans then
being serviced thereunder and an accounting of amounts collected and held on
behalf of it thereunder, and otherwise use reasonable efforts to effect the
orderly and efficient transfer of the Sub-Servicing Agreement to the assuming
party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement
(but subject to Section 12.14 hereof), the Master Servicer and the Special
Servicer shall remain obligated and liable to the Trustee and the
Certificateholders for the performance of their respective obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if each alone were servicing
and administering the Mortgage Loans or REO Properties for which it is
responsible. No appointment of a Sub-Servicer shall result in any additional
expense to the Trustee, the Certificateholders or the Trust other than those
contemplated herein.
(f) The Special Servicer shall not enter into any Sub-Servicing
Agreement unless: (i) the Rating Agencies have confirmed in writing that
entering into such agreement will not result in an Adverse Rating Event; and
(ii) such agreement relates to one or more Mortgage Loans (including any such
Mortgage Loan(s) previously sub-serviced in accordance with this Section 3.22)
that together represent less than 25% of the aggregate outstanding principal
balance of all Specially Serviced Mortgage Loans; and (iii) the Controlling
Class Representative has consented.
Section 3.23 Controlling Class Representative
(a) The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled in accordance with
this Section 3.23 to select a representative (each, a "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 3.24) or to replace an existing
Controlling Class Representative. Upon (i) the receipt by the Trustee of written
requests for the selection of a Controlling Class Representative from the
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class, (ii) the resignation or removal of the Person acting as
Controlling Class Representative or (iii) a determination by the Trustee that
the Controlling Class has changed, the Trustee shall promptly notify the
Depositor and the Holders (and, in the case of Book-Entry Certificates, to the
extent actually known to a Responsible Officer of the Trustee or identified
thereto by the Depository or the Depository Participants, the Certificate
Owners) of the Controlling Class that they may select a Controlling Class
Representative. Such notice shall set forth the process established by the
Trustee for selecting a Controlling Class Representative, which process may
include the designation of the Controlling Class Representative by the related
Majority Controlling Class Certificateholder by a writing delivered to the
Trustee. No appointment of any Person as a Controlling Class Representative
shall be effective until the Trustee has received confirmation that the
appointment of such Controlling Class Representative is acceptable to the
Majority Controlling Class Certificateholder and such Person provides the
Trustee with (i) written confirmation of its acceptance of such appointment,
(ii) written confirmation of its agreement to keep confidential, for so long as
reports are required to be filed with respect to the Trust under Section 15(d)
of the Exchange Act, all information received by it with respect to the Trust
and its assets that has not been filed with the Commission, (iii) an address and
telecopy number for the delivery of notices and other correspondence and (iv) 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 telecopy
numbers). Anthracite shall be the initial Controlling Class Representative
without any further notification or confirmation referred to in this paragraph.
(b) Within ten Business Days (or as soon thereafter as practicable
if the Controlling Class consists of Book-Entry Certificates) of any change in
the identity of the Controlling Class Representative of which a Responsible
Officer of the Trustee has actual knowledge and otherwise promptly upon request
from the Master Servicer or the Special Servicer, the Trustee shall deliver to
each of the Master Servicer and the Special Servicer the identity of the
Controlling Class Representative and a list of each Holder (or, in the case of
Book-Entry Certificates, to the extent actually known to a Responsible Officer
of the Trustee or identified thereto by the Depository or the Depository
Participants, each Certificate Owner) of the Controlling Class, including, in
each case, names and addresses. With respect to such information, the Trustee
shall be entitled to conclusively rely on information provided to it by the
Holders (or, in the case of Book-Entry Certificates, subject to Section 5.06, by
the Depository or the Certificate Owners) of such Certificates, and the Master
Servicer and the Special Servicer shall be entitled to rely on such information
provided by the Trustee with respect to any obligation or right hereunder that
the Master Servicer and the Special Servicer may have to deliver information or
otherwise communicate with the Controlling Class Representative or any of the
Holders (or, if applicable, Certificate Owners) of the Controlling Class. In
addition to the foregoing, within two Business Days of the selection,
resignation or removal of a Controlling Class Representative, the Trustee shall
notify the other parties to this Agreement of such event.
(c) A Controlling Class Representative may at any time resign as
such by giving written notice to the Trustee, the Special Servicer, the Master
Servicer and to each Holder (or, in the case of Book-Entry Certificates,
Certificate Owner) of the Controlling Class. The Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of Certificates representing
more than 50% of the Class Principal Balance of the Controlling Class shall be
entitled to remove any existing Controlling Class Representative by giving
written notice to the Trustee, the Special Servicer, the Master Servicer and
such existing Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected
pursuant to this Section 3.23, each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Trustee and each other
party to this Agreement and each Holder (or, in the case of Book-Entry
Certificates, Certificate Owner) of the Controlling Class, in writing, of the
resignation or removal of such Controlling Class Representative.
(e) Any and all expenses of the Controlling Class Representative
shall be borne by the Holders (or, if applicable, the Certificate Owners) of
Certificates of the Controlling Class, in proportion to their respective
Percentage Interests in such Class, and not by the Trust. Notwithstanding the
foregoing, if a claim is made against the Controlling Class Representative by a
Borrower with respect to this Agreement or any particular Mortgage Loan, the
Controlling Class Representative shall immediately notify the Trustee, the
Master Servicer and the Special Servicer, whereupon (if the Special Servicer,
the Master Servicer, the Trustee or the Trust are also named parties to the same
action and, in the sole judgment of the Master Servicer or the Special Servicer,
(i) such Controlling Class Representative had acted in good faith, without
negligence or willful misfeasance, with regard to the particular matter, and
(ii) there is no potential for the Special Servicer, the Master Servicer, the
Trustee or the Trust to be an adverse party in such action as regards such
Controlling Class Representative) the Master Servicer or the Special Servicer
or, if such action does not relate to a specific Mortgage Loan, the Special
Servicer, on behalf of the Trust shall, subject to Section 6.03, assume the
defense of any such claim against the Controlling Class Representative. This
provision shall survive the termination of this Agreement and the termination or
resignation of any Controlling Class Representative.
Section 3.24 Certain Rights and Powers of the Controlling
Class Representative
(a) The Controlling Class Representative will be entitled to advise
the Special Servicer with respect to the Special Servicer's taking, or
consenting to the Master Servicer's taking, any of the actions identified in
clauses (i) through (x) of the following sentence. In addition, notwithstanding
anything in any other Section of this Agreement to the contrary, but in all
cases subject to Section 3.20(g) and Section 3.24(b), the Special Servicer will
not be permitted to take, or consent to the Master Servicer's taking, any of the
actions identified in clauses (i) through (x) of this sentence, unless and until
such Special Servicer has notified the Controlling Class Representative in
writing of such Special Servicer's intent to take or permit the particular
action and the Controlling Class Representative has consented (or has failed to
object) thereto in writing within five Business Days of having been notified
thereof in writing and having been provided with all reasonably requested
information with respect thereto:
(i) any proposed foreclosure upon or comparable conversion (which
may include acquisitions of an REO Property) of the ownership of the
property or properties securing any Specially Serviced Mortgage Loans as
come into and continue in default;
(ii) any modification, amendment or waiver of a monetary term
(including any change in the timing of payments but excluding the waiver
of Default Charges) or any material non-monetary term (excluding any
waiver of a "due-on-sale" or "due-on-encumbrance" clause, which clauses
are addressed in clause (ix) below) of a Mortgage Loan;
(iii) any acceptance of a discounted payoff with respect to any
Specially Serviced Mortgage Loan;
(iv) any proposed sale of an REO Property for less than the Stated
Principal Balance of, and accrued interest (other than Default Interest
and Post-ARD Additional Interest) on, the related Mortgage Loan, except in
connection with a termination of the Trust Fund pursuant to Section 9.01;
(v) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(vi) any release of collateral for any Mortgage Loan (other than in
accordance with the specific terms which do not provide for lender
discretion of, or upon satisfaction of, such Mortgage Loan);
(vii) any acceptance of substitute or additional collateral for any
Specially Serviced Mortgage Loan (other than in accordance with the
specific terms of such Mortgage Loan);
(viii) any release (other than in accordance with the related
Mortgage Loan Documents and in an amount less than $50,000) of Earn-Out
Reserve Funds or related Letter of Credit with respect to a Mortgaged
Property securing a Mortgage Loan;
(ix) any waiver of a due-on-sale or due-on-encumbrance clause in any
Mortgage Loan; and
(x) any consent to a change in franchise with respect to a
hospitality loan or a change in the property manager of a Mortgage Loan
with a principal balance greater than $5,000,000;
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 (as a whole), the Special Servicer or the Master Servicer, as
the case may be, may take any such action without waiting for the response of
the Controlling Class Representative to the Special Servicer.
In addition, subject to Section 3.24(b), the Controlling Class
Representative may direct the Special Servicer to take, or to refrain from
taking, such actions as such Controlling Class Representative may deem advisable
or as to which provision is otherwise made herein. Upon reasonable request, the
Special Servicer shall provide the Controlling Class Representative with any
information in such Special Servicer's possession with respect to such matters,
including, without limitation, its reasons for determining to take a proposed
action.
The Master Servicer or the Special Servicer, as applicable, shall
notify the Controlling Class Representative of any release or substitution of
collateral for a Mortgage Loan even if such release or substitution is in
accordance with the related Mortgage Loan Documents.
(b) Notwithstanding anything herein to the contrary, (i) the Special
Servicer shall not have any right or obligation to consult with or to seek
and/or obtain consent or approval from the Controlling Class Representative
prior to acting, and the provisions of this Agreement requiring such shall be of
no effect, during the period prior to the initial selection of a Controlling
Class Representative and, if any Controlling Class Representative resigns or is
removed, during the period following such resignation or removal until a
replacement is selected, and (ii) no advice, direction or objection from or by
the Controlling Class Representative, as contemplated by Section 3.24(a) or any
other provision of this Agreement, may (and the Master Servicer and Special
Servicer shall ignore and act without regard to any such advice, direction or
objection that such Master Servicer or Special Servicer, as the case may be, has
determined, in its reasonable judgment, would) (A) require or cause the Master
Servicer, such Special Servicer or the Trustee to violate applicable law, the
terms of any Mortgage Loan or any other Section of this Agreement, including
such Master Servicer's or Special Servicer's obligation to act in accordance
with the Servicing Standard, (B) result in an Adverse REMIC Event with respect
to either Trust REMIC or an Adverse Grantor Trust Event with respect to the
Grantor Trust, (C) expose the Trust, the Depositor, the Master Servicer, the
Special Servicer, the Trustee, or any of their respective Affiliates, members,
managers, officers, directors, employees or agents, to any material claim, suit
or liability, or (D) expand the scope of the Master Servicer's or Special
Servicer's responsibilities under this Agreement.
(c) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Controlling Class Representative
may have special relationships and interests that conflict with those of Holders
of one or more Classes of Certificates; (ii) the Controlling Class
Representative may act solely in the interests of the Holders of the Controlling
Class; (iii) the Controlling Class Representative does not have any duties to
the Holders of any Class of Certificates other than the Controlling Class (and
with respect to such Controlling Class Holders shall have no liability for any
action taken or omitted which does not constitute negligence, bad faith or
willful misfeasance); (iv) the Controlling Class Representative may take actions
that favor interests of the Holders of the Controlling Class over the interests
of the Holders of one or more other Classes of Certificates; and (v) the
Controlling Class Representative shall have no liability whatsoever for having
so acted or for any action taken or omitted, and no Certificateholder may take
any action whatsoever against the Controlling Class Representative or any
director, officer, employee, agent or principal thereof for having so acted.
Section 3.25 Replacement of Special Servicer
(a) Subject to Section 3.25(b), the Controlling Class Representative
may, upon not less than ten days' prior written notice to the respective parties
hereto, remove any existing Special Servicer hereunder (with or without cause)
and appoint a successor Special Servicer; provided that, if any such removal is
made without cause, then the costs of transferring the special servicing
responsibilities to a successor Special Servicer will, upon such removal or
other termination, be paid by the Certificateholders of the Controlling Class.
(b) No removal of the Special Servicer and appointment of a
successor thereto pursuant to Section 3.25(a) shall be effective until: (i) the
Trustee shall have received (A) written confirmation from each of the Rating
Agencies that such removal and appointment will not result in an Adverse Rating
Event with respect to any Class of Rated Certificates, (B) an Acknowledgment of
Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed
by the Person designated to be the successor Special Servicer, and (C) an
Opinion of Counsel (which shall not be an expense of the Trustee or the Trust)
substantially to the effect that (1) the removal of such existing Special
Servicer and the appointment of the Person designated to serve as successor
Special Servicer is in compliance with this Section 3.25, (2) such designated
Person is duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization, (3) the Acknowledgment of Proposed
Special Servicer, the form of which is attached hereto as Exhibit I-2, has been
duly authorized, executed and delivered by such designated Person and (4) upon
the execution and delivery of the Acknowledgment of Proposed Special Servicer,
such designated Person shall be bound by the terms of this Agreement and,
subject to customary bankruptcy and insolvency exceptions and customary equity
exceptions, this Agreement shall be enforceable against such designated Person
in accordance with its terms; and (ii) if such existing Special Servicer has
been removed by the Controlling Class Representative without cause, the
Certificateholders of the Controlling Class have delivered to the Trustee and
the terminated Special Servicer such Certificateholders' joint and several
undertaking to pay any expenses incurred by the Trustee and such terminated
Special Servicer in connection with the transfer of special servicing
responsibilities to a successor Special Servicer.
(c) Any Special Servicer terminated pursuant to Section 3.25(a)
shall be deemed to have been so terminated simultaneously with the designated
successor's becoming the Special Servicer hereunder; provided that (i) the
terminated Special Servicer shall be entitled to receive, in connection with its
termination, payment out of the Collection Account of all of its accrued and
unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a),
and reimbursement from the successor Special Servicer of all outstanding
Servicing Advances made by the terminated Special Servicer and all unpaid
Advance Interest accrued on such outstanding Servicing Advances (in which case
the successor Special Servicer shall be deemed to have made such Servicing
Advances at the same time that the terminated Special Servicer had actually made
them), (ii) the terminated Special Servicer shall thereafter be entitled to
Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and
(iii) such terminated Special Servicer shall continue to be entitled to the
benefits of Section 6.03, notwithstanding any such termination; and provided,
further, that the terminated Special Servicer shall continue to be obligated to
pay (and entitled to receive) all other amounts accrued to (or owing by) it
under this Agreement on or prior to the effective date of such termination. Such
terminated Special Servicer shall cooperate with the Trustee and the replacement
Special Servicer in effecting the transfer of the terminated Special Servicer's
responsibilities and rights hereunder to its successor, including the transfer
within two Business Days of its termination becoming effective pursuant to
Section 3.25, to the replacement Special Servicer for administration by it of
all cash amounts that at the time are or should have been credited by the
terminated Special Servicer to the REO Account or to any Servicing Account or
Reserve Account or should have been delivered to the Master Servicer or that are
thereafter received by or on behalf of the terminated Special Servicer with
respect to any Mortgage Loan or REO Property.
Section 3.26 Application of Default Charges
(a) Any and all Default Charges that are actually received by or on behalf of
the Trust with respect to any Mortgage Loan or REO Mortgage Loan, shall be
applied for the following purposes and in the following order, in each case to
the extent of the remaining portion of such Default Charges:
First, to pay to the Trustee, the Master Servicer or the Special
Servicer, in that order, any Advance Interest due and owing to such party
on outstanding Advances made thereby with respect to such Mortgage Loan or
REO Mortgage Loan, as the case may be;
Second, to reimburse the Trust for any Advance Interest paid to the
Trustee, the Master Servicer or the Special Servicer since the Closing
Date with respect to such Mortgage Loan or REO Mortgage Loan, as the case
may be, which interest was paid from a source other than Default Charges
on such Mortgage Loan or REO Mortgage Loan, as the case may be;
Third, to reimburse the Trust for any other Additional Trust Fund
Expenses incurred since the Closing Date with respect to such Mortgage
Loan or REO Mortgage Loan, as the case may be, and previously paid from a
source other than Default Charges on such Mortgage Loan or REO Mortgage
Loan, as the case may be; and
Fourth, to pay any remaining portion of such Default Charges as
Additional Master Servicing Compensation to the Master Servicer, if such
Default Charges were collected with respect to a Performing Mortgage Loan,
and otherwise to pay any remaining portion of such Default Charges as
Additional Special Servicing Compensation to the Special Servicer.
(b) Default Charges applied to reimburse the Trust pursuant to
either clause Second or clause Third of Section 3.26(a) are intended to be
available for distribution on the Certificates pursuant to Section 4.01(a) and
Section 4.01(b), subject to application pursuant to Section 3.05(a) or 3.05(b)
for any items payable out of general collections on the Mortgage Pool. Default
Charges applied to reimburse the Trust pursuant to either clause Second or
clause Third of Section 3.26(a) shall be deemed to offset payments of Advance
Interest or other Additional Trust Fund Expenses (depending on which clause is
applicable) in the chronological order in which they were made or incurred with
respect to the subject Mortgage Loan or REO Mortgage Loan (whereupon such
Advance Interest or other Additional Trust Fund Expenses (depending on which
clause is applicable) shall thereafter be deemed to have been paid out of
Default Charges).
Section 3.27 Authenticating Agent
The Trustee may appoint an Authenticating Agent to execute and to
authenticate Certificates. The Authenticating Agent must be acceptable to the
Trustee and must be a corporation organized and doing business under the laws of
the United States of America or any state, having a principal office and place
of business in a state and city acceptable to the Trustee, having a combined
capital and surplus of at least $15,000,000, authorized under such laws to do a
trust business and subject to supervision or examination by federal or state
authorities. The Trustee shall serve as the initial Authenticating Agent and the
Trustee hereby accepts such appointment.
Any corporation into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Authenticating Agent
shall be party, or any corporation succeeding to the corporate agency business
of the Authenticating Agent, shall 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.
The Authenticating Agent may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee, the Depositor and
the Master Servicer. The Trustee may at any time terminate the agency of the
Authenticating Agent other than the initial Authenticating Agent by giving
written notice of termination to the Authenticating Agent, the Depositor and the
Master Servicer. Upon receiving a notice of resignation or upon such a
termination, or in case at any time the Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 3.27, the Trustee may
appoint a successor Authenticating Agent, which shall be acceptable to the
Depositor, and shall mail notice of such appointment to all Certificateholders.
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 herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 3.27.
The Authenticating Agent shall have no responsibility or liability
for any action taken by it as such at the direction of the Trustee. Any
compensation paid to the Authenticating Agent shall be an unreimbursable expense
of the Trustee.
Notwithstanding the foregoing in this Section 3.27, the appointment
of the Authenticating Agent shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible for all acts and
omissions of the Authenticating Agent.
Section 3.28 Swap Agreement
(a) The Trustee is hereby authorized and directed, both in its
capacity as the Trustee and on behalf and for the benefit of the Trust, to
execute and deliver the Swap Agreement on the Closing Date, to make the
representations and warranties set forth therein, and, to perform obligations as
described herein with respect to the Swap Agreement. On or before the Closing
Date, the Trustee, not in its individual capacity but solely in its capacity as
Trustee, on behalf of the Trust, shall enter into the Swap Agreement with the
Swap Counterparty. The Trustee shall, upon receipt of the Swap Upfront Payment
on the Closing Date from the Swap Counterparty, forward such Swap Upfront
Payment to the Depositor to an account designated by the Depositor.
(b) The Trustee shall confirm each value of LIBOR determined by the
Swap Counterparty in accordance with the terms of the Swap Agreement promptly
upon receiving written notice of such determination from the Swap Counterparty.
Absent manifest error, the Swap Counterparty's determination of LIBOR shall be
binding on the Trustee and the Class A-MFL Certificateholders.
(c) By 5:00 p.m. (New York City time) on the Business Day prior to
each Master Servicer Remittance Date, based on the Loan Periodic Update File for
the related Collection Period provided by the Master Servicer pursuant to
Section 4.02(b), the Trustee shall notify the Swap Counterparty, as calculation
agent under the Swap Agreement, in writing of (i) the Class Principal Balance of
the Class A-MFL Certificates as of the last day of the calendar month
immediately prior to the related Distribution Date, (ii) the amount of any Yield
Maintenance Charges distributable with respect to the Class A-MFL Regular
Interest for the related Distribution Date, (iii) the amount of interest
distributable with respect to the Class A-MFL Regular Interest pursuant to
Section 4.01(a)(iv) for such Distribution Date and required (or deemed) to be
deposited in the Floating Rate Account, (iv) the excess, if any, of (A) the
product of (x) 1/12, (y) 5.4160% per annum and (z) the Class Principal Balance
of the Class A-MFL Certificates as of the last day of the calendar month
immediately prior to the related Distribution Date over (B) the amount of
interest distributable with respect to the Class A-MFL Regular Interest pursuant
to Section 4.01(a)(iv) for such Distribution Date and required (or deemed) to be
deposited in the Floating Rate Account and (v) the excess, if any, of (A) the
amount of interest distributable with respect to the Class A-MFL Regular
Interest pursuant to Section 4.01(a)(iv) for such Distribution Date required (or
deemed) to be deposited in the Floating Rate Account exceeds (B) the product of
(x) 1/12, (y) 5.4160% per annum, and (z) the Class Principal Balance of the
Class A-MFL Certificates as of the last day of the calendar month immediately
prior to that Distribution Date.
(d) Upon receiving written notice from the Swap Counterparty, as
calculation agent under the Swap Agreement, on the Business Day prior to each
Master Servicer Remittance Date of the value of Class A-MFL Fixed Swap Payment,
the Class A-MFL Floating Swap Payment, the Class A-MFL Net Fixed Swap Payment,
if any, and the Class A-MFL Net Floating Swap Payment, if any, in each case with
respect to the related Distribution Date, the Trustee shall promptly confirm
each such amount.
(e) On each Distribution Date, the Trustee shall remit to the Swap
Counterparty the Class A-MFL Net Fixed Swap Payment, if any, that was deposited
into the Floating Rate Account on the immediately preceding Class A-MFL Swap
Payment Date, in accordance with this Agreement and the Swap Agreement; provided
that, upon and during the continuation of a Swap Default of the nature described
in clause (i) of the definition of "Swap Default" while the Trustee is pursuing
remedies under the Swap Agreement pursuant to this Section 3.28, or following
the termination of the Swap Agreement, the Trustee shall not make such payments
to the Swap Counterparty. Promptly upon receipt of any payment or other receipt
in respect of the Swap Agreement, the Trustee shall deposit the same into the
Floating Rate Account.
(f) The Trustee shall at all times enforce the Trust's rights under
the Swap Agreement in a commercially reasonable manner. In the event of a Swap
Default, the Trustee shall (i) provide notice of such Swap Default on the date
of such default to the Swap Counterparty and (ii) promptly provide written
notice to the Holders of the Class A-MFL Certificates and shall be required to
take such actions (following the expiration of any applicable grace period
specified in the Swap Agreement), unless otherwise directed in writing by the
Holders of Certificates representing at least 25% of the Class Principal Balance
of the Class A-MFL Certificates, to enforce the rights of the Trust under the
Swap Agreement as may be permitted by the terms thereof, including termination
thereof, and use any Swap Termination Fees received from the Swap Counterparty
to enter into a replacement interest rate swap agreement on substantially
identical terms or on such other terms reasonably acceptable to the Trustee,
with a replacement swap counterparty, subject, in each case, to written
confirmation by the Rating Agencies that such action will not result in a
qualification, downgrade or withdrawal of the then-current ratings of the
Certificates. Notwithstanding the foregoing, the Trustee shall not be obligated
to take any enforcement action with respect to the Swap Agreement unless it
receives from the Holders of the Class A-MFL Certificates an indemnity or other
assurance of payment satisfactory to the Trustee with respect to the cost,
expenses and liabilities associated with enforcing the rights of the Trust under
the Swap Agreement, and no such costs, expenses or liabilities will be payable
out of the Trust Fund. If the costs attributable to entering into a replacement
interest rate swap agreement would exceed the amount of any 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
Class A-MFL Certificates on the immediately succeeding Distribution Date as part
of the Class A-MFL Interest Distribution Amount for such Distribution Date. If
any replacement swap counterparty pays any fee in connection with the execution
of any replacement interest rate swap agreement with the Trust, the Trustee
shall distribute such fee: first, to the Swap Counterparty in respect of the
terminated Swap Agreement, up to the amount of any termination payment owing to
the terminated Swap Counterparty under, and in connection with the termination
of, such Swap Agreement, and such fee (or applicable portion thereof) shall be
deemed to have been distributed first to the Depositor as compensation to the
Depositor under this Agreement and then from the Depositor to the Swap
Counterparty in respect of the terminated Swap Agreement, and then, any
remainder, to the Depositor. In the event the Swap Counterparty is the
defaulting party under the Swap Agreement, the Trustee, on behalf of the Trust,
shall use reasonable efforts to obtain a replacement swap counterparty, subject
to the limitations contained in this Section 3.28(f), provided that no costs or
expenses incurred in connection therewith will be payable out of the Trust Fund.
(g) Any Class A-MFL Distribution Conversion shall become permanent
following the determination by the Trustee not to enter into a replacement
interest rate swap agreement and distribution of any Swap Termination Fees to
the Holders of the Class A-MFL Certificates. Any such Swap Default (or
termination of the Swap Agreement) and the consequent Class A-MFL Distribution
Conversion shall not, in and of itself, constitute an Event of Default under
this Agreement.
(h) Upon any change in the payment terms on the Class A-MFL
Certificates, including as a result of a Class A-MFL Distribution Conversion,
termination of a Class A-MFL 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.
(i) In the event that the Swap Agreement is terminated and no
replacement interest rate swap agreement is entered into, the Trustee shall
provide notice of such termination to the Class A-MFL Certificateholders, which
notice shall include: "The Swap Agreement with respect to the Class A-MFL
Certificates is terminated as of [date]. Certificateholders and beneficial
owners that are Plans (or governmental plans subject to Similar Law) are advised
that the Underwriter Exemption will no longer apply to the Class A-MFL
Certificates, effective 60 days after the receipt of this notice. All
capitalized terms used in this notice shall have the meaning assigned to them in
the Pooling and Servicing Agreement."
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions
(a) On each Distribution Date, the Trustee shall transfer or be
deemed to transfer such amounts from the Lower-Tier Distribution Account to the
Upper-Tier Distribution Account in the amounts and priorities set forth in
Section 4.01(c) with respect to each Class of Uncertificated Lower-Tier
Interests, and immediately thereafter, on each Distribution Date prior to the
date on which the Class Principal Balance of the last outstanding Class of
Subordinate Certificates has been reduced to zero, to the extent of the
Available Distribution Amount for such Distribution Date, shall make
distributions thereof from the Upper-Tier Distribution Account in the following
order of priority, satisfying in full, to the extent required and possible, each
priority before making any distribution with respect to any succeeding priority
from the Available Distribution Amount:
(i) concurrently, (i) from that portion of the Available
Distribution Amount attributable to Loan Group No. 1, to the Class A-1,
Class A-2, Class A-AB and Class A-3 Certificates, pro rata, up to the
Optimal Interest Distribution Amounts for each such Class for such
Distribution Date, (ii) from that portion of the Available Distribution
Amount attributable to Loan Group No. 2, to the Class A-1-A Certificates,
up to the Optimal Interest Distribution Amount for such Class for such
Distribution Date and (iii) from the entire Available Distribution Amount,
to the Class A-X and Class A-SP Certificates, pro rata, up to the Optimal
Interest Distribution Amounts for such Class for such Distribution Date;
provided, however, that if the Available Distribution Amount for any
Distribution Date (or the portion thereof attributable to any Group) is
insufficient to pay in full the Optimal Interest Distribution Amount, as
provided above, on such Distribution Date, then the entire Available
Distribution Amount shall be applied to make distributions of interest to
the Class X-0, Xxxxx X-0, Class A-AB, Class A-3, Class A-1-A, Class A-SP
and Class A-X Certificateholders of, up to, and pro rata as among such
Classes in accordance with, the respective Optimal Interest Distribution
Amounts in respect of such Classes of Certificates for such Distribution
Date;
(ii) to the Class A-1, Class A-1-A, Class A-2, Class A-AB and Class
A-3 Certificates, in reduction of the Class Principal Balances thereof, an
amount up to the Principal Distribution Amount for such Distribution Date,
in the following order of priority:
First, to the Class A-1-A Certificates, equal to the portion of the
Principal Distribution Amount for such Distribution Date that is
attributable to Loan Group No. 2, until the Class Principal Balance
thereof has been reduced to zero;
Second, to the Class A-AB Certificates, until the Class Principal
Balance thereof has been reduced to the Class A-AB Targeted Principal
Balance set forth for such Distribution Date on Exhibit P hereto (net of
any portion thereof distributed on such Distribution Date to the Holders
of the Class A-1-A Certificates pursuant to subclause first of this clause
(ii));
Third, to the Class A-1 Certificates, until the Class Principal
Balance thereof has been reduced to zero (net of any portion thereof
distributed on such Distribution Date to the Holders of the Class A-1-A
and Class A-AB Certificates pursuant to a prior subclause of this clause
(ii));
Fourth, to the Class A-2 Certificates, until the Class Principal
Balance thereof has been reduced to zero (net of any portion thereof
distributed on such Distribution Date to the Holders of the Class A-1-A,
Class A-AB and Class A-1 Certificates pursuant to a prior subclause of
this clause (ii));
Fifth, to the Class A-3 Certificates, until the Class Principal
Balance thereof has been reduced to zero (net of any portion thereof
distributed on such Distribution Date to the Holders of the Class A-1-A,
Class A-AB, Class A-1 and Class A-2 Certificates pursuant to a prior
subclause of this clause (ii));
Sixth, to the Class A-AB Certificates, until the Certificate Balance
thereof has been reduced to zero (net of any portion thereof distributed
on such Distribution Date to the Holders of the Class A-1-A, Class A-AB,
Class A-1, Class A-2 and Class A-3 Certificates pursuant to a prior
subclause of this clause (ii)); and
Seventh, to the Class A-1-A Certificates, until the Class
Certificate Balance thereof has been reduced to zero (net of any
distribution of principal made with respect to the Class A-1-A
Certificates on such Distribution Date pursuant to subclause first of this
clause (ii), up to an amount equal to the entire aggregate Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of the Class A-1-A,
Class A-1, Class A-2, Class A-AB and Class A-3 Certificates pursuant to a
prior subclause of this clause (ii));
provided, however, that, notwithstanding the immediately preceding
subclauses First through Seventh, on each Distribution Date coinciding
with or following the Senior Principal Distribution Cross-Over Date, and
in any event on the Final Distribution Date in connection with the
termination of the Trust Fund, the Trustee shall make distributions of
principal to the Holders of the Class A-1, Class A-1-A, Class A-2, Class
A-AB and Class A-3 Certificates, on a pro rata basis, in accordance with
the respective Class Principal Balances of those Classes outstanding
immediately prior to such Distribution Date, until the Class Principal
Balance of each such Class has been reduced to zero, up to, in the
aggregate, the entire Principal Distribution Amount for such Distribution
Date;
(iii) to the Class A-1, Class A-1-A, Class A-2, Class A-AB and Class
A-3 Certificates, pro rata (based on the aggregate unreimbursed Realized
Loss previously allocated to each such Class), until all amounts of such
Realized Loss previously allocated to such Classes, but not previously
reimbursed, have been reimbursed in full;
(iv) to the Class A-M Certificates and the Class A-MFL Regular
Interest, in respect of interest, pro rata up to the Optimal Interest
Distribution Amount for such Class for such Distribution Date;
(v) to the Class A-M Certificates and the Class A-MFL Regular
Interest, in reduction of the Class Principal Balances thereof, on a pro
rata basis, in accordance with the respective Class Principal Balances of
those Classes outstanding immediately prior to such Distribution Date,
until the Class Principal Balance of each such Class has been reduced to
zero, in an aggregate amount up to the entire Principal Distribution
Amount for such Distribution Date, until such Class Principal Balance has
been reduced to zero;
(vi) to the Class A-M Certificates and the Class A-MFL Regular
Interest, on a pro rata basis (based on the aggregate unreimbursed
Realized Loss previously allocated to each such Class), until all amounts
of such Realized Loss previously allocated to such Classes, but not
previously reimbursed, have been reimbursed in full;
(vii) to the Class A-J Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(viii) to the Class A-J Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(ix) to the Class A-J Certificates, until all amounts of Realized
Loss previously allocated to the Class A-J Certificates, but not
previously reimbursed, have been reimbursed in full;
(x) to the Class C Certificates, in respect of interest, up to the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(xi) to the Class C Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xii) to the Class C Certificates, until all amounts of Realized
Loss previously allocated to the Class C Certificates, but not previously
reimbursed, have been reimbursed in full;
(xiii) to the Class D Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xiv) to the Class D Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xv) to the Class D Certificates, until all amounts of Realized Loss
previously allocated to the Class D Certificates, but not previously
reimbursed, have been reimbursed in full;
(xvi) the Class E Certificates, in respect of interest, up to the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(xvii) to the Class E Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xviii) to the Class E Certificates, until all amounts of Realized
Loss previously allocated to the Class E Certificates, but not previously
reimbursed, have been reimbursed in full;
(xix) to the Class F Certificates, in respect of interest, up to the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(xx) to the Class F Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxi) to the Class F Certificates, until all amounts of Realized
Loss previously allocated to the Class F Certificates, but not previously
reimbursed, have been reimbursed in full;
(xxii) to the Class G Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxiii) to the Class G Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxiv) to the Class G Certificates, until all amounts of Realized
Loss previously allocated to the Class G Certificates, but not previously
reimbursed, have been reimbursed in full;
(xxv) to the Class H Certificates, in respect of interest, up to the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(xxvi) to the Class H Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxvii) to the Class H Certificates, until all amounts of Realized
Loss previously allocated to the Class H Certificates, but not previously
reimbursed, have been reimbursed in full;
(xxviii) to the Class J Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxix) to the Class J Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxx) to the Class J Certificates, until all amounts of Realized
Loss previously allocated to the Class J Certificates, but not previously
reimbursed, have been reimbursed in full;
(xxxi) to the Class K Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxxii) to the Class K Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxxiii) to the Class K Certificates, until all amounts of Realized
Loss previously allocated to the Class K Certificates, but not previously
reimbursed, have been reimbursed in full;
(xxxiv) to the Class L Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxxv) to the Class L Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxxvi) to the Class L Certificates, until all amounts of Realized
Loss previously allocated to the Class L Certificates, but not previously
reimbursed, have been reimbursed in full;
(xxxvii) to the Class M Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxxviii) to the Class M Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxxix) to the Class M Certificates, until all amounts of Realized
Loss previously allocated to the Class M Certificates, but not previously
reimbursed, have been reimbursed in full;
(xl) to the Class N Certificates, in respect of interest, up to the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(xli) to the Class N Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xlii) to the Class N Certificates, until all amounts of Realized
Loss previously allocated to the Class N Certificates, but not previously
reimbursed, have been reimbursed in full;
(xliii) to the Class O Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xliv) to the Class O Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xlv) to the Class O Certificates, until all amounts of Realized
Loss previously allocated to the Class O Certificates, but not previously
reimbursed, have been reimbursed in full;
(xlvi) to the Class P Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xlvii) to the Class P Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xlviii) to the Class P Certificates, until all amounts of Realized
Loss previously allocated to the Class P Certificates, but not previously
reimbursed, have been reimbursed in full;
(xlix) to the Class Q Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(l) to the Class Q Certificates, in reduction of the Class Principal
Balance thereof, an amount up to the Remaining Principal Distribution
Amount for such Distribution Date until such Class Principal Balance has
been reduced to zero;
(li) to the Class Q Certificates, until all amounts of Realized Loss
previously allocated to the Class Q Certificates, but not previously
reimbursed, have been reimbursed in full;
(lii) to the Class S Certificates, in respect of interest, up to the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(liii) to the Class S Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(liv) to the Class S Certificates, until all amounts of Realized
Loss previously allocated to the Class S Certificates, but not previously
reimbursed, have been reimbursed in full;
(lv) to the Class T Certificates, in respect of interest, up to the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(lvi) to the Class T Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(lvii) to the Class T Certificates, until all amounts of Realized
Loss previously allocated to the Class T Certificates, but not previously
reimbursed, have been reimbursed in full; and
(lviii) to the Class R Certificates, the amount, if any, remaining
in the Upper-Tier Distribution Account after all other distributions
pursuant to this Section 4.01(a) and Section 4.01(e).
Notwithstanding the foregoing, on each Distribution Date occurring
on or after the date on which the Class Principal Balance of the last
outstanding Class of Subordinate Certificates has been reduced to zero, the
Trustee shall apply amounts on deposit in the Upper-Tier Distribution Account in
the following order of priority: (i) concurrently, to the Class X-0, Xxxxx X-0,
Class A-AB, Class A-3, Class A-1-A, Class A-SP and Class A-X Certificates, pro
rata, in respect of the Optimal Interest Distribution Amount allocable to each
such Class; (ii) to the Class X-0, Xxxxx X-0, Class A-AB, Class A-3 and Class
A-1-A Certificates, pro rata, in reduction of the Class Principal Balances
thereof, until the Certificate Balance of each such Class has been reduced to
zero; and (iii) to the Class X-0, Xxxxx X-0, Class A-AB, Class A-3 and Class
A-1-A Certificates, pro rata (based on the aggregate unreimbursed Realized Loss
previously allocated to such Class) until all amounts of such Realized Loss
previously allocated to such Classes but not previously reimbursed have been
reimbursed in full.
(b) [Reserved].
(c) On each Distribution Date, each Uncertificated Lower-Tier
Interest shall be deemed to receive distributions from the Lower-Tier
Distribution Account in respect of principal or reimbursement of Realized Loss
in an amount equal to the amount of principal or reimbursement of Realized Loss
distributable to such Uncertificated Lower-Tier Interest's respective Class of
Related Certificates as provided in Section 4.01(a); provided that where more
than one Class of Uncertificated Lower-Tier Interests relates to a particular
Class of Certificates, each such Class of Uncertificated Lower-Tier Interests
shall be deemed to receive principal distributions or reimbursements of Realized
Losses in the aggregate amount distributed to the Related Certificates in
numerical order (e.g., first, to LA-1-1, and then to LA-1-2) until each
Uncertificated Lower-Tier Interest is reduced to zero.
During each Interest Accrual Period, each Uncertificated Lower-Tier
Interest shall accrue interest in an amount equal to the product of the
Lower-Tier Principal Amount of each such Uncertificated Lower-Tier Interest and
the Weighted Average Net Mortgage Rate. On each Distribution Date, each
Uncertificated Lower-Tier Interest shall be deemed to receive distributions in
respect of interest in an amount equal to the sum of (i) the amount of interest
that will actually be distributed in respect of such Uncertificated Lower-Tier
Interest's Related Certificates (provided, that the interest distributed in
respect of a Class of Certificates having more than one Related Uncertificated
Lower-Tier Interest shall be allocated pro rata to such Uncertificated
Lower-Tier Interests, based on interest accrued) and (ii) the amount of interest
that will actually be distributed in respect of such Uncertificated Lower-Tier
Interest's Related Class A-X Component and, if applicable, the Related Class
A-SP Component. In all events, the amount accrued in respect of each
Uncertificated Lower-Tier Interest less the amount actually distributed in
respect of such Uncertificated Lower-Tier Interest shall equal the sum of (x)
the Interest Shortfall Amount allocated to such Uncertificated Lower-Tier
Interest's Related Certificate based on their respective Interest Shortfall
Amounts (in the case of a Class of Certificates having more than one Related
Uncertificated Lower-Tier Interest, allocated pro rata to such Uncertificated
Lower-Tier Interests, based on their respective Interest Shortfall Amounts) and
(y) the Interest Shortfall Amount allocated to the Related Components of the
Class A-X or Class A-SP Certificates and attributable to such Uncertificated
Lower-Tier Interest. Any amounts remaining in the Lower-Tier Distribution
Account after payment to the Uncertificated Lower-Tier Interests pursuant to
this Section 4.01(c) and Section 4.01(d) and payment of expenses of the Trust
Fund shall be distributed to the Class LR Certificates.
Such amounts distributed to the Uncertificated Lower-Tier Interests
in respect of principal, interest and reduction of Realized Loss with respect to
any Distribution Date are referred to herein collectively as the "Lower-Tier
Distribution Amount" and shall be deemed to be deposited by the Trustee on such
Distribution Date in the Upper-Tier Distribution Account, with a credit for
amounts distributed in respect of the Class LA-MFL Uncertificated Interest in
respect of the Class A-MFL Net Fixed Swap Payment on the preceding Class A-MFL
Swap Payment Date pursuant to Section 3.04(b) and Section 3.28(e).
As of any date, payments of principal in respect of the Mortgage
Loans and the Realized Loss shall be allocated to the Uncertificated Lower-Tier
Interests such that the sum of the principal balance after application of any
Realized Loss of each Uncertificated Lower-Tier Interest (or Interests, in the
case of Certificates having more than one Related Uncertificated Lower-Tier
Interest) and the cumulative amount of Realized Loss allocated to such
Uncertificated Lower-Tier Interest (or Interests) equals the Class Principal
Balance of the Related Certificates after the application of any Realized Loss
with respect thereto and the cumulative amount of Realized Loss allocated to
such Class of Related Certificates. The initial principal balance of each
Uncertificated Lower-Tier Interest equals the respective Original Lower-Tier
Principal Amount. The interest rate with respect to each Uncertificated
Lower-Tier Interest will be the Weighted Average Net Mortgage Rate.
Interest Shortfall Amounts allocated to the Class A-X and Class A-SP
Certificates shall be attributed to the Related Uncertificated Lower-Tier
Interests to the extent of the Related Components, pro rata, based on interest
accrued on such Components. Any amounts so allocated shall have the same
seniority as interest payments due on the Class A-X or Class A-SP Certificates,
as applicable. Prepayment Interest Shortfalls shall be allocated to each Class
of Uncertificated Lower-Tier Interests pro rata on the basis of their respective
interest entitlements.
(d) On each Master Servicer Remittance Date, the Master Servicer
shall remit to the Trustee all Yield Maintenance Charges for deposit in the
Lower-Tier Distribution Account for payment to the Uncertificated Lower-Tier
Interests. On each Distribution Date, the Trustee shall be deemed to withdraw
from the Lower-Tier Distribution Account an aggregate amount equal to all Yield
Maintenance Charges actually collected on the Loans or any REO Loans during the
related Collection Period and shall be deemed to distribute such amount to the
Uncertificated Lower-Tier Interests, pro rata in proportion to their outstanding
Lower-Tier Principal Amounts.
On each Distribution Date, the Trustee shall withdraw any amounts on
deposit in the Upper-Tier Distribution Account that represent Yield Maintenance
Charges actually collected on Loans or REO Loans during the related Collection
Period and remitted in respect of the Uncertificated Lower-Tier Interests
pursuant to Section 4.01(d), and shall distribute such amounts as follows: to
the Class X-0, Xxxxx X-0, Class A-AB, Class A-3, Class A-1-A, 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 and the Class A-MFL Regular Interest, in an amount equal to
the product of (x) a fraction whose numerator is the amount distributed as
principal to such Class on such Distribution Date that is attributable to the
Loan Group that includes the prepaid Mortgage Loan, and whose denominator is the
total amount distributed as principal to the Class X-0, Xxxxx X-0, Class A-AB,
Class A-3, Class A-1-A, Class A-M, Class A-J, Class B, Class C, Class D, Class
E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class
O, Class P, Class Q, Class S and Class T Certificates and the Class A-MFL
Regular Interest on such Distribution Date that is attributable to the Loan
Group that includes the prepaid Mortgage Loan, (y) the Base Interest Fraction
for the related Principal Prepayment and such Class of Certificates and (x) the
aggregate amount of Yield Maintenance Charges collected on such Principal
Prepayment during the related Collection Period. Any Yield Maintenance Charges
collected during the related Collection Period remaining after the distributions
contemplated in the prior two sentences shall be distributed (i) for each of the
first 12 Distribution Dates, if the Class A-SP Certificates are then
outstanding, 35% of such amount to the Holders of the Class A-SP Certificates
and 65% of such amount to the Holders of the Class A-X Certificates; (ii) for
each of the next 12 Distribution Dates, if the Class A-SP Certificates are then
outstanding, 14.5% of such amount to the Holders of the Class A-SP Certificates
and 85.5% of such amount to the Holders of the Class A-X Certificates; (iii) for
each of the next 12 Distribution Dates, if the Class A-SP Certificates are then
outstanding, 3% of such amount to the Holders of the Class A-SP Certificates and
97% of such amount to the Holders of the Class A-X Certificates; and (iv)
otherwise, entirely to the Holders of the Class A-X Certificates. For purposes
of determining the portion of any Yield Maintenance Charge that is distributable
to the Holders of any Class of Yield Maintenance Certificates and the Class
A-MFL Regular Interest on any Distribution Date, the relevant "Yield Rate" shall
be the same yield or discount rate (exclusive of any applicable spread) used to
calculate such Yield Maintenance Charge, with such yield or discount rate
(exclusive of any applicable spread) converted to a monthly equivalent rate
(regardless of whether any similar conversion occurred at the loan level). The
relevant Yield Rate shall be provided promptly by the Master Servicer to the
Trustee.
(e) On any applicable Distribution Date, (i) the Trustee shall
withdraw from the Post-ARD Additional Interest Distribution Account any Post-ARD
Additional Interest collected in respect of the Mortgage Loans for such
Distribution Date and shall distribute such amount to the Class V Certificates;
and (ii) with respect to amounts on deposit in the Excess Liquidation Proceeds
Reserve Account, the Trustee shall distribute such amount to the
Certificateholders, in sequential order, after first distributing such amount
from the Lower-Tier REMIC to the Upper-Tier REMIC in respect of the Related
Uncertificated Lower-Tier Interest, as reimbursement for previously allocated
Realized Losses and shall distribute all amounts remaining in the Excess
Liquidation Proceeds Reserve Account thereafter to the holders of the Class LR
Certificates.
(f) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
of such Class based on their respective Percentage Interests. Except as
otherwise specifically provided in Sections 4.01(g), 4.01(h) and 9.01, all such
distributions with respect to each Class on each Distribution Date shall be made
to the Certificateholders of record of the respective Class 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 written wiring
instructions no later than the related Record Date (which wiring instructions
may be in the form of a standing order applicable to all subsequent Distribution
Dates) and otherwise by check mailed to the address of such Certificateholder as
it appears in the Certificate Register. The final distribution on each
Certificate (determined without regard to any possible future reimbursement of
Realized Loss previously allocated to such Certificate) shall be made in like
manner, but only upon presentation and surrender of such Certificate at the
offices of the Trustee or such other location specified in the notice to
Certificateholders of such final distribution.
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 Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Depositor, the Master Servicer, the Special Servicer, the Underwriters or the
Initial Purchaser shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any amount of Realized Loss previously allocated to such Class of Certificates)
will be made on the next Distribution Date, the Trustee shall, as soon as
practicable prior to the Final Distribution Date for such Class, post a notice
on the Website to the effect that no interest shall accrue on such Certificates
from and after such Distribution Date.
Any funds not distributed to any Holder or Holders of Definitive
Certificates of any 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 Definitive Certificates
as to which notice has been given pursuant to this Section 4.01(g) shall not
have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Definitive 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 Definitive
Certificates shall not have been surrendered for cancellation, the Trustee,
directly or through an agent, shall take such steps to contact the remaining
non-tendering Definitive 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 Definitive 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 Definitive Certificateholder on any amount
held in trust hereunder by the Trustee as a result of such Definitive
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with Section 4.01(h).
(h) Distributions in reimbursement of Realized Loss previously
allocated to the Regular Certificates (other than the Class A-MFL Certificates)
and the Class A-MFL Regular Interest shall be made in the amounts and manner
specified in Section 4.01(a) to the Holders of the respective Class otherwise
entitled to distributions of interest and principal on such Class on the
relevant Distribution Date; provided, however, that all distributions in
reimbursement of Realized Loss previously allocated to a Class of Certificates
which has since been retired shall be to the prior Holders that surrendered the
Certificates of such Class upon retirement thereof and shall be made by check
mailed to the address of each such prior Holder last shown in the Certificate
Register, and such amounts shall be deemed to have been distributed from the
Lower-Tier REMIC to the Upper-Tier REMIC in each case as such Realized Loss was
allocated to the Uncertificated Lower-Tier REMIC Interests pursuant to Section
4.04(b). Notice of any such distribution to a prior Holder shall be made in
accordance with Section 11.05 at such last address. The amount of the
distribution to each such prior Holder shall be based upon the aggregate
Percentage Interest evidenced by the Certificates surrendered thereby. If the
check mailed to any such prior Holder is returned uncashed, then the amount
thereof shall be set aside and held uninvested in trust for the benefit of such
prior Holder, and the Trustee shall attempt to contact such prior Holder in the
manner contemplated by Section 4.01(f) as if such Holder had failed to surrender
its Certificates.
(i) Notwithstanding anything in this Agreement to the contrary, all
distributions allocable to the Class A-MFL Regular Interest shall be deposited
(or deemed deposited) into the Floating Rate Account pending distribution
thereof to the Class A-MFL Certificateholders and/or with respect to interest
distributions, the Swap Counterparty. In addition, for so long as the Swap
Agreement remains in effect, amounts described in this Agreement as being
distributable on or allocable to the Class A-MFL Regular Interest with respect
to any Distribution Date (including distributions of Yield Maintenance Charges)
shall be determined (taking into account all of the applicable payment
priorities and the then known available funds) as of the Class A-MFL Swap
Payment Date preceding such Distribution Date, and the Class A-MFL Net Fixed
Swap Payment and other amounts due the Swap Counterparty will be deemed to be
withdrawn from the Distribution Account and transferred to the Floating Rate
Account on such Class A-MFL Swap Payment Date, and the balance of the amount
distributable to Class A-MFL Certificateholders shall be deemed to be
transferred to the Floating Rate Account on the related Distribution Date.
Subject to Section 3.28, on each Distribution Date, the Trustee
shall apply amounts on deposit in the Floating Rate Account for the following
purposes and in the following order of priority, in each case to the extent of
the Class A-MFL Available Funds for such Distribution Date:
(i) to make distributions of interest to the Holders of the Class
A-MFL Certificates, up to the Class A-MFL Interest Distribution Amount for
such Distribution Date;
(ii) to make distributions of principal to the Holders of the Class
A-MFL Certificates, in reduction of the Class Principal Balance thereof,
up to the Class A-MFL Principal Distribution Amount for such Distribution
Date, until such Class Principal Balance has been reduced to zero;
(iii) to reimburse the Holders of the Class A-MFL Certificates,
until all amounts of Realized Loss previously allocated to the Class A-MFL
Certificates, but not previously reimbursed, have been reimbursed in full;
and
(iv) to the Holders of the Class A-MFL Certificates, any remaining
amount.
(j) For so long as the Swap Agreement is in effect and there is no
default thereunder as set forth in clause (i) of the definition of Swap Default
on the part of the Swap Counterparty, all Yield Maintenance Charges allocable to
the Class A-MFL Regular Interest shall be payable to the Swap Counterparty
pursuant to the terms of the Swap Agreement. However, during the occurrence of a
default thereunder as set forth in clause (i) of the definition of Swap Default
on the part of the Swap Counterparty under the Swap Agreement or if the Swap
Agreement is terminated and a replacement Swap Agreement is not obtained, then
all Yield Maintenance Charges distributed to the Floating Rate Account with
respect to the Class A-MFL Regular Interest shall be distributed by the Trustee
to the Holders of the Class A-MFL Certificates on the subject Distribution Date.
(k) Any termination payments due to the Swap Counterparty under the
Swap Agreement shall be payable solely, as contemplated by Section 3.28, out of
any upfront payment made by a replacement swap counterparty and otherwise
payable to the Depositor.
(l) Shortfalls in the Available Distribution Amount resulting from
unanticipated Trust Fund indemnification expenses incurred pursuant to Section
6.03 and Section 8.05 shall be allocated to the most subordinate Class of
Certificates then outstanding, until the Class Principal Balance thereof is
reduced to zero, and then is allocated to the next most subordinate Class of
Certificate then outstanding. Such shortfalls shall be allocated to the
Uncertificated Lower-Tier Interests in the same manner as Realized Losses.
(m) The rights of the Certificateholders and the Class A-MFL Regular
Interest to receive distributions from the proceeds of the Trust Fund in respect
of their Certificates, and all rights and interests of the Certificateholders
and the Class A-MFL Regular Interest in and to such distributions, shall be as
set forth in this Agreement. Neither the Holders of any Class of Certificates
nor the Class A-MFL Regular Interest nor any party hereto shall in any way be
responsible or liable to the Holders of any other Class of Certificates in
respect of amounts previously distributed on the Certificates in accordance with
this Agreement.
Section 4.02 Trustee Report; Certain Other Reports
(a) Based solely on information provided to the Trustee by the
Master Servicer pursuant to Section 3.12 and this Section 4.02, the Trustee
shall prepare (or cause to be prepared) and, on each Distribution Date, provide
or make available electronically (or, upon request, by first class mail) to each
Privileged Person a statement substantially in the form of, and containing the
information set forth in, Exhibit E hereto (the "Trustee Report"), detailing the
distributions on such Distribution Date and the performance, both in the
aggregate and individually to the extent available, of the Mortgage Loans and
the Mortgaged Properties; provided that the Trustee need not deliver to any
Privileged Person or the Controlling Class Representative any Trustee Report
that has been made available to such Person via the Trustee's Website as
provided below; and provided, further, that the Trustee has no affirmative
obligation to discover the identities of Certificate Owners and need only react
to Persons claiming to be Certificate Owners in accordance with Section 5.06;
and provided, further, that 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 the Trustee Report shall be deemed to have
agreed to keep confidential the information therein until such Trustee Report is
filed with the Commission.
The Trustee shall have no obligation to provide the information or
reports described in this Section 4.02(a) until it has received the requisite
information or reports from the Master Servicer provided for herein, and the
Trustee shall not be in default hereunder due to a delay in providing the
Certificateholder Reports caused by the Master Servicer's or the Special
Servicer's failure to timely deliver any information or reports hereunder. 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
Borrower, each other or a third party, and accepted by it in good faith, 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. 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 Borrower, a third party or each other.
The Trustee shall make available each month, to the general public,
the related Trustee Report via its Website initially located at
"xxx.xxxxxxx.xxx." In addition, the Trustee shall make available each month, via
its Website to the extent received by the Trustee, on a restricted basis solely
to Privileged Persons, (i) the Unrestricted Master Servicer Reports, (ii) the
CMSA Loan Periodic Update File, the CMSA Loan Setup File, CMSA Bond Level File
and the CMSA Collateral Summary File, (iii) and any other report at the
direction of the Depositor and (iv) as a convenience to the general public (and
not in furtherance of the distribution thereof under the securities laws), the
Prospectus and this Agreement. Upon notification by the Depositor that Credit
Suisse has sold the Non-Registered Certificates to unaffiliated third parties,
the Trustee shall remove the restriction provided for in the preceding sentence
and shall make such reports and documents available to the general public. The
Trustee shall also make available each month, on a restricted basis to any
Privileged Person via its Website, to the extent received by the Trustee, (i)
the Restricted Master Servicer Reports, (ii) the CMSA Property File and (iii)
any other report at the direction of the Depositor. 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 information
regarding the Trust on the Trustee's Website shall be deemed to have agreed to
keep confidential such information until such information is filed with the
Commission, and the Trustee's Website shall bear a legend to the following
effect:
No recipient shall use or disclose the information contained
on this website in any manner which could result in a
violation of any provision of the Securities Act of 1933 or
the Securities Exchange Act of 1934 or would require
registration of any Non-Registered Certificates pursuant to
Section 5 of the Securities Act of 1933.
The Trustee makes no representations or warranties as to the
accuracy or completeness or any report, document or other information made
available on its Website and assumes no responsibility therefor. In addition,
the Trustee may disclaim responsibility for any information distributed by the
Trustee for which it is not the original source.
In connection with providing access to the Trustee's Website, the
Trustee may require registration and (i) that any such Certificateholder or
Certificate Owner, as the case may be, has delivered a certification
substantially in the form of Exhibit K-1 to the Trustee and (ii) that any
prospective investor has delivered a certification substantially in the form of
Exhibit K-2 to the Trustee. The Trustee shall not be liable for the
dissemination of information in accordance herewith. Questions regarding the
Trustee's Website can be directed to the Trustee's CMBS customer service desk at
(000) 000-0000 or such other number as the Trustee may hereinafter specify.
The Trustee shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Trustee Report and may affix thereto any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto).
(b) By 12:00 p.m. New York City time on the second Business Day
following each Determination Date, the Master Servicer shall deliver to the
Trustee the CMSA Loan Periodic Update File and supplemental reports reflecting
information as of the close of business on the last day of the Collection Period
with respect to the Mortgage Loans, in a mutually agreeable electronic format.
Such CMSA Loan Periodic Update File and any written information supplemental
thereto shall include such information that is reasonably required by the
Trustee for purposes of making the calculations and preparing the reports for
which the Trustee is responsible pursuant to Section 4.01, this Section 4.02,
Section 4.04 or any other section of this Agreement, as set forth in reasonable
written specifications or guidelines issued by the Trustee from time to time.
Such information may be delivered by the Master Servicer to the Trustee in such
electronic or other form as may be reasonably acceptable to the Trustee and such
Master Servicer.
Notwithstanding the foregoing, because the Master Servicer will not
receive the Servicing Files until the Closing Date and will not have sufficient
time to review and analyze such Servicing Files before the initial Distribution
Date, the parties agree that the CMSA Loan Periodic Update File required to be
delivered in April 2007 will be based solely upon information generated from
actual collections received by the Master Servicer and from information the
Depositor delivers or causes to be delivered to the Master Servicer (including
but not limited to information prepared by third party servicers of the Mortgage
Loans with respect to the period prior to the Closing Date). The Special
Servicer shall from time to time (and, in any event, as may be reasonably
required by the Master Servicer) provide such Master Servicer with such
information in its possession regarding the Specially Serviced Mortgage Loans
and the related REO Properties as may be necessary for such Master Servicer to
prepare each report and any supplemental information to be provided by such
Master Servicer to the Trustee.
Notwithstanding the foregoing, the failure of the Master Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to Section 4.02(a), this Section 4.02(b) or Section 4.02(c) shall not
constitute a breach of Section 4.02(a), this Section 4.02(b) or of Section
4.02(c) to the extent such Master Servicer or such Special Servicer so fails
because such disclosure, in the reasonable belief of such Master Servicer or
such Special Servicer, as the case may be, would violate any applicable law or
any provision of a Mortgage Loan Document prohibiting disclosure of information
with respect to the Mortgage Loans or the Mortgaged Properties, would constitute
a waiver of the attorney-client privilege on behalf of the Trust or would
otherwise materially harm the Trust Fund. The Master Servicer or the Special
Servicer may affix to any information provided by it any disclaimer it deems
appropriate in its reasonable discretion (without suggesting liability on the
part of any other party hereto).
(c) Within a reasonable period of time after the end of each
calendar year, the Trustee shall prepare, or cause to be prepared, and mail to
each Person who at any time during the calendar year was a Certificateholder (i)
a statement containing the aggregate information set forth on page 2 of Exhibit
B to the Prospectus Supplement for such calendar year or applicable portion
thereof during which such person was a Certificateholder and (ii) such other
customary information as the Trustee deems necessary or desirable for
Certificateholders to prepare their federal, state and local income tax returns,
including the amount of original issue discount accrued on the Certificates, if
applicable. The obligations of the Trustee in the immediately preceding sentence
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code. As soon as practicable following the request of any
Certificateholder in writing, the Trustee shall furnish to such
Certificateholder such information regarding the Mortgage Loans and the
Mortgaged Properties as such Certificateholder may reasonably request and, as
has been furnished to, or may otherwise be in the possession of, the Trustee.
The Master Servicer and the Special Servicer shall promptly provide to the
Depositor and the Trustee such information regarding the Mortgage Loans and the
related Mortgaged Properties as such party may reasonably request and that has
been furnished to, or may otherwise be in the possession of, such Master
Servicer or such Special Servicer, as the case may be.
Xxxxxxx 0.00 X&X Advances
(a) On or before 1:00 p.m., New York City time, on each Master
Servicer Remittance Date, the Master Servicer shall, subject Section 4.03(c),
either (i) remit from its own funds to the Trustee for deposit into the
Lower-Tier Distribution Account an amount equal to the aggregate amount of P&I
Advances, if any, to be made by the Master Servicer in respect of the Mortgage
Pool for the related Distribution Date, (ii) apply amounts held in the
Collection Account for future distribution to Certificateholders in subsequent
months in discharge of any such obligation to make such P&I Advances, or (iii)
make such P&I Advances in the form of any combination of (i) and (ii)
aggregating the total amount of such P&I Advances to be made. Any amounts held
in the Collection Account for future distribution and so used to make P&I
Advances in respect of the Mortgage Pool shall be appropriately reflected in the
Master Servicer's records and replaced by the Master Servicer by deposit in the
Collection Account prior to the next succeeding Master Servicer Remittance Date
(to the extent not previously replaced through the deposit of Late Collections
of the delinquent principal and interest in respect of which such P&I Advances
were made). If, as of 3:30 p.m., New York City time, on any Master Servicer
Remittance Date, the Master Servicer shall not have made any P&I Advance
required to be made by it in respect of the Mortgage Pool on such date pursuant
to this Section 4.03(a) (and shall not have delivered to the Trustee the
Officer's Certificate and other documentation related to a determination of
nonrecoverability of a P&I Advance pursuant to Section 4.03(c)) or to the actual
knowledge of a Responsible Officer of the Trustee shall not have remitted any
portion of the Master Servicer Remittance Amount required to be remitted by the
Master Servicer on such date, then the Trustee shall provide notice of such
failure to such Master Servicer by facsimile transmission as soon as possible,
but in any event before 5:00 p.m., New York City time, on such Master Servicer
Remittance Date. If after such notice the Trustee does not receive the full
amount of such P&I Advances in respect of the Mortgage Pool by 11:00 a.m., New
York City time, on the related Distribution Date, then the Trustee shall (not
later than 12:00 noon, New York City time, on the related Distribution Date)
make the portion of such P&I Advances that was required to be, but was not, made
or remitted, as the case may be, by such Master Servicer with respect to the
related Distribution Date, provided that no Master Servicer, Special Servicer or
the Trustee shall make any P&I Advance with respect to any B Loan.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer in respect of any Distribution Date, subject to Section 4.03(c) below,
shall equal the aggregate of all Monthly Payments (other than Balloon Payments)
and any Assumed Monthly Payments, in each case net of any related Master
Servicing Fees and Workout Fees, due or deemed due, as the case may be, in
respect of the Mortgage Loans (including Balloon Mortgage Loans delinquent as to
their respective Balloon Payments) and any REO Mortgage Loans on their
respective Due Dates during the related Collection Period, in each case to the
extent such amount was not paid by or on behalf of the related Borrower or
otherwise collected by or on behalf of the Trust as of the close of business on
the related Determination Date; provided that, if an Appraisal Reduction Amount
exists with respect to any Required Appraisal Loan, then the interest portion of
any P&I Advance required to be made in respect of such Required Appraisal Loan
for the related Distribution Date shall be reduced (it being herein acknowledged
that there shall be no reduction in the principal portion of such P&I Advance)
to equal the product of (i) the amount of the interest portion of such P&I
Advance that would otherwise be required to be made in respect of such Required
Appraisal Loan for such Distribution Date without regard to this proviso,
multiplied by (ii) a fraction, expressed as a percentage, the numerator of which
shall equal the Stated Principal Balance of such Required Appraisal Loan
immediately prior to such Distribution Date, net of the related Appraisal
Reduction Amount, and the denominator of which shall equal the Stated Principal
Balance of such Required Appraisal Loan immediately prior to such Distribution
Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. In making such recoverability
determination, the Master Servicer, the Special Servicer and the Trustee, as
applicable, will be entitled to (i) give due regard to the existence of any
Nonrecoverable Advance or Workout-Delayed Reimbursement Amount with respect to
other Mortgage Loans, the recovery of which, at the time of such consideration,
is being deferred or delayed by the Master Servicer or the Trustee, as
applicable, in light of the fact that proceeds on the related Mortgage Loan are
a source of recovery not only for the P&I Advance under consideration, but also
as a potential source of recovery of such Nonrecoverable Advance or
Workout-Delayed Reimbursement Amount which is being or may be deferred or
delayed and (ii) consider (among other things) the obligations of the Borrower
under the terms of the related Mortgage Loan (or the related A/B Loan Pair, as
applicable) as it may have been modified, to consider (among other things) the
related Mortgaged Properties in their "as is" or then current conditions and
occupancies, as modified by such party's assumptions (consistent with the
applicable Servicing Standard in the case of the Master Servicer and the Special
Servicer) regarding the possibility and effects of future adverse change with
respect to such Mortgaged Properties, to estimate and consider (consistent with
the applicable Servicing Standard in the case of the Master Servicer and the
Special Servicer) (among other things) future expenses and to estimate and
consider (among other things) the timing of recoveries.
The determination by any Person with an obligation hereunder to make
P&I Advances that it has made a Nonrecoverable P&I Advance or that any proposed
P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be
made by such Person in its reasonable judgment and shall be evidenced by an
Officer's Certificate delivered promptly to the Depositor, the Trustee (unless
it is the Person making such determination) and the Controlling Class
Representative setting forth the basis for such determination, accompanied by a
copy of an Appraisal of the related Mortgaged Property or REO Property performed
within the 12 months preceding such determination, and further accompanied by
any other information, including engineers' reports, environmental surveys or
similar reports, that such Person may have obtained and that support such
determination.
Neither the Master Servicer nor the Trustee shall make any P&I
Advances with respect to delinquent amounts due on any B Loan. If an Appraisal
of the related Mortgaged Property shall not have been obtained within the prior
12 month period (and the Master Servicer and the Trustee shall each request any
such appraisal from the Special Servicer prior to ordering an Appraisal pursuant
to this sentence) or if such an Appraisal shall have been obtained but as a
result of unforeseen occurrences, such Appraisal does not, in the good faith
determination of the Master Servicer, the Special Servicer or the Trustee,
reflect current market conditions, and the Master Servicer or the Trustee, as
applicable, and the Special Servicer cannot agree on the appropriate downward
adjustment to such Appraisal, such Master Servicer, the Special Servicer or the
Trustee, as the case may be, may, subject to its reasonable and good faith
determination that such Appraisal will demonstrate the nonrecoverability of the
related Advance, obtain an Appraisal for such purpose at the expense of the
Trust Fund (and, in the case of any A/B Loan Pair, first of the related B Loan
Holders, if any, and second, to the extent such expense remains unpaid, of the
Trust Fund).
(d) The Master Servicer and the Trustee shall each be entitled to
receive interest at the Reimbursement Rate in effect from time to time, accrued
on the amount of each P&I Advance made thereby (with its own funds), for so long
as such P&I Advance is outstanding (or, if such P&I Advance was made prior to
the end of any grace period applicable to the subject delinquent Monthly
Payment, for so long as such P&I Advance is outstanding following the end of
such grace period). Such interest with respect to any P&I Advance shall be
payable: (i) first, in accordance with Sections 3.05 and 3.26, out of any
Default Charges subsequently collected on the particular Mortgage Loan or REO
Mortgage Loan as to which such P&I Advance relates; and (ii) then, after such
P&I Advance is reimbursed, but only if and to the extent that such Default
Charges are insufficient to cover such Advance Interest, out of general
collections on the Mortgage Loans and REO Properties on deposit in the
Collection Account; provided that interest earned on any P&I Advances made with
respect to the A Loan of an A/B Loan Pair or any successor REO Mortgage Loan in
respect thereof shall be payable out of the related A/B Loan Pair Custodial
Account, to the maximum extent permitted by the related A/B Intercreditor
Agreement, before being paid out of general collections on the Mortgage Pool on
deposit in the Collection Account. The Master Servicer shall reimburse itself or
the Trustee, as applicable, for any outstanding P&I Advance made in respect of a
Mortgage Loan or an REO Mortgage Loan as soon as practicable after funds
available for such purpose are deposited in the Collection Account.
Notwithstanding the foregoing, upon a determination that a P&I Advance
previously made with respect to the Mortgage Pool is a Nonrecoverable P&I
Advance, the Master Servicer may reimburse itself or the Trustee, as applicable,
immediately from general collections in the Collection Account, such
reimbursement to be made first from the Loan Group as to which the
Nonrecoverable P&I Advance relates and then out of the other Loan Group.
Notwithstanding the foregoing, as contemplated by Section 3.05(a)(vii), instead
of obtaining reimbursement out of general collections on the Mortgage Pool
immediately, the Master Servicer or the Trustee, as applicable, may, in its sole
discretion, after reimbursement of such amounts up to the principal portions of
general collections, elect to obtain reimbursement for such Nonrecoverable P&I
Advance over a period of time (not to exceed 12 months) and the unreimbursed
portion of such P&I Advance will accrue interest at the Reimbursement Rate in
effect from time to time. The Master Servicer must reimburse itself each month
up to the amount of such collections otherwise allocable as principal. At any
time after such a determination to obtain reimbursement over time in accordance
with the preceding sentence, the Master Servicer or the Trustee, as applicable,
may, in its sole discretion, decide to obtain reimbursement immediately. The
Master Servicer's or the Trustee's, as applicable, agreement to defer
reimbursement of any eligible portion of a Nonrecoverable P&I Advance as set
forth above is an accommodation to the Certificateholders and shall not be
construed as an obligation on the part of the Master Servicer or the Trustee, as
applicable, or a right of the Certificateholders. Nothing herein shall be deemed
to create in the Certificateholders a right to prior payment of distributions
over the Master Servicer's or the Trustee's, as applicable, right to
reimbursement for P&I Advances (deferred or otherwise). 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 a
breach of any other contractual obligation owed to the Certificateholders by any
party to this Agreement. In no event shall interest accrue in accordance with
this Section 4.03(d) on any P&I Advance as to which the corresponding Late
Collection was received by or on behalf of the Trust as of the related Master
Servicer Remittance Date. No Master Servicer shall be entitled to Advance
Interest to the extent a payment is received but is being held by or on behalf
of such Master Servicer in suspense.
Section 4.04 Allocation of Realized Losses and Additional Trust
Fund Expenses
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Sections 4.01, the
Trustee shall determine the amount, if any, by which (i) the then aggregate of
the Class Principal Balances of all the Classes of Principal Balance
Certificates, exceeds (ii) the aggregate Stated Principal Balance (for purposes
of this calculation only, not giving effect to any reductions of the Stated
Principal Balance for payments of principal collected on the Mortgage Loans that
were used to reimburse any Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts pursuant to Section 3.05(a)(vi), other than Principal
Distribution Amounts used to reimburse Nonrecoverable Advances or
Workout-Delayed Reimbursement Amounts with respect to Mortgage Loans for which a
Final Recovery Determination has been made) 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 Principal Balance
Certificates will be reduced sequentially, in the following order, until such
excess is reduced to zero: first, the Class Principal Balance of the Class T
Certificates, until such Class Principal Balance is reduced to zero; second, the
Class Principal Balance of the Class S Certificates, until such Class Principal
Balance is reduced to zero; third, the Class Principal Balance of the Class Q
Certificates, until such Class Principal Balance is reduced to zero; fourth, the
Class Principal Balance of the Class P Certificates, until such Class Principal
Balance is reduced to zero; fifth, the Class Principal Balance of the Class O
Certificates, until such Class Principal Balance is reduced to zero; sixth, the
Class Principal Balance of the Class N Certificates, until such Class Principal
Balance is reduced to zero; seventh, the Class Principal Balance of the Class M
Certificates, until such Class Principal Balance is reduced to zero; eighth, the
Class Principal Balance of the Class L Certificates, until such Class Principal
Balance is reduced to zero; ninth, the Class Principal Balance of the Class K
Certificates, until such Class Principal Balance is reduced to zero; tenth, the
Class Principal Balance of the Class J Certificates, until such Class Principal
Balance is reduced to zero; eleventh, the Class Principal Balance of the Class H
Certificates, until such Class Principal Balance is reduced to zero; twelfth,
the Class Principal Balance of the Class G Certificates, until such Class
Principal Balance is reduced to zero; thirteenth, the Class Principal Balance of
the Class F Certificates, until such Class Principal Balance is reduced to zero;
fourteenth, the Class Principal Balance of the Class E Certificates, until such
Class Principal Balance is reduced to zero; fifteenth, the Class Principal
Balance of the Class D Certificates, until such Class Principal Balance is
reduced to zero; sixteenth, the Class Principal Balance of the Class C
Certificates, until such Class Principal Balance is reduced to zero;
seventeenth, the Class Principal Balance of the Class B Certificates, until such
Class Principal Balance is reduced to zero; eighteenth, the Class Principal
Balance of the Class A-J Certificates, until such Class Principal Balance is
reduced to zero; nineteenth, the respective Class Principal Balances of the
Class A-M Certificates and the Class A-MFL Regular Interest (on a pro rata basis
in accordance with the relative sizes of such Class Principal Balances), until
such Class Principal Balance is reduced to zero; and twentieth, the respective
Class Principal Balances of the Class A-1 Certificates, the Class A-2
Certificates, Class A-AB Certificates, Class A-3 Certificates and the Class
A-1-A Certificates (on a pro rata basis in accordance with the relative sizes of
such Class Principal Balances, until such Class Principal Balances are reduced
to zero. All such reductions in the Class Principal Balances of the respective
Classes of the Principal Balance Certificates shall constitute allocations of
Realized Losses and Additional Trust Fund Expenses. Any Realized Loss allocated
to a Class of Certificates will be allocated among respective Certificates of
such Class in proportion to the Percentage Interests evidenced thereby.
(b) With respect to any Distribution Date, any Realized Loss
allocated to a Class of Certificates pursuant to Section 4.04(a) with respect to
such Distribution Date shall reduce the Lower-Tier REMIC Amount of the Related
Uncertificated Lower-Tier REMIC Interest (or, in the case of a Class of
Certificates having more than one Related Uncertificated Lower-Tier Interest, of
the Related Uncertificated Lower-Tier REMIC Interests) as provided in Section
4.01(c).
Section 4.05 Calculations
Provided that the Trustee receives the necessary information from
the Master Servicer and/or the Special Servicer, the Trustee shall be
responsible for performing all calculations necessary in connection with the
actual and deemed distributions to be made pursuant to Section 4.01, the
preparation of the Trustee Reports pursuant to Section 4.02(a) and the actual
and deemed allocations of Realized Losses and Additional Trust Fund Expenses to
be made pursuant to Section 4.04. The Trustee shall calculate the Available
Distribution Amount for each Distribution Date and shall allocate such amounts
among Certificateholders in accordance with this Agreement. Absent actual
knowledge of an error therein, the Trustee shall have no obligation to
recompute, recalculate or otherwise verify any information provided to it by the
Master Servicer. The calculations by the Trustee contemplated by this Section
4.05 shall, in the absence of manifest error, be presumptively deemed to be
correct for all purposes hereunder.
Section 4.06 Grantor Trust Reporting
The parties intend that the portions of the Trust Fund consisting of
the (i) Post-ARD Additional Interest and the Post-ARD Additional Interest
Distribution Account, beneficially owned by the Holders of the Class V
Certificates and (ii) the Class A-MFL Regular Interest, the Swap Agreement and
the Floating Rate Account, beneficially owned by the Holders of the Class A-MFL
Certificates shall constitute, and that the affairs of such portions of the
Trust Fund shall be conducted so as to cause such portions to be treated as a
Grantor Trust. In furtherance of such intention, the Trustee agrees not to vary
the investment of the Class V Certificateholders or the Class A-MFL
Certificateholders in the Grantor Trust with a view to taking advantage of
fluctuations in market rates of interest to improve their rates of return. In
furtherance of such intention, the Trustee shall furnish or cause to be
furnished to Class V Certificateholders and the Class A-MFL Certificateholders
information returns with respect to income relating to their share of the
related Post-ARD Additional Interest or income and deductions in respect of the
Class A-MFL Regular Interest and the Swap Agreement, as applicable, and such
other information as may be required pursuant to the Code, and shall file or
cause to be filed with the Internal Revenue Service, such information returns,
schedules and other information, together with Form 1041 or such other form as
may be applicable, at the time or times and in the manner required by the Code.
The Trustee shall deliver or cause to be delivered the federal taxpayer
identification number of the Grantor Trust that holds the Swap Agreement on an
IRS Form W-9 to the Swap Counterparty as soon as possible after such Swap
Agreement is entered into (but no later than the first payment date under such
Swap Agreement) and, if requested by the Swap Counterparty (unless not permitted
under federal income tax law) an IRS Form W-8IMY. Each non-exempt Holder of
Class A-MFL Certificates shall be obligated pursuant to this Agreement to
provide applicable certification to the Trustee (with copies sent or faxed
directly from such Certificateholder to the Swap Counterparty) to enable the
Trustee to make payments to the Holders of the Class A-MFL Certificates without
federal withholding or backup withholding. As authorized by the Holders of the
Class A-MFL Certificates under this Agreement, the Trustee may forward any such
certification received to the Swap Counterparty if requested. Without limiting
the generality of the foregoing, the Depositor, within 10 days following the
Trustee's request therefor, shall provide in writing to the Trustee such
information as is reasonably requested by the Trustee for tax purposes and
compliance with the administration and reporting duties under the Grantor Trust
Provisions, and the Trustee's duty to perform its reporting and other tax
compliance obligations under this Section 4.06 shall be subject to the condition
that it receives from the Depositor such information possessed by the Depositor
that is necessary to permit the Trustee to perform such obligations.
Section 4.07 Compliance with Withholding Requirements
Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements with respect to payments
made or received under the Swap Agreement and payments to Certificateholders of
interest or original issue discount that the Paying Agent reasonably believes
are applicable under the Code. The consent of Certificateholders shall not be
required for any such withholding. The Paying Agent agrees that it will not
withhold with respect to payments of interest or original issue discount in the
case of a Certificateholder that is (A) a United States Tax Person that has
furnished or caused to be furnished a Form W-9 or an acceptable substitute form
or a successor form (or is exempt from furnishing such a form), or (B) a
Non-United States Tax Person that has furnished or caused to be furnished (i) an
effective Form W-8BEN or W-8IMY (with appropriate attachments) or an acceptable
substitute form or a successor form and who is not a "10 percent shareholder"
within the meaning of Code Section 871(h)(3)(B) or a "controlled foreign
corporation" described in Code Section 881(c)(3)(C) with respect to the Trust
Fund or the Depositor, or (ii) an effective Form W-8ECI or an acceptable
substitute form or a successor form. In the event the Trustee or its agent
withholds 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. Any amount so withheld shall be treated as having been
distributed to such Certificateholder for all purposes of this Agreement.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates
(a) The Certificates shall consist of 30 Classes with the following
respective alphabetic or alphanumeric Class designations: "A-SP," "A-X," "X-0,"
"X-0," "X-XX," "X-0," "A-1-A," "A-M," "A-MFL," "A-J," "B," "C," "D," "E," "F,"
"G," "H," "J," "K," "L," "M," "N," "O," "P," "Q," "R," "S," "T," "LR" and "V,"
respectively. Any reference in any other section or subsection of this Agreement
to any Certificate or Certificates preceded by a Class designation shall be to a
Certificate or Certificates of the Class so designated in this Section 5.01(a).
(b) The Certificates will be substantially in the respective forms
attached hereto as Exhibits A-1 through A-6; provided, however, 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 Certificates
initially shall (and, at the option of the Depositor, following the Closing
Date, all or a portion of any other Class of Certificates may) be held and
transferred through the book-entry facilities of the Depository. The Regular
Certificates will be issuable only in denominations corresponding to initial
Certificate Principal Balances (or, in the case of the Interest Only
Certificates, initial Certificate Notional Amounts) as of the Closing Date of
not less than $10,000 and any whole dollar denomination in excess thereof. The
other Regular Interest Certificates will be issuable only in denominations
corresponding to initial Certificate Principal Balances as of the Closing Date
of not less than $100,000 and any whole dollar denomination in excess thereof.
The Class R Certificates, the Class LR and the Class V Certificates will be
issuable only in denominations representing Percentage Interests in the related
Class of not less than 10.0%.
(c) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee in its capacity as trustee hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized signatory of the Trustee 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
Certificate Registrar 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
(located as of the Closing Date at Xxxxx Fargo Center, Sixth Street and
Marquette Avenue, Minneapolis, Minnesota 55479-0113) 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
Trustee may appoint, by a written instrument delivered to the other parties
hereto, any other bank or trust company to act as Certificate Registrar under
such conditions as the Trustee may prescribe, provided that the Trustee shall
not be relieved of any of its duties or responsibilities hereunder as
Certificate Registrar 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 predecessor's duties as Certificate Registrar. The
Depositor, the Master Servicer and the Special Servicer shall each 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 Certificateholders make a written request to the
Trustee, and such request states that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and is accompanied by a copy of the
communication that such requesting Certificateholders 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
Certificateholders access during normal business hours to, or deliver to the
requesting Certificateholders a copy of, the most recent list of
Certificateholders held by the Certificate Registrar (which list shall be
current as of a date no earlier than 30 days prior to the Trustee's receipt of
such request). Every Certificateholder, by receiving such access, acknowledges
that neither the Certificate Registrar nor the Trustee will be held accountable
in any way by reason of the disclosure of any information as to the names and
addresses of any Certificateholder regardless of the source from which such
information was derived.
(b) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless that
transfer, sale, pledge or other disposition 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 Non-Registered 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 such Non-Registered
Certificate by the Depositor or an Affiliate of the Depositor or, in the case of
a Global Certificate, any transfer of such Certificate to a successor Depository
or, in the case of a Definitive Certificate issued with respect to a Global
Certificate, any transfer of such Certificate to the applicable Certificate
Owner in accordance with Section 5.03(c)), 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-1A; or (ii) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached hereto as Exhibit F-1B
and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached hereto either as Exhibit F-2A or as Exhibit
F-2B; or (iii) an Opinion of Counsel satisfactory to the Trustee to the effect
that such transfer may be made without registration under the Securities Act
(which Opinion of Counsel shall not be an expense of the Trust or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
Each Global Certificate shall be deposited with the Trustee as
custodian for the Depository and registered in the name of Cede & Co. as nominee
of the Depository.
If a transfer of an interest in any Rule 144A Global 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 an
interest in such Rule 144A Global Certificate by the Depositor or an Affiliate
of the Depositor), then (except as provided in the next succeeding paragraph or
in the penultimate paragraph of this Section 5.02(b)) the Certificate Owner
desiring to effect such transfer shall require from its prospective Transferee:
(i) a certificate substantially in the form attached as Exhibit F-2C hereto; 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. Except as provided in the next succeeding paragraph or
in the penultimate paragraph of this Section 5.02(b), any interest in a Rule
144A Global Certificate shall not be transferred to any Person other than a
Qualified Institutional Buyer that takes delivery in the form of an interest in
such Rule 144A Global Certificate. If any Transferee of an interest in a Rule
144A Global Certificate does not, in connection with the subject transfer,
deliver to the Transferor the Opinion of Counsel or the certification described
in the second 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.
Notwithstanding the preceding paragraph, any interest in the Rule
144A Global Certificate with respect to the Class A-X, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class Q, Class S or Class T Certificates may be transferred
(without delivery of any certificate or Opinion of Counsel described in clauses
(i) and (ii) of the first sentence of the preceding paragraph) to any Person who
takes delivery in the form of a beneficial interest in the Regulation S Global
Certificate for the same Class as such Rule 144A Global Certificate upon
delivery to the Certificate Registrar and the Trustee of (i) a certificate from
the Certificate Owner desiring to effect such transfer substantially in the form
attached hereto as Exhibit F-1D and a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached hereto as Exhibit F-2D
and (ii) such written orders and instructions as are required under the
applicable procedures of the Depository, Clearstream and/or Euroclear to direct
the Trustee to debit the account of a Depository Participant by a denomination
of interests in such Rule 144A Global Certificate, and credit the account of a
Depository Participant by a denomination of interests in such Regulation S
Global Certificate, that is equal to the denomination of beneficial interests in
the Class A-X, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class S
or Class T Certificates to be transferred. Upon delivery to 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 with respect to the Class A-X,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S or Class T
Certificates, and increase the denomination of the Regulation S Global
Certificate for such Class, by the denomination of the beneficial interest in
such Class specified in such orders and instructions.
Except as provided in the next succeeding paragraph or in the
penultimate paragraph of this Section 5.02(b), beneficial interests in any
Regulation S Global Certificate shall not be transferred to any Person other
than a non-United States Securities Person that takes delivery in the form of a
beneficial interest in such Regulation S Global Certificate, and the Certificate
Owner desiring to effect such transfer shall be required to obtain from such
prospective Transferee a certification substantially in the form attached hereto
as Exhibit F-2D. On or prior to the Release Date, beneficial interests in any
Regulation S Global Certificate may be held only through Euroclear or
Clearstream.
Notwithstanding the preceding paragraph, following the Release Date,
any interest in the Regulation S Global Certificate with respect to the Class
A-X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class S or Class
T Certificates may be transferred (without delivery of any certificate described
in the first sentence of the preceding paragraph) to any Person who takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for the same Class as such Regulation S Global Certificate upon
delivery to the Certificate Registrar and the Trustee of (i) a certificate from
the Certificate Owner desiring to effect such transfer substantially in the form
attached hereto as Exhibit F-1C and a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached hereto as Exhibit F-2C
and (ii) such written orders and instructions as are required under the
applicable procedures of the Depository, Clearstream and/or 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
Class A-X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class S or
Class T Certificates, as applicable, to be transferred. Upon delivery to 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 Regulation S Global Certificate with
respect to the Class A-X, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q,
Class S or Class T Certificates, as applicable, and increase the denomination of
the Rule 144A Global Certificate for such Class, by the denomination of the
beneficial interest in such Class specified in such orders and instructions.
Notwithstanding the foregoing, any interest in a Global Certificate
with respect to the Class A-X, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P,
Class Q, Class S or Class T Certificates may be transferred by any Certificate
Owner holding such interest to any Institutional Accredited Investor (other than
a Qualified Institutional Buyer) who 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, Clearstream and/or Euroclear 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 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, and cause a Definitive
Certificate of the same Class as such Global Certificate, and in a denomination
equal to the reduction in the denomination of such Global Certificate, to be
executed, authenticated and delivered in accordance with this Agreement to the
applicable Transferee.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Non-Registered Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the transfer of any
Non-Registered Certificate or interest therein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
transfer, sale, pledge or other disposition of any Non-Registered Certificate or
interest therein shall, and does hereby agree to, indemnify the Depositor, the
Initial Purchaser, the Trustee, the Master Servicer, the Special Servicer and
the Certificate Registrar against any liability that may result if such
transfer, sale, pledge or other disposition 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 any Certificate or interest therein shall be made
to a Plan or 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 or a governmental plan subject to Similar Law, if
the purchase and holding of such Certificate or interest therein by the
prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code (or, in the case of a governmental plan
subject to Similar Law, would result in a violation of, or the imposition of an
excise tax under, any applicable Similar Law).
Except in connection with the initial issuance of the Certificates
or any transfer of a Non-Registered Certificate by the Depositor or an Affiliate
of the Depositor or, in the case of a Global Certificate, any transfer of such
Certificate to a successor Depository or, in the case of a Definitive
Certificate issued with respect to a Global Certificate, any transfer of such
Certificate to the applicable Certificate Owner in accordance with Section
5.03(c), the Certificate Registrar shall refuse to register the transfer of a
Non-Registered Certificate unless it has received from the prospective
Transferee any 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 a governmental plan subject to
Similar Law; or (ii) except in the case of a Class R, Class LR or Class V
Certificate, a certification to the effect that the purchase and continued
holding of such Certificate by such prospective Transferee is exempt from the
prohibited transaction provisions of Sections 406 and 407 of ERISA and Section
4975 of the Code by reason of Sections I and III of Prohibited Transaction Class
Exemption 95-60 (or, in the case of a governmental plan subject to Similar Law,
a comparable exemption under Similar Law); or (iii) in the case of a
Non-Registered Certificate (other than a Class R, Class LR or Class V
Certificate) that is rated investment grade by at least one of the Rating
Agencies and is being acquired by or on behalf of a Plan in reliance on PTE
89-90 (or, in the case of a governmental plan subject to Similar Law, a
comparable exemption under Similar Law), 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, any Exemption-Favored Party, the Depositor,
any Mortgage Loan Seller, the Master Servicer, the Special Servicer, any Primary
Servicer, any Sub-Servicer, the Swap Counterparty or any Borrower with respect
to Mortgage Loans constituting more than 5% of the aggregate unamortized
principal 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 a written representation that such Transferee, if a Plan, satisfies
the requirements of the immediately preceding clauses (iii)(X) and (iii)(Y),
together with a written agreement that such Transferee will obtain from each of
its Transferees that are Plans a similar written representation regarding
satisfaction of the requirements of the immediately preceding clauses (iii)(X)
and (iii)(Y); or (iv) in the case of a Non-Registered Certificate (other than a
Class R, Class LR or Class V Certificate) that is being acquired by or on behalf
of a governmental plan subject to a Similar Law, a certification that the
purchase and holding of such Certificate by the governmental plan would not
result in a violation of, or imposition of an excise tax under, such Similar
Law; or (v) except in the case of a Class R, Class LR or Class V Certificate, a
certification of facts and an Opinion of Counsel (which Opinion of Counsel shall
not be an expense of the Trustee, the Certificate Registrar or the Trust) 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 (or, in the case of a governmental plan, would not
result in a violation of, or imposition of an excise tax under, any applicable
Similar Law). It is hereby acknowledged that the form of certification attached
hereto as Exhibit G-1 is acceptable for purposes of the preceding sentence.
Except in connection with the initial issuance of the Certificates
or any transfer of an interest in a Book-Entry Non-Registered Certificate by the
Depositor or an Affiliate of the Depositor, the Certificate Owner desiring to
effect a transfer of an interest in a Book-Entry Non-Registered Certificate
shall 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 interest in such Certificate on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan or a
governmental plan subject to any Similar Law; or (ii) except in the case of a
Class R, Class LR or Class V Certificate, a certification to the effect that the
purchase and continued holding of an interest in such Certificate by such
prospective Transferee is exempt from the prohibited transaction provisions of
Sections 406 and 407 of ERISA and Section 4975 of the Code by reason of Sections
I and III of Prohibited Transaction Class Exemption 95-60 (or, in the case of a
governmental plan subject to Similar Law, a comparable exemption under Similar
Law); or (iii) in the case of a Non-Registered Certificate (other than a Class
R, Class LR or Class V Certificate) that is rated investment grade by at least
one of the Rating Agencies and is being acquired by or on behalf of a Plan in
reliance on PTE 89-90 (or, in the case of a governmental plan subject to Similar
Law, a comparable exemption under Similar Law), a certification to the effect
that such Plan (X) is an accredited investor as defined in Rule 501(a)(1) of
Regulation D of the Securities Act, (Y) is not sponsored (within the meaning of
Section 3(16)(B) of ERISA) by the Trustee, the Depositor, any Mortgage Loan
Seller, the Master Servicer, the Special Servicer, any Sub-Servicer, the Swap
Counterparty or any Borrower with respect to Mortgage Loans constituting more
than 5% of the aggregate unamortized principal 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 a written representation
that such Transferee, if a Plan, satisfies the requirements of the immediately
preceding clauses (iii)(X) and (iii)(Y), together with a written agreement that
such Transferee will obtain from each of its Transferees that are Plans a
similar written representation regarding satisfaction of the requirements of the
immediately preceding clauses (iii)(X) and (iii)(Y); or (iv) in the case of a
Non-Registered Certificate (other than a Class R, Class LR or Class V
Certificate) that is being acquired by or on behalf of a governmental plan
subject to a Similar Law, a certification that the purchase and holding of such
Certificate by the governmental plan would not result in a violation of, or
imposition of tax under, such Similar Law; or (v) except in the case of a Class
R, Class LR or Class V Certificate, a certification of facts and an Opinion of
Counsel to the effect that such transfer will not result in a violation of
Section 406 or 407 of ERISA, Section 4975 of the Code or Similar Law or result
in the imposition of an excise tax under Section 4975 of the Code (or, in the
case of a governmental plan, would not result in a violation of, or result in
the imposition of an excise tax under, any applicable Similar Law). It is hereby
acknowledged that the form of certification attached hereto as Exhibit G-2 is
acceptable for purposes of the preceding sentence.
Each Transferee of any Registered Certificate or interest therein or
of an interest in any Book-Entry Non-Registered Certificate shall be deemed to
have represented and warranted that either: (i) such Transferee is not a Plan
and is not directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan or a governmental plan subject to Similar Law; or (ii) the purchase and
continued holding of such Certificate or interest therein by such Transferee is
exempt from the prohibited transaction provisions of Sections 406 and 407 of
ERISA, Section 4975 of the Code and Similar Law.
(d) (i) Each Person who has or acquires any Ownership Interest in a
Class R or Class LR 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 (d)(ii)
below to deliver payments to a Person other than such Person and, further, to
negotiate the terms of any mandatory disposition and to execute all instruments
of Transfer and do all other things necessary in connection with any such
disposition. The rights of each Person acquiring any Ownership Interest in a
Class R or Class LR Certificate are expressly subject to the following
provisions:
(A) Each Person holding or acquiring any Ownership Interest
in a Class R or Class LR Certificate shall be a
Permitted Transferee and shall promptly notify the
Trustee of any change or impending change in its status
as a Permitted Transferee.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Class R or Class LR Certificate,
the Certificate Registrar shall require delivery to it,
and shall not register the Transfer of any Class R or
Class LR Certificate until its receipt, of an affidavit
substantially in the form attached hereto as Exhibit H-1
(a "Residual Transfer Affidavit"), 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
Class R or Class LR 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 Class
R or Class LR 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 Residual Transfer
Affidavit 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 Class R or Class
LR Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring any Ownership Interest
in a Class R or Class LR Certificate shall agree (1) to
require a Residual Transfer Affidavit from any
prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Class R or Class
LR Certificate and (2) not to transfer its Ownership
Interest in such Class R or Class LR Certificate unless
it provides to the Certificate Registrar and the Trustee
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 Class R or Class LR Certificate, by purchasing such
Ownership Interest, agrees to give 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 Class R or Class LR
Certificate if it is, or is holding an Ownership
Interest in a Class R or Class LR Certificate on behalf
of, a "pass-through interest holder."
(ii) If any purported Transferee shall become a Holder of a Class R
or Class LR Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Holder of such Class R or Class LR
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 Class R or Class LR 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 Class R or Class LR
Certificate that is in fact not permitted by this Section 5.02(d) or for
making any payments due on such Certificate to the Holder thereof or for
taking any other action with respect to such Holder under the provisions
of this Agreement.
If any purported Transferee shall become a Holder of a Class R or
Class LR 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 Class R or Class LR Certificate as described
in the preceding paragraph of this clause (d)(ii) shall be invalid,
illegal or unenforceable, the Trustee shall have the right, but not the
obligation, to cause the transfer of such Class R or Class LR 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 Class R or Class LR Certificate or
any other Person as a result of its exercise of such discretion. Such
purported Transferee shall promptly endorse and deliver such Class R or
Class LR 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 Trustee 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 Class R or Class LR
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" for the
Upper-Tier REMIC and the Lower-Tier REMIC 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 Class R or Class LR
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 Trustee all information in its possession necessary
for the Trustee to discharge such obligation. The Person holding such
Ownership Interest shall be responsible for the reasonable compensation of
the Trustee for providing such information.
(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 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 result in an
Adverse Rating Event with respect to any Class of Rated
Certificates; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee, 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 or the Trust), to the effect that
doing so will not (1) cause either Trust REMIC to cease
to qualify as a REMIC or be subject to an entity-level
tax caused by the Transfer of any Class R or Class LR
Certificate to a Person which is not a Permitted
Transferee or (2) cause a Person other than the
prospective Transferee to be subject to a REMIC-related
tax caused by the Transfer of a Class R or Class LR
Certificate to a Person that is not a Permitted
Transferee.
(e) If a Person is acquiring any Non-Registered Certificate as a
fiduciary or agent for one or more accounts, such Person shall be required to
deliver to the Certificate Registrar a certification to the effect that, and
such other evidence as may be reasonably required by the Trustee 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/or 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 Trustee shall execute and
the Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of authorized
denominations of the same Class evidencing a like aggregate Percentage Interest.
(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, 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 Trustee
shall execute and the Certificate Registrar 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 the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
(j) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
(k) The Certificate Registrar or the Trustee shall provide to each
of the other parties hereto, upon reasonable written request and at the expense
of the requesting party, an updated copy of the Certificate Register.
(l) Notwithstanding any other provision of this Agreement, the
Certificate Registrar and the Trustee shall comply with all federal withholding
requirements respecting payments made or received under the Swap Agreement and
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
Certificate Registrar or 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 Certificateholders. Such amounts shall be deemed to have
been distributed to such Certificateholders for all purposes of this Agreement.
(m) No transfers of any Class A-MFL Certificate presented or
surrendered for registration of transfer or exchange shall be made unless the
transfer or exchange is accompanied by a written instrument of transfer and
accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and all appropriate attachments)
or W-9 in form satisfactory to the Trustee, duly executed by such
Certificateholder or his attorney duly authorized in writing (with copies
directly from such Certificateholder to the Swap Counterparty). If requested,
the Trustee shall promptly forward any such IRS Form received by the Trustee to
the Swap Counterparty. Each such Class A-MFL Certificateholder by its purchase
of a Class A-MFL Certificate shall be deemed to consent to any IRS Form being so
forwarded.
Section 5.03 Book-Entry Certificates
(a) The Regular Certificates shall, in the case of each Class
thereof, initially be issued (and, at the option of the Depositor, subsequent to
the Closing Date, all or any portion of any other Class of Certificates may 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) or Section 5.03(c),
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, subject to Section 5.02,
transfer their respective Ownership Interests in and to such Certificates
through the book-entry facilities of the Depository and, except as provided in
Section 5.02(b) or Section 5.03(c) below, shall not be entitled to fully
registered, physical Certificates ("Definitive Certificates") in respect of such
Ownership Interests. 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 indirect
participating 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 indirect
participating brokerage firms for which it acts as agent in accordance with the
Depository's normal procedures. The Trustee shall have no responsibility to
monitor or restrict the transfer of any ownership interest in a Book-Entry
Certificate transferable through the book-entry facilities of the Depository.
(b) Except as expressly provided to the contrary herein, the
Depositor, the Master Servicer, the Special Servicer, the Trustee 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. Except as
expressly provided to the contrary herein, 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 indirect participating 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
discharge properly its responsibilities with respect to any Class of Book-Entry
Certificates, and (B) the Depositor is unable to locate a qualified successor,
or (ii) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depository with respect to all or any portion of any Class of Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of any Class of Book-Entry
Certificates (or any portion of any Class thereof) by the Depository,
accompanied by registration instructions from the Depository for registration of
transfer, the Trustee shall execute, and the Certificate Registrar shall
authenticate and deliver, the Definitive Certificates in respect of such Class
(or portion thereof) 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 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 Book-Entry 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.
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 Trustee shall
execute and the Certificate Registrar 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 reasonable expenses (including the reasonable 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 Trust Fund, 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.
Section 5.06 Certification by Certificateholders and Certificate
Owners
(a) Each Certificate Owner is hereby deemed by virtue of its
acquisition of an Ownership Interest in the Book-Entry Certificates to agree to
comply with the transfer requirements of Section 5.02.
(b) To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificateholder or a
Certificate Owner, the Trustee shall make such determination based on a
certificate of such Person which shall be substantially in the form of paragraph
1 of Exhibit K-1 hereto (or such other form as shall be reasonably acceptable to
the Trustee) and shall specify the Class and Certificate Principal Balance or
Certificate Notional Amount, as the case may be, of the Book-Entry Certificate
beneficially owned; provided, however, that the Trustee shall not knowingly
recognize such Person as a Certificate Owner if such Person, to the knowledge of
a Responsible Officer of the Trustee, acquired its Ownership Interest in a
Book-Entry Certificate in violation of Section 5.02, or if such Person's
certification that it is a Certificate Owner is in direct conflict with
information obtained by the Trustee from the Depository, Depository Participants
and/or indirect participating brokerage firms for which Depository Participants
act as agents, with respect to the identity of a Certificate Owner (although the
Trustee has no obligation to obtain any such information). The Trustee shall
exercise its reasonable discretion in making any determination under this
Section 5.06(b) and shall afford any Person providing information with respect
to its beneficial ownership of any Book-Entry Certificate an opportunity to
resolve any discrepancies between the information provided and any other
information available to the Trustee.
Section 5.07 Appointment of Paying Agent
The Trustee may appoint a paying agent (the "Paying Agent") for the
purpose of making distributions to Certificateholders pursuant to Section 4.01.
The Trustee shall cause such Paying Agent, if other than the Trustee or the
Servicer, to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in trust for the benefit
of the Certificateholders entitled thereto until such sums have been paid to the
Certificateholders or disposed of as otherwise provided herein. The initial
Paying Agent shall be the Trustee. Except for the Trustee, as the initial Paying
Agent, the Paying Agent shall at all times be an entity having a long-term
unsecured debt rating of at least "A" by Fitch and "A1" by Xxxxx'x.
Notwithstanding the foregoing in this Section 5.07, the appointment
of the Paying Agent shall not relieve the Trustee from any of its obligations
hereunder, and the Trustee shall remain responsible for all acts and omissions
of the Paying Agent.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
Section 6.01 Liability of the Depositor, the Master Servicer and
the 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
or the Special Servicer, as applicable, herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Master Servicer or the Special Servicer
(a) Subject to Section 6.02(b), the Depositor, the Master Servicer
and the Special Servicer shall each keep in full effect its existence, rights
and franchises as a corporation, bank, trust company, partnership, limited
liability company, association or other legal entity under the laws of the
jurisdiction wherein it was organized, and each shall obtain and preserve its
qualification to do business as a foreign entity in each jurisdiction in which
such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
(b) Each of the Depositor, the Master Servicer and the Special
Servicer may be merged or consolidated with or into any Person (other than the
Trustee), or transfer all or substantially all of its assets to any Person
(other than the Trustee), 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 of the
Depositor, the Master Servicer or the Special Servicer, shall be the successor
of the Depositor, such Master Servicer or such 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)
such succession will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates (as confirmed in writing to the Trustee by each
Rating Agency) and (ii) such successor or surviving Person makes the applicable
representations and warranties set forth in Section 2.05 (in the case of a
successor or surviving Person to the Master Servicer); or Section 2.06 (in the
case of a successor or surviving Person to the Special Servicer); as applicable,
in each case as modified appropriately with respect to such successor's form and
jurisdiction of organization.
Section 6.03 Limitation on Liability of the Trustee, the
Depositor, the Master Servicer, the Special Servicer
and Others
(a) None of the Depositor, the Trustee, the Master Servicer, the
Special Servicer nor any of the Affiliates, directors, partners, members,
managers, shareholders, officers, employees or agents of any of them shall be
under any liability to the Trust Fund, the Underwriters, the parties hereto, the
Certificateholders, the holders of any B Loan or any other Person for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Trustee, the Master Servicer or
the Special Servicer against any breach of warranties or representations made by
such party herein or any liability which would otherwise be imposed on such
party by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of negligent disregard of obligations and
duties hereunder. The Depositor, the Master Servicer, the Special Servicer, the
Trustee and any Affiliate, director, partner, member, manager, shareholder,
officer, employee or agent of the Depositor, the Trustee, 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, the
Trustee and any Affiliate, director, shareholder, member, partner, manager,
officer, employee or agent of any of the foregoing shall be indemnified and held
harmless by the Trust Fund and/or any affected B Loan Holder(s) out of the
Collection Account or the Distribution Account, as applicable in accordance with
Section 3.05 (or, insofar as an A/B Loan Pair is involved, and to the extent
permitted by the related Intercreditor Agreement, first out of amounts
attributable to such A/B Loan Pair on deposit in the related A/B Loan Pair
Custodial Account as provided in Section 3.05 and then out of the Collection
Account), against any loss, liability or expense (including legal fees and
expenses) incurred by such party (including, in the case of the Master Servicer,
any loss, liability or expense incurred by the Column Primary Servicer acting on
behalf of the Master Servicer with respect to the Column Serviced Loans) in
connection with any legal action or claim relating to this Agreement, the
Mortgage Loans, any B Loan or the Certificates, other than any loss, liability
or expense: (i) specifically required to be borne thereby pursuant to the terms
hereof or that would otherwise constitute a Servicing Advance; (ii) incurred in
connection with any breach of a representation or warranty made by it herein;
(iii) incurred by reason of bad faith, willful misconduct or negligence in the
performance of its obligations or duties hereunder, or by reason of negligent
disregard of such obligations or duties or (iv) in the case of the Depositor and
any of its directors, officers, employees and agents, incurred in connection
with any violation by any of them of any state or federal securities law;
provided that this provision is in no way intended to apply to the payment of
servicing compensation, the reimbursement of Advances or the payment of interest
on Advances, which the parties hereto acknowledge are expressly addressed
elsewhere in this Agreement; provided, further, that this provision is not
intended to apply to ordinary expenses (including allocable overhead) incurred
in the customary performance by the Master Servicer or the Special Servicer of
its duties hereunder or any expenses that would not constitute "unanticipated
expenses incurred by the REMIC" within the meaning of Treasury Regulations
Section 1.860G-1(b)(iii). For the avoidance of doubt, any amounts received by
the Master Servicer pursuant to this Section 6.03 in respect of any loss,
liability or expense incurred by the Column Primary Servicer in the performance
of the Master Servicer's duties hereunder, will be required to be transferred to
the Column Primary Servicer in accordance with the terms of the related
Designated Sub-Servicer Agreement.
(b) None of the Depositor, the Trustee, the Master Servicer or the
Special Servicer shall be under any obligation to appear in, prosecute or defend
any legal or administrative action, proceeding, hearing or examination that is
not incidental to its respective duties under this Agreement and which in its
opinion may involve it in any expense or liability which it is not reasonably
assured of reimbursement thereof by the Trust; provided, however, that the
Depositor, the Master Servicer, the Special Servicer or the Trustee may in its
discretion undertake any such action, proceeding, hearing or examination that it
may deem necessary or desirable in respect to this Agreement and the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal fees, expenses and costs of such action,
proceeding, hearing or examination and any liability resulting therefrom shall
be expenses, costs and liabilities of the Trust Fund, and the Depositor, the
Master Servicer, the Special Servicer and the Trustee shall be entitled to be
reimbursed therefor out of amounts attributable to the Mortgage Loans on deposit
in the Collection Account as provided by Section 3.05(a) (or, insofar as an A/B
Loan Pair is involved, and to the extent permitted by the related Intercreditor
Agreement, first, out of amounts attributable to such A/B Loan Pair on deposit
in the related A/B Loan Pair Custodial Account as provided in Section 3.05 and
then out of the Collection Account).
In addition, neither the Master Servicer nor the Special Servicer
shall have any liability with respect to, and each shall be entitled to rely as
to the truth of the statements made and the correctness of the opinions
expressed therein on, any certificates or opinions furnished to the Master
Servicer or the Special Servicer, as the case may be, and conforming to the
requirements of this Agreement. The Master Servicer and the Special Servicer may
rely in good faith on information provided to it by the parties hereto (unless
the provider and the recipient of such information are the same Person or
Affiliates) and by the Borrowers, and will have no duty to investigate or verify
the accuracy thereof.
(c) Each of the Master Servicer and the Special Servicer agrees to
indemnify the Depositor, the Trust Fund and the Trustee and any Affiliate,
director, officer, shareholder, partner, member, manager, employee or agent
thereof, and hold them harmless, from and against any and all claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related out-of-pocket
costs, judgments, and any other out-of-pocket costs, liabilities, fees and
expenses that any of them may sustain arising from or as a result of any willful
misfeasance, bad faith or negligence of the Master Servicer or the Special
Servicer, as the case may be, in the performance of its obligations and duties
under this Agreement or by reason of negligent disregard by the Master Servicer
or the Special Servicer, as the case may be, of its duties and obligations
hereunder or by reason of breach of any representations or warranties made by it
herein; provided that, in no event shall the Master Servicer have any obligation
to indemnify such parties for any claims, losses, damages, penalties, fines,
forfeitures, reasonable legal fees and related out-of-pocket costs, judgments,
and any other out-of-pocket costs, liabilities, fees and expenses arising from
or as a result of any willful misconduct, bad faith or negligence of the Column
Primary Servicer in the performance of the Master Servicer's duties under
Sections 3.08, 3.19(f) and 3.20 with respect to the Column Serviced Loans. The
Master Servicer and the Special Servicer may consult with counsel, and any
written advice or Opinion of Counsel shall be full and complete authorization
and protection with respect to any action taken or suffered or omitted by it
hereunder in good faith in accordance with the Servicing Standard and in
accordance with such advice or Opinion of Counsel relating to (i) tax matters,
(ii) any amendment of this Agreement under Article XI, (iii) the defeasance of
any Defeasance Mortgage Loan or (iv) any matter involving legal proceedings with
a Borrower.
The Trustee shall immediately notify the Master Servicer or the
Special Servicer, as applicable, if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans entitling the Trust Fund or the
Trustee to indemnification hereunder, whereupon the Master Servicer or the
Special Servicer, as the case may be, shall assume the defense of such claim and
pay all expenses in connection therewith, including counsel fees, and promptly
pay, discharge and satisfy any judgment or decree which may be entered against
it or them in respect of such claim. Any failure to so notify the Master
Servicer or the Special Servicer, as the case may be, shall not affect any
rights that the Trust Fund or the Trustee, as the case may be, may have to
indemnification under this Agreement or otherwise, unless the Master Servicer's
or the Special Servicer's, as the case may be, defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the termination or resignation of the
indemnifying party.
The Depositor shall immediately notify the Master Servicer or the
Special Servicer, as applicable, if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans entitling the Depositor to
indemnification hereunder, whereupon the Master Servicer or Special Servicer, as
the case may be, shall assume the defense of such claim and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Master Servicer or Special
Servicer, as the case may be, shall not affect any rights that the Depositor may
have to indemnification under this Agreement or otherwise, unless the Master
Servicer's or Special Servicer's, as the case may be, defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the termination or resignation of the
indemnifying party.
The Depositor agrees to indemnify the Master Servicer, the Special
Servicer and the Trustee and any Affiliate, director, officer, member, manager,
partner, shareholder, employee or agent thereof, and hold them harmless, from
and against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related out-of-pocket costs, judgments, and any other
out-of-pocket costs, liabilities, fees and expenses that any of them may sustain
arising from or as a result of any breach of representations and warranties or
failure in the performance of the Depositor's obligations and duties under this
Agreement. The Master Servicer the Special Servicer or the Trustee, as
applicable, shall promptly notify the Depositor if a claim is made by a third
party with respect to this Agreement or the Mortgage Loans entitling it to
indemnification hereunder, whereupon the Depositor shall assume the defense of
such claim and pay all expenses in connection therewith, including counsel fees,
and promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Any failure to so notify
the Depositor shall not affect any rights that any of the foregoing Persons may
have to indemnification under this Agreement or otherwise, unless the
Depositor's defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this Agreement.
The Trustee agrees to indemnify the Master Servicer the Special
Servicer and the Depositor and any Affiliate, director, officer, shareholder,
partner, member, manager, employee or agent thereof, and hold them harmless,
from and against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related out-of-pocket costs, judgments, and any other
out-of-pocket costs, liabilities, fees and expenses that any of them may sustain
arising from or as a result of any breach of representations and warranties made
by it herein or as a result of any willful misfeasance, bad faith or negligence
of the Trustee in the performance of its obligations and duties under this
Agreement or the negligent disregard by the Trustee of its duties and
obligations hereunder. The Depositor, the Master Servicer or the Special
Servicer, as applicable, shall promptly notify the Trustee, if a claim is made
by a third party with respect to this Agreement or the Mortgage Loans entitling
it to indemnification hereunder, whereupon the Trustee, shall assume the defense
of such claim and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which may
be entered against it or them in respect of such claim. Any failure to so notify
the Trustee shall not affect any rights that any of the foregoing Persons may
have to indemnification under this Agreement or otherwise, unless the Trustee's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement and the
termination or resignation of the indemnifying party.
Section 6.04 Resignation of the Master Servicer or the Special
Servicer
(a) Subject to the provisions of Section 6.04, neither the Master
Servicer nor the Special Servicer shall resign from its obligations and duties
hereunder except upon (a) a determination that such party's duties hereunder are
no longer permissible under applicable law or (b) upon the appointment of, and
the acceptance of such appointment by, a successor to the resigning Master
Servicer or Special Servicer, as applicable, and, at the expense of the
resigning Master Servicer or Special Servicer, as applicable, receipt by the
Trustee of written confirmation from each applicable Rating Agency that such
resignation and appointment will not cause such Rating Agency to downgrade,
withdraw or qualify any of the then-current ratings assigned by such Rating
Agency to any Class of Certificates. Any such determination permitting the
resignation of the Master Servicer or the Special Servicer pursuant to above
clause (a) of the preceding sentence shall be evidenced by an Opinion of Counsel
(the cost of which, together with any other expenses of such resignation, shall
be at the expense of the resigning party) to such effect delivered to the
Trustee. No such resignation by the Master Servicer or the Special Servicer
shall become effective until the Trustee or another successor thereto shall have
assumed the resigning Master Servicer's or Special Servicer's, as applicable,
responsibilities and obligations in accordance with Section 7.02. This section
shall not apply to any "deemed resignation" imposed under any other section of
this Agreement except to the extent expressly set forth in that other section.
(b) In addition, the Master Servicer and the Special Servicer shall
have the right to resign at any other time, provided that (i) a willing
successor thereto (including any such successor proposed by the resigning party)
has been found and approved by the Depositor and the Trustee (which approval
shall not be unreasonably withheld), (ii) each of the Rating Agencies confirms
to the Trustee in writing that the successor's appointment will not result in an
Adverse Rating Event with respect to any Class of Rated Certificates, (iii) the
resigning party pays all costs and expenses in connection with such transfer,
and (iv) the successor accepts appointment prior to the effectiveness of such
resignation.
(c) Neither the Master Servicer nor the Special Servicer shall be
permitted to resign except as contemplated in subsections (a) and (b) of this
Section 6.04. Consistent with the foregoing, neither the Master Servicer nor the
Special Servicer shall (except in connection with any resignation thereby
permitted above in this Section 6.04 or as otherwise expressly provided herein,
including the provisions of Section 3.11(a), Section 3.22 and/or Section 6.02)
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person or delegate to, 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
entire amount of compensation payable to such Master Servicer or such Special
Servicer as the case may be, that accrues pursuant hereto from and after the
date of such transfer shall be payable to such successor, except to the extent
provided in Section 3.11(c).
Section 6.05 Rights of the Depositor and the Trustee in Respect of
the Master Servicer and the Special Servicer
The Master Servicer and the Special Servicer shall afford the
Depositor, the Trustee, the Controlling Class Representative and each Rating
Agency, upon reasonable notice, during normal business hours access to all
records maintained by it in respect of its rights and obligations hereunder and
with respect to any of the Mortgage Loans and, at mutually agreeable times,
access to such of its officers as are responsible for such obligations
;provided, that the Controlling Class Representative shall have additional
access to information as provided in Section 3.15(c) and Section 8.12(b) hereof.
Upon reasonable request, the Master Servicer and the Special Servicer shall
furnish the Depositor and the Trustee with its most recent publicly available
annual audited financial statements (or, if not available, the most recent
publicly available audited annual financial statements of its corporate parent)
and such other information as is publicly available regarding its business,
affairs, property and condition, financial or otherwise; provided that neither
the Depositor nor the Trustee may disclose the contents of such financial
statements or other information to non-affiliated third parties (other than
accountants, attorneys, financial advisors and other representatives retained to
help it evaluate such financial statements or other information), unless it is
required to do so under applicable securities laws or is otherwise compelled to
do so as a matter of law. The Master Servicer and the Special Servicer may affix
to any such information described in this Section 6.05 provided by it any
disclaimer it deems appropriate in its reasonable discretion. The Depositor may,
but is not obligated to, enforce the obligations of the Master Servicer and
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 the
Special Servicer hereunder or exercise the rights of the Master Servicer or 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. 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 Master Servicer or Special Servicer as Owner of a
Certificate
The Master Servicer, the Special Servicer or any Affiliate of any 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, the Special Servicer or an Affiliate of any of
them. 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, such Master Servicer or such Special Servicer, as the case may
be, proposes to take any action (including for this purpose, omitting to take a
particular action) that is not expressly prohibited by the terms hereof and
would not, in such Master Servicer's or such Special Servicer's, as the case may
be, reasonable judgment, violate the Servicing Standard, but that, if taken,
might nonetheless, in such Master Servicer's or such Special Servicer's, as the
case may be, reasonable judgment, be considered by other Persons to violate the
Servicing Standard, then such Master Servicer or such Special Servicer, as the
case may be, 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 6.06, (b) identifies the Percentage
Interest in each Class of Certificates beneficially owned by such Master
Servicer or such Special Servicer, as the case may be, or by an Affiliate
thereof and (c) describes in reasonable detail the action that such Master
Servicer or such Special Servicer, as the case may be, 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 a request for approval by the
Certificateholders of each such proposed action. 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 the case may be) shall have consented in writing to the proposal
described in the written notice, and if the Master Servicer or the Special
Servicer, as the case may be, shall act as proposed in the written notice, such
action shall be deemed to comply with the Servicing Standard. The Trustee shall
be entitled to reimbursement from such Master Servicer or such 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
in the case of unusual circumstances.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into a Collection
Account any amount required to be so deposited under this Agreement, which
failure continues unremedied for two Business Days following the date on
which such deposit was first required to be made; or
(ii) any failure by the Special Servicer to deposit into an REO
Account or a Collection Account, or to remit to the Master Servicer for
deposit into a Collection Account, any amount required to be so deposited
or remitted under this Agreement, which failure continues unremedied for
two Business Days following the date on which such deposit or remittance,
as the case may be, was first required to be made; or
(iii) any failure by the Master Servicer to remit to the Trustee for
deposit into the Distribution Account, on any Master Servicer Remittance
Date, the full amount of P&I Advances required to be made on such date or,
on any Master Servicer Remittance Date, the full amount of the Master
Servicer Remittance Amount and any Compensating Interest Payment required
to be remitted on such date, which failure continues unremedied until
11:00 a.m. (New York City time) on the related Distribution Date;
provided, however, that if the Master Servicer fails to timely make any
such remittance required to be made to the Trustee on a Master Servicer
Remittance Date, the Master Servicer shall pay to the Trustee (for the
account of the Trustee) interest on any amount not timely remitted at the
Prime Rate from and including such Master Servicer Remittance Date to but
excluding the date such remittance is actually made; or
(iv) [reserved]; or
(v) any failure by the Master Servicer to timely make any Servicing
Advance required to be made by it hereunder, which Servicing Advance
remains unmade for a period of three Business Days following the date on
which notice has been given to such Master Servicer, as the case may be,
by the Trustee as provided in Section 3.03(c); or
(vi) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of such Master Servicer or such
Special Servicer, as the case may be, contained in this Agreement, which
failure continues unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given to such Master Servicer or such Special Servicer, as
the case may be, by any other party hereto or to such Master Servicer or
such Special Servicer, as the case may be, with a copy to each other party
hereto, by the Holders of Certificates entitled to at least 25% of the
Voting Rights or by the Controlling Class Representative; provided,
however, that with respect to any such breach which is not curable within
such 30-day period such Master Servicer or such Special Servicer, as the
case may be, shall have an additional cure period of 30 days to effect
such cure so long as such delay does not materially and adversely affect
the Certificateholders and such Master Servicer or such Special Servicer,
as the case may be, has commenced to cure such failure within the initial
30-day period and has provided the Trustee with an Officer's Certificate
certifying that it has diligently pursued, and is continuing to pursue, a
full cure; or
(vii) any breach on the part of the Master Servicer or the Special
Servicer of any representation or warranty contained in this Agreement
that materially and adversely affects the interests of any Class of
Certificateholders and which continues unremedied for a period of 30 days
after the date on which notice of such breach, requiring the same to be
remedied, shall have been given to such Master Servicer or such Special
Servicer, as the case may be, by any other party hereto or to such Master
Servicer or such Special Servicer, as the case may be, with a copy to each
other party hereto, by the Holders of Certificates entitled to at least
25% of the Voting Rights or by the Controlling Class Representative;
provided, however, that with respect to any such breach which is not
curable within such 30-day period, such Master Servicer or such Special
Servicer, as the case may be, shall have an additional cure period of 30
days to effect such cure so long as such delay does not materially and
adversely affect the Certificateholders and such Master Servicer or such
Special Servicer, as the case may be, has commenced to cure such breach
within the initial 30-day period and has provided the Trustee with an
Officer's Certificate certifying that it has diligently pursued, and is
continuing to pursue, a full cure; or
(viii) 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,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer or the Special Servicer and such decree or order shall
have remained in force undischarged, undismissed or unstayed for a period
of 60 days; or
(ix) 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, marshalling
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
(x) 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
(xi) Xxxxx'x has (A) qualified, downgraded or withdrawn its rating
or ratings of one or more Classes of Certificates, or (B) placed one or
more Classes of Certificates on "watch status" in contemplation of
possible rating downgrade or withdrawal (and such "watch status" placement
shall not have been withdrawn by Xxxxx'x within 60 days of such
placement), and, in case of either of clause (A) or (B), citing servicing
concerns with the Master Servicer or Special Servicer as the sole or a
material factor in such rating action, provided that the Master Servicer
shall have 60 days after removal from such default within which it may
sell its servicing rights to a party acceptable under Section 7.02 of this
Agreement; or
(xii) Fitch has (A) qualified, downgraded or withdrawn its rating or
ratings of one or more Classes of Certificates, or (B) placed one or more
Classes of Certificates on "watch status" in contemplation of possible
rating downgrade or withdrawal (and such "watch status" placement shall
not have been withdrawn by Fitch within 60 days of such placement), and,
in case of either of clause (A) or (B), citing servicing concerns with the
Master Servicer or Special Servicer as the sole or a material factor in
such rating action, provided that the Master Servicer shall have 60 days
after removal from such default within which it may sell its servicing
rights to a party acceptable under Section 7.02 of this Agreement; or
(xiii) subject to Section 12.16(c), the Master Servicer or Special
Servicer shall fail to deliver any Exchange Act reporting items required
to be delivered by such servicer under Article XII (other than items to be
delivered by a Designated Sub-Servicer) by the time required under Article
XII after any applicable grace periods; provided that, with respect to any
Servicing Function Participant retained by the Master Servicer or Special
Servicer, as applicable (other than a Designated Sub-Servicer listed)
(such entity, the "Sub-Servicing Entity"), the Sub-Servicing Entity will
be automatically terminated if it defaults in accordance with the
provision of this clause (xiii) and the Master Servicer or Special
Servicer, as applicable, will be required to provide the reports required
by the related Sub-Servicing Entity and if the Master Servicer or Special
Servicer, as applicable, fails to do so (beyond the applicable grace
period) it shall be an Event of Default with respect to the Master
Servicer or Special Servicer, as applicable, in accordance with the
provision of this clause (xiii).
(b) If any Event of Default with respect to the Master Servicer or
the Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") occurs and is continuing, then, and in each and every such
case, so long as the Event of Default has not been remedied, the Trustee may,
and at the written direction of the Holders of Certificates entitled to not less
than 25% of the Voting Rights, the Trustee shall (subject to applicable
bankruptcy or insolvency law in the case of clauses (viii) through (x) of
Section 7.01(a)), terminate, by notice in writing to the Defaulting Party (with
a copy of such notice to each other party hereto), all of the rights and
obligations (accruing from and after such notice) of the Defaulting Party under
this Agreement and in and to the Trust Fund (other than pursuant to Section 3.11
or Section 6.03 and other than as a Holder of any Certificate). From and after
the receipt by the Defaulting Party of such written notice, all authority and
power of the Defaulting Party under this Agreement, whether with respect to the
Certificates (other than as a Holder of any Certificate) or the Mortgage Loans
or otherwise, shall pass to and be vested in the Trustee pursuant to and under
this Section, and, without limitation, the Trustee is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer and the Special Servicer
each agrees that, if it is terminated pursuant to this Section 7.01(b), it shall
promptly (and in any event no later than 20 days subsequent to its receipt of
the notice of termination) provide the Trustee with all documents and records
requested thereby to enable the Trustee to assume such Master Servicer's or
Special Servicer's, as the case may be, functions hereunder, and shall otherwise
cooperate with the Trustee in effecting the termination of such Master
Servicer's or Special Servicer's, as the case may be, responsibilities and
rights hereunder, including the transfer within two Business Days to the Trustee
for administration by it of all cash amounts that at the time are or should have
been credited by such Master Servicer to a Collection Account, the Distribution
Account or any Servicing Account or Reserve Account held by it (if it is the
Defaulting Party) or by such Special Servicer to an REO Account, a Collection
Account or any Servicing Account or Reserve Account held by it (if it is the
Defaulting Party) or that are thereafter received by or on behalf of it with
respect to any Mortgage Loan or REO Property (provided, however, that the Master
Servicer and the Special Servicer shall, if terminated pursuant to this Section
7.01(b), continue to be obligated to pay and entitled to receive all amounts
accrued or owing by or to it under this Agreement on or prior to the date of
such termination, whether in respect of Advances or otherwise, including Workout
Fees (as and to the extent provided in Section 3.11(c)), and it and its members,
managers, directors, officers, employees and agents shall continue to be
entitled to the benefits of Section 3.11 and Section 6.03 notwithstanding any
such termination). Any costs or expenses (including those of any other party
hereto) incurred in connection with any actions to be taken by the Master
Servicer or the Special Servicer pursuant to this paragraph shall be borne by
such Master Servicer or Special Servicer, as the case may be (and, in the case
of the Trustee's costs and expenses, if not paid within a reasonable time, shall
be borne by the Trust out of the Collection Account).
(c) If the Master Servicer receives notice of termination under
Section 7.01(b) solely due to an Event of Default under Section 7.01(a)(xi) or
Section 7.01(a)(xii) and if such Master Servicer to be terminated pursuant to
Section 7.01(b) provides the Trustee with the appropriate "request for proposal"
materials within five (5) Business Days following such termination notice, then
such Master Servicer shall continue to service as Master Servicer hereunder
until a successor Master Servicer is selected in accordance with this Section
7.01(c). Upon receipt of the "request for proposal" materials from the Master
Servicer, the Trustee shall promptly thereafter (using such "request for
proposal" materials) solicit good faith bids for the rights to service the
Mortgage Loans under this Agreement from at least three (3) Persons qualified to
act as 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 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 service the Mortgage Loans under this Agreement. The bid proposal shall
require any Successful Bidder (as defined below), as a condition of such bid, to
enter into this Agreement as successor Master Servicer, and to agree to be bound
by the terms hereof (including but not limited to Section 3.11) within 45 days
after the notice of termination of the Master Servicer. The Trustee shall select
the Qualified Bidder with the highest cash bid to act as successor Master
Servicer hereunder; provided, however, that if the Trustee does not receive
confirmation in writing by each Rating Agency that the appointment of such
Successful Bidder as successor Master Servicer will not result in the
withdrawal, downgrade, or qualification of the rating assigned by the Rating
Agency to any Class of Certificates within 10 days after the selection of such
Successful Bidder, then the Trustee shall repeat the bid process described above
(but subject to the above described 45 day time period) until such confirmation
is obtained. The Trustee shall direct the Successful Bidder to enter into this
Agreement as successor Master Servicer pursuant to the terms hereof no later
than 45 days after notice of the termination of the Master Servicer.
Upon the assignment and acceptance of master servicing rights
hereunder (subject to the terms of Section 3.11) to and by the Successful
Bidder, the Trustee shall remit or cause to be remitted to the Master Servicer
to be terminated pursuant to Section 7.01(b), 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).
The Master Servicer to be terminated pursuant to Section 7.01(b)
shall be responsible for all out of pocket expenses incurred in connection with
the attempt to sell its rights to service the Mortgage Loans, which expenses are
not reimbursed to the party that incurred such expenses pursuant to the
preceding paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within the above described time period or no
Successful Bidder was identified within the above described time period, the
Master Servicer to be terminated pursuant to Section 7.01(b) shall reimburse the
Trustee for all reasonable "out of pocket" expenses incurred by the Trustee in
connection with such bid process and the Trustee shall have no further
obligations under this Section 7.01(c). The Trustee thereafter may act or may
select a successor to act as Master Servicer hereunder in accordance with
Section 7.02.
Section 7.02 Trustee to Act; Appointment of Successor
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04(a) or receives a notice of termination pursuant
to Section 7.01 (provided that no acceptable successor has been appointed in
connection with the sale by the Master Servicer of its servicing rights in
accordance with Section 7.01(c), the Trustee shall be the successor in all
respects to such Master Servicer or such 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 be subject to all the responsibilities, duties,
liabilities and limitations on liability relating thereto and arising thereafter
placed on such Master Servicer or such Special Servicer, as the case may be, by
the terms and provisions hereof, including, if the Master Servicer is the
resigning or terminated party, such Master Servicer's obligation to make
Advances; provided, however, 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 cooperate or to provide information or monies as
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Neither the Trustee nor any other successor shall be liable for any
of the representations and warranties of the resigning or terminated party or
for any losses incurred by the resigning or terminated party pursuant to Section
3.06 hereunder nor shall the Trustee or any other successor be required to
purchase any Mortgage Loan hereunder. As compensation therefor, the Trustee
shall be entitled to all fees and other compensation (subject to Section 3.11)
which the resigning or terminated party would have been entitled to for future
services rendered if the resigning or terminated party had continued to act
hereunder. Notwithstanding the above, if it is unwilling to so act, the Trustee
may (and, if it is unable to so act, or if the Trustee is not approved as an
acceptable master servicer or special servicer, as the case may be, by each
Rating Agency, or if the Holders of Certificates entitled to a majority of all
the Voting Rights so request in writing, the Trustee shall), subject to Section
3.25, promptly appoint, or petition a court of competent jurisdiction to
appoint, any established and qualified institution as the successor to the
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
such Master Servicer or such Special Servicer, as the case may be, hereunder;
provided, however, that such appointment does not result in an Adverse Rating
Event with respect to any Class of Rated Certificates (as confirmed in writing
to the Trustee by each Rating Agency). No appointment of a successor to the
Master Servicer or the Special Servicer hereunder shall be effective until the
assumption by such successor of all its responsibilities, duties and liabilities
hereunder, and pending such appointment and assumption, the Trustee shall act in
such capacity as hereinabove provided. In connection with any such appointment
and assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on the Mortgage Loans or otherwise as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the resigning or terminated party hereunder. The
Depositor, the Trustee, such successor and each other party hereto shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession.
Section 7.03 Notification to Certificateholders
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of such Master Servicer or
such Special Servicer pursuant to Section 7.01, any appointment of a successor
to such Master Servicer or such Special Servicer pursuant to Section 6.02, 6.04
or 7.02 or the effectiveness of any designation of a new Special Servicer
pursuant to Section 3.25, the Trustee shall give prompt written notice thereof
to Certificateholders at their respective addresses appearing in the Certificate
Register, to the Swap Counterparty and, to the extent such information has been
made available to the Trustee, to the B Loan Holder.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after a Responsible Officer of
the Trustee has actual knowledge of the occurrence of such an event, the Trustee
shall transmit by mail to the Depositor, the Swap Counterparty and all
Certificateholders notice of such occurrence, and the Depositor shall send to
the B Loan Holder notice of such occurrence, unless such default shall have been
cured.
Section 7.04 Waiver of Events of Default
The Holders of Certificates representing at least 66-2/3% of the
Voting Rights allocated to each Class of Certificates affected by any Event of
Default hereunder may waive such Event of Default; provided that an Event of
Default under clause (i), clause (ii), clause (iii), clause (xi), clause (xii)
or clause (xiii) of Section 7.01(a) may be waived only by all of the
Certificateholders of the affected Classes. Upon any such waiver of an Event of
Default, and payment to the Trustee of all costs and expenses incurred by the
Trustee in connection with such default prior to its waiver (which costs shall
be paid by the party requesting such waiver), such Event of Default shall cease
to exist and shall be deemed to have been remedied for every purpose hereunder.
No such waiver shall extend to any subsequent or other Event of Default or
impair any right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled to
the same Voting Rights with respect to the matters described above as they would
if registered in the name of any other Person.
Section 7.05 Trustee Advances
If the Master Servicer fails to fulfill its obligations hereunder to
make any Advances, the Trustee shall perform such obligations (x) in accordance
with Section 3.03(c) with respect to Servicing Advances and (y) by 12:00 noon,
New York City time, on the related Distribution Date with respect to P&I
Advances. With respect to any such Advance made by the Trustee, the Trustee
shall succeed to all of the Master Servicer's rights with respect to Advances
hereunder, including, without limitation, the Master Servicer's rights of
reimbursement and interest on each Advance at the Reimbursement Rate, and rights
to determine that a proposed Advance is a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance, as the case may be; provided, however, that if
Advances made by both the Trustee and the Master Servicer shall at any time be
outstanding, or any interest on any Advance shall be accrued and unpaid, all
amounts available to repay such Advances and the interest thereon hereunder
shall be applied entirely to the Advances outstanding to the Trustee, until such
Advances shall have been repaid in full, together with all interest accrued
thereon, prior to reimbursement of the Master Servicer for such Advances. The
Trustee shall be entitled to conclusively rely on any notice given with respect
to a Nonrecoverable Advance hereunder.
ARTICLE VIII
THE TRUSTEE
Section 8.01 Duties of Trustee
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement and no permissive right of the Trustee shall be
construed as a duty. If an Event of Default occurs and is continuing then
(subject to Section 8.02(vii) below), the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs. Any permissive right of the
Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall make a request to the responsible party to
have the instrument corrected, and if the instrument is not corrected to the
Trustee's reasonable satisfaction, the Trustee will provide notice thereof to
the Certificateholders. 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 willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the
Trustee's duties and obligations 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 liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to at least 25% of
the Voting Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement (unless a
higher percentage of Voting Rights is required for such action); and
(iv) Subject to the other provisions of this Agreement and without
limiting the generality of this Section 8.01, the Trustee shall have no
duty except in the capacity as successor Master Servicer or successor
Special Servicer (A) to see to any recording, filing or depositing of this
Agreement or any agreement referred to herein or any financing statement
or continuation statement evidencing a security interest, or to see to the
maintenance of any such recording or filing or depositing or to any
re-recording, refiling or redepositing of any thereof, (B) to see to any
insurance, or (C) to confirm or verify the contents of any reports or
certificates of the Master Servicer or Special Servicer delivered to the
Trustee pursuant to this Agreement reasonably believed by the Trustee to
be genuine and to have been signed or presented by the proper party or
parties.
Section 8.02 Certain Matters Affecting the Trustee
Except as otherwise provided in Section 8.01:
(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 not be under any 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 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, in the Trustee's reasonable opinion,
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby; the Trustee shall not be under any
obligation to take any action to enforce the rights of the Trust Fund
under the Swap Agreement unless it expects, in its sole discretion, that
the costs and expenses of such action(s) will be reimbursed by the Swap
Counterparty or any other party or it has received an indemnity or
assurance of payment satisfactory to the Trustee from the Holders of the
Class A-MFL Certificates; the Trustee shall not be required to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an
Event of Default which has not been cured, to exercise such of the rights
and powers vested in it by this Agreement, and to use the same degree of
care and skill in their exercise as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs;
(iv) The Trustee shall not be liable for any action reasonably
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing to do so by Holders of
Certificates entitled to at least 50% 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 appointment of such agents or
attorneys shall not relieve the Trustee of its duties or obligations
hereunder; provided, further, that the Trustee may not perform any duties
hereunder through any Person that is a Prohibited Party;
(vii) For all purposes under this Agreement, the Trustee shall not
be required to take any action with respect to, or be deemed to have
notice or knowledge of any default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or shall
have received written notice thereof. In the absence of receipt of such
notice and such actual knowledge otherwise obtained, the Trustee may
conclusively assume that there is no default or Event of Default;
(viii) The Trustee shall not be responsible for any act or omission
of the Master Servicer, the Special Servicer or the Controlling Class
Representative Directing Certificateholder (unless it is acting as the
Master Servicer, the Special Servicer or the Controlling Class
Representative, as the case may be) or of the Depositor; and
(ix) The Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Fund created hereby or the power
granted hereunder.
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans
The recitals contained herein and in the Certificates, other than
the acknowledgments and expressed intentions of the Trustee in Sections 2.01,
2.02, 2.04, 2.05, 3.01, 10.01, 11.04 and 11.12 shall not be taken as the
statements of the Trustee and the Trustee assumes no responsibility for their
correctness. None of the Master Servicer, Special Servicer or the Trustee makes
any representations as to the validity or sufficiency of this Agreement or of
any Certificate or of any Mortgage Loan or related document. The Trustee shall
not be accountable for the use or application by the Depositor of any of the
Certificates issued to it or of the proceeds of such Certificates, or for the
use or application of any funds paid to the Depositor in respect of the
assignment of the Mortgage Loans to the Trust Fund, or any funds deposited in or
withdrawn from the Collection Account or any other account by or on behalf of
the Depositor, the Master Servicer, the Special Servicer or the Trustee. The
Trustee shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Master Servicer or the Special Servicer, and
accepted by the Trustee, in good faith, pursuant to this Agreement.
Section 8.04 Trustee May Own Certificates
The Trustee, in its individual capacity and not as Trustee, may
become the owner or pledgee of Certificates, and may deal with the Depositor,
the Master Servicer, the Special Servicer, the Initial Purchaser and the
Underwriters in banking transactions, with the same rights each would have if it
were not Trustee.
Section 8.05 Fees and Expenses of Trustee; Indemnification of and
by Trustee
(a) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account, prior to any distributions to be made therefrom to
Certificateholders on such date, and pay to itself all earned but unpaid Trustee
Fees in respect of the Mortgage Loans and any REO Mortgage Loans through the end
of the most recently ended calendar month, 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. As to
each Mortgage Loan and REO Mortgage Loan, the Trustee Fee, shall accrue during
each calendar month, commencing with March 2007, at the Trustee Fee Rate on a
principal amount equal to the Stated Principal Balance of such Mortgage Loan or
REO Mortgage Loan immediately following the Distribution Date in such calendar
month (or, in the case of March 2007, on a principal amount equal to the Cut-off
Date Principal Balance of the particular Mortgage Loan), whether or not interest
is actually collected on each Mortgage Loan and REO Mortgage Loan. With respect
to each Mortgage Loan and REO Mortgage Loan, the Trustee Fee shall accrue from
time to time on the same Interest Accrual Period as is applicable to such
Mortgage Loan or REO Mortgage Loan. Except as otherwise expressly provided
herein, 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 shall be paid or reimbursed by the Trust Fund upon
its request for all reasonable out-of-pocket expenses and disbursements incurred
by the Trustee pursuant to and in accordance with any of the provisions of this
Agreement (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ) to
the extent such payments are "unanticipated expenses incurred by the REMIC"
within the meaning of Treasury Regulations Section 1.860G-1(b)(iii) except any
such expense, disbursement or advance as may arise from its negligence, bad
faith or willful misconduct; provided, however, that subject to Section
8.02(iii), the Trustee shall not refuse to perform any of its duties hereunder
solely as a result of the failure to be paid the Trustee Fee or the Trustee's
expenses .
(c) The Trustee and any Affiliate, director, officer, employee or
agent of the Trustee shall be indemnified and held harmless by the Trust Fund
against any loss, liability or expense (including, without limitation, costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement, and expenses incurred in becoming successor
servicer, to the extent not otherwise paid hereunder) arising out of, or
incurred in connection with, this Agreement, the Mortgage Loans, the
Certificates or any act or omission of the Trustee relating to the exercise and
performance of any of the powers and duties of the Trustee hereunder; provided,
however, that neither the Trustee nor any of the other above specified Persons
shall be entitled to indemnification pursuant to this Section 8.05(c) for (i)
allocable overhead, (ii) routine expenses or disbursements incurred or made by
or on behalf of the Trustee in the normal course of the Trustee's performing its
duties in accordance with any of the provisions hereof, which are not
"unanticipated expenses of the REMIC" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(ii), (iii) any expense or liability specifically required
to be borne thereby pursuant to the terms hereof or (iv) any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of the Trustee's obligations and duties hereunder, or by reason
of negligent disregard of such obligations or duties, or as may arise from a
breach of any representation or warranty of the Trustee made herein. The
provisions of this Section 8.05(c) shall survive any resignation or removal of
the Trustee and appointment of a successor thereto.
Section 8.06 Eligibility Requirements for Trustee
The Trustee hereunder shall at all times be, and will be required to
resign if it fails to be, (i) a corporation, bank, trust company or banking
association, organized and doing business under the laws of any state or the
United States of America or the District of Columbia, authorized under such laws
to exercise corporate trust powers and to accept the trust conferred under this
Agreement, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority, (ii) an
institution insured by the Federal Deposit Insurance Corporation and (iii) an
institution whose long-term senior unsecured debt is rated "AA-" or higher by
Fitch and "Aa3" or higher by Xxxxx'x (or such other rating as would not, as
evidenced in writing by such Rating Agency, result in the qualification (as
applicable), downgrading or withdrawal of any of the then-current ratings then
assigned thereby to the Certificates), and shall not be an Affiliate of the
Depositor, Master Servicer or the Special Servicer (except during any period
when the Trustee is acting as, or has become successor to, the Master Servicer
or the Special Servicer, as the case may be, pursuant to Section 7.02).
If such corporation, bank, trust company or national banking
association 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
corporation, bank, trust company or national banking association shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published.
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 the B Loan
Holders. Upon receiving such notice of resignation, the Depositor shall p